German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 40 (1997) [1 ed.] 9783428495900, 9783428095902

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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 40 · 1997

DUNCKER

& HUMBLOT

· BERLIN

G E R M A N Y E A R B O O K O F I N T E R N A T I O N A L LAW Volume 40 · 1997

Founders: Rudolf Laun · Hermann von Mangoldt Editors: Jost Delbrück and Rainer Hofmann Assistant Editor: Jill M. Sears Co-Assistant Editor: Anne Peters Walther-Schücking-Institut für Internationales Recht an der Universität Kiel Advisory Board of the Institute: Daniel Bardonnet l'Université de Paris I I Rudolf Bernhardt Heidelberg Lucius Caflisch Institut Universitaire de Hautes Études Internationales, Genève Antonius Eitel Münster Luigi Ferrari Bravo Università 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 40 · 1997

DUNCKER & HUMBLOT / BERLIN

Beginning in 1995, the Institut für Internationales Recht an der Universität Kiel has changed its name to the Walther-Schücking-Institut für Internationales Recht an der Universität Kiel

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

This Yearbook may be cited: G Y I L 40 (1997)

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 fax 49 431 880-1619 email [email protected]

All rights reserved © 1998 Duncker & Humblot GmbH, Berlin Printed by Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0344-3094 ISBN 3-428-09590-1 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 θ

Contents Focus Section : Recent Developments in the Application of International Law in Domestic and European Community Law Anne Peters: The Position of International Law Within the European Community Legal Order

9

Jordan J. Paust : Customary International Law in the United States: Clean and Dirty Laundry 78 Beth Stephens-. Expanding Remedies for Human Rights Abuses: Civil Litigation in Domestic Courts 117 Igor I. Lukashuk : Treaties in the Legal System of Russia

141

Theodor Schweisfurth/Ralf Alleweldt: The Position of International Law in the Domestic Legal Orders of Central and Eastern European Countries 164 Jacob W. F. Sundberg : The European Convention on Human Rights and the Nordic Countries 181 Ineta Ziemele : The Application of International Law in the Baltic States

243

Brigitte Stern·. La competence universelle en France: le cas des crimes commis en exYougoslavie et au Rwanda 280

Articles David P. Fidler : Trade and Health: The Global Spread of Diseases and International Trade 300 Rainer Hofmanm Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems 356 Eric Johnson: Hong Kong after 1997: A Free City?

383

6

Contents

Gregor Noll: Prisoners' Dilemma in Fortress Europe: On the Prospects for Equitable Burden-Sharing in the European Union Roland Schärer: The European Convention on Nationality

405 438

Reports Ursula E. Heinz: Die Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996 460 Marian Niestedt/Dominik Ziegenhahn: Die Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte im Jahre 1996 514 Martin Mennecke/Christian Tams: Die Tätigkeit des Ministerkomitees und der Parlamentarischen Versammlung des Europarates in den Jahren 1995 und 1996 569 Jörg Föh/Ina Wiesner: Die Tätigkeit der International Law Commission in den Jahren 1995 und 1996 598

Book Reviews Chayes/Chayes: The New Sovereignty. Compliance with International Regulatory Agreements (Delbrück) 623 Giesen: Die Vorbereitung der Grundgesetzänderungen nach der deutschen Wiedervereinigung. Zur Rechtmäßigkeit von Organisation und Verfahren der Gemeinsamen Verfassungskommission ( Wolter )

626

Herdegen: Europarecht (Hobe)

630

Kilian: Europäisches Wirtschaftsrecht (Hobe)

631

Kopke: Rechtsbeachtung und -durchsetzung in G A T T und W T O (Tietje)

633

Lowe/Fitzmaurice (eds.): Fifty Years of the International Court of Justice — Essays in honour of Sir Robert Jennings (Delbrück)

636

Makarczyk (ed.): Theory of International Law at the Threshold of the 21st Century. Essays in honour of Krzysztof Skubiszewski (Hofmann)

640

Petersmann (ed.): International Trade Law and the G A T T / W T O Dispute Settlement System (Tietje) 642 Ragazzi : The Concept of International Obligations erga omnes (Delbrück)

645

Contents Schrijver:

Sovereignty over Natural Resources, Balancing Rights and Duties (Riedinger)

646

Société française pour le droit international : Colloque de Caen: Droit d'asile et des réfugiés (Wolter) 648 Stokke/Vidas (eds.): Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System (Riedinger) 651 World Intellectual Property Organization (WIPO): Introduction to Intellectual Property. Theory and Practice (Peifer) 654 van Wyk/Dugard/de Villers/Davis: African Legal Order (Hobe)

Rights and Constitutionalism — The New South656

Books Received List of Contributors

658

661

FOCUS SECTION: RECENT DEVELOPMENTS I N T H E A P P L I C A T I O N OF I N T E R N A T I O N A L L A W I N DOMESTIC A N D EUROPEAN C O M M U N I T Y L A W

The Position of International Law W i t h i n the European C o m m u n i t y Legal Order By Anne Peters

Introduction This article examines the status and effects of international law binding the Community itself 1 in the internal Community order. It does not deal with the distinct question to what extent international rules governing the relations between independent States apply to the relations between the Member States. The most important sub-questions of this issue are: Does the Community system prohibit once and for all resort to traditional institutions, such as self-help or retaliation? Can the EC Treaty be interpreted according to the rules of interpretation of international treaties, or does it require a specific reading? Can the EC Treaty be amended or terminated pursuant to the Vienna Convention on the Law of Treaties, or does its system preclude any reference to these residual rules?2

1

Treaties concluded by the Community, or general rules applicable to the Community in its quality as an international organization. 2 Jürgen Schwarze, Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen, Europarecht, Bd. 18, 1983, 1.

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Anne Peters

The starting point of my analysis is the proposition that Community law3 is a "new legal order" 4 that is distinct from international law.5 This characterization of Community Law was championed by the European Court of Justice (ECJ)6, and has been accepted by the courts of the Member States7 and most students of Community law.8 The qualification of Community law as independent of international law9 de-

3 When speaking of Community law, I focus on the most important of the three Community treaties, i.e., the EC Treaty, and leave aside the Treaty Establishing the European Atomic Energy Community and the Treaty Establishing the European Coal and Steel Community. I do not treat the overarching European Union, which is — in contrast to the three Communities it comprises — not a subject of international law. See in scholarship, e.g., Rudolf Streinz , Europarecht, 3rd ed., 1996, Rdn. 121b; see also the Bundesverfassungsgericht (German Constitutional Court) decision on the Treaty on European Union, BVerfGE 89, 155, 195 (1993). 4

Opinion 1/91, Draft Treaty on the establishment of a European Economic Area (re EEA)> 1991 ECR1-6079, para. 21. 5

The sui generis quality of Community law is unaffected by the international law origin of the Community-founding treaties and the fact that international law (most importantly G A T T rules and the European Convention's human rights) has played a constitutive role for the European integration of market and politics and does not preclude the possibility of a so-called monist relation between international law and Community law. See in detail infra Π.Ι. 6

In Case 26/62, Van Gend & Loos v. Nederlandse Administratie der Belastingen , the Cour held that "the Community constitutes a new legal order of international l a w , . . . the subjects of which comprise not only the Member States but also their nationals," 1963 ECR 1, 25. In case 6/64, Costa v. ENEL , 1964 ECR 1251, 1269, the Court dropped any reference to international law and said "the EEC Treaty has created its own legal system." In the quoted opinion 1/91, re EEA (note 4), para. 21, the Court referred to Van Gend & Loos, but spoke only of a "new legal order," but not of 'international law'. Opinion 2/94, Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) y 1996 ECR 1763, para. 34 opined that the accession of the Community to the Convention would tie the Community into a distinct, international institutional system. 7

See y e.g., Bundesverfassungsgericht (German Constitutional Court), BVerfGE 22, 293, 296 (1967); BVerfGE 37,271,277 - 278 (1974); Corte Constituzionale (Italian Constitutional Court), judgment No. 185 of 18 December 1973, German translation in Europarecht, 9 July, 1974,255, 259. 8 Notwithstanding the fact that the school considering Community law as merely regional international law recently appears to have gained some strength. See Albert Bleckmann y Die Rechtsnatur des Europäischen Gemeinschaftsrechts. Zur Anwendbarkeit des Völkerrechts im Europäischen Rechtsraum, Die öffentliche Verwaltung, 31. Jhrg., 1978, 391, 391 - 98; Streinz (note 3), Rdn. 113; Theodor Schilling, The Autonomy of the Community Legal Order: An Analysis of Possible Legal Foundations, Harvard International Law Journal, vol. 37, 1996,389, 403 - 404; Axel Marschik, Subsysteme im Völkerrecht: Ist die Europäische Union ein "SelfContained Regime"?, 1997,194 - 221. 9 The European founding treaties have installed independent organs, whose legislation constitutes a formal source of law within the legal order of the Member States without transformation, binds even non-consenting Member States, preempts municipal law of the Member States,

Position of International Law Within European Community Legal Order

11

termines my approach. If Community law were merely regional international law, the question of status and effects of international law within the Community legal order would have to be answered by international rules on the conflict of treaties and by principles governing the internal law of international organizations. In contrast, the conception of Community law as a distinct body of law compels an altogether different approach. On the premise that the Community is not only — similar to States — a.subject of international law, but has, like States, its own internal legal order, an analogy to the relationship between international law and domestic law of States imposes itself. 10 Analogy and deduction, however, bear the risk of losing sight of the specificity of the constellation we are dealing with. A more promising approach is the inductive one: I shall first examine how the Community institutions, above all the Court, handle the relation between international law and Community law (Part I), and then analyze this practice in doctrinal terms. The doctrinal analysis is divided into three questions: — How are international rules inserted, adopted, or incorporated into the Community's legal order so as to produce legal effects within that order? (Part Π) — What is the hierarchical status of international law vis-à-vis Community law? In other words, which norms prevail in the event of a conflict? (Part US) — When do international rules have a so-called 'direct effect' within the Community? (Part IV) I. International Law under the Jurisdiction of the European Court of Justice The mere fact that the ECJ has — without explicit authorization in the EC Treaty — assumed jurisdiction on international law in almost all types of proceedings implicand is safeguarded by the compulsory jurisdiction of the ECJ. Each of these elements of supranationality, taken by itself, is not unknown in traditional international organizations, but their accumulation is unique and makes the EC system special. 10

See, e.g., Thomas Oppermann , Europarecht, 1991, Rdn. 522; Jean Boulois , Le droit des Communautés Européennes dans ses rapports avec le droit international général, Recueil des Cours, vol. 235,1992-IV, 9,65; Rudolf Geiger, EG-Vertrag, 2nd ed., 1995, art. 228, para. 16; Resolution of the European Parliament on the relation between international law, Community law and constitutional law of the Member States of 10 October 1997, Official Journal Eur. Comm. No. C 325, 1997, para. 14. But see Robert Kovar, Les Accords liant les Communautés Européennes et Tordre juridique communautaire: à propos d'une jurisprudence récente de la Cour de Justice, Revue du Marché Commun, tome 15,1974,345,346; Ulrich Everting, Sind die Mitgliedstaaten der Europäischen Gemeinschaft noch Herren der Verträge? Zum Verhältnis von Europäischem Gemeinschaftsrecht und Völkerrecht, in: Rudolf Bernhardt/Wilhelm Karl Geck/ Günther Jaenicke/Helmut Steinberger (eds.), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte. Festschrift für Hermann Mosler, 1983, 173, 175.

12

Anne Peters

itly answers some of the questions posed above. Two basic constellations must be distinguished: first, the Court is called to decide upon the legality of Community or Member State action and considers it in the light of international law. Both customary international law and international treaty law (as far as the relevant treaty provisions have direct effect) can be standards of legality of Community action. The second constellation is the inverse one: here international agreements concluded by the Community are the object of judicial control and are assessed in the light of the EC Treaty. 1. International Law as a Standard of Legality of Community and Member State Action The first constellation, application of international law as a standard of legality of Community or Member State action, shows that the ECJ considers international law to rank above Community (and Member State) legislation. The Court has demonstrated this view in three procedural settings. a) Direct Actions, Article 173 EC Treaty In actions for annulment (art. 17311), the Court reviews the legality of acts of the institutions and may invalidate Community action on the ground of, inter alia , infringement of any rule of law relating to the application of the EC Treaty. The ECJ appears to subsume the violation of international law under this ground of review. The locus classicus is the 1988 Wood Pulp case.12 U.S. enterprises filed suit against a Commission decision in a competition matter and claimed, inter alia, that the Commission, in fining them, had violated the international law prohibition of intervention. 13 The Court applied international law as a yardstick and held that the Commission's decision conformed to the international legal principle of territoriality and therefore did not breach international law.14 In numerous other cases, individual importers sought invalidation of the Council's basic anti-dumping regulation (or the Commission's decisions based thereon) on the ground that Community action violated the GATT Anti-Dumping Code.15 A most recent example for resort to interna-

11

Art. 230 of the Treaty of Amsterdam of 2 October 1997.

12

Cases 89,104,116,117,125 - 129/1985, Ahlström Osakeyhtiö v. Commission (WoodPulp), 1988 ECR 5139. 13

See the Court's discussion id., para. 15 - 23.

14

Id., para. 18.

15

See, e.g., case 175/87, Matsushita Electric v. Council, 1992 ECR 1-1409, paras. 41 - 43; Case C-188/88 NMB (Germany) v. Commission, 1992 ECR 1-1689, paras. 42 - 47.

Position of International Law Within European Community Legal Order

tional law as a yardstick in proceedings under article 173 is the 1997 case Opel Austria? 6 where the Court of First Instance examined a Community regulation challenged by an individual applicant in the light of article 10 of the treaty on the European Economic Area (EEA Treaty) and the customary international law principle of bona fides. The challenged regulation had been enacted before the EEA Treaty entered into force, but after the Community had approved that treaty. As the Community was the last contracting party to deposit its signature, the future date of the EEA Treaty's entry into force was ascertainable. In that situation, the principle of good faith, as codified in article 18 of the Vienna Convention on the Law of Treaties, mandated observation of the EEA Treaty in Community legislation. As the challenged regulation was incompatible with article 10 EEA Treaty, the Community had disregarded legitimate expectations and legal certainty, two general principles of law which form part of the Community legal order. 17 It is noteworthy that the Court of First Instance annulled the regulation on that ground, and not on the ground of violation of international law pure and simple.18 Correspondingly, international law is a standard of legality for incidental control of a Community regulation under article 184 EC Treaty, 19 which refers to the grounds of invalidity of article 173.20 A Community act that violates international law may be declared invalid (art. 174), although the European courts have not as yet reached this conclusion. A partial exception is the mentioned case Opel Austria , where general principles of law together with international law led to annulment of a Community regulation. Apart from that case, the European courts either saved Community acts by consistent interpretation (reading them in conformity with international law) or by denying the direct effect of the international treaty provision at stake.21 b) Preliminary Rulings, Article 177 EC Treaty In preliminary rulings (art. 177b22), the Court decides on the "validity . . . of acts of the institutions of the Community." Here the Court applies international law as a standard of validity. The leading case is International Fruit Company , in which the 16

Case T-115/94, Opel Austria v. Council , 1997 ECR Π-39.

17

Id., paras. 89- 126.

18

Id. , para. 126.

19

Art. 241 of the Treaty of Amsterdam of 2 October 1997.

20

See as an example for this constellation case C-69/89, Nakajima All Precision v. Commission, 1991 ECR 1-2069, para. 28. 21

See infra IV.6.b. and IV.8.a.

22

Art. 234b) of the Treaty of Amsterdam of 2 October 1997.

13

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Anne Peters

referring court asked whether particular Community regulations were invalid on the ground of a GATT violation. In that case, the Court pointed out that article 177 does not contain any restriction as to the grounds of invalidity that may affect acts of the institutions. The Court must therefore examine whether acts are invalid for nonconformance to a rule of international law.23 c) Enforcement Actions, Articles 169, 170 EC Treaty In enforcement actions against Member States (arts. 169, 17024), the Court considers a Member State's disregard of an international obligation binding the Community to be a "failure to fulfil an obligation under the EC Treaty" in terms of article 169. This reading of article 169 relies on article 228(7)25 pursuant to which international agreements of the Community are binding on the Member States. A recent example for this type of proceeding is an action by the Commission against Germany, alleging that Germany had not complied with an international agreement on dairy products, to which the Community is a party. 26 The Court here emphasized that article 155 EC Treaty sets out the Commission's power to ensure that the provisions of the EC Treaty are applied. This task comprises the enforcement of the international agreements concluded by the Community. To this end, the Commission must be able to initiate proceedings against a Member State for violation of international agreements of the Community which are binding on the Member States by force of article 228(7).27 2. International Agreements Concluded by the Community as an Object of Judicial Control a) Advisory Opinions, Article 228(6) EC Treaty The only explicit conventional authorization of the Court to control international agreements of the Community is laid down in article 228(6).28 Under this provision, "[t]he Council, the Commission or a Member State may obtain the opinion of the 23

Cases 21-24/72, International Fruit Company v. Produktschap voor groenten en fruit , 197 ECR 1219, para. 5/6. 24

Art. 226, 227 of the Treaty of Amsterdam of 2 October 1997.

25

Art. 300(7) of the Treaty of Amsterdam of 2 October 1997.

26

Case C-61/94, Commission v. Germany , 1996 ECR 1-4006. See also Opinion 1/91, re EEA (note 4), para. 38, stating that the ECJ is competent to decide on international agreements when Member States do not comply with their obligations arising from these agreements. 27

Id. y para. 15.

28

Art. 300(6) of the Treaty of Amsterdam of 2 October 1997.

Position of International Law Within European Community Legal Order

15

Court of Justice as to whether an agreement is compatible with the provision of this Treaty." Where the opinion of the Court is adverse, the agreement may enter into force only if the EC Treaty is formally amended accordingly. This proceeding is primarily designed to prevent complications in the international arena, not to safeguard interests of the Member States or Community institutions.29 In addition to its power to give advisory opinions, the ECJ assumed jurisdiction to control international agreements by assimilating the conclusion of agreements to acts of the institutions for purposes of judicial control. It did so in two procedural settings. b) Direct Actions, Article 173 EC Treaty In actions for annulment (art. 173), the Court controls the legality of acts of the institutions. In the view of the Court, the Community principle of judicial control (art. 16430) requires a broad understanding of "acts" that covers all actions intended to create legal effects. In particular, the institutions' exercise of powers in the field of international relations is not exempt from judicial control under article 173.31 Therefore the Community act which approves the conclusion of an international agreement on behalf of the Community — most often a resolution of the Council — is an "act" in the sense of article 173.32 This act is void if it infringes the EC Treaty, article 173(1), 174. The Court's power to render invalid the conclusion of an international agreement on the ground of infringement of the EC Treaty has often been misunderstood and criticized as an undue review of international agreements themselves. Ex post control of international agreements, it is observed, has no textual basis in the EC Treaty, oversteps the Court's jurisdiction, and circumvents the preventive control of projected agreements under article 228(6), whose purpose is to avoid an adversarial ex post decision on the incompatibility of the EC Treaty with an international agreement which is already in force, because such a decision would bring about difficulties in the Community's international relations. This criticism in part overlooks that the Court does not review the agreement itself, but, by means of a not too expansive reading of 'acts of the Community institu-

29

Opinion 3/94, GA TT- WTO-framework

30

Art. 220 of the Treaty of Amsterdam of 2 October 1997.

31

Case C-327/91, France v. Commission , 1994 ECR 1-3641, para. 16.

32

agreement on bananas, 1995 ECR 1-45, para. 21.

Case 22/70, Commission v. Council (re European Road Transport Agreement, ERTA/ AETR ), 1971 ECR 263, para. 38/42; France ν . Commission (note 31), para. 14; see also the obiter dictum in Opinion 1/75, re local costs, 1975 ECR 1355, 1361.

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Anne Peters

tions', only the Community procedure leading to its conclusion.33 This was made clear by the Court in a 1994 case in which the ECJ reformulated a French complaint to "declare invalid" a European-American agreement in competition matters and considered the action as "an action against the act by which the Commission intended to conclude the agreement."34 Admittedly, the Court made this unequivocal statement in a dispute which facially did not concern the agreement's contents, but only the form of the act of its conclusion. The question here was whether the Commission — insteâd of the Council — was competent to conclude an international 'executive agreement' on behalf of the Community, pursuant to a Community practice which had evolved contrary to the wording of article 228(2). The Court emphasized that "the act by which the Commission wanted to conclude the agreement must be challengeable in an action for annulment,"35 and declared that act void. The fact that this case concerned the form rather than the substance of the agreement does not make a material difference as regards the object of judicial review,36 because generally (as in the mentioned case) the ultimate purpose of launching formal questions (such as the agreement's formal basis in the EC Treaty, competencies of the Commission, voting modus in Council, parliamentary participation) is to achieve a modification of the agreement's substance, which at least in part depends on who participates and how in its conclusion. Another, more recent example for this constellation is a 1996 judgment on an agreement on development cooperation between the European Community and India. The resolution by which the Council concluded the agreement had been challenged by Portugal on the ground that it was incorrectly founded on article 130y EC Treaty. The ECJ considered this provision to be the proper legal basis and upheld the conclusion of the agreement.37 To conclude, it is somewhat simplistic to call the Court's practice a review of international agreements under the standard of the EC Treaty, although it materially has that effect. Judicial review of the internal act of conclusion leads to its possible annulment which translates into a simple refusal to apply the international treaty.

33

This is highly controversial; seeKovar (note 10), 357 - 358; Joel Rideau, Les Accords internationaux dans la Jurisprudence de la Cour de Justice des Communautés Européennes: Reflexions sur les relations entre les ordres juridiques international, communautaire et nationaux, Revue générale de droit international public, tome 94, 1990, 289, 384 - 402. 34

France v. Commission (note 31), para. 17.

35

Id., para. 15.

36

But see Christian Tomuschat , Commentary to art 228, para. 84, in: Hans von der Groeben/ Jochen Thiesing/Claus-Dieter Ehlermann (eds.), Kommentar zum EU-/EG-Vertrag, Bd. 5, 5th ed., 1997. 37

Case C-268/94, Portuguese Republic ν. Council , 1996 ECR 1-6177.

Position of International Law Within European Community Legal Order

17

c) Article 177 EC Treaty The Court's jurisdiction to render preliminary rulings (art. 177b) comprises two cases, "validity and interpretation of acts of the institutions of the Community." The Court assumed the power to interpret international agreements. The justification was simply that the provisions of agreements concluded by the Community form, once the agreement has entered into force, an integral part of the Community legal order.38 We might therefore call those agreements 'external Community law' — as opposed to 'internal Community law'. A further argument in support of the Court's jurisdiction is the freedom of the Member State courts to formulate reference questions. A State court's request for interpretation of an international agreement concluded by the Community (with a view to a potentially incompatible Community act) is just another way of putting the question of validity of that internal Community act, a reference question which is doubtlessly foreseen by article 177b. In Sevince (1990), the Court went one step further and stated that even resolutions of a council of association installed by an agreement of association are subject to interpretation by the Court under article 177. The Court argued that its power to interpret agreements comprises the authorization to interpret acts of institutions that have been created by those agreements — acts which might be called 'secondary external Community law' — provided that those secondary acts are "directly" related to the international agreement.39 Despite that limiting condition, this extension of jurisdiction is barely reconcilable with the wording of article 177 EC Treaty, because international bodies, whose acts are interpreted by the ECJ under the Sevince doctrine, can hardly be called "institutions of the Community" in terms of article 177. As yet, the ECJ has not been asked by a referring court to pronounce itself on the "validity" of an international agreement in a preliminary ruling. Some opine that in that case, the Court would have to examine whether an international agreement is compatible with the EC Treaty. In the event of incompatibility, the Court would have to conclude that the EC Treaty prevails over the agreement.40 But here, as in the context of direct actions against international agreements, doubts arise as to the jurisdiction of the Court to declare invalid the international treaty itself, which is not a 38

Case 181/73, Haegeman v. Belgium , 1974 ECR 449, para. 2/6.

39

Case C-192/89, Sevince v. Staatsecretaris van Justitie , 1990 ECR 1-3461, para. 9 -10. See also Case C-188/91, Deutsche Shell v. Hauptzollamt Hamburg-Harburg, 1993 ECR 1-363, paras. 17 19 (on the Court's power to interpret a non-binding resolution of a mixed Council installed by an agreement on international shipping between the EC and Iceland, Norway, Sweden, Finland, Austria, and Switzerland). Already in its decision on special aid for Turkey, the Court had stated that secondary acts are an integral part of Community law, provided that they are directly connected to a Community agreement. Case 30/88, Greece v. Commission , 1989 ECR 3711, para. 13. 40

Tomuschat (note 36), para. 90.

2 GYIL 40

18

Anne Peters

Community act but a mutual agreement of the Contracting Parties. The solution which better corresponds to the wording of article 177 and — more importantly — protects legitimate expectations of the Contracting Parties is to allow only for invalidation of the internal act of conclusion of the agreement. The controversy surrounding the Courts ex post control of international agreements under article 173 and under article 177 reflects the tension between internal control of legality and external protection of third parties acting in good faith. That tension can be solved best by limiting judicial control to the internal act of conclusion of the agreement. The internal act is invalid if it disregards formal or material requirements of the EC Treaty. Its judicial annulment results in the inapplicability of the international treaty within the Community, but neither invalidates the treaty on the plane of international law nor liberates the Community from its international obligations {cf articles 46 of both Vienna Conventions on the Law of Treaties41). II. The Incorporation of International Rules into the Community Legal Order 1. The Possible Theoretical Framework The incorporation of international rules into the Community legal order can be described within the framework of theoretical models on the relationship between two types of law. The two pure models are called monism and dualism. In the monist model, international law and domestic law are only different elements of one universal body of law,42 so that — strictly speaking — the question of how to incorporate international law into domestic law does not arise. According to the dualist conception, international law and domestic law are two separate legal systems because they have different sources, different contents, and different subjects.43 A look at the pure models is a useful starting point for the analysis of the relation between international and Community law, if we keep in mind that these models have been developed with a view to the relation between international law and domestic law, and cannot simply be transferred to the relation between international 41

Vienna Convention on the Law of Treaties of 23 May 1969,1155 U N T S 331, No. 18232; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 18 February - 21 March 1986, not yet in force, text in I L M 25 (1986), 543. O n the practical consequences of the postulated priority of the EC Treaty over rules of international law, see infra HL2.a. 42

HansKelsen t Die Theorie des Völkerrechts und das Souveränitätsdogma, 2d ed., 1928, reprint 1960, esp. 249 - 257. 43

Dualism was in its classical formulation enunciated by Heinrich Triepel Landesrecht, 1899. See the summary of his argument id ., at 9 -10.

y

Völkerrecht und

Position of International Law Within European Community Legal Order

and Community law. Here, we are not only dealing with two levels of law, but with three levels: international law, Community law, and domestic law of the Member States. Once an agreement enters into force it becomes not only an integral part of Community law, but also of the national legal order of the Member States (via Community law). An analysis of the relationship between international law and Community law must be aware of the special effects of Community law within the legal order of the Member States — domestic status without need for transformation, supremacy/preemption and many rules' direct applicability — because these characteristics influence our answer to the question whether international law should be (as the dualist model presupposes) transformed into Community law.44 Conversely, international law binding the Community may have an impact on the relationship between Member State law and Community law. For instance, the German Bundesfinanzhof (Federal Financial Tribunal) argued that Community action violative of international law (e.g. the GATT) falls outside the scope of the Member States' constitutional authorization of Community powers and therefore does not bind the Member States45 — a position that will not be explored further here. So, while keeping in mind that the models have a limited value in the present context, we can summarize their three key elements as follows: In the monist model: (1) Rules of international law have by themselves the force of law within the domestic legal order, and any internal act of incorporation is merely declaratory. (2) International norms automatically form part of the domestic legal system in their quality as such, without alteration of their international nature. (3) In the event of conflicting prescriptions of international and domestic law, the inferior norm (which is according to most monists the domestic norm) is immediately and by itself void or without effect. In the dualist model: (1) International law can only acquire the force of law within the domestic legal order by means of an internal act. (2) The internal act transforms the international norm into national law and thereby alters its nature.46 This transformation is not necessarily effectuated by adopt44

See in detail infra EE.3.b.

45

See order of the Bundesfinanzhof of 9 January 1996, Europäische Zeitschrift für Wirtschaftsrecht, Bd. 7, 1996, 126, 127 - 28. 46

The theory of execution (Vollzugslehre ), as elaborated by German scholars, seeks to strike a middle ground between the monist and the dualist model. Although this theory asks — as traditional dualism does — for an intervening internal act to bring into effect the international norm, this act does not transform the international rules' legal character. See Karl JosefPartsch, Die Anwendung des Völkerrechts im innerstaatlichen Recht, Berichte der Deutschen Gesell-

2*

19

20

Anne Peters

ing a substantive internal law which is tailored to match domestic circumstances and paraphrases, but does not take over the language of the international agreement. Transformation can also lie in an approving act that incorporates the international norm into the domestic sphere in a purely formal way. In that case, courts and other internal bodies will look at the wording of the treaty itself to find the law. If one wanted to call the Community practice of incorporating international agreements 'transformation', it could only be this second type of 'formal* transformation. (3) Internal law that is irreconcilable with an international obligation remains valid. However, its application by domestic institutions constitutes a breach of international law, and the State (in our case the Community) is obliged to amend it. States are free to opt for monism or dualism. In particular, the mode of incorporation of international rules — key elements (1) and (2) of the models — is left for the States (or in our case the Community) to decide.47 Scholarly evaluation of the relationship between Community law and international law is diverse. While some call that relationship dualist, most consider it to be a monist one.48 A monist construc-

schaft für Völkerrecht, Bd. 6, 1964, 13, esp. 19 - 24; Georg Dahm/Jost Delbrück/Rüdiger Wolfrum , Völkerrecht, Bd. 1/1,2d ed., 1989,106; Rudolf Geiger, Grundgesetz und Völkerrecht, 2nd ed., 1994,172; Werner Meng, Gedanken zur Frage unmittelbarer Anwendung von WTO-Recht in der EG, in: Ulrich Beyerlin/Michael Bothe/Rainer Hofmann/Ernst-Ulrich Petersmann (eds.) Recht zwischen Umbruch und Bewahrung. Festschrift für Rudolf Bernhardt, 1995,1063,1066, n. 13. 47 48

Dahm/Delbrück/Wolfrum

(note 46), 101.

For the dualist perspective see, e.g., Albert Bleckmann, Die Position des Völkerrechts im inneren Rechtsraum der Europäischen Gemeinschaften, Jahrbuch für Völkerrecht Bd. 18,1975, 300-319; Hans Krück, Völkerrechtliche Verträge im Recht der Europäischen Gemeinschaften, 1977, 166 - 169. For the monist view see, e.g., Kovar (note 10), 352 - 354; Paul Joan George Kapteyn , The "Domestic" Law Effect of Rules of International Law Within the European Community System of Law and the Question of the Self-Executing Character of G A T T Rules, The International Lawyer, vol. 8, 1974, 74, 75; Pierre Pescatore , Die Rechtsprechimg des Europäischen Gerichtshofs zur innergemeinschaftlichen Wirkung völkerrechtlicher Abkommen, in: Bernhardt/Geck/Jaenicke/Steinberger (note 10), 661, 664, η. 6 and 681; Gerhard Bebr, Agreements Concluded by the Community and their Possible Direct Effect: From International Fruit Company to Kupferberg, Common Market Law Review, vol. 20,1983,35, 39; Rainer Arnold, Die Übernahme des allgemeinen Völkerrechts in den internen Rechtsbereich der Europäischen Gemeinschaften, in: Manfred Just/Michael Wollenschläger/Philipp Eggers/Hans Hablitze (eds.), Recht und Rechtsbesinnung. Gedächtnisschrift für Günther Küchenhojf 165, 1988, 178 179; Rideau (note 33), 309; Oppermann (note 10), Rdn. 1673; Boulois (note 10), 75; Bengt Beutler/Roland Bieber/Jörn Piepkorn/Jochen Streil, Die Europäische Union, 4th ed., 1993, 543; L. Hancher, Constitutionalism, the Community Court and International Law, Netherlands Yearbook of International Law, vol. 25,1994,259,277; Piet Eeckhout, The Domestic Legal Status of the W T O Agreement: Interconnecting Legal Systems, Common Market Law Review, vol. 34, 1997, 11,25.

Position of International Law Within European Community Legal Order

21

tion does not negate the sui generis character of Community law (distinct from international law) which this paper treats as axiomatic, but merely considers the two distinct types of law as parts of a universal legal order. A look at the Community practice should clarify the issue. 2. The Community Practice of Incorporation of International Law Neither the EC Treaty nor the Community institutions explains the Community practice of incorporating international law (in particular international agreements) into Community law in doctrinal terms.49 According to article 228(7) EC Treaty "[agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States." This provision presupposes the insertion of international agreements into the Community legal order, without explicitly prescribing a specific technique of incorporation. An unwritten Community rule which corresponds to article 228(7) foresees the incorporation of customary international law into the Community legal order. 50 The ECJ has treated the incorporation of international agreements in an informal fashion. Throughout its case law, it made no difference between agreements concluded on the Community side by the Community alone (e.g. Kupferberg? 1), those concluded by the Community and the Member States acting together (mixed agreements, e.g. DemireP 1), and finally the GATT, which was concluded by the Member States but which became binding on the Community by succession (e.g. International Fruit Company 53). One could think of deriving a theory of incorporation of international law (in particular international agreements) into Community law from the Member States' practice of incorporating international law into domestic law. If there existed some general principles in this respect, a Community technique tailored to these would have good chances to meet the Member States' approval. However, the Member States'

49

In a 1997 Resolution (note 10), para. 14, the European Parliament asked for an amendment of the EC Treaty that would clearly establish a respective doctrine. 50

See Arnold (note 48), 173 - 174.

51

Case 104/81, Hauptzollamt Mainz v. Kupferberg,

52

1982 ECR 3641.

Case 12/86, Demirel v. Stadt Schwäbisch Gmünd , 1987 ECR 3719 (agreement of association with Turkey). 53

International Fruit Company (note 23).

22

Anne Peters

regulations to ensure domestic execution of international treaties is too diverse to provide a basic Community rule. 54 The Community practice on incorporation of international agreements has changed. Until 1969, the Council, which is competent to conclude agreements, enacted a simple resolution to that purpose.55 Later, it began to adopt regulations that carried the text of the agreements as an annex.56 The choice of a regulation (which is by definition directly applicable) was interpreted by some, in particular by courts in dualist Member States, to imply that a constitutive act of transformation in form of the regulation was necessary and that the Council opted for the technique of transformation. 57 That interpretation, however, cannot stand in the light of the more recent practice, which returned to adopting agreements in form of a resolution. Their standard formula is: "The agreement... is approved on behalf of the Community. The wording of the agreement is annexed to this resolution." 58 Only occasionally, in particular in the agrarian sector, agreements are still approved of in form of a regulation.59 In any case, the ECJ does not attach weight to the type of legal act used for the incorporation of international agreements, and does not interpret it in terms of a specific doctrine of incorporation.

54 Jacques H.J. Bourgeois , Effects of International Agreements in European Community Law: Are the Dice Cast? in: Michigan Law Review Association (ed.), The Art of Governance. Festschrift zu Ehren von Eric Stein , 1987, 120. 55

See, e.g., EEC Resolution 63/106 of the Council of 25 September 1961, Official Journal Eur. Comm. No. 293,1963 (concluding the agreement of association with Greece); EEC Resolution 64/732 of the Council of 23 December 1963, Official Journal Eur. Comm., No. 3685, 1964 (concluding the agreement of association with Turkey). 56

See, e.g., EEC Regulation 1524/70 of the Council of 20 July 1970, Official Journal Eur. Comm. No. L 182, 1970, 1 (on the conclusion of an agreement with Spain); EEC Regulation 2844/72 of the Council of 19 December 1972, Official Journal Eur. Comm. No. L 301, 1972, 164 (on the conclusion of an agreement with Portugal). 57

See, e.g., the Bundesfinanzhof (German Federal Financial Tribunal), Recht der internationalen Wirtschaft, vol. 26,1980,786,787, asserting that agreements are "transformed into Community law by way of regulations." See in the same sense the reference question formulated by the Court of Appeal of England and Wales in Case 270/80, Polydor v. Harlequin , 1982 ECR 329, at 333, where the court asked for the direct effect of an international agreement and particularly mentioned "the Council's regulation that enacted the agreement." For criticism of the interpretation of the Council's use of regulations as implying its opting for the technique of transformation seePescatore (note 48), 665; Bourgeois (note 54), 119; Boulois (note 10), 75. 58 See, e.g., art. 1 of the EC Resolution 95/569 of 18 December 1995, Official Journal Eur. Comm. No. L 324,1995,1 (concluding an agreement with Bolivia on chemicals that are often used for the production of drugs). 59

See, e.g., EEC Regulation 1797/94 of the Council of 18 July 1994, Official Journal Eur. Comm. No. L 187, 1994, 3 (on the conclusion of a fisheries agreement with Mauritius).

Position of International Law Within European Community Legal Order

23

So at first sight, practice and case law do not answer the question whether the incorporation of international law into the Community legal order occurs by transformation (within a dualist framework) or not (within a monist framework). On the contrary, practice and case law appear to be primarily guided by pragmatism. So is a theory of incorporation of international law into Community law mere theory for theory's sake? It is submitted here that it is not, because it does — due to the special characteristics of Community law — make an important difference whether international law is valid as such within the Community, or whether it is transformed into Community law. 3. The Practical Relevance of the Question of Transformation a) Practical Relevance for the Interpretation of Community Agreements? It is often asserted that the interpretation of international agreements depends on their being in force within the Community without alteration of their legal nature 4 as international law* (monist solution) or through transformation of their legal nature 'as Community Law' (dualist solution).60 If international agreements retain their international legal nature, they must be interpreted according to international law principles, whereas, if they are transformed into Community law (so the argument runs) they must be interpreted pursuant to Community principles of interpretation. Indeed, the ECJ has interpreted provisions in international agreements of the Community differently than identically or similarly worded provisions of the EC Treaty. 61 However, this case law does not prove that the Court applied different techniques of interpretation. The more plausible explanation for the diverging interpretations is that the Court simply looked at the respective provisions' context and took into account the (diverging) objectives of the different treaties in question.62 This approach, the interpretation in the light of object and purpose of a treaty (including the EC Treaty), is both a Communitarian and an internationalist approach.

60 Bleckmann (note 48), 314; Tomuschat (note 36), para. 58; Claus Weber , Wirtschaftsabkommen im System der Europäischen Gemeinschaft — Die Rechtsprechimg des Europäischen Gerichtshofs, Archiv des Völkerrechts, Bd. 35, 1997, 295, 303.

61 Polydor (note 57), para. 8; case C-163/90, Administration des douanes et droits indirects ν LegroSy 1992 ECR1-4625, para. 23; Opel Austria (note 16), paras. 105 - 111. 62 In Chiquita , the Court stated that, with a view to determining the direct applicability of an agreement's provision that is similar to one in the EC Treaty, a consideration of the general framework, and comparison of purpose and context of the agreement with that of the EC Treaty is particularly important. Case C-469/93, Amministrazione delle finanze dello Stato v. Chiquita Italia , 1995 ECR 1-4533, para. 52. See also case C-312/91, Metalsa 1993 ECR 1-3751, para. 11.

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Anne Peters

It is true that the interpretation of Community law must take into account the constitutional character of the founding treaties and therefore resembles constitutional interpretation. 63 Nevertheless, the ostensible differences as regards techniques of interpretation of international law and Community law are less great than it is often assumed. Proponents of that difference maintain that there are various international legal principles which do not govern the interpretation of Community law. First, it has been pointed out that — contrary to article 31(3)b of the Vienna Convention on the Law of Treaties (referring to "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation") — the ECJ does not take into account subsequent political agreements of the Member States.64 However, the decisions cited in support of this proposition do not actually prohibit taking into account subsequent practice as a means of clarifying the meaning of a provision, but merely hold that informal arrangements cannot modify provisions of the EC Treaty outside the formal amending procedure. 65 A further argument is that recourse to the travaux préparatoires (art. 32 Vienna Convention) is not allowed as a means of interpreting the Community Treaty. 66 However, even under general international law, this means of interpretation is only a subsidiary one and its doctrinal value and its practicability are disputed.67 Therefore, Communitarian and international rules of interpretation are in accord in that respect. Finally, the traditional international rule in dubio mitius (protecting the sovereignty of the contracting parties) is not acknowledged in Community law. However, this principle which has occasionally been applied by the PCIJ68 has not been codified as a rule of interpretation in the 1969 Vienna Convention69 and has never been referred to by the ICJ, 63

Schwarze (note 2), 33; Oppermann (note 10), para. 577.

64

Schwarze, id.

65

Case 43/75, Defrenne v. Société anonyme belge de navigation aérienne Sabena, 1976 ECR 455, para. 56/58; case 59/75, Prosecutor v. Manghera , 1976 ECR 91, para. 21; France v. Commission (note 31), para. 36. 66

Schwarze (note 2), 33.

67

See Paul Reuter, Introduction au droit des traités, 3rd ed. 1995, paras. 146 - 147.

68

In The S.S. "Wimbledon", the PCIJ held that the clauses of the Treaty of Versailles restricting the exercise of German sovereignty by internationalization of the Kiel Kanal must be interpreted restrictively. 1923 PCIJ (ser. A), No. 1,24. In Article 3, Paragraph 2, of the Treaty of Lausanne (Mossul case), the PCIJ stated: "[I]f the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum of obligations for the Parties should be adopted." 1925 PCIJ (ser. B), No. 12, 25. But see the more hesitant approach taken in Cases relating to the Territorial Jurisdiction of the International Commission of the River Oder. "[I]t will be only when, in spite of all pertinent considerations, the intention of the Parties still remains doubtful, that that interpretation should be adopted which is most favorable to the freedom of States." 1929 PCIJ (ser. A), No. 23, 26. 69

Compare , e.g., art. 3 of the 1953 project regarding the interpretation of treaties presented to the Institute of International Law by Hersch Lauterpacht (Annuaire JDI, vol. 46, 1956, 319)

Position of International Law Within European Community Legal Order

25

obviously because the Court realizes its inappropriateness within the modern international community. On the other hand, it is asserted that the ECJ resorts to specific Communitarian principles of interpretation, which are unknown in international law.70 The ECJ places special emphasis on functional interpretation, and interprets Community law in a dynamic fashion. 71 In particular, it reads Community provisions so as to guarantee their effet utile J 1 Certainly, these principles are an especially prominent.feature of interpretation of Community law, but are not altogether alien to the interpretation of international legal instruments. Under international law, a functional-teleological approach has been used by the ICJ to interpret treaties providing for objective territorial régimes73 and is considered particularly relevant for the interpretation of constitutive instruments of international organizations.74 The ICJ also resorts to dynamic-evolutionary interpretation. 75 Furthermore, international law acknowledges the principle of contemporaneity,76 and interpretation to safeguard the effet utile Γ to art. 31, 32 Vienna Convention. 70 71

Schwarze (note 2), 31. Id.

72

The seminal decision is case 8/55, Fédération ( Fédéchar ), 1955/56 ECR 297, 312.

Charbonnière de Belgique v. High Authority

73

International Status of South-West Africa emphasized the "raison d* être " and "original object" of the sacred trust, 1950 ICJ 128, 133. In Admissibility of Hearings of Petitioners by the Committee on South West Africa, Lauterpacht 1 s separate opinion stated the multilateral instrument creating a mandate must be interpreted so as to secure the "unity and the operation of the regime" independent of "a breakdown or gap which may arise in consequence of an act of a party or otherwise." 1956 ICJ 23, 48 (sep. op. Sir Hersch Lauterpacht) (emphasis added). In the South West African Cases (Ethiopia v. South Africa; Liberia v. South Africa) seco phase, Judge Tanaka endorsed as "method of interpretation of the mandates system" consideration of spirit and objectives as well as social reality of this system play important roles. This method may be called sociological or teleological, in contrast with strict juristic formalism." 1966 ICJ 6, 276 (diss. op. Tanaka) (emphasis added). 74

Alfred

Verdross/Bruno

Simma , Universelles Völkerrecht, 3rd ed. 1984, 494.

75

In Legal Consequencesfor States of the Continued Presence ofSouth Africa in Namibia (So West Africa) notwithstanding Security Council Resolution 276(1970), the ICJ stated that "an in ternational instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation ," (1971 ICJ 16, 31) (emphasis added). In the Aegean Sea Continental Shelf Case (Greece v. Turkey), the ICJ pointed out that in interpreting and applying a State's reservation to an international instrument, the Court has to take into account the evolution which has occurred in the rules of international law, and must interpret in accordance with the rules of international law as they exist at the time of the decision, 1978 ICJ 3, 33 - 34. 76 This was spelled out by Max Huber in the arbitral award in the 1928 Island of Palmas Case as follows: "[A] juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be set-

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Anne Peters

All in all, the differences in interpretation of international law and Community law are — the 'constitutional* approach of the ECJ notwithstanding — at best differences in degree, but not in kind. Moreover, even if one acknowledges that minimal differences with regard to the technique of interpretation of international law and Community law exist, one must remember that only the original strict theory of transformation held that transformed international agreements had to be interpreted according to the domestic rules of interpretation. Nowadays, proponents of transformation admit that any interpretation of international agreements will take into account the international law origin of the rules.78 This pragmatic position seems to be endorsed by the ECJ, too. In Kupferberg , where the ECJ spoke of the "Community nature" of such an agreement79 (implying transformation), it nevertheless emphasized that the interpretation of a Community agreement must take into account its "international origin." 80 This statement shows that the Court acknowledges the modern rule (which should go without saying for members of the international community): common international principles, not (potentially diverging) domestic principles of the contracting parties, must govern the interpretation of international agreements.81 With regard to interpretation, the practical difference of the question: Transformation of an international agreement or not? is therefore marginal. b) Practical Relevance for the Agreements' Hierarchical Status and Preemptive Effect within the Legal Orders of the Member States The practical relevance of the question of transformation of international law into Community law arises from the fact that a third level of law, the domestic law of the Member States, comes into play, whose relation to international law is altogether

tied." RIAA, vol. 2, 1949, 829, 845. 77

In Interpretation of Peace Treaties with Bulgaria , Hungary and Rumania (second phase), ICJ mentioned the "principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness," but said that it could not justify the claim because it would be an interpretation contrary to letter and spirit. 1950 ICJ 221,229. See also Arnold Duncan McNair , The Law of Treaties, 1961,383-385. 78

Dahm/Delbrück/Wolfrum (note 46), 105. See with regard to agreements of the Community, e.g.y Bleckmann (note 48), 314, who opines that agreements are transformed into Community law, but should nevertheless be interpreted according to the principles of international law. 79

Kupferberg

80

Id.y para. 17.

(note 51), paras. 14, 15.

81 Consequently, A G van Gerven pointed out that the ECJ must interpret G A T T according to the international principles of the Vienna Convention on the Law of Treaties, case 70/87, Fediol v. Commission (Fediol III), 1989 ECR 1781, para. 14 of the opinion.

Position of International Law Within European Community Legal Order

different from its relation to Community law. The traditional freedom of the States to decide for themselves on the internal effect of international norms (provided that the States do comply with them) does not apply to the insertion of Community law into the domestic legal orders of the Member States. The ECJ has assumed the power to decide this question to reach a uniform solution for all Member States. Its case law established that Community law automatically has domestic status and supersedes the Member States' internal law, including their constitutions. The Member States have generally accepted this construction. If one wanted to describe this relationship in traditional terms of international law, it would have to be called a strictly monist one.82 But monism in this form is unprecedented in State practice. The relationship between Community law and Member State law is therefore probably best considered as being of a different kind than the relationship between domestic law of the Member States and international law.83 It is therefore as a practical matter, in particular for those Member States with a basically dualist attitude towards international law, but not only for them,84 not irrelevant whether international law is in force in the Member States 'as such* (without transformation) or — by means of transformation — 'as Community law\ More precisely, the question of transformation of international law into Community law is relevant for the solution of conflicts between international law and Member State law and the international rules' hierarchical status within the three-level system: If international law is not transformed into Community law, but valid 'as such', a possible conflict between international law and domestic law of the Member State does not affect the incompatible domestic provision in States with a basically dualist attitude towards international law. In contrast, if international law is altered in its nature by its insertion into Community law (transformation), and has from then on the force of Community law, it takes on the special force of ordinary Community law and trumps all contrary previous and subsequent domestic law.85 This would then create the curious situation that in those Member States that apply the lex posterior rule to international treaty law,86 an international treaty concluded by the Member States can be abrogated by a later domestic statute, whereas an international treaty con82

Pescatore (note 48), 680.

83

See Trevor C. Hartley , The Foundations of European Community Law, 3rd ed., 1994,197 -198 on international law and constitutional law models of that relationship. 84

In a rough and simplified categorization, dualist Member State countries are Germany, Italy, Great Britain, Ireland, Denmark, Sweden, and Finland, whereas Belgium, Luxembourg, the Netherlands, France, Spain, Greece, Portugal and Austria are basically monist. See the overview in Andrea Ott , G A T T und W T O im Gemeinschaftsrecht, 1997, 58 - 67. 85 86

In this sense see, e.g., Kovar (note 10), 355.

Germany, Italy, Great Britain, Ireland, Denmark, Sweden, Finland, and Austria. See Ott (note 84), 58 - 67.

27

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Anne Peters

eluded by the Community prevails 'as Community law* even over later statutory law.87 So the question whether international law is (within a dualist framework) transformed into Community law or not (monist framework) — a question that the pragmatic Court itself never explicitly addressed — is not mere theory for theory's sake.88 The two concepts create tangible differences. 4. Arguments against Transformation

of International Law into Community Law

Both Community practice and general theory suggest that international agreements are not transformed by individual Community acts. First of all, the ECJ apparently does not consider the Council's act of approving international agreements as an act of transformation, but rather focuses on the agreements' entry into force on the international plane.89 Moreover, the GATT cases consider the GATT as binding on the Community, although no formal Community act to that end exists (the Community having succeeded the Member States to the GATT in an informal fashion). 90 Finally, there are cases such as Sevince in which the ECJ held that "since they are directly connected with the Agreement to which they give effect, the decisions of the Council of Association, in the same way as the Agreement itself, form an integral part, as from their entry into force, of the Community legal system. . . ." 91 This means that, without any further Community act at all, decisions, recommendations or rules enacted by international bodies ('secondary external Community law') automatically become an integral part of the Community legal system. As a matter of theory, it has been asserted that a monist relation between Community law and international law (with the consequence that international law is not transformed into Community law) corresponds to the Community principle of openness towards international law, which is manifest in articles 110, and 228 - 234, and in the way in which the Community has conducted its external relations.92 How87

Karl Matthias Meessen, The Application of Rules of Public International Law within Community Law, Common Market Law Review, vol. 13, 1976, 485, 487. 88

But see Tomuschat (note 36), art. 228, para. 59.

89

See in particular Haegeman (note 38), para. 2/6; Demirel (note 52), para. 7, where the Court stated that international agreements form, from their entry into force, an integral part of the Community legal system. 90

See International Fruit Company (note 23).

91

Sevince (note 39), para. 9. Cases building on Sevince are C-237/91, Kus v. Landeshauptstadt Wiesbaden, 1992 ECR 1-6781, paras. 27 - 36; C-355/93, Eroglu v. Land Baden-Württemberg, 1994 ECR 1-5113, paras. 11-15; C-434/93, Bozkurt v. Staatssecretaris van Justitie, 1995 1-1475, para. 28. 92

See on this principle Meessen (note 87), 499; Everling (note 10), 179; Ernst-Ulrich

Peters-

Position of International Law Within European Community Legal Order

29

ever, the vague notion of openness towards international integration does not compel a specific theory on the incorporation of international law into Community law. A more pertinent argument against transformation is that the original justifications of the requirement of transformation — national sovereignty and democracy — do not support the transformation from international law into Community law. With regard to the relationship of international and domestic law, a primary concern of States is that the government loses its diplomatic maneuvering space if the State allows the international treaty itself to be a formal source of law in the internal legal order. In this perspective, application of international law as such — without transformation — is an interference in the internal affairs, because a nâtion is entitled to determine for itself the method of fulfilling and implementing an international obligation so long as it does so in good faith. Related policy considerations for denying domestic status to international law are the legislatures' wish not to conform fully to international obligations, or their desire to delay application to allow national consensus and acceptance to develop.93 Finally, States often desire to transform an international text in order to reformulate it because it is not in harmony with the internal legal system. All these reasons for transformation of international law are related to the protection of national sovereignty. But while the doctrine of transformation, in the relation between international law and domestic law of States, has the image of being centered on sovereignty and less open towards international integration, the effects of transformation of international law into Community law are generally positive. This transformation tends to render international law more effective and makes these effects (supremacy and preemption) uniform for all Member States. Non-transformation of international law would leave untouched the existing disparate effects of international rules in the Member States' domestic legal orders, depending on the constitutional schemes of the Member States. Rather than protecting national sovereignty, transformation from international law into Community law helps to overcome Member State sovereignty. Those who do not share my view on the entirely different significance of transformation in the Community context must admit that, even if protection of sovereignty may be a legitimate concern of nation States, it is a much less legitimate concern for the European Community. Although the reality of international relations suggests that the attribute 'sovereign' should no longer be reserved for States (or should even be altogether abandoned),94 it is debated whether the European Community may be mann, Darf die EG das Völkerrecht ignorieren? Europäische Zeitschrift für Wirtschaftsrecht, Bd. 8,1997, 325, 327. 93

Cf. John H. Jackson, Status of Treaties in Domestic Legal Systems, American Journal of International Law, vol. 86, 1992, 310, 323 - 336. 94

See, e.g. y Christoph Schreuer , The Waning of the Sovereign State: Towards a new Paradigm for International Law? European Journal of International Law, vol. 4, 1993, 447 - 471.

30

Anne Peters

called 'sovereign'.95 If we do so, we must still remember that the Community is a creature of international law that came into being only through relinquishment of sovereignty by the Member States. It owes its existence to the Member States' positive attitude towards international cooperation and integration. Therefore, the Community is estopped from relying on sovereignty arguments with regard to the incorporation of international law into its internal legal order. 96 So under either perspective, the traditional primary rationale of the doctrine of transformation does not apply in* our context. The second fundamental argument for the requirement of transformation of international law — the democratic principle — is equally inappropriate for the Community. Originally, transformation was supposed to ensure parliamentary approval in national systems where exterior relations were in the hands of the executive. The requirement of parliamentary transformation as part of the domestic lawmaking system can substitute in part for direct parliamentary participation in treaty making. This technique ensures that the treaty-making power, being vested in the executive branch, does not deprive the legislative branch of its domestic lawmaking functions. 97 Within the European Community, Parliament participates in the process of concluding international treaties. Normally, the Council concludes agreements after consulting the European Parliament, article 228(3, 1). An even stronger form of participation is required for agreements of association, agreements establishing a specific institutional framework by organizing cooperation procedures, and agreements having important budgetary implications. These and certain others can be concluded only after the assent of the European Parliament has been obtained, article 228(3,2). Only with regard to the conclusion of agreements of commerce, the EC Treaty provides, for practicability's sake, no parliamentary participation, article 113(3).98 However, since 1973 such agreements are, pursuant to a legally non-binding statement of the Council, concluded only after consultation of the Parliament.99 So although the European Parliament does not yet fully control the conclusion of all international agreements of the Community, democratic participation is guaranteed in a way that does not fall short of the constitutional treaty-making procedures of many democratic States.100 A subsequent parliamentary act of transformation would constitute 95

See, e.g., Marschik (note 8), 213 - 217 with further references.

96

But see Bleckmann (note 48), 309 - 310.

97

The prime example for this method of giving domestic legal effect to treaties is the United Kingdom. It is also applied in Ireland, and in some present and former British Commonwealth Countries in Africa, Asia, the Caribbean and the Middle East. 98

Art. 133(3) of the Treaty of Amsterdam of 2 October 1997.

99

Geiger (note 10), art. 113, para. 14.

100

Parliamentary participation has been strengthened by the 1992 Treaty of Maastricht, but was not further strengthened by the 1997 Treaty of Amsterdam.

Position of International Law Within European Community Legal Order

31

an additional element of democratic control, but is not indispensable as a matter of democratic principle. 5. Arguments for Transformation

of International Law into Community Law

The dualist view that the Community legal order foresees the transformation of international law into Community law is supported by article 228(7) EC Treaty, holding that agreements "shall be binding on the institutions of the Community and on Member StatesThis provision, besides taking over the general international law principle pacta sunt servanda as a rule of Community law (binding'the Community), additionally obliges the Member States to respect an international agreement concluded by the Community. Technically, the latter obligation is one of Community law, owed to the Community, not to the other contracting party. 101 The transformation theory corresponds best to this state of the law. Being transformed into Community law, provisions contained in agreements concluded by the Community bind the Member States by force of Community law.102 According to the Court, international agreements concluded by the Community and directly related acts of international bodies installed by such agreements form "an integral part of the Community legal system."1031 therefore call these rules 'external· Community law. At first sight, the Court's language appears to exclude any requirement of transformation by an intervening Community act.104 Moreover, the Court uses exactly the same language to describe the relation between Community law and Member State law 105 — a relation that is, if it can be described at all in those terms, 101

Tomuschat (note 36), para. 56. Nevertheless, there was some debate as to the question whether the Member States are bound not only internally, vis-à-vis the Community, but also externally, vis-à-vis the contracting party. The Court itself used language in that sense: "In ensuring respect for commitments arising from an agreement concluded by the Community institutions the Member States fulfil an obligation not only in relation to the non-Member country concerned but also and above all in relation to the Community." Kupferberg (note 51), para. 13 (emphasis added). An external obligation of the Member States would better safeguard the interests of the other party to the agreement, because it could not only hold responsible the Community, but the Member States as well. However, international law provides no basis for such an obligation of Member States which are not contracting parties themselves. (This is of course different in the case of a mixed agreement with the Community and Member States as contractors on one side, a case that is not considered here). 102

Cf Geiger (note 10), art. 228, para. 23.

103

See with regard to agreements Haegeman (note 38), para. 2/6; Kupferberg (note 51), para. 13; with regard to acts of international bodies Greece v. Commission (note 39), para. 13; Sevince (note 39), paras. 9 -10. 104

Rideau (note 33), 316.

105

In Costa v. ENEL , the Court stated that "the Treaty has created its own legal system,

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rather monist than dualist. But the Court's formula can also be interpreted in dualist terms. It implies that international law does not apply 'as such', in its quality as international law, but as Community law, 106 because an integral part of Community law should normally have Community law quality. Indeed, the Court occasionally spoke of the "Community nature" of international agreements of the Community.107 So the premise that international law is incorporated into Community law without alteration of its nature, i.e. without transformation, is not covered by the Court's formulas. One very important consequence of the Court's conception of international agreements as an integral part of the European Community legal order is that the effects of agreements are determined by Community law, not by national law of the Member States.108 The case law on the uniform effect of international agreements within the Community 109 is primarily motivated by the desire to safeguard the unity and uniformity of the Community legal order, and does not deliberately endorse a particular theory of incorporation of international law into Community law. But in doctrinal terms, these holdings can only be explained as dualist: According to traditional principles, Community law (as opposed to Member State law) can determine the effects of international agreements in the Member States only if the agreement does not continue to be international law, but has been transformed into Community law.

which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States . . C o s t a v. ENEL (note 6), 1269. 106

But see Tomuschat (note 36), art. 228, para. 58.

107

Kupferberg (note 51), paras. 14,15. The Court's characterization of agreements as Community law is not contradicted by the subsequent statement that "the effects within the Community of provisions of an agreement concluded by the Community with a non-Member country may not be determined without taking into account the international origin of the provision in question." Id ., para. 17 (emphasis added).

108 Case 38/75, Douaneagent der NVNederlandse Spoorwegen v. Inspecteur der invoerrecht en accijnzen , 1975 ECR 1439, para. 15/16; Kupferberg (note 51), para. 14. 109 Mixed agreements, too, form an integral part of the Community's legal order and have the same effects as ordinary Community agreements. They do not have a 'mixed' internal status depending on the constitutional law of the Member States, but one uniform internal status in the Community and the Member States. See Eeckhout (note 48) 1997, 14 - 24 for a full discussion of the problem with regard to the (mixed) WTO-agreement. Normally, all (and not only the specifically Community-oriented) provisions of mixed agreements are binding on the Community, and the Court is competent to interpret them all, Demirel (note 52), paras. 9 -12. This is because agreements are concluded as mixed ones particularly in those fields where the spheres of competence of Community and Member States are not easily separable.

Position of International Law Within European Community Legal Order

Other dualist interpretations of the Community practice are less convincing. Some find the Court's ex post control of international agreements under article 173110 to reveal its dualist attitude. The (simplifying) perception of this practice is that international law is thereby ranked below the EC Treaty. Such a ranking would imply dualism, because the pure monist model gives priority to international law. 111 However, the Court does not review the agreement itself in the light of the EC Treaty, but merely the internal act of conclusion. It therefore does not actually rank the agreement below the EC Treaty. Also, it has been suggested that the fact that the ECJ cannot declare an international agreement invalid on the ground of violation of the EC Treaty with binding force for non-Member States manifests a 'dualist' relation between Community law and international law,112 because the monist premise is that conflicting inferior norms — in our context the international agreement — are automatically void. However, the mere fact of unopposability of internal irregularities against third parties has nothing to do with dualism. The separation of the internal and external sphere of a legal actor with the consequence that irregularities in the internal sphere do not automatically affect the external relations is a common legal device within legal systems in order to preserve good faith in legal relations.113 It does not imply that two distinct bodies of law are involved, as the dualist model presupposes, and does not share the rationales of dualism, which is primarily the protection of State sovereignty and democracy. Finally, the Court's statement that, although the Community is bound by international agreements, "it is nevertheless free to determine the legal means appropriate for attaining that end in its legal system"114 is considered by some to reveal a dualist approach. This reading is, however, not compelling. The quoted statement refers to the issue of implementation rather than to transformation in dualist terms. The need for implementation is a function of a given norm's contents: if the norm is incomplete or broad it requires the contracting parties to take further implementing steps. In contrast, the 'dualist' requirement of transformation refers to the abstract legal nature of a rule. Transformation means insertion of a legal rule into an internal legal order by alteration of its legal nature. This procedure is independent of the rule's concrete contents.

110

Supra I.2.b.

111

Kelsen (note 42), 204, 320; Paul Guggenheim , Lehrbuch des Völkerrechts, Band I, 1948, 24 - 25. 112

See Rideau (note 33), 385.

113

See, e.g.y the scheme of the German civil code of internal Vollmacht (authorization) and external Vertretungsmacht (agency), §§164 ff. Bürgerliches Gesetzbuch. 114

Kupferberg

3 GYIL 40

(note 51), para. 18.

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As a matter of theory, there are good arguments for transformation. Admittedly, a monist construction of the relation between international law and Community law has some appeal, because it seems to correspond to the ECJ's ostensibly monist construction of the relation between Community law and municipal law of the Member States.115 However, the consistency argument neglects that the special relationship between Community law and domestic law of the Member States is probably more appropriately captured by a constitutional law analogy than in terms of international law, 116 and is therefore not 'monist* in a traditional sense. In any case, the necessity of uniformity and coherence which supports the so-called monist relation between European Community law and domestic law of the Member States stems from the special supranational character of Community law, and cannot be transposed to international law. 117 6. A New Model of Incorporation: The Communitarization ' of International Law (

All in all, the pragmatic rather than doctrinally coherent practice of the Community institutions does not clearly answer the question of transformation. On the one hand, international agreements are effective in the Community legal order without an individual act of transformation. On the other hand, the case law suggests that international agreements are transformed into Community law: according to the Court, international law becomes an integral part of Community law and acquires a "Community nature." 118 As a matter of theory, the arguments against transformation (consistency and openness towards international law) are not persuasive. On the other hand, basic rationales for the requirement of transformation (protection of sovereignty and democracy) do not fully apply to the Community. However, transposing international law into Community law strengthens international rules by allowing them to partake in the special effects of Community law. If changed into Community law, rules of international origin have the status of immediately valid, superior law in all Member States. A doctrinal construction that reconciles the Community practice of concluding international agreements, the language of the Court, and theory could be: International law is altered into Community law, but not on a case-by-case basis, by individual acts

115

Kovar (note 10), 346 and 354; Boulois (note 10), 74.

116

See Hartley (note 83), 197 - 198.

117

Bleckmann (note 48), 307; Krück (note 48), 168.

118

Kupferberg

(note 51), paras. 14, 15.

Position of International Law Within European Community Legal Order

of institutions, but by the general rule of article 228(7) with regard to treaty law, and by an unwritten Community rule with regard to customary international law. This process has little to do with the transformation of international law into domestic law of the States within the traditional dualist framework. To avoid the connotation of closedness and reservation towards international law which is traditionally associated with the theory of transformation, we might call the incorporation of international law through alteration of the legal character of the rule, without modification of its language or contents, the tcommunitarization , of international law. III. The Hierarchical Status of International Law Within the Community Legal Order A hierarchy of norms solves conflicts between norms within one legal system. For instance, in the internal order of a State, constitutional law normally has a higher status than ordinary law. A hierarchy of norms may also solve conflicts that arise when two legal orders meet, as is the case with international law and Community law. The latter scenario, the one we shall be dealing with, is somewhat more complicated. First, we must keep in mind that the question of hierarchy is independent of the mode of incorporation of international law into the internal system. It is also independent of a possible 'direct effect* of international norms, because conflicts can arise between all types of international rules and Community rules, not only between the directly applicable ones. For instance, an international agreement's general and programmatic provision that must be implemented by the Community legislature may run counter to prescriptions of the EC Treaty with contrary objectives. A different question is whether a conflicting, not directly applicable international norm can invalidate EC legislation, a question that is answered in the negative by the Court. L The International Law Perspective on the Hierarchy of Norms It is important to distinguish the external (international law) perspective from the internal (Community) perspective. On the level of international law, we find general international law principles, e.g. on the conflict of treaties, which, applied to the Community Treaty and treaties concluded by the Community itself, create an order of priority. But no rule of international law tells the subjects of international law which hierarchical status they should attribute to international law within their internal legal system.119 This question is left for the Community to decide, and international law respects the decision as pertaining to the domaine réservé. Both sets of

119

*

Dahm/Delhrück/Wolfrum

(note 46), 106.

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rules on hierarchy, the external and the internal one, exist parallel. There is no legal meta-rule that could establish a hierarchical relationship among these sets. In the perspective of international law, customary international law binding the Community prevails over primary and secondary Community law. All subjects of international law are under the international law obligation to adapt their internal law to international law.120 General international law binding the Member States indirectly has the same effect. The EC Treaty is a multilateral treaty which created a new subject of international law. If the conclusion of this treaty by the Member States abrogates rules of customary international law as against third States, this can be regarded by those States as res inter alios acta. General international law therefore continues to bind the Member States and thus indirectly primes the EC Treaty and EC legislation as far as the legal relations between the Community and third States or other subjects are concerned.121 A conflict between international agreements concluded by the Community and the internal law of the Community (both primary and secondary law) is solved on the international plane by the customary rule of international law, as reflected in the parallel articles 46 of the 1969 Vienna Convention on the Law of Treaties and the 1986 Vienna Convention on the Law of Treaties concluded between States and International Organizations or Between International Organizations.122 Under this norm, a contracting party may — as a rule — not invoke the fact that its consent to be bound by a treaty has been expressed in violation of its internal law regarding competence to conclude treaties. This means that on the international plane, the treaty law prevails over EC legislation and over the EC Treaty. A possible negative pronouncement of the ECJ therefore only has the effect that within the Community's internal order, the international agreement must not be applied and can produce no effects. Internal non-application of the externally binding agreement of course renders the Community liable for breach of contractual obligations under international law. A different issue arises in conflicts between agreements concluded by one or several Member States and third States and Community law. Despite the fact that Member States violate their obligations towards the Community when concluding an incompatible treaty, such a treaty is binding on the plane of international law (regarding the relation between the contracting Member State and the third party). This legal

120 Cf. Exchange of Greek and Turkish Populations, PCIJ (ser. B), No. 10,20; see also Case C cerning the Applicability of the Obligation to Arbitrate under Section 21 of the United Hea quarters Agreement of 26 June 1947 (Advisory Opinion), 1988 ICJ 1, para. 57. 121 122

Cf Meessen (note 87), 487.

Vienna Convention on the Law of Treaties of 23 May 1969,1155 U N T S 331, No. 18232; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 18 February - 21 March 1986, not yet in force, text in I L M 25 (1986), 543.

Position of International Law Within European Community Legal Order

consequence is generally acknowledged. Interestingly, it is supported by two completely different arguments. It is first pointed out that international law and Community law are two distinct bodies of law that stand in a dualist relationship.123 This argument treats the relationship between international law and Community law analogous to the relationship between international law and law of the land and thereby emphasizes the constitutional character of the EC Treaty. The other justification for the external validity of an international treaty concluded by the Member States is that under the pacta tertiis rule the EC Treaty cannot affect the relations between one Member State and a third State.124 Reliance on the general principle of international law treats the EC Treaty as an international treaty among others and thereby emphasizes the international side of the double-natured EC Treaty. 2. The Community Perspective on the Hierarchy of Norms The development of a Community attitude on the rank of international law within the Community could not rely on the Member States' principles,, because the Member States rank international law within their national systems in very diverse ways. It ranges from precedence of international law over provisions of the national constitution to equivalence to ordinary laws. The ECJ therefore had to devise an autonomous scheme. In cases of potential conflict between a Community rule and an international agreement, the Court mostly resorted to techniques that helped to avoid statements on hierarchy. It either interpreted Community law in a way that reconciled it with international law,125 or it denied direct effect to the international rule. 126 Despite the rarity of judicially acknowledged collisions of international law and Community law, it is virtually unanimously agreed that international and Community rules stand in the following hierarchy: 127 international ius cogens, which cannot be abrogated, is per definitionem superior to all other law. It is followed by the EC Trea123

Rideau (note 33), 385.

124

Beutler/Bieber/Piepkorn/

125

Infra IV.8.a.

126

Infra IV.6.b.

127

Streil (note 48), 81.

Other models of hierarchy have been suggested. It has been argued that international law enjoys at least the same authority as the EC Treaty, because it is the more comprehensive legal system, in which the Community is but one actor, Kovar (note 10), 355; see also Arnold (note 48), 179 and 184. The consequence of this construction is that in the event of a conflict between international law and EC law, the act later in time prevails. Others attribute priority to the general rules of international law over the EC Treaty. This hierarchical order is — not very convincingly — justified by the Community's openness towards international law, or an assumed general principle of Community law, Everting (note 10), 179.

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ty. International norms (both general rules and treaties binding the Community) rank below the EC Treaty. Then follows Community legislation. The more interesting and unresolved questions relate to the practical effects of this hierarchy. What is the fate of a lower-ranking norm that clashes with a higher one? While even within one legal system various solutions are possible,128 the issue in our context is further complicated by the fact that two legal orders — international law and Community law — are involved. A different issue is the order of priority between international agreements concluded by one or several Member States with third States and Community law. Here we must distinguish treaties concluded prior to the EC Treaty from those concluded later. The former are dealt with in article 234 EC Treaty. 129 Under this provision, older treaties — even if incompatible with the EC Treaty — remain in force. This rule of Community law simply reflects the general rule of international law of pacta tertiis.™ After having become a Party to the EC Treaty, Member States are by virtue of article 5 EC Treaty 131 prohibited from concluding with a third party a treaty whose provisions brings them in conflict with Community obligations. A Member State which still enters into such an obligation violates its Community obligations. The internal Community consequence is that the Community institutions and the other Member States are not bound to respect the contracting Member State's external obligations. In other words, the incompatible treaty is inapplicable within the Community, 132 although it remains valid on the international plane. a) The Superiority of the EC Treaty The — basically unchallenged133 — doctrine of priority of the EC Treaty over international law (except for ius cogens) is first of all established by the EC Treaty's 128

Either the inconsistent norm is invalid per se from its inception, and a judicial finding is merely declaratory; or the inconsistent norm is rendered invalid by judicial finding; or the inconsistent norm must be formally amended by the legislature. 129

Art. 307 of the Treaty of Amsterdam of 2 October 1997.

130

Case C-124/95, The Queen, ex parte: Centro-Com Sri v. HM treasury and Bank of England 1997 ECR 11-114, para. 56. 131

Art. 10 of the Treaty of Amsterdam of 2 October 1997.

132

Beutler/Bieber/Piepkorn/

133

Streil (note 48), 81.

Rideau has called the doctrine inconsistent, because the Court posits the EC Treaty (the Community Constitution) over international law, while it does not allow Member State constitutions to override Community law. Rideau (note 33), 382. But by placing international law (in relation to the Community) on the same footing as Community law (in relation to the Member States), this criticism neglects the specificity of the Community legal system which must not be at the disposition of Member States' constitutional notions if it is to fulfil its integrating function.

Position of International Law Within European Community Legal Order

39

conferral of jurisdiction to the ECJ to give opinions on the compatibility of an international agreement with the EC Treaty, article 228(6). Strictly speaking, the existence of this instrument of preventive control does not by itself say anything on ranking. It primarily demonstrates the desire of the drafters to avoid by this mechanism conflicts between international law and the EC Treaty. 134 But the rule that an international agreement which the Court considers incompatible can only be concluded after modification of the EC Treaty 135 — or not at all, if the political will to amend the EC Treaty is not present, clearly implies the Treaty's priority. 136 Additionally to that preventive control of international agreements, the Court assumed jurisdiction to control international agreements ex post under article 173. This practice is mostly understood (too simplistically) to imply that the EC Treaty is superior to agreements concluded by the Community. At first sight, it looks as if the Court uses the Community Treaty as a reference to determine the legality of international agreements. However, the Court does not review the agreement itself, but only the internal procedure leading to its conclusion.137 Various textual arguments can be made in support of the priority of the EC Treaty. 138 Article 228(1) begins with the phrase "Where this Treaty provides for the conclusion of agreements . . .". Article 228(5) holds: "When the Council envisages concluding an agreement which calls for amendments to this Treaty, the amendments must first be adopted in accordance with the procedure laid down in Article Ν of the Treaty on European Union." Finally, article 228(7) states: "Agreements concluded under the conditions set out in this Article shall be binding . . .". This must be read as saying that only validly concluded agreements, viz . only those that comply with the Treaty, are binding.139 All quoted passages of article 228 speak for priority of the EC

™ Rideau ( note 33), 381. 135

Art. 228(6): "Where the opinion of the Court is adverse, the agreement may enter into force only in accordance with Article Ν of the Treaty on European Union." 136

Kovar (note 10), 356; Streinz (note 3), Rdn. 605.

137

See supra I.2.b.

138

Other arguments are of course possible. Some find that the Community Treaty prevails, because it is lex specialis, Christian Koenig/Peter Haratsch, Einführung in das Europarecht, 1996, 72. But this argument is not too helpful on the premise that Community law is a distinct body of law, because the lex specialis principle applies only to rules of the same category. Another argument is that the powers of the Community to conclude international agreements are created by the Treaties and must therefore be subject to the provisions of the Treaties. Kovar (note 10), 356; Hartley (note 83), 187. But see Rideau (note 33), 381 (arguing that the fact that agreements contribute to the realization of the Treaty's objective do not imply their superior rank). 139

Kovar (note 10), 347.

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Treaty. As a matter of consistency, the same status (ranking below the EC Treaty) should be attributed to general rules of international law.140 Rules of international law, in particular international agreements concluded by the Community, that are incompatible with the EC Treaty are internally inapplicable, but are normally not invalid as against the contracting party. We have seen that, in the international law perspective, this follows from the customary rule embodied in article 46 of both Vienna Conventions on the Law of Treaties.141 In the Community perspective, the validity of the international agreement notwithstanding internal violation of the EC Treaty follows from the fact that the Court's jurisdiction is limited: in actions for annulment, the Court examines the validity of the internal act of conclusion of an international agreement. Its possible annulment translates into a simple refusal to apply the international treaty, but does not invalidate the agreement on the international plane. The same rules apply to preliminary rulings on the validity of the conclusion of international agreements (art. 177b). Limitation of the jurisdiction of the ECJ is mandated by the general legal principles of protection of good faith and legal certainty which form part of the Community legal order 142 (and which likewise motivate the rule of article 46 of the Vienna Conventions). b) The Priority of International Law over Community Legislation Recently, the Court mentioned the "primacy of international agreements concluded by the Community over provisions of secondary Community legislation."143 This primacy has been acknowledged through the Court's practice to examine whether Community acts conform to a rule of international law. The Court uses international law as a yardstick to scrutinize EC acts both in reference proceedings and in actions for annulment,144 with the (up to now largely theoretical) consequence that Community enactments that are unavoidably incompatible with international law are 'invalid' in terms of article 173, 174 or 177. This approach clearly establishes the priority of international law.

140

Cf. Bleckmann (note 48), 313.

141

Supra m . l .

142

See Hartley (note 83), 149 - 155.

143

Commission v. Germany (note 26), para. 52. See Sehr oeder, stating that, when the Commission took protective measures against imports from Greece, it was bound to comply with the provisions of the Association Agreement. Case 40/72, Schroeder v. Germany , 1973 ECR 125, para. 18. 144 International Fruit Company (note 23), para. 5/6; Wood Pulp (note 12), 5139; Opel Austria (note 16), paras. 89 - 94.

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41

That hierarchical order finds some support in the text of the EC Treaty. 145 Article 228(7) provides that international agreements are binding on the Community institutions. This is commonly understood to express that international agreements constitute the framework within which the institutions have the power to legislate.146 As a matter of consistency, general international law cannot be attributed a lower status than international treaty law. 147 EC legislation that is inconsistent with a norm of international law is invalid. Although not one single case has as yet been decided in that sense by the ECJ,148 there is no reason to modify the general rules on the legal consequences of successful challenges under articles 173 and 177 EC Treaty. If in a preliminary ruling rendered upon a referring national court's question as to the validity of a Community act, the Court concludes that the act in question is invalid, that finding of invalidity has an erga omnes effect. 149 For the sake of uniform application of Community law and legal certainty, all other courts must take this decision into account and consider the respective Community act as invalid.150 Consequently, the Court can declare a Community act that violates international law invalid with effect erga omnés.

145

Other arguments have been made. Meessen justifies the priority of international law with the Community principle of openness towards international integration. Meessen (note 87), 499. He is also ready to accept the case law "because it is about to develop into customary law." Id ., at 498. This position is certainly 'realist', but does not convey a convincing conception of customary law. It has also been pointed out that priority of international law over secondary Community law corresponds best to the relation between EC law and municipal law of the Member States. Community law cannot — so the argument runs — at the same time claim priority over Member State law and refuse to acknowledge the priority of international law. See opinion of A G Mayras in International Fruit Company (note 23), 1235. This reasoning is flawed in two respects. If the relation between international law and EC legislation really corresponded to the relation between Community law and Member State law, international law would prevail over not only Community legislation, but even the EC Treaty (the Community Constitution). Moreover, drawing a parallel between international law and Community law indirectly calls into question the very special character of EC law. 146

Streinz (note 3), Rdn. 431 and 605; Oppermann (note 10), Rdn. 1673; Petersmann (note 92), 326. 147

Meessen (note 87), 499; Arnold (note 48), 179.

148

As mentioned, the Court of First Instance invalidated a Community regulation on the ground that it contravened a provision of an international agreement shortly before its entry into force and therefore violated the Community principles of protection of legitimate expectations and legal certainty, Opel Austria (note 16), paras. 89 - 126. 149 Hans Krück , Commentary to art. 177, para. 89, in: Hans von der Groeben/Jochen Thiesing/ Claus-Dieter Ehlermann (eds.), Kommentar zum EU-/EG-Vertrag, Bd. 4, 5th ed., 1997. 150 International Chemical Corporation ECR 1191, paras. 12-13.

v. Amministrazione delle Finanze dello Stato, 198

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Pursuant to a successful action for annulment (art. 173), the Court declares the challenged act invalid, article 174. This decision does not have retroactive effect. The act is considered valid until the judicial statement, which transforms the state of the law. No further formal amendment or abolition of the act is needed.151 These rules apply likewise to Community acts that are invalid because they do not conform to international law. IV. The Direct Effect of International Agreements within the Community 1. Definitions and Distinctions The problem of direct effect of international agreements concluded by the Community in Community and Member State law suffers from a considerable degree of confusion. A principal source of confusion is the absence of generally acknowledged definitions. Authors use a variety of terms and define those used differently, often with subtle distinctions. Some distinguish 'direct effect* and 'direct applicability'.152 Some speak of enforceability, 153 or invocability154 (understood by some to be a broader concept that encompasses direct effect, 155 by some to be a narrower concept156). Many use 'self-executing' synonymously.1571 shall follow the usage of the ECJ and prefer the term 'direct effect', with 'direct applicability' as a synonym.1581 shall avoid 151

Krück (note 149), art. 174, para. 2.

152

E.g. y Fernando Castillo de la Torre , The Status of G A T T in EC Law, Revisited, Journal of World Trade 29, 1995,53; Ilona Cheyne , International Agreements and the European Community Legal System, European Law Review, vol. 19,1994, 581,585; A G van Gerven in Fediol III (note 81), para. 11, n. 8 of the opinion. 153

E.g., Castillo de la Torre (note 152), 53.

154

Eg., Rideau (note 33), 359.

155

Eg., Boulois (note 10), 77, n. 138; Philippe Manin, A propos de l'accord instituant 1' Organisation mondiale du commerce et de Γ accord sur les marchés publics: la question de l'invocabilité des accords internationaux conclus par la Communauté européenne, Revue trimesterielle de droit européen, vol. 33, 1997, 399, 401. 156

Eg., Jackson (note 93), 317.

157

Kapteyn (note 48), 76; Joe Verhoeven , La notion d' "applicabilité directe" du droit international, Revue Belge de droit international, vol. 15, 1980, 243, 253; Michael J. Hahn/Gunnar Schuster , Le droit des Etats Membres de se prévaloir en justice d ' u n accord liant la Communuauté, Revue générale de droit international public, tome 99, 1995, 367, 377; Manin (note 155), 403; Eeckhout (note 48), 48. See also Rideau (note 33), 356Jackson (note 93), 310, η. 1; Hancher (note 48), 279. 158 Compare case 87/75, Bresciani v . Amministrazione Italiana delle Finanze, 1976 ECR at 142, para. 23 and Kupferberg (note 51), paras. 18 and 26. In Sevince (note 39), the referring court

Position of International Law Within European Community Legal Order

the term 'self-executing', because this term was coined in the U.S. legal order and has specific connotations. In particular, there is disagreement as to whether direct effect is a (narrow) subjective, or a (broader) objective concept. Some authors deem it crucial that the norm confers a subjective right on the individual.159 As will be shown below, the ECJ's formulas point in that direction. 160 In the view of the author, the dichotomy between 'subjective' rights and 'objective' law risks obfuscating the scope of the concept. It is preferable to distinguish not two, but three degrees of legal effects of rules: (1) Rules that give rise to subjective rights (judicially enforceable by the beneficiaries). This group relates to substance and procedure. The question of substance is: Does a treaty provision confer individual rights? The procedural question is: Who has standing to sue on the basis of a treaty norm? Normally, procedure conforms to substance: The beneficiary of a provision has standing to invoke it in court. (2) Rules of objective law which are the basis for legal rights or obligations, but do not necessarily confer particular subjective rights on particular beneficiaries. Group (2) comprises the smaller group of rules in (1). (3) Rules which are not suited for direct application by courts, but need implementing legislation. Need for implementation depends on the will of the framers of a rule and/or the rule's contents considered in the light of the limited authority of the judiciary to apply the law. Authors of a rule may prevent its direct application by courts through different strategies. They may either explicitly stipulate that a particular provision shall not be directly applicable, or they may simply formulate the provision as a general statement, guideline, aspiration, or broad and open-ended principle, with the result that judiciaries in most legal systems are not allowed to 'derive' precise and concrete rights or obligations from those. Although rules belonging to group (3) are unsuited for direct application by courts, this does not mean that courts may ignore them altogether. They must at least use them as guidelines for the interpretation of other law. While it is correct to say — as most scholars do — that the concept of direct effect is not limited to situations in which private parties can derive rights from a treaty norm (group (1)), but must be understood more broadly as a concept of objective law

spoke of "direct applicability" (id., at 1-3500), while the Court (without seeking to change the meaning of the question) spoke of "direct effect" (id., para. 14). See also the opinion of A G Tesauro in case C-58/93, Yousfi v. Belgium, 1994 ECR 1-1353, at 1357 -1358 on the synonymity of 'direct effect' and 'direct applicability'. 159 m

See, e.g., Bebr (note 48), 40. Infra TV A.c.

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(group (2)),161 this question is less important. The distinction between directly applicable and not directly applicable international treaty provisions is that between the rules of group (2) (objective 'hard-and-fast' rules) and those of group (3) (programmatic rules). Therefore, I shall define 'direct effect* as follows: A provision in an international treaty has direct effect whenever courts are entitled and bound to apply the rule without having to wait for any executory legislation. This is the case when two conditions are fulfilled: the Contracting Parties must have intended the rule to be applicable by the judiciary, 162 and the rule must be, by its contents, suited to give rise to concrete legal consequences. In the purely domestic context (within the national legal order), the fulfillment of these conditions makes national laws 'justiciable*. As a matter of consistency and legal stringency, we do not need a specific concept (other than justiciability) reserved to applicability of international treaties. Their application by domestic courts is often particularly problematic, because stipulations in international treaties are frequently programmatic and aspirational (a fact that may manifest the Contracting Parties' desire to exclude these provisions' direct application by domestic courts but has other reasons as well). Moreover, in international treaty making, the Contracting Parties may explicitly address particular treaty provisions to the Parties as a whole and oblige them to take further steps, e.g. by enacting specific laws (which in turn can be applied by courts). Generally, much attention is paid to the intention of the framers as a precondition of the direct effect of treaties. In particular, even if a specific treaty provision is suited by its contents for direct application by domestic courts, the Contracting Parties may still explicitly rule out its direct effect. However, the will of the framers normally materializes in the rule's contents (formulated broadly or precisely), so that both conditions normally collapse into one. Finally, explicit conventional exclusion of the direct effect of a treaty, the most explicit manifestation of the will of the framers, is rare, probably because it amounts to self-contradictory behavior to stipulate precise and unconditional norms while at the same time ruling out their direct effect. Most often, specific intentions of the Parties as to the direct effect of a treaty are simply lacking or are not clearly discernible. To conclude, this paper holds that the concept of direct effect of international treaties is essentially identical to the general question of justiciability of norms, 163 which also

161 Kovar (note 10), 360; Verhoeven (note 157), 245; Pescatore (note 48), 687; Rideau (note 33), 362; Jackson (note 93), 310, n. 1; Geiger (note 46), 161; Hahn/Schuster (note 157), 370; Meng (note 46), 1068 - 1069; Manin (note 155), 401. 162

The ensuing (and controversial) question is whether such an intention should be generally presumed, or whether it must be positively verified for each case. See Albert Bleckmann , Europarecht, 6th ed., 1997, paras. 1159 - 1162. 163

But see Hahn/Schuster (note 157), 377.

Position of International Law Within European Community Legal Order

arises within a particular legal order, e.g. with regard to the application of broad constitutional principles by courts. Another source of confusion is the fact that the term 'direct effect' is used as referring to possible effects of norms on three different levels. The concept of direct effect first emerged with regard to the effects of international law in national legal orders. Later, the direct effect of Community law in the domestic law of the Member States became important. The third concept is the one which is the actual subject of this article: the direct effect of international agreements concluded by the Community ('external Community law') in the internal Community legal order (and via Community law in Member State law). This issue cannot be isolated from the foregoing ones, because it historically and factually builds on them. Finally, a further source of confusion is the oft-made, but misleading, association of the question whether international or Community law has as such the formal status of a source of law within the Member States' legal orders, without transformation, with direct effect as defined here. 164 These questions should be distinguished: first, a domestic legal order must decide for itself the basic conceptual question whether to allow norms from a distinct (international) system to enjoy ipso facto the status of domestic law within the internal sphere without internal transformative acts (monism).165 A distinct question is whether a particular norm (having regard to its contents and the will of its framers) is suited to be applied by courts and thus has 'direct effect'. 166 2. The First Level: The Direct Effect of International Agreements in the Domestic Legal Order of States We must first briefly consider the 'traditional' issue of the direct effect of international agreements in the domestic legal order of States. To begin with, it is debated whether international law or domestic law determines the qualification of a treaty as directly applicable.167 In my view, the question of direct effect relates to both levels.168 164

See in detail on this problem infra IV.4.a.

165

In contrast, the question of the domestic status of Community law in the legal orders of the Member States is not left for decision by the Member States. The ECJ established a uniform relation between Community law and all Member State legal orders which may be called either strictly monist or sui generis. 166 167

Dahm/Delbrück/Wolfrum

(note 46), 102.

See on the one hand, e.g., Verhoeven (note 157), 258 - 259, arguing that the question of direct effect must be solved by international law, because it is a question of determining the scope of an international provision. See on the other hand, e.g., Bourgeois (note 54), 117 -118, considering direct effect primarily a domestic law question, because it concerns the internal application of international law, a field that is traditionally left to national law. See in the latter

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It is a question on the international level to the extent that direct effect depends on the respective intentions of the Contracting Parties, normally manifested in the given provision's language (being sufficiently precise and complete in the sense that the provision does not require further national legislation). The first case that addressed this subject is the Advisory Opinion on the Jurisdiction of the Courts of Danzig given by the Permanent Court of Justice. Here the Court was asked to determine whether an international agreement between Poland and Danzig regulating the status of certain railroad'officers could be invoked directly by these officials in the courts of Danzig. The Court considered the "wording and general tenor" and "the object" of the agreement and "the intention of the contracting Parties."169 Absent express stipulation of the Contracting Parties as to an agreement's direct applicability, a given provision's suitability for direct application must be determined by means of interpretation, performed by domestic courts. They set up criteria for direct applicability and decide whether those are fulfilled. The respective formulas used by domestic courts vary only in degrees. For example, under U.S. law, an international agreement is not 'self-executing', which roughly means that it does not have direct effect as defined here "(a) if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation, (b) if the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation, or (c) if implementing legislation is constitutionally required." 170 In Germany, the Reichsgericht (Imperial Court) and subsequently the Bundesgerichtshof (Federal Civil Court) held: To the extent that a provision can in itself, viz . without requiring a further international or domestic act, create legal effects, the individual can invoke it in court, 171 which means that it has direct effect as understood here. More recently, the Bundesverfassungsgericht (German Constitutional sense also the opinion of the A G Gulmann in Case C-280/93, Germany v. Council ; (Bananas), 1994 ECR 1-4973, para. 128 of the opinion. 168

In the same sense see Meng (note 46), 1068. Buergenthal distinguishes the international law question whether the States parties intended treaty provisions to be 'directly applicable' and the domestic law question whether they are 'self-executing' (directly enforceable as such) in a given State, Thomas Buergenthal , Self-Executing and Non-Self-Executing Treaties in National and International Law, Recueil des Cours, tome 235,1992-IV, 303, 320 - 322). Ultimately, this analysis resembles the two-step model proposed here. 169

Jurisdiction

of the Courts of Danzig, 1928 PCIJ (ser. B) No. 15, 17 -18.

170

The American Law Institute (ed.), Restatement of the Law Third: The Foreign Relations Law of the United States 1, § 111(4) (1987). See also the seminal case Foster v. Neilson , 27 U.S. 253, 314 (1829): A treaty is "to be regarded in the Courts of Justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract before it can become a rule for the court." 171

R G Z 117, 284, 285 (1927); B G H Z 11, 135, 138 (1953).

Position of International Law Within European Community Legal Order

Court) stated that the provision must be (to have direct effect) according to its wording, purpose and contents suited to create legal effects just like a domestic statute.172 Apart from the fact that domestic courts set up the criteria of direct applicability, other factors pertaining to the national legal order may determine the attribution of direct effect. Direct application of a norm may for instance be precluded because national law requires for its execution the enactment of additional procedural or organizational rules.173 In sum, the question whether a treaty articulates a standard that a court can act on without further legislative assistance can usually not be given in the abstract, but depends on the particular legal system in which the standard is to be applied. To that extent, the question of direct effect is a domestic question. 3. The Second Level: The Direct Effect of \Internal Community Law * in the Legal Order of the Member States We have seen that the traditional question of direct effect of an international agreement within the municipal legal order of a State is for the domestic courts to decide. In contrast, the direct effect of Community law in the legal orders of the Member States is determined by the ECJ. The Court's competence has been accepted by the Member States as a corollary of the special character of Community law. Member States' acceptance is independent of the respective State's attitude towards the direct effect of international law. In the seminal decision van Gend & Loos, the Court defined 'direct effect' of internal Community law as suitability of a provision to form the basis for individual rights which national courts must protect. 174 Here it also spelled out the criteria for direct applicability of a provision of the EC Treaty. It must be "clear and unconditional" and "not qualified by any reservation on the part of States which would make its implementation conditional upon a positive legislative measure enacted under national law." 175 172

BVerfGE 29, 348, 360 (1970).

173

See Geiger (note 46), 175.

174

Van Gend & Loos (note 6), 24 (regarding art. 12 EC Treaty). But note that the Court's language in preliminary rulings may (as here) simply correspond to the question referred and therefore tell little about the Court's preferred definition. See the similar formula in case 48/65, Lütticke v. Hauptzollamt Saarland , 1966 ECR 205 (with regard to art. 95 (1) EC Treaty). In Leberpfennig, it defined 'direct applicability' of a Council decision as conferring on individuals the right to rely on the decision in court. Case 8/70, Grad v. Finanzamt Traunstein (Leber· pfennig) 1970 ECR 825, para. 5. 175 Van Gend & Loos (note 6), 13 (regarding art. 12 EC Treaty). Lütticke (note 174), 205 considered whether an "obligation is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the Community or by

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4. The Third Level: The Direct Effect of International Agreements concluded by the Community in Community and Member State Law a) The Distinction between Domestic Status and Direct Effect of Agreements The question whether a provision of an international agreement concluded by the Community has direct effect must be distinguished from the prior question of how rules of international law are integrated into the internal Community order and acquire the formal status of a source of law (by adoption, by transformation, or by executory order, Vollzugsbefehl ).176 As Advocate General Gulmann put it: The fact that an international agreement is an 'integral part of the Community legal order* does not necessarily mean that it forms part of the legal basis on which the Court will carry out its review of legality under article 173.177 In other words: the first question is whether an international rule is incorporated into the Community legal order and has the status of Community law. Being part of the Community's legal order does not say anything specific on the norm's addressees or its effect. The second question is whether a specific provision forms part of the smaller group of norms that are reviewed by the Court (i.e. the directly applicable norms). 178 Direct effect is not prejudiced by one method of making norms become part of the internal order. Therefore, direct effect is possible not only in monist systems, but also in those dualist systems that 'transform' international law into domestic law in a purely formal fashion by an approving act, without enacting differently worded national laws to that effect. This distinction has been implicitly or explicitly rejected by quite a few scholars. Among those, two opposing strands of thought can be discerned. The first group argues that direct effect is possible only in a monist system.179 This leads to the conclusion that, because the ECJ acknowledges the possibility of direct the Member States." These conditions being present, the Court continued: "This prohibition [embodied in art. 95 (1) EC Treaty] is therefore complete, legally perfect and consequently capable of producing direct effects." Similarly, Leberpfennig (note 174), para. 9, stated (with regard to Council decisions) that in order to be directly applicable, a provision must contain an unconditional and sufficiently clear and precise obligation. 176 Verhoeven (note 157), 251; Alexander Oehmichen, Die unmittelbare Anwendbarkeit der völkerrechtlichen Verträge der EG, 1992,95; Meng (note 46), 1066; Manin (note 155), 401, η. 7 and accompanying text; Bleckmann (note 162), para. 1152. 177

Advocate General Gulmann in Bananas (note 167), para. 137 of the opinion.

178

See, e.g., Buergenthal (note 168), 341; Geiger (note 46), 174 - 175. This order of questions may be different in other legal systems. For instance, in the United States, direct effect is considered a precondition for the adoption of international law, Whitney v. Robertson, 124 U.S. 190, 194 (1887). 179

See, e.g., Jackson (note 93), 321 maintaining that "in dualist systems, direct effect is not possible"; see also Kovar (note 10), 352; Kapteyn (note 48), 77.

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49

effect of international norms within the Community legal order, it has a monist vision of the relationship between international law and Community law.180 The contrary opinion is that the direct effect requirement as an additional criteria for the review of international law actually amounts to a dualist attitude. Although verbally, international agreements are binding, and no transformation is needed, the Court may still decide that the agreement does not create directly effective rights and obligations, and cannot form the basis for action in the courts. Where such a decision is reached — so the argument runs — little is left of monism, because the agreement in issue will only be effective in the Community legal order to the extent that it is implemented by way of legislative or administrative action.181 The truth in this argument is that raising the question as to direct applicability provides arguments for judges, if they wish, to avoid the application of certain treaties.182 However, this approach is not 'dualist' in the traditional sense,183 because the question of 'dualism' or 'monism' concerns the category of law that can be effective in the internal Community order (in its quality as international law or as Community law), whereas the question whether a provision is directly applicable or needs implementation relates primarily to the specific provision's contents (being self-sufficient or needing to be made concrete and complete).184 The fact that two contrary arguments can be made (associating direct effect either with monism or with dualism) demonstrates that it is analytically preferable to distinguish the mode of incorporating international law and the question of direct effect.

180

Kapteyn (note 48), 77 - 78.

181

Eeckhout (note 48), 28 - 29, 46. See in this sense also Bleckmann (note 48), 303; Pescatore (note 48), 683 and 685; Tomuschat (note 36), para. 65; Petersmann (note 92), 327. 182 Pierre Pescatore, Treaty-making by the European Communities, in: Francis G. Jacobs/Shelley Roberts (eds.), The Effect of Treaties in Domestic Law, 1987, 171, 184 and 191; Bourgeois (note 54), 120. 183

But see Eeckhout (note 48), 46.

184

In a dualist system, the fact that a treaty provision is by its contents suited for direct application does not dispense from a (purely formal) act of transformation. Admittedly, if international law is reproduced in an internal source, formally it is not international law itself that is applied, but the internal rule. However, if, as in the practice of, e.g., Germany or Italy, the internal rule merely duplicates the provision's wording — e.g. by annexing the text of the agreement to an internal transformative' act, and if the provision's wording is in itself complete — it would be sophistic not to speak of a direct applicability of the rule in question.

4 GYIL 40

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b) The Court's Power to Decide on the Direct Effect of International Agreements Concluded by the Community The direct effect of international agreements concluded by the Community in Community law and — via Community law — in Member State law is determined by the ECJ. Even if the question is whether the agreement concluded by the Community can be invoked in a Member State court (in fact the most frequent constellation as yet), decision of this question cannot be left to the national law of each Member State because a uniform solution throughout the Community is desirable. In the words of the Court, the effect of provisions in international agreements concluded by the Community within the Community may not be allowed to vary . . . according to the effects in the internal legal order of each Member State which the law of that State assigns to international agreements concluded by it. Therefore it is for the Court, within the framework of its jurisdiction in interpreting the provisions of agreements, to ensure the uniform application throughout the Community. 185

The reason for this strategy seems to be that when the Community enters into an agreement with a non-member State, it is under the international law obligation that the agreement is carried out. However, the implementation on the Community side will most often depend on the Member States. The Community could, therefore, be embarrassed in its international relations if the Member States failed to give direct effect to the agreement.186 c) The Court's Definition of Direct Effect The position of the ECJ on the direct effect of international law within the Community legal order was, from the outset, obscured by the procedural setting (a preliminary ruling under article 177) in which the question of the direct effect of an international agreement first emerged. Individuals had challenged a Community act before a national court on the ground that it violated a provision of an international agreement binding the Community. The national court referred the question of validity of the Community act to the ECJ. Reference under article 177 is possible only if the Member State court deems the ECJ's answer necessary to give judgment in the litigation it is seized of. If provisions of an international agreement come into play, this situation arises only to the extent that the international norm which threatens to invalidate the Community act is directly applicable by the referring court. Indeed, in the seminal case International Fruit Company of 1972, the Court seemed to link the requirement of direct effect to the procedure of article 177 by stating:

185

Kupferberg

186

Hartley (note 83), 229.

(note 51), para. 14.

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51

Before incompatibility of a Community measure with a provision of international law can affect the validity of that measure, the Community must first of all be bound by that provision. Before invalidity can be relied upon before a national court , that provision of international law must also be capable of conferring rights on citizens of the Community which they can invoke before the courts. 187

The explicit link between the requirement of direct effect and the procedure under article 177 was also made in the 1973 case Schlüter. 1** Because in the situation of a reference for preliminary ruling, the international norm was to be applied by a Member State court, the question of its potential direct effect could be treated on exactly the same footing as the direct effect of an internal Community provision that was the object of a request for preliminary ruling by a domestic court. The specificity of the question of the direct effect of international agreements (external Community law) was thus not taken into view. As already pointed out, it is debated whether the notion of direct effect is reserved for those rules that confer individual rights, or whether the concept describes international 'objective' rules which are suited for application by courts, irrespective of whether they embody subjective rights. So what is the Court's position? According to International Fruit Company , a provision in an international agreement (in that case the GATT 1947) has direct effect if it is "capable of creating rights of which interested parties may avail themselves in a court of law." 189 Later, the Court asked whether individuals could "invoke" the respective international provisions, 190 whether an agreement "conferred to the individuals rights" which must be observed by national courts, 191 or whether those provisions had "the effect to protect" individuals.192 Without clearly distinguishing questions of procedure (who can 'avail himself of a provision, who can 'invoke' it?) and substance (to whom are rights 'conferred,'

187

International Fruit Company (note 23), paras. 7 - 8 (emphasis added).

188

Here the Court stated that, in terms of art. 177, the validity of acts of the institutions can only be measured against a rule of international law if this norm is binding on the Community and if it forms the basis of a legal right of Community nationals to rely on it in court. Case 9/73, Schlüter v. Hauptzollamt Lörrach, 1973 ECR 1135, para. 27. 189 International Fruit Company (note 23), para. 27; see similarly Schlüter (note 188), para. 27. In Kupferberg, the Court stated that a provision was "directly applicable and capable of conferring upon individual traders rights which the courts must protect." Kupferberg (note 51), para. 27. 190

Case 266/81, Società Italiana per l 'Oleodo tto Transalpino v. Ministero delle fmanze et a (SIOT), 1983 ECR 731, para. 28. 191 192

Bresciani (note 158), para. 26.

Case 17/81, Pabst & Richarz v. Hauptzollamt Oldenburg, 1982 ECR 1331, para. 28; case 267 to 269/81, Amministrazione dellefinanze dello Stato v. Società Petrolifera Italiana (SPI) an Michelin Italiana (SAMI), 1983 ECR 801, para. 31.

*

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who is 'protected* by a provision?), the Court's formulas associate the question of direct effect with individual beneficiaries. Furthermore, the Court opposed 'mere application and interpretation' of an international provision to its 'direct effect'. 193 Within this dichotomy, the Court defined 'direct effect' as conferral of substantive rights to individuals194 or (procedurally) as invocability of an international agreement in court by an individual plaintiff. 195 This narrow, 'subjective' understanding of 'direct effect' — as opposed to the larger bulk of 'objective' law that is applied by courts — is, however, misleading. It does not even correspond to other case law. The Court itself did not focus on plaintiffs' or individual rights in the 1994 Bananas decision, where it made the direct effect of the GATT a precondition of judicial review regardless of the fact that this was a direct action instituted by a Member State, not by an individual.196 The Bananas approach is laudable, because the crucial question is — as already discussed — not whether an individual can derive subjective rights from an international provision, but whether a provision is broad and programmatic or sufficiently precise to give rise to rights or obligations, with the consequence that incompatible Community legislation is invalid.197 In Kziber (1991) the Court blended both questions by describing the direct effect of a provision in an agreement of cooperation as being "not only programmatic, but introducing a principle that is apt to regulate the legal status of the individual .1,198 Contrary to what some of the early decisions imply, the emphasis should not be on plaintiffs and beneficiaries, but on ('objective') legal effects and consequences for contrary Community legislation, which is, according to the established hierarchy of norms, inferior to international law. As the Court itself stated: If a provision of an international agreement does not have direct effect, "the validity of [a Community act] cannot be affected by [that provision]." 199 This legal consequence is what makes the question of direct effect so important for the Community.

193

Fediol III (note 81),para. 20; Deutsche Shell (note 39), para. 18.

194

Deutsche Shell (note 39), para. 18; see in that sense also A G van Gerven in Fediol III (note 81), para. 12 of the opinion. 195

Fediol III (note 81), para. 18

196

See in detail infra IV. 7.

197

SupralVA.

198

Case C-18/90, office national de ï emploi v. Kziber , 1991 ECR 1-199, para. 22 (emphasis added). See similarly case C-126/95, Hallouzi-Chobo v. Bestuur van de Sociale Versekkenngsbank 1996 ECR 1-4807, para. 19. 199

International Fruit Company (note 23), para. 28.

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53

d) The Court's Two-pronged Test The test of direct effect of an international agreement concluded by the Community has two prongs. The first is the question of principle whether an agreement as a whole is such as to create directly effective rights and obligations.200 The second question is whether a particular provision is sufficiently clear and unconditional to be applied by a court of law for deciding a specific dispute.201 aa) The Comprehensive Analysis of the Agreement as a Whole The first prong, the global analysis of the international agreement, has been formulated as follows: The Court must consider "the spirit, general scheme and terms," 202 or the "nature," "structure," and "purpose" of the agreement in question.203 Only very few cases skip this first prong. 204 Others, in contrast, place particular emphasis on it for various reasons. In Kziber, for instance, the Court examined the object and purpose of an agreement of cooperation and stressed that the.fact that the agreement's objective is a global cooperation without aiming at an association does not constitute an obstacle to a potential direct effect of its provisions. 205 In Chiquita , the Court stated that, with a view to determining the direct applicability of an agreement's provision that is similar to one in the EC Treaty, a consideration of the general framework, and comparison of purpose and context of the agreement with that of the EC Treaty is particularly important. 206 200

This prong distinguishes the test for direct effect of an international agreement concluded by the Community (external Community law) from the test for direct effect of internal Community law. Infra IV. 5. 201

The Court sometimes conflates both prongs. "A provision... must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure." Demirel (note 52), para. 14. Bresciani (note 158), para. 16 spoke of "the spirit, the general scheme and the terms of the agreement and the said provision". 202

International Fruit Company (note 23), para. 20; Bresciani (note 158), para. 16; Bananas (note 167), para. 105. 203

Kupferberg (note 51), para. 22; Pabst & Richarz (note 192), para. 26; Demirel (note 52), para. 14; case C-432/92, The Queen v. Minister of Agriculture, Fisheries and Food ex parte: Anasta siou , 1994 ECR 1-3087, para. 24. 204 205

Eroglu (note 91), para. 17; Opel Austria (note 16), paras. 89 - 94.

Kziber (note 198), para. 21. See also its progen yYousfi zi-Choho (note 198), para. 19. 206

(note 158), paras. 16 -19 and Hallou-

Chiquita (note 62), para. 52. See also (not with regard to direct effect) Metalsa (note 63), para. 11.

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The comprehensive analysis applies likewise to 'secondary external Community law\ In Sevince , the direct applicability of a resolution of a council of association (established by the agreement of association between the Community and Turkey) was at stake. The Court looked at the object and purpose of this resolution and of the entire agreement.207 Obviously, the comprehensive analysis allows for considerable judicial discretion in attributing direct effect to an agreement. In particular, it is difficult to verify objectively and rationally the 'nature* of an international treaty. On the whole, the first prong enables the Court to control the effect of a particular agreement in the Community legal order almost ad libitum . bb) The Analysis of the Agreement's Specific Provision The second prong is an analysis of the provision relied upon. The Court looks at its wording and function. 208 The agreement's provision must be "precise" ("clear," "unequivocal"), and it must "not contain any reservation" (be "unconditional," "not subject, in its implementation or effect, to the adoption of any subsequent measure"). 209 Similarly, 'secondary external Community law' must be clear, unequivocal, and unconditional.210 Potential direct effect of a treaty provision is not precluded by the fact that it is to be implemented by a council of cooperation, whose role is merely to support compliance.211 It must be noted, however, that with regard to the GATT, which was the object of many important decisions, the Court never reached the second prong, because it qualified the GATT as a whole as not having the potential for direct effect (first prong) and therefore never proceeded with an analysis of individual provisions. 212

207

Sevince (note 39), paras. 20 - 23.

208

Pabst & Ricbarz (note 192), paras. 26 - 27.

209

Bresciani (note 158), para. 25; Demirel (note 52), para. 14; Anastasiou (note 203), para. 25; Cbiquita (note 62), para. 57; case C-277/94, Taflan-Met v. Bestuur van de Sociale Versekkeringsbank andAkol v. Bestuur van de Nieuwe AIgemene Bedrijfsvereniging , 1996 ECR 1-4085, paras 24 - 25; Hallouzi-Choho (note 198), para. 19. 210 Sevince (note 39), para. 15 (on resolutions of a council of association) and follower cases Eroglu (note 91), para. 17; Taflan-Met and Akol (note 209), paras. 24 - 25. 211 Kziber (note 198), paras. 15 - 23 (on acts of a council of cooperation) and follower Yousfi (note 158), paras. 16 -19. 212 International Fruit Company (note 23), paras. 19 - 27; Schlüter (note 188), paras. 29 - 30; SIOT (note 190), para. 28; SPI and SAMI (note 192), para. 23; Bananas (note 167), paras. 105-111.

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5. 'Direct Effect* on Three Levels as an Example for the Appropriation and Modification of International Law Concepts by the European Court ofJustice The story of the notion of direct effect illustrates how the ECJ resorts to established concepts of international law, and adopts and modifies them for purposes of Community law. The attribution of direct effect to internal Community law provisions was one of the most important judicial contributions to legal integration. However, the Court's direct effect formula is not specific, but resembles the traditional notion of direct effect of international agreements in the domestic legal orders of States.213 So does the Court with this appropriation conflate international law and Community law and blur the postulated distinction between the two legal orders? A closer look reveals that this is not the case. There are significant differences between the traditional direct effect of international agreements, and Communitarian direct effect of internal Community law. First, the direct applicability of international law in the domestic legal order of States is probably the exception, at least it must be positively acknowledged in each case. In contrast, the direct applicability of internal Community law is the rule (presumption of direct effect). This is even considered as a "constitutional principle" of the Communitarian legal order. 214 Second, the question whether a particular provision of an international agreement is directly applicable is answered by domestic courts. In contrast, the direct effect of a particular provision of Community law is authoritatively determined by the Community court — not by Member State courts. Both differences are due to the fact that, according to the ECJ, the relationship between the EC Treaty and the legal systems of the Member States radically departs from the traditional relationship between an international treaty and domestic law. The Court conceives of the EC Treaty not as an international agreement, but as a constitutional instrument. 215 It therefore treats the direct applicability of Community law in court 213

See on this notion supra IV.2. Some scholars therefore consider the traditional concept of direct effect of international law and the Community notion of direct effect of internal Community law as basically identical. Verhoeven (note 157), 257; Rideau (note 33), 362. Buergenthal (note 168), 328 points out similarities between the PCIJ's formula in the Jurisdiction of the Courts of Danzig case and the ECJ's formula in van Gend & Loos. 214 Opinion 1/91 f re EEA (note 4), para. 21. For those who do not use constitutional rhetoric, 'direct effect' is an element of the unique supranational character of the European Community, Peter Fischer/ Heribert Franz Köck, Europarecht, 3rd ed., 1997, 320. 215

In 1956 A G Lagrange first called the Founding Treaties the "Charter of the Community", Fédéchar (note 73), 267. In case 294/83, Parti Ecologiste Les Verts'v. European Parliament , 1986 ECR 1339, para. 23 and in Opinion 1/91, re EEA (note 4), para. 21, the Court called the EC Treaty the "Constitutional Charter" of the Community. ECHR (note 6), para. 35 opined that the Community's accession to the Convention would modify the system of protection of

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as if it were a question of domestic constitutional law in a federation-like system. Direct effect of internal Community law has to do with the specificity of the Community legal order: the constitutional character of the EC Treaty, the supremacy of Community law, the Community legislation by majority decision, and the dynamics of legal integration. Therefore the Court's concept of direct effect of internal Community law, irrespective of the concept's origins in international law, has acquired a new, independent life as a Community principle and serves a distinct purpose within the Community legal order. 216 After establishing the Community-specific concept of direct effect of internal Community law, the Court, in a second step, transferred its approach back to international law, to agreements concluded by the Community (direct effect of external Community law). Evaluation of this move is diverse. Some scholars argue that the specific reasons for considering internal Community law as directly enforceable do not apply to international law binding on the Community. Therefore thé Communitarian notion of direct effect should not be transposed to external Community law. 217 Others consider the Court's technique legitimate because arguably similar policy considerations apply to 'internal' and 'external' direct effect: Internal direct effect has the result of allowing private individuals, untrammeled by the hesitations of the Member States and institutions, to raise issues with which the Court can promote the integration of the Community. The device of direct effect furthers the uniform application of internal Community law. Uniformity and harmony are also desirable with respect to international agreements concluded by the Community. Conferring direct effect on those agreements makes them more effective and harmonious as between Member States.218 And although the development of cohesion through the direct application of treaties with third countries appears to be less significant than cohesion with regard to internal Community law, it is — in the light of accusations of Community trade protectionism — not unimportant that concerned individuals can bring actions reliant on international economic law, in particular the GATT, before the Court. 219 At first sight, the Court's move appears mechanic. The Court even used the terms it coined for the direct effect of internal Community law to describe the direct effect human rights and would therefore have a "constitutional dimension." 216

Bebr (note 48), 66; Bourgeois (note 54), 113; Hancher (note 48), 297; Ott (note 84), 77.

217

Bebr (note 48), 36 - 37; Bourgeois (note 54), 123; Rideau (note 33), 360; Eeckhout (note 48), 56; Manin (note 155), 408 and 417; Ott (note 84), 78. See also at length the opinion of A G Trabucchi in Bresciani (note 158), 147 - 149. 218 Olivier Jacot-Guillarmod , Droit Communautaire et droit international public, 1979,112 113; Bourgeois (note 54), 134; Paul Craig/ Grâinne De Βurea, EC Law. Text, Cases & Materials, 1995, 169. 219

Cheyne (note 152), 588 - 589.

Position of International Law Within European Community Legal Order

of international agreements within the Community legal order. The criteria of direct applicability of a specific provision either of internal Community law or of an international agreement are formally the same.220 A closer look, however, reveals that the Court did not merely extend the notion of direct effect of internal Community law to agreements concluded by the Community. The Court has clearly been more reluctant to grant direct effect to international agreements, and its analysis of direct effect of external Community law differs from the analysis of internal direct effect in one important respect. We have seen that the direct effect of international agreements of the Community is determined in two steps (first a global analysis of the entire agreement's character, then the test whether the specific norm in question fulfils the criteria of direct applicability).221 In contrast, as regards internal Community law, the parties' intent to allow generally for a direct effect of internal Community law is assumtd. Therefore the Court deems a global analysis of the Community instrument in question unnecessary. It verifies only the second step and asks whether the norm is sufficiently precise (judicially ascertainable) and complete (not requiring further legislation).222 This difference was shown in Kupferberg. Here the Court pointed out that the contracting parties of the international agreement can settle the question of direct effect themselves.223 This means that the Council and Commission have, in collaboration with the other contracting Party, discretion to exclude substantial judicial analysis of international agreements. In contrast, in internal Community law, such discretion is excluded by the Community legal order's specific features as spelled out by the Court. 224 The importance of a provision's legal framework and the resulting difference in assessing the direct effect of internal and external Community law is moreover made visible by those rulings that examine the direct effect of similar or even identical provisions in international agreements and the EC Treaty. 225 As the objectives of the respective agreements may differ from those of the EC Treaty, similarly worded pro220

See supra IV.3. and IV.4.d.bb.

221

Supra IV.4.d.

222

A G Darmon in Demirel (note 52), para. 14 of the opinion. Only in the seminal case Van Gend & Loos, when interpreting the EC Treaty's prohibition on imposing new customs duties or charges having equivalent effect (art. 12), the Court used the traditional international law analysis as a starting point. It stated that the question of direct effect "of an international treaty" depended on the provisions' spirit, their structure and wording. It then analyzed the object, purpose and structure of the EC Treaty as a whole (Van Gend & Loos (note 6), 24 - 25). In later cases, the Court did not repeat the global analysis of the EC Treaty. 223

Kupferberg

224

Bourgeois (note 54), 127.

225 Polydor 105-111.

(note 51), para. 17.

(note 57), para. 8; Legros (note 61), para. 23; Opel Austria (note 16), paras.

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visions may have a different meaning. Notably, even if a provision of the EC Treaty is directly applicable, the parallel provision of a differently structured international agreement may still lack direct effect. In conclusion, the significance of the three concepts — traditional direct effect of international agreements in the domestic law of States, Communitarian direct effect of internal Community law in Member State law, and Communitarian direct effect of the Community's international agreements in the Community legal order and in Member State legal orders — differs considerably. The Court made use of a traditional notion, successfully adapted it for Community purposes, and transferred it back to the level of international law without conflating the two levels. This technique demonstrates that international law has a say in Community law, and that this fact does not menace the autonomy of the Community legal order, but constitutes a valuable source of legal inspiration. The Court's materially different approach to internal direct effect and external direct effect is not compelling as a matter of legal stringency. On the contrary, given the communitarization of international agreements, which makes them an integral part of Community law with Community nature, 226 pure theoretical consistency would rather suggest granting direct effect to external Community law on the same footing as to internal Community law. In practice, however, the attribution of direct effect to international agreements concluded by the Community depends on various policy considerations, which will be analyzed in the following section. 6. Policy Considerations on the Attribution of Direct Effect to International Agreements of the Community We have seen that, within the hierarchy of norms, international law ranks above Community legislation. So international agreements concluded by the Community preempt contrary Community acts (secondary Community law).227 At this point, the question of the direct effect of the international agreement comes into play. It is usually raised by the party that tries to dodge the effect of the agreement at issue, because the requirement of direct effect functions as a barrier to the application of an international agreement. To repeat the words of the Court: If a provision of an international agreement does not have direct effect, "the validity of [a Community act] cannot be affected by [that provision]." 228 The consequence is not made explicit by the Court, but plain: Even if a Community act is contrary to that international law pro

226

Supra Π.6.

227

See supra m.2.b.

228

International Fruit Company (note 23), para. 28.

Position of International Law Within European Community Legal Order

vision the Court will not annul it. So what are the motives for denying an agreement's direct effect (and thereby curtailing judicial protection)? a) General Policy Considerations The ready attribution of direct effect in the legal order of one contracting party may lead to an imbalance of treaty compliance if the other party refuses to accept any direct effect. If the Community accepted the WTO provisions' direct effect, the Community could be forced by private plaintiffs to fulfil its international obligations, whereas this is not possible in the United States229 and in courts of many other of the Community's trading partners. Concern for such an imbalance was voiced by the European Commission and the Council in the debate surrounding the signing of the 1994 World Trade Agreements negotiated in the Uruguay Round.230 The imbalance argument is, in my view, not legitimate. The ECJ itself had previously attributed no importance to an imbalance of direct effect: [T]he fact that the courts of one of the parties consider that certain of the stipulations in the agreement are of direct application whereas the courts of the other party do not recognize such direct application is not in itself such as to constitute a lack of reciprocity in the implementation of the agreement. 231

The imbalance argument implies that the Community should comply as little as possible with a treaty. This attitude hardly corresponds to the Community principle of openness towards international law. Another concern is the internal balance of power. At first sight, direct effect for international rules appears to entail a decisive shift of responsibility from the executive — which primarily acts in external affairs — to the judiciary, because only the direct applicability of an agreement allows for court determinations that the govern-

229

In fact, the USA explicitly ruled out the direct effect of W T O rules. Sec. 102(a) and (b) (2) of the Uruguay Round Agreements Act, 19 USCA 3512. 230 C O M (94), 143 final of 15 April 1994, proposal for a Resolution of the Council on the adoption of the results of the multilateral trade negotiations within the Uruguay Round (1986 1994) at 5a. In its Resolution concluding the Agreements negotiated in the Uruguay Round, the Council opined that the W T O Agreements should not be susceptible to being directly invoked in Community or Member State courts (Last consideration of the Preamble of EC Resolution 94/800 of the Council of 22 December 1994, Official Journal Eur. Comm. No. L 336, 1994, 1, at 2). 231

Kupferberg (note 51), para. 18. A different question is whether an imbalance of contractual obligations precludes the direct effect of an agreement. The Court constantly held that it does not. See recently Chiquita (note 62), para. 34, referring to Bresciani (note 158), para. 23.

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ment is acting in violation of an international treaty. 232 This concern also explains why the Court is much more ready to hold internal Community law directly applicable than international agreements. The concern that such a judicial decision might interfere with the Community's foreign policy objectives is of course not present when the ECJ interprets internal Community law; it is present, however, when it interprets third-State agreements.233 However, the separation of powers argument has only limited value with regard to the Community, whose institutions do not precisely correspond to the three branches of government within democratic States.234 Moreover, the ECJ's power to attribute direct effect to international agreements does not substantially affect the proper roles of the political institutions and the judiciary. The prerogative of those institutions which are responsible for negotiation and conclusion of international agreements is largely safeguarded, because they are free to settle the question of direct effect in the agreement itself. If they desire to exclude judicial intervention, they may rule out direct applicability. This has, to give one example, not been done in the case of the WTO Agreements. As already mentioned, the Council opined that these agreements should not be directly applicable by Community or Member State courts. 235 However, a mere statement of one Party which has not become part of the mutually agreed text of the legally binding treaty remains in the political realm and does not bind the courts. 236 In contrast, the Court made clear that it considers itself bound by a conventional stipulation on direct applicability. f f [0]nly if that question has not been settled by agreement does it fall for decision by the courts." 237 In other words, the ECJ will decide on the possible direct effect of an agreement only in the absence of a treaty provision which answers that question. It thereby respects the political organs' freedom to act in external affairs. The positive aspect of direct applicability of international agreements is that it helps ensure that the parties carry out their obligations under a treaty. Individual plaintiffs and courts contribute to treaty compliance, independent of continuing acceptance of the treaty by the political organs which might refuse or neglect to provide for implementing measures.238 As direct application enhances the effectiveness of 232 Jackson (note 93), 326; Cheyne (note 152), 589; Christoph Schmid> Immer wieder Bananen: Der Status des GATT/WTO-Systems im Gemeinschaftsrecht, Neue Juristische Wochenschrift, 51. Jhrg., 1998, 190, 195. 233

Cf. Buergenthal (note 168), 335.

234

Ott (note 84), 172.

235

Last consideration of the preamble of EC Resolution 94/800 of the Council of 22 December 1994, Official Journal Eur. Comm. No. L 336, 1994,1, at 2. 236

But see Eeckhout (note 48), 43; Tomuschat (note 36), para. 71.

237

Kupferberg

238

Meng (note 46), 1072 and 1075.

(note 51), para. 17.

Position of International Law Within European Community Legal Order

61

international norms, it will also generally enhance the respect and prestige of international law, to the benefit of the world order. 239 In that perspective, denial of direct effect means that political institutions have more leeway in 'interpreting' or, rather, not observing their international commitments.240 So a judicial decision whether a given treaty is directly applicable reveals something about the attitude of the judiciary towards international obligations in general or towards a specific treaty, and towards domestic reception of foreign legal concepts.241 Community courts' too ready rejection of direct effect of international agreements can thus be interpreted as manifesting a desire to increase EC competencies at the cost of judicial protection of individuals and of conformity to the international rule of law.242 In the light of all this, Community negotiators and courts should not be too hesitant in conferring direct applicability to international agreements. b) A Policy Analysis of the Case Law of the ECJ Compared to the number of agreements to which the Community is a party, the 'barrier' of direct effect has seldom been erected by the Court. The number of agreements discussed is even smaller than the number of cases, because many decisions refer to the same treaty, notably to the GATT 243 and some agreements of association. 244 Many other agreements were merely analyzed in substance by the Court, without even mentioning the problem of direct applicability. A closer look at the case law reveals some patterns. First, there are those decisions that do not discuss the problem of direct effect although the referring courts had explicitly mentioned it and/or the parties had made statements to that regard. The reason for the Court's silence in those cases is that it interpreted the international provision in question so as to avoid a conflict with Community law (See, e.g., Nederland se Spoorwegen (1975) — on the free trade agreement with Switzerland245; Dürbeck

239

Cf. Jackson (note 93), 323; Schmid (note 232), 195.

240

Eeckhout (note 48), 48.

241

Buergenthal (note 168), 383; see also Jackson (note 93), 339 - 340.

242

Petersmann (note 92), 327.

243 Direct effect of the G A T T was denied in International Fruit Company (note 23), para. 19 - 28; Schlüter (note 188), paras. 27 - 30; SIOT(note 190), para. 28; SPIandSAMI (note 192), para. 23 and 31; Bananas (note 167), paras. 105 - 111; Chiquita (note 62), paras. 24 - 29. 244

See, e.g., on the agreement of association between the EC and Turkey Demirel (note 52), para. 14; Sevince (note 39), paras. 14 - 25; Kus (note 91), paras. 27 - 36; Eroglu (note 91), paras. 11 -15; Bozkurt (note 91), para. 28; Taflan-Met and Akol (note 209). 245

Nederlandse Spoorwegen (note 108).

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(1981) - on the GATT 246 ; Polydor (1982) - on an agreement with Portugal 247; Fediol I and II (1988) and Matsushita (1992) — on the GATT Anti-Dumping Code248). The Court's passing over on direct effect merely resulted from 'judicial economy' in decision making. Where there is no conflict between the Community act and the international agreement (which is properly the Court's task to decide), the direct applicability of the relevant international provision (as a prerequisite for potential invalidation of a contrary Community act) is a moot question, because in that case even the attribution of direct effect would not result in invalidating Community legislation. A related group of cases are those where specific provisions of international agreements of the Community had an impact on the legal status of an individual, but still the Court did not pronounce on their direct applicability. Instead it analyzed their substance in a straightforward way (e.g. Haegeman (1974) — on an agreement of association with Greece249 and Les Rapides Savoyards (1984) — on a free trade agreement with Switzerland250). The simple reason for this approach is that the referring national courts here asked a particular question of interpretation of the provision, but neither asked for its direct effect, nor asked in a general fashion (as, e.g., in International Fruit Company) whether a Community act was invalidated by an international provision, which would have allowed the ECJ to examine the international provision comprehensively, including its direct effect. There is one more case in which the Court analyzed the substance of an international agreement on dairy products, without asking the preliminary question as to its direct effect. 251 This case is unprecedented, because here the agreement was invoked by the Commission in an enforcement action against a Member State (art. 169252). As shall be discussed below, it is difficult to justify disregard of the question of direct effect in that particular constellation.253

246

Case 112/80» Dürbeck v. Hauptzollamt Frankfurt

1A7

Polydor ( note 57).

am MainFlughafen,

1981 ECR 1095.

248

Case 187/85, Fediol v. Commission (Fediol I), 1988 ECR 4155, para. 12; case 188/85 Fediol v. Commission (Fediol II) 1988 ECR 4193, para 13; Matsushita Electric (note 15), paras. 41 - 43. 249

Haegeman (note 38).

250

Case 218/83, Société à responsabilité limitée 'les Rapides Savoyards ' v . Directeur génér douanes et droits indirects , 1984 ECR 3105. 251

Commission v. Germany (note 26). Note that application of the international agreement here led to the illegality of a Member State measure, not a Community measure. 252

Art. 226 of the Treaty of Amsterdam of 2 October 1997.

253

Infra IV.7.

Position of International Law Within European Community Legal Order63

The case law does not compel the conclusion that the Court often implicitly recognized the enforceability of the international provisions at stake.254 Nor do the cases demonstrate that the Court occasionally discretely abandoned the direct effect requirement as a precondition for the review of a Community act.255 Contrary to scholarly critique in that sense, the case law does not prove that if the ECJ intends to apply an agreement, it simply applies it, and discusses its direct applicability only in those instances where it clearly intends to deny any legal effect. 256 However, it seems no mere coincidence that direct effect was — with one exception — only attributed to agreements when this led to rendering illegal a Member State measure and thereby had the effect of extending the scope of EC law.257 Those cases were Bresciani (1976) — on the Yaounde Convention258; Pabst & Richarz (1982) — on an agreement of association with Greece259; Kupferberg (1982) — on an agreement with Portugal 260; Sevince (1990) and following cases — on the agreement of association with Turkey 261 ; Kziber (1991), Yousfi (1994), and Hallouzi-Choho (1996) - on the agreement of cooperation with Morocco 262; Anastasiou (1994) — on the agreement of association with Cyprus 263; Chiquita (1995) — on the Lomé Convention264; and Krid (1995) and Babahenini (1998) — on the agreement of cooperation with Algeria. 265

254 However, the Court later interpreted its approach in 'les Rapides Savoyards' as an implicit affirmation of the direct applicability of the agreement {Anastasiou (note 203), para. 25). 255

But see Bebr (note 48), 46; see also Bourgeois (note 54), 114 -115.

256

But see Pescatore (note 182), 185.

257

Only in few cases that concerned Member State measures, the ECJ denied the direct effect of international agreements or acts of international bodies. See Demirel (note 52), para. 14 (on the agreement of association with Turkey); Chiquita (note 62), paras. 24 - 29 (denying the direct applicability of a G A T T provision that would have otherwise rendered illegal a Member State taxation); Taflan-Met andAkol (note 209), paras. 23-38 (on a resolution of a council of association). 258

Bresciani (note 158), paras. 16 - 26.

259

Pabst & Richarz (note 192), para. 25-28.

260

Kupferberg

(note 51), paras. 9 - 27.

261

Sevince (note 39), paras. 13 - 25; Kus (note 91), paras. 27 - 36; Eroglu (note 91), paras. 11 15; Bozkurt (note 91), para. 28. 262 Kziber (note 198), paras. 15 - 23; Yousfi 198), para. 19 - 20. 263

Anastasiou (note 203), paras. 22 - 27.

264

Chiquita (note 62), paras. 30 - 57.

265

(note 158), paras. 16 - 19; Hallouzi-Choho (note

Case C-103/94, Krid v. Caisse nationale d'assurance vieillesse des travailleurs salariés , ECR 1-719; case C-l 13/97, Henia Babahenini v. Etat belge , judgment of 15 January 1998, not yet reported.

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Conversely, where international law provisions were invoked in order to argue that a Community act was incompatible therewith, direct effect was — with one single exception — denied (International Fruit Company (1972)266; Schlüter (1973)26 S/OT(1983)268; SPIandSAMI (1983)269; Bananas (1994)270). This case law can be interpreted as manifesting the Court's unwillingness to admit the invalidity of Community legislation.271 It seems as if the Court effectively uses the direct effect requirement as a barrier to prevent international law from invalidating a Community act. However, all those cases concern the GATT. The Court has also denied direct effect to GATT provisions if they threatened to affect a Member State measure, not a Community act.272 Conversely, the Court of First Instance recently, in Opel Austria (1997), did acknowledge the direct effect of article 10 of the agreement on the European Economic Area (EEA) (prohibition of customs duties on imports and exports and all charges having an equivalent effect), although this had the effect of rendering invalid an EC regulation.273 So the Court's hesitation to grant direct effect seems to be a specific problem of GATT rather than a manifestation of a generally reserved attitude towards international law as a determiner of validity of Community legislation. In this context, a brief comment on the Court's GATT case law is appropriate. 274 The Court has constantly refused to attribute direct effect to GATT rules, because of the GATT 1947 characteristics: its flexibility, the possibility of derogations, the allowance for safeguard measures, and the unsatisfactory dispute settlement provisions.275 However, recent judgments on GATT 1994 completely disregard the process towards legalization through which the world trade regime has gone. The Uruguay Round Agreements have introduced qualitative changes: the dispute settlement mechanism has been improved and strengthened and now comes close to a system of

266

International Fruit Company (note 23), paras. 19-28.

267

Schlüter (note 188), para. 27.

268

Case 266/81, Società Italiana per VOleodotto ECR 731, para. 28, 269

Transalpino v. Ministero delle finanze , 19

SPIand SAMI (note 192), paras. 23 and 31.

27 0

Bananas (note 167), paras. 105 - 111.

271

See in this sense Craig/ De Burca (note 218), 171.

27 2

Chiquita (note 62), paras. 24 - 29.

27 3

Opel Austria (note 16).

274 See exhaustively on the problem of direct effect of G A T T / W T O rules within the Community legal order Ott (note 84), 122 - 243. 27 5 International Fruit Company (note 23), paras. 21 - 27; Schlüter (note 188), para. 27; SIOT (note 190), para. 28; SPI and SAMI (note 192), para. 23; Bananas (note 167), paras. 106 -108; Chiquita (note 62), paras. 26 - 28.

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65

adjudication,276 and the rules on safeguard measures and escape clauses were tightened. Moreover, GATT/WTO rules lay down fundamental rights of constitutional value (freedom of trade), whose lack of justiciability constitutes a serious defect. 277 Those features of the Uruguay Round Agreements now strongly support their potential for direct applicability.278 The ostensible vagueness and flexibility of GATT/WTO rules has not hindered the WTO dispute settlement organs to interpret and apply many of its provisions. Moreover, GATT provisions served as a model for various provisions of the EC Treaty to which the ECJ attributes direct effect although they are not more precise than the former. 279 Both facts demonstrate that GATT/WTO provisions are not by their nature unsuited for application by the judiciary. Scholarly arguments against the direct effect of GATT/WTO rules are as unconvincing as the flexibility argument. It is asserted that the attribution of direct effect to GATT would cause an external imbalance because other partners have ruled out direct effect. It might also create an internal imbalance: the Court of Justice would make binding decisions that would impair the other institutions' freedom to adapt their external policy to differing circumstances, tie the EC in dispute settlement procedures, and would run counter to the perception that GATT is a matter for the policy-making institutions rather than for courts. 280 These arguments are, as already discussed,281 unpersuasive. The remaining serious objection against the direct effect of GATT/WTO rules is that if the ECJ would interpret these rules in substance, it could hardly diverge from the findings of a GATT panel or the Appellate Body without undermining the authority of the whole dispute settlement procedure. It is arguably not up to the Court to decide definitely on the merits of challenged Community trade policies and thereby prevent a negotiated settlement within the WTO. 282 But the Court could solve this problem by following the interpretation given to international provisions by the WTO dispute settlement organs, as it already does in the human rights context with regard to the case law of the European Court of 276

Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the W T O Agreement; unofficial text reprinted in I L M 33 (1994), 114 - 135. 27 7

Eeckhout (note 48),48 - 49; Petersmann (note 92), 327.

278

See in scholarship, e.g., Meng (note 46), 1084 - 1085; Eeckhout (note 48), 34.

279

In particular the European customs union is based (in part literally) on G A T T rules, Petersmann (note 92), 326. 280

Pescatore (note 48), 687; Cheyne (note 152), 589; Castillo de la Torre (note 152), 64; see Commission in Polydor (note 57), 343. Buergenthal (note 168), 375 - 376 calls concern for the internal balance of power the most frequent real reason for domestic courts to deny direct effect. 281

Supra IV.4.a.

282

Castillo de la Torre (note 152), 63; Eeckhout (note 48), 31 - 32, 50 - 51; see also Cheyne (note 152), 589.

5 GYIL 40

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Human Rights.283 So all in all, the better arguments speak for the WTO system's potential for direct applicability and the direct effect of those provisions that are sufficiently precise. The Court should give up its categorical rejection of direct effect of GATT as a whole. 7. The Direct Effect of an International Agreement as a General Precondition of Judicial Review Until 1994, the requirement of direct effect of an international agreement could be interpreted as an element of the preliminary ruling procedure, because it had been spelled out by the ECJ only in that context.284 Accordingly, the requirement of direct effect had always figured as a condition of the invocability of an international agreement by individuals before national courts.285 In the 1994 Bananas case, the Court for the first time applied the direct effect requirement in a direct action instituted by a Member State under article 173 EC Treaty. 286 Germany had challenged the Communitarian scheme on importation of bananas on the ground that it violated various provisions of the GATT. As in previous cases, the ECJ did not examine the substance of those provisions, but first asked whether GATT was directly applicable. To this end, it analyzed GATT as a whole, considering spirit, general scheme, and terms. It characterized the agreement as very flexible, in particular with regard to the possibility of derogations and the settlement of disputes.287 This approach was not new, but well-known from the previous cases on GATT. But then the Court went one step further and stated that those features of G A T T , from which the Court concluded that an individual within the Community cannot invoke it in a court to challenge the lawfulness of a Community act, also 283

Opinion 1/91 re EEA (note 6), paras. 39 - 40 acknowledged that the Court is generally bound to respect decisions of a judicial body set up by an international agreement to which the Community is a party. 284 The notorious decisions Fediol III and Nakajima are no exception. Here individuals sought judicial control of Community acts under 173 (4) and art. 184 by relying on G A T T . While the Community respondents argued that the applicants could not invoke G A T T absent its direct applicability, the Court dispensed with the direct effect requirement, Fediol III (note 81); Nakajima (note 20); see in detail infra IV.8.b. and c. 285 The ECJ had explicitly pronounced itself in that sense. See Bresciani (note 158), para. 26; Pabst & Richarz (note 192), para. 28; Yousft (note 158), para. 19; Anastasiou (note 203), para. 26; Krid (note 265), para. 24; Hallouzi-Choho (note 198), para. 20; Taflan-Met and Akol (note 209), para. 38. But note that in International Fruit Company the A G Mayras already had implied in his opinion that the direct effect requirement also applies to Member States' actions before the Community court, International Fruit Company (note 23), 1242. 286

Bananas (note 167).

287

Id ., paras. 105 - 106.

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67

preclude the Court from taking provisions of G A T T into consideration to assess the lawfulness of a regulation in an action brought by a Member State under the first paragraph of Article 173 of the Treaty. 288

So Bananas (and subsequent cases,289 and also other institutions' recent statements290) treat the requirement of direct effect as a general material precondition of judicial review. In my view, this general application of the direct effect requirement, beyond the procedure of article 177, is well-founded. First, uniform application (or non-application) of agreements is a legally clear and consistent solution. Where the lawfulness or validity of a Community Act is challenged, the success of such a challenge should not depend on the route by which it is brought before the Community courts. Nor should it depend on whether the plaintiff is a Community institution, a Member State, or an individual.291 It should be possible to rely (or not to rely) on an international agreement in all types of cases.292 Apart from consistency and clarity, the most important systematic consideration is the following: The EC Treaty has created a new legal order, the subjects of which comprise not only the Member States, but also their nationals,293 a fact which constitutes one of the most important specific features of the Community legal order. The basically comparable situation of Member States and individuals vis-à-vis Community law calls for identical rules on the invocability of international agreements. One objection against this argument is that Member States are privileged applicants in actions before the ECJ. For instance, Member States need not be individually and immediately concerned by a Community act to have standing to challenge it before the Court. Because Member States' direct actions function as an element of checks and balances within the Community, their privileged standing arguably is an important element of the Community's rule of law.

288

Id. y para. 109.

289

In Opel Austria, the Court of First Instance asked for the direct effect of an agreement in an individual plaint under art. 173(4), without even justifying this approach, Opel Austria, (note 16), paras. 95-111. 290 In its decision concluding the W T O Agreement, the Council stated that "by its nature, the Agreement establishing the World Trade Organization, including the Annexes thereto, is not susceptible to being directly invoked in Community or Member State courts. " Preamble of the EC Resolution 94/800 of the Council of 22 December 1994, Official Journal Eur. Comm. No. L 336, 1994, 1, at 2 (emphasis added). 291

But see Hahn/Schuster (note 157), 370 - 377; Tomuschat (note 36), para. 65; Schmid (note 232), 192 - 193, arguing that the direct effect requirement should apply to individuals, actions, but not to Member States'.

5*

292

Rideau (note 33), 357; Manin (note 155), 408 - 409; Eeckhout (note 48), 24 and 56.

293

Van Gend & Loos (note 6), 25.

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However, it does not follow that any limitation of the Member States' right to invoke agreements would disturb the Community's institutional balance, and would create a gap in the system of objective control of legality.294 The procedural prerequisites for launching an action (in particular the question of standing) are one issue; the capacity to make a legal argument based on an international agreement is a different issue which relates to substance. The procedural privilege of the Member States need not be duplicated on the level of substance (by allowing Member States to rely on international provisions which individuals cannot invoke) in order to safeguard the Community system of checks and balances. Furthermore, it is argued that the Member States' unlimited power to invoke international agreements when challenging internal Community law constitutes the necessary corollary to the fact that Member States can be a minority in the Council, and corresponds to the Member States' obligation to fulfil the Community's agreements, article 228(7).295 However, Member States are in many situations not objective controllers of legality, but — just like individuals — defenders of interests.296 Conversely, individual complaints have truly become — in a way which was probably not foreseen by the framers of the EC Treaty's procedural provisions — an instrument of objective control of Member States and institutions, and an instrument to further legal integration, rather than (only) a proceeding to claim subjective rights for individuals. So Member State and individual actions are in functional terms similar. Furthermore, Member States and individuals are in the same position vis-à-vis international agreements concluded by the Community.297 Member States are — just like individuals — not formally Contracting Parties (except in the case of mixed agreements). The fact that Member States are represented in the Community Council which concludes the agreements does not assimilate the Member States to the Contracting Parties, because the Council acts on behalf of the Community and does not have to conclude agreements on the basis of a unanimous decision. It therefore makes sense to subject Member States and individuals to the same rules as individuals when enforcing international obligations of the Community.298 294

But see Hahn/Schuster (note 157), 372 - 373.

295

Id ., 373; Schmid (note 232), 193.

296

Manin (note 155), 409, n. 31.

297

Kovar (note 10), 359; Rideau (note 33), 358. As a general matter, it is no longer justified to draw a sharp line between States (admittedly the primary and original subjects of international law) and individuals, because the latter are increasingly acknowledged as subjects of international law in various contexts. But see Castillo de la Torre (note 152), 58 - 59, claiming that Member States are "simply different" in the international context. 298

Arguably, Member States and individuals generally are affected differently by Community acts and relevant international agreements. For individuals, the validity of a Community act

Position of International Law Within European Community Legal Order

The requirement of direct effect as defined here also applies to invocation of international agreements by Community institutions. The ECJ was inconsistent recently when it did not ask for the direct effect of an international norm in an enforcement action instituted by the Commission against a Member State (art. 169).299 The Court found that Germany had failed to comply with a Community agreement on dairy products after analyzing the substance of the agreement, without asking the preliminary question as to whether the Commission could invoke the agreement before the ECJ. This approach has been defended by explaining 'internal' enforcement of international agreements through the Commission as a corollary to the binding force of Community agreements on the Member States, article 228 (7).300 However, legally binding character and direct applicability, properly understood as justiciability, are two different issues as will be discussed below. Widespread reservation against the Bananas approach (asking for the direct effect of an international agreement invoked in a direct action under article 173) stems from the widespread, albeit mostly implicit, endorsement of a Subjective' notion of direct effect, identified with the 'subjective' questions of procedure and substance as to who is entitled to invoke a treaty (standing) and who can derive rights from it (a notion of direct effect which finds some support in the language of the ECJ itself, in particular in the early cases301). On that premise, the requirement of direct effect appears alien to the 'objective' control of legality under article 173 and article 169. This paper, however, asserts that a treaty has direct effect when it contains judicially ascertainable hard-and-fast rules, but not necessarily subjective rights. 302 The mentioned objection against the requirement of direct effect in direct actions and enforcement actions is therefore not pertinent. A uniform requirement of direct effect for application of international agreements concluded by the Community by domestic courts (subsequent to the reference proceeding under article 177) and by the ECJ (in direct actions under article 173 and enforcement actions under article 169) also corresponds to the fact that the Member State courts which refer to the Court of Justice contribute to safeguarding the uniform application of Community law and thus function as Community courts. Appli-

is an economic concern. A particular act may threaten his economic survival. Member States are politically, and less economically, interested. However, the materially different concern of individuals and Member States is neither clear nor precise enough to warrant formally different treatment as regards the enforcement of international obligations. 299

Commission v. Germany (note 26).

300

Jörn Sack , Noch einmal: G A T T / W T O und europäisches Rechtsschutzsystem, Europäische Zeitschrift für Wirtschaftsrecht, Bd. 8, 1997, 688. 301

Supra IV.4.C.

302

Supra IV.l.

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cation of external Community law by the ECJ and by Member State courts is therefore — in the Community perspective — a functionally similar process. In sum, the direct effect requirement is properly understood as a general prerequisite for application of an international agreement by courts, independent of the quality of the applicants. This general requirement of course conflicts with the Community principle of judicial review. 303 On the one hand, all international agreements of the Community are binding and form an integral part of the Community legal order. On the other hand, those provisions that are not directly applicable cannot (at least not through a Court decision) affect the validity of contrary Community acts.304 Although the ECJ verbally confirms that the lack of direct effect does not relieve the Community from its obligations towards third States, and that the Community must ensure compliance to international obligations,305 one may duly ask what is left of the binding force of those agreements that cannot be applied by the Court? It is submitted here that the binding force of not directly applicable agreements is not empty, because legally binding force and judicial enforceability are two different issues.306 This is illustrated by the national constitutions and national laws of some Member States that contain provisions requiring additional implementing measures to create judicially enforceable legal rights and obligations. For instance, the German Grundgesetz (Basic Law) contains Staatszielbestimmungen (government goals), which are legally binding, but nevertheless not judicially enforceable. 307 The obligation to pursue the government goal is primarily addressed to the legislature and the executive. The legislature is committed to taking care that the legal system further the government goal. For the executive, government goals constitute a guideline in the exercise of executive discretion and interpretation of law. The judiciary cannot derive judicially enforceable rights and obligations from government goals. But it must take them into account as a normative guideline for statutory interpretation and judicial lawmaking. So despite the lacking judicial enforceability of these goals, they embody legal, not merely political obligations.308 303

See on this general principle of Community law Oppermann (note 10), para. 612.

304

International Fruit Company (note 23), para. 28.

305

See, e.g., SIOT (note 190), para. 28.

306

It is therefore misleading to state that the requirement of direct effect limits the principle of legality. ButseeManin (note 155), 403, see also Petersmann (note 92), 327; Eeckhout (note 48), 48. 307

Government goals in the constitution are factual equality of women (art. 3(2) sentence 2), the principle of the social State (art. 20 (1)), environmental protection (art. 20(a)), the commitment to European integration (art. 23(1)), peacekeeping (art. 26), and economic balance (art. 109(2) Grundgesetz). 308

See generally Report of the Expert Commission on Government Goals/Legislative Mandates of 1983, Staatszielbestimmungen, Gesetzgebungsaufträge. Bericht der Sachverständigen-

Position of International Law Within European Community Legal Order 71

In the Community context, international agreements that lack direct effect have similar functions. Although a court may not be able to apply a treaty in a specific case to establish the legal right or obligation that is asserted by one party, the treaty nevertheless is 'law* to the same extent as a directly applicable treaty. It authorizes or mandates the enactment of regulatory or legislative Community measures that further the agreements' objectives. It guides the interpretation of Community law and thus has an important 'indirect effect' which will be discussed below. The denial of direct effect, understood as judicial enforceability, of some international agreements therefore does not mean a defeat of the principle of legality, but acknowledges the limited powers of the judiciary in relation to those Community institutions that act in external affairs. 8. The Indirect Effects of International Agreements in Community Law The absence of direct effect of an international agreement does not mean that the agreement has no effects in the Community legal order. The cases have established three types of 'indirect effect' of international agreements. First, Community acts must be interpreted in conformity to all rules of international law, including not directly applicable agreements. Furthermore, the Court reviews the lawfulness of a Community act under the standard of international rules that lack direct effect if the Community act explicitly refers to international law (Fediol principle), and when the Community intends to implement a particular international obligation (Nakajima principle). While the principle of consistent interpretation is sound, the two latter ones are not convincing.309 a) The Interpretation of Community Law in Conformity with International Law The Community principle of consistent interpretation has been described by the Court as follows: "[T]he primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as possible, be interpreted in a manner that is consistent with those agreements."310 This principle applies to all international agreements, including those that do not have direct effect. Examples of consistent interpretation are interpretation of the kommission (Der Bundesminister des Innern, Der Bundesminister der Justiz, eds., 1983); KarlPeter Sommermann, Staatsziele und Staatszielbestimmungen, 1997. 309

Nevertheless, the Court confirmed both in Bananas (note 167), para. 111.

310

Commission v. Germany (note 26), para. 52.

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European common customs tariff (established under articles 18-29 EC Treaty) in conformity with international agreements between the Community and its GATT trading partners, 311 or consideration of article X I of the GATT as being "relevant for the purposes of interpreting a Community instrument governing international trade." 312 Community law must not only be interpreted in the light of agreements which the Community itself has concluded or in which it succeeded the Member States, but also in the light of other international norms. In Defrenne , the ECJ interpreted article 119 EC Treaty with reference to ILO Convention No. 100 on Equal Pay of 1951 which all Member States had ratified, and which was considered by the Advocate General as the international law model of article 119.313 Various cases deal with the situation that Member States charged with violating Community obligations argued that they were internationally obliged to take the measures in question. The Court accepted that international treaties (not formally binding the Community itself, but several or even all Member States) could justify Member State action. An example is a 1977 case regarding the question whether sanitary export controls were charges having an equivalent effect to duties as proscribed by articles 9,12, and 16 of the EC Treaty. 314 The Court found that the controls corresponded to a pesticide agreement to which all Member States were parties. Therefore they were not a unilateral measure in the national interest, but a common practice for the promotion of international commerce in plants.315 Similarly, the Court found that the German prohibition on nightwork in bakeries does not violate Community law by reference to the ILO Convention No. 20 under which various Member States had installed regimes similar to the challenged one.316 In another case, Belgian authorities sought to punish the activities of a French profit-oriented employment agency in Belgium. This facially ran counter to the Community regime of free services. Belgium justified its laws with international obligations arising from the ILO Convention No. 96. The Court analyzed the terms of the agreement and found that the agreement itself did not support the Belgian argument and could therefore not be invoked in order to escape Community obligations.317

311

Case 92/71, Interfoodv.

Hauptzollamt Hamburg-Ericus,

1972 ECR 231, para. 6.

312

Case C-70/94, Werner v. Germany , 1995 ECR 1-3189, para. 23 and identically in case C83/94, Criminal proceeding against Leifer, 1995 ECR 1-3231, para. 24. 313

Defrenne (note 65), para. 16/20; opinion of A G Mayras , id., at 484.

314

Case 89/76, Commission v. Netherlands , 1977 ECR 1355.

315

Id ., para. 14/17.

316

Case 155/80, Oebel t 1981 ECR 1993, paras. 12 -13.

317

Cases 110 and 111/78, Ministère public and Chambre Syndicale des Agents artistiques et Im presarii de Belgique v. van Wesemael , 1979 ECR 35, paras. 33 -36.

Position of International Law Within European Community Legal Order

73

Probably the most important variant of consistent interpretation is the interpretation of Community law in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Community itself is not a party to this convention (and could not become one without amendment of the EC Treaty). 318 Nevertheless, respect for fundamental human rights forms an integral part of the general principles of law protected by the Court of Justice. Those rights find their sources inter alia in "international treaties for the protection of human rights in which the Member States have collaborated or of which they are signatories."319 The European Convention on Human Rights is especially significant in this context, as has been acknowledged by the Court 320 and by the common provisions of the TEU. Notably article F (2) TEU 321 holds that "the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms." All in all, provisions of the EC Treaty have constantly beenjnterpreted so as to reconcile Community law with international law. This may well be called an 'indirect* effect of international law on Community law. b) The Fediol Principle: Express Reference to Rules of International Law in Community Legislation In Fediol III? 11 an individual challenged a decision of the Commission which found his behavior contrary to Regulation No. 2641/84 (the so-called New Commercial Policy Instrument). The applicant's argument was that the Commission's interpretation of the basic regulation did not conform to GATT. The Court affirmed that the GATT could not be invoked by an individual in court. 323 But this lack of direct effect should not hinder the Court "to interpret and apply" GATT in order to examine whether certain commercial practices are incompatible with it. 324 The background of this statement is that the regulation at issue explicitly referred to "rules of international law" to establish the illicit nature of certain commercial practices.325 So the 318

Opinion 2/1994, 1996 ECR 1763.

319

See, e.g., cases 46/87 and 227/88, Hoechst v. Commission , 1989 ECR 2859, para. 13.

320

See, e.g.y case C-260/89, Elliniki Radiophonia Tielorassi v. Dimotiki Etairia (ERT), 1991 ECR 1-2925, para. 41; opinion 2/1994,1996 ECR 1763, para. 33. 321

Art. 6(2) T E U of the Treaty of Amsterdam of 2 October 1997.

322

Fediol III (note 81).

323

Id., paras. 18 - 20.

324

Id.y para. 20.

325

Pliroforis

Art. 2(1) of Regulation 2461/84 of 17 September 1984 only summarily refers to "rules of international law" to define illicit commercial practices, Official Journal Eur. Comm. No. L 252, 1984, 1.

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Court interpreted and applied GATT within the framework of the regulation . However, this distinction is far from clear. For instance, the regulation challenged in the Bananas case326 also contains references to GATT which are not less precise than those of the New Commercial Policy Instrument at stake in Fediol III . Still, the Court refused to interpret and apply GATT in the Bananas case. The second, more convincing distinction of the Fediol III case is that the New Commercial Policy Instrument entitled the economic agents concerned to rely on GATT provisions in the complaint which they lodged with the Commission. Therefore, the Court held, they must also be entitled to request the Court to exercise its powers of review over the legality of the Commission's decision applying GATT provisions. 327 In other words, the Commission may not find illicit commercial practices in terms of Regulation No. 2641/84 (referring to international law) without judicial control. 328 It is noteworthy and probably symptomatic that the invocation of GATT within the framework of the New Commercial Policy Instrument does not support the enforcement of international law within the Community but, on the contrary, brings Community organs to defend the Community against commercial practices of third State enterprises. The New Commercial Policy Instrument enables individual economic agents to force the Commission to take action against GATT or WTO violations by third State actors. So the individual's right to rely on GATT when challenging the Commission's refusal to institute proceedings against third State enterprises is actually "a protectionist measure with other means."329 c) The Nakajima principle: Specific Implementation of an International Obligation The Nakajima 330 principle is even less persuasive than Fediol . Here the applicant sought annulment of an individual anti-dumping measure on the ground that the provisions of the Community's basic anti-dumping regulation, on which those measures were based, were invalid because they did not comply with the GATT Anti-Dump-

326 According to the third consideration of the preamble of Regulation 404/93 of 13 February 1993 (organization of the Common Market in the bananas sector), the Common Market must be installed with due account to the international obligations of the Community (to which G A T T obligations belong), Official Journal Eur. Comm. No. L 47, 1993, 1. 327

Fediol III (note 81), para. 22.

328

Cf. A G van Gerven , in Fediol III (note 81), para. 12 of his opinion.

329

Ott (note 84), 174 (author's translation).

330

Nakajima (note 20).

Position of International Law Within European Community Legal Order

ing Code. The applicant thus sought incidental control of a regulation (pursuant to article 184) under the GATT standard. This meant, in the view of the Court, that the applicant "did not invoke the direct effect" of an international norm, but merely relied on the ground of invalidity: infringement of a rule relating to the application of the EC Treaty. 331 However, the fact that a regulation is controlled only incidentally under article 184 does not make any material difference to a direct action under article 173, because article 184 refers to the grounds of invalidity of article 173. The Court's established practice of controlling Community acts in the light of an international agreement only after determining the agreement's direct applicability must rely on the same ground of invalidity· Second, the Court distinguished Nakajima on the ground that the challenged antidumping regulation had been specifically enacted to implement a particular GATT obligation.332 But it remains unclear why this fact should dispense with the requirement of direct applicability of an international agreement, because domestic implementation of a not directly applicable treaty is nothing special, but on the contrary its usual consequence. A closer look, in particular at three cases following Nakajima, 333 reveals that Nakajima , by interpreting the basic anti-dumping regulation in the light of GATT, merely corresponds to the general obligation to interpret Community law consistently with GATT, independently of whether a regulation specifically seeks to implement GATT. 334 So the so-called Nakajima principle collapses into the principle of consistent interpretation. Conclusions On the premise that Community law is a new legal order sui generis , and as such distinct from international law, an overview of the ECJ's jurisdiction on international law (as a standard of reference for the legality of Community action in direct actions and preliminary rulings, and, conversely, as an object of judicial control in advisory opinions, direct actions, and preliminary rulings) forms the starting point of the doctrinal analysis of the incorporation of international law into the Community 331

Id ., para. 28.

332

Id., paras. 30-31.

333

Case 0105/90, Goldstar v. Council , 1992 ECR 1-677, paras. 30 - 33; case 175/87, Matsushita Electric (note 15), paras. 41 - 43; case C-188/88, NMB (Germany) (note 15), para. 23 (interpreting the Community's basic anti-dumping regulation in conformity with the G A T T AntiDumping Code). 334

Ott (note 84), 148 - 149.

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legal order, the hierarchical status of international law within that order, and the direct effect of international agreements. The question whether international law is incorporated into Community law by means of an alteration of its legal nature or without such alteration is relevant in practice, because transformation of international law has as a consequence that rules of international origin partake in the special force of ordinary Community law (automatic domestic status, supremacy and preemption). It is submitted that practice of the institutions, language of the Court and doctrinal arguments are best reconciled by a theory of communitarization of international law. This means that international norms are, by a general rule of Community law, formally transposed into Community law and thus acquire Community character. The question of the hierarchical status of international law within the Community legal order is answered differently by international law and by Community law. In the external (international law) perspective, international law prevails over primary and secondary Community law. In contrast, the Community perspective is that the EC Treaty takes priority over international law (with the exception of ius cogens). Nevertheless, the ECJ has no jurisdiction to declare Community agreements that are incompatible with the EC Treaty invalid with binding force as against the Contracting Parties. The Court merely invalidates the internal act of conclusion of an agreement with the consequence that the agreement is inapplicable within the Community, but remains valid on the international plane. Provisions of international agreements concluded by the Community have direct effect when Community and Member State courts can derive concrete legal rights or obligations from them. The precondition for this is the Contracting Parties> respective intent, normally manifested in the provisions' language. The Communitarian notion of direct effect of Community agreements (external Community law) builds on the traditional notion of direct effect of international agreements in the domestic order of States, and on the Communitarian notion of direct effect of internal Community law. Some cases and much writing implicitly or explicitly associate direct effect with procedural standing or substantive rights of individuals. In contrast, this paper argues that direct effect is best understood as an objective prerequisite for application of international rules by courts, a notion which finds some support in the more recent case law. The ECJ determines the direct effect of a Community agreement in two steps: a global analysis of nature, structure, and purpose of the agreement as a whole, and, second, the analysis of the particular provision as to its precision and unconditional nature. The first prong distinguishes the attribution of direct effect to Community agreements from the acknowledgment of direct effect to internal Community law. The different approach is motivated by policy considerations. The requirement of direct effect functions as a barrier to the application of international agreements, which

Position of International Law Within European Community Legal Order

otherwise — direct effect granted — risk invalidating contrary Community legislation. Interestingly, the ECJ attributed direct effect most often to agreements when this had the effect of rendering illegal a Member State measure, but denied the direct effect of the GATT, which was in various cases invoked to argue that Community acts are incompatible therewith. With a view to the procedural and material improvements of the WTO system, the Court's categorical rejection of the direct effect of GATT as a whole is no longer justifiable. The requirement of direct applicability of an international agreement is a general precondition of judicial review in all types of actions, independent of the plaintiffs. In particular, the Court is correct to ask for the direct effect of an agreement not only when it is invoked by an individual, but also when a Member State seeks to enforce it. The requirement of direct effect is not alien to the objective control of legality of Community action under article 173, because, properly understood, direct effect has nothing to do with subjective rights or standing. The general requirement of direct effect conflicts with the principle of judicial review. However, non-justiciability of a particular provision of an agreement does not make the binding force of that agreement empty. Comparable to the function of programmatic and aspirational provisions in domestic constitutions, international agreements that lack direct effect authorize or mandate the enactment of Community laws and guide the interpretation of Community law. In fact, the interpretation of Community legislation in conformity with international law is an established principle of Community law.

77

Customary International Law in the United States: Clean and Dirty Laundry By Jordan J. Paust I. The Nature of Customary International Law In a realistic and descriptive sense, customary international law is a complex and dynamic legal process profoundly interconnected with international law more generally and, like the latter, with regional and domestic legal processes throughout the globe. There are no single sources or evidences of customary international law; no single set of participants; and no single arenas or institutional arrangements for the creation, invocation, application, change or termination of such law.1 Like all human law, it is full of human choice and rich in individual and group participation. Within the United States, customary international law has been significantly interconnected with our domestic legal processes for at least 250 years. As noted in my treatise, International Law as Law of the United States, such law has also been received as part of the 'law of nations', a phrase used interchangeably by our courts with the phrase 'international law' from the dawn of the United States.2 Early subjects included attention to both private and governmental duties relevant to both civil and criminal sanctions. Customary international law has also been relevant since the beginning of the United States to rights of individuals, including human rights,3 and to various governmental powers and responsibilities. As the treatise documents, more specific earliest subjects included all trespasses against the law of nations, piracy, acts of hostility or breaches of neutrality, assaults on foreign governmental personnel, terroristic publications, prizes of war and unlawful captures, the laws of war, slave trading, territorial infractions, poisoners, assassins and incendiaries by profession, violation of passports, violation of safe-conducts, extradition and 'refuge' or asylum, human rights, denials of justice to aliens, remedies, jurisdiction, nonimmu1

This paragraph is borrowed from, and expanded upon in, Jordan J. Paust , The Complex Nature, Sources and Evidences of Customary Human Rights, Georgia Journal of International and Comparative Law, vol. 25,1996, 147. Compare Onuma Yasuaki , In Quest of Intercivilizational Human Rights: 'Universal· vs. 'Relative' Human Rights Viewed from an Asian Perspective, Center for Asian Pacific Affairs, Occasional Paper No. 2, March, 1996. 2

Jordan J. Paust , International Law as Law of the United States, 1996,1.

3

See id. y 8, 169 - 177, 182 - 184, 214 - 224, 228 - 231.

Customary International Law in the United States: Clean and Dirty Laundry

nity, confiscation of property, war, reprisals, lawful intervention, oppression, tyrannicide, revolution, title to land by discovery and conquest, settlement of controversies between nations, and the law concerning treaties, including the primacy of the law of nations over treaties.4 With increasing interdependence among all peoples, the list of subjects has predictably been considerably expanded. It is widely recognized that although customary international law can be formed by a consociation of general patterns of behavior and general patterns of legal expectation5 (with nonconformists, violators and/or dissenters acting openly, screaming loudly or objecting persistently), once formed it is legally binding on all.6 Despite this widespread and traditional recognition, a few textwriters, 7 including the U.S. Restatement,8 prefer that a 'dissenter' sometimes9 not be bound by customary international law, as if customary law sometimes, but not always, requires the consent of each actor or participant that such law can reach. In my treatise, I have demonstrated why this recent claim and some of its permeations are shared only by a minority and are illogical, false and threatening to the nature of customary international law.10 Clearly, it does not reflect the views of U.S. Founders or an overwhelmingly consistent identification of the nature of customary international law by courts within the United States.11 In fact, the dissenter myth has only been mentioned per dictum in two known federal cases,12 and has never been applied to limit the reach of customary international law within the United States. 4

See id. , 8, 48 - 50, 393, 402 - 403, passim.

5

See id., 1 - 3, 10 -19, passim; Paust (note 1), 148 - 152.

6

See, e.g., Paust (note 2), 3,14 -18; Richard B. Lillich/Hurst Rights, 3rd ed., 1995, 93, 133. 7

Hannum, International Human

See Paust (note 2), 14-15.

8

See Restatement (Third) of the Foreign Relations Law of the United States, 1987, § 102 comments b and d, reporters' note 2 [hereinafter Restatement]. 9

Illogically, the 'dissenter' preference would apply only during the formation of new customary law, when the dissenter objects loudly enough and persistently. It would not allow the dissenter to obviate the universal reach of customary international law initially formed prior to the beginnings of persistent protestation. 10

See Paust (note 2), 14-19.

11

See, e.g.y id., 15 -18.

12

Princz v. Federal Republic of Germany, 26 F.3d 1166, 1181 (D.C. Cir. 1994) ("Unlike general rules of customary international law (jus dispositivum), jus cogens norms are binding upon all nations; whereas states are not constricted by customary international law norms to which they continuously object...," citing a student work that had cited only a few textwriters (and contains several other errors): DavidF. Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, Yale Journal of International Law, vol. 13, 1988, 332, 351); Jackson v. People's Republic of China, 794 F.2d 1490 (11th Cir. 1986) (noting a claim of China), cited in Paust (note 2), 18.

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II. The President, Congress, and Supremacy The universally obligatory nature of customary international law logically coincided with early expectations among U.S. Founders that such law was binding on the President,13 Congress14 and, under the supremacy clause of the U.S. Constitution, 15 the states.16 Indeed, it was binding on all persons,17 with the possible exception (never expressly ruled upon) where there is an unavoidable clash between customary international law and the U.S. Constitution (when it is now assumed that the Constitution will prevail domestically).18 Each of these recognitions continued well into the twentieth century. With respect to the President, overwhelming trends in legal expectation and decision remain that the President is bound faithfully to execute customary international law, an expectation based in Article II, section 3 of the Constitution (which affirms that the President must faithfully execute the law) and the fact that international law is part of the law of the United States.19 Well into the twentieth century, no judicial or other statement is known to have questioned such a constitutionally based duty, nor has any Supreme Court opinion ever expressly accepted the view that the President can violate customary international law. 20 Such a questioning actually began to appear in lower federal court opinions only in 1968 concerning the Vietnam War (and then indirectly under a judicially created abstention doctrine known as the 'political question' doctrine) 21 and in 1985 in connection with U.S. mistreatment of aliens22 (trends of a disturbing nature that are addressed more fully below). Some textwriters wrongly assume that ambiguous language in a 1900 Supreme Court opinion in The Paquete Habana 23 affirmed that the President can violate customary inter13

See Paust (note 2), 6, 34 - 38, 88, 143 - 145,154 - 158, passim.

14

See id. , 6, 36, 38 - 39, 88 - 89, 94 - 95,120 - 123.

15

U.S. Constitution, Art. VI, cl. 2. See Paust (note 2), 6, 42 - 43, and references cited.

16 See Paust (note 2), 6,36,15 -16,42 - 44,92,121 -122,131,134 (n. 83), 139 - 140,182 - 183, 229, 333 - 334, 352, and references cited. 17

See, e.g., id., 6, 8, 15 - 16, 35 - 36, 201, 264 - 270, 393, 402 - 403, passim.

18

See id., 81, 102 - 103 (dictum in only one federal case in 1854).

19 See id., 6, 34 - 39,125,143 - 146,154 - 160, passim. Another U.S. case has been found: United States ex rel. Henderson v. Wright, 28 F.Cas. 796, 798 (C.C.W.D. Pa. 1863) (No. 16,777). Further, nothing in the text of the Constitution allows the President to violate international law. 20

They are all the other way. See Paust (note 2), 143 - 146, 154 - 160.

21

See id., 159 - 160 (η. 37).

22

See id., 150,161 - 162 (η. 62), 164 (ns. 64 - 65).

23

175 U.S. 677, 700 (1900).

Customary International Law in the United States: Clean and Dirty Laundry

national law, but the Supreme Court made no such statement;24 it actually ruled that an Executive seizure of an alien-enemy vessel abroad in time of war (at the height of Executive power) was illegal under customary international law and void, 25 and newly discovered briefs of the Executive and various claimants before the Supreme Court demonstrate that there was no intimation that the Executive was not bound by customary international law. 26 Since that decision, Supreme Court opinions have affirmed that the President must follow customary international law. 27 With respect to Congress, the judiciary apparently never questioned that customary international law conditioned congressional power 28 and that such law would prevail over inconsistent acts of Congress29 until dictum appeared in unreasoned federal district court opinions in 191930 and 1925, the latter stating that Congress might "in disregard of the law of nations, prohibit acts by foreign nationals not committed within our domain."31 Even then, it was recognized that the intent of Congress to disregard the law of nations must clearly appear from the language of the statute, an approach widely recognized today with respect to possible clashes between treaties or custom and congressional enactments.32 The treatment of aliens, it seems, especially abroad, has placed pressure on the

24

See Paust (note 2), 146 - 151, 157 - 158, 161 - 164.

25

175 U.S. at 700- 114.

26

See Paust (note 2), 149, 157 - 158, 163; Jordan J. Paust, Paquete and the President: Rediscovering the Brief for the United States, Virginia Journal of International Law, vol. 34, 1994, 981. 27

Paust (note 2), 146, 158 (n. 23), 159 - 160.

28

Seey e.g., id., 6, 38 - 39, 88 - 97, passim.

29

See id., 38 - 39, 88 - 90, 94 - 95, 120 - 123, 138 - 141; compare id., 128 (supposition of an Attorney General in 1863. Such a notion was overridden in 1865 (id., 89, 120) and it had been in opposition to expectations of Founders, Supreme Court Justices and others (id., 38 - 39, 88 89, 94 - 95, 120 - 122, 138 - 140)). 30 United Sûtes v. Bell, 248 F. 922,995 (D.C.E.D.N.Y. 1919); see Paust (note 2), 128. For a related case in 1924, see Paust, id., 38. 31 The Over the Top, 5 F.2d 838, 843 (D. Conn. 1925). Concerning this case, see Paust (note 2), 90, 127 - 129. 32 See Paust (note 2), 34, 83, 90, 99, 105, 107 - 108, 310. In The Over the Top, the statute was construed consistently with international law. See 5 F.2d at 843 - 844; see also Paust (note 2), 90. Since they are both federal law, one tries to construe international law and a federal statute consistently. For domestic legislation to prevail, it should be unavoidably inconsistent and the purpose of the legislation to supersede international law should be clear and unequivocal. Additionally, the legislation would have to be constitutional in other respects (e.g. not in violation of an amendment to the Constitution). See Paust (note 2), 99, passim.

6 GYIL 40

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historical primacy of customary international law. 33 Today, there is a significant split in federal court opinions concerning the primacy of customary law or a federal statute when the two are unavoidably inconsistent. There is sparse precedent on either side. Nonetheless, it is worth stressing that no Supreme Court opinion has expressly approved the primacy of a federal statute and a few Supreme Court opinions, plus what are still predominant trends in legal decision, actually support the primacy of customary international law. 34 It is also possible to argue for the primacy of some forms of customary law (e.g. customary norms jus cogens 35 and human rights and other obligatio erga omnes),36 as opposed to more ordinary customary law. I prefer that the evident views of the Founders and predominant trends in legal decision be maintained — that all forms of customary international law, but especially norms jus cogens and erga omnes, prevail over inconsistent federal statutes.37 The supremacy of customary international law over state law has been wellrecognized from the time of the formation of the United States.38 As explained below, such supremacy has only been questioned by the rarest of textwriters, and 33

See Part V E on Mistreatment of Aliens.

34

See Paust (note 2), 6, 38 - 39, 88 - 90, 94 - 95,99 - 101,120 - 123, 138 - 141, 152,165 - 166. A new set of cases concerning aliens places stress on utilization of international law and the near balance in the split of cases by deferring to Congress without attention to precedents on both sides of the issue and without adequate analysis of The Paquete Habana and various legal policies at stake. See note 204. One such case also demonstrates an isolationist tendency (noted elsewise in another section of this article) when addressing, but seriously misreading, The Paquete Habana. See Echeverria-Hernandez v. United States , 923 F.2d 688, 692 (9th Cir. 1991) (Supreme Court's language allegedly "does not contemplate the judicial surrender of our country's political sovereignty.") 35

1 consider jus cogens norms to be a special form of customary international law. See Paust (note 2), 368; Jordan J. Paust , The Reality of Jus Cogens, Connecticut Journal of International Law, vol. 7, 1991, 81; Paust (note 1), 154 - 155.

36 See Paust (note 2), 95 - 97, 99, 141 - 142; see also Princz v. Federal Republic of Germany, 2 F.3d at 1181. 37 38

See Paust (note 2), 94 - 97, 99 - 100.

See id , 6 - 8, 15 - 16, 36, 42 - 44, 92, 97, 121 - 122, 131, 134, 139 - 140, 179, 182 - 183, 187, 229, 233 - 234, 248, 333 - 334, 352; Louis Henkin, Foreign Affairs and the United States Constitution, 2nd ed., 1996, 157, 510 η. 20; Restatement (note 8), §§ 111(1), comment d, reporters' note 3, 115, comment e; notes 47, 119, 122. See also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793) {Jay , C.J.): prior to the Constitution, the United States had . . . become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed; in their national character and capacity, the United States were responsible to foreign nations for the conduct of each State, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to State Courts, and particularly to the Courts of delinquent States, became apparent.

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83

their preferences are without support in the views of the Founders, the text of the Constitution or federal judicial opinions. From a policy perspective, they make no sense, they would be thwarting of the efficacy of customary international law and they stand opposed to the fundamental purposes of the supremacy clause. It has often been recognized that it would be illogical and dangerous to allow fifty different states within our federated system to determine for themselves the meaning of customary international law or to choose to violate such law, leaving the United States subject to any responsive sanctions but powerless to prevent errors or infringements. Nonetheless, with respect to state competence to identify and apply customary international law, by necessary implication the very fact that under the supremacy clause state courts are bound to apply international law enhances their power to do so. The Restatement notes: Questions under international law or international agreements of the United States often arise in State courts. As law of the United States, international law is also the law of every State, is a basis for the exercise of judicial authority by State courts, and i's cognizable in cases in State courts. 39

The Restatement adds: "State courts take judicial notice of federal law and will therefore take judicial notice of international law as law of the United States."40 Earlier in our history, the Supreme Court of Kentucky devised a remedy for an act of war by Confederate soldiers in violation of the law of nations, the court noting: "[t]here is nothing in the Federal Constitution which deprives a State court of power to decide a question of international law incidentally involved in a case over which it has jurisdiction." 41 Today, 28 U.S.C. § 1441(b) allows removal of an action from a state to a federal court, but per terms of the statute only if jurisdiction is actually "founded on a claim or right arising under" international law. Thus, removal is not required if international law is only incidentally involved.42 39

Restatement (note 8), § 111, comment d; Henkin (note 38), 422 n. 3, 423, 428, 509 n. 17.

40

Id., § 113, comment b. On judicial notice of international law, see Paust (note 2), 7,26,46 48, 132, 157, 265, 271. 41

Christian County Court v. Rankin & Tharp, 63 Ky. (2 Duvall) 502, 505 - 506 (1866), quoted more fully in Paust (note 2), 200. Other state court cases of a related nature are cited id., 200 201, 263 - 264; see also note 122. 42

See Marathon Oil Co. v. Ruhrgas, 1997 U.S. App. Lexis 13676 (June 10, 1997) (under "the well-pleaded complaint rule," if the complaint alleges only state law causes of action, removal to a federal court will not obtain unless there is "a cause of action necessarily requiring 'the resolution of a substantial question of federal law'" and mere intervention by Germany did not meet the test); Torres v. Southern Peru Copper Corp., 113 F.3d 540 (5th Cir. 1997); Baker v. Bell Helicopter/Textron, Inc., 907 F.Supp. 1007, 1011 - 1012 (N.D. Tex. 1995); see also Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1348 - 1349 (S.D. Tex. 1995).

6»

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III. Incorporation Though not widely understood, federal judicial power to identify, clarify and apply customary international law in cases otherwise properly before the courts has a constitutional base.43 Under Article III, section 2, clause 1 of the Constitution, not only might matters involving customary international law arise under other parts of the Constitution as such or under treaties, but they can also arise as, and under the phrase, "the Laws of the United States." Indeed, as recognized by John Jay , the first Chief Justice of the U.S. Supreme Court, this same phrase, 'the laws of the United States', includes the customary 'law of nations'.44 Thus, although treaties have an express constitutional base in Article III, a primary base for judicial incorporation of customary international law can be found in the phrase "Laws of the United States" contained in the same article and also in Article VI, clause 2 of the Constitution, which affirms that both treaties and "the Laws of the United States" are "the supreme Law of the Land." As the Restatement rightly recognizes: "Matters arising under customary international law also arise under "the laws of the United States', since international law is 'part of our law' . . . and is federal law." 45 Thus, cases "arising under customary international law" are "within the Judicial Power of the United States under Article III, section 2 of the Constitution;" 46 and such law, "while not mentioned explicitly in the Supremacy Clause," is supreme federal law within the meaning of Article VI, clause 2. 47 For these reasons, the phrase "laws . . . of the United States" contained in 28 U.S.C. § 1331 gives the district courts original jurisdiction over all civil cases arising under customary international law and 43 This paragraph and the next three paragraphs are borrowed from my treatise. Paust (note 2), 6 - 8. Full citations can be found in corresponding footnotes in the treatise. 44 Henfield's Case, 11 F.Cas. 1099, 1101 (C.C.D. Pa. 1793) (No. 6,360) (Jay , C.J.). See also Paust (note 2), 40 - 41 (n.44); note 46. An early case had also expressly related the duty to incorporate customary international law into the Constitution: "courts . . . [i]n this country . . . are bound, by the Constitution of the United States, to determine according to treaties and the law of nations, wherever they apply." Waitev . The Antelope, 28 F.Cas. 1341,1341 (D.C.D. S. Car. 1807) (No. 17,045). 45

Restatement (note 8), § 111, reporters' note 4; see also Paust (note 2), 41 - 42 (n. 45).

46

Restatement (note 8), § 111, comment e; see also Paust (note 2), 42 (n. 46); note 44.

47

Restatement (note 8), § 111, comment d; see also Henkin (note 38), 157; Paust (note 2), 42 43 (n. 47). Technically, Article V I guarantees the supremacy of laws thus covered over any inconsistent law of states within the United States (e.g. state constitutions, state statutes, administrative regulations or common law) and political subdivisions (e.g. counties and cities). However, Article V I has also been cited by the federal judiciary while recognizing that customary international law is supreme federal law within the federal courts. The first such recognition seems to have been Ware v. Hylton, 3 U.S. (3 Dall.) 199, 237, 244, 276 (1796) ("national or federal judges are bound by duty and oath to the same conduct").

Customary International Law in the United States: Clean and Dirty Laundry

provides a general statutory base for judicial incorporation of customary international law. 48 Thus, a general jurisdictional competence exists whether or not other statutes, such as the Alien Tort Statute (Alien Tort Claims Act), 49 refer expressly to the 'law of nations' or to customary international law and thus provide additional bases for federal jurisdiction or additional substantive law. To stress a point, customary international law that provides rights or remedies, as law of the United States, is federal substantive law and federal courts have subject matter jurisdiction with respect to such law. Further, customary international law is federal law and supreme law of the land whether or not other more technical jurisdictional competencies also pertain (such as diversity or admiralty jurisdiction). For these reasons also, customary international law has been directly incorporate, at least for civil sanction and jurisdictional purposes, without the need for some other (or any) statutory base.50 Indeed, direct incorporation by the Supreme Court, at least while exercising its original jurisdiction, can rest on Articles I I I and V I alone. While customary international law had also been directly incorporable for criminal sanctions early in our history and such incorporation is still theoretically possible, the matter is not beyond dispute.51 Another form of direct incorporation has also recognizably enhanced and/or limited the jurisdiction of federal courts. Customary principles of jurisdictional competence (e.g. jurisdiction to prescribe) have been used in this manner precisely because such competencies and requirements under international law, being also law of the United States, are relevant to full inquiry about judicial power under Article III of the Constitution and the reach and limits of federal court jurisdiction. 52 Since international law is law of the United States in several senses noted above, the judiciary also has the power to take judicial notice of, and thus to identify 48

Restatement (note 8), § 111, comment e and reporters' note 4; Henkin (note 38), 157; see also Paust (note 2), 43 (n. 48); Louis Henkin , International Law as Law in the United States, Michigan Law Review, vol. 82, 1984, 1555, 1561; Kenneth C. Randall , Federal Questions and the Human Rights Paradigm, Minnesota Law Review, vol. 73,1988,349,351.28 U.S.C. § 1331 reads in pertinent part: "The district courts shall have original jurisdiction of all civil actions arising under t h e . . . laws, or treaties of the United States." Compare Kadic v. Karadzic , 70 F.3d 232,246 (2d Cir. 1995) (not deciding whether § 1331 "provides an independent basis for subject matter jurisdiction over all claims alleging violations of international law," but noting that other courts have "upheld section 1331 jurisdiction for international law violations"). 49

28 U.S.C. § 1350; 5«? also Kadic v. Karadzic , 70 F.3d 232, 238 (2d Cir. 1995); 1 Op. Att'y Gen. 57, 58 - 59 (1795). 50

See Paust (note 2), 44 (n. 50).

51

See id., 44 - 45 (η. 51).

52

See id., 45 - 46 (η. 52).

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and clarify, customary international law.53 More importantly, such attributes of international law and judicial power compel recognition that the judiciary is bound to identify, clarify and apply customary international law in cases or controversies otherwise properly before the courts. As Justice Gray recognized in The Paquete Habana: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. 54

Similarly, in Hilton ν . Guyot , he affirmed: International law in its widest and most comprehensive sense . . . is part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination. The most certain guide, no doubt, for the decision of such questions is a treaty or a statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. 55

Other recognitions of such a judicial obligation have existed throughout early U.S. history, 56 and have found expression in more recent federal opinions.57 The other primary form of incorporation, indirect incorporation, involves the use of international law not as a direct basis for a civil claim or criminal conviction, but indirectly as an aid to interpret other law or instruments. It happens to be the most frequently used form of incorporation throughout U.S. history. 58 When used indirectly, customary international law might be used to identify or clarify the content of a constitutional provision, a federal statute, a state constitution or statute, a private contract, common law or any relevant legal instrument. In a sense, indirect incorporation can provide one type of interface between so-called unwritten and written law. A type of indirect incorporation also pertains when U.S. courts use customary law as a background for interpreting treaty law of the United States which, of course, is quite preferable. 59 Some U.S. statutes also contain language that compels one to identify relevant international norms that are incorporated through the language of the statute, whether 53

See id ., 46 - 47 (n. 53).

54

175 U.S. 677, 700 (1900) (emphasis added). See also Paust (note 2), 47 (n. 54).

55

Hilton v. Guyot , 159 U.S. 113, 163 (1895) (Gray, J., opinion) (emphasis added).

56

See Paust (note 2), 47 (n. 56).

57

See id. , 47 - 48 (n. 57).

58

See id., 62, 94, 193, 212 - 213, 370.

59

See note 185.

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the legislation addresses civil or criminal matters. Statutes that expressly refer to international law (e.g. the 'law of nations') or to phrases obviously based in or part of international law (e.g. the 'laws of war') are examples. More generally, the power of Congress to "define and punish" violations of international law allows Congress to create legislation implementing international criminal law.60 When exercising such a power, Congress need not declare in the legislation that it is incorporating international law.61 Further, the legislation might specify the nature and elements of an offense with as much detail as is found in a treaty or customary law, provide greater detail or simply incorporate international law by reference. Well-known criminal statutes that merely 'incorporate by reference' include the federal statutes proscribing "piracy as defined by the law of nations"62 and violations of the "laws of war." 63 A newer statute also incorporates "grave breaches" of the 1949 Geneva Conventions by reference 64 (as explained further below). It is constitutionally permissible and not unusual in the United States for legislation to incorporate international crimes by reference, i.e. y without identifying each such crime, each (or any) element of an offense or types of penalties that might obtain,65 nor does this practice appear to be impermissible or unusual at the international level or in other countries.66 Federal statutes permitting civil sanctions against violators of international law and incorporating international law by reference also exist. Domestically, such a statute forms the direct basis for a civil suit against the perpetrator, while international normative content and even relevant sanctions or remedies are incorporated indirectly through the statutory base. A better-known example is the Alien Tort Statute (Alien Tort Claims Act [ATCA]) noted above. As explained in another writing, 67 the ATCA has been in existence in the United States since 1789 and had achieved early, precedential attention,68 but significantly increased use of the ATCA has occurred 60

See U.S. Constitution, Art. I, sec. 8, cl. 10.

61

See, e.g., United States v. Arjona, 120 U.S. 479, 488 (1887).

62

1 8 U.S.C. § 1651; United States v. Smith , 18 U.S. (5 Wheat.) 153, 158 - 162 (1820).

63

See 10 U.S.C. §§ 818, 821; Paust (note 2), 409, 411 - 412; Ex parte Quirin, 317 U.S. 1, 27 31 (1942). 64

See 18 U.S.C. § 2401 (1996).

65

See, e.g., Ex parte Quirin, 317 U.S. 1, 27 - 30 (1942); United States v. Smith, 18 U.S. (5 Wheat.) 153,158 - 162 (1820), extracts reprinted in Jordan J. Paust/M. CherifBassiouni, etal., International Criminal Law: Cases and Materials, 1996, 200 - 203 [hereinafter ICL]; see also note 66. 66

See, e.g., Jordan J. Paust, It's N o Defense: Nullum Crimen, International Crime and the Gingerbread Man, Albany Law Review, vol. 60, 1997, 657. 67

Jordan J. Paust, Suing Karadzic, Leiden Journal of International Law, vol. 10,1997,91,92 94. The following portion of this and the next paragraph are borrowed therefrom. 68

See Bolchos v. Darrel, 3 F.Cas. 810 (D.S.C. 1795) (No. 1,607); 1 Op. Att'y Gen. 57, 58 - 59

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since the landmark decision in Fildrtiga v. Pena-Irala in 1980.69 The ATCA requires that a plaintiff be an alien, although a defendant can be a U.S.70 or foreign 71 perpetrator of a private 72 or public73 character. It provides that an alien can sue for what we term a 'tort' or 'wrong' 74 "in violation of the law of nations or a treaty of the United States."75 With respect to the ATCA, the Second Circuit followed what is now a long line of decisions recognizing that the statute is more than a jurisdictional statute in that it also creates a domestic cause of action concerning violations of international law.76 In partial contrast, the Torture Victim Protection Act (TVPA)77 allows U.S. or alien plaintiffs to sue, but merely for "torture" or "extrajudicial killing," as defined in the statute. International law is not directly tied to the definitions, but the preamble (1795). See also Paust (note 2), 207; Jordan J. Paust , Litigating Human Rights: A Commentary on the Comments, Houston Journal of International Law, vol. 4, 1981, 81, 84 - 85. 69

630 F.2d 876 (2d Cir. 1980).

70

See, e.g., Bolchos v. Darrel, 3 F.Cas. 810 (D.S.C. 1795) (No. 1,607); 26 Op. Att'y Gen. 250 (1907); 1 Op. Att'y Gen. 57 (1795). 71

See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996); Kadic v. Karadzic , 70 F.3d 232 243 - 245 (2d Cir. 1995); Hilao v. Estate of Marcos (In re Estate of Ferdinand Marcos , Human Rights Litigation), 25 F.3d 1467 (9th Cir. 1994); Amerada Hess Shipping Corp. v. Argentine Republic , 830 F.2d 421 (2d Cir. 1987); Fildrtiga v. Pena-Irala , 630 F.2d 876 (2d Cir. 1980); Mushikiwabo v. Barayagwiza , U.S. Dist. Lexis 4409 (S.D.N.Y. 1996); Xuncax v. Gramajo , 886 F.Supp. 162 (D. Mass. 1995); Paul v. Avril, 812 F.Supp. 207 (S.D. Fla. 1993); Ford v. SuarezMason, 672 F.Supp. 1531 (N.D. Cal. 1987); Adra v. Clift, 195 F.Supp. 857, 865 p . Md. 1961).

72 See, e.g., Mushikiwabo v. Barayagwiza-, Kadic v. Karadzic, 70 F.3d at 237 - 243; Adra v. Cl 195 F.Supp. 857; cases and opinions cited at note 70. See also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,438 (1989) (Rehnquist, C.J.); Linder v. Portocarrero , 963 F.2d 332, 336 - 337 (11th Cir. 1992) (the Contras); Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991) (the PLO); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985) (Scalia, J., dictum). 73

See, e.g., cases cited at note 71.

74

See Kadic v. Karadzic, 70 F.3d at 238; Fildrtiga v. Pena-Irala, 577 F.Supp. 860, 862 (E.D.N.Y. 1984); Paust (note 2), 207 - 208, 283 - 284; Paust (note 67), 83 - 86, 91. 75

28 U.S.C. § 1350.

76

See, e.g., Abebe-Jira v. Negewo, 72 F.3d at 847 - 848; Hilao v. Estate of Marcos, 25 F.3d at 1474 -1475; Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d at 424 - 425; Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 777 - 780 (D.C. Cir. 1984) (Edwards, J., concurring); Fildrtiga v. Pena-Irala, 630 F.2d at 880 - 882, 884 - 885, 887; Xuncax v. Gramajo, 886 F.Supp. at 179; Paul v. Avril, 812 F.Supp. at 212; Forti v. Suarez-Mason, 672 F.Supp. at 1539 -1540; Guinto v. Marcos, 654 F.Supp. 276, 279 - 280 (S.D. Cal. 1986); Handel v. Artukovic, 601 F.Supp. 1421, 1426 - 1427 (C.D. Cal. 1985); 26 Op. Att'y Gen. 250, 252 - 253 (1907); 1 Op. Att'y Gen. 57, 58 (1795); Paust (note 2), 206 - 207,281 - 282, passim-, see also Kadic v. Karadzic, 70 F.3d at 236,238; but see Tel-Oren v. Libyan Arab Republic, 726 F.2d at 798 (Bork, J., concurring). 77

P.L. No. 102 - 256, 106 Stat. 73 (1992), codified at 28 U.S.C. § 1350 (Supp. V 1993).

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to the Τ VPA expressed a purpose "[t]o carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action" for covered infractions — thus demonstrating the relevance of international human rights law for interpretive purposes and an executing role for the legislation concerning any non-self-executing human rights treaties and the U N Charter. 78 Also unlike the ATCA, the TVPA reaches only those perpetrators who act "under actual or apparent authority, or color of law, of any foreign nation."79 The court in Karadzic has rightly recognized that 'apparent authority' and 'color' are less than actual, official state authority or status,80 the court noting that even the category of 'official' torture may likely require "merely the semblance of official authority" or the circumstance where one is "purporting to wield official power" even if "statehood in all its formal aspects" does not exist.81 Further, "[a] private individual acts under color . . . when he acts together with state officials or with significant state aid."82 Thus, the court recognized, plaintiffs "are entitled to prove their allegations that Karadzic acted under color of the law of Yugoslavia by acting in concert with Yugoslav officials or with significant Yugoslavian aid."83 What the court did not mention was the fact that the word 'nation' is a term of art and is not the same as the word 'State'.84 For example, the United States has treaties with certain Indian nations, although they lack the status of States. Similarly, the international community recognizes, among others, the existence of a Palestinian na78

See, e.g. y Paust (note 2), 372,385; Thomas M. Franck/Michael J. Glennon, Foreign Relations Law and National Security, 1993,166 -167 (reproducing legislative history contained in Senate Report No. 249,102d Cong., 1st Sess. 3 (1991)). When Congress implements international law, it need not refer to such law or to the fact of implementation. See, e.g., United States v. Arjona , 120 U.S. 479, 488 (1887). 79

TVPA, section 2(a). Domestically, both the TVPA and A T C A (as legislation inconsistent with mere common law) should prevail over a common law doctrine of 'act of state' (which has otherwise limited the efficacy of some claims brought in U.S. courts addressing public acts of a foreign State effectuated within its own territory). See Paust (note 67), 95 - 96 (n. 52). 80

70 F.3d at 244 - 245.

81

70 F.3d at 245.

82 83 84

Id. Id.

See, e.g.yj. L. Brierly , The Law of Nations, 6th ed., 1955, 126 - 127; Paust (note 2), 11 -12. It was claimed in a Law Professors' Brief before the Second Circuit in Kadic v. Karadzic (initially drafted by this Author) that "Karadzic was arguably acting under 'apparent authority' of a 'nation' of Serbs either questing for a greater Serbia or within a 'nation' of Serbs located also partly within the state of Bosnia-Herzegovina." Memorandum Amicus Curiae of Law Professors, Kadic v. Karadzic, No. 94-9069,17 January 1995,29. The Law Professors' Brief also documented the fact of private liability for numerous types of violations of customary international law, a point affirmed by the court. See 70 F.3d at 239 - 243.

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tion, although statehood status, however near, has not been formally recognized. The express reach of the TVPA is therefore broader than even the court's language suggests, especially since those who act "under actual or apparent authority . . . of any foreign nation" do not have to act under actual or apparent authority of any State. Moreover, torture proscribed under human rights law, like human rights law generally, is not limited to State actors and can reach various private perpetrators. 85 As noted at the beginning of this Article, customary international law has long imposed duties on private individuals. Thus, it is somewhat surprising to see that some U.S. courts, while following Karadzic , consider it to be something of a landmark case with respect to private liability. One should probably attribute this phenomenon to a general lack of familiarity with the nature of customary international law, relevant views of the Founders and trends in judicial decisionmaking since the formation of the United States. IV. Use of ICJ and PCIJ Opinions and Decisions In another article, 861 have recently documented general patterns of use of ICJ and PCIJ decisions and opinions by our federal and state courts. The use of these by the federal judiciary is informing. Despite a supposed lack of stare decisis and the United States withdrawal from a general jurisdictional competence of the International Court, international judicial decisions and opinions play a significant role in United States courts. Since the creation of the International Court, forty-two cases in federal courts87 have applied fifteen ICJ decisions or advisory opinions as evidence of international normative content.88 Within the federal judiciary, such uses have appeared somewhat more frequently in U.S. circuit courts. There have in fact been six relevant uses in the 85

See, e.g., Jordan J. Paust, The Other Side of Right: Private Duties under Human Rights Law, Harvard Human Rights Journal, vol. 5, 1992, 51, 60 - 61, otherwise cited in Kadic v. Karadzic, 70 F.3d at 239 concerning private duties under customary international law. 86

This section is borrowed from the article: Jordan J. Paust, Domestic Influence of the International Court of Justice, Denver Journal of International Law and Policy, vol. 25, 1997, forthcoming. 87

The cases are cited in Paust (note 86). Not listed among the forty-two is a Court of Claims decision addressing the need to interpret a treaty by using the ordinary meaning of terms used in the text of a treaty. See Coplin v. United States, 6 Ct. CI. 115, 126 n. 12 (1984), citing 1950 Advisory Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations, 1950 ICJ 4, 8. 88

The fifteen ICJ decisions or advisory opinions are listed in Paust (note 86), Appendix I. Concerning use in other countries, see, e.g., Thomas M. Franck/Gregory H. Fox, International Law Decisions in National Courts, 1996; Christoph H. Schreuer, Decisions of International Institutions before Domestic Courts, 1981, 85 - 106.

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91

Supreme Court, 89 nineteen uses in the circuit courts,90 sixteen uses in the district courts and one citation in the U.S. Court of Trade. Utilization of ICJ decisions or opinions appears most often in the text of a judicial opinion, and they appear far less frequently merely in a footnote. Further, utilization has most often appeared in main opinions, with use in only four dissenting opinions91 (or in some ten percent of the cases). Citations to two ICJ decisions or opinions appear in only two federal cases;92 the rest of the federal cases contain merely one citation. With respect to frequencies of use in given decades, most significant uses appear during the 1980s. There were five cases in the 1990s, twenty-four in the 1980s, four in the 1970s, seven in the 1960s and only two in the 1950s. Thus, trends in frequency of use demonstrate a greater use of ICJ decisions and opinions for normative guidance in the last two decades. It would be speculative to argue why there was greater attention to the ICJ in the 1980s. The noticeable pattern may merely be related to the types of issues raised by claimants. The types of ICJ decisions and opinions utilized include ten State-to-State cases and five advisory opinions ranging in dates from 1949 to 1988.93 Most of these did not directly involve actions or responsibilities of the United States, although nearly half did. This is not surprising given the general use of ICJ decisions and opinions to identify and clarify international law, especially customary international law, that is relevant to a case or controversy brought before a U.S. court. The types of international norms addressed have been varied, demonstrating a general relevance of ICJ decisions and opinions and a lack of special or peculiar patterns of use with respect to subject matter. Also of interest is the fact that the precursor to the ICJ, the Permanent Court of International Justice (PCIJ) under the League of Nations (which the United States never joined), has been cited in eighteen federal cases from the 1930s to the 1990s. Like references to the ICJ, most utilization of the PCIJ decisions involves the identification and clarification of customary international law. During this period, there 89 See Paust (note 86). The Justices were: Black , Blackmun , Harlan , O'Connor , Stevens and Stewart. 90 More frequent use appears in the D.C. Circuit (eight cases), followed by the Ninth (five cases), Fifth (two cases), Seventh (two cases), First (one case) and Eighth (one case) Circuits.

91 See Princz v. Federal Republic of Germany , 26 F.3d 1166, 1180, 1184 (D.C. Cir. 1994) (Wald, J., dissenting); Spiess v. C. Itoh & Co., 643 F.2d 353, 365 (5th Cir. 1981) (Reavley , J., dissenting); Agee v. Muskie , 629 F.2d 80,90 (D.C. Cir. 1980) (MacKinnon, J., dissenting); Rogers v. Société Internationale pour Participations Industrielles et Commerciales, S.A., 278 F.2d268 (1960 (Fahy, J., dissenting). All of the dissents are in circuit court cases. 92

See Princz v. Federal Republic of Germany , 26 F.3d 1166, 1180, 1184 (Wald, J., dissenting) (Advisory Opinion on Reservations to the Genocide Convention and Barcelona Traction ); Tre Cruz v. Zapata Ocean Resources, 695 F.2d 428,433 and ns. 8 - 9 (9th Cir. 1982) (Nottebohm and U.N. Reparations ). 93

See Paust (note 86), Appendix I.

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have been citations to eight PCIJ decisions.94 Not unlike the general pattern of use of ICJ decisions and opinions, most of the federal cases citing the PCIJ appear in the 1980s (nine cases)95 and only one cite appears in the 1990s. PCIJ citations occur in two Supreme Court cases, twelve circuit court cases96 and four district court cases. Like ICJ citations, most PCIJ cites are in opinions of the relevant U.S. court — with only one in a dissenting opinion, and that in a federal case citing the same PCIJ decision in the opinion of the federal court. 97 Two cases involved citations in argument by counsel.98 In no federal case has there been any questioning of the use of ICJ or PCIJ decisions or opinions, perhaps to the chagrin of certain law professors, as noted below. V. Professorial Attacks For a few U.S. law professors, the use of customary international law by the federal judiciary without a direct and fairly express or subject-specific statutory base for incorporation is disturbing. Recall, however, that 28 U.S.C. § 1331 provides a general statutory base for incorporation. Some complain that customary international law, highly valued by our Founders99 and the most democratic form of international law, 100 is somehow antidemocratic.101 Exactly which customary laws are supposedly 94

See id. y Appendix Π.

95

Use in various time periods are: 1990s (one case), 1980s (nine cases), 1970s (one case), 1960s (four cases), 1950s (one case), 1940s (no cases), 1930s (two cases, arguments of counsel). 96 These appear in fairly equal numbers in the Second, Fifth, Eleventh and D.C. Circuits (in four, three, two and three cases respectively).

97 See First Fidelity Bank , N.A. v. Government of Antigua & Barbuda, 877 F.2d 189, 192 (2d Cir. 1989); id. at 198 n. 1 (Newman, J., dissenting). Both opinions cited Legal Status of Eastern Greenland (Denmark v. Norway), 1933 PCIJ, Ser. A/B, No. 53, for the proposition that, in certain circumstances, a State can be bound by its officials' unauthorized actions. 98

See Smyth v. United States, 302 U.S. 329,343 (1937) (citing Case of Serbian Loans); Norman v. Baltimore & Ohio R.R. Co., 294 U.S. 240, 249, 277 (1935) (citing The Serbian Loans and The Brazilian Loans). 99

See, e.g., Paust (note 2), vii, 1, 5 - 6, 8,10,15 -17,34 - 37,40 - 45,47 - 50,120 - 123,139,144 - 145, 154 - 155, 170 - 176,182 - 183, 214 - 224, passim, compare id. , 132 - 133. 100 101

Id., 2 - 3 , 11, 13 -14, and references cited.

See, e.g., Curtis A. Bradley/Jack L. Goldsmith , Customary International Law as Federal Common Law: A Critique of the Modern Position, Harvard Law Review, vol. 110,1997, 815, 821, 857 - 858, 868, 871; Phillip R. Trimble, A Revisionist View of Customary International Law, U.C.L.A. Law Review, vol. 33, 1985, 665, 707 - 709, 713 - 716, 721 - 723, 731. With respect to democratic values, it is worth emphasizing that no single institutional arrangement necessarily represents authority or guarantees a democratic functioning or outcome. See Paust (note 2), 462 - 463; see also James A. R. Nafziger, Political Dispute Resolution by the World Court, With Reference to United States Courts, Denver Journal of International Law and

Customary International Law in the United States: Clean and Dirty Laundry

threatening to our democracy, however, has not been identified — certainly none of those utilized by our courts for more than 200 years, and such laws have been many and have addressed numerous subjects, involving rights, competencies and duties, and both private and public actors within the United States and abroad.102 The closest to a claim concerning specific customary norms is implicit in the proclaimed worry of Professors Curtis Bradley and Jack Goldsmith over, of all things, "a large body of . . . human rights" and related prohibitions of slavery and genocide.103 Despite their concerns, there has been significant attention to a rich and wide array of human rights ever since the formation of the United States.104 Importantly, Chief Justice Marshall of the U.S. Supreme Court had recognized in 1810 that our judicial tribunals "are established . . . to decide on human rights." 105 Federal courts had been using human rights precepts prior to the Chief Justice's affirmation of judicial authority and responsibility, and have done so ever since. Given my disagreement with much of the recent work by Professors Bradley and Goldsmith , it is worth highlighting several points of disagreement and concern. Much of their reasoning rests on an erroneous premise that customary international law within the United States was and is merely "general common law." 106 Because customary international law is not mere 'common law' but part of the 'law of the land* Policy, vol. 25,1997, forthcoming. At any given time, legislative bodies may merely represent special interests. The same pertains with respect to administrative bodies. See, e.g., Jim Rossi , Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, Northwestern University Law Review, vol. 92, 1997, 173. Moreover, U.S. Founders had worried about the dangers of oppression and denial of rights by a government that is a mere instrument of the majority. See, e.g., note 140. One can conceive of a democracy in complete isolation, although with an increasing global interdependence such a conception is ethereal. Nonetheless, to paraphrase the European Court of Human Rights, one can scarcely conceive of a democracy without fundamental human rights. See Golder v. United Kingdom, 18 Eur.Ct.H.R., ser. A, paras 34 - 35 (1975) ("One can scarcely conceive of the rule of law without there being a possibility of having access to the courts... ."); see also panel discussion, Democracy and Legitimacy — Is There an Emerging Duty to Ensure a Democratic Government in General and Regional Customary International Law?, Contemporary International Law Issues: Sharing Pan-European and American Perspectives, 1992, 126 - 141; Paust (note 2), 170 - 176, 180, 194, 219 - 220, 364, 379 n.14. 102 For merely a partial listing of earliest subjects, including human rights, $ee, e.g., Paust (note 2), 8, 48 - 50. 103

See Bradley/Goldsmith

104

See, e.g., Paust (note 2), 8, 169 - 203, 214 - 272, 323 - 325, passim.

105

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810).

106

(note 101), 832, 841.

See Bradley/Goldsmith (note 101), 820, 823 - 824,827, 844, 849; but see Paust (note 2), 5,30 - 33, 176, passim. The critical analysis of statements and preferences of Professors Bradley and Goldsmith which follows has been developed from a footnote in Paust (note 86) outlining several points of disagreement.

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and 'laws of the United States' within constitutionally based judicial authority and responsibility, 107 their nearly obsessive focus on two cases addressing merely common law, Erie R. R. Co. v. Tompkins 108 and Swift v. Tyson, 109 neither of which addresses international law or has had any demonstrated impact on actual patterns of federal court use of customary international law, is significantly flawed and misleading. Additionally, use of what are merely 'common law', 'law merchant', or 'maritime' and 'admiralty' cases and arguments of others who rely on such cases is seriously misplaced.110 Their reference to United States ν . Hudson & Goodwin ,111 a case addressing mere 'common law' and making no mention of the law of nations or international law, is but one example.112 Indeed, actual patterns of use of customary international law throughout our history demonstrate that what they term the "modern position" 113 was generally endorsed long ago and has been evidenced fairly consistently in the continuous use of customary international law by federal courts for more than 200 years.114

107

See Paust (note 2), 5 - 8, 30 - 50, 176.

108

304 U.S. 64 (1938). According to Professors Bradley and Goldsmith , "Erie declared an end to federal court creation of general common law and held that, '[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State/" Bradley/Goldsmith (note 101), 827. They argue that customary international law is not governed by the Constitution or by acts of Congress, is not state law, is not "federal law" (see id., 820,834 n. 125, 852), and is merely "general common law" inapplicable in lower federal courts after Erie. 109

41 U.S. (14 Pet.) 1 (1842).

110

Compare Bradley/Goldsmith (note 101), 822, 824, 850 n. 222, 851 and ns. 230 - 231, 852 856, 859 with Paust (note 2), 30 - 33. Concerning mere 'maritime* law, which was not customary international law, see Paust, id., 33 (η. 34). 111

11 U.S. (7 Cranch) 32, 32 - 33 (1812).

112

Compare Bradley/Goldsmith (note 101), 851 and n. 231 (and other cases cited therein) with Paust (note 2), 32 - 33, 44 - 45; Ex parte Quirin , 317 U.S. 1, 27 - 28 (1942): From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. 113

See Bradley/Goldsmith (note 101), 816 - 817, 834, 837, 868. What they term the "modern position" is actually the traditional recognition that customary international law has the status of federal law, utilizable directly or indirectly by federal courts within the United States. 114 See Paust (note 2), 1,5 - 50,201 - 202,264 - 270; see also Bradley/Goldsmith (note 100), 822 - 823 (admitting: "[throughout the nineteenth and early twentieth centuries, federal courts applied CIL in a variety of contexts . . . usually in the absence of statutory . . . authorization . . . [and also] as part of 'our law* or the 'law of the land* . . . "), 834 n.125, 850 - 851 and ns. 223, 229 - 230; Michael J. Glennon , book review, 95 Michigan Law Review, 1997, 1542, 1552 ("hardly modern").

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Their disfavored theory requires that "all law applied by federal courts . . . be either federal law or state law" 115 and recognition that "if CIL [customary international law] is not federal law, then there is no basis for the federal judiciary to enforce CIL. .. ." 116 If so, the inescapable fact of continued use of customary international law in the federal courts and overwhelming patterns of supportive expectation, regardless of CIL's domesticated name or classification (which clearly has not been merely state law), speak loudly with respect to the general validity of their theory. Moreover, this use continued after Erie and its supposedly relevant reasoning. Additionally, if Erie y which is not on point, requires that mere 'common law' have some sort of authorization, 117 such a need is met with respect to customary international law given its constitutional bases in Articles III and V I of the U.S. Constitution as well as in other constitutional provisions and various federal statutes (also providing subject matter jurisdiction). 118 A thorough inquiry into actual patterns of legal expectation documented in numerous federal court opinions demonstrates that the sweeping claim that customary international law has lacked supremacy consequences,119 lacked jurisdictional consequences120 and lacked "other consequences of federal law" 121 is 115

Bradley/Goldsmith

116

Id. y 846. This is their real preference. See td.y 847.

117

(note 100), 852.

Id. y 852 and n. 243 (o.k. if see also note 108.

governed by the Federal Constitution'"), 855 - 856 and n. 263;

118

See Paust (note 2), 5 - 8, 30 - 50,95,174 - 175,186,192 - 194,222,246 - 248, passim; Edwin D. Dickinson , The Law of Nations as Part of the Law of the United States, 101 University of Pennsylvania Law Review, 1952, 26, 48 ("the Constitution accepted the Law of Nations as national law ") notes 45 - 48 and accompanying text. Specifically, customary international law has various bases in the Constitution as well as in acts of Congress (either of which should satisfy the language found in Erie. See note 108.). The more general statutory base is 28 U.S.C. § 1331. 119 Compare Bradley/Goldsmith (note 101), 821, 824 - 825, 851 with Paust (note 2), 6 - 7, 15 16, 36, 42 - 43, 44 (universally binding, all tribunals), 92, 97, 121 - 122 (also, the view of the Continental Congress noted therein had been similar to Philip Jessup's policy argument mentioned in Bradley/Goldsmith y id. y 859), 131, 134, 139 - 140, 179, 182 - 183, 187, 229, 248 (n. 391), 333 - 334, 352; Restatement (note 8), §§ 111, comment d, 115, comment e; Louis Henkin, International Law: Politics and Values, 1995, 69; notes 122, 133. 120

Compare Bradley/Goldsmith (note 101), 821 with Paust (note 2), 8, 34, 42, 45 - 46, 201 202,264 - 270; Hudson v. Guestier, 8 U.S. (4 Cranch) 293,294 (1807); Church v. Hubbart, 6 U.S. (2 Cranch) 187 (1804) (counsel); United States v. Richard Peters, District Judge, 3 U.S. (3 Dall.) 121, 129 - 132 (1795). 121

Compare Bradley/Goldsmith (note 101), 821 with Paust (note 2), 5 - 8, 29 - 50, 143 - 146, 154 - 160, 201 - 202, 264 - 270. A more informing quotation from The Federalist No. 3 than that contained in Paust (note 2), 34 n. 38, is: "Under the national government. . . the laws of nations, will always be expounded in one sense . . . [and there is] wisdom . . . in committing

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erroneous. Further, if general common law has lacked such consequences and did not bind the states, the continuous and significant use of the law of nations by state courts, often with recognition that such law is binding, and related recognitions by the federal judiciary also stand in opposition to claims that customary international law has been mere common law. 122 Similarly, if 'general common law' has not been such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national g o v e r n m e n t . . . T h e Federalist No. 3, 62 {John Jay) (J. C. Hamilton ed. 1868). 122

One case that they cite (see Bradley/Goldsmith (note 101), 824 n. 53), Ker v. Illinois , 119 U.S. 436, 444 (1886), actually declares that a state court "is bound to take notice" of the law of nations, "as . . . [are]. . . the courts of the United States." Id. Another case cited (see Bradley/ Goldsmith , id., 824 n. 48), Huntington v. Attrill , 146 U.S. 657, 683 (1892), actually recognizes that questions of international law involve concurrent duties since they "must be determined in the first instance by the court, state or national, in which the suit is brought," adding that such questions can be brought in federal courts and the federal court "must decide for itself, uncontrolled by local decisions." Id. For additional recognition that states were bound by the law of nations, see, e.g., notes 38, 119; Manchester v. Massachusetts, 139 U.S. 240, 264 (1891) (states bound by law of nations in defining their boundaries); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 560 (1857) (McLean, J., dissenting) ("our States . . . are independent,... subject only to international laws... "); United States ex rel. Wheeler v. Williamson, 28 F.Cas. 686, 692 p . C . E . D . Pa. 1855) (No. 16,726) (each state "is bound by . . . the law of nations/ What it could not do if freed from federative restrictions, it cannot do now; every restraint upon its policy... binds it still... "); Thompson v. Doaksum, 68 Cal. 593, 596,10 P. 199,201 (1886) (obligation to protect private rights under the law of nations "passed to the new government"); Teschemacher v. Thompson, 18 Cal. 11,22-23 (1861) (inviolability of property rights under the law of nations); Territory ex rel. Wade v. Ashenfelter, 4 N . M . 93, 148, 12 P. 879 (1887) (New Mexico judicial duty "to maintain only those principles of l a w . . . proper for the protection of human rights... "); Republic of Argentina v. City of New York, 25 N.Y.2d 252,259,250 N.E.2d 698, 700, 303 N.Y.S.2d 644, 647 (Ct. of App. N.Y. 1969) (action "in this case is mandated by the rules of international law. It is settled t h a t . . . all domestic courts must give effect to customary international law."); De Simone v. Transportes Maritimos do Estado, 200 A.D. 82,89,192 N.Y.S. 815 (S.Ct. N.Y., App. Div., 1st Dep't. 1922) (" . . . the court has no jurisdiction and could not disregard the protest and overrule the objection by a claim... [under] the municipal law of this State . . . , for by the law of nations an adjudication . . . could not be made . . . " ) ; Stanley v. Ohio, 24 Ohio St. 166, 174 (1873) (state has concern "to discharge such duties as are imposed upon it by the law of nations"); Peters v. McKay , 195 Ore. 412, 424, 426, 238 P.2d 225, 230-231 (S.Ct. Ore. 1951): . . . the rule is firmly established and uniformly recognized that 'International law is part of our law and as such is the law of all States of the Union The rule has been briefly stated as follows: ... the law of nations is to be treated as part of the law of the land. The courts of all nations judicially notice this law, and it must be ascertained and administered by the courts of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.. . 30 Am. Jour., International Law, p. 178 § 7. . . . In essence, the rule appears to be that international law is part of the law of every state which is enforced by its courts without any constitutional or statutory act of incorporation by reference, a n d . . . relevant provisions of the law of nations are legally paramount whenever international rights and duties are involved before a court having jurisdiction to enforce

Customary International Law in the United States: Clean and Dirty Laundry

considered part of the 'laws of the United States', it is telling that customary international law certainly has been.123 Further, their references to cases and opinions using phrases 'laws of the United States', 'law of the land' and 'our law' are incomplete and potentially misleading.124 With respect to the nature of customary international law, they state incorrectly that the dissenter view is the "prevailing view," 125 that the only participants concerning its formation and meaning are States,126 that State "consent" is the basis of customary law, 127 that it does not specify how obligations must be treated within domestic legal processes128 and that it has been antithetical for customary legal rights of individuals, especially human rights, to obtain against States, especially against one's own State.129 Others have also recently confused the supposed lack of direct remedies of individuals at the international level prior to World War II 1 3 0 with a lack of individual rights under international law. 131

them. See also Ex parte Bushneil, 9 Ohio St. 77,189 (1859) ("The constitution of the United States was framed . . . subordinate to, and without violating the fundamental law of nations. . . ."); McArthur v. Kelly , 5 Ohio 139, 143 (1831) ("The law of nations requires it."); Siplyak v. Davis , 276 Pa. 49, 52, 119 A. 745, 746 (S.Ct. Pa. 1923) ('" . . . where the general law of nations and those of foreign commerce say the contrary . . . I very much question the power or authority of any state or nation . . . to pass such a law . . . '" quoting Hanger ν . Abbott, 73 U.S. (6 Wall.) 532, 536 (1867)). 123

See Paust (note 2), 6, 40.

124

Compare Bradley/Goldsmith (note 101), 823, 834 n. 125, 850 - 851 with Paust (note 2), 6, 34 - 36,40 - 43,47; United States v. Ravara, 2 U.S. (2 Dall.) 297,299 n.* (C.C.D. Pa. 1793) ("law of nations is part of the law of the United States"); id., 298 (Wilson , J., declaring that the Supreme Court has original jurisdiction "in cases like the present" and Congress can nevertheless provide a concurrent jurisdiction in lower federal courts). 125

Compare Bradley/Goldsmith

(note 101), 857 n. 275 with Paust (note 2), 14 -18.

126

Compare Bradley/Goldsmith (note 101), 838 with Henkin (note 38), 233 (binding on all); Paust (note 2), 1 - 3, 10 -14, 151; Paust (note 1), 147, 150, 155 - 158, 161 - 162, 164. 127

(note 101), 838 with Paust (note 2), 10 -17,28; Paust (note 1),

128

(note 101), 819 n.19 with Paust (note 2), 198 - 203, 212, 256,

Compare Bradley/Goldsmith 151 - 152; Brierly (note 84), 51 - 52. Compare Bradley/Goldsmith 259-264, passim.

129 Compare Bradley/Goldsmith (note 101), 822 (incorrect and incomplete list of alleged categories of customary international laws quoted), 831 and n. 106, 828, 839 - 842 with Paust (note 2), 8, 44, 198 - 203, 209 - 210, 256 - 270, 288 - 291, 323 - 325, 329, passim. 130

They existed, but were rare. See, e.g., Paust (note 2), 290 - 291; see also id., 27 A - 275.

131

See, e.g., David P. Künstle, Kadic v. Karadzic : Do Private Individuals have Enforceable Rights and Obligations under the Alien Tort Claims Act?, Duke Journal of International and Comparative Law, vol. 6, 1995, 319, 321 - 323, 337; compare id., 339 - 341.

7 GYIL 40

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In another article, Professor Bradley states that there are no nineteenth century cases actually invalidating a presidential or congressional act.132 This would not be surprising, since it seems that well into the twentieth century no one expected that the President or Congress could even authorize a violation of customary international law and nothing in the text of the constitution would permit such a result. Actually, it is more telling that there were no cases holding that presidential or congressional acts prevail against customary international law until the mid-1980s, when a complete, unprofessional and cancerous misreading of The Paquete Habana occurred — as explained in another section below, all in cases concerning the mistreatment of aliens. There are no known federal cases ruling that states can violate customary international law; but there are rare cases denying merely Supreme Court jurisdiction to review state rulings, and the denial is no longer authoritative. 133 Further, in the twentieth century, there are cases allowing customary international law to prevail against Executive acts134 and congressional legislation.135 As my treatise documents with respect to presidential power, rulings concerning similar claims (e.g. concerning acts of lower officials and alleged orders

132

Curtis A. Bradley , The Status of Customary International Law in U.S. Courts - Before and after Erie, Denver Journal of International Law and Policy, vol. 25,1997, forthcoming. But see Paust (note 2), 138 (n. 96) (an 1892 case). 133 See Bradley/Goldsmith (note 101), 824 n. 53 (two cases: Ker v. Illinois , 119 U.S. 436, 444 (1886); New York Life Insurance Co. v. Hendren, 92 U.S. 286, 286 - 287 (1875)); Bradley (note 132) (adding Oliver Amencan Trading Co. v. Mexico, 264 U.S. 440,442 - 443 (1924)); see also Restatement (note 8), § 111, reporters' note 3. Concerning Ker, see note 122; concerning New York Life, see Paust (note 2), 33, 40. In my opinion, Justice Bradley, who dissented in New York Life, was correct that customary international law is law of the United States' for purposes of Supreme Court review. See 92 U.S. at 287 - 288 (Bradley, J., dissenting). See also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793), quoted in note 38. Justice Bradley later wrote for the majority in cases referring to international law. See Paust (note 2), 33, citing Amy v. City of Watertown, 130 U.S. 320, 326 (1888); Coffee v. Grover, 123 U.S. 1, 9 (1887). He was ultimately vindicated by the Court in Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398, 425 (1964) ("must be treated exclusively as an aspect of federal law . . . rules of international law should not be left to divergent and perhaps parochial state interpretations"). See Restatement (note 8), §§111, reporters' notes 2-3,115, comment e. In Oliver American Trading Co., the Court actually ruled that the question was one of "general law applicable alike" and "as fully" to "suits in state courts as to those in the courts of the United States" and should be "transferred to the Circuit Court of Appeals for the Second Circuit." 264 U.S. at 442 - 443. Ker and Oliver American Trading actually reaffirm that state courts are "bound to take notice" of and "as fully" to apply customary international law. Huntington is consistent. See note 122. Not one of the cases noted declares that international law is not part of the law to be applied in lower federal courts. Indeed, they recognize that federal courts have the same duties as states with respect to cases that originate in federal courts. 134

See Paust (note 2), 146, 149, 163 - 164.

135

See id. , 138 - 139, 141.

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99

or approval by the President) are near rulings, and overwhelming patterns of expectation have long supported these results. 136 Professor Phillip Trimble is also one of those opposed to judicial use of customary international law. Despite the title of one of his writings, Professor Trimble's "revisionist" view would actually involve a radical departure from historic use of customary international law, views of the Founders and predominant expectations since the formation of the United States. It also seeks acceptance of illegality, apparently any illegality, under a euphemistic phrase "accommodating change" and a compliant judiciary abdicating its constitutional role under Articles III and V I of the U.S. Constitution. 137 Elsewhere, he advocates an overturning of the preferences of the Founders as well as traditional methods of incorporation of customary international law and substitution of what appears to have been a British system of transformation or what would otherwise be direct incorporation only through legislation.138 Such a revisionist denial of the judicial role in our domestic legal process (which would itself be antithetical to a balance and separation of powers conceived by the Founders and involving the law of nations139) is sought by some as an ideologic weapon against the efficacy of human rights, and thus inevitably, the preferred consequences of democracy. Judicial power is an integral part of the constitutional design for the separation of powers and reflects, in part, "the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed." 140 As

136

See id. y 88, 124 - 125, 143 - 146,154 - 160.

137

Compare Trimble (note 101), 707 - 711, 713 - 716, 721 - 726 with Paust (note 2), 5 - 8, 18 19, 46 - 48, 143 - 146, 154 - 160. Others have made this ploy. See Paust, id., 18 - 19.

138 See Barry Ε. Carter/Phillip R. Trimble, International Law, 2nd ed., 1995,82 - 83. Professor Trimble's preference clearly would not mirror the eighteenth century British approach affirmed by Lord Mansfield, using customary international law directly, but would be similar to a later approach disfavored by U.S. Founders. On the early British approach, see, e.g., Heathfield v. Chilton , 4 Burrow 2015, 2016 (K.B. 1767) (law of nations is part of the common law of England and cannot be altered by an act of Parliament); Triquet v. Bath , 97 Eng. Rep. 936,937 938, 3 Burrow 1480, 1481 (1764); Buvotv. Barbut, 3 Burrow 1481 (1736). Later, U.S. Secretary of State John Marshall, before he became Chief Justice, had decried the failure of certain British judges to apply international law. See Paust (note 2), 67 n. 35. Our Founders also stressed that the direct incorporation of treaty law in the United States was an approach intentionally different from that of the British. See id., 55, 69 η. 47. Even the British have abandoned transformation (which, contrary to Professor Trimble's preference, had allowed adoption by judicial decision). See, e.g., Trendtex Trading Corporation v. Central Bank of Nigeria, 1 Q.B. 52 553 - 554 (1977). 139 140

See Paust (note 2), 7 - 8, 34 - 48, 201 - 202, 264 - 270, passim.

See I.N.S. v. Chadha, 462 U.S. 919, 947, 951 (1983). See also letter of James Madison to Thomas Jefferson in 1788, extract reprinted in Paust (note 2), 349 (n. 44).

*

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noted above, human rights are especially relevant to such a constitutional design and were of significant concern to the Founders. VI. Isolationist Tendencies Among developments inhibiting the direct and full incorporation of customary international law in the United States for criminal sanction purposes are relatively recent legislative measures concerning international crimes. Such measures do not exercise the full competence of the United States under principles of universal jurisdiction to prosecute those reasonably accused of certain international crimes, 141 but place significant restrictions of an isolationist, if not tribal, orientation on the ability of the United States to prosecute through such forms of domestic legislation. The most egregious inhibiting legislation is that created in 1988 concerning genocide. The U.S. statute addressing the crime of genocide attempts to redefine genocide to preclude coverage of many forms of the international crime, 142 but among the limitations reeking of an isolationist or tribal approach is that setting forth socalled "required circumstances for the offenses." These circumstances are posed in the alternative, requiring that prosecutable acts of genocide either: (1) occur within the United States, or (2) occur at the hands of an alleged perpetrator who is a U.S. national.143 If such legislation was the only basis for U.S. prosecution of the crime of genocide,144 it would guarantee that genocide committed by foreign perpetrators outside the United States, even against U.S. victims,145 could not be prosecuted in the United States. Similarly self-denying and isolationist is the War Crimes Act of 1996.146 Focusing merely on "grave breaches" of the 1949 Geneva Conventions (which are 141

Concerning the two types of universal jurisdictional competence under international law, 5ee, e.g., Paust (note 2), 392 - 393, 402 - 404, 405 - 406. 142

See 18 U.S.C. §§ 1091(a), 1093 (8), reprinted in ICL (note 65), 1107 - 1108. O n the limiting and egregious nature of these attempts at redefinition, see, e.g., ICL, id., 1109 -1111; Paust (note 2), 293 - 297. Most inappropriate is the deviation from the customary and treaty-based element relating to the perpetrator's intent to destroy a group "in whole or in part," the U.S. statute adding a far higher threshold of "in whole or in substantial part," and then providing a definition of "substantial part" that nearly guarantees that genocide will not be prosecuted in the United States under such a statute. See § 1093(8) ("the term 'substantial part' means a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity . . . " ) . 143

See 18 U.S.C. § 1091(d).

144

It is not. See, e.g., ICL (note 65), 1112; Paust (note 2), 297 - 298.

145

Thus, the legislation is not completely tribal in nature, but more isolationist.

146

18 U.S.C. § 2401.

Customary International Law in the United States: Clean and Dirty Laundry

incorporated by reference 147), not more ordinary breaches of the Conventions that also constitute war crimes or other types of crimes, the legislation contains a required circumstances clause limiting jurisdiction to cases where "the person committing such a breach or the victim of such breach is a member of the Armed Forces of the United States or a national of the United States. . . . 1 , 1 4 8 Thus, under the new legislation, the United States is incapable of prosecuting more ordinary war crimes or even 'grave breaches' committed by foreign perpetrators against foreign victims. If it were not for the fact that the United States has other legislation adequate to prosecute all war crimes, committed by anyone, anywhere, 149 the United States would be in violation of obligations under the Geneva Conventions "to enact any legislation necessary to provide effective penal sanctions for persons committing . . . any . . . grave breaches" and to "take measures necessary for the suppression of all acts contrary to the . . . [relevant Geneva] Convention other than grave breaches."150 Even the recent efforts by the United States to ratify several human rights treaties demonstrate a stubborn isolationist orientation, a tendency blamed sometimes on a few U.S. Senators.151 There are often a number of reservations and understandings set forth by the United States in its instruments of ratification, some of which provoke controversy over specific issues,152 but which may merely reflect serious attention by the Senate and President to value-oriented norms 147 148 149

Id., § 2401(a) and (c). S 2401(b). See, e.g., ICL (note 65), 215 - 224 (addressing 10 U.S.C. §§ 818, 821 and 18 U.S.C. § 3231).

150

See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U N T S 287, Art. 146. See also id. , Art. 1 (duty "to respect and to ensure respect for the present Convention in all circumstances"). 151

See, e.g., David P. Stewart , United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings, and Declarations, DePaul Law Review, vol. 42, 1993, 1183, 1184 - 1186, 1189, 1205. The United States is apparently the only State that has not ratified the Convention on the Rights of the Child and is one of the few that has not ratified the Convention on the Elimination of all Forms of Discrimination against Women. 152

For example, the United States often retains the possibility of imposing the death penalty on certain persons, to the chagrin of issue-specific activists. See, e.g., Connie de la Vega , Civil Rights During the 1990s: New Treaty Law Could Help Immensely, University of Cincinnati Law Review, vol. 65,1997,423,434 - 436; Joan Fitzpatrick , The Relevance of Customary International Norms to the Death Penalty in the United States, Georgia Journal of International and Comparative Law, vol. 25, 1996,165. Such a reservation appears with respect to U.S. ratification of the International Covenant on Civil and Political Rights, 999 U N T S 171 (ratified by the United States 8 September 1992 — see Lillich/Hannum (note 6), 261). The reservation and examples of opposition appear in Lillich/Hannum , id.,25\ (Reservation No. 2), 256 (International Human Rights Law Group opposition).

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reflected in the treaties. It is more likely that isolationist tendencies lie behind recent reservations to ICJ clauses in certain treaties, the United States refusing thereby to agree to nearly automatic jurisdiction of the ICJ to adjudicate disputes involving the United States and interpretations and/or applications of the treaties. 153 Far more controversial and clearly isolationist in orientation 154 are a series of declarations attempting to make the substantive articles in human rights treaties 'nonself-executing* within the United States.155 The first such declaration, concerning the International Covenant on Civil and Political Rights, is clearly inconsistent with the fundamental object and purpose of the treaty and is thus void ab initio. 156 If the declaration is severable from the U.S. instrument of ratification, which is most likely the case,157 then the United States should still be treated as a party to the Covenant and our judiciary will be able to selectively apply those portions of the Covenant that are self-executing (or directly operative without congressional implementing legislation) under normal tests using the language of the treaty considered in context.158 Some of the human rights reflected in the Covenant are also based in customary international law 159 which, as noted above, is directly incorporable for civil sanction purposes in the United States. Indeed, the Covenant has already been cited by U.S. courts, either as an aid for interpreting other federal

153

For examples of such ICJ reservations, see, e.g., Lillich/Hannum (note 6), 269 and n.* (reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 78 U N T S 277 (ratified by the United States 25 November 1988 - see I C L (note 65), 1111-1112), and the International Convention on the Elimination of all Forms of Racial Discrimination, 660 U N T S 195 (ratified by the United States 20 November 1994 — see Lillich/Hannum (note 6), 269)); I C L (note 65), 1102, 1104 (Reservation No. 1 to the Genocide Convention). 154

See, e.g., Jose E. Alvarez, International Law: Some Recent Developments, Journal of Legal Education, vol. 46, 1996, 557, 558 - 559 (adding: "human rights . . . [concerns] are usually outwardly directed" and Europeans, used to the effects of the European Convention on Human Rights, will have "little sympathy for U.S. 'protectionism'"); Louis Henkin, Human Rights and State Sovereignty', Georgia Journal of International and Comparative Law, vol. 25, 1996, 31, 45; Henkin (note 38), 201 - 203; Lillich/Hannum (note 6), 258, 271 - 272; Paust (note 2), 373, 386, and references cited. 155 See, e.g., U.S. Declaration No. 1 concerning the Covenant (see Lillich/Hannum (note 6), 253, reprinted in 31 I L M 645, 659 (1992)); U.S. Declaration concerning the Race Discrimination Convention (see id., 269). 156

See, e.g., Paust (note 2), 361 - 368, 373 - 376, passim.

157

See id., 366 - 368, 376 (Covenant's Human Rights Committee, General Comment No. 24), 381. 158

Concerning such tests, see, e.g., id., 55 - 59, 62, 69, 71, 74, 110, 112.

159

See, e.g., id., 369 - 370, 383 - 384; Restatement (note 8), § 702 and comments a and n.

Customary International Law in the United States: Clean and Dirty Laundry

laws or, most often, as an evidence of the content of customary human rights law. 160 Professor Jonathan Charney has related the isolationist tendency to federal judges: U.S. courts have taken an increasingly isolationist, if not nihilistic, approach to the relevance of international law to U.S. law . . . [and studies demonstrate] that such a narrow approach is out of step with the broader trend in many other countries [T]he fundamental problem appears to be the negative attitude of U.S. lawyers, especially the judiciary, toward the relevance and usefulness of international law. 1 6 1

Negative judicial attitudes are also part of a theme identified recently by Professor Gordon Christenson, although he perceives a somewhat hypocritical difference in judicial incorporation of what he terms "traditional customary international law," especially concerning protectionist (and 'sovereign') powers and immunities, and economic matters (including 'autonomy* or related individualistic freedoms and property interests), and what he terms "the developing customary international human rights law." 162 "Traditional customary international law," he states, "continues to be accepted without express incorporation unless directed otherwise by the political branches."163 He adds that human rights claims in domestic courts by citizens against their own government or foreign governments can be perceived as "dangerous" to political power, 164 and possibly dangerous to sympathetic U.S. power elites.165 Of course, power is a process and the 'danger' he mentions relates 160

See, e.g., Paust (note 2), 369, 383 - 384. Jonathan L. Charney , book review, American Journal of International Law, vol. 91,1997, 394, 395 [hereinafter Charney , book review], also citing Jonathan L. Charney , Judicial Deference in U.S. Foreign Relations Law, American Journal of International Law, vol. 83, 1989, 805. 161

162 See Gordon A. Christenson , Customary International Human Rights Law in Domestic Court Decisions, Georgia Journal of International and Comparative Law, vol. 25, 1996, 225, 225 - 226, 232 - 238. 163

Id. y 225. He adds that courts respect and use "customary international law . . . without statutory authority . . . all the time." Id., 232. 164

Id., 226 - 227 (stating: "Human rights touch the 'very foundations of a regime, on its sources and exercises of power, on its links to its citizens or subjects,' making it a 'dangerous issue.'"). In a letter to the Author, Professor Christenson elaborates that what he perceives to be the main danger, "as Oscar Schachter puts i t , . . . [relates to] judicial interference by a domestic judiciary in the political relationship of citizens to their own government . . . [a] sense that human rights intervention by domestic courts against the political branches in a democracy touch 'the very foundations of a regime . . . ' [ , etc.]." Letter of 16 June 1997, copy of relevant portions on file. This, of course, was not of concern to U.S. Founders. For related evidence of patterns of use of international authority and human rights claims in foreign democratic legal processes, without apparent threats to democracy, see, e.g., Schreuer (note 87), 314 - 351. 165

Christenson (note 161), 241, 243.

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to changes in power processes that are perceived to be detrimental to elites and others. It is commonplace to recognize that access to courts and judicial remedies against political elites when rights are at stake are also forms of participation that can shape a political process and its temporal outcomes if not long-term effects. 166 Indeed, they can allow wider and more effective participation by non-elites, a democratizing of political processes (both domestic and international). More generally, Professor Christenson warns, "it runs deeply against the grain of contemporary Supreme Court opinion for federal judges to recognize and develop federal law . . . to imply causes of action . . . without clear statutory authority." 167 In my opinion, what complicates the matter is the fact that some judges and their clerks are unfamiliar with international law and, perhaps, the use of so-called unwritten law — instead, they are quite used to rules printed on a piece of paper or to Delphic printings from fellow judges, especially those with appellate appellations. 168 Even if they are relatively neutral and attentive to law, some might feel uncomfortable with unwritten law. 169 Later, Professor Christenson quotes former Justice Harry Blackmun , who made a telling and related point about the lack of familiarity with international law by most contemporary U.S. judges (as opposed to "early Justices such as John Jay and John Marshal/"). 170 Nonetheless, Professor 166

See also Paust (note 2), 198 - 200, 256 - 261, passim .

167

Id., 234.

168 See also PaulL. Hoffman , The 'Blank State Phenomenon': Proving Customary International Law in U.S. Courts, Georgia Journal of International and Comparative Law, vol. 25,1996, 181, 181 - 182 (adding: "as if the concepts we had so meticulously briefed before bore no resemblance to law . . . "), 184,186, 189; Harold G. Maier , The Role of Experts in Proving International Human Rights Law in Domestic Courts: A Commentary, id ,, 205. 169 1 know, this might seem a strange message from a 'common law' country (except for the emphasis in the United States on judicial opinions). It seems little known in the United States, however, that the 'common law', both in England and in early U.S. history, was far less unfamiliar and prevailed over inconsistent legislation. See, e.g.. Paust (note 2), 140,217. Paul Hoffman adds that a "key point" in the successful string of human rights cases litigated under the A T C A "may be the fact that we are able to invoke a statute, the Alien Tort Claims Act. When there is a statute . . . the legitimacy and relevance of customary law is much easier" to identify. Hoffman (note 168), 189; see also Beth Stephens , Litigating Customary International Human Rights Norms, Georgia Journal of International and Comparative Law, vol. 25,1996,191,191, 200. Paul Hoffman also opines that 'conservative' judges may be opposed to human right claims and feel uncomfortable exercising judicial power to protect such rights, adding: "we operate in an era during which very few rights protective decisions are being made by the courts, under any body of law." Id., 187 - 188. Nonetheless, he adds more optimistically, there has been such success in litigating human rights claims under the A T C A that such precedent "is sturdy enough to survive scrutiny even by generally conservative jurists." Id., 189. 170

Christenson (note 162), 238 n. 56, quoting Justice Blackmun Addresses ASIL Annual Dinner, ASIL Newsletter, March, 1994, 6 - 7, reprinted in Proceedings of the American Society of International Law, vol. 88, 1994, 383, 388 [hereinafter Blackmun ].

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105

Christenson does not fully accept this point 171 and he disagrees with the point made by Professors Anne Bayefsky and Joan Fitzpatrick that, in his words, "parochial domestic courts do not respect or use customary international law in formulating rules of jurisdiction or decision without statutory authority." 172 He warns that the dichotomous distinctions in types of customary law he identifies has led judges to result-oriented decisions concerning incorporation, that the "contradictory uses of customary international law" are intentional.173 Professor Charney suggests that such negative or inhibiting judicial "attitudes may be explained in part by the failure of U.S. law schools, unlike those of some other states, to train all students in the international legal system."174 In my opinion, the fact that very few U.S. law students (and, thus, very few U.S. judges) are familiar with international law contributes substantially to isolationist patterns and negative or inhibiting attitudes,175 but the deference to power, especially power over aliens, is another contributing strand (as explained partly in the next section). The fear of the foreigner, if not racism (i.e. the fear of certain foreigners), has played a role in U.S. judicial history. 176 The fear of foreign values can also be identified as a factor contributing to current stress on the efficacy of customary international law within the United States.177 Customary international law is, surely 171

His comment on Justice Blackmun's statement is slightly different in emphasis: "American jurists are not inclined to use international law to protect individuals in domestic litigation. . .." Christenson (note 162), 237. 172 Compare id ., 232 wûiAnne Bayefsky/Joan Fitzpatrick , International Human Rights Law in United States Courts: A Comparative Perspective, Michigan Journal of International Law, vol. 14, 1992, 1, 28:

This reluctance is born partly of unfamiliarity and perhaps a degree of intellectual laziness, but it also appears to stem from concerns about institutional competence and deference to the political branches . . . [and] may be a product of the ambiguities which surround the concept.... 173

Christenson (note 162), 232; see also id., 225.

174

Charney , book review (note 161), 395.

175 See Paust (note 86); see also Joan Fitzpatrick , remarks, Proceedings of the American Society of International Law, vol. 90, 1996, 273; Quincy Wright , National Courts and Human Rights — The Fujii Case, American Journal of International Law, vol. 45, 1951, 62, 81 - 82:

[L]egal education pays less attention to international law than it did a century ago. Consequently, judges may be less familiar with international law than their predecessors. . . . Whatever may be the causes, the hesitancy of courts to refer directly to international law tends to emphasize national sovereignty and the political, as distinct from the legal, aspects. 176 See, e.g., Chae-Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581 (1889); Louis Henkln, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, Harvard Law Review, vol. 100, 1987, 853. 177

See Christenson (note 162), 241: "the fear that the hard-won protections already within

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partly, made by foreigners. Lack of control of the content of this type of international law 178 may be a factor contributing to the relatively recent attack on customary international law by some members of the executive and judicial branches,179 who otherwise feign deference to the legislative branch while preferring a certain flexibility. It may also contribute to claims that the United States should argue that a 'dissenter' is not bound by new customary norms — presumably we can live comfortably with the old. 180 Isolationist tendencies as a backlash to growing interdependence is somewhat understandable, but the United States should not attempt to selectively incorporate customary international law. Real strength, real power, is not achieved in isolation, but through effective participation. At our best, U.S.-Americans are affirmative and involved, especially in the human quest for dignity mirrored in human rights. VII· Mistreatment of Aliens Cases involving the treatment of aliens are the most problematic with respect to Executive compliance with customary international law and they are now clearly the most difficult cases to litigate against U.S. officials. Perhaps due to some underlying but legally unacceptable (and ultimately nondisclosable) prejudice, some U.S. courts appear to tolerate suspect or even illegal Executive actions when they concern the treatment of aliens. An example is the infamous decision of the U.S. Supreme Court in United States v. Alvarez-Machain. 181 Although the Supreme Court opinion was narrowly focused on the interpretation of a bilateral extradition treaty between Mexico and the United States,182 the incident had involved the abduction of an alien by Executive agents in Mexico in violation of several treaties

the Bill of Rights . . . might be diluted and weakened by reference to external standards." 178 That is, as opposed to international agreements — which are generally perceived to be primarily consensually based (but see note 191) as opposed to custom, which is perceived to be based in patterns of majority expectation, binding also on the dissenter. 179

See also Paust (note 1), 147; Paust (note 2), 2, 13 -14.

180

See also Christenson (note 162), 225, 232; Paust (note 2), 13.

181

504 U.S. 655 (1992).

182

See, e.g., id. at 668 andns. 14 -15, 670; Michael J. Glennon, State-Sponsored Abduction: A Comment on United States v. Alvarez-Machain, American Journal of International Law, vol. 86, 1992, 746, 746, 748, 753; Monroe Leigh , Is the President above Customary International Law?, American Journal of International Law, vol. 86,1993,757,761 - 762 n.27; Jordan J. Paust, Correspondence, American Journal of International Law, vol. 86, 1993, 252, 254.

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107

and customary international law. 183 The other treaties and customary international law were not directly in issue before the Court, but it is obvious to most that, as the dissenting opinion pointed out, 184 the majority opinion failed to use normal methods of treaty interpretation that would have included references to customary norms as a background or as interpretive aids concerning the appropriate meaning of the bilateral treaty. 185 With such an interpretive focus, potential claims under customary human rights law, the customary prohibition of 'denials of justice' to aliens, and customary law concerning the reach of enforcement jurisdictional powers and territorial infractions 186 could be ignored and a new flexibility to mistreat aliens abroad could be enhanced. The majority's logic, unhampered by implied meanings and purposes, was simple and serving of Executive power: what is not expressly prohibited is permissible.187 Another infamous Supreme Court case involving the treatment of aliens and misinterpretation of treaty law was Sale v ê Haitian Centers Council , Inc., m a case involving the return of Haitians to Haiti after U.S. interdiction of their vessels on the high seas. The Convention Relating to the Status of Refugees, 189 prohibits the "return" of a refugee to a country "where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social 183

The Supreme Court's majority opinion concluded that since the bilateral extradition treaty between Mexico and the United States did not expressly prohibit kidnapping, kidnapping was permissible. 504 U.S. at 663, 666, 668 - 669. The alien abductee had argued that customary international law should inform the meaning of the bilateral treaty and that a prohibition of kidnapping should be implied. 504 U.S. at 664, 666, 668 - 669. 184

See 504 U.S. at 671 - 687 (Stevens, J., dissenting).

185

See, e.g., Blackmun (note 170), 384 - 386; Hernan Ruiz-Bravo , Monstrous Decision: Kidnapping is Legal, Hastings Constitutional Law Quarterly, vol. 24, 1993, 833; Valerie Epps , Forcible Abduction, Jurisdiction And Treaty Interpretation, International Practitioners' Notebook, 1992, 6; Leigh (note 182); Paust (note 182), 255 - 256; John Quigley , Government Vigilantes at Large: The Danger to Human Rights from Kidnapping of Suspected Terrorists, Human Rights Quarterly, vol. 10, 1988,193; Report of the Committee on International Law in Municipal Courts, in: Proceedings of the American Branch of the International Law Association 1993 - 1994, 88,99 (answers to questions 13(a) and 14) [hereinafter I L A Report]; Charney , book review (note 161), 396. That customary international law has been used in U.S. courts as an aid to interpret treaties, see, e.g., Paust (note 2), 8, 50, 368, 383. 186

Concerning such claims, see, e.g., note 5; Jordan J. Paust , After A Ivarez-Machain: Abduction, Standing, Denials of Justice, and Unaddressed Human Rights Claims, St. John's Law Review, vol. 67, 1993, 551. 187

See 504 U.S. at 663, 666, 668 - 669. See also United States v. Matta-Ballesteros, (9th Cir. 1995), reprinted in I C L (note 65), 476 - 479. 188 189

71 F.3d 754

509 U.S. 155 (1993).

28 July 1951,189 U N T S 137. The United States ratified the Protocol Relating to the Status of Refugees, 31 January 1967, 606 U N T S 267, 19 UST 6223.

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group or political opinion." 190 In Sale , the Court's interpretation of the word 'return' ignored the ordinary (indeed, customary191) meaning of the term as well as the overall object and purpose of the Convention,192 both in contradistinction to customary international law concerning treaty interpretation reflected in the Vienna Convention on the Law of Treaties.193 The majority opinion concluded that one is not returned to such a country unless one reaches U.S. territory, adding "an alien intercepted on the high seas is in no country at all." 194 Of course, one can be returned to a country from any place in the universe outside that country. In the United States, neither of these anti-alien practices should have occurred. They both demonstrate a fundamental shift by the majority of the Supreme Court from a traditional and judicially responsible deference to customary international law toward an unregulated Executive power to control aliens abroad in violation of the law. Earlier in U.S. history, the Supreme Court had recognized that customary international law provides a basis for relevant governmental powers to regulate immigration into the United States as well as federal jurisdiction over certain matters affecting aliens.195 For this reason, changes in customary international law that limit or condition the power of any government concerning the treatment of aliens should also necessarily condition the present reach of U.S. governmental power. 190

Id., Art. 33(1).

191

Nearly the same primary basis in human expectation or opinio juris exists both as an element of customary international law and as a standard for word interpretation, since one is to interpret terms of a treaty in light of their ordinary or common, and thus generally shared, meaning. Both patterns of human expectation can be found in the global social process relevant to a particular moment in human history. 192

Concerning the failure of the Court to properly interpret the treaty, see, e.g., 509 U.S. at 189 - 198 ÇBlackmun,J., dissenting); Blackmun (note 170), 385 - 86; ILA Report (note 185), 99; see also Charney , book review (note 161), 395 - 396. The majority opinion added "a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent." 509 U.S. at 183. Of course, this is incorrect. Under international law, one must interpret a treaty in light of its object and purpose, and obligations can be implied from such and from the common or generally shared meaning of the terms of the treaty. See Vienna Convention on the Law of Treaties, 23 May 1969,1155 UNTS 331, Art. 31(1) and (3)(c) (not ratified by the United States). On the customary nature of this approach to treaty interpretation, see, e.g., Paust (note 2), 286 - 287, 318, 366 - 368, 373 - 376. 193

Note 188.

194

509 U.S. at 179. The majority did not address the fact that U.S.flag vessels are the equivalent of U.S. territory for jurisdictional purposes under customary international law documented in U.S. cases. See, e.g., Paust (note 2), 389, 397. In this sense, they "missed the boat." 195

See, e.g., Fong Yue Ting ν . United States, 149 U.S. 698,707 - 708,723 (1893); id. at 734 - 735 (Brewer, J., dissenting); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892); Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581, 603 - 606 (1889).

Customary International Law in the United States: Clean and Dirty Laundry

One such change involves human rights — for example, the human right to be free from discrimination on certain grounds such as race or national origin 196 and the human right to be free from arbitrary exercises or abuses of power. 197 In a 1980 federal district court decision in Fernandez v. Wilkinson, 198 arbitrary detention of aliens was rightly recognized as a violation of customary human rights law and such law was incorporated directly to restrain Executive actions that were considered to be an "abuse of discretion" 199 with respect to continued detention of Cubans who had entered the country illegally but had committed no crimes against the United States. The district court ordered the release of those detained illegally200 and the decision was upheld on appeal on a different ground, the appellate court actually using human rights law indirectly as an aid to interpret relevant federal legislation.201 Unfortunately, such cases, although conforming to historic patterns of legal expectation, are far too rare in recent history. Having lost the case, the Executive branch moved many of the Cuban prisoners to Atlanta, where the judicial climate proved to be more favorable. There, the U.S. Court of Appeals for the Eleventh Circuit seriously misinterpreted dictum from an earlier Supreme Court decision202 in order to allow unlimited detention without trial of aliens who had entered the United States illegally.203 The world, it seemed, had turned upside down. The Department of Justice argued the propriety of violations of the law by an Executive bound by the U.S. Constitution faithfully to execute the law. No one would be responsible. Later, other cases copied language from the Eleventh Circuit opinion without adequate inquiry or reasoning or merely cited the case while permitting illegal con-

196 See, e.g., Universal Declaration of Human Rights, Art. 2, U N GA Res. 217A, 3 G A O R , U N Doc. A/810, at 71 (1948). 197

See, e.g., id. Art. 9 ("No one shall be subjected to arbitrary arrest, detention or exile.")

198

505 F.Supp. 787 (D. Kan. 1980).

199 Id. at 791 - 792,794 - 795 ("arbitrary" action that is illegal under customary international law is "abuse of discretion"), 798 - 800 (same). 200

Id. at 800 (after a period of ninety days).

201

Rodriguez-Fernandez

v. Wilkinson,

654 F.2d 1382, 1386, 1388, 1390 (10th Cir. 1981).

202

The Paquete Habana, 175 U.S. 677, 700 (1900). Concerning the proper and improper interpretations of language in the opinion, see, e.g., Paust (note 2), 127, 146 - 152, 161 - 165. The actual holding of the case recognized that Executive seizures of alien enemy fishing vessels abroad in time of war were illegal under customary international law, that Executive interpretations of the content of international law were not controlling and that money damages and costs were owing to the claimants. See, e.g., id.; Paust (note 26). 203

(1986).

See Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir. 1986), cert, denied, 479 U.S. 889

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trois over certain aliens.204 These developments have constituted a minor victory for the Department of Justice, which had generally been seeking Executive immunity from customary international law, 205 and had also been training U.S. Asylum Officers to merely follow orders. 206 Nonetheless, the victory brings dishonor to the United States. After losing Fernandez , Department of Justice lawyers sought judicial approval of Executive illegality through an improper manipulation of dictum in only one judicial opinion and, rather unprofessionally, had clearly refused to disclose to our courts the numerous judicial and other opinions throughout U.S. history affirming that the Executive is bound by customary international law. 207 Too often, our courts have been compliant and ignoring of the U.S. Constitution and overwhelming trends in expectation concerning presidential powers — apparently because aliens were being controlled by the Executive branch. Surely a German audience is aware of the dangers posed by a compliant judiciary faced with requests to follow orders that are in violation of international law. 208 For many in my country, these developments are, to say the least, a national disgrace and an embarrassment to the profession. 209

204

See, e.g., Galo-Garcia v. INS, 86 F.3d 916,918 (9th Cir. 1996) ("where a controlling executive or legislative act does exist, customary international law is inapplicable"); Barrera-Echavarria v. Rison, 44 F.3d 1441,1450 - 1451 (9th Cir. 1995) (using the "only 'where'" error); Gisbert v. United States Attorney General, 988 F.2d 1437,1447 -1448, amended, 997 F.2d 1122 (5th Cir. 1993) ("other circuits have held in the context of immigration detention that international law is not controlling because federal executive, legislative, and judicial actions supersede the application of these principles of international law"); Echeverria-Hernandez v. United States INS, 923 F.2d 688, 692 (9th Cir. 1991) (using the "only where'" error); CruzElias v. United States Attorney General, 870 F.Supp. 692, 698 (E.D. Va. 1994); Rodriguez v. Thornburgh, 831 F.Supp. 810, 814 p . Kan. 1993); Barrios v. Thornburgh, 754 F.Supp. 1536 (W.D. Okla. 1990); Sanchez v. Kindt, 752 F.Supp. 1419 (S.D. Ind. 1990). Concerning the "only 'where'" error, see Paust (note 2), 44, 137,150,161 -162. Because there is little, if any, reasoning in these cases and miserable attention to history, the decisions seem result-oriented. In terms of legal policies at stake, the cases involving aliens are like a cancer that is starting to spread in two areas: (1) that concerning presidential power, and (2) that concerning domestic legislation clashing with customary international law. On the latter, see notes 30 - 34. 205

See, e.g., Louis Henkin , Will the U.S. Supreme Court Fail International Law?, ASIL Newsletter, August-September 1992, 1, 1 and 4; Paust (note 2), 162. 206

See, e.g., U.S. Department of Justice, Basic Law Manual: Asylum, 1991,13 ("the Asylum Officer should refer to customary international law only 'where there is . . . ' " no executive order to the contrary). 207

See Paust (note 2), 137, 162. For an exposition of patterns of legal expectation that the President is bound, see, e.g., id., 143 - 146, 154 - 160. 208

See, e.g., United States v. Altstoetter (The Justice Case), ΙΠ Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10,1946 - 1949. 209

See also Paust (note 186), 577 - 578.

Customary International Law in the United States: Clean and Dirty Laundry

A newer case in 1996 has recaptured the Fernandez-Rodriguez approach of using human rights law indirectly to deny indefinite detention of an alien who had entered the United States illegally. In Caballero ν . Caplinger, 210 a federal district court in Louisiana used human rights that "condemn the 'arbitrary* detention of persons . . . [and] call for speedy and specific review of the legality of the detention or else the release of the individual" 211 to reinforce its conclusion that the Fifth and Eighth Amendments to the U.S. Constitution prohibit indefinite detention of aliens pending their deportation, despite the fact that such is permissible under the terms of an immigration statute (therein declared to be unconstitutional).212 VIII. Non-Inquiry Another embarrassment most often involving the treatment of aliens concerns U.S. extradition processes and what some term a rule of non-inquiry. The so-called rule of non-inquiry would require that courts entertaining claims concerning extradition "not inquire into the procedures which await the accused upon extradition." 213 In a 1989 district court opinion in Ahmed v. Wigen> 2U involving a naturalized U.S. citizen, the court noted that such a rule was not settled, that courts have a responsibility to intercede where an accused faces "procedures or treatment that 'shocks the conscience,'" and that the Soering case decided by the European Court of Human Rights215 constituted important and persuasive, "though non-binding," "precedent on the refusal to extradite because of anticipated torture, cruel conditions of incarceration or lack of due process at trial in the requesting country." 216 It then ruled that an accused need not be extradited to Israel if reports of torture and "unacceptable conditions of imprisonment," including a U.S. Department of

210

914 F.Supp. 1374 (E.D. La. 1996).

211

Id. at 1379.

212 Id., addressing 8 U.S.C. § 1252(1)(2)(A). Other courts recognized the unconstitutionality of the statute without mentioning human rights. See, e.g., Hernandez-Ebank v. Caplinger, 951 F.Supp. 99 (E.D. La. 1996). In Rodriguez-Fernandez , the Tenth Circuit expressed its view that constitutional provisions, informed by human rights law, may well be violated, but it did not reach that question directly. See 654 F.2d at 1386 (statute was basis for ruling, "[nevertheless,. . . serious constitutional questions [are] involved . . . "), 1388 - 1389. 213 Ahmed v. Wigen, 726 F.Supp. 389,412 (E.D.N.Y. 1989), reversed, 910 F.2d 1063 (2d Cir. 1990), extract reprinted in I C L (note 64), 377 - 385. 214

Id.

215

161 Eur.Ct.Hum.Rts. (Series A) (1989), 11 Eur.Hum.Rts.Rep. 439 (1989), 28 ELM 1063

(1989). 216

726 F.Supp. at 410 - 411, 413 - 415.

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State Country Report on Israel concerning human rights practices during 1988,217 and other evidence prove (under a standard that 'it is more probable than not') that the extradited individual will suffer such human rights deprivations. 218 The accused, however, failed to meet his burden of proof. 219 On appeal, the Second Circuit reversed the district court's approach to non-inquiry, arguing that such claims should be left to the discretion of the Executive and, although based in customary human rights law, they are "not a proper matter for consideration by the judiciary." 220 Other courts are also prepared to not inquire. 221 In one such case, the First Circuit noted: The United States has maintained, over time, extradition treaties with some of the world's most oppressive and arbitrary regimes The rule of non-inquiry expresses no judgment about a foreign nation's ability and willingness to provide justice; it simply defers that assessment to the second part of every extradition proceeding — review of extraditability and determination of the appropriateness of surrender by the Secretary of State. 222

Of course, under such an approach, the judiciary would make itself incapable of protecting an accused from a legally inappropriate decision by the Executive.223 The Circuit Court added, however, that non-inquiry is not absolute and that in an appropriate case an exception can pertain where the individual '"would be subject to procedures or punishment so antipathetic to a federal court's sense of decency as to require reexamination of the principle.'" 224 Yet, in a district court within the Second Circuit, such an exception was thought to be foreclosed. The district court noted that there was "evidence of direct danger" to the individual being extradited to India; that in light of such "evidence of systematic violation of the human rights of Sikhs by the Indian government and the 217

Id. at 415-416.

218

Id. at 416.

219

Id. at 420.

220

910 F.2d 1063, 1066 - 1067 (2d Cir. 1990), extract reprinted in ICL (note 65), 389 - 390.

221

See, e.g., I C L (note 65), 381, 386 - 388; United States v. Lui Kin-Hong, 110 F.3d 103 (1st Cir. 1997); In re Kin-Hong, 939 F.Supp. 934, 941, 961 (D. Mass. 1996); In re Sandhu, 1996 U.S. Dist. Lexis 11828, at 5 - 13 (S.D.N.Y. 1996); Sandhu v. Bransom , 932 F.Supp. 822, 827 - 828 (N.D. Tex. 1996). The cases all involve aliens and potential harm overseas, but partly at the allegedly complicitous hands of U.S. judges. So discernible is this play for power, the abandonment of law, that one wonders if other purposes lurk behind blatant abnegation. 222

United States v. Lui Kin-Hong, 110 F.3d 103 n. 12.

223

Gill v. Imundi, 747 F.Supp. 1028 (S.D.N.Y. 1990), the district court felt bound by the Second Circuit ruling, but questioned whether the Executive would be sufficiently attentive to human rights law. Id. at 1050. 224

Id.

Customary International Law in the United States: Clean and Dirty Laundry

likelihood that the respondents in particular would be subject to such abuses if extradited, this is the rare case where judicial inquiry into the conditions in the requesting country would be warranted"; but concluded that "such an examination has been foreclosed by the Second Circuit . . . [by Ahmed, which] overrules any suggestion in . . . [an earlier case] of an exception to the non-inquiry doctrine." 225 Law, the sometime impertinence that dares to threaten power, will not be tolerated in the Second Circuit, at least under non-inquiry. In my view, such a rule necessarily leads to the abdication of judicial power and responsibility under the U.S. Constitution to apply customary international law. 226 Further, as the Soering case demonstrates and surely every European judge should know, by looking the other way one does not avoid complicitous involvement in human rights violations that constitute a real risk. In 1793, Thomas Jefferson made this very point to France,227 but I fear that some of our judges have little sense of history or human responsibility, if only aliens are involved. More encouraging is the decision of the Human Rights Committee under the International Covenant on Civil and Political Rights recognizing that Canada violated Article 7 of the Covenant by extraditing an accused to a state within the United States where he might suffer cruel, inhuman or degrading punishment if executed by gas asphyxiation.228 The United States ratified the Covenant in 1992,229 after the Second Circuit decision in Ahmed, and hopefully the Covenant will play a greater role in U.S. courts in the future. If not, the Covenant's international enforcement processes should be directed to U.S. use of the 'rule of non-inquiry'. As noted above, when the United States ratified the Covenant, it declared that the Covenant's substantive articles (Articles 1 - 27) would be 'non-self-executing' or not directly operative in U.S. courts, 230 but the declaration is fundamentally inconsistent with the object and purpose of the Covenant and is thus void ab initio. Even if 'non-self-executing', the human rights protected by the Covenant can be used indirectly as aids to interpret other federal laws and condition constitutional

225

In re Sandhu, 1996 U.S. Dist. Lexis 11828, at 11 -12.

226

See, e.g., I C L (note 65), 386 - 387,390; Jordan J. Paust, Extradition and United States Prosecution of the Achille-Lauro Hostage-Takers: Navigating the Hazards, Vanderbilt Journal of Transnational Law, vol. 20, 1987, 235, 247 - 249. 227

See, e.g., I C L (note 65), 386.

228

Ng v. Canada, CCPR/C/49/D/469/1991, decision of 7 Jan. 1994. See also International Law Association, Report of the Sixty-Sixth Conference held at Buenos Aires, Argentina, 1994, 144, 161 - 162. 229

999 U N T S 171 (ratified by the United States 8 September 1992). See Lillich/Hannum (note 6), 261. 230

See Declaration No. 1, reprinted in 31 I L M 645, 659 (1992).

8 GYIL 40

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rights, duties and powers. 231 It has already been cited by U.S. courts, often concerning the content of customary human rights law, 232 and could be used to provide exceptions to a so-called rule of non-inquiry. A 1994 Report of the International Law Association's Committee on Extradition and Human Rights notes that non-inquiry is strong in Canada, the United States and the United Kingdom, but that it is not followed in Germany and is not inhibiting of certain human rights inquiries by courts in Switzerland, Ireland and Japan.233 The Committee's important formal recommendations, welcomed by the Conference after approving its Report, 234 included those concerning abductions and evidence obtained in violation of human rights law as well as recommendations that domestic processes "not preclude inquiry into laws and practices or other circumstances in the requesting state involving human rights violations"235 and, in particular, that extradition "not be granted where there is a real risk that the requested person is likely to be executed, tortured, subjected to cruel, inhuman or degrading treatment or punishment or denied a fair trial in the requesting state."236 Attention was also paid to the possibility of creating a model multilateral treaty and draft domestic legislation to more adequately assure compliance with human rights norms, 237 efforts that should be supported. Clearly, human rights obligations of the extraditing State still pertain under the Covenant,238 which mirrors customary international law, and under the United Nations Charter, 239 which, because of Article 103,240 will necessarily prevail in case of any putative clash with an extradition treaty. 241 231

See Paust (note 2), 62 - 63, 369 - 371. See also Stewart (note 151), 1202 (merely "means that the Covenant does not, by itself, create private rights enforceable in U.S. courts"). 232

See Paust (note 2), 369, 383 - 384.

233

See Report (note 228), 147 - 149.

™ See id., 4-6. 235

Id., 5, Recommendation No. 1.

236

Id., 5, Recommendation No. 3.

237

Id., 4 - 5 , 167.

238

See, e.g., id., 144, 154 - 158, 161 - 162; Restatement (note 8), § 702 (c), (d), (e) and (g) and comments a and n. 239

U N Charter, Arts. 55(c), 56.

240

Article 103 reads: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." The same result is guaranteed for jus cogens human rights. See Vienna Convention on the Law of Treaties, Arts. 53, 64. 241

See also Report (note 228), 151, also citing Van den Wyngaert, Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?, International and

Customary International Law in the United States: Clean and Dirty Laundry

Conclusion Customary international law has been incorporated directly and indirectly for civil sanction purposes in the United States for more than 200 years. It has also been incorporated directly for criminal sanction purposes early in the history of the United States and has been incorporated indirectly or by reference with respect to crimes since the formation of the United States. Both general forms of incorporation (i.e. direct and indirect) have included the recognition and/or conditioning of rights, duties and powers; and as 'law of the United States' within the meaning of several constitutional provisions, customary international law is relevant both to the restraint and enhancement of executive, congressional and judicial powers. In addition to its application to constitutional and jurisdictional issues, the historical use of customary international law by the U.S. judiciary has reached numerous subjects involving both governmental and private conduct. Given the growth of matters covered by customary international law and an increasing global interdependence, such influences are likely to spread. However, a strain on U.S. adherence to customary international law has arisen in the twentieth century in the form of an unresolved split concerning adherence to an act of Congress or a rule of customary international law when they are unalterably inconsistent. Threats to U.S. adherence have also recently taken other forms: a few textwriters are opposed to the continued use of customary international law as law of the United States and have openly attacked the nature and use of customary law; certain relatively recent isolationist tendencies have inhibited a full and direct incorporation of customary international law; there has been serious mistreatment of aliens due in part to an erroneous effort by Department of Justice lawyers who seek an immunity from law for the President and other federal officials; and certain judges have either not been sufficiently attentive to customary international law, the historical and continuous use of such law as federal law and its constitutional base as law of the United States or have been seemingly hostile to its limiting effect on Executive power. Hopefully this displacement of law by members of the judiciary will be temporary and not widespread. It is ultimately and unavoidably threatening to our constitutional system and to the notion that no one is above the law. Of course, at the international level and in foreign fora where immunity does not pertain, the United States and its nationals cannot avoid international responsibility for failures to effectuate customary international law. Continuance of isolationist tendencies and mistreatment of aliens can have serious consequences if others resort to diplomatic, political, economic and/or judicial Comparative Law Quarterly, vol. 39, 1990, 757, 762.

8*

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(civil or criminal) sanctions in response. In early U.S. history, the 'denial of justice* to aliens, triggering a right of others to engage in responsive sanctions, had been of significant concern and led in part to the adoption of the Alien Tort Claims Act. 242 An enlightened self-interest might lessen the threats to U.S. adherence to customary international law noted above, but sanctions (hopefully merely diplomatic and political) might facilitate an enlightened awareness of self and common interests.

242

See, e.g. y Paust (note 2), 258 - 260.

Expanding Remedies for Human Rights Abuses: Civil Litigation in Domestic Courts 4 By Beth Stephens**

For several years in the 1970s, Ethiopia was in the grip of a bloody campaign of atrocities known as the 'Red Terror'. 1 A brutal military regime tortured and murdered suspected enemies, targeting real or imagined opponents based on wild rumors or suspicions of disloyalty to the ruling clique. Thousands of people were detained, tortured and murdered, their bloody bodies often left lying in the streets as a warning to others. In 1979, 17-year-old Edgegayehu Taye fell under the disfavor of Kelbessa Negewo , local commander.2 She was thrown into a local jail, and held for 3 years, during which she was repeatedly and brutally tortured. Taye bears extensive scars as a result of her torture, emotional as well as physical. After her release, Taye managed to escape from Ethiopia. Miraculously, she reached a safe exile in the United States, where she established a new life. Over ten years later, while working as a waitress in a large hotel in Atlanta, Taye turned a corner at work and found herself face to face with Kelbessa Negewo , now * Reprinted with permission from Kelly Askin/Dorean M. Koenig (eds.), Women's International Human Rights Law, 1998 (Transnational Publishers, Inc., Irvington, NY). ** As a staff attorney at the Center for Constitutional Rights (CCR) from 1990 - 1995 and a CCR cooperating attorney since that time, the author has litigated many of the international human rights cases described in this article. Ms. Stephens is co-author of a book analyzing the legal theories underlying these cases; see Beth Stephens , International Human Rights Litigation in U.S. Courts (Transnational Publications 1996), as well as numerous articles on related topics, including Conceptualizing Violence Under International Law: Do Tort Remedies Fit the Crime?, Albany Law Review, vol. 60, 1997, 579; and The Civil Lawsuit as a Remedy for International Human Rights Violations Against Women, Hastings Women's Law Journal, vol. 5, 1994, 143. 1

For details about human rights abuses in Ethiopia during the Red Terror, see Alex de Waal , Evil Days: 30 Years of War and Famine in Ethiopia, 1991, 101 - 111. See also outline of facts in Abebe-Jira v. Negewo , 72 F.3d 844, 845 - 846 (11th Cir. 1996), cert denied 117 S. Ct. 96 (1996). 2 See description of facts, Abebe-Jira ν . Negewo , 72 F.3d at 845. Additional facts are taken from the trial testimony in the Abebe-Jiri case and from the district court judgment. Abebe-Jiri v. Negewo , No. 90-2010 (N.t). Ga. Aug. 20, 1993).

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working as a busboy at the same Atlanta hotel. Negewo had both personally tortured Taye and also commanded the torture center where she was held, a hellhole from which he sent dozens of people to death. Taye determined to find some means to hold Negewo accountable for what he had done to her and to many others. As for so many victims of gross human rights abuses, Taye* s options were limited. The abuses in Ethiopia had ended. Although the target of much international attention at the time, Ethiopia had faded from the spotlight. The new Ethiopian government was committed to prosecuting those responsible for the worst of the abuses,3 but had limited resources to investigate Negewo. Moreover, the United States and Ethiopia have no extradition treaty that could force Negewo to return to face trial. Taye's dilemma reflects the common plight of victims of human rights abuses. While the outlaw regime remains in power, they have no recourse at home. Far from protecting them or serving as instruments of justice, the police, judicial system and politicians serve as the allies of the perpetrators. Although the oppressive regime may be overthrown, new regimes often include holdovers from the past, determined to avoid investigation or punishment of the abuses of the prior government. Even when a new government is committed to justice, political compromises often lead to amnesty for those responsible,4 often urged by 'helpful' outside countries seeking a quick resolution to the crisis.5 In the rare case of a new regime committed to prosecution of participants in the reign of terror, such as Ethiopia, perpetrators like Negewo are able to escape prosecution by fleeing their home countries. Such departures are often promoted as necessary to the restoration of stability and 'reconciliation'.6 Compounding the problems, the international legal structure offers few options to the survivor of human rights abuses who has been denied justice at home. Victims of 3

See description of prosecutions in Thousands in Ethiopia Accused of Crimes Under Old Regime, The New York Times, Feb. 14, 1997, at A6; James C. McKinley , Ethiopia's Marxist Rulers Go on Trial, The New York Times, Apr. 28, 1996, § 4 (Week in Review), at 2. 4

See discussion of transitional governments and efforts to hold accountable those responsible for past human rights abuses in Naomi Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice, 1995. 5

See, e.g. y Lois E. Fielding , Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy, Duke Journal of Comparative & International Law, vol. 5,1995,329,363 (describing U.S. role in promoting amnesty for departing leaders of Haitian military junta); Robert O. Weiner , Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties, St. Mary's Law Journal, vol. 26, 1995, 857, 864 - 865 (same). 6

See, e.g. y Calvin Sims, Panama Grants Asylum to Leaders of Haiti Junta, The New York Times, Oct. 13, 1994, at A8 (describing U.S. efforts to obtain asylum for ousted Haitian military leaders).

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violations of international law can file reports with dozens of international and domestic bodies, both governmental and non-governmental. Those bodies, however, generally have no legal authority to stop abuses, punish the perpetrators or obtain reparations for the survivor. 7 These problems reflect the gross inadequacy of international law enforcement mechanisms. Over the last 50 years, the world community has developed an impressive set of international agreements that define basic rights and prohibit egregious violations of those rights. In major areas of human behavior, there is basic agreement on what behavior is unacceptable. Enforcement of those norms, however, remains spotty at best. The lack of enforcement mechanisms impacts most severely on women and other groups traditionally excluded from societal power. Violence against women, including rape and other gender-based violence, historically received scarce international attention, characterized, if at all, as an aspect of gender discrimination, rather than as a violent human rights abuse.8 This shocking marginalization of the problem mocks the enormity of the human rights abuses associated with gender. Significant numbers of the world's population are routinely subject to torture, starvation, terrorism, humiliation, mutilation, and even murder simply because they are female. Crimes such as these against any other group other than women would be recognized as a civil and political emergency as well as a gross violation of the victims' humanity.9

Over the past few years, an international campaign to bring women's human rights into the human rights mainstream, coupled with the brutal violence against women in the former Yugoslavia and Rwanda, sparked a renewed interest in analyzing the treatment of gender-based violence by international law.10 Enormous strides have 7

See discussion of enforcement mechanisms in Hurst Hannum (ed.), Guide to International Human Rights Practice, 2nd ed., 1992. A handful of exceptions only prove the rule: the members of the European human rights system, for example, have agreed to abide by the decisions of the European Human Rights Court. See Kevin Boyle , Europe: Council of Europe, the CSCE, and the European Community, in: id., 133 - 158. Some limited enforcement mechanisms are available to States, such as bringing a complaint against another State to the International Court of Justice. Statute of the International Court of Justice, June 26,1945, Art. 34, para. 2, 59, Stat. 1055, Treaty Series No. 993, 3 Bevans 1153. The United Nations can also impose sanctions ranging from reprimands to economic and diplomatic sanctions to military action. U N Charter, Chapter VII, Arts. 39-51. Such actions, however, are impossible without the ability to mobilize an enormous international effort. 8 See Deborah Blatt, Recognizing Rape as Method of Torture, New York University. Review of Law & Social Change, vol. 19, 1992, 821, 833; Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, Human Rights Quarterly, vol. 12, 1990, 486. 9

Bunch (note 8), 486.

10

Key events included the 1993 World Conference on Human Rights in Vienna, the 1994 International Conference on Population and Development in Cairo, and the Fourth World Conference on Women in Beijing in 1995, where women's right advocates successfully pushed

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been made in defining gender-based violence as an international law violation, when committed during war as well as peace.11 Despite this expanded attention, however, little progress has been made in enforcing women's right to be free from violence. The International Tribunal for the former Yugoslavia12 has been unable to obtain custody of the vast majority of those accused of violating women's rights. Many survivors of gender violence have found the Tribunal insensitive to their needs and unable to provide the physical, psychological and financial support necessary to enable them to testify about the trauma they have endured. The Rwanda Tribunal 13 has faced charges of inefficiency and financial abuses.14 Internationally, women's concerns have traditionally been handled by special bodies focusing on discrimination against women, which themselves have weaker, more restricted powers to respond to complaints than other international bodies.15 human rights issues of concern to women to the fore: "The recent series of world conferences leading up to Beijing provided the terrain for the coalescence of women as a global presence. . . . Women moved their concerns from the margin to the center of the international debates. ..." Rhonda Copelon , Bringing Beijing Home, Brooklyn Journal of International Law, vol. 21, 1996, 599, 600.

11 See, e.g. y Patricia Viseur Sellers/Kaoru Okuizumi , Intentional Prosecution of Sexual As saults, Transnational Law & Contemporary Problems, vol. 7,1997,45 (analyzing International Tribunal's handling of allegations of gender violence); Linda A. Malone , Beyond Bosnia and In reKasinga : A Feminist Perspective on Recent Developments in Protecting Women from Sexual Violence, Boston University International Law Journal, vol. 14, 1996, 319 (reviewing international response to violence against women); Theodor Meron, Rape as a Crime Under International Humanitarian Law, American Journal of International Law (hereinafter AJIL), vol. 87, 1993, 424, 426 - 427; Beth Stephens , Women and the Atrocities of War, Human Rights, vol. 20, 1993, 12, 13 - 15. See also Women's Caucus for Gender Justice, War Crimes Draft Text, Dec. 1997 (outlining proposed revisions to the draft statute of the International Criminal Court designed to incorporate current views of gender violence as international human rights violations). 12 The Tribunal for Yugoslavia was established in May 1993. S.C. Res. 827 of 25 May 1993, 32 I L M 1203 (1993). See James C. O'Brien , The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, AJIL, vol. 87, 1993, 639. 13 The Tribunal for Rwanda was established in November 1994. S.C. Res. 955 of 8 Nov. 1994, 33 I L M 1602 (1994). See Payam Akhavan , Current Developments: The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, AJIL, vol. 90, 1996, 501. 14

See summary of report prepared by the U N Inspector General in: Paul Lewis, U N Report Comes Down Hard on Rwandan Genocide Tribunal, The New York Times, Feb. 13,1997, at A13 ("scathing report" found Rwanda Tribunal suffering from chaotic management and financial abuses, and paralyzed by bureaucratic infighting). 15 See Blatt (note 8), 833 - 839; Bunch (note 8), 495 - 496; Sandra Colliver , United Nations Commission on the Status of Women: Suggestions for Enhancing its Effectiveness, Whittier

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Within the United Nations system, for example, the Convention on the Elimination of All Forms of Discrimination Against Women "is not generally regarded as a convention with teeth,"16 and neither the Women's Commission nor CED AW has even the limited investigatory and remedial powers afforded other U N human rights bodies. Proposals to grant such powers have, to date, been unsuccessful.17 Victims of human rights abuses thus are unlikely to obtain redress in the country where the abuses took place or through the international legal order. The domestic legal systems of other countries, those where the victims or the perpetrators may have relocated, offer another possible forum for obtaining justice. Criminal prosecution of those responsible for gross human rights abuses is, in theory, an option. Those who have committed gross human rights violations can be prosecuted in any country where they can be located, under the concept of universal jurisdiction. 18 Indeed, two international conventions, the Torture Convention19 and the Genocide Convention,20 require such prosecutions. The Torture Convention, for example, requires each State party to "ensure that all acts of torture are offenses under its criminal law,"21 and to either prosecute a torturer found within its jurisdiction or extradite such a person to a State that will do so.22 Similarly, the Genocide Convention requires States to punish those responsible for genocide.23 Such prosecutions, however, are extremely rare. As criminal proceedings, they generally require that govern-

Law Review, vol. 9, 1987, 435. The U N Commission on the Status of Women (the Women's Commission), established in 1947 by the United Nations Economic and Social Council, is responsible for promoting women's human rights, while the Committee on the Elimination of Discrimination Against Women (CEDAW) monitors compliance with the Convention on the Elimination of All Forms of Discrimination Against Women, which entered into force in 1981. GA res. 34/1980, U N Doc. A/Res/34/180 (1980). 16

Bunch (note 8), 496.

17

Andrew Byrnes/Jane Connors , Enforcing the Human Rights of Women: A Complaints Procedure for Women's Convention?, Brookline Journal of International Law, vol. 21, 1996, 679. 18

See discussion of universal jurisdiction infra (notes 90 - 96) and accompanying text.

19

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, GA res. 39/46, 39 U N GAOR, Supp. 51, U N Doc. A/39/51 (1984), 23 I L M 1027 and 24 I L M 535 (entered into force for the United States 20 November 1994) [hereinafter Torture Convention]. 20 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, Arts. 4 - 7, 102 Stat. 3045, 78 U N T S 277 (entered into force for the United States 23 February 1989) [hereinafter Genocide Convention]. 21

Torture Convention (note 19), Art. 4, para. 1.

11

Id. y Arts. 5 - 8.

23

Genocide Convention (note 20), Arts. 4 - 7.

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ment officials take the initiative.24 All too often, governments are loathe to become involved in human rights prosecutions of former officials of foreign States, preferring to leave such issues to the political and diplomatic process. A series of cases in the United States has developed a potentially powerful legal weapon in the struggle to hold accountable perpetrators of human rights abuses: civil lawsuits by victims and survivors against the individuals responsible for their suffering. This, indeed, was the path taken by Ms. Taye , along with two other women who had also been tortured by Kelbessa Negewo. The three women filed a civil complaint for damages against Negewo in U.S. federal court. The case was heard in a federal court in Atlanta, in a riveting trial at which the three torture survivors confronted their torturer in the courtroom. After a two-day trial without a jury, the judge issued a $ 1.5 million verdict for the plaintiffs. 25 This decision was upheld by the 11th Circuit. 26 The suit against Negewo relied on an unusual statute, the Alien Tort Claims Act (ATCA), 27 which permits such suits in U.S. federal court for violations of international law. The 200-year-old Alien Tort Claims Act provides: The district courts shall have original jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations.28

The ATCA had been largely ignored by the federal courts until 1980, when the Second Circuit decided the case of Fildrtiga v. Pena-Irala. 29 Fildrtiga involved a young man tortured to death in Paraguay in retaliation for his father's opposition to the 24

In some legal systems, private parties are able to initiate a criminal prosecution or participate as a party along with the government prosecutor. See, e.g., description of private prosecutions in France in: Richard S. Frase, Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?, California Law Review, vol. 78,1990, 542, 669. In practice, however, the procedures are often cumbersome, limited to a narrow range of crimes, and rarely used. See, e.g., id. y 670 (French procedure requires private party to post bond and imposes sanctions if defendant is acquitted). The basic distinction between privately initiated civil proceedings and government-sponsored criminal proceedings remains true in most legal systems around the world. See generally Mary Ann Glendon , et al. , Comparative Legal Traditions, 1982, 96. See also Richard B. Cappalli/ Claudio Consolo , Class Actions for Continental Europe? A Preliminary Inquiry, Temple International & Comparative Law Journal, vol. 6, 1992, 217, 269 (in Continental Europe, as in the United States, civil litigation is conceived as private remedy, while criminal process is controlled by a public official who represents the public interest). 25

Abebe-Jiri v. Negewo , No. 90-2010 (N.D. Ga. Aug. 20,1993) (judgment awarding damages).

26

Abebe-Jira v. Negewo , 72 F.3d 844 (11th Cir. 1996), cert, denied 117 S. Ct. 96 (1996) (judgment affirmed on appeal). 27 28 29

28 U.S.C. § 1350 (1994). Id. 630 F.2d 876 (2d Cir. 1980).

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military regime. The family's Paraguayan lawyer was arrested and threatened with death, while the culprit, Pena-Irala , was sent out of the country by the Paraguayan government. He moved to Brooklyn, where the Fildrtiga family located him and brought suit. The basic holding of Fildrtiga is that the ATCA means what it says: An alien can sue for a violation of law of nations — now known as international law — providing the perpetrator is either physically present in the United States or otherwise subject to the jurisdiction of U.S. courts.30 This holding has been affirmed repeatedly by courts around the United States.31 Key to the statute is the requirement of tort "in violation of the law of nations." The courts have recognized that international law evolves over time, allowing suits for human rights violations as that law is understood today. As the Fildrtiga court held, "[I]t is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today."32 30

See discussion of personal jurisdiction requirements infra (notes 83- 86) and accompanying text. 31

See, e.g.y Hilao v. Marcos y 103 F.3d 767 (9th Cir. 1996) (class action against former dictator of Philippines, for torture, summary execution and disappearance); Alvarez-Machain v. United States, 96 F.3d 1246 (9th Cir. 1996); Abebe-Jira v. Negewo t 72 F.3d 844 (11th Cir. 1996), cert, denied 117 S. Ct. 96 (1996) (torture, arbitrary detention of three Ethiopian women); Kadic v. Karadzicy 70 F.3d 232 (2d Cir. 1995), cert, denied 116 S. Ct. 2524 (1996) (leader of Bosnian Serbs sued for genocide, war crimes, torture, summary execution); Hilao v. Marcos y 25 F.3d 1467 (9th Cir. 1994), cert, denied, 115 S. Ct. 934 (1995) (preliminary decision on class action); Trajano v. Marcosy 978 F.2d 493 (9th Cir. 1992), cert, denied , 113 S. Ct. 2960 (1993) (Philippine dictator's daughter sued for torture, summary execution); Doe v. Unocaly 963 F. Supp. 880 (C.D. Cal. 1997) (corporation sued for complicity in human rights abuses in Burma); Cabiri v. AssasieGyimahy 921 F. Supp. 1189 (S.D.N.Y. 1996) (suit for torture against official of Ghana); Xuncax v. GramajOy 886 F. Supp. 162 (D. Mass. 1995) (ex-Minister of Defense of Guatemala liable for torture, summary execution, disappearance, cruel, inhuman or degrading treatment); Paul v. Avrily 812 F. Supp. 207 (S.D. Fla. 1993) (ex-dictator of Haiti sued for torture, arbitrary detention, cruel, inhuman or degrading treatment); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) (Argentine general liable for torture, summary execution, arbitrary detention); Forti v. Suarez-Masony 694 F. Supp. 707 (N.D. Cal. 1988) (Argentine general liable for disappearance). 32

630 F.2d at 881. The U.S. Congress concurred, in a legislative report accompanying the Torture Victim Protection Act, 28 U.S.C. § 1350 (note) (see discussion of T V P A infra (notes 40 - 45) and accompanying text), noting that the A T C A permits suits based on "norms that already exist or may ripen in the future into rules of customary international law." H . R . Rep. N o . 367, 102d Cong., 1st Sess. 4 (1992), reprinted in 1992 U S C C A N 84. International law scholars agree that this law is not static: There can be little doubt as to the correctness of the [Fildrtiga] court's view. Courts of the United States have long been aware of the evolving character of international law. Jeffrey M. Blum/Ralph G. Steinhardty Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Fildrtiga v. Pena-Irala , Harvard International Law Journal, vol. 22, 1981, 53, 59.

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Fildrtiga held that modern international law norms prohibit torture by government officials against their own citizens. The recognition that international law evolves over time was crucial to that holding, because earlier interpretations of international law had restricted its reach to relations between States or between one State and the citizens of another State.33 Later cases have recognized a growing list of international law violations that trigger ATCA jurisdiction. The decisions have generally converged around a standard first stated in Forti ν . Suarez-Mason, 34 a case against an Argentine general for abuses committed during the 'dirty war'. Forti held that the "tort . . . committed in violation of the law of nations" demanded by the ATCA must be one which is definable, obligatory and universal.35 In other words, the challenged activity must violate a definable norm; that norm must be one for which adherence is obligatory, not merely voluntary; and the norm must be accepted as universally binding. Applying this standard, the Forti court held that international law had recognized 'disappearance' as an international human rights violation, along with torture, summary execution and arbitrary detention.36 Later cases won judgments for cruel, inhuman or degrading treatment. 37 In a suit against the leader of the Bosnian Serbs for gross abuses committed in Bosnia-Herzegovina, the Second Circuit issued another strong endorsement of the Fildrtiga principle, applying it to genocide, war crimes and crimes against humanity.38 In a pending case arising out of corporate activities in Burma, plaintiffs seek to hold the defendants liable for two additional violations, forced labor and forced relocation, as well as crimes against humanity, torture and other human rights violations committed during the construction of an oil pipeline.39 The U.S. Congress recognized the importance of the ATCA and the Fildrtiga line of cases in 1992 with the passage of the Torture Victim Protection Act (TVPA).40 The TVPA creates a cause of action for damages for torture or summary execution 33

See Fildrtiga, , 630 F.2d at 884 - 885.

34

672 F. Supp. 1531 (N.D. Cal. 1987).

35

Id ., 1540 (international torts are those "characterized by universal consensus in the international community as to their binding status and their content. That is, they are universal, definable, and obligatory international norms."). 36

Forti v. Suarez-Mason , 672 F. Supp. 1531 (N.D. Cal. 1987) (torture, summary execution, arbitrary detention); 694 F. Supp. 707 (N.D. Cal. 1988) (on reconsideration) (disappearance). 37

Abebe-Jira v. Negewo , 72 F.3d 844 (11th Cir. 1996), cert, denied 117 S. Ct. 96 (1996); Paul v. Avril , 901 F. Supp. 330 (S.D. Fla. 1994); Xuncax v. Gramajo , 886 F. Supp. 162 (D. Mass. 1995). But see Forti v. Suarez-Mason , 694 F. Supp. 707 (N.D. Cal. 1988). 38

Kadic v. Karadzic , 70 F.3d 232 (2d Cir. 1995), cert, denied 116 S. Ct. 2524 (1996). See discussion infra (notes 68 - 72) and accompanying text. 39

Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).

40

28 U.S.C. § 1350 (note) (1994).

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committed under the authority of any foreign nation, no matter where, the abuses occurred. 41 In contrast to the ATCA, the TVPA permits U.S. citizens to sue, as well as aliens. In legislative reports accompanying the TVPA, Congress strongly endorsed the ATCA, as interpreted by Fildrtiga , stressing that "[s]ection 1350 has . . . important uses and should not be replaced,"42 and that "[t]he Fildrtiga case met with general approval."43 The reports state that the TVPA has several objectives, including allowing U.S. citizens as well as aliens to sue,44 and creating "an unambiguous and modern basis for a cause of action" for torture and summary execution.45 The Alien Tort Claims Act refers very broadly to torts "in violation of the law of nations,"46 thus allowing room for that concept to evolve over time. This is of particular importance in the area of gender-based violence, where recognition of human rights violations has been so slow. As pressure from women's rights advocates pushes the international community to recognize the connection between gender violence and international law, the newly developed norms can be asserted through ATCA litigation. Two complementary approaches are currently underway in such cases: one argues that gender-based violence is prohibited by existing international norms such as those prohibiting torture, 47 genocide and war crimes; the second seeks recognition of such violence as an independent international human rights violation. The first approach looks at international human rights norms and argues that, properly understood, rape and other gender-based violence are prohibited by existing provisions such as those governing torture, genocide and war crimes.48 Torture is defined under international law as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person," by or at the instigation of a public official, for purposes such as obtaining information or a confession, punishment, intimidation or coercion, or based on discrimination of any kind. 49 Rape and other gender violence that similarly inflicts severe pain or suffering will almost alId A 2(a). 42

H.R. Rep. No. 367, 102d Cong., 1st Sess. at 3 (1992), reprinted in 1992 U S C C A N 84; see also S. Rep. No. 249, 102d Cong., 1st S ess. (1992). 43 44

H.R. Rep. No. 367 at 4.

Id.

45

Id., 3.

46

28 U.S.C. § 1350.

47

The understanding that rape and other gender-based violence constitute torture permits such claims to be brought under the Torture Victim Protection Act. See, e.g. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995), where the rape of one plaintiff, Sister Dianna Ortiz, was considered part of the torture for which she was awarded damages under the TVPA. 48

Blatt (note 8); Stephens, Women and the Atrocities of War (note 11), 14; Meron (note 11), 426 - 427. 49

Torture Convention (note 19), Art. 1.

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ways constitute torture, since such acts will generally be committed to punish, intimidate or coerce the victim, or as a form of discrimination based on gender. Other forms of gender-based violence received wide attention during the war in Bosnia-Herzegovina, including forced prostitution and forced impregnation. These also constitute torture: they inflict severe mental and physical pain and suffering, and were likewise committed with the requisite intent. Forced impregnation, "an impregnation that results from an assault or series of assaults on a woman perpetrated with the intent that she become pregnant,"50 presumably results from one or more rapes. It is nevertheless important to recognize that intentional impregnation of a woman constitutes an additional and separate human rights violation: Forced impregnation makes the humiliation of rape more complete, more prolonged, and more inescapable. For at least the duration of the pregnancy, and for a lifetime if she keeps the child, the woman may be unable to put the rape behind her and move on with her life. Forced impregnation subjects the victim to the certainty of physical pain and to a risk of death or serious injury not present at the time of the original rape. 51

Forced prostitution also involves an additional violation, in addition to that inflicted by rape. Forcing a woman into prostitution prolongs her agony, subjecting her to repeated rapes. The widespread cultural condemnation of prostitution may also add to the harm inflicted on a victim. Understanding that rape and other gender-based violence are forms of torture brings those violations within the scope of the TVPA and the ATCA. The TVPA allows suits for torture, defined by the statute in a manner that closely tracks the international law definition. 52 The ATCA allows suit for torts "in violation of the law of nations," which clearly includes torture. 53 Rape and other gender-based violence fit within both these statutes. The decision in a case brought by Dianna Ortiz , a U.S. nun who was kidnaped and brutally tortured in Guatemala, recognized that rape was one part of that torture, and awarded damages under the TVPA against the former Minister of Defense of Guatemala.54

50

Anne Goldstein , Recognizing Forced Impregnation as a War Crime Under International Law, 1993, 4 (pamphlet produced by the Center for Reproductive Law and Policy). 51

Id., 17.

52

The TVPA defines torture as an act which intentionally inflicts "severe pain or suffering," whether that be physical or mental, for the purposes of obtaining information, punishment, intimidation, coercion, "or for any reason based on discrimination of any kind." § 3 (b)(1). "Mental pain or suffering" is further defined as "prolonged mental harm" caused by the infliction or threatened infliction of physical pain or suffering. § 3(b)(2)(A). 53 54

See list of cases which have recognized torture as triggering A T C A jurisdiction (note 31).

Xuncax ν . Gramajo , 886 F. Supp. 162 (D. Mass. 1995). Sister Ortiz could not file suit based on the A T C A , which is limited to suits by "an alien."

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Rapes and other gender-based violence committed as part of an attempt to destroy a racial or ethnic group or during war are also prohibited by existing international prohibitions against genocide55 and war crimes.56 As such, they would also trigger ATCA jurisdiction, as violations of fundamental norms of international law. As noted above, a recent ATCA case held that genocide and war crimes fall within that statute's requirement of a tort "in violation of the law of nations."57 Rape and other gender violence were among the abuses considered by the court in reaching the conclusion that plaintiffs had properly invoked ATCA jurisdiction. 58 A second, complementary approach defines gender-based human rights abuses as the independent international abuse of "gender violence." It is important that the particular characteristics of these human rights violations not be lost within definitions of broader international torts: rape is an international human rights violation even if not connected to genocide or not committed during a war, and rapes and other gender violence committed in Bosnia-Herzegovina, for example, constitute international torts even if unconnected to the broader pattern of genocide.59 Gender violence, while constituting torture, also has independent characteristics that should be acknowledged by international law. The evolving nature of international law could lead to the definition of the international tort of gender violence, independent of other international human rights 55

See definition of genocide in the Genocide Convention (note 20), Art. 1.

56

The Geneva Conventions prohibit violence to life and person, including murder, mutilation, cruel treatment, torture and "outrages upon personal dignity" in all armed combat. See article 3 of each of the four Geneva Conventions. Geneva Convention (No. I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 6 UST 3114, TIAS No. 3362, 75 U N T S 31, entered into force 21 October 1950; the Geneva Convention (No. Π) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 6 UST 3217, TIAS No. 3363, 75 U N T S 85, entered into force 21 October 1950; the Geneva Convention (No. ID) Relative to the Treatment of Prisoners of War, 6 UST 3316, TIAS No. 3364, 75 U N T S 135, entered into force 21 October 1950; and the Geneva Convention (No. IV) Relative to the Protection of Civilian Persons in Time of War, 6 UST 3516, TIAS No. 3365, 75 U N T S 287, entered into force 21 October 1950. Grave breaches of the laws of war include torture, inhumane treatment, and "willfully causing great suffering or serious injury to body or health." Geneva Convention IV, Art. 147. Rape and other gender-based violence clearly fall within these definitions. See sources cited (note 11). 57 58 59

Kadic v. Karadzic , 70 F.3d 232,241 - 243 (2d Cir. 1995), cert, denied 116 S. Ct. 2524 (1995). Id.

See Rhonda Copelon , Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War, in: Alexandra Stiglmayer (ed.), Mass Rape, 1994, 197, 202 (raising concern that the response to genocidal rapes in Bosnia-Herzegovina had led the international community to overlook so-called "common" rapes and the fact that rapes also violate international law when not associated with genocide).

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violations.60 Two international declarations on violence against women begin the process of defining such a tort, one drafted by the U N Commission on the Status of Women,61 a second adopted by the Inter-American community.62 The U N Declaration defines violence against women as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women."63 Both declarations include private violence as well as State-sponsored violence as an international human rights violation. They view State encouragement, toleration or failure to prevent 'private* violence against women as sufficient to trigger State responsibility. Several pending cases allege gender violence as an independent international human rights violation. A case against a fundamentalist paramilitary group operating in Algeria, for example, alleges that the group targeted women for persecution because of their gender, including rape, other torture and murder. 64 If a court finds that gender violence reaches the level of a universal, definable, and obligatory norm, the evolving definition of the law of nations incorporated into the ATCA will allow it to be raised as an independent cause of action.

60

The identification of "gender violence" as an international human rights abuse along with abuses such as genocide, torture and war crimes, does not, of course, imply that such violence is not often, in the real world, an inextricable aspect of these violations. Rather, it serves to focus attention on the aspects of gender violence that are common to all such violence. As part of the ongoing negotiations on the text of a statute regulating the proposed International Criminal Court (ICC), the Women's Caucus for Gender Justice in the I C C has called for a two-track approach: specific mention of sexual violence, along with recognition that such violence triggers the prohibitions currently in place. The Women's Caucus proposal suggests: That crimes of sexual and gender violence be incorporated as war crimes in a manner which reflects the principle against discrimination and the progressive developments in customary international law, specifically, that rape and other forms of sexual and gender violence must be recognized (i) as crimes in themselves; and (ii) as constituting one or more of the enumerated crimes against the person, including the most severe crimes of violence, and not simply humiliating and degrading treatment.... Women's Caucus for Gender Justice, War Crimes Draft Text 1, December 1997. 61

Declaration on the Elimination of Violence Against Women, GA res. 48/104, U N G A O R , 48th Sess., Agenda Item 111, U N Doc. A/RES/48/104 (1994), 33 I L M 1049. 62

Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Para), 9 June 1994, 33 I L M 1534. 63 64

Declaration on the Elimination of Violence Against Women (note 61), Art. 1.

Doe v. Islamic Salvation Front , F.Supp. (D.D.C. 1998), not yet reported (suit against Islamic fundamentalist group for attacks on women and girls). See also Kadic v. Karadzic , 70 F.3d 232,237 (2d Cir. 1995), cert, denied 116 S. Ct. 2524 (1996) (complaint filed against Karadzic includes specific cause of action for gender violence); Doe v. Unocal , 963 F. Supp. 880 (C.D. Cal. 1997) (suit against oil consortium and military regime in Burma includes claim of gender violence).

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Efforts to seek remedies for victims of gender-based violence, then, should proceed upon both tracks: recognizing the fact that such violence is prohibited by existing norms, while also pushing for the development of an independent prohibition of gender violence. The flexibility permitted by the Alien Tort Claims Act requirement of a violation of the law of nations has also allowed courts to apply modern standards to define who can be held liable under the statute. In Fildrtiga , the first of this line of U.S. cases, the family of the torture victim sued the actual torturer. Similarly, the AbebeJiri plaintiffs sued a man who had actually participated in their torture. Later cases, however, sued commanders who had designed, directed and implemented plans for massive human rights violations. A series of cases held accountable Argentine general Suarez-Mason , who had designed and commanded a campaign of human rights abuses in the capital of Argentina during the 'dirty war\ 65 Others were filed against Hector Gramajo , the former minister of defense of Guatemala, who commanded some of the .most vicious abuses against indigenous Guatemalans in the early 1980s,66 and against Sintong Panjaitan , an Indonesian general responsible for an army massacre in East Timor in which the Indonesian army murdered hundreds of unarmed civilians marching in a funeral procession.67 In an important application of the doctrine, a U.S. appellate court held that private or semi-private actors can be held liable for human rights violations, where the international law definition of the abuse so allows.68 The case was filed against Radovan Karadzic , the leader of the de facto Bosnian-Serb regime responsible for horrendous human rights abuses in Bosnia-Herzegovina. The district court dismissed the lawsuits, in part because the judge held that international law governs only the conduct of recognized States and their officials. In fact, international law has long governed at least some conduct by private individuals, such as pirates and slave traders. Over the last 50 years, the list of international law norms that govern private behavior has expanded significantly, and now includes genocide and certain war crimes. On appeal, the Karadzic court recognized that international law defines genocide as a crime when committed by private or public actors — indeed the Genocide Convention specifically states that it applies to "constitutionally responsible rulers, public officials or private individuals."69 Under the Convention, therefore, a rancher who wipes out a local ethnic group in order to get access to their land is guilty of genocide, just as much as an official of a State who sets out to destroy the population

65

Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987).

66

Xuncax v. Gramajo , 886 F. Supp. 162 (D. Mass. 1995).

67

Toddv. Panjaitan, No. 92-12255, 1994 W L 827111 (D. Mass. Oct. 26, 1994).

68

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).

69

Genocide Convention (note 20), Art. 4.

9 GYIL 40

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of an enemy State or a minority population in his own country. Thus, an allegation of genocide against anyone — private party or State actor — triggers jurisdiction under the ATCA. In a related fashion, the laws of war define certain egregious conduct as a war crime when committed by either side to a civil war, regardless of whether those acts rise to the level of State action. Common article 3 of the Geneva Conventions70 bars violence to life and person, including murder, mutilation, cruel treatment, torture and "outrages upon personal dignity," and states that all participants in armed conflict are prohibited from committing such acts. Thus, an allegation of such violations triggers ATCA jurisdiction when committed by any party to the conflict, whether a State or not. Certain international law violations, such as torture and summary execution, are defined by international law so as to require governmental involvement.71 However, the requisite State action does not require that the State be a recognized government. In the Karadzic case, the Second Circuit realized that diplomatic recognition is not necessary to a finding of State action, and held that as the leader of a de facto regime, Karadzic acted under color of law. In key language, the Court said: [T]he state action concept, where applicable for some violations like "official" torture, requires merely the semblance of official authority. The inquiry, after all, is whether a person purporting to wield official power has exceeded internationally recognized standards of civilized conduct, not whether statehood in all its formal aspects exists.72

This is of great importance for victims of human rights abuses in the many parts of the world where forces ranging from local warlords to unrecognized military regimes wield power, maintaining that power through repression and abuse. The acknowledgment that some international law norms bind private actors is also an important step toward recognition of violence in the home as a human rights violation. Most violence committed by a private person is considered a crime punishable under local law, not a violation of international law. Increasingly, however, commentators argue that rape committed by private actors should be considered an international human rights violation, and that governments should be held responsible when

70

Each of the four Geneva Conventions begins with several identical articles, known as Common articles. Common article 3 sets basic standards for combat applicable in any armed conflict, whether internal or international. See article 3 of the Geneva Conventions (note 56). 71

The Torture Convention (note) 19, Art. 1, for example, prohibits torture committed "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." The TVPA bars torture and summary execution committed "under actual or apparent authority, or color of law, of any foreign nation." TVPA, 28 U.S.C. § 1350 (note), § 2(a). 72

70 F.3d at 245.

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they condone or even encourage male violence against women.73 When such principles reach the level of universal, definable and obligatory international law norms, violations will be actionable under the Alien Tort Claims Act. Recent cases in the United States have addressed human rights violations committed by corporations in complicity with State actors. In 1996, Burmese victims of human rights violations filed a lawsuit against Unocal Corporation, a California corporation, and Total, a French oil company, alleging that the corporations bear legal responsibility for a range of human rights violations, including crimes against humanity, torture and slavery committed during the construction of an oil pipeline.74 Defendants argued that the lawsuit failed to trigger jurisdiction under the Alien Tort Claims Act because only States or State actors are bound by international law. The California district court rejected that argument, recognizing that certain international norms bind private parties as well as State actors, so that "private actors may be liable for violations of international law even absent state action." [S]lave trading is included in that "handful of crimes" for which the law of nations attributes individual responsibility The allegations of forced labor in this case are sufficient to constitute an allegation of participation in slave trading. Although there is no allegation that SLORC [the military regime] is physically selling Burmese citizens to the private defendants, plaintiffs allege that, despite their knowledge of SLORC's practice of forced labor, both in general and with respect to the pipeline project, the private defendants have paid and continue to pay SLORC to provide labor and security for the pipeline, essentially treating SLORC as an overseer, accepting the benefit of and approving the use of forced labor. 75

The court also found valid the theory that the private corporations could be considered State actors if they acted in complicity with the government of Burma. Here, plaintiffs allege that [the Burmese military government and its state-owned oil company] are agents of the private defendants; that the defendants are joint venturers, working in concert with one another; and that the defendants have conspired to commit the violations of international law alleged in the complaint in order to further the interests of the Yadana gas pipeline project. . . . Plaintiffs have alleged that the private plaintiffs were and are jointly engaged with the state officials in the challenged activity, namely forced labor

73

See, e.g., Rhonda Copelon , Recognizing the Egregious in the Everyday: Domestic Violence as Torture, Columbia Human Rights Review, vol. 25,1994,291; Celina Romany, State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, in: Rebecca J. Cook (ed.), Human Rights of Women: National and International Perspectives, 1994, 85; Donna Sullivan , The Public/Private Distinction in International Human Rights Law, in: Julie Peters/Andrea Wolper (eds.), Women's Rights, Human Rights: International Feminist Perspectives, 1995, 126; Blatt (note 8), 859 - 860. 74 Doe v. Unocal , 963 F. Supp. 880 (C.D. Cal. 1997). Claims against the Burmese military government were dismissed by the Court on the basis of foreign sovereign immunity. 75

9*

Id., 891 -892.

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and other human rights violations in furtherance of the pipeline project. These allegations are sufficient to support subject-matter jurisdiction under the A T C A . 7 6

These precedents could contribute to increasing accountability for human rights abuses committed by corporations. Civil lawsuits in U.S. courts for violations of already accepted or emerging human rights norms do face significant limitations that reduce their impact. The doctrine of sovereign immunity, codified in the United States as the Foreign Sovereign Immunities Act (FSIA),77 presents perhaps the most significant obstacle to more effective human rights litigation. The FSIA affords recognized foreign governments immunity from suit in U.S. courts unless the case falls within a short list of specified exceptions. A few claims have successfully triggered those exceptions, including a lawsuit against Argentina in which the court found that Argentina had waived immunity by seeking to use U.S. courts to continue its harassment of the plaintiff. 78 A case against Chile, for the murders of Orlando Letelier and a U.S. activist, and one against the Philippines, for the murder of a union activist, have been successful because the murders took place in the United States, triggering an exception for injuries occurring in this country. 79 Where the abuses took place in another country and the exceptions for waiver or commercial activities are not applicable, human rights suits against foreign governments have not been successful. U.S. courts have rejected arguments that sovereign immunity does not apply to allegations of gross human rights abuses,80 as well as a re-

76

I d , 891.

77

28 U.S.C. SS 1330, 1602 - 1611 (1994) [hereinafter FSIA].

78

Siderman v. Argentina, 965 F.2d 699 (9th Cir. 1992), cert, denied, 507 U.S. 1017 (1993), relying on 28 U.S.C. § 1605(a)(1), the implied waiver exception to the FSIA. Siderman also applied FSIA exceptions for commercial activity within the United States or having direct effects in this country, 28 U.S.C. § 1605(a)(2), and for certain seizures of property in violation of international law, id., § 1605(a)(3). 79 Letelier v. Chile , 488 F. Supp. 665 (D.D.C. 1980) (Chile liable for murders committed in Washington, D.C.); Domingo v. Republic of Philippines, No. 82-1055 (W.D. Wash. July 17, 1984) (unpublished opinion) (government of Philippines liable for murder committed in the state of Washington), both relying on 28 U.S.C. § 1605(a)(5) (exception to FSIA immunity for claims for personal injury or death occurring in the United States). In the Burma case, however, the district court judge rejected plaintiffs' claim that the allegations against the Burmese military junta fell within 28 U.S.C. § 1605(a)(2), the FSIA exception for certain commercial activities. Doe v. Unocal, 963 F. Supp. 880 (C.D. Cal. 1997). 80

Over a strong dissent, the D.C. Circuit Court of Appeals rejected a claim by a concentration camp survivor that by committing gross violations of the most fundamental human rights norms, Nazi Germany had waived any right to be considered a sovereign State entitled to immunity protection. Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994).

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lated argument that such immunities do not apply to claims arising under treaties such as the Geneva Conventions.81 In addition to the immunity granted to the foreign government itself, accredited diplomats are immune from suit for human rights abuses, unless their government chooses to waive the immunity.82 Moreover, attempts to sue either the U.S. federal government or its officials for violations of international law have generally failed under U.S. immunity principles,83 although suits against local government officials may be possible.84 Human rights litigation must also satisfy the requirement that the defendant be subject to suit in the forum State. The United States recognizes transitory jurisdiction, allowing suit against a defendant who is traveling through the United States, as long as the legal complaint and summons are served on that defendant while physically present here.85 The assertion of jurisdiction over individuals present only temporarily in the forum State raises concerns in many legal systems. In Europe, for example, the widely-ratified convention on jurisdiction requires a connection between the forum State and the claim, and generally rejects transient jurisdiction. 86 However, where the defendant is an individual living in the forum State or a corporation headquartered there, personal jurisdiction would generally be permissible.87 In fact, most of the cases litigated in the United States to date involve either individual 81 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 429 (1989) (no FSIA exception for tortious acts in violation of international treaties). 82 See Diplomatic Immunities Act, 22 U.S.C. §§ 245a et seq. (1994) (diplomats are immune from criminal and civil jurisdiction); Vienna Convention on Diplomatic Relations, 18 April 1961, 23 UST 3227, 500 U N T S 95 (same). 83 See Sanchez-Espinoza v. Reagan, 770 F.3d 202 (D.C. Cir. 1985) (sovereign immunity protects U.S. officials from A T C A suits alleging human rights abuses). 84 See discussion of suing U.S. defendants in: Beth Stephens & Michael Rainer, International Human Rights Litigation in U.S. Courts, 1996, 104 - 108. 85 The U.S. Supreme Court upheld jurisdiction based on transitory physical presence in Burnham v. Superior Court of California , 495 U.S. 604 (1990). The Second Circuit upheld the assertion of personal jurisdiction over Karadzic , who was served while visiting New York, on the basis of Burnham. Kadic v. Karadzic , 70 F.3d at 247. 86

Jurisdiction in most countries in Europe is governed by the Brussels Convention, which permits personal jurisdiction, inter alia , over domiciliates of the forum State and over those who commit a harm in the forum State. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Arts. 2, 5, done at Brussels, Belgium, 27 September 1968, as amended, 1990 OJ (C 189) 1, 29 I L M 1413 (1990). Transient jurisdiction, which is permitted by some of the signatory States, is considered a form of 'exorbitant' jurisdiction which therefore cannot be asserted in cases involving other parties to the Brussels Convention. Id., Arts. 3, 4. 87 The Brussels Convention would require 'domicile', which is determined by the domestic law of each signatory. Id., Art. 52(1).

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defendants who were actually living in the United States at the time of suit, or organizational defendants that maintain offices or a corporate presence in the United States.88 Civil cases such as those filed under the ATCA and TVPA have generally been litigated only in the United States. A different standard for the assertion of personal jurisdiction is one reason. Such litigation, however, also requires assertion of extraterritorial jurisdiction over the subject matter of the case: a human rights violation committed in another country. International law generally requires a link between the conduct at issue in a lawsuit and the forum State.89 Many people outside of the United States are understandably concerned about the U.S. tendency to assert jurisdiction over people, organizations and events abroad. The latest of many such controversies over extraterritorial jurisdiction centers on U.S. legislation which penalizes foreign corporations that maintain business ties with Cuba.90 Long before the Cuba flap, however, the international community had questioned the U.S. tendency to impose its law on the rest of the world. In the past twenty-five years the United States has had three major exports: rock music, blue jeans, and United States law. The first two have acquired an acceptance the last can never achieve. People resent being told what to do. 91

Despite the U.S. history of questionable claims of extraterritorial jurisdiction, however, the human rights litigation pioneered in the United States decision is firmly based on sound international law principles. The cases all involve violations for which international law applies universal jurisdiction, which allows any State to as-

88 See, e.g., Fildrtiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (Pena-Irala living in Brooklyn at time lawsuit was filed);Ahebe-Jiri v. Negewo, 72 F.3d 844 (11th Cir. 1996), cert, denied 117 S. Ct. 96 (1996) (Negewo living in Atlanta); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1985) (Gramajo living in Cambridge, Massachusetts); Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) (Avril living in Miami); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) {JuarezMason living in California); Belance v. FRAPH, No. 94-2619 (E.D.N.Y. June 1, 1994) (motion for default judgment pending) (woman tortured by members of Haitian death squad sued the group in New York, where it had opened an office); Doe v. FIS, No. 96-2792 (D.D.C. Dec. 17, 1996) (Islamic fundamentalist group sued in Washington, D.C., where it had office); Doe v. Unocal, 963 F. Supp. 880 (C.D. Cal. 1997) (corporation based in U.S.); Wiwa v. Royal Dutch Petroleum Company , No. 96-8386 (S.D.N.Y. Nov. 8,1996) (same). 89 Restatement (Third) of the Foreign Relations Law of the United States, 1986 [hereinafter Restatement (Third)], § 421. 90

David E. Sanger, U.S. Won't Offer Trade Testimony on Cuba Embargo, The New York Times, 21 February 1997, at A l (describing European challenge to U.S. statute penalizing foreign firms that fail to comply with Cuba embargo). 91 Rock V. Grundman, The New Imperialism: The Extraterritorial Application of United States Law, International Lawyer, vol. 14,1980,257,257, cited in U.S. v. Verdugo-Urquidez, 494 U.S. 259, 281 (1990) (BrennanJ., dissenting).

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sert jurisdiction over certain crimes of international dimension.92 The principle of universal criminal jurisdiction for certain human rights violations is widely recognized. The Restatement (Third) of Foreign Relations Law, defines it as follows: [A] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, [and] war crimes. 93

Universal jurisdiction is based on the recognition that "international law permits any state to apply its laws to punish certain offenses although the state has no links of territory with the offense, or of nationality with the offender (or even the victim)."94 Although international law generally requires a connection between the subject matter of a claim and the forum State,95 for a crime triggering universal jurisdiction, the connection is satisfied by the universal interest in punishing such conduct. Similar arguments apply to jurisdiction over civil lawsuits alleging human rights abuses: the requirement of a connection between the forum State and the acts that are the subject of the action is satisfied by the universal interest in obtaining redress for victims of human rights abuses. The Restatement, for example, recognizes tort liability for violations subject to universal criminal jurisdiction: In general, jurisdiction on the basis of universal interests has been exercised in the form of criminal law, but international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy in tort or restitution for victims of piracy."

At the very least, then, international law permits States to provide a civil remedy for victims of human rights abuses. Moreover, some have argued that universal jurisdiction obligates States to permit victims of human rights abuses to litigate civil tort cases. In the Fildrtiga case, for example, the Second Circuit applied to civil litigation the doctrine holding certain violators subject to prosecution wherever found: "[F]or the purposes of civil liability, the torturer has become — like the pirate and slave trader before him — hostis humani generis , an enemy of all mankind."97 The legislative history of the Torture Victim

92

Restatement (Third) (note 89), §§ 404, 423.

93

M , §404.

94

Id. y comment a.

95

Id. y SS 402 - 403 (jurisdiction to prescribe), 421 (jurisdiction to adjudicate). In general, according to the Restatement, international law requires a connection between the forum State and the subject of the lawsuit sufficient to render the assertion of jurisdiction reasonable. Id. y SS 403, 421. 96

Id. y S 404 comment b. See Kenneth C. Randally Federal Questions and the Human Rights Paradigm, Minnesota Law Review, vol. 73, 1988, 349, 417 - 419. 97

Fildrtiga

630 F.2dat890.

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Protection Act indicates that the U.S. Congress shares the view that permitting civil remedies is a means of complying with international law: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. . . obligates state parties to adopt measures to ensure that torturers are held legally accountable for their acts. One such obligation is to provide means of civil redress to victims of torture. 98

Providing access to a civil remedy satisfies emerging international obligations to provide effective redress to victims of human rights abuses. The Universal Declaration of Human Rights states, in general terms, "Everyone has the right to an effective remedy by the competent national tribunals for acts violating... fundamental rights. . . ."" The remedy must offer the victim a "day in court." 100 The International Covenant on Civil and Political Rights similarly requires each State party to ensure victims of abuses "an effective remedy," 101 while the Declaration on the Protection of All Persons from Enforced Disappearance, guarantees both "redress" and "the right to adequate compensation. . . . 1,102 The U N Human Rights Commission has elaborated the concept of a right to a remedy for human rights abuses, including access to judicial remedies: As a matter of principle every State has the responsibility to redress human rights violations and to enable the victims to exercise their right to reparation The legal system of every State should, therefore, deal with such issues in a just and effective manner. 0 3

98

H . Rep. No. 367,102d Cong., 1st Sess. (1992). The Torture Convention requires criminal prosecution or extradition, with no specific mention of access to a civil remedy, an absence which led President Bush to question the connection between the Convention and the statute. See Signing Statement of President Bush, 4 U.S. Code Congressional and Administrative News 91 (1992) (the TVPA "does not help to implement the Torture Convention"). 99 Universal Declaration of Human Rights, 10 December 1948, Art. 8, GA Res. 217A (ΠΙ), U N G A O R , 3rd Session, U N Doc. A/810 (1948). 100

Naomi Roht-Arriaza y State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, California Law Review, vol. 78, 451, 475. 101

International Covenant on Civil and Political Rights, 16 December 1966, Art. 2(3), 999 U N T S 171, 6 I L M 368 (entered into force for the United States 8 September 1992). 102

18 December 1992, GA res. 47/133, U N Doc. A/Res/47/133 (1992), Art. 19. See Beth Stephens , The Civil Lawsuit as a Remedy for International Human Rights Violations Against Women, Hastings Women's Law Journal, vol. 5, 1994, 143, 167 - 168. 103 Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Second Progress Report submitted by Mr. Theo van Boven , Special Rapporteur, U N ESCOR, 45th Session, Annex, paras. 6, 21, U N Doc. E/CN.4/Sub.2/1992/B (1992) [hereinafter Second Progress Report]. See also Final Report Submitted by Mr. Theo van Boven , Special Rapporteur, U N ESCOR, 45th Session, U N Doc. E/CN.4/Sub.2/1993/8 (1993).

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The remedy clearly includes redress for the harms suffered: "Every State owes it to the victims of gross violations of human rights to see to it that . . . those who have suffered receive reparation," 104 including restitution, compensation and rehabilitation. 105 The emerging principle of the right to a remedy thus includes both reparation and access to judicial remedies that will allow a fair hearing on the claim. Coupled with the concept of universal jurisdiction, the right to a remedy may lead to the recognition of an obligation under international law to offer victims the option of seeking civil remedies, even where the abuses did not take place in the forum State.106 The victim's right to seek remedies in another forum is dependent upon a showing that all domestic remedies — i.e., remedies in the home State — have been exhausted. Thus, the obligation to offer access to civil remedies for violations occurring elsewhere would only be triggered where the home State had failed to meet its obligations, so that no other remedies were available to the victim. The jump from the obligations of the State where the violations took place — the State most clearly bound by the right to offer effective means of redress — to other States, those where the victims or the perpetrators have relocated, is thus justified by the fact that no remedies are available in the home country. In the cases litigated in the United States, for example, the States in which the abuses were committed include those such as East Timor, 107 suffering under an illegal occupation, or those where, at the time of the lawsuits, the military regime dominated the judiciary, rendering futile any efforts to seek remedies at home, such as Paraguay,108 Guatemala109 and Haiti. 110 Remedies in another forum are often essential for another reason: when conditions in the home country change, those responsible for the abuses of the prior regime often flee, seeking to avoid accountability by moving to another country. Several U.S. cases involved dictators who sought sanctuary in the United States after being forced from power, including Ferdinand Marcos of the Philippines111 and the Haitian general, Prosper Avril }n Indeed, in adopting the Torture Victim Protection Act, the

104

Second Progress Report, id..

105

Measures to Combat Racism and Racial Discrimination, ESC Res. 1988/32, U N ESCOR, 40th Session, Supp. 1, 31, U N Doc. E/1988/99 (1988). 106

As noted above, this obligation is already in place for the State in which the abuses took

place. 107

Todd v. Panjaitan, No. 92-12255, 1994 W L 827111 (D. Mass. Oct. 26, 1994).

108

Fildrtiga

109

Xuncax v. Gramajo, 886 F. Supp. 162 p . Mass. 1995).

110

Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993).

v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

111

Hilao v. Marcos, 103 F.3d 767 (9th Cir. 1996).

112

Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993).

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U.S. Congress noted that those who abuse human rights should not be afforded "safe haven" in this country. 113 As a minimum, then, civil lawsuits in the country to which a defendant has relocated serve as a signal to the perpetrator that he cannot escape responsibility for his past. For the victims and survivors of gross human rights violations, the decision to pursue a lawsuit requires a weighing of personal needs and human rights objectives. Some victims will join a lawsuit to satisfy their need to seek justice and to stand up to the abuser. Hirute Abebe-Jiri, one of the Ethiopian women who joined Edgegayehu Taye in the case against Kelbessa Negewo , felt strengthened by the opportunity to confront Negewo in court: "It felt good," she told a reporter. "Before I was tied up and hanging upside down. But this time I am standing up and facing him. I don't have to be afraid. This is everybody's case, not just mine."114 Other survivors, however, may find that testifying about their ordeals would be unhelpful, forcing them to relive the trauma. Many individuals with potential claims choose not to join a lawsuit, concluding that the potential outcome is not worth the pain. Others fear that participating in litigation might endanger their lives or those of their family members. In response to such concerns about safety, several U.S. complaints have been filed with anonymous plaintiffs. The name of the plaintiff is withheld from the defendant and the public unless and until it becomes necessary to disclose it. Of course, it is never possible to guarantee that no one will figure out an anonymous plaintiff's identity, or that a court official will not err and release a supposedly sealed name; several potential litigants have chosen to withdraw from lawsuits rather than run such a risk. Although civil lawsuits for human rights abuses seek money damages, financial compensation is often difficult to collect, even after a favorable judgment. Cases against foreign governments, where they fall within an exception to the Foreign Sovereign Immunities Act, have led to enforceable judgments, as in the claim for the murder of Orlando Letelier by Chilean government agents115 and a settlement in a longstanding case for torture and illegal expropriation filed by the Siderman family against Argentina. 116 Claims against individual defendants are more difficult, because the assets of the defendants are often hidden or otherwise out of reach, but efforts to

113

The Senate Report accompanying the statutes states that the TVPA will "mak[e] sure that torturers and death squads will no longer have safe haven in the United States." S. Rep. No. 249, 102d Cong., 1st Sess. (1992) at 3. 114

Ronald Smothers , Nightmare of Torture in Ethiopia is Relived in Atlanta Court, The New York Times, May 22, 1993, at 6. 115

Letelier v. Chile, 488 F. Supp. 665 (D.D.C. 1980).

116

Siderman v. Argentina, 965 F.2d 699 (9th Cir. 1992), cert, denied, 507 U.S. 1017 (1993).

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collect are underway in several cases. A billion-dollar judgment against Marcos may lead to a significant payment to thousands of victims of his regime.117 Even where collection is not possible, plaintiffs express satisfaction about the outcome of their cases. Plaintiffs enter most of these cases knowing that collection of damages may be difficult. They participate because they are interested in obtaining a judicial declaration of the defendant's liability, in a forum capable of rendering a judgment. Such judgments contribute in multiple ways to the promotion of human rights norms. U.S. decisions further the human rights movement in the plaintiffs' home countries, offering a focus for education and organizing about human rights violations. Human rights litigation also helps educate the U.S. judiciary and public about international law and the role of the U.S. government in supporting governments which abuse human rights. The Burma and Nigeria cases seek to strengthen growing international efforts to force multinational corporations to comply with international human rights standards. Suits against individual defendants have led to trials in two cases, the series of actions against Marcos 111 and the suit by the three Ethiopian women against Negewo. 119 Other defendants have chosen to flee U.S. jurisdiction and abandon the litigation, usually after losing efforts to have the case dismissed for lack of jurisdiction. The U.S. maintains jurisdiction over the case in such a situation, rendering a default judgment. Although defaults deprive the plaintiffs of an opportunity to confront the defendant directly, in several cases, court hearings on the default have provided an opportunity to testify in front of a judge and present witnesses. Further, several of the judges in such cases have published decisions which create detailed records of the defendants' human rights abuses. In the words of a Magistrate Judge hearing the case against Radovan Karadzic , "If a fraction of the allegations set forth in the complaints are true, the defendant is one of the most ruthless criminals this century has produced."120 Default judgments may have several negative consequences for the defendant: Guatemalan general Hector Gramajo , for example, saw his political career in Guatemala damaged by the U.S. human rights judgment, and lost his visa to visit the United States.121 Default judgments are fully enforceable in the United States, if the defendant has assets in this country. In the absence of such assets, plaintiffs must seek enforcement in other countries, a process complicated by the need to first locate assets, then freeze them so they are not removed pending seizure, and finally obtain 117

Hilao v. Marcos , 103 F.3d 767 (9th Cir. 1996).

m

Id.

119

Abebe-Jira v. Negewo , 72 F.3d 844 (11th Cir. 1996), cert, denied 117 S. Ct. 96 (1996).

120

Doe v. Karadzic , No. 93-878 (S.D.N.Y. Feb. 3,1997) (discovery ruling).

121

Xuncax v. Gramajo , 886 F. Supp. 162 (D. Mass. 1995).

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an enforcement order in the State where the assets are located. Enforcement may be more difficult if the judgment is based upon a default, as some States are reluctant to enforce foreign default judgments. The impact of civil litigation as a remedy for human rights violations will be limited so long as it is undertaken primarily in the United States. To be fully effective, such remedies must be linked by international norms stating that access to a civil remedy in a domestic court system is a right. International recognition will greatly facilitate enforcement of judgments in other States, as well as making it far more difficult for perpetrators to avoid liability by moving from one country to another. Imagine an international network in which human rights activists share information about the location of those responsible for human rights abuses and work together to hold them accountable and to seek remedies for victims and survivors. Only when we have the means to coordinate our resources, to track down and hold accountable those who have committed gross human rights violations, will we be on the path towards compensation, punishment and deterrence.

Treaties in the Legal System of Russia By Igor I. Lukashuk

Introduction The progress of human society is indissolubly linked with the internationalization of all aspects of social life. Mankind today is faced head-on with global problems on the solution of which its survival depends. The problem of making the global international system more governable thus assumes paramount importance. International law and national law play the central role in resolving this problem. This, above all, is what makes the interaction between these two forms of law so important. An additional reason for the importance of this interaction is the fact that the role of international law in the operation and improvement of national legal systems is today growing, while, on the other hand, national law is gaining importance as a tool for the implementation of international law. Every country develops on its own basis, yet the influence of national socio-political systems on one another is growing. The number of common elements in economics, politics, ideology and law is increasing all the time. Historical experience shows that the best possible conditions for social progress are created by the rule of law. The legal system of a State governed by the rule of law must correspond to international standards and must be capable of interacting actively with international law and the legal systems of other States. A State governed by the rule of law is an essential element of the international community ruled by law. The Author would like to think that the coming century will at last see the fulfillment of the historic role of the human race, which Immanuel Kant defined as "the achievement of a universal civil society ruled by law."1 A conception of foreign policy, including as one of its elements a conception of international law, is currently being formulated in Russia. The process is taking place under radically changed national and international conditions. A civil society, a new State system, a new legal system are being created in Russia. Complex economic and social problems, sometimes so acute as to reach critical level, must be resolved. This explains why the attention of society in Russia is focused principally on domestic 1

Immanuel Kant, Works (in Russian), vol. 6, Moscow 1996, 12.

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issues, why these issues predominate in determining Russia's foreign policy and, consequently, why Russia's foreign policy is increasingly oriented towards protecting national interests. Foreign policy sometimes is hostage to internal political struggles. Such a situation makes it difficult to ensure that the foreign policy conception being established will adequately reflect the new conditions of the international system as it is today; yet their novelty is considerable. The end of the cold war brought with it an intensified process of internationalization, not only of the lives of States, but also of those of all human beings. Under the new conditions, the importance of the common interests of States, of the interests of the international community as a whole, is growing. The time has already come when even the most powerful State cannot safeguard its national interests on its own. For this purpose, it must cooperate with other countries and respect their common and separate interests. In other words, the policy of any State today must be that of a member of the international community. Only by concerted efforts can States resolve not merely the global problems on which the future of mankind depends, but also an increasing number of national problems. The changes that have taken place within the international system could not fail also to be reflected in the sphere of international law. The law of the international community, the distinguishing feature of which is the increased emphasis placed on safeguarding the interests of the international community as a whole, is in a process of development. Suffice it to recall the concept of the global commons, the evolving law of sustainable development etc. The role of international organizations in safeguarding common interests is growing and their powers are being expanded accordingly. One may refer, for example, to the growing role of General Assembly resolutions in the development of international law, or the intensification of the Security Council's activities in maintaining international law and order, including the use of armed force and the establishment of international criminal tribunals. Substantial changes are taking place in the mechanism whereby norms of general international law are created. They are being created by the international community of States as a whole, i.e. by a sufficiently representative majority of States. We have seen the emergence of the concept of erga omnes obligations, respect of which is the concern of all States and in the protection of which all States have a right to participate. There are grounds for believing that something in the nature of actio popularis will become established in international law in the near future. The rights deriving from this new legal institution will at first be implemented by the United Nations on the initiative of Member States. The affirmation in international law of the principle of democracy, in accordance with which only a State that meets the universally accepted standards of democracy can be a full member of the international community, is a matter of the greatest im-

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portance.2 This principle is reflected in international instruments and is confirmed more and more frequently in doctrine.3 In a State governed by the rule of law, universally recognized human rights and the supremacy of law must be guaranteed, and authority must be based on general elections. This is the interpretation that should be given to the provision of the Charter of the United Nations in accordance with which membership in the United Nations is open to all peace-loving States that accept the obligations contained in the Charter and, in the judgment of the Organization, are able and willing to carry out these obligations (Article 4.1). Only a democratic State is able to accept and carry out obligations under the Charter, in particular, the obligation to refrain from the threat or Use of force, to develop friendly relations based on respect for the principle of equal rights and self-determination of peoples and to achieve cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all. Only democratic States governed by the rule of law are able to create the conditions necessary for the observance of justice and respect for obligations deriving from treaties and other sources of international law. All this elevates the interaction between national and international law to a new level and calls for a high degree of harmonization between them. The Author does not claim to have succeeded in pinpointing with any measure of completeness all the new developments that have taken place within the international system and in international law. The task was limited to trying to convey the most general idea of the depth of the changes a State must take into account in formulating its conception of international law and, in particular, in setting up a mechanism for interaction between international and national law.4

2 Compare G. Dmitrijeva/I. I. Lukashuk , International Principle of Democracy, Foreign Affairs (Moscow), 1992, Nos. 11 -12 (in Russian). 3 For example, it is upheld by two authoritative authors writing in the same publication. "Any other form of government [but democracy], given the specific circumstances of the contemporary world, lacks legitimacy and should not receive international recognition." Christian Tomuschat, The Concluding Documents of World Order Conferences, in Theory of International Law at the Threshold of the 21st Century: Essays in Honor of Krzysztof Skubiszewski, 1996, 579. See also Boutros Boutros-Ghali, Pour un droit international de la démocratie, id., 999 et seq. 4

Compare 1.1. Lukashuk, Russia's Conception of International Law, Parker School Journal of East European Law, vol. 2, 1995, No. 1.

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I. The Constitution of Russia and International Law The Constitution of Russia, adopted in a nationwide poll in 1993, laid the foundations for a democratic State based on the rule of law and for a foreign policy of a member of the international community. The preamble to the Constitution reads: "We, the multinational people of the Russian Federation, adopted the Constitution recognizing ourselves to be a part of the world community." This provision is confirmed by the Constitution's general position on international law, a position regularly confirmed by the Head of State. In the Message of the President of Russia to the Federal Assembly of 1997, the Russian view of the new world order is expressed in the following terms: "The world of the twenty-first century must rely less on military and far more on the force of law."5 The Constitution provides as follows: Universally recognized principles and norms of international law as well as international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes rules that differ from those stipulated by law, the rules of the international treaty shall apply. (Article 15.4).

This provision not only confirms the principle of compliance with international law but also creates the corresponding guarantee in constitutional law, incorporating international law into the country's legal system and conferring a special status to its norms. In consequence, all organs of the State must be guided in their activities by norms of international law. The main role in ensuring the conformity of national law with norms of international law belongs to the President. This is borne out, in particular, by his practice of rejecting laws enacted by the Federal Assembly on the ground that they contradict universally accepted norms of international law. Thus on 17 March 1997 the President vetoed the Federal Act on Works of Cultural Value Displaced in the Territory of the USSR as a Result of the Second World War that are Now in the Territory of the Russian Federation. The first ground for the rejection of this act was defined as follows: "The federal act relies primarily on a unilateral solution of the problem of displaced works of cultural value and fails to take into account universally recognized standards of international law. . . . " A further, very interesting ground given for the veto is the failure of the act "to determine a mechanism for the integration of the works in question into the contemporary system of circulation of works of cultural value," which entails "the impossibility, in principle, of exhibiting them in many countries of the world." In other words, the works in question are regarded as part of the cultural heritage of mankind as a whole. 5

Rossiyskaya Gazeta, 7 March 1997.

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In accordance with the conception of a democratic State governed by the rule of law, the Constitution gives a separate, special status to universally accepted principles and norms relating to human rights. "In the Russian Federation human and civil rights and freedoms shall be recognized and guaranteed according to the universally recognized principles and norms of international law and this Constitution." (Article 17.1). The principles and norms of international law are actually placed before the constitution and consequently have at least the same force as the Basic Law. "Man and his rights and freedoms shall be the supreme value." (Article 2). "Basic human rights and freedoms shall be inalienable and shall be enjoyed by everyone from birth." (Article 17.2). This conclusion is further confirmed by the provision that "the enumeration in the Constitution of the Russian Federation of the basic rights and freedoms should not be interpreted as a denial or diminution of other universally recognized human rights and freedoms." (Article 55.1). It will be seen from the above that the main role in determining the scope and content of inalienable human rights is assigned to universally recognized norms of international law. They cannot be restricted even by the constitution. Expanding the range of universally recognized rights and freedoms entails corresponding changes in the national law of Russia without the necessity of promulgating any legal acts. The constitution also makes it obligatory to be guided by universally recognized principles and norms of international law in a number of other articles pertaining to human rights. Special note should be taken of the fact that the constitution proclaims "the right of everyone in accordance with treaties of the Russian Federation to appeal to inter-State bodies for the protection of human rights and freedoms if all internal means of legal protection have been exhausted." (Article 46.3). All this suggests a completely new level of interaction between international and constitutional law on the basis of the principle of democracy. By and large the Russian Constitution settles the issue of interaction between national and international law in a manner commensurate with present-day requirements. By incorporating universally recognized principles and norms into the country's legal system, thus making compliance with them Constitutionally binding on all State organs, it creates a normative basis for a foreign policy based on the rule of law. The Constitutional provisions relating to international treaties are developed further in the Act on International Treaties of the Russian Federation of 1995.6 The preamble to this act emphasizes the role of treaties and draws attention to their legal functions by stating that treaties form the legal basis for relations between States and represent an essential element of stability in the international legal order. A reference 6

Compare Commentary to the Federal Act on International Treaties of the Russian Federation, Moscow, 'SPARK* Publishing House, 1996 (in Russian).

10 GYIL 40

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to the importance of treaties for the functioning of a State governed by the rule of law, of whose legal system they form a part, deserves particular attention. At the same time, it should be realized that the constitutional proclamation of the basic principles of a conception of international law is not the end of the story. The problem of incorporating the conception into real life, into the day-to-day practice of State organs, is a far more complex matter. In order to resolve it not only are new laws needed but also major shifts in Russian society's awareness of the law, a higher standard of legal culture in general. Υ. I. Skuratov, Prosecutor General of Russia, recognized this when he stated: "The direct operation of the Constitution, the priority of international norms, have been proclaimed, but no one knows how this is to be reflected in the realities of our life." 7 The Author does not think that the situation in Russia is unique in this respect. Generally speaking, neither the legal systems of States nor legal practitioners are yet ready for the new level of interaction between national and international law. II. The Status of Treaties in the Legal System of Russia As already stated, the status of treaty norms in the Russian legal system is determined by the Constitution in the following terms: "If a treaty establishes rules that differ from those stipulated by statute, then the rules of the treaty shall apply." This provision is also reproduced in the International Treaties Act, Article 5.2. Many jurists claim that this norm establishes the primacy of treaties over laws. In the opinion of certain authors, it means that treaties are second only to the Constitution.8 The Author's view is that the situation is somewhat different. Constitutional norms have primacy in the country's legal system. That means that the country's laws must not contradict the constitutional norms and will be invalid in the event of discrepancy. Treaties are a different matter. In the event of a discrepancy with law, a treaty does not invalidate the norm that contradicts it, but rather makes an exception from it for the specific case in point, e.g. by granting greater trade rights than those provided by law to the other party's nationals. In all other cases, the legal norm remains in force. 9

7

Izvestia, 1 December 1995.

8

Compare S. A. Ivanov , Application of I L O Conventions in Russia in the Period of Transition, Gosudarstvo i pravo, 1994, Nos. 8 - 9, 72 (in Russian). 9 The 1996 Constitution of Ukraine provides as follows: Foreign nationals and stateless persons lawfully in Ukraine shall enjoy the same rights and freedoms and have the same obligations as citizens of Ukraine, subject to exceptions established by (a) international treaties of Ukraine (Art. 260).

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There may be cases in which a treaty rule makes a specific norm of law inapplicable in all cases, but here as well this is a matter of the inapplicability of the norm rather than of its invalidity or repeal. If and when the treaty ceases to be in force, the norm of law again becomes applicable. A treaty can create an exception to a whole series of legal norms or laws; it can establish a special regime. In such cases, norms of national law are applied only if no appropriate treaty rules exist. This is a situation peculiar to certain forms of cooperation. It often forms the subject of special provisions. The Agreement on Cooperation in the Field of Transport between Russia and Ukraine provides as follows: "Questions not regulated by international agreements shall be settled in accordance with the laws of each of the Contracting Parties."10 The conclusion therefore must be drawn that the constitutional provision under consideration means priority of application of treaty rules, but not that they have primacy. 11 Their priority is, rather, a matter of the priority of specific law over general law (lex specialis derogat lege generale). If the practice of the organs of justice is examined, it can be seen that they generally prefer to speak of the priority of international norms. That is the precise expression used by the Prosecutor General in the statement cited earlier. The Constitutional Court adopts a similar position. In a Decision of 2 February 1996 it states that a norm contained in the International Covenant on Civil and Political Rights, "being an integral part of the legal system of Russia, has priority over internal legislation in matters of the protection of rights and freedoms. . . ." 12 The view that the treaty norm has priority over the norm established by law is thus expressed clearly. The following question naturally arises. If, in accordance with the above-mentioned provision of Article 15 of the Constitution, a treaty has only priority of application, on what grounds do judicial organs recognize treaties as having general supremacy over laws? It seems to the Author that this is determined by the general principles of the State under the rule of law as set forth in the constitution. It derives from the very nature of the legal system. In the words of A. Rodionov, Deputy Director of the International Law Division of the Ministry of Justice of the Russian

10

International Treaties Bulletin 1993, Nos. 8, 52 (in Russian).

11

This conclusion is also confirmed by the practice of other countries. For example, in its ruling in the Jacques Vahre case (1975), the French Court of Cassation took the view that in the event of a discrepancy between the provisions of European Community law and a French law, the Community law is applicable. That does not mean, however, that the French law in question is repealed, but only that it is not applied in the instant case. This position is based on Art. 55 of the French Constitution and is also applicable to other treaties. Revue trimestrielle de droit européen 1975, 336. 12

1

Code of Laws of the Russian Federation, 1996, No. 7, Art. 701 (in Russian).

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Federation, "The principle of the supremacy of international law is one of the key principles of our legal system."13 The principle of compliance in good faith with obligations under international law is also incorporated into the Russian legal system as a universally recognized principle of international law. According to this principle, in exercising their sovereign rights, including the right to determine their laws and regulations, States should conform to their obligations under international law.14 In making it binding on States to ensure the conformity of their law with international obligations, the principle pacta sunt servanda does not spell out how this goal is to be achieved, leaving this to the discretion of States. For this reason, the principle can serve only indirectly as proof of the need to establish the priority of treaties. But the central role is played by the principles of a State governed by the rule of law. This conclusion is confirmed by the practice of the Constitutional Court of Russia. Its decision of 31 July 1995 contains the following: In accordance with the principles of the State governed by the rule of law as set forth in the Constitution of the Russian Federation, organs of authority shall in their activities be bound by both internal and international law. Universally recognized principles and norms of international law and international treaties... must be complied with in good faith, inter alia by being taken into account in internal legislation.15

As can be seen, the decision proceeds on the assumption that compliance in good faith with international obligations is founded on the principles of the State governed by law. This provision has general significance. There is reason to believe that recognition of the priority of obligations under international law is today becoming a characteristic feature of the State governed by the rule of law, which must also be a State governed by the rule of international law. This trend is also confirmed in the latest constitutions.16 In this connection mention should be made of the role of the Interparliamentary Assembly of the Commonwealth of Independent States, which exercises a good deal of influence in bringing the national laws of the countries represented within the CIS into line with norms of international law. This goal is achieved principally through the preparation of model laws, including major instruments such as the criminal and 13 A. A. Rodionov, Legal Assistance Treaties, First Conference of Scholars and Practitioners on Questions of Application of Norms of International Law by Russian Law Enforcement Agencies, Moscow 1996, 63 (in Russian). 14

Compare 11. Lukashuk , The Principle pacta sunt servanda and the Nature of Obligation under International Law, American Journal of International Law, vol. 83, 1989. 15

Code of Laws of the Russian Federation, 1995, No. 33, Art. 3424.

16

See, e.g., the Constitution of Poland as of 1997, Arts. 9 and 88.3.

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civil codes. In all, around forty model laws have been adopted at the beginning of 1997. In the words of M. I. Krotov, General Secretary of the Council of the Assembly, "Our joint work must be based on the cornerstone principle of the supremacy of international law over national law."17 Russia's experience shows that consistent implementation of the principle of the priority of treaties over legislation is not an easy task. Most of Russia's laws contain a standard provision that reproduces the constitutional norm concerning the priority application of treaty rules. In a few rare cases the law speaks of the "priority of international law."18 Some laws establish a hierarchy of norms in which international norms appear immediately below the constitution. In the act introducing amendments and additions to the Space Activities Act of 1996, norms of international law and treaties come after the constitution and before federal acts.19 Constitutional statutes are not mentioned, presumably because the constitution does not envisage the promulgation of such statutes in the sphere of space activities. In some laws, acts of internal law occupy the first position and are followed by international norms. Russia's Air Code of 1997 provides as follows: International flights of air vessels in the air space of the Russian Federation shall be carried out in accordance with the legislation of the Russian Federation, universally accepted principles and norms of international law and international treaties of the Russian Federation. (Article 79.2). 20

Such a formulation would appear to be acceptable. It should be understood to mean that flights are in principle regulated by national law, provided that different rules do not follow from universally recognized norms of international law or from treaties. The situation is not the same if such a formulation is contained in a law that determines the hierarchy of norms according to their legal force. The Federal Constitutional Statute on the Judicial System of the Russian Federation of 1996 determines a hierarchy of norms of the legal system that is binding on the courts.21 A court, having found in the course of examining a case that an act by an organ of the State is inconsistent with a legal provision, "shall adopt a decision consistent with the legal provisions having the greater legal force." The hierarchy of legal provisions is established in the same passage (Article 5.3), as follows: "The Constitution, a constitutional statute, a federal law, universally recognized principles and norms of international law, an international treaty, the Constitution of a subdivision of the [Russian] Feder17

Nezavisimaya Gazeta, 27 March 1997.

18

Federal Animal Kingdom Act, 1995, Art. 12, Rossiyskaya Gazeta, 4 May 1995 (in Rus-

sian). 19

Rossiyskaya Gazeta, 10 December 1996.

20

Rossiyskaya Gazeta, 26 March 1997.

21

Rossiyskaya Gazeta, 6 January 1997.

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ation, a law of a subdivision of the Federation." Thus a federal law is considered to have greater legal force than norms of international law, including treaty norms, and consequently must be given priority application by the court. Such an approach bears little relation to the priority of treaty norms. The constitutional statute in question contradicts the constitutional provision according to which, in the event of divergence between a treaty rule and a rule of national law, the treaty rule shall be applied. To the mind of the Author, in such a case courts should be guided by the constitution rather than by the Statute on the Judicial System of the Russian Federation. Certain acts fail to mention treaties at all in cases in which to do so would be entirely appropriate. Thus, although the Act on Internal Forces of the Ministry of the Interior of the Russian Federation refers to the protection of human rights and freedoms as one of the chief tasks of such forces, treaties are not mentioned among the legal foundations for the internal forces' activities.22 Some of the provisions with respect to treaties have a unique character. The Criminal Executive Code provides as follows: The criminal executive law of the Russian Federation shall take account of international treaties of the Russian Federation relating to the enforcement of penalties and the treatment of convicted persons in accordance with economic and social possibilities. (Article 3.1). 23

This provision clearly represents a response to certain treaty provisions, such as those contained in Article 2.1 of the International Covenant on Economic, Social and Cultural Rights. Its inclusion here, however, appears otiose, especially as the next paragraph of the same article contains the standard formula concerning the priority of treaty rules. Thus the priority status of treaties is not yet reflected with sufficient consistency in national legislation. Generally speaking, legislators are aware of the need to give greater attention to the international law aspects of legislation. This is evidenced, in particular, by the establishment of a Consultative Committee of Experts in International Law attached to the lower house of parliament, the State Duma. The committee's membership includes well-known specialists in the field of international law. Since treaties form part of the country's legal system and compliance with them is binding on all State organs, legal instruments concerning ministries, especially those connected with foreign relations, ought to contain the appropriate provisions. However, in this respect as well consistency is lacking. In the Provision on the Interior Ministry of the Russian Federation, approved by a presidential decree of 1996, it is stated that "the Ministry shall be guided in its activities by the Constitution of the 22

Rossiyskaya Gazeta, 12 February 1997.

23

Rossiyskaya Gazeta, 16 January 1997.

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Russian Federation, constitutional statutes, federal acts, decrees and orders of the president of the Russian Federation, decisions and orders of the government of the Russian Federation, universally recognized principles and norms of international law, international treaties of the Russian Federation and this provision." 24 Thus the priority status of international law is here understood in a rather original manner. Lastly, it should be noted that the Provision on the Ministry of Foreign Affairs approved by presidential decree on 14 March 1995 contains no mention at all of either international law or treaties. All this gives support to the conclusion that in presidential acts as well the priority status of treaties has not yet been duly reflected. The items cited led a group of experts of the Council of Europe to conclude that the claim that international treaties form part of Russia's legal system appears to be a matter of theory more than of practice.25 It is difficult to agree wholly with this conclusion. In the space of a few years Russia has covered a great deal of ground along the path of confirming the priority status of treaties in the national legal system. Nor should the circumstance be ignored that the realization of such priority status is not an easy task. This is borne out by the experience of the States of the European Union, of which it can hardly be said with confidence that they have all achieved complete priority status for treaties in their national legal systems. The Russian Constitution speaks of the priority application of the rules of "international treaties of the Russian Federation." According to the International Treaties Act, "international treaties of the Russian Federation are treaties concluded on behalf of the Russian Federation (interstate treaties), on behalf of the government (intergovernmental treaties) or on behalf of the federal organs of executive power (agreements of inter-ministerial nature)." Do all these treaties enjoy priority application under the constitution? The International Treaties Act does not provide a direct answer to this question and confines itself to reproducing the relevant provision of the constitution. The Supreme Court of the Russian Federation has stated its view of the matter. The decision of the court plenum of 31 October 1995 proceeds on the assumption that treaty rules have priority only if consent to be bound by them "has been adopted in the form of

24

Rossiyskaya Gazeta, 31 July 1996.

25

Human Rights Law Journal, vol. 15, 1994, No. 7, 287.

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a federal act."26 That is a logical position. Scholars can be found among its supportée

27

ers. A further circumstance that speaks in favor of this position is the fact that the International Treaties Act prescribes the ratification of treaties "which establish rules other than those provided by law." (Article 15.1). This formulation coincides with that contained in Article 15 of the Constitution. At the same time, it is difficult to imagine that the absence from both the Constitution and the Treaties Act of a provision to the effect that only ratified treaties have priority over laws is accidental. The significance of such a provision for the country's legal system is too great. In other countries, including the former Soviet republics, a special proviso to this effect is included: that is the case, for example, with the Ukrainian act on the validity of international treaties in Ukrainian territory. As a participant in the work of the constitutional conference to consider the draft constitution as well as in the preparation of the draft International Treaties Act, the Author was witness to the fact that a proposal to include a provision to the effect that only ratified treaties have priority was submitted and considered. But in both cases the proposal was rejected. The significance of this should not be overlooked. In the Author's view it is necessary to distinguish between two cases: (a) the treaty introduces sufficiently important changes into national legislation, modifies or replaces its rules or establishes different general rules; (b) the treaty establishes 'different rules' only for a specific case without affecting the force of the legal rule as a whole, i.e. it creates an exception only for a specific situation. In the former case, only ratified treaties are taken into consideration, since they have priority over national laws; the latter case does not concern ratified treaties alone, since it merely involves priority of application. A solution of this kind has considerable practical value. A discrepancy between a treaty and national law can emerge in the course of application. In such a situation, recognition of the priority of application of rules established by an intergovernmental treaty appears justified. On the one hand, such an interpretation ensures the stability of national law and the executive's compliance with it, and it enlarges the executive's possibilities of protecting the national interest in specific circumstances. All this, however, still belongs only to the realm of doctrinal interpretation. Meanwhile, what has binding force for Russian courts is the decision of the plenum of the Supreme Court of the Russian Federation according to which only ratified treaties can establish rules having priority over rules of national law. 26 27

Rossiyskaya Gazeta, 28 December 1995.

Compare , e.g., G. M. Dartilenko , Application of International Law in the Internal Legal System of Russia: The Practice of the Constitutional Court, Gosudarstvo i pravo, 1995, No. 11, 123 (in Russian).

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What can be established beyond dispute? Ratified treaties have priority over all norms of national law except constitutional norms. Intergovernmental treaties that have not been ratified also form part of the country's legal system, but at their own level. Such treaties have priority over government acts and all other acts that are hierarchically below them. Agreements of an inter-ministerial nature are not governed by the provisions of the constitution and the International Treaties Act concerning priority of application of the rules of international treaties. They have priority only over acts of the ministry that has concluded the agreement. Special mention should be made here of the long-standing rule to the effect that an agreement between the ministries of different States, while an international agreement, cannot directly create rights and obligations for private individuals.28 The Author would add that agreements concluded on a higher level but in simplified form also do not have to be applied by the courts.29 Practice shows that government decisions have priority over decisions of an interministerial character. Thus, on 25 January 1992 an agreement was signed between the Ministry of Defense of Russia and the Ministry of Defense of Lithuania concerning the transfer to the Lithuanian side of two torpedo boats and certain other items of military property. The Lithuanian side undertook to build residential quarters for Russian military personnel at Kaliningrad. However, in June of the same year the foreign trade concern Spetsvneshtekhnika was granted exclusive rights of sale of military technology abroad by a decision of the Russian government. Although the agreement had been concluded before the adoption of the decision, its implementation was discontinued. In the Author's opinion, this case should be regarded as exceptional. Inter-ministerial agreements are inter-State treaties and should be treated with respect by all State organs. III. The Constitutionality of Treaties The problem of the relationship between the constitution and international treaties is resolved by the constitution itself, which proclaims its own supreme legal force throughout the territory of the Russian Federation. "Laws and other legal acts that are adopted in the Russian Federation must not contradict the Constitution of the Russian Federation." (Article 15.1). In consequence, no norm of the country's legal

28

"It may be readily admitted that, according to a well-established principle of international law, the Beamtenabkommen , being an international agreement, cannot, as such, create direct rights and obligations for private individuals. " Jurisdiction of the Courts of Danzig, P.C.I.J., Ser. B, No. 15, 1928, 3 (advisory opinion). 29 This provision was confirmed, for example, by the decision of the State Council of France of 12 July 1965, ILR 47 (1974), 313.

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system, including norms incorporated on the basis of an international treaty, may contradict the constitution. Similar provisions exist in other countries. Additional light on this question is shed by the International Treaties Act, which provides a special procedure for the expression of consent to be bound by treaties containing rules that necessitate modifications of some provisions of the constitution. Consent may be expressed only after the appropriate corrections have been made in the Constitution (Article 22). The constitution provides for the promulgation of a number of constitutional statutes. The status of these is below that of the constitution but higher than that of other laws. The International Treaties Act is silent on the question of the relationship between treaties and constitutional statutes. However, as in the case of the constitution, since a treaty is ratified by a federal act that cannot contradict constitutional statutes preliminary modification of the latter is necessary before the treaty can be ratified. The conformity of treaties with the constitution is verified by the Constitutional Court of the Russian Federation. The relevant powers of the court are defined by the Constitution and by the federal constitutional statute establishing the Constitutional Court of the Russian Federation of 1994.30 The constitution places it within the competence of the Constitutional Court to decide on matters relating to conformity with the constitution of "international treaties that are not in force." (Article 125.2 - r). That is not a formulation distinguished by its clarity. Treaties 'not in force' include treaties that are at different stages of conclusion and that have different legal status. They may have been signed or ratified. The main question that arises in connection with this provision is the following. Is the Constitutional Court empowered to consider a case relating to the compliance with the constitution of a treaty by which Russia has consented to be bound, e.g. by ratifying it? The views of legal experts diverge on this point. A Constitutional Court judge, professor of international law Ε. M. Ametistov, reaches the following conclusion: It follows that there are cases in which an international treaty has already passed through one of the above-mentioned procedures for the expression of consent to be bound by it but has not yet entered into force for the Russian Federation. In such cases as well an application requesting the verification of the constitutionality of such a treaty by the Constitutional Court can be considered admissible.31

Another author writing in the same publication, L. V. Lazarev y takes a different view. The only power pertaining to preliminary verification of conformity with the constitution is the right of the Constitutional Court to settle cases relating to the conformity with the 30 31

Code of Laws of the Russian Federation, 1994, No. 13, Art. 1447.

Federal Constitutional Statute on the Constitutional Court of the Russian Federation, Commentary, Moscow, Yuridicheskaya Literatura, 1996, 275 - 276 (in Russian).

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constitution of international treaties that are not in force ..., i.e. that have not been ratified by the State Duma or approved by another federal organ of State power empowered to do so.32

The latter point of view would appear to be legally better founded. Having expressed consent to be bound by a treaty, for example by ratifying it, a State may withdraw such consent or impeach the treaty only on the basis of international law. According to the Vienna Convention on the Law of Treaties, the provisions of a treaty regulating the establishment of the consent of States to be bound by the treaty apply from the time of adoption of its text (Article 24.4). The consent of a State to be bound by a treaty may be impeached only through the application of the law of treaties (Article 42.1). Under the Vienna Convention, a State may not invoke the fact that its consent to be bound by a treaty was expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent. An exception is provided if the provision violated was a rule concerning competence to conclude treaties (and only such a rule and none other). Furthermore, the violation must have been manifest and must have concerned a rule of fundamental importance (Article 46). Consequently, if we proceed on the assumption that in adopting the Constitutional Court Statute the legislators had no intention of violating norms of international law, the expression "international treaties that are not in force" must be understood to mean treaties by which Russia has not yet consented to be bound. This interpretation is also supported by the provisions of the Constitutional Court Statute. This statute states that from the time the Constitutional Court declares that it has found a treaty that is not in force, or individual provisions of such a treaty, not to be in conformity with the constitution, the treaty in question may not be brought into force or applied, or, in other words, "it cannot be ratified or approved or otherwise enter into force for the Russian Federation." (Article 92.1). From this it can be seen that 'bringing into force' refers to acts of expression of consent to be bound by the treaty (ratification, approval etc). At the same time, the Constitutional Court Statute also provides that finding a treaty or a separate provision thereof to be unconstitutional represents a ground for the repeal of the provisions of other normative acts based on that treaty or reproducing it or containing identical provisions. The provisions of such treaties cannot be applied by courts, other organs or State officials (Article 87.2). The question is, what normative acts are meant if the treaty is not yet in force — that is, if it is legally non-existent and is not subject to application? It would seem that the provision in question relates to cases in which the normative legal acts neces32

Id. y 40.

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sary for the implementation of the treaty were adopted before the expression of consent to be bound by it. In such a case the finding that a treaty that has not entered into force is unconstitutional represents a ground for the repeal of the normative act in question in accordance with established procedure. A case may also arise in which a normative act adopted earlier and unconnected with the treaty contains the same provisions as the treaty found to be unconstitutional. Such provisions of the normative act must be repealed. Furthermore, international law and the International Treaties Act (Article 23) provide for the possibility of interim application of a treaty before its entry into force. If Russia has not expressed its consent to be bound by such a treaty, it can be found unconstitutional, as a result of which its interim application is discontinued in accordance with established procedure. The Constitutional Court Statute provides for the possibility that separate provisions of a treaty may be found unconstitutional. This provision is reproduced in the International Treaties Act (Article 34). It should be born in mind, however, that when a separate provision is found to be unconstitutional, the effect is the same as when the treaty as a whole is found to be so, unless, of course, the parties agree otherwise. Under international law, a finding of invalidity in respect of a separate provision of a treaty is equivalent to such a finding in respect of the treaty as a whole. There exists a principle of the unity of treaties and the inseparability of treaty provisions. Unless otherwise provided in the treaty or agreed to by the parties, a State cannot consent to be bound by only part of a treaty and cannot denounce separate provisions thereof (Articles 17 and 44 of the Vienna Convention on the Law of Treaties). Nevertheless, the above-mentioned provision can have significance for national law. In establishing the unconstitutionality of a particular provision of a treaty, the Constitutional Court also determines the unconstitutionality of similar norms of national law, should they exist. The Constitutional Court considers cases concerning constitutionality only with respect to such treaties as are subject to ratification or approval by a federal organ of State power (Article 89 of the Constitutional Court Statute). However, there exist treaties that enter into force from the time of signature and do not require approval. In the case of such treaties the possibility is not precluded of the Constitutional Court's considering the competence of the State organ or official having signed the treaty, in accordance with Chapter X I of the Constitutional Court Statute, Consideration of Cases relating to Disputes on Competence. The object of consideration by the Constitutional Court can only be an international treaty as defined in the International Treaties Act, that is, an international agreement concluded by the Russian Federation with a foreign State (or States) or

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with an international organization in written form and regulated by international law. Thus agreements in oral form do not fall within the Constitutional Court's competence. The Author does not think, however, that consideration of a case concerning the competence of the organ having concluded such an agreement is precluded, provided, of course, that it is an international law treaty, albeit in oral form. Otherwise, there would be the possibility of the abuse of power to conclude treaties in oral form. International agreements the operation of which is not regulated by international law, i.e. that are not international law treaties, also lie outside the competence of the Constitutional Court. An example of agreements of this type is the extensive set of instruments adopted within the framework of the Organization for Security and Cooperation in Europe. Likewise, the competence of the Constitutional Court does not extend to international instruments that impose on Russia obligations under international law but that are not treaties, such as binding decisions of the Security Council or of the International Court of Justice. Security Council decisions are implemented within the country by means of presidential decrees or government decisions. The Constitutional Court Statute does not bestow the power to verify the conformity of national laws with Russia's international obligations. Nevertheless, there have been cases in the Constitutional Court's practice in which a norm of national law was proclaimed illegal on the grounds of its failure to conform, not only with the constitution, but also with a universally recognized norm of international law. An example of this is the decision of 10 July 1995, which invokes an article of the International Covenant on Civil and Political Rights to this end. The Constitutional Court would appear to have found yet another form of resolving this question. By a decision of 31 July 1995 it recommended that the Federal Assembly should regularize the legislation pertaining to the use of the armed forces, as well as to other questions arising in situations of conflict, including questions deriving from the Additional Protocol to the 1949 Geneva Conventions dealing with the protection of victims of non-international armed conflicts. Thus far mainly the question of verifying the constitutionality of treaties from the point of view of their content has been considered. A second, no less important function of the Constitutional Court is settling disputes concerning competence between federal organs of State power, and also between organs of State power of the subdivisions of the Russian Federation, in connection with the conclusion of treaties. The Russian Federation's subdivisions do not have the right to conclude international treaties. They may, however, participate in initiating treaties of the Russian Federation, and the main provisions of treaties that have a bearing on their powers must be agreed to with them (Article 8.2 of the International Treaties Act).

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The Constitutional Court considers a dispute only if its competence to do so is determined by the constitution (Article 93.1 of the Constitutional Court Statute). Proceeding on the assumption that the Constitutional Court may consider only cases concerning the constitutionality of treaties that have not entered into force, the Constitutional Court Statute and the International Treaties Act provide the possibility of settling disputes relating exclusively to competence in respect of the conclusion of treaties.33 However, the constitution speaks not only of competence to conclude treaties, but also of competence to renounce them. Acts promulgated by the State Duma on questions of "ratification and renunciation of international treaties of the Russian Federation" must be considered by the Council of the Federation (Article 106 of the Constitution). Therefore the Constitutional Court may also consider disputes relating to the competence to renounce treaties, but only such treaties as have been ratified by an act of the State Duma. When settling disputes relating to competence, the Constitutional Court determines the treaty's conformity with the constitution with regard to procedures of signature, conclusion, adoption, publication and implementation (Articles 86 and 90 of the Constitutional Court Statute). In the settlement of such issues international law admits of the possibility of recognizing consent to be bound by a treaty to be invalid even if the treaty has already come into force. This is also recognized in an indirect manner in the Constitutional Court Statute inasmuch as publication and implementation follow the entry into force of the treaty. It should not be forgotten, however, that violation of the constitution can be invoked as a ground for the invalidation of consent to be bound by a treaty only in the event of a manifest violation of a norm relating to competence, and one that is of particularly great importance. But even in such a case the issue is resolved by agreement between the parties, and in the event of a dispute the pacific settlement procedure is applied (Article 65 of the Vienna Conventions). The president, each of the houses of the Federal Assembly, a fifth of the members of either house, the government, the Supreme Court, the Supreme Arbitration Tribunal and organs of legislative and executive power of the subdivisions of the Russian Federation have the right to apply to the Constitutional Court with a request to verify the constitutionality of a treaty that has not entered into force (Article 88 of the Constitutional Court Statute). Federal organs of State power and of the organs of power of the subdivisions of the Russian Federation have the right to petition the Constitutional Court to settle a dispute concerning competence (Article 92). The list of organs entitled to appeal to 33

The International Treaties Act states that the Constitutional Court "settles disputes relating to competence between federal organs of State power, and also between organs of State power of the Federation's subjects, in respect to the conclusion of international treaties by the Russian Federation." (Art. 34.1).

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the Constitutional Court in a dispute concerning competence is therefore narrower than in the matter of the conformity of treaties with the constitution, judicial organs, in particular, being excluded. This rule seems to be well founded. The practice of the Constitutional Court has so far not been extensive. Nevertheless, its analysis gives grounds for concluding that the Constitutional Court fulfills an essential role in ensuring the operation of international norms as part of Russia's legal system. This role is particularly important in connection with the application of norms concerning human rights. In this context it should be recalled that the Constitutional Court's members include two professors of international law (E. M. Arnetistov and O. /. Tiunov). It is true that the manner in which treaties are referred to in the Constitutional Court's decisions is not always entirely accurate. Thus, the Constitutional Court has invoked the International Covenant on Economic, Social, and Cultural Rights as evidence of universally accepted norms. Yet, as is known, a considerable number of States are not parties to this covenant, in contrast to the Covenant on Civil and Political Rights, and some of these States have declared that the norms contained in the covenant are not universally recognized. IV. The Application of Treaty Norms The laws and court decisions, not only of Russia but also of other countries, sometimes speak of direct application of norms of international law by State organs. This appears to be motivated by a wish to simplify the text and facilitate understanding of the laws in question. In fact, however, what is meant is the application of norms of national law established in accordance with norms of international law. This view is shared by many authoritative jurists. 34 Referring to the direct application of norms of international law, Constitutional Court judge Professor O. I. Tiunov writes: "Universally recognized principles and norms of international law, as well as international treaties of Russia, are applied by the Constitutional Court of Russia as norms incorporated into national law."35 A similar position has been adopted from the outset

34 G. V. G. Krishnamurty, Functioning of International Law and Internal Law of States: Postures, Practices and Perspectives, Indian Journal of International Law, vol. 24,1984, No. 1, 36: Where a domestic tribunal functioning under a constitutional system has to apply and interpret a settled rule of international law . . . such international law either should have been incorporated in the State law by way of legislation or by any other mode of procedure envisaged by that system. 35

O. I. Tiunov, The Constitutional Court of the Russian Federation and International Law, Rossiyski yezhegodnik mezhdunarodnogo prava, 1995, 180 (in Russian).

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by the International Law Commission,36 and it is precisely in this sense that the expression 'application of norms of international law' is employed in this Article. Under the International Treaties Act, provisions of officially published treaties "shall be directly applicable in the Russian Federation." (Article 5.3). This provision is also reproduced in other acts. The Civil Code provides that international treaties shall be directly applied (Article 7.2). The question that naturally arises is whether all treaties must be applied directly. According to the International Treaties Act, this is true only of treaties that have been 'officially published'. Among such treaties the act includes treaties that have entered into force for the Russian Federation and in respect of which the decision of consent to be bound by them has been adopted in the form of a federal act, and other treaties, not including those of an inter-ministerial nature (Article 30). As for the question of direct application of treaties, some jurists, including authoritative ones, have interpreted this provision as meaning that treaty rules must be applied directly, bypassing the national legal system. Similar opinions have been expressed by scholars in other countries.37 Different procedures governing the interaction between treaties and national law are known to States, but all such procedures are established by national law. If only for this reason, it is not wholly correct to speak of direct or immediate application of treaties. How can there be direct application if there is a constitutional norm whereby the treaty rules form part of the legal system of Russia? More than that, they are applied as an element of that legal system, not bypassing it but applied in accordance with its purposes and principles and through a procedure established by it. That said, it must be recognized that the expression 'direct operation or application' has a relative character. Its meaning can be elucidated on the basis of the International Treaties Act. Treaties said to be 'directly applicable' should be understood to mean treaties the application of which does not require the promulgation of domestic laws. They do not include treaties the implementation of which necessitates the promulgation of corresponding legal acts of the State (Article 5.3). In other 36 "In general, national courts apply the national law. Their decisions 'on questions of international law* are frequently based on international law only in so far as provisions of the latter have been incorporated into the national law." Yearbook of the ILC, vol. Π, 1950, 370, para. 53. 37

The Polish professor A Wasilkowski writes that evolution of international law was such as to weaken several arguments of the representatives of dualist schools. This can also be said about the constitutional norms of democratic States that reveal eagerness to apply international law as such, though changes in this respect are of gradual nature. A. Wasilkowskiy Monism and Dualism at Present, in Theory of International Law at the Threshold of the 21st Century: Essays in Honor of Krzysztof Skubiszewski (note 3), 332.

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words, the act does no more than confirm the well-known separation of treaties into self-executing and non-self-executing ones. In cases in which an act must be promulgated in order for the treaty to be implemented, the question arises as to the relationship between that act and the treaty. The State organ responsible for applying the law must be guided by the act, which represents the State's official interpretation of its international obligations. The treaty rules are applied only in the event of manifest divergence. Incorporated into the national legal system, international norms occupy a special position within it. Forming part of that system, they, like other norms, are applied in accordance with the purposes and principles of the system and through the procedural order established by it. On the other hand, they maintain their connection to international law and with a specific treaty. A norm of international law is applied as part of the international system and is interpreted as having the meaning attached to it within that system. Isolated from the system, the norm could be misinterpreted. This is a general rule of interpretation where systems are concerned. In the case in point, an analogy can be drawn to the application of norms of foreign law. The relevant rule in the model Civil Code for the Commonwealth of Independent States is formulated in the following terms: "When applying foreign law, the court shall determine the contents of its norms in accordance with their official interpretation, the practice of their application and the doctrine in the foreign State concerned."38 With reference to this particular case, the Author would like to place special emphasis on the need to take account of doctrine, Le. of learned opinion (opinio doc torum). This is of particular importance when interpreting the norms of a system of exceptional complexity such as international law. Moreover, the knowledge of law enforcement officials in this field leaves much to be desired. Underestimation of learned knowledge has always been one of the reasons for unsatisfactory levels of operation of State authority and the law. One cannot help recalling Erasmus of Rotterdam's observation that "folly creates societies and maintains empires, officialdom, religion, law courts and councils."39 When treaties are applied inside the country, their specific legal interpretation — that is to say, the elucidation of their legal parameters (the time when they enter into force and cease to be in force, their relationship to other treaties and much else) — is of particular importance. Answers to these questions should be sought both in national law and in the Vienna Convention on the Law of Treaties. 38

Inter-parliamentary Assembly of States Parties of the CIS, Information Bulletin, 1996,73, Art. 1196 (in Russian). 39

Erasmus of Rotterdam, Praise of Folly, Moscow 1971, 142; Penguin Books, Harmondsworth, United Kingdom, 1971, 192.

11 GYIL40

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Having become part of a country's legal system, norms of international law form a special variety of norms possessing many specific features. They can be described as incorporated norms. Special significance attaches to the application of treaty norms by the law courts of States.40 Court practice serves as a model for the application of norms of international law by other State organs. The growing role of courts in the application of norms of international law is a characteristic feature both of contemporary international law and of national legal systems. As is known, one of the main shortcomings of the operating mechanism of international law has always been the lack of means of day-to-day implementation on the national level. The significantly enlarged scale of international norms applied by national courts is therefore introducing radical changes into the operating mechanism of international law, expanding its possibilities and improving its effectiveness. Many international norms are guaranteed by the full arsenal of means available to judicial authority, up to and including compulsory enforcement. The expanded activities of courts in connection with the application of international law norms are also of considerable importance to national legal systems. As a result, these systems are being improved and the laws and judicial practice of States are being brought closer together in accordance with international standards. The climate of relations between States, the degree of protection of the rights of foreign nationals, the level of reliability of business activities — all depend on the satisfactory operation of a country's judicial system. Confidence in judicial protection is of the greatest importance to the development of economic and other links between individuals and legal entities of different States. International treaties are being more and more actively applied by Russian courts. The central role in ensuring this process devolves upon the Constitutional Court and the Supreme Court. For the most part, treaties are being applied in cases relating to human rights violations. Not only the Human Rights Covenants but also other conventions to which Russia is a party are being applied in this context. Thus, by a decision of 11 March 1994 the Court Chamber attached to the president of the Russian Federation for dealing with disputes pertaining to information ruled that the dissemination by the mass media of information and materials, including advertisements, aimed at restricting rights or establishing privileges of any kind on grounds of gender is unlawful. One of the grounds cited in support of the decision

40 /. I. Lukashuk , International Law in the Courts of States, 1993 (in Russian); Jochen Ahr. Frowein , The Implementation and Promotion of International Law through the National Courts: International Law as a Language for International Relations, 1996.

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was the Convention on the Elimination of all Forms of Discrimination against Women of 1979.41 Signs of a positive attitude towards international law began to appear in the judicial practice of Russia from the very outset. The following case is indicative in this respect. In 1991, the Scandinavian Shipping Company effected some grain shipments under a number of contracts with Soviet foreign trade associations. As a result of reorganization, these associations found themselves unable to pay for the shipments. A London arbitral court ruled in favor of the company's suit for interim measures of protection in the form of sequestration of the foreign trade association's property in the territory of the USSR. Pursuant to these arbitral awards, the company instituted proceedings before the courts in Moscow and several other Russian cities. All these courts declared the action to be inadmissible on the grounds that the codes of civil procedure of the republics provide for the possibility of sequestration of property by way of interim protection only in cases being considered by the court in question. After the proclamation of Russia's independence, the actions were considered by the Moscow Municipal Court. On 23 January 1992 the court adopted a decision upholding and enforcing all twelve awards of the London arbitral court. In support of its decision the court invoked the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, although that convention does not concern interim protection measures. On the whole, however, judicial practice is still only at the beginning of the road with regard to ensuring the consistent application of international norms as part of the legal system of Russia. Conclusion From the foregoing it will be seen that Russia has embarked on the path of ensuring the harmonious interaction of its legal system with international law and the legal systems of other States. Progress along this path has not been easy, necessitating considerable inputs of time and effort. It is essential to raise the standard of legal awareness within the whole of society, to establish a mechanism for the implementation of norms of international law and to ensure its operation. Confirmation of the priority of international norms in other countries also will greatly assist the attainment of these goals.

41

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Rossiyskaya Gazeta, 22 March 1994.

The Position of International Law in the Domestic Legal Orders of Central and Eastern European Countries 1 By Theodor Schweisfurth and Ralf Alleweldt

Introduction It is a commonplace that none of the two basic theories on the relationship between international and municipal law, the dualist view, on the one hand, and the monistic school,2 on the other, can claim to represent the 'truth'. National legal orders differ greatly in their attitude towards these theories. It is undisputed, however, that States cannot justify noncompliance with international legal obligations by invoking their internal laws. With respect to treaty rules, this principle is formulated in Article 27 of the Vienna Convention on the Law of Treaties. States have to perform their obligations in good faith, and they have the general duty to bring their domestic legal order into conformity with their international obligations. On the other hand, there is no rule of international law that prescribes how States should achieve this aim. In particular, international law does not require that all rules of international law must be made part of domestic law. Accordingly, it appears to be most useful to describe the various approaches taken by the national legal systems. It is the purpose of this article to give a short overview of the constitutional situation in the countries of Central and Eastern Europe3 with 1

Acknowledgments to Kamila Miszczuk for her very valuable support.

2

For a more expanded discussion of dualist and monist theories see, e. g., Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, vol. 1/1,1989,98 - 122; Peter Malanczuk, Akehurst's Modern Introduction to International Law, 1997, 63 et seq.; Luzius Wildhaber/Stephan Breitenmoser, The Relationship between Customary International Law and Municipal Law in Western European Countries, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 48, 1988, 163, 169 - 179. 3

In this article we consider the legal situation in Poland, Hungary, the Czech Republic, Slovakia, Romania, Bulgaria, Slovenia and Ukraine. English translations of the Constitutions in: Albert P. Blaustein/GisbertFlanz (eds.), Constitutions of the Countries of the World (Czech Republic, Slovakia, Romania, Bulgaria, Slovenia) and in: The Parker School of Foreign and Comparative Law, Central and Eastern European Legal Materials (Hungary, Ukraine); English translations of the Constitutional Court Acts in: Bulletin on Constitutional Case-Law (Council of

The Position of International Law in Central and Eastern European Countries

regard to the methods of incorporation of international law into domestic law and the rank of these norms in the domestic legal order. The question often arises of whether a particular rule of international law is directly applicable, or self-executing, in the domestic legal order. The answer is determined, in principle, by the relevant international law rule and not by domestic law. However, domestic law may come into play in cases where the direct applicability of an international law rule is unclear or in dispute. For instance, the question of whether the U N Covenants on Human Rights are self-executing may be solved, for a particular country, by a constitutional provision ordering that human rights treaties shall be directly applicable. In the following discussion the case law of the competent courts, especially the Constitutional Courts, is taken into account as far as it has been accessible to the authors. Naturally, many of the practical issues arising in the courts and discussed by doctrine are connected with the implementation of international human rights treaties. I. The Legal Situation in Eastern Europe before 1989 There was no uniform practice among European socialist States. The relationship between international law and municipal law was, as a rule, not expressly regulated in the constitution.4 This was not very surprising. There was obviously no need for socialist governments to regulate this problem in abstract terms; the idea, for instance, of an individual asserting his rights directly under international law had, in fact, no place in this kind of regime.5 The dominant approach in socialist States was dualistic, with the exceptions of Yugoslavia and, notably, Poland.6 The predominant view at least in Polish doctrine was that international law operates proprio vigore Europe: Venice Commission), Special Edition, vol. 2, Basic Texts 1,8 (Bulgaria), 86 (Romania), 125 (Slovenia), vol. 3, Basic Texts 2,41 (Hungary), 88 (Poland), vol. 4, Basic Texts 3,49 (Czech Republic). German translations of the Constitutions in: Georg Brunner (ed.), Verfassungs- und Verwaltungsrecht der Staaten Osteuropas (VSO), vol. I (Polen 1.1, Ungarn 1.1, Tschechische Republik 1.1, Slowakei 1.1), vol. Π (Rumänien 1.1, Bulgarien 1.1), vol. I V (Ukraine 1.1); German translation of the Constitutional Court Acts in: VSO, vol. I (Polen 2.1.3.a, Ungarn 2.1.3, Tschechische Republik 2.1.3.), vol. Π (Bulgarien 2.1.3), vol. I V (Ukraine 2.1.3.a). The English translations have been slightly modified by the authors. 4

Cf. Eric Stein , International Law in Internal Law: Toward Internationalization of CentralEastern European Constitutions?, American Journal of International Law 1994, vol. 88, No. 3, 427, 432. 5 6

Cf. Stein (note 4), 448.

See Wkdyslaw Czapliiiski y Relations between International Law and the Municipal Legal Systems of European Socialist States, Review of Socialist Law, vol. 14, No. 2,1988,105,126 et seq.

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within the internal legal system. Accordingly, international norms — including treaties and customary law — were considered to be part of the internal legal order. This view was, inter alia , reflected in the resolution of the conference of Polish international lawyers of 2 June 1985/ However, this view was not reflected by Court practice in socialist Poland.8 II. Present Constitutional Situations and State Practice 1. Poland Whereas the position of international law in the Polish legal order is relatively clear under the new Constitution of 2 April 1997, it is interesting to observe the changing attitude of the Polish courts before and after the political transformation. The Constitution of 22 July 1952 did not contain any specific provision concerning the place of international law within the domestic legal system. Article 30 stated that the Council of State shall have the competence to ratify international treaties. However it was not clear whether, and how, the ratification of a treaty could affect the internal legal order of Poland. Whereas, as just pointed to above, it was the predominant view in Polish legal doctrine that international agreements were part of the domestic legal order proprio vigore, 9 the Supreme Court of Poland explicitly rejected this idea in a decision of 25 August 1987.10 According to the Court, ratification by the Council of State had legal consequences only in the international sphere; norms of public international law could, however, not be considered to be internal law and binding on the courts as long as they had not been transformed into domestic law. Accordingly, a possible contradiction between domestic law and public international law could not be of any significance for the decision of the Court. 7 The resolution is translated, in parts, by Czaplinski (note 6), 110 et seq. The text reads: "International law which binds the People's Republic of Poland constitutes part of the Polish legal order. Courts and other state agencies apply international law. International legal norms directly create rights and obligations for individuals (natural and juristic persons). . . . The primacy of international law must be guaranteed in cases of conflict between international law and municipal law." 8 See Zdzishw Kçdzia , The Place of Human Rights Treaties in the Polish Legal Order, European Journal of International Law, vol. 2,1991, No. 2,133, 134; Jan Barcz , Das Verhältnis zwischen Völkerrecht und innerstaatlichem Recht in Polen nach der politischen Wende, Zeitschrift für öffentliches Recht, vol. 52,1997, 99. 9

Czaplinski (note 6), 109.

10

Decision of 25 August 1987, case I PRZ 8/87, Orzecznictwo S^du Najwyzszego. Izba Cywilna, OSNCP 1987 [Case Law of Polish Supreme Court. Civil Chamber], No. 12, item 199, discussed by Barcz (note 8), 92, and Whdyshw Czaplinski , International Law and Polish Municipal Law: Recent Jurisprudence of Polish Supreme Judicial Organs, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 53, 1993, 871, 875.

The Position of International Law in Central and Eastern European Countries

In sharp contrast, the Supreme Administrative Court ruled in a judgement of 20 November 199011 as follows: It is a generally accepted view that international treaties ratified by Poland and published in the Official Gazette require neither transformation nor incorporation and are binding ex proprio vigore. Moreover, in case of conflict between such treaties and domestic law, the principle of priority of international treaties over domestic law is to be applied.12

Similarly, the Constitutional Tribunal decided on 7 January 199213 that the Republic of Poland is not only bound by the international covenants (and other international agreements) since their ratification, but also that international agreements should be applied by the domestic courts proprio vigore as far as they are self-executing. 14 Thus the courts finally adopted the monist view that had been favored by legal doctrine. Another interesting feature of the transitional period was the way the Constitutional Tribunal handled questions concerning the compatibility of domestic legislation with international treaties in Poland. The Constitutional Tribunal Act of 29 April 1985 did not give that Court the competence to review the compatibility of domestic legislation with treaties. The Tribunal nevertheless found various indirect ways of considering whether a domestic law was in accordance with a treaty or not. First, there are several judgements where the Court refers to the principle that Poland is a "democratic state governed by the rule of law" (Article 1 of the 1952 Constitution, as amended).15 Second, the Tribunal has repeatedly held that treaties ratified by Poland are relevant in the process of interpretation of domestic law16; and, third, there are even some cases where the Constitutional Tribunal has directly reviewed the compatibility of domestic law with treaties without giving exact reasons as to its juris-

11

Decision of 20 November 1990, case Π SA 759/90, Orzecznictwo S^dow Polskich, OSP 1991 [Case Law of Polish Courts], No. 7 - 8, item 178. 12

Cf. Andrzej Drzemczewski/Marek Antoni Nowicki , The Impact of the E C H R in Poland: A Stock-taking after Three Years, European Human Rights Law Review 1996, 261, 270; and Renata Hliwa/Leszek Wiéniewski , The International Covenants on Human Rights in the Case Law of the Polish Supreme Court, the Constitutional Court and the High Administrative Court, Polish Yearbook of International Law, vol. 22, 1995 - 1996, 27, 32. 13

Decision of 7 January 1992, case Κ 8/91, Orzecznictwo Trybunalu Konstytucyjnego, O T K 1992 [Case Law of Constitutional Court], Part One, 82- 83. See the summary by Ewa Skrzydio-Tefelska , Selected jurisprudence of the Supreme Court and the Constitutional Court comprising cases connected with Public and Private International Law Published in 1992, Polish Yearbook of International Law, vol. 19,1991 - 1992, 255 et seq. 14

Cf. Czapliàski (note 10), 871, 874, 876.

15

E.g. decisions of 11 February 1992, case Κ 14/91, Orzecznictwo Trybunalu Konstytucyjnego (OTK) 1992, Part One, 140, of 3 November 1992, case Κ 12/92, O T K 1992, Part Two, 55, of 29 September 1993, case Κ 17/92, O T K 1993, Part Two, 209. See also Barcz (note 8), 105. 16

Seey e.g.y decision of 24 October 1989, case Κ 6/89, O T K 1989, 110.

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diction to do so.17 One may well consider that the 'friendliness to international law* (Völkerrechtsfreundlichkeit) of the Tribunal led it to the limits of its competence, perhaps beyond. This court practice, however, is very understandable in the light of the transition process. In 1990 Poland proclaimed itself a state under the rule of law, and it was the general perception that the fight for human rights was finally won. If the Tribunal had told the people in such a situation that international human rights — to which Poland was indisputably bound in the international sphere — could not be invoked against conflicting national legislation, this would have been hardly understandable for many of the population. Such a position could even have contributed to deepen 'legal nihilism' (Rechtsnihilismus )18 instead of creating trust in the institutions of the new state of law. Thus, despite all dogmatic hesitations, Polish courts appear to have walked along the right lines. The new Polish Constitution of 2 April 1997 takes a clear position on the status of treaties in internal law. Article 91 paragraph 1 stipulates that a treaty, if ratified and published in the Official Gazette, constitutes part of the national legal order. It is directly applicable, unless there are express provisions to the contrary. Parliamentary approval in the form of a statute is necessary before the ratification of a treaty concerning: 1)

peace, alliances, political or military agreements;

2)

constitutional freedoms, rights or duties of the citizen;

3)

membership of the Republic of Poland in international organizations;

4)

a significant financial burden for the state;

5)

questions regulated by statute or due to be regulated by statute.19

Consequently, most treaties of significance require the approval of parliament. These treaties shall have precedence over regular statutes (Article 91, paragraph 2). It follows that, once a treaty is approved by parliament and ratified, it has a higher rank in the Polish legal order than ordinary statutes. This rank, however, is not that of the Constitution, which may be inferred from Article 188 according to which the Constitutional Tribunal decides in matters concerning the compatibility of treaties with the Constitution.

17 See, e.g., decisions of 11 February 1992 (note 15) and decision of 20 October 1992, case Κ 1/92, O T K 1992, Part Two, 44, summarized in: Ewa Skrzydlo- Tefelska, Selected Jurisprudence of the Supreme Court and the Constitutional Court Comprising Cases Connected with Public and Private International Law Published in 1993, Polish Yearbook of International Law, vol. 20, 1993, 317 et. seq. 18

Cf. Barcz (note 8), 112.

19

Article 89, paragraph 1 of the Constitution.

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16

It deserves to be mentioned that the aforementioned considerations apply also to treaties duly ratified and published before the entry into force of the present Constitution. 20 Consequently, these treaties are now part of the Polish internal legal order, whatever their significance in domestic law was in the past. According to Article 90 of the new Constitution, the state can, on the basis of a treaty, transfer some of its competencies to an international organization. Legal norms enacted by this organization shall be directly applicable in Poland and shall have precedence over ordinary law, if the treaty so provides (Article 91, paragraph 3). These articles represent the constitutional basis for the envisaged accession of Poland to the European Union. The Constitutional Tribunal is now expressly empowered to decide on the compatibility of ordinary statutes with treaties.21 It follows from Article 190, paragraph 3, that a statute which is not in accordance with a treaty loses its legal force at a moment to be determined by the tribunal. Hence the precedence of treaties over ordinary statutes regulated in Article 91 does not simply mean that the treaty is to be applied preferentially, but that the statute becomes void by the decision of the Constitutional Tribunal. With regard to customary international law, the only reference in the new Polish Constitution can be found in Article 9 which states: "The Republic of Poland shall respect international law binding upon her." At first glance this clause appears to be self-evident. However, this is only true from the point of view of international law. In addition, Article 9 has an effect on Polish domestic law: it creates a duty for Poland under municipal law to abide by its international obligations. It seems appropriate to conclude that whenever a state organ acts in violation of an international law obligation, Article 9 of the Constitution is also violated. In other words: an act contrary to international law is automatically unconstitutional It would follow that Polish municipal law must be in conformity, in all its aspects, with international law, and, for instance, a statute contradicting customary international law has to be considered unconstitutional. It must, however, be added that the Constitution takes no express position as to the status of customary international law within the domestic legal order. The list of sources of domestic law contained in Article 87 includes only the Constitution, statutes, ratified treaties and regulations. This provision, taken alone, might be interpreted as indicating that customary international law has no direct influence on the Polish legal order. On the other hand, as has been shown, Article 9 points in the opposite direction. Since the Constitution came into force only in October 1997, the

20

Article 241 of the Constitution.

21

Article 188, No. 2 of the Constitution.

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Constitutional Tribunal has not yet had the opportunity to take a position with regard to this issue. 2. Hungary Article 7 of the Hungarian Constitution of 20 August 1949, as amended, describes the relationship between international and internal law as follows: The legal system of the Republic of Hungary shall accept the generally recognized rules of international law and shall ensure harmony between obligations under international law and municipal law.

Treaties must be concluded by parliament if they are of special importance for the external relations of the Republic.22 Parliamentary approval of the treaty is given by way of a resolution; subsequently, the treaty is promulgated in the form of a statute.23 Other treaties are, as a rule, also published in the Official Gazette,24 but without having statutory force. Article 7 does not deal expressly with the rank of international law in the Hungarian legal system. However, the Republic "shall ensure harmony between obligations under international law and municipal law." This aim can only be achieved — as long as a given international obligation exists — by the adaptation of domestic law to the rules of international law; in case of conflict, by the non-application of domestic law. Otherwise 'harmony' would cease to exist. Thus one may well infer from Article 7 that international obligations shall have precedence over the norms of internal law. In fact, this view is confirmed by the Constitutional Court Act of 19 October 198925 as well as by the practice of this Court. Article 1 subsection (c) of the Constitutional Court Act gives the Court the competence to examine whether a legal rule is in violation of a treaty. According to Article 45 of the same Act the Court has to annul a legal rule that violates a treaty if this rule has the same or a lower rank than the law promulgating the treaty. Thus, even though regular parliamentary statutes are considered to be formally of the same rank as statutes promulgating a treaty, substantively, the law promulgating the treaty has priority. Whereas there appears to be no decision of the Constitutional Court that annuls a statute merely because of its incompatibility with a treaty, treaty provisions are of22

Article 19, paragraph 3 (f) of the Constitution.

23

See Articles 122 and 123 of the internal rules of parliament (Magyar Közlöny 1994,3023), printed in German in: Brunner (note 3), VSO, Ungarn 2.1.1.a. 24

See Article 16, second paragraph, of the law on the legislative procedure (Magyar Közlöny 1987,1624), printed in German in: Brunner (note 3), VSO, Ungarn 2.1.5. 25 Printed in: Bulletin on Constitutional Case-Law, Special Edition vol. 3, Basic Texts 2,41 et seq.

The Position of International Law in Central and Eastern European Countries

ten cited by the Court for deepening and supporting its arguments based on the Constitution. For example, when declaring the death penalty unconstitutional, the Court referred expressly to Article 6 of the International Covenant on Civil and Political Rights and to the sixth additional Protocol to the European Convention on Human Rights and Fundamental Freedoms.26 It should be noted that international conventions do not in all cases expand the scope of protection in the field of human rights, but they may also serve to justify restrictions of these rights. The Court confirmed the constitutionality of a law providing for the punishment of 'hate speech' by referring to Article 4 of the International Convention on the Elimination of any Form of Racial Discrimination. 27 In another case, when declaring constitutional the retroactive extension of a statute of limitation for war crimes and crimes against humanity the Court had particular regard to the New York Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968.28 The rank of treaties lies below the constitutional level. This is shown clearly by Article 1 subsection (a) of the Constitutional Court Act which gives the Constitutional Court the competence to examine the constitutionality of international treaties. This position has recently been confirmed by the Court in a decision of 22 January 199729 where the Court, after stating that there is a tendency in Europe that the dualist-transformation system is replaced by the monist system (!) and that, in particular, member States of the European Union apply the law of the European Union directly, without transformation, emphasized that this law enjoys superiority over national law with the exception of the constitution. It follows that if there is an irreconcilable variance between the Constitution and a treaty, the Constitutional Court has no power to set aside a constitutional provision, even if the treaty offers a greater degree of human rights protection. 30 26

Decision of 24 October 1990, case 23/1990. (X. 31) AB, Magyar Közlöny 107/1990, see German translation in: Georg Brunner/Lâszlô Solyom , Verfassungsgerichtsbarkeit in Ungarn, 1995, 136, 140. 27

Decision of 18 May 1992, case 30/1992 (V. 26.) AB, Magyar Közlöny 53/1992, German translation in: Brunner /Solyom (note 26) 368, 376. 28

Decision of 13 October 1993, case 53/1993. (X. 13) AB, Magyar Közlöny 147/1993, German translation in: Brunner /Solyom (note 26) 520, 532, 533. 29

Decision of 22 January 1997, Magyar Közlöny 7/1997, English summary in: Bulletin on Constitutional Case-Law 1997, No. 1, 49 et seq. 30

In fact there is a case pending before the European Commission of Human Rights where such a variance is pleaded. According to Article 40/B paragraph 4 of the Hungarian Constitution "Career members of the armed forces, the police force and the civil national security service shall not join political parties and shall not engage in political activities." The applicant asserts that this provision contains interferences with his rights to freedom of expression, assembly and association which are not "necessary in a democratic society" within the meaning of

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Although Article 1 subsection (a) of the Constitutional Court Act establishes a special procedure for the preliminary examination of the constitutionality of international treaties, the Court considers itself not prevented from examining ex post facto the constitutionality of a law promulgating a treaty. 31 A judgement of the Court in such cases, of course, cannot directly affect the international obligations of Hungary. As regards customary international law, Article 7 of the Constitution as cited above is interpreted by the Constitutional Court in such a way that it has made customary law part of Hungarian law — without special transformation — and that the Constitution and domestic law must be interpreted in conformance with customary international law.32 3. Czech Republic Article 49 of the Czech Constitution of 16 December 1992 states: (1) International treaties requiring the consent of Parliament shall be approved by Parliament in the same manner as bills. (2) Treaties on human rights and fundamental freedoms, political treaties and economic treaties of a general nature, as well as treaties whose implementation requires the passage of a law, require consent of Parliament.

Treaties of the kind described in paragraph 2 of Article 49, after being approved by Parliament "in the same manner as bills" and promulgated,33 become part of domestic law. This may be concluded from Article 10 of the Constitution which provides: Ratified and promulgated international treaties on human rights and fundamental freedoms to which the Czech Republic is obligated are directly binding and take precedence over statutes.

This provision, although referring only to human rights treaties, presupposes that, generally, treaties approved by Parliament and promulgated become part of domestic law, since otherwise it would make no sense to regulate their rank within the domestic legal order and their direct applicability. Article 10 gives rise to several questions. It is clear that universal and regional conventions dealing specifically with human rights are covered by this rule. The same is probably true for treaties on closely related subjects such as the Refugee Convention Articles 10 and 11 of the European Convention on Human Rights. The Commission has declared this complaint admissible. Lâszlo Rekvényi v. Hungary , decision of 11 April 1997, No. 25390/94. 31

Decision of 22 January 1997 (note 29).

32

Decision of 13 October 1993 (note 28), reprinted in: Brunner/Solyom et seq. 33

See Article 52 of the Constitution.

(note 26), 520, 524

The Position of International Law in Central and Eastern European Countries

and the Geneva Conventions on the Protection of War Victims. In contrast, it is not so clear whether Article 10 applies to extradition treaties or treaties of cooperation that contain specific provisions on the protection of individual rights. 34 The Czech Constitutional Court apparently has not yet had the opportunity to clear up this question. Regardless of how the notion of 'treaties on human rights and fundamental freedoms' has to be interpreted, they are directly applicable. The Constitutional Court is competent to annul legal rules of domestic law, including statutes, if they are not in accordance with such a treaty. 35 Whereas it must be inferred from the foregoing considerations that the rank of international treaties on human rights and fundamental freedoms is clearly above that of ordinary statutes, the Constitution does not contain express provisions on the relationship between treaties of this kind and the Constitution itself. In particular, there is no rule that such treaties must conform to the Constitution, and accordingly the Constitutional Court has no competence to examine this question. A possible interpretation of this legal situation is that human rights treaties have the same rank as the Constitution. In fact, this view is supported by Malenovsky. 36 He draws attention to the fact that when deciding on the compatibility of a statute with a human rights treaty, the "Constitutional" Court decides on a "constitutional" complaint. This may be interpreted as an indication that human rights protected by treaties have the same rank as constitutional provisions. Moreover, in the absence of any procedure for reviewing the constitutionality of treaties, the legal status of treaty provisions would, in case of a possible conflict with the Constitution, be uncertain. This problem would not arise if they had constitutional rank. The Czech Constitution does not take a position on the rank of other treaties within the domestic legal order. Customary international law is not mentioned in the constitutional text. An interesting provision is contained in Article 87, paragraph 1 (i) of the Constitution. According to this Article, the Constitutional Court is competent to decide on such measures that are necessary to carry out a binding decision of an international 34

Cf. Stein (note 4), 43, with regard to a similar provision contained in a draft constitution for the Czech and Slovak Federal Republic of 1991. 35

Article 87, paragraphs 1 (a), (b) of the Constitution. The compatibility of domestic legislation with the European Convention on Human Rights was scrutinized, e.g., in the decision of 24 September 1996, case PI. US 18/96, summarized in: Bulletin on Constitutional Case-Law 1996, No. 3,341 (concerning the applicability of Article 6 of the Convention to court proceedings in administrative matters). 36 See Jiri Malenovsky , Human Rights Treaties and the Czechoslovak Constitutional Order, Austrian Journal of Public and International Law, vol. 45,1993,21 et seq., with regard to a similar constitutional provision of Czechoslovakia.

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court if it can not be carried out in another way. Thus the Czech Republic is in a position to draw all the necessary practical consequences from international court decisions, in particular from judgements of the European Court of Human Rights. Should this Court, for example, decide in a particular case that criminal proceedings were not conducted in full accordance with Article 6 of the European Convention on Human Rights (fair trial), the Constitutional Court might order that the proceedings be reopened. Surprisingly, the Czech Constitution does not contain any provision with regard to the possible accession to an international organization with supranational powers, such as the European Union. 4. Slovakia Article 11 of the Slovak Constitution of 16 September 1992 stipulates: International agreements on human rights and basic freedoms which were ratified by the Slovak Republic and which have been promulgated in the way prescribed by statute, take precedence over its statutes whenever they guarantee a wider scope of constitutional rights and freedoms.

Thus the situation appears to be very similar to that in the Czech Republic. The text of Article 11 clearly indicates that human rights guaranteed by treaties cannot be derogated in the domestic legal order by statutes. Although the Constitution does not take an express position on the status of other treaties within the domestic legal order, the Constitutional Court is empowered to decide on the compatibility of generally binding legal regulations with international treaties promulgated in the same manner as prescribed for the promulgation of statutes.37

In addition, Article 144, paragraph 2 of the Constitution states: "the judges are also bound by international treaties if it is stipulated by the Constitution or a statute." Whereas these provisions, taken together, do not give a clear impression on the position of treaty provisions in Slovak domestic law, this issue is clarified by Article 132, paragraph 1 of the Constitution. According to this provision the binding decision of the Constitutional Court that a domestic statute contradicts a treaty "enacted in a legal manner" has the automatic consequence that the statute loses its legal validity. Thus treaties have precedence over national legislation if they are promulgated in the manner prescribed for national statutes. Although it is necessary that the parliament of the Slovak Republic gives its consent, prior to ratification, to — international political agreements, 37

Article 125, subsection (e) of the Constitution.

The Position of International Law in Central and Eastern European Countries

— international economic agreements of a general nature, and to — other international agreements the execution of which requires the adoption of a law,38 it is not expressly stated that such consent has to be given in the form of a statute. There appears to exist the possibility that parliament gives its consent without giving the treaty the status of a statute. Like in the Czech Republic, in Slovakia we find no constitutional provision dealing with the domestic status of customary international law. In contrast to the situation in the Czech Republic, the Slovak Constitution provides for the accession of the Republic to a union with other States by a constitutional law with a subsequent referendum. 39 5. Romania Article 91 paragraph 1 of the Constitution of 21 November 1991 provides: O n behalf of Romania, the President signs international treaties which are negotiated by the Government and submits them to Parliament for ratification within 60 days.

In other words, all treaties must be ratified by Parliament. According to Article 11, (1) The State of Romania pledges to fulfill, to the letter and in good faith, its commitments under the treaties to which it is a party. (2) The treaties ratified by Parliament, according to the law, are part of domestic law.

Thus all treaties become part of the national legal order. The express commitment in Article 11 paragraph 1 to fulfil in good faith its treaty obligations could perhaps be conceived as an indication that, in the case of conflict, treaty provisions should enjoy priority over national legislation. However, Article 20 paragraph 2 of the Constitution expressly states: If there are any inconsistencies between covenants and treaties on the fundamental rights of man, to which Romania is a party, and national laws, the international rules shall have precedence.

It appears to follow e contrario that the rank of other treaties is not above that of ordinary legislation. As far as customary international law is concerned, the Constitution does not take an explicit position on its relevance for national law. Article 10 of the Constitution states: 38

Article 86, subsection (e) of the Constitution.

39

Articles 7 and 86 subsection (c) of the Constitution.

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Romania maintains and develops peaceful relations with all states and, in this framework, of good neighborliness based on the principles and on the other generally accepted norms of international law.

Since there is a certain similarity to Article 9 of the Polish Constitution,40 it might be possible to interpret this provision to the effect that it has made the duty of the Romanian state to abide by customary international law a constitutional obligation, with the consequence that every violation of customary international law equals a violation of the Constitution. 6. Bulgaria Under Article 85 of the Bulgarian Constitution of 12 July 1991, treaties must be ratified by parliament if they: 1.

are of a political or military nature;

2.

concern the participation of the Republic of Bulgaria in international organizations;

3.

call for corrections to the borders of the Republic of Bulgaria;

4.

contain financial commitments by the state;

5.

stipulate the participation of the state in any arbitration or court settlement of international disputes;

6.

concern basic human rights;

7.

affect the action of a law or require new legislation for their implementation;

8.

specifically require ratification. 41

Treaties that have been ratified according to the constitutional provisions, promulgated and entered into force for the Republic of Bulgaria shall be part of domestic law. They shall have precedence over contradicting norms of domestic legislation.42 The Constitution does not take an express position on the relevance of customary international law for the Bulgarian domestic legal order. However the Bulgarian Constitutional Court is competent to decide on the conformity of statutes not only with treaties43 but also with the generally recognized norms of international law (Article 149, paragraph 1, no. 4 of the Constitution). Thus the Constitutional Court is supposed to take a position on the compatibility of domestic statutes with customary

40

See Part Π.1 above.

41

See Article 85, paragraph 1 of the Constitution.

42

Article 5, paragraph 4 of the Constitution.

43

See, e.g., decision 4 of 11 February 1997, case no. 29, Dariven Vestnik no. 22/1997, 2.

The Position of International Law in Central and Eastern European Countries

international law although the latter appears not to be considered part of domestic law.44 The Bulgarian Constitution does not rule expressly on the question as to whether a statute that is declared incompatible with international law loses its legal validity. However Article 151, paragraph 2 of the Constitution as well as Article 22, paragraph 2 of the Constitutional Court Act of 30 July 1991 provide that acts which have been declared unconstitutional shall not be implemented. It may be inferred a maiore ad minus that statutes which violate international law as well are not void, but only inapplicable. Treaties must conform to the Constitution. This follows from Article 85, paragraph 3 of the Constitution which stipulates that treaties requiring an amendment of the Constitution may only be concluded after this amendment has been made. In addition, the Constitutional Court has the competence to decide, before the ratification of a treaty, on the conformity of this treaty with the Constitution.45 Following the entry into force of the new Constitution, the position of treaties previously concluded within the Bulgarian domestic legal order was not entirely clear. A number of treaties had been ratified by Bulgaria but not implemented. They will now acquire the status of domestic law with precedence over national legislation once the prerequisites mentioned in Article 5 of the Constitution (ratification, entry into force, and, in particular, promulgation) have been met.46 7. Slovenia According to Article 8 of the Constitution of 25 June 1991: Laws and other regulations must be in accordance with the generally valid principles of international law and with international treaties to which Slovenia is bound. Ratified and published international treaties are directly applicable.

In addition, Article 153, paragraph 2 states: 44

Article 24 of the Constitution only contains the obligation of the Republic of Bulgaria to lead its foreign policy in accordance with the principles and rules of international law. 45

Article 149, paragraph 1, No. 4 of the Constitution. See also Klaus Schrameyer , Gehen völkerrechtliche Verträge der bulgarischen Verfassung vor?, W G O — Monatsschrift für Osteuropäisches Recht 1993, 357, 358. 46

For a detailed discussion see Emil Konstantinov, The Implementation of International Treaty Obligations in the National Legal Order — the Answer of the Bulgarian Constitution, Journal of Constitutional Law in Eastern and Central Europe, vol. 2, 1995, 62 et seq., and Tsvetana Kamenova, Civil Law in Bulgaria: The Relationship between International and Domestic Law and the Impact on Civil Law (with Special Emphasis on the Law of Obligations and Developments in Intellectual Property), in: G. Ginsburgs et. al (eds.), The Revival of Private Law in Central and Eastern Europe, 1996, 541 et seq.

12 GYIL 40

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Laws must be in accordance with generally accepted principles of international law and with valid international treaties which have been ratified by the State Assembly, legal regulations and other general acts must also be in accordance with other ratified international treaties.

It is clear from these provisions that treaties ratified by parliament and duly promulgated as well as customary international law shall have precedence over ordinary legislation. The Constitution states that the President of the Republic "issues documents of ratification" 47 and that the State Assembly shall ratify treaties by a majority of delegates present and voting,48 but it does not expressly state which categories of treaties must be ratified by the State Assembly. Accordingly this question may be regulated by ordinary legislation. The Constitutional Court of Slovenia has the competence to decide on the accordance of laws and other regulations with ratified international treaties and general principles of international law.49 Neither the Constitution nor the Constitutional Court Act regulate, however, the legal effect of a decision declaring a statute incompatible with a treaty. Article 43 of the Constitutional Court Act merely states that the Constitutional Court may abrogate a statute which does not conform to the Constitution. In addition, Article 45 of the same Act gives the Court the power to abrogate unconstitutional or illegal regulations or general acts. Since there is no provision giving the Court the competence to abrogate a statute that is incompatible with a treaty, such a statute simply appears to be inapplicable as far as it contradicts the treaty, but it is not void. Treaties may, within the process of ratification, be reviewed by the Constitutional Court with regard to their compatibility with the Constitution.50 As we have seen in the case of Hungary, this specific provision does not necessary preclude the Court from reviewing the constitutionality of the treaty after ratification. 8. Ukraine Treaties are ratified by parliament.51 Article 9 of the Constitution of 28 June 1996 stipulates: International treaties currently in force, which have been ratified as binding by the Supreme Council of Ukraine, are part of the national legislation of Ukraine.

47

Article 107 of the Constitution.

48

Article 86 of the Constitution.

49

Article 160 of the Constitution.

50

Article 160, paragraph 2 of the Constitution.

51

Article 85, subsection 32 of the Constitution.

The Position of International Law in Central and Eastern European Countries International treaties that contravene the Constitution of Ukraine may be concluded only after the relevant amendments to the Constitution of Ukraine are made.

Whereas it is clear that treaties mentioned in Article 9 of the Constitution are considered to be part of domestic law, the Constitution does not take a position on the questions of rank and direct applicability of treaties. It appears that treaties have the same rank as domestic statutes. The Constitutional Court has no power to review the compatibility between domestic laws and treaties. The only competence of the Constitutional Court with regard to treaties is to give an advisory opinion as to their constitutionality.52 Hence it is clear that the Constitution, and only the Constitution, has in any respect the highest rank in the Ukrainian legal order. The Constitution recognizes the general principles and norms of international law with regard to the external policy of Ukraine. 53 However, there is no provision regulating the relevance of these principles and norms in the domestic legal order. Conclusions In the countries under consideration here, the most important treaties, or even all treaties, become part of domestic law once parliament has given its approval and the text is duly promulgated. In Poland, Hungary, Bulgaria and Slovenia treaties that have been approved by parliament and promulgated shall take precedence over ordinary legislation. In the Czech Republic, Slovakia and Romania this is only true for treaties concerning human rights and fundamental freedoms. As a rule, the rank of treaties lies between the level of the Constitution and that of ordinary parliamentary statutes. In four countries, the Constitutional Court is empowered to annul statutes that contradict treaties.54 The constitutional texts reviewed here have considerably less to say about the role of customary international law within the domestic legal order. It appears that this problem was not as important for the drafters as the incorporation of treaties, in particular in the field of human rights and fundamental freedoms. However, some constitutional clauses that show a certain ambiguity may be interpreted as incorporating the rules of customary international law; and even the absence of such a clause does not necessarily preclude national judges from applying customary international law in their practice, as has been shown with regard to the States of Western Europe.55 In

12*

52

Article 151 of the Constitution.

53

Article 18 of the Constitution.

54

Poland, Czech Republic, Slovak Republic, Hungary.

55

Wildhaher/Breitenmoser

(note 2), 204 et seq.

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contrast, judges in national courts generally appear to show a great willingness to apply customary international law. At the beginning of this article, we said that international law, as its stands at present, does not require that all of its rules must be transformed into domestic law. However, there are authors56 expressing the view that as soon as the rights of individuals are concerned, the execution of a treaty 'in good faith' requires, as a rule, that the treaty provisions be made part of domestic law and that an individual can assert his or her rights before the domestic courts. If there is a tendency in international law towards this position, the States of Central and Eastern Europe have clearly anticipated this development. Their constitutions show a great openness to international law, in particular for treaties, which appears to be typical for post-revolutionary systems.57 This openness will certainly facilitate the adaptation of the legal orders and practice of the Central and Eastern European States to international human rights standards, in particular to the European Convention on Human Rights. It is of course not easy for these countries to bring their legal systems in full conformity with the case law of the Strasbourg Convention organs, and a lot of smaller and greater steps still have to be taken.58 But the countries of Central and Eastern Europe have shown their commitment to achieve this aim within a reasonable time by opening their legal systems to the influence of international law, particularly of human rights treaties. 56

See, e.g., Pierre Pescatore, Conclusion in: Francis G. Jacobs (ed.), The Effect of Treaties in Domestic Law, 1987, 273, 282. 57 Cf. Antonio Cassese, Modern Constitutions and International Law, Recueil des Cours of the Hague Academy of International Law, vol. 192,1985-ΙΠ, 331, 351; Stein (note 4), 427, 428, 447. 58

Cf for example the following cases that are pending in Strasbourg: Nikolova v. Bulgaria, decision of 27 February 1997, No. 31195/96 (remand by an investigator and the dismissal of appeal by a court which decided in the absence of the parties — Art. 5 paras. 3 and 4 ECHR); Rekvényi v. Hungary, decision of 11 April 1997, No. 25390/94 (prohibition on police officers joining political parties and engaging in political activities — Arts. 10,11,14 ECHR); IgnaccoloZenide v. Romania, decision of 2 July 1997, No. 31679/96 (access to children, execution of French decision in Romania — Art. 8 ECHR); Wojcik v. Poland, decision of 7 July 1997, No. 26757/95 (length of detention on remand and of criminal proceedings — Art. 5 paras. 3 and 4 and Art. 6 para. 1 ECHR); Niedbah v. Poland, decision of 7 July 1997, No. 27915/95 (the role of the public prosecutors in detention on remand, no presence of applicant in hearings relating to the continuation of the detention — Art. 5 paras. 3 and 4 and Art. 8 ECHR); Assenov, Ivanova, Ivanov v. Bulgaria, report of 10 July 1997, No. 24760/94 (detention on remand of a 14year old boy, length and conditions of detention — Art. 3, Art. 5 paras. 1, 3 and 4, Art. 6 para. 1, Arts. 13 and 25 ECHR); Myuftiistvo a. o. v. Bulgaria, decision of 8 September 1997, No. 30985/96 (registration of leadership of Muslim community — Arts. 6, 9,11 and 13 E C H R and Art. 1 of Protocol No. 1); Nankov v. Bulgaria, decision of 10 September 1997, No. 28882/95 (length of detention on remand and of criminal proceedings — Art. 5 para. 3 and Art. 6 para. 1 ECHR).

The European Convention on Human Rights and the Nordic Countries By Jacob W. F. Sundberg

Introduction

The following is a sketch. What I have attempted to do is to give a readable overview of the history of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the five Nordic countries. That is an enormous undertaking, bringing together in one short text five sovereign countries and almost half a century of past history. It cannot be done without excluding much that by itself belongs to the story and is worth telling. My guiding star in writing this article has been to focus on the interplay between the Convention and the local law, and to concentrate on such decisions in Strasbourg which have had important repercussions locally in the Nordic countries while leaving out most other decisions and legislative developments. The selection can no doubt be criticized by those better placed locally to see the drama but I have seen few so far who have attempted to cover the whole region (Stenderup Jensen, and Drzemczewskt) and none who has done it in a reasonably short article, and so I hope that doing it this way will have some merit to observers outside the region. The Convention system is very technical and requires much study before the way it works can be understood. Putting focus in the way I have done enhances the difficulties. I have believed that the drama of the conflicts litigated and the emotions involved is worth mentioning because it conveys more understanding of cause and effect within this European system, than doing it in the more antiseptic way can achieve. I will assume that my readers are reasonably familiar with the European Convention, with the political geography of the region, and with Europe's recent history, and I will spill no words on that. Instead I will start with a short overview of the Nordic element present when the European Convention began its life.

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1. The Differences All countries have skeletons in their closets, so too the Nordic countries. The dissolution of the Swedish-Norwegian Union in 1905 was done in defiance of international law.1 Consequently, to accord some kind of primacy to international law has been anathema in Norway. Furthermore, what happened in Norway during the postwar Purge is a very touchy issue that most people consider best forgotten. 2 In Finland, the lost war and the dependence on the Soviet Union is the overriding factor that set the framework for everything until Finland leaped through 'the window of opportunity' in 1989 and thereupon joined the European family under the European Convention. Denmark had its crisis a long time ago, long before joining the Common Market in 1973 and thereafter adjusting to a European membership, an experience which made the sailing smooth during the 1980s. As far as Sweden is concerned, the first major factor has been the secret marriage between the Social Democratic Movement and the almost century-old Hägerströmian school of Scandinavian Realism.3 Everything carries that imprint. A second important factor has been the penetration of the Swedish media culture by the Warsaw Pact. If the penetration covered 40 percent of the Social Democratic Party in the late 1960s,4 it was certainly no less in the 1980s, and certainly not in the media establishment which has been far more accommodating to WP viewpoints5 than the Party leadership. On the top of this, a dominating factor in the Swedish lifestyle has been a hybris borealis , a belief in the own political system that has carried over into lecturing the outside world — including the Soviet leadership — about the superiority of the Swedish solutions, predicting that all other ideologies will fade away as a side effect of mere comparison.6 1

Cf Carsten Smith , International Law in Norwegian Courts, Scandinavian Studies in Law (hereinafter ScSt), vol. 12,1968, 151, 153. 2

Such a subject of course has created an enormous literature and I will restrict myself here to a reference to the first Swedish scholarly attempt to come to grips with what had taken place. See the report of the three Swedish holders of the Chairs of International Public Law, published as Den norska rättsuppgörelsen. Responsum och utredning. With a Summary in English, Institutet för offentlig och internationell rätt/The Stockholm Institute of Public and International Law (IOIR) No. 18 (1956). 3

See Jacob W. F. Sundberg , Human Rights in Sweden. The Breakthrough of an Idea, Ohio State Law Journal, vol. 47,1986,951,970 - 978; id., Human Rights in Sweden. The Annual Report 1987, I O I R No. 77, 109 - 125. * Jan Sejna , We Will Bury Your, 1982, 122. 5 As to the extra impact of media in Sweden, see Jacob W. F. Sundberg,, The Media and the Formation of Law, in: Rolf Dietrich Herzberg (ed.), Festschrift für Dietrich Oehler, Carl Heymann 1985, 447, 459 - 460. 6

During the 1950s, this was a standing message of Professor Herbert Tingsten, Editor-inchief at the big daily Dagens Nyheter.

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2. Ratifications

The picture of the ratifications has to distinguish between ratifying the Convention, and making declarations under Article 25, and Article 46, respectively. Denmark did everything at once in 1952. Norway ratified the Convention and made the declaration under Article 25, in 1952, but was very reluctant to make the one under Article 46 (until 1964). Iceland advanced cautiously and took the steps successively, 1953, 1955 and 1958. Finland jumped through 'the window of opportunity' and did everything in one single step in 1990. Sweden took the first two steps simultaneously in 1952, but waited, and waited, as to the third step. It was not taken until 1966. I will come back to what happened and why. 3. The Nordic Representation in Strasbourg Denmark had two towering profiles in the Commission: Max Serensen who was a member from the time of the Danish ratification and remained in the Commission until 1972, indeed as President as of 1967. Carl Aage Nergaard succeeded him and became the President in 1982 and remained so until 1996. Norway's first member of the Commission was Chief Supreme Court Justice Pool Berg , known for his role in the Purge. He was succeeded by Professor Frede Castberg who was a member 1960 -1972, and in turn was succeeded by Professor Torkel Opsahl (1972 - 1984); he was followed by Advocate Gro Hillestad Thune (1984 -). Iceland had a sequence of short-time holders (Jonasson, Skarphedinson, and Lindal) until Gaukur Jörundsson was appointed 1974 and has remained a member ever since. Finland's representative on the Commission as of 1990 was Assistant Professor Matti Pellonpää who has remained on the Commission ever since. Sweden preferred to see as members of the Commission the Under-secretaries of State in the Foreign Office. The first such member was Sture Petrén who remained in the Commission from 1954 to 1969. He was succeeded by his colleague Love Kellberg from 1969 to 1982; and he in turn was succeeded by his colleague Hans Danelius . However, due to opposition in Strasbourg, already during his first year (1983), Mr. Danelius was released from the post of Under-Secretary and made Ambassador to the Netherlands instead (1984). He has remained member of the Commission ever since, and in 1988 he was released from the post of Ambassador and made Justice of the Supreme Court. Denmark's first member of the Court was Professor A If Ross (1958 - 1967). Next came former Minister of Justice Helga Pedersen (1968 - 1977) and then Professor Max Serensen (1978 - 1981), followed by Supreme Court Justice Jergen Gersing . After the latter's untimely death 1988, Professor Bernhard Gomardwas made member ad hoc, and thereupon as of 1989, Professor 1st Foighel , former Minister of Finance, has held the Danish seat on the Bench.

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Norway's first judge was the President of the Supreme Court Terje Wold (1959 1972), former Minister of Justice in the Norwegian Government-in-exile in London during the war. He was followed in 1972 by his successor as President of the Supreme Court, Rolv Ryssdal who was elected President of the European Court in 1985 and has remained so ever since. Iceland's first members of the European Court were Mr. E. Arnolds (1958 - 1962) followed by Mr. Sigurjonsson (1962 -1970). But in 1971, Professor Thor Vilhjalmsson succeeded him and has remained member of the Court ever since. Finland's first, and so far only, representative on the Court has been jur. dr. Raimo Pekkanen , formerly Justice of the Supreme Administrative Court. Sweden's first representative on the Court was Professor Âke Holmbäck (1958 1973), a close friend of the Foreign Minister, Professor Osten Undén. He was succeeded by Mr. Sture Petrén (1974 - 1976), and he in turn, after his untimely death, was succeeded by Gunnar Lagergren, President of the Gothenburg Court of Appeals and Marshal of the Realm. Retiring in 1988 for age reasons, he was succeeded by Mrs. Elisabeth Palm , Justice of the Supreme Administrative Court, who at present still occupies the post. 4. The Period of Scandinavian Dominance Initially, the Strasbourg system was very much dominated by the Scandinavians, due to the number and distribution of the ratifications. Before 1954, four of the eight member States were Scandinavian. Thereafter the proportions fell slowly. Until 1958, the Scandinavians were at least four of thirteen. Looking at the number of States having made declarations under Article 25, until 1966 the Scandinavian States were four of nine. The dominant position occupied as a result of such figures was of course even more strengthened when looking at the leading positions. Scandinavians were Presidents of the Commission 1962 - 1972 (Sture Petrén first and then in 1967 Max Serensen)y and as of 1982 and until 1996 the post was again held by a Scandinavian (Carl Aage Nergaard). A Scandinavian, Mr. Rolv Ryssdal , has been the President of the Court ever since 1985. It may reasonably be believed that the dominance was also enhanced by the fact that three of the other member States belonged to the group of war losers (BRD, Austria and Italy) whose influence in spite of size was always hampered by vague suspicions of still suffering from some kind of vicious imprint of their belligerent past. The very fact that Austria had only changed two thirds of the legislation in force during its time as part of Grossdeutschland certainly did not give Austria added weight in the Strasbourg deliberations.

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I. Denmark 1. The Rolin Debate In a Nordic comparison, things seem to happen first in Denmark. While in Sweden there has been great reluctance ever to touch the debate released by Henri Rolin, explaining that the formula in the Preamble reconnaissant meant that the rights preexisted in relation to the Convention and that the rightful consequence must be that the member States were obliged to give them direct effect in their courts,7 this was not so in Denmark. On the contrary, Max Sarensen made some remarks to this effect right from the beginning.8 He was thereupon very much contradicted by Ole Espersen ,9 but evidently the Copenhagen City Court was sufficiently impressed by the logic to allow the principle to be followed in a criminal case in which the question arose who was to pay for the costs of an interpreter. 10 7

See Jacob W. F. Sundberg , Preface to Human Rights as Comparative Constitutional Law Proceedings, Akron Law Review, vol. 20, 1987, 593, 599, a contribution carefully avoided by all Swedish authors. 8 Max Serensen , Sporgsmalet om den umiddelbare anvendelse af traktater som bestanddel af dansk ret, Nordisk Administrativt Tidsskrift 1966,107,117, 118; a lecture given on 21 March 1966 to a Nordic gathering of lawyers. 9 Ole Espersen, Den europaeiske menneskerettighedskonventions forhold til dansk ret [The relationship between the European Convention on Human Rights and Danish Law], Juristen 1966, 401, 405. 10

In a decision of 25 April 1966 the City Court of Copenhagen felt entitled to apply Art. 6 (3) of the Convention directly in a matter that in fact was not conclusively solved in Strasbourg until the European Court had had its say in Luedicke , Belkacem andKoç v. Federal Republic of Germany decided in 1978. The case before the City Court concerned an Algerian citizen who had committed a traffic offence and who needed an interpreter for his defense. The matter was governed by Sec. 1008 of the Code of Procedure which was to the effect that defendant, if convicted, should reimburse the public purse all necessary expenses for the handling of the case, including what had been paid to the interpreter. The City Court held that reimbursing the cost of interpretation was not required and said: Expenses for an interpreter should be born by the public funds, cf Art. 6 (3), para. e. in the Convention for the protection of human rights and fundamental freedoms, Manifest No. 20 of 11 June 1953. As a result of this judgment, it is suggested, the Ministry of Justice issued Circular No. 77 of 9 May 1967, to the effect that the expenses for the interpretation in criminal cases should be borne by the public purse. It perhaps should be noted that the judgment of the Copenhagen City Court coincides in time with the case Szwabowicz v. Sweden , 1958-59 Y.B.Eur.Conv.H.R. 354 (cf Appl. 172/56 and NJA 1956,337, as well as Appl. 911/69 and NJA 1961 C 106) in which the Swedish administrative authorities had refused entry to a foreigner, married to a Swedish resident. The European Commission expressed its position in the following language:

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2. Denmark's Adherence to the EEC in 1973 Denmark adhered to the EEC with effect as of 1 January 1973. The debate preceding that occurrence had much to do with whether the adherence could take place within the framework of the existing Constitution or not. This Constitution had been adopted in 1953, the same year as the European Convention was adopted, and indeed the principle of lex posterior had some bearing on the situation. The Constitution had entered into force on 5 June 1953, while the Convention entered into force on 3 September. The Convention was thus clearly lex posterior. Consequently, it was not unimportant that the Rome Treaty, as in force in Denmark on 1 January 1973, was also lex posterior, and indeed the Danish discussion concerned if not just abstaining from issuing legislation inconsistent with the Rome Treaty was sufficient to meet the demands of direct effect of the EEC measures. This was the solution finally opted for, and no change of the Constitution was considered necessary by adhering to the EEC.11 a State which signs and ratifies the European Convention of Human Rights and Fundamental Freedoms must be understood as agreeing to restrict the free exercise of its rights under general international law, including its right to control the entry and exit of foreigners, to the extent and within the limits of the obligations which it has accepted under that Convention (372). 11

O n 22 January 1972 the Treaty concerning Denmark's accession to the EEC was signed. The Danish Bill was signed on 10 October 1972 and the accession took effect on 1 January 1973. The development was preceded by a Memorandum prepared by the Ministry of Justice in which, inter alia , a general survey of Danish law on the implementation of treaties was included. The Danish accession to the EEC meant a transfer or delegation of such powers from Danish authorities to the EEC-institution that it could only take place in accordance with the special procedural requirements of Art. 20 of the Danish Constitution, 1953. But the enactment under Art. 20 would not be sufficient in all circumstances. The accession meant that the delimitation of the extent of the power transferred, as well as of the directly applicable EEC provision, was left to the decision of the EEC authorities. They were authorized to take binding decision without approval of the Danish authorities and certain of these decisions had a direct effect in Denmark. This EEC principle of primacy was quite a radical step and the enactment under Art. 20 was not always sufficient to comply with it. In relation to this problem, the Ministry of Justice in its aforementioned Memorandum advised: that Community law does not oblige the Member States to have the principle of primacy safeguarded by constitutional provisions. It is constitutionally possible for Denmark to fulfil its obligations on the basis of an article 20 Act. The Folketing can fulfil its obligation solely by not passing legislation contrary to Community law, and unintended conflicts will always be solved by Danish courts which will presume that the Folketing did not wish to violate its Community obligations, thereby in practice being able to give the Community provision primacy over the Danish statutory provision. It has been said that the more effective implementation of the European Convention in Denmark is due to the shadow of this accession in 1972 of Denmark to the EEC: a development has taken place in the use of international law and Community law by the Danish courts.

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3. The Danish Sex Education Case and Dr. Niels Eilschou Holm In the first postwar period, Social Democratic regimes prevailed in the three Scandinavian countries, making cooperation easy. These regimes wanted to change society and one way to do so was by changing the school system. Religion was one area of conflict, sex education another. The way to circumvent the obstacles was by integrating the controversial matter into something bigger that was then made a compulsory subject. In Sweden — and this was indeed the point behind the Swedish reservation to Article 2 of the First Additional Protocol 12 — teaching of Christianity (i.e. the faith of the Church of Sweden) was so integrated into the teaching of religion, the freedom of religion issue thereby supposedly disintegrating.13 In Denmark it was the sex education which was sneaked into the compulsory subject of biology in the State schools and thus became compulsory too. It did not happen without protests however. Some 36,000 signatures protesting the measure were collected, and the Government beat a halfway retreat. But the matter was brought before the Convention organs in Strasbourg in the case Kjeldsen , Busk Madsen and Pedersen v. Denmark. This was a shocking experience, although in the end the Danish Government was spared losing the case, mainly because of the generous Danish approach to private schools. There were 60,000 pupils in private schools in a Danish population of 5 million; there were 6,000 of them in Sweden with a population of 8 million. One important effect of the Sex Education Case had to do with the presence in the Danish Government delegation of dr. iur. Niels Eilschou Holm. He learned the system by this case, and thereupon wrote a book about the case which attracted attention all over the Nordic area.15 Furthermore, dr. Eilschou Holm became the Ombudsman and from there could influence the Danish development. He had two points in particular It may thus be shown that treaties entered into by Denmark, but without incorporation, are a source of law for the Danish courts. [A]s a result of Denmark's membership in the European Community the courts and the administration are not unused to applying rules that have been phrased internationally when handling cases. See Nina Holst Christensen, Gadder menneskerettighederne i Danmark?, Juristen 1989, 48, 49, 51, 52. 12 See Jacob W. F. Sundberg , Human Rights in Sweden. The Annual Report 1985, I O I R No. 67, 14 -18, cf. 22 - 24. 13 This system was the basis of the complaint in the case Karnell and Hardt v. Sweden , Appl. 4733/71,1971 Y.B.Eur.Conv.H.R., vol. 14,676; compare Gunnar W. G. Karnell and Tom G. A. Hardt , Karnell and Hardt versus Sweden, in Festskrift till Jacob W. F. Sundberg, , 1993, 91 -116. 14 Kjeldsen. , Busk Madsen and Pedersen v. Denmark , 1 European Human Rights Reports (EHRR) 711, European Court of Human Rights, Judgments (ERD) 23. 15

1980.

Niels Eilschou Holm , En sag for Menneskerettighedsdomstolen, Juristforbundets forlag

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which made an impact. One was that when administrative authorities enjoyed a measure of discretion, they were under duty to take account of the Convention.16 The other was a reference to the fact that according to the Act on Legal Responsibility of Ministers of the Crown, 1964 (Ministeransvarlighedsloven) the Danish Cabinet Ministers were subject to a specific criminal liability in the exercise of their office and that this could be activated if they by an act or omission were to make the Danish kingdom suffer liability for a violation of international treaty law.17 In the so-called Tamil Case, 22 June 1995, the Danish Impeachment Court (Rigsretten) sentenced the Minister of Justice to a suspended sentence of four months in jail for failing to allow the reunion of Tamil immigrants with their families waiting abroad. Evidently, the existence of this criminal liability sensitized the Danish administration to the requirements established by the European Convention. 4. The British Rail Case and its Precedential Effect in Denmark When the news of the European Court judgment in the case Young, Webster and James ν . UK 18 broke, 26 June 1981, the Danish response was quick. Within a year, the Danish Parliament passed a Law on protection against being dismissed due to trade union conditions, Act No. 285 of 9 June 1982.19 But labor unions have an iron grip on conditions in the Scandinavian countries (and it should be noted that the Scandinavian members of the Court in the British Rail Case all dissented and wanted to 16

In the Danish Ombudsman Office, dr. Eilschou Holm argued forcefully for compliance with the European Convention and some actions were taken. Summarizing his approach he wrote that he perceives the function of the Ombudsman in this area as being primarily that of ascertaining, whenever appropriate, whether the European provisions on human rights have been taken sufficiently in consideration in the decision-making process of the administrative authorities concerned. If the Ombudsman finds the process deficient in that respect, he should certainly not hesitate to recommend a reconsideration of the matter; and if, in the course of his investigation of a matter, the Ombudsman finds shortcomings in the applicable domestic law, he should feel equally free to make recommendations aimed at bringing the provisions of ordinary or subordinate legislation more firmly in line with the international commitments undertaken. See Niels Eilschou Holm , The Danish Ombudsman and the European Convention on Human Rights, ScSt 1986, 75, 98. This was also done in a number of cases reported annually in Folketingets Ombudsmands beretning, all cases summarized in Beretning Nr. 1220, 79 - 80. 17

Eilschou Holm , id. ,75. See further id ., The Danish Ombudsman and the European Convention on Human Rights, ScSt 1986, 75, 91. 18

Young, Webster and James v. United Kingdom, 4 E H R R 38,1977 Y.B.Eur.Conv.H.R. 520, ERD44. 19

Lov Nr. 285 om beskyttelse mod afskedigelse pa grund af foreningsforhold, Folketingstidende 1981/82. Tillaeg A, col. 1599.

9 June 1982

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let the unions have their way) and it was not to be long before the power, behind the Danish Act was put to the test. In the so-called HT-sagen a number of bus drivers, most prominent among them Mr. Sten Bille Fredriksen, working for the Copenhagen city administration were ordered to change trade union but preferred to leave the unions altogether. In order to force them into submission, the trade union movement eventually brought all traffic in the Copenhagen area to an almost complete standstill. The administration then gave in and, in violation of the 1982 Law, fired the little group of dissidents. This made the Danish Government bring a court action against the city administration, joined by the group fired. The suit was taken before the Supreme Court and ended in damage awards to, but no re-employment, of the bus drivers. 20 They then took their case to Strasbourg but were unsuccessful, the Commission finding that they were no longer victims of any violation:21 The Commission has not found any indication of a general practice whereby public authorities would disregard the legislation introduced in Denmark by dismissing employees and merely pay compensation, a practice which in the Commission's opinion would raise a serious issue under the Convention. In these circumstances the Commission finds that Denmark has taken reasonable steps to comply with its obligations....

5. The Watershed Case: Hausschildt During the 1930s, as a result of a bad rape case known as Fannerup-sagen 22 a provision was introduced in Danish law for the pretrial detention of people accused of having committed particularly grave crimes. This provision which became Section 762 No. 2 of the Administration of Justice Act read: § 762.2: [a] suspect may furthermore be detained on remand when there is a particularly confirmed suspicion that he has committed 1. an offence which is subject to public prosecution and which may under the law result in imprisonment for 6 years or more and when respect for the public interest according to the information received about the gravity of the case is judged to require that the suspect should not be at liberty . . .

This institution of pretrial arrest was criticized by Professor Bernhard Gomard in his commentary to the Administration of Justice Act, writing that using judicial arrest according to Section 762 (2) in embezzlement and fraud cases is most likely not in accordance with Article 5 paragraph 1 of the European Convention.23 20

UfR 1986, 898.

21

Steen Bille Fredriksen et alii v. Denmark , Application 12719/87, European Commission decision 3 May 1988, 56 European Commission on Human Rights. Decisions and Reports (ECHR DR) 237. 22 23

UfR 1935, 531.

Bernhard Gomard , Retsplejeloven Kommentert, 3rd ed., 100. In the 4th ed., vol. ΙΠ (1989), footnote 26 to Sec. 762: " Anvendelsen af retshindhaevelsesarrest i underslsebs- og bedragerisager

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The case of Mogens Hausscbildt must be seen in the light of the drama created by the tax lawyer, advocate and politician-overnight Mogens Glistrup who succeeded in assembling overnight the next largest political party in Denmark by his anti-tax message on Danish television. Mr. Glistrup was immobilized by an enormous tax fraud litigation that took 10 years, but the scare he had created set the stage for the case against Mogens Hausscbildt . Mr. Hausschildt's operation in the framework of his firm Scandinavian Capital Exchange eventually brought the Danish National Bank, Ministry of Trade and tax authorities into action. He was arrested and brought before the court on 2 February 1980 and kept in pretrial detention until 10 April 1980 on charges of fraud and tax evasion. Thereafter and until 4 February 1981 the detention continued on the charge of fraud and embezzlement. On 5 September 1980, Section 762 (2) was added as ground for detention. In sum, Mr. Hausschildt's imprisonment was prolonged 23 times on the bases of Sections 762 (1) and (2), all the time except two with one and same judge, Mr. Claus Larsen, or with Larsen and two lay assessors on the Bench. But the trial did not begin until 27 April 1981. It ended with a five year jail sentence. Mr. Hausscbildt took his case to Strasbourg while the trial was still on. When the case was declared admissible, the Administration of Justice Act, Section 60, was revised on 10 June 1987, to the effect that if a judge had ordered pretrial detention on the sole basis of Section 762 (2) he was disqualified from being judge at the trial. The trial in Denmark went on and Hausscbildt was sentenced to five years in jail, which time he had already served in detention so he was immediately released. But the case was brought to Strasbourg where the European Court gave judgment on 24 May 1989 finding the Danish Government in violation of Article 6 (l). 24 In UfR 1990 ρ 13 — another case — the Hausscbildt judgment was allowed precedential effect and, in accordance with the principles established by that judgment, the judge was found disqualified irrespective of whether his pretrial decision had been based on Section 762 (2) or on 762 (1) and (2). As a result, Section 60 of the Administration of Justice Act was revised once more, on 13 June 1990, to the effect that disqualification followed whether the detention order was based on 762 (2) alone, or in combination with some other ground. In UfR 1990 ρ 181 the same issue came once more before the Danish Supreme Court. In this case the problem was whether in a complex of criminal cases concerning the same group of persons, a judge who had heard the case as a trial judge against one of the accused was subsequently disqualified from hearing the case against anm.v. er naeppe forenelig med den europaeiske menneskerettighedskonvention, art. 54, stk. lc, jfr. note 4 til overskriften til kapitel 70." — Professor Gomard happened to sit on the European Bench in the Hausscbildt Case in his capacity of ad hoc Danish judge. 24 Hausscbildt v. Denmark , 12 E H R R 266, ERD 154.

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other accused. The Supreme Court agreed that the Danish practice of allowing such multiple functions for one and the same judge was questionable in the light of Article 6 (1) but they did not want to go further, deferring instead to the competence of the legislature. The unofficial Danish compliance with the European Convention as evidenced in the wake of the British Rail decision and the Hausschildt Case25 made the official position that the Convention was not Danish law increasingly untenable and, in 1992, an Act was passed which declared the Convention to be Danish law.26 25

Senren Stenderup Jensen views the decision in Hausschildt "as the definitive breakthrough for the application of the E C H R in domestic Danish law." He finds that the Danish Supreme Court, "in its application of the E C H R went considerably further than implied in this principle [of presumption], in effect disregarding a clear domestic provision. Thus this case should undoubtedly be regarded as the Supreme Court's dissociation not only from its statements in 1986 UfR 898 but also from its decision in 1987 UfR 307, where it concluded that a trial judge who at a previous stage of the proceeding had ordered detention on remand was not disqualified from hearing the case as trial judge." See Seren Stenderup Jensen, The Application of the European Convention on Human Rights in Domestic Scandinavian Law, ScSt 1991, 57, 98. Professor Eva Smith was very upset at the outcome, see Eva Smith , "Menneskerettighedskonventionerna og de nordiske retsplejeordninger", Forhandlingerne pâ Det 32. nordiske juristmode, Del 1, 9 - 32, [hereinafter NJM] at 19: "If one engages in experimental thinking to the effect that the European Court of Human Rights were an exclusively Nordic enterprise, there is hardly any doubt that Denmark would have been acquitted. Nobody in the Nordic countries ever questioned seriously the court practice for which Denmark was judged to be in violation." She blamed the Danish loss, partly, on Mr. Hausschildt' s British barrister, Mr. G. Robertson , and wrote: "In my view the Hausschildt judgment is wrong, and it is due to the fact that the judges of the European Court do not understand sufficiently the principles underlying the legal systems of the various countries." Id., 20,21. She adds, darkly: "The Hausschildt Case does hardly represent the last attack on Nordic principles of penal procedure." Id., 23. Incidentally, it transpires from Mr. Hausschildt* s claim for reimbursements before the European Court that Professor Eva Schmidt had prepared a report on the relevant Danish legislation for him. 26

It was suggested time and again that the Convention should be declared to be Danish law. But the real move towards this goal seems to have gotten under way with the lecture that the President of the European Commission, dr. Carl Aage Nenrgaard , gave at the meeting of the Danish Association of Judges on 3 October 1986 in which he made such a proposal; it was subsequently published (see Carl Aage Nenrgaard, Den europaeiske menneskerettighedskonvention og dansk ret, UfR 1987, 73 - 82), and the year after, Professor Claus Gulmann at the University of Copenhagen came to support the idea (Juristen 1988,285,286). In January 1989, the matter was subject of a debate in the Danish Parliament in connection with the establishment of the Danish Human Rights Center and the proposal was favorably received. However, the Minister of Justice was uncertain whether declaring the European Convention alone to be law was the best solution in view of the many other human rights conventions. Subsequently, however Ms. Nina Holst Christensen , a functionary in the Ministry of Justice, published an article in which the effects of the move were more closely analyzed (Gaelder menneskerettighederne i Danmark?, Juristen 1989,48 - 57), and subsequently the Parliament, on 19 May 1989, decided unanimously to create a committee charged with analyzing pros and cons with the

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6. The Mass Media Cases During the same period two mass media cases were handled by the Danish courts, both ending up before the European Court. In the first case, Barfodv. Denmark? the applicant had published an ironic remark about the judges in a tax case who happened to be governmental employees and who decided in favor of the government. The criminal case for defamation brought against the writer was taken to Strasbourg but the' European Court relied on the doctrine of the margin of appreciation and could find no wrong. In the second case,Jersild v. Denmark, 28 the reporter had taken a pick from the criminal underground and made them tell what they thought about immigrants and others. The taped interview was thereupon cut and the choicest, most racist and inflammatory parts were broadcast. For this he was criminally prosecuted and, having been sentenced, he took his case to Strasbourg. The European Court found a violation on the part of the Danish Government which was found not protected by the margin of appreciation. The cases may seem a bit inconsistent but one explanation may perhaps be the shadow of Mr. Glistrup being felt in the first case. II. Norway 1. The Shadow of the Purge The way the European Convention was drafted it should not be possible to bring cases to Strasbourg generated by the postwar Purges in the member countries. The bar was not watertight, however, as evidenced in the case Kjelstrup ν . Norway 29 in which the application was based on a petition for rehearing, one of the arguments being that the applicant had been sentenced for intending to serve in Finland in armed forces used against the Soviet Union which was a Norwegian ally, while in fact at the time in question the Soviet Union had been an enemy of the Norwegian

proposed legislation. The Committee Report was published in 1991 and favorably received with the result that the European Convention Act was adopted and enacted on 29 April 1992: Lov om Den Europaeiske Menneskerettighedskonvention, 29 April 1992. DLt 1992 N r 285. It had but one reservation: the Law would entail no revision of the Code of Procedure, Sec. 962, para. 2, limiting the possibilities to appeal certain decisions in criminal cases. 27

Bjern Barfod v. Denmark , 13 EHRR 493, ERD 149.

28

Jens Olaf Jersild v. Denmark , 19 EHRR 1, ERD 298.

29

Finn Hannibal Kjelstrup v. Norway , Application 931/60, 6 E C H R C D 41.

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Government-in-exile.30 The case was declared manifestly ill-founded 31 but it certainly 30

Major Finn Hannibal Kjelstrup, born in 1884, was serving in Norwegian military administrative functions when the German forces in April - May 1940 overran the Norwegian resistance. Thereupon he inter alia assisted Mr. Vidkun Quisling in the efforts to create a Norwegian legion of volunteers on the German side, but insisting to serve alongside with the Finns in Finland only. At Quisling's request Major Kjelstrup agreed to serve as commander of The Norwegian Legion. The Norwegians and the Germans were of different opinions on many points but the catalyzing disagreement came when the Norwegian officers refused, by staying absent, to follow the German request to swear allegiance to Adolf Hitler. In the course of the Purge Major Kjelstrup was prosecuted inter alia for this service. One of his main defenses was that the war had started on 24 April 1940 when the Norwegian Minister left Berlin and come to an end on 9 June 1940. The Eidsivating Court overruled Kjelstrup' s argument, holding: When capitulating, the Norwegian forces laid down arms and undertook not to resort to arms again as against the German Reich or its allies as long as the war lasted. But in the King's Proclamation to the Norwegian People of 7 June 1940 it is said inter alia: "The Command-in-Chief of the Defence forces has advised the King and the Government to pursue no more fighting in the country.. . . They are therefore now moving out of the country. But they do not thereby give up the fight for regaining the independence of Norway. O n the contrary — they will insist on it outside the country. They harbour strong hope that the German violators soon will be forced to return their prey." Mr. Kjelstrup was convicted and sentenced to 18 years' imprisonment. In 1958, Mr. Kjelstrup claimed a retrial, pointing to the fact that the Soviet Union at the time of the setting up of the Norwegian Legion for the purpose of fighting alongside with the Finns had in no way been an ally of the Norwegian Government-in-exile, but rather the opposite, fighting against which there could be no Norwegian objection; and arguing among other things: After the war the Court upheld the false theory advanced by the Government that the state of war had continued after 10th June 1940. . . . The 'Purge' after the war thus took an arbitrary form so as to suit the official policy of the Government by aiming at suppressing the Capitulation Agreement. In the Applicant's case the prosecution presented a false version of the Agreement, the words 'all (gesamten ) Norwegian forces' having been translated from German into Norwegian as 'Norwegian forces', thus tending to create the impression that certain armed forces were excepted and that the capitulation had been local in its effect. Even when the true version was disclosed the Courts repeated the theory that the capitulation involved only those forces left behind in Northern Norway when the King and the Government left for England. His request for a retrial was rejected, however, on 18 January 1960, the Court holding, not that there existed a state of war between Norway and Germany, but that there was a war within the meaning of the Acts [i.e. the Military Penal Code and the High Treason Act]. Mr. Kjelstrup brought a complaint before the European Commission, arguing inter alia a violation of Art. 6 (1) inasmuch as the Norwegian judges "without examining new submissions made by him, showed that they felt bound by previous decisions concerning the legal status of Norway under international law." Mr. Kjelstrup's 31

application was held manifestly ill-founded.

The European Commission said in its decision 30 May 1961 in relation to this argument

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contributed to reluctance on the Norwegian side to make the declaration under Article 46. 2. The Iversen Case32 The next case to make an impact was the one of the young dentist, Mr. Stein Iversen y under orders to do compulsory dentist service on the foggy islands in the Lofoten archipelago. He could not suffer this full time and was prosecuted and sentenced33 and took his case to Strasbourg. There it was declared manifestly ill-founded but by a majority of six against a minority of four, in a decision that took 25 pages to write. The case had a number of repercussions. The Norwegian Government limited its prolongation of the declaration under Article 25 to one year only, which move generated much critical comment.34 In Convention circles the use of the term 'manifestly ill-founded' in such circumstances was subjected to much criticism, 35 and eventually in Norway the procedural codes were amended to include a provision for rehearing the case in Norway if an international court had arrived at another interpretation of the international law than the highest Norwegian instance on the same facts. 36 that the Court of first instance and the Committee of three judges of the Supreme Court found that the submission by the Applicant of new evidence and argument did not justify a departure from jurisprudence which had been established by the Norwegian courts over a long period [and that] . . . the reliance by a tribunal on established and appropriate jurisprudence has no relation to the notion of a tribunal which is not independent and impartial. Incidentally, when taking its decision, the Commission did not include the Norwegian member, Professor Frede Castberg , who had refused to take part since he had had a letter exchange with Mr. Kjelstrup without knowing the existence of the application (see Frede Castberg , Den Europeiske Konvention om Menneskerettighetene, Lov og Rett 1962, 56, 59 note 2). 32

Stein Iversen ν . Norway , 1963 Y.B.Eur.Conv.H.R, vol. 6, 278 (European Commission on Human Rights), Application 1468/62, 33

Norsk Retstidende 1961,1350; cf. Norsk Retstidende 1966, 496.

34

See 1963 Y.B.Eur.Conv.H.R., vol. 61, 26; Henry G. Schermers , European Commission of Human Rights: The Norwegian dentist case on compulsory labor, Netherlands Tijdschrift voor international recht 1964, 366. Torkel Opsahl comments that the one-year period "was an excessively short period that must have been perceived as a demonstration while the case was sub judice ": Torkel Opsahl , Den internasjonale klagerett i praksis, in: Trond Dolva/Torkel Opsahl , Europarâdets menneskerettighetskonvensjon og Norge, Den Norske Advokatforening N r . 45 (1982), 25. In the second edition of Jacob's book, with Mr. Robin C.A. White as coauthor, it is stated that "it is hard to escape the conclusion that the Commission's decision to reject the application was influenced by political considerations." 1996, 73. 35

Francis G. Jacobs , The European Convention on Human Rights, 1975, 245.

36

Lov om rettergangsmaten

i straffesaker

, 1 July 1887, § 414, para. 1, as amended; and Lov om

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3. A rticle 46 and the Purge At the plenary session of the Nordic Council on 21 March 1962 at which the desirability of all Nordic countries making declarations under Article 46 was being discussed, it was said very frankly by some Norwegian politicians that the history of the Purge made such a declaration an impossibility.37 A heated discussion followed upon this indiscretion. The next year, on 10 October 1963, the Norwegian judge in Strasbourg, Mr. Terje Wold , signed a letter urging the making of such a declaration and that seems to have contributed to a change of heart.38 On 30 June 1964, the Norwegian declaration was made. 4. The Period of Silence But the Convention was in no way the talk of the town. The Code of Criminal Procedure that eventually was enacted in 198139 was preceded by 12 years of preparations. Not a single time during all these hundreds of meetings was the Convention mentioned, it has been confided by one of the participants.40 Indeed, only three times before 1980 had the Convention been referred to before the Supreme Court. During the 1980s, however, the picture changed and such references are reported to have rettergangsmdten i tvistemdl , 13 August 1915, as amended by Law 14 February 1969 No. 9, § 407, para. 1, No. 7. The 1887 Act has since been replaced by Lov om rettergangsmdten i straffesaker , 22 May 1981, see § 391. 37 When ratification of the Convention was considered, the Department of Justice pointed to a certain discrepancy between the provision in the Constitution of 1814, saying that no appeal lies against the judgments of the Supreme Court (§ 90), and that for such reasons the Norwegian authorities preferred to wait and see what the European jurisdiction meant in practice. However, the main reason for the Norwegian attitude was, as we understand it, as follows:

It is fear of the Norwegian landssvikere [treasonous collaborators with the Germans] bringing their cases before the European Court of Human Rights that has prompted the Norwegian Justice Department to dissuade from Norway recognizing the Court! This assertion was made by [the Leader of the Labor Party in the storting] Nils Hensvald in the plenary meeting of the Nordic Council yesterday night [i.e. 21 March 1962], and his statements caused both attention and horror, both among the Norwegian delegation as well as among delegates from other countries. See Trygve Moe, Taler ikke landssvik-oppgjoret granskning av Europadomstolen? Dagbladet 22 March 1962. Reportedly, Mr. Hensvald's statement was made in the face of a recommendation to the Nordic Governments to recognize the obligatory jurisdiction of the European Court. 38

See Trond Doha, Den europeiske menneskerettighetskonvensjon og Norges Hoyesterett, in Festskrift till Jacob W. F. Sundberg (Erik Nerep/Wiweka Warnling Nerep, eds.), 1993, 45, 49.

1

39

Lov om rettergangen i straffesaker

40

Jobs Andenœs, Lov og Rett 1992, 375 et seq., 378.

, 11 May 1981 N o 25.

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happened 16 times. The last session that Rolv Ryssdal attended in his capacity of President of the Supreme Court indeed concerned the wisdom to be fetched from the Winterwerp Case.41 During the 1990s, on the other hand, such references have been common. Thus Hausschildt was relied upon in 1990 and the time limit for deprivation of liberty before being brought before a judge was determined in 1991.42 5. The First Loss: E. v. Norway On 29 August 1990, the Norwegian Government suffered its first loss in Strasbourg. The case concerned an untreatable psychopath whose matter had been before the Supreme Court in 1985,43 but the violation found by the European Court 44 — slow procedures — did not refer to what had happened in the Supreme Court, and consequently the impact was limited. 6. Norway of the Social Workers'\

and the Adèle Johansen Casé45

This was a case of the type typically generated by the Scandinavian 'welfare society* . A young woman had become stuck in the drug environment in her home city and gave birth to a girl who was immediately taken into public care by the social authorities. Sometime later she also had a son who was difficult. She moved away to Oslo and later to Copenhagen and reformed herself, trying insistently to get her daughter back. The social authorities fought her endeavors tooth and nail and saw her fight as a 'crusade* and a 'campaign' against the social authorities.46 But they judged her merits as mother of the girl in terms of her relationship to the boy who escaped time and again from the social authorities to rejoin his mother. Eventually, however, they gave up the fight in the realization that letting the boy be with his mother was probably no worse than all the complications arising when he was in public care. The case of the daughter was taken to Strasbourg and the European Court found the Norwegian Government to be in violation of Article 8. The tragedy of the case had been that the ban on access, decreed by the social authorities and implemented by measures of an irreversible and definitive character, had made re41 Winterwerp v. Netherlands , 2 EHRR 387, ERD 33, which case was a great argument in Norsk Retstidende 1984, 1175. 42

Norsk Retstidende 1990, 379, and Norsk Retstidende 1991, 777, respectively. See further TrondDolva (note 32), 45. 43

Norsk Retstidende 1985, 22; cf id. 1991, 1256.

44

E. v. Norway , 17 EHRR 30, ERD 181-A. In Norway the case is known as Arne-saken.

45

Adèle Johansen v. Norway , 23 E H R R 33.

46

See testimony of Mr. Reigstad , psychologist, 23 EHRR 33, at 46. The judgment of the City Court devoted much attention to Ms.Johansen's skepticism about the social welfare authorities.

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uniting mother and child impossible. In some parts of Norway, this European decision was hailed as a great blow to the 'Norway of the social workers'. 47 7. Stale Botten and Jan Mayen This case48 concerned conditions on the faraway island of Jan Mayen in the North Atlantic.49 As a matter of fact it concerned what was correct military behavior and good seamanship in the rough waters surrounding the island after a rescue operation had gone astray and resulted in two deaths. Major Stale Botten was the boss of the operation and the sole survivor. He was tried for insubordination but acquitted in the District Court. However, the prosecutor brought the matter before the Supreme Court which could, at that time, hear the case without the accused being present and, moreover, sentence him to a penalty, provided the facts were sufficiently set out in the lower court's judgment. Indeed, the Supreme Court did sentence him on the basis of such facts, 50 and he brought his case to Strasbourg. The European Court found the Norwegian Government in violation of Article 6 (1) since he had not been heard publicly and what had been set out in the lower judgment was not sufficient to allow the Supreme Court a complete fact basis. III. Iceland 1. The Gudmundsson Case In early 1950, the Icelandic government introduced measures of some extremity, the so-called grand assets taxes.51 They were special capital levies, unprecedented in the country, limited to a small number of taxpayers. The level of taxation was ten to 25 percent but the tax payment was spread over a number of years. In 1957, the time was considered ripe again for a second levy on the more prosperous of the population, the taxation programme being largely patterned after the previous tax. Both taxes departed to a degree from the traditional pattern of asset valuation for tax purposes, and extensive concessions to certain business interests were made. The most remarkable trait was thus the amount of discrimination involved.

47

En hard dom mot Norge i Strasbourg, editorial in Aftenposten 10 August 1996.

48

Harald Stale Botten v. Norway , judgment 19 February 1996, ERD 595.

49

Jan Mayen came under Norwegian sovereignty in 1929.

50

Norsk Retstidende 1989, 715.

51

Hjortur Torfasson , The Icelandic Grand Assets Taxes of 1950 and 1957, University of Toronto Faculty of Law Review, vol. 20, 1962, 111.

197

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Jacob W. F. Sundberg

The Icelandic Constitution makes no mention of taxes except to require that they be imposed only by law, but the Constitution protects against expropriation and undue discrimination in property legislation (Article 67). Levies on individual taxpayers that did not extend to others of equal financial status were believed to be incompatible with Article 67 as a confiscatory measure. The people victimized by the grand assets taxes organized themselves and put up a fight in the Icelandic courts in order to stop them or limit them.52 As figurehead in this fight was chosen Mr. Gud • mundur Gudmundsson , owner of a carpentry factory called Tresmidjan. He was particularly qualified for this task inasmuch as he was rich, self-made, and blind. The question of interpreting the Act, was inevitably linked with the presumption of equality of taxpayers raised by Article 67. The Supreme Court however found that the tax programme did not "discriminate between taxpayers to such a degree as to be in breach of article 67." At this moment in time, the challenging organization split and Mr. Gudmundsson alone wanted to proceed to Strasbourg. In his application, Mr. Gudmundsson challenged the 1957 tax as concerning no tax but being confiscatory and discriminatory. On 20 December 1960, the Commission rejected Mr. Gudmundsson's application as manifestly ill-founded. 53 It said, inter alia : Whereas , the general principles of international law, referred to in Article 1, are the principles which have been established in general international law concerning the confiscation of the property of foreigners; whereas it follows that measures taken by a State with respect to the property of its own nationals are not subject to these general principles of international law in the absence of a particular treaty clause specifically so providing; whereas, moreover, in the present instance, the records of the preparatory work concerning the drafting and adoption of Article 1 of the Protocol confirm that the High Contracting Parties had no intention of extending the application of these principles to the case of the taking of the property of nationals.

The Gudmundsson Case not only demonstrated in Iceland the inefficiency of the European system but also disclosed some shortcomings to the world at large. Francis G. Jacobs was very critical: The curious consequence of this interpretation is that in a system introduced to protect human rights independently of the individual's status, the national is in a different position from that of the alien; and this in a Convention which by Article I expressly extends to

52

23 Hrd 434 (1952); 24 Hrd 142 (1953); 29 Hrd 753 (1958); Hrd 1959,759. Cf. Benedict Sigurjonsson , 22 N J M 158 (1960). 53

Gudmundsson v. Iceland , 1960 Y.B.Eur.Conv.H.R., vol. 3,394 (European Commission on Human Rights), Application 511/59.

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everyone within the jurisdiction of the Contracting Parties, and which expressly prohibits, in Article 14, discrimination on grounds of national origin. 54

At the time when the Gudmundsson Case was decided, what had taken place when Article 1 in the First Additional Protocol was created was a State secret, only known by the insiders in Strasbourg. It was not until the judgment in James v. United Kingdom 55 that what had happened became known to a wider audience: Examination of the travaux préparatoires reveals that the express reference to a right to compensation contained in earlier drafts of Article 1 was excluded, notably in the face of opposition on the part of the United Kingdom and other States. The mention of the general principles of international law was subsequently included and was the subject of several statements to the effect that they protected only foreigners. Thus, when the German Government stated that they could accept the text provided that it was explicitly recognized that those principles involved the obligation to pay compensation in the event of expropriation, the Swedish delegation pointed out that those principles only applied to relations between a State and non-nationals. And it was then agreed, at the request of the German and Belgian delegations, that 'the general principles of international law, in their present connotation, entailed the obligation to pay compensation to non-nationals in cases of expropriation' (emphasis added).56

Mr. Sture Petrén who was the Swedish voice57 was the mouthpiece of Foreign Minister Östen Undén , a hardened Socialist and a traditional admirer of the Great Socialist Experiment in the Soviet Union. Under such circumstances it should perhaps be no surprise that he wanted to emasculate the protection of property as much as possible and was successful in doing so at the expense of the principle of non-discrimination.58 2. The Jon Kristinsson Case and the Separation of Powers Iceland, upon gaining its independence from Denmark in 1944, was saddled with traditions dating from the times when the absolutist Danish king himself was the living law, lex animata , and it did not make much difference whether he made a law or a judgment or an executive act. Consequently, there was no doctrine of the separa-

54

Francis G. Jacobs , The European Convention on Human Rights, 1975, 165. Cf. Schwelb , Am.J.Comp.L., vol. 13, 1964, 518, 523 note 12; Karel Vasak, La Convention Européenne des Droits de l'Homme, 1964, 65 No. 121. 55 56

James v. United kingdom, 8 EHRR 123, ERD 98. James v. United Kingdom, 8 E H R R 123, No. 64.

57 Cf Torsten Salén, Europarâdets konvention om mänskliga rättigheter och friheter, Förvaltningsrättslig Tidskrift, 1951,1, 3. Compare V I I I Collected Edition of the Travaux Préparatoires, 1985, 9 - 10. 58

For general comments on the Gudmundsson Case, see Jacob W. F. Sundberg, High Tax Imperialism, I O I R No. 51, 42 - 44.

200

Jacob W. F. Sundberg

tion of powers. Judicial and executive functions were mingled. The same official could be dealing with a criminal case in the capacity of both chief of police and judge. The membership in the Council of Europe brought Iceland into contact with the doctrines underlying the European Convention, such as the one of the separation of powers. A couple of cases brought to Strasbourg expedited legislative reform in the matter.

Jon Kristinsson ν . Iceland 9 mirrored a trivial story. Mr. Jon Kristinsson was caught speeding and failing to stop at a stop sign in the city of Akureyri. The Chief of Police offered to settle the case by the paying of a fine, but Mr. Kristinsson declined the offer. He was summoned to appear before the Criminal Court, now facing the Chief of Police in his other capacity of town magistrate (bœjarfogetî) . Mr. Kristinsson was fined. He appealed, submitting inter alia that he had not been heard by an impartial judge. The Supreme Court upheld the conviction in part. Mr. Kristinsson , who happened to be a local hero with some remarkable bicycle sport feats to his credit, turned to Strasbourg and argued that he had not been tried by an impartial tribunal. The application was declared admissible and in its Report of 8 March 1989 the Commission expressed the unanimous opinion that there had been a violation of Article 6 (1). These proceedings brought the matter to a head in Iceland. Reforming the judicial system had been under discussion in the Althing ever since 1916 but with no practical results. Now, in 1988, a Bill was submitted to the Althing proposing an Act on the Separation of District Judicial and Administrative Powers.60 In this Bill it is said, inter alia: The Icelanders are members of the Council of Europe and have undertaken to follow its Convention for the protection of human rights.... In October 1987 a case was submitted to the Council's Commission of Human Rights concerning a person residing in Akureyri. He had been convicted in the lower court and in the Supreme Court for traffic offences The case was brought before the Commission of Human Rights, it being alleged that the defendant in the lower court had not had his case determined by an impartial judge. The Commission of Human Rights arrived at the conclusion that the case was admissible; this means that the Commission finds it likely that there has been a violation of the Convention on Human Rights. One may say that the legal system of the Icelanders thereby in a specific case had been publicly put under the microscope supplied by our nations cooperating in the Council of Europe, and this may be supposed to entail increased pressure for the reform of the courts and the legal system here in this country.

In this way the Kristinsson Case became the point of departure for the new legislation that was initiated with Act No. 92/1989 on the Separation of District Judicial and Administrative Powers, which entered in force on 1 July 1992 and came to sup59

Jon Kristinsson v. Iceland , 13 EHRR 238, ERD 171-B.

60

Frumvarp til laga um aôskilnad domvalds og umboèsvalds i héradi.

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plant a great number of older provisions. Such an extensive and quick revision of the procedural system as that which then was carried out in Iceland has possibly no counterpart in any other Western nation. Thereupon, on 29 December 1989 a friendly settlement was entered into between the Icelandic Government and Mr. Kristinsson. 61 In the subsequent Icelandic case The Public Prosecutor v. Guimundur Breidfjörd ALgissori 62 the Supreme Court relied upon the Commission Report in the Kristinsson Case as precedent and invalidated the lower judgment: "this Court must concur with the opinion of the European Commission on Human Rights that impartiality in the performance of judicial functions is not adequately secured when a person performs such functions while also administering police matters." 3. The Thorgeirsson Case The subsequent fact that the legislation on judicial procedure was also made a part of the great reform perhaps cannot be directly ascribed to any lost case in Strasbourg. However, the reforming of the Icelandic legislation on judicial procedure had long been discussed but in legal scholarship mostly and without getting so much public response as to translate into political action. In this matter, another complaint to Strasbourg served as a wake-up call, viz. Porgeir Porgeirsson v. Iceland. In this case, the applicant had challenged the special Icelandic procedure pursuant to the then prevailing Act No. 74/1974 on Criminal Procedure, to the effect that the case could be heard by the court in the absence of the Prosecutor, which meant that in such cases the judge took over the tasks of the Prosecutor. 64 The Icelandic Government was successful in its defense on this point, but the success was due to special circumstances in the case before the European Court, and it 61

Jon Kristinsson v. Iceland , 13 E H R R 238.

62

Âkœrvaldid

gegn Gudmundi Breièfiôrd

Aigissyni, Hrd 1990, 2.

63

Porgeir Porgeirsson v. Iceland , 14 EHRR 843, ERD 239. Thorgeir Thorgeirsson was a write resident in Reykjavik. He published two articles in the daily MorgunbladiÖ in which he made allegations of brutality against the Reykjavik police force. He was prosecuted and found guilty of criminal defamation. He complained to Strasbourg and claimed that he had not had a hearing by an impartial tribunal and that the criminal defamation proceedings had interfered with his right to freedom of expression. In the end, the European Court found that the interference with his freedom of expression as a journalist, which Thorgeirsson had complained of, had not been shown to have been proportionate to the legitimate aim pursued. 64

This inquisitorial system receives a historical elucidation in C. Goos, Den danske Straffeprocess i Forhold til Strafferetsplejens Grundsaetninger fra Chr. V's Lov til Nutiden, in Inbydelsesskrift til Kjobenhavns Universitets Fest i anledning af Hans Majestaet Kongens Fodseldag den 8de April 1880, 64 et seq.

202

Jacob W. F. Sundberg

was a fair guess that it could be more difficult in other cases. As opposed to the case with the Kristinsson legislation, there were furthermore no conflicting views as to the usefulness of this legislative reform. Consequently, even the legislation of judicial procedure was revised and two more statutes enacted, viz. the Act 91/1991 on Civil Procedure, 65 and the Act 19/1991 on Criminal Procedure.66 4. The European Convention Act, 1994 The Thorgeirsson Case, however, also released the initiative to have the European Convention proclaimed as law in Iceland. The Minister of Justice, Mr. Thorsteinn Pdlsson , explained in the Althing on 26 October 1993: Following this case, on 8 July 1992,1 appointed a committee to make proposals regarding a response to this judgment; its duties included an examination of whether the time had come to incorporate the European Convention on Human Rights in Iceland, and, as appropriate, to prepare a bill to that effect. . . . By a letter dated 7th April last, the chairman of the committee [Ragnhildur Helgadôttir] transmitted to me the bill which the committee had prepared, proposing that the Convention acquire legal validity in Iceland.67

On 19 May 1994, the European Human Rights Convention Act was approved by the President of Iceland.68 According to Section 1, the Convention as amended by Protocols 3, 5 and 8, was to have the force of law, together with Protocols 1, 2, 4, 6 and 7. In Section 2 it was provided: Resolutions of the European Commission of Human Rights, the European Court of Human Rights and the Committee of Ministers of the Council of Europe do not have a binding effect under Icelandic national law.

According to Section 3 the Act was to enter into effect immediately. In the Government Bill that was read by the Minister of Justice, Mr. Thorsteinn Pdlsson , in the Althing on 26 October 1993, the following was said about the meaning of Section 2: In fact, this is mentioned solely to state explicitly in law (if this bill is passed) that the institutions referred to will only be able, as they have been up to now, to rule on whether the Icelandic state has honoured its international legal obligations under the European Convention on Human Rights, and, as appropriate, that it should pay a specific sum in compensation if non-performance is demonstrated resolutions by these institutions will n o t . . . be able to invalidate Icelandic legislation or judicial resolutions.

65

Log urn meàferà einkamâla Nr. 91/1991.

66

Lög um mebferb opinberra mala Nr. 19/1991.

67

Government bill, Matter No. 102; Parliamentary Document No. 105, 779.

68

Log urn mannréttindasâttmdla

Evropu Nr. 62/1994.

The European Convention on Human Rights and the Nordic Countries It should also be pointed out that if it were stated in a resolution by the European Court of Human Rights or the Committee of Ministers that the state were obliged to pay compensation, the compensation claim could not be satisfied by means of an enforcement action in Iceland under the resolution; instead, it would be necessary to obtain authorization for enforcement through a court order in Iceland. The aim of Article 2 is simply to reiterate this. 69

IV. Finland 1. The Latecomer and Why A number of factors contribute to make Finland's experience with human rights a very interesting one. Primo , it ties in with the minority protection administered by the League of Nations in favor of the Swedish population of the Islands of Aland . Secundo , the protection of human rights in Finland was a matter covered in Article 6 of the Peace Treaty of 1947. Tertio , as early as 1976, Finland became party to the Covenant on Civil and Political Rights and its Optional Protocol. Finally, the Finnish experience is particularly interesting in Sweden because the two countries' legal systems are closely interrelated and this invites comparisons. Indeed, for some 500 years, during the times when the sea united and the woods and the mountains separated, Sweden and Finland were one kingdom surrounding the Botnian Gulf. This state of affairs lasted until 1809 when Finland was annexed by Czarist Russia. The kingdom of Sweden was never able to win it back, but suddenly, in 1917, Finland succeeded on its own to gain its independence from Russia and proclaimed itself a republic. The Republic was dominated by the pure Finns — ethnically different from the Swedes — but the legal system had by and large retained its Swedish coloring and the law in the Kingdom and the Republic still has much affinity. During the 1960s when the world was still divided between the Blocs, it used to be the opinion of the Finnish Government that a Finnish membership in the Council of Europe could be seen as a Finnish interference in conflicts between the Superpowers. However, Finland did agree to observer status and it adhered to no fewer than 12 of the Council's conventions. In 1982, the Foreign Affairs Committee of the Finnish Diet took the position that there were no longer any obstacles to membership, but that a precondition to membership must be a broad consensus in the Diet (meaning no Communist opposition). Symbolically, the recently inaugurated museum in the city of Mariehamn on the Aland Islands received the European Museum Prize that same year. This was seen as a discreet invitation to Finland to use its formal sovereignty and apply for membership in the Council. At that time, San Marino had already introduced its application for membership and eventually became mem-

69

Government bill, Matter No. 102; Parliamentary Document No. 105, 805.

203

204

Jacob W. F. Sundberg

ber number 22. Perhaps the Council of Europe was more interested in recruiting Finland as a member than Finland was interested in joining. 2. The Opening It was Finland's President, Mauno Koivisto , himself who took the initiative, using the 'window of opportunity' that was being opened up by events in the Soviet Union at the time, glasnost and perestroïka. On 22 April 1988, with President Koivisto chairing the meeting of the Foreign Affairs Committee, Mr. Marcelino Oreja , the Secretary General of the Council of Europe, was invited to come to Finland and to open negotiations with the Council of Europe about Finland becoming a member.70 On 3 March 1989, the Finnish Government introduced a Bill in the Diet proposing Finland join the Council of Europe.71 3. Preparations According to the internal rules of the Council, Finland's qualifications for membership should be examined. This was done by the Norwegian Harald Lied assisted by the Austrian Friedrich Probst . In their Report, the respect that human rights enjoyed in Finland was praised as well as the rule of law and pluralism.72 Mr. Matti Louenkoski , the Minister of Justice, considered, however, that Finland had "quite a task ahead" in adapting the legislation in Finland to ensure compliance with the European Convention.73 dr. Matti Pellonpää was charged with making a re70

See e.g. Nordisk kontakt 6/88, 24.

71

The Diet was asked to agree and to approve of those provisions in the Charter of the Council of Europe that required its assent, notably the duty to pay a membership fee which touched the domains of the Diet's financial competence. The Foreign Affairs Committee said in its Report of 11 April 1989: The Foreign Affairs Committee expresses its satisfaction concerning Finland now joining the Council of Europe. Being a parliamentary democracy Finland would have had the formal qualifications for doing this already in times past. However, the Committee stresses that the decision must be seen in the light of the basic solutions found in Finland's foreign policy, and that the activity of Finland within the organization shall build on these basic solutions. When joining the Council of Europe, Finland will insist on its policy of neutrality and its national interests. See Utrikesutskottets betänkande No. 8/1988 rd. One dissenting Committee member would have preferred suspending Finland's joining until the Council of Europe became a general European organization, open for all States. 72

Parliamentary Assembly of the Council of Europe. Report on the application for membership by Finland, 22 December 1988. Rapporteur: Mr. Lied. Doc. 5985. 73

Matti Louenkoski as quoted in Financial Times, 5 May 1988.

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205

port on what statutes needed to be changed in order to meet the Convention requirements. When the Report was published, the number of statutes affected made a list of some 30. These were revised before ratification's entry into force. 74 4. The Ratification

and the European Convention Act, 1990

The Finnish ratification occurred on 5 May 1990. It was, however, made subject to a number of reservations mainly concerning the right to an oral hearing in Article 6 (1). It was accompanied by an Act of 4 May 1990 concerning the approval of certain articles in the Convention for the protection of human rights and fundamental freedoms and in the Additional Protocols to the Convention.75 The Act was very short. It simply said in Section 1 that: The provisions in the Convention for the protection of human rights and fundamental freedoms, signed in Rome on 4 November 1950, as amended by the Additional Protocols Nos. 3, 5 and 8, and in the Additional Protocols Nos. 1, 2, 4, 6 and 7 thereto, are to the extent that they belong to the legislative competence, in force as agreed.

Section 2 of the Act said that the Act was to enter into force at such moment in time as was decreed by Ordinance. In the Ordinance, issued on 18 May 1990, the moment was fixed at 10 May 1990, except relating to Additional Protocol No. 6 which was to enter into force on 1 June 1990, and Additional Protocol No. 7 which was to enter into force on 1 August 1990. 5. Ollila v. Finland Ollila v. Finland was the first Finnish case in several ways. It was the first to be brought to a binding decision. Furthermore, the exhaustion of domestic remedies in this case was concluded after the entry into force of the European Convention vis a vis Finland, indeed the Supreme Court refusing leave to appeal on 24 January 1991. The facts may be summarized as follows.

74 75

Publikationer

αν Justitieministeriets

lagberedningsavdelning

Nr. 21/1988.

Lag om godkännande αν vissa bestämmelser i konvention om skydd for de mänskliga rät heterna och de grundläggande friheterna samt i tilläggsprotokollen tili konventionen, 4 May 19 FFS 1990/438, cf. Finlands Författnings Samling/the Finnish Law Gazette (FFS Fördragsserien) 1990/18. — Entry into force was decreed by Förordning om ikraftträdande αν konventionen om skydd för de mänskliga rättigheterna och de grundläggande friheterna och tilläggsprotokollen konventionen, samt av lagen om godkännande av vissa bestämmelser i konventionen och tilläggsprotokollen, 18 May 1990, FFS 1990/439. It may be noted that this Ordinance of 18 May 1990 decrees the entry into force of the enactment as of 10 May 1990, i.e. the day when the ratification instruments were deposited with the Secretary General of the Council of Europe.

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Jacob W. F. Sundberg

Mr. Touko Ollila had been placed under guardianship pursuant to the Act on Guardianship, 1898.76 Appeals against that decision were fruitless. The issue that came before the European Commission was whether the guardian's screening and stopping of certain correspondence addressed to Mr. Ollila was permissible under Article 8 of the Convention. In the Guardianship Act there was no provision authorizing a guardian to screen or stop his ward's correspondence, but there was a general provision in Section 33 obliging the guardian to safeguard conscientiously the ward's rights and to promote his interests. The Government contended that the right to screen the correspondence could be derived from the general duties under this Section. The Commission found that: the Finnish legislation on guardianships does not in any way specify the scope or conditions of exercise of the discretionary powers used by a guardian when interfering with his ward's correspondence In sum, the applicant did not enjoy the minimum degree of protection to which one is entitled under the rule of law in a democratic society. Accordingly, the interference was not carried out 'in accordance with the law'.

The Committee of Ministers agreed with the Commission. Thereupon, a new Section 35 a was added to the Guardianship Act, reading: A guardian is entitled to open, without the consent of the ward, letters which have arrived to the ward and which on account of the name of the sender or some other special circumstance may be presumed to concern matters falling under the guardian's responsibilities.77

By Resolution D H (96) 3, which was adopted on 9 February 1996, the Committee of Ministers decided that the matter called for no further action. 6. Hokkanen ν . Finland

n

This was the first case from Finland to come before the European Court and it did create some problems of competence ratione temporis. The background was rather special. Mr. Teuvo Hokkanen operated a stable and a young girl, Tuula Nick , went there horseback riding and spent time there taking care of the horses. When 14 years of age, she became pregnant and gave birth to a daughter Sini, the father of whom was Mr. Hokkanen. On 30 April 1985, Tuula committed suicide, and for the time being Sini was provisionally taken care of by the grandparents, Reino and Sinikka Nick. But the grandparents refused to return Sini to her father and sued him in the District Court, requesting that custody of the child be transferred to them. Mr. Hokkanen tried to get his daughter back by resort to the administrative authorities. 76

Lag 19.8.1898 ang. förmynderskap,

77

Reg. prp. 16/1995.

78

Hokkanen v. Finland, 19 E H R R 139, ERD 299-A.

FFS 34/1898.

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207

The grandparents were ordered to do so under penalty of administrative fines. Both parties instituted custody proceedings. Mr. Hokkanen was granted provisional visiting rights, but final judgment was not rendered until 26 January 1987, the District Court confirming Mr. Hokkanen's custody of Sini and ordering that she be handed over to him. The grandparents appealed unsuccessfully. Administrative proceedings to have Sini returned to him were instituted by Mr. Hokkanen unsuccessfully. The grandparents went before the Supreme Court and were first given leave to appeal against the appellate court decision with stay of execution, but in a final decision of 17 May 1988 the Supreme Court reversed itself and rejected the grandparent's appeal and quashed the order for a stay of execution. The grandparents tried again, but on 13 September 1988 the Supreme Court rejected their request for a stay of execution as well as their request for an annulment of the Supreme Court's previous decisions. On 30 May 1990, however, — i.e. after the entry into force of the European Convention with respect to Finland — the local Social Welfare Board was recommended by the Finnish National Board for Social Welfare to take measures so as to have custody of Sini transferred to the grandparents, with Mr. Hokkanen being granted visiting rights but another person being appointed as guardian. The Social Welfare Board's request for such transfer of custody and the granting of visiting rights was rejected, however, by the District Court on 8 May 1991. Upon the grandparents' appeal, on 25 September 1991 the Court of Appeals reversed the District Court decision and transferred custody to the grandparents, finding weighty reasons to maintain the factual care situation, but confirming Mr. Hokkanen as guardian and granting him visiting rights. On 21 January 1992, the Supreme Court refused Mr. Hokkanen leave to appeal. Mr. Hokkanen turned to the European Commission. His complaint was held admissible concerning the non-enforcement of court orders granting him custody and visiting rights, and the transfer of his custody to the grandparents. In its Report of 22 October 1993, the Commission found that, even having regard to the margin of appreciation afforded to the State, the national authorities have failed to make the efforts which could reasonably be expected to enforce the applicant's rights in the circumstances of this case.

The Commission concluded that there had been a lack of respect for his family life. However, back in Finland the grandparents had appealed to the Court of Appeal against the County Administrative Board's decision of 31 December 1992, and in its judgment of 21 October 1993 the Court of Appeals found that, in view of Sinïs maturity (she was born 8 September 1983), access could not be enforced against her wishes, and the Court lifted the fines imposed on the grandparents. On 4 February 1994 the Supreme Court refused leave to appeal. The case was brought before the European Court by the Commission. In its judgment of 23 September 1994, the Court held unanimously that the non-enforcement

208

Jacob W. F. Sundberg

of Mr. Hokkanen's right of access from 10 May 1990 until 21 October 1993 constituted a violation of Article 8. As to the time thereafter, however, by six votes to three, the Court found no violation. As to the non-enforcement of Mr. Hokkanen's right of custody and the subsequent transfer of the custody to the grandparents, the Court held by six votes to three that this did not constitute a violation of Article 8. Mr. Hokkanen was awarded compensation for legal fees and expenses, plus FIM 100,000 for non-pecuniary damage. In Finland, the European judgment was taken care of by communicating it to the Ministry of Justice and to the Ministry of Social Affairs and Health. A seminar on custody, right to access and protection of children was organized in March 1996 by the latter Ministry for some 150 social workers, emphasis being laid on the necessity of avoiding such situations as the Hokkanen one. An abstract of the Hokkanen judgment was entered into the legal database "Finnlex." In a communication to the Committee of Ministers the Finnish Government made known its opinion that, considering that the Convention has direct effect in Finnish law and that the domestic law should be interpreted in accordance with the judgments of the European C o u r t . . . the authorities concerned will use their best endeavors to prevent the repetition of a violation similar to the one found by the European Court in the present [.Hokkanen ] case.

The Government added that a legislative amendment concerning the execution of decisions in cases regarding child custody and access was to enter into force in December 1996 and that the Hokkanen case had been taken into account in the elaboration of the new law so as to ensure compliance therewith. By Resolution D H (96) 608, of 15 November 1996, the Committee of Ministers found that no more action on its part was required in this case. 7. Kerojärvi

v. Finland!

9

The facts of the case may be summarized as follows: Erkki Kerojärvi was a veteran from the Winter and the Continuation Wars. He had belonged to skyddskaren 80 and had been wounded in 1940 at the age of 15 near the battlefield of Salla by Soviet artillery fire. He had been wounded again during the 79 80

European Court, judgment 19 July 1995, not reported.

Skyddskaren was a kind of militia organization, founded in 1917 as a protection against terrorizing Communist bands. Its status under legislation passed in 1918,1919,1921,1927 and 1941 was that it was part of the armed forces of the Republic of Finland. However, the organization was dissolved by an Act of 3 November 1944, due to the insistence of the Soviet Control Commission. Possibly the Soviets acted in good faith when they forced the passing of the Act, but the labeling as 'Fascist' seems to have been based solely on a Russian dictionary from 1935 in which it was loosely said that the skyddskar was a Fascist military organization in Finland.

The European Convention on Human Rights and the Nordic Countries

Continuation War. Trying to raise his degree of invalidity by court proceedings, based on the Military Injuries Act, 1948,81 he lost when the Supreme Court — according to press reports 82 — took the view that the soldier-boy unit in which Mr. Kerojärvi served during the Winter War, 1940, was not a part of the regular army, so the State had incurred no liability for what happened in this unit. The European Convention issue was, however, the non-communication to Mr. Kerojärvi of certain documents obtained arid taken into account by the Insurance Court, and subsequently also considered by the Supreme Court. He had thus been deprived of his possibility to comment and possibly refute the evidence in the documents. The matter was brought before the European Commission and the complaint that was admitted concerned exclusively the proceedings before the Supreme Court. The proceedings instituted before the State Office for Accident Compensation83 had come to an end before the entry into force of the Convention with regard to Finland. The European Court held on 19 July 1995 that there had been a violation of Article 6 (1). Subsequently, on 30 October 1995, the Insurance Court adopted new Rules of Procedure to the effect that an appellant shall always have the right to comment upon the opinions submitted by the Compensation Office and that the appellant shall be informed of any additional material gathered ex officio by the Insurance Court and shall, in general, be entitled to submit comments regarding such material. By Resolution D H (96) 607, adopted on 15 November 1996, the Committee of Ministers resolved that no more action on its part was required in this case. V. Sweden 1. The Foreign Minister , Professor Osten Undén The drafting of the European Convention did not take more than a year and a half. At that time, the Swedish Foreign Minister was Professor Osten Undén . He exercised a decisive influence not only during the drafting work through instructions to his right-hand man, Sture Petrén u but also in shaping the general attitude in Sweden 81

Lag om skada , adragen i militärtjänst,

82

Sune Sahlstedt , Veteran fick rätt i Strasbourg, Hufvudstadsbladet 7.7.1994 s 7.

83

Olycksfallsverket.

84

FFS 404/1948.

Cf Love Kellberg, Den svenska inställningen till Europarâdsdomstolen för mänskliga rättigheter (The Swedish Attitude toward the European Court of Human Rights), in: Festskrift till Lars Hjerner/Studies in International Law, Norstedts 1990, 301. Professor Undén had persuaded Sture Petrén to give up his advanced legal studies for a doctoral degree, in order to join the Foreign Ministry instead.

14 G Y I L 40

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towards the Convention. Undén totally dominated the period during which the Convention was drafted and came to a life of its own. Undén alone decided the position that Sweden was to take in relation to the European Convention. Besides being Foreign Minister, he was a respected professor of law, and a senior leading figure in the ruling Party. He thus possessed rank, political power, and scholarly truth, at least insofar as Sweden was concerned. If anyone was to suggest a position on human rights different from that favored by Undén , he would be committing political suicide and scholarly heresy. Professor Undén's position, as he explained it to his subordinates and collaborators in the Foreign Ministry, remained constant throughout the years. In his view, the Convention was nothing but an experiment. This was so because of the right of individual petition, which made the individual a subject of international law. Moreover, the Convention concerned the member countries' domestic affairs, a subject previously altogether outside international jurisdiction. There was every reason to move very cautiously. The absence of any Swedish declaration under Article 46 was very much due to Undén's dislike of the judicial function. He insisted, on the other hand, upon the Soviet Union being a normal State under the rule of law and being entitled to be treated as such. Undén had belonged to the radical wing of the Social Democratic Party in his youth, and he and many like him in the Party admired the great Socialist experiment to the East which seemed to have achieved by bloody revolution the same that the Social Democrats in Sweden hoped to achieve by democratic vote.85 He retained discreetly this admiring sympathy throughout his years in the Foreign Office, and disliked all the more the far-away capitalist Americans.86 Since the Council of Europe was brought about by the Communist action committees on the streets of Prague in 1948 and the whole European movement was a response to what was happening in 85 The Swedish Government in 1950 made a formal declaration to the effect that the Swedish example should show "countries under 'dictatorship of the proletariat' ... that the change of the economic structure of society aimed at in these countries . . . can be achieved while retaining a true political democracy." This declaration was read in the Swedish riksdag on 22 March 1950 by the Prime Minister Tage Erlander and the Foreign Minister Östen Undén : see the Minutes in the two Chambers of the Diet , Första Kamnmarens Protokoll 1950 No. 11 at 13, and Andra Kammarens protokoll 1950 No. 11 at 11. 86

"Ambassador Ingemar Hägglöf, who briefed Undén many times during the years 1945 1953, offers the rather acrid opinion that Undén's view of the Soviet Union was 'blue-eyed, rosy-red, and ignorant of the ways of the world'. The Foreign Minister's credo was that the Stalin empire had the norms of, and behaved like, a normal state under the rule of law. He was more willing to hear about what was bad in the United States, than about aggressions and lawlessness in the Soviet sphere of influence. Hägglöf believes that this attitude mirrors an old enthusiasm brought to life by the Russian Revolution among radical Social Democrats such as Undén and [Finance Minister Ernst ] Wigforss and which survived long." See Yngve Möller, Östen Undén . En biografi, 1986, 540.

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the Socialist bloc, Undén was far from enthusiastic about having to join the Council. But he did so, finding it worse to be left alone with the Soviet bear. These sentiments will explain why Undén was absolutely against making a declaration under Article 46, as well as why Sture Petrén was under orders to dilute as much as possible any text that seemed to threaten old Socialist dreams, now realized in the Soviet bloc, most particularly texts protecting property and schools avoiding the State monopoly on schools. The declaration under Article 46 was not made until Undén had stepped down as Foreign Minister and indeed even left the riksdag . It did not happen until 1966. 2. The Greek Case Accepting the compulsory jurisdiction of the European Court brought forces to life in Sweden which had been kept sleeping until then. The coup d'état in Greece on 21 April 1967 which brought the colonels to power, offered a platform from which the superiority of the Scandinavian attitudes could be demonstrated to the world. In August 1967, there was a meeting of the Nordic Ministers of Foreign Affairs in Helsingfors. The three Ministers from Denmark, Norway and Sweden decided to institute proceedings against Greece under Article 24. The application challenged "legislative measures and administrative practices" in Greece and the main precedent relied upon was Austria ν . Italy (the Pfunders Case), in which the Commission at a late stage had added to the Report a reference to "the Public Order of Europe." Greece had, it was alleged, deviated from this Public Order. 3. A System of Judicial Review ? Article 26 was initially a tumbling stone — how did you exhaust domestic remedies — but the matter was solved by a stroke of luck. News came that the Greek Government had suspended the Greek Supreme Court justices; thirty of them had been dismissed. To the Scandinavian delegations this was proof that there were no longer any remedies to exhaust in Greece; this position was accepted and the case declared admissible. There is no need to tell the inside story of the Greek Case thereafter, but the Swedish story is all the more interesting. The news about the turn of the matter in Strasbourg may have meant little in Copenhagen and Oslo, but it certainly sent shock waves to the Government in Sweden. Mr. Carl Lidbom who at that time was Under Secretary in the Department of Justice, suddenly realized that the Strasbourg

14*

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system indeed was a system of judicial review, 87 and judicial review was anathema to the Social Democratic movement. Mr. Lidbom's realization made it imperative somehow to stop the impact of the Convention in Sweden. An occasion was offered on 27 May 1968, when the Law Council was being briefed by a reporting officer from the Department of Justice. The Justices of the Council were told that "according to the accepted view an act of the legislature is required in order to allow a Swedish court or other governmental authority to apply the provisions of a convention."88 The theory of transformation was given a new life. There had never been any accompanying legislation when the European Convention was ratified, and consequently the Convention could not be applied by the Swedish courts and authorities. 4. The Crisis of the 1970s The late 1960s was a time marked by the advent of Olof Palme and his men, most prominent among them being CarlLidbom and Ingvar Carlsson. Now it was time to carry out the Socialist ideas: this was the moment for the great leap forward. It did not require much insight to understand that a major conflict with the European Convention was ahead. Certainly, this was understood by Mr. CarlLidbom who had been made an unofficial Minister of Human Rights in 1969. On the other hand, the Convention system had a great appeal in itself, and the political support for the initiative against Greece made the situation uncontrollable.89 In academic quarters, there was considerable curiosity about the system and in the hands of two professors of law, Folke Schmidt and Gunnar Karnell, a number of cases appeared in Strasbourg. The first two Swedish cases before the European Court concerned labor law, the cases Schmidt and Dahlström ν . Sweden 90 and Swedish Engine Drivers' Union v. den,91 In both cases the applications challenged the trade union monopoly which in 87

See Jacob W. F. Sundberg , The European Convention on Human Rights in Swedish Law, German Yearbook of International Law, vol. 39, 1996, 558, 566. "Id., 567. 89

For the benefit of the general public it was declared that the Swedish government did nothing but "apply the machinery that the Council of Europe — unique among international organizations in the field of human rights — has established in order to safeguard the human rights and fundamental freedoms and which machinery Greece herself has accepted and at previous occasions used herself." (Utrikesfragor (1967), 124). The Cabinet Minister Α ίνα Myrdal was more outspoken: "Now today's regime is made to answer for its deeds before the open forum of Europe." (Utrikesfragor (1967), 145). 90

Schmidt and Dahlström v. Sweden , 1 EHRR 632, 1976 Y.B.Eur.Conv.H.R., vol. 19, 484.

91

Swedish Engine Drivers'

478.

Union v. Sweden , 1 E H R R 617,1976 Y.B.Eur.Conv.H.R., vol. 19,

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fact prevails on the Swedish labor market. International comment indeed was veryfrank on this point: "Sweden can be said to be in effect governed by the trade unions, the Social Democratic Party there having such close affiliations with the labor movement".92 The dispute therefore concerned more than whether there in fact exists any freedom of association in the field of labor law in Sweden.93 The challenge of the Party-Union rule was perceived accordingly. The ultimate victory of the Swedish Government was therefore warmly welcomed in important quarters. Observing that "one of the applicants . . . was none other than the internationally renowned, recently deceased, Swedish professor of labor law, Folke Schmidt ", the greatest significance of the lost case was believed to be that it serves as a salutary warning to experts who might be inclined to make test cases of their own individual grievances.94

The case Karnell and Hardt ν . Sweden 95 concerned religious instruction in the Swedish schools. Behind the case was the same kind of problem as was behind the Danish Sex Education Case, mentioned above.96 The problem arose out of integrating teaching subjects, thereby making the teaching compulsory even in problematic subjects such as sex education. This time, however, it was attempted to streamline instruction in such a way that religious denominations could not object. That was achieved by creating the subject 'teaching about religion' (religionsundervisning) and making it compulsory.97 The small Evangelical Lutheran Church of Sweden sensed an agnostic message and an attack on all religions. It insisted on its right under Article 9 to have its religion respected by the Swedish school authorities. The authorities were not impressed, and the pupils were not relieved of the compulsory teaching in religion. The case was brought to Strasbourg and there a friendly settlement was entered into to 92

M. Forde , The European Convention on Human Rights and Labor Law, Am.J.Comp.L., vol. 31, 1983, 301, 330. 93

Cf. Gustaf Petrén , Consequences of the Ratification of the European Convention on Human Rights in Swedish Law, in: Jacob Sundberg (ed.), Laws, Rights, and the European Convention on Human Rights, 1986, 43. 94

M. Forde (note 92), 332.

95

Karnell and Hardt v. Sweden, , Appl. 4733/71,1971 Y.B.Eur.Conv.H.R. 676. See also Jacob W. F. Sundberg, Human Rights in Sweden. The Annual Report 1985, 29 - 32; and Gunnar W. G. Karnell & Tom G. A. Hardt, Karnell and Hardt versus Sweden, in: Erik Nerep/Wiweka Warnling-Nerep (eds.), Festskrift till Jacob W. F. Sundberg, Juristförlaget 1993, 91 - 116. 96 97

Kjeldsen, Busk Madsen andPedersen v. Denmark, 1 E H R R 711. See above Denmark, No. 8.

Previously, it was called instruction in the Christian religion of the Church of Sweden (kristendomsundervisning) and pupils belonging to other denominations could be excused in the name of freedom of religion. Now a bureaucratization of the process was instituted; not any religious denomination could be relieved of the instruction in the new subject and substitute for same its own instruction, but only such a denomination that had received a special governmental permit.

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the effect that the Government annulled its previous decision and allowed the children to be instructed in the religion of the Church while being excused from following the teaching in religion. Other safeguards were included. Professor Karnell together with dr. Hardt thus scored a complete success. 5. Putting a Stop to the European Drift: the Transformation

Theory

The European movement had to be stopped. This was a task for the Minister of Human Rights, Mr. Lidbom and he willingly accepted it. 98 In connection with the Swedish Engine Drivers Case, the blocking efforts came to light in the form of the transformation theory. The Drivers' Union suit before the Labor Court came first, 99 next came before the Supreme Court the suit of one union member, Mr. Sandström , who sued in his personal capacity.100 In both, a transformation theory was manifested from the bench, but it was not carried very far. The European Court afterwards found in relation to the Drivers' Union suit "that the Labor Court carefully examined the complaints . . . not without taking into account Sweden's international undertakings." But thereupon came the Râneâ Case101 in which the Supreme Administrative Court said: An international agreement to which Sweden has adhered is not directly applicable in the domestic administration of justice; instead, those legal provisions that are to be found in the treaty must be included in a Swedish statute in order to be valid law in our country (transformation). There has been enacted no such statute of transformation with regard to Article 2 of the Additional Protocol of 20 March 1952 to the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, no duty has arisen for the School Board to comply with the rules of the Additional Protocol in its activities.

In subsequent proceedings before the Convention organs, the Swedish Government Agent referred to these decisions as "very clear statements by Swedish Courts to the effect that international treaties, including the European Convention on Hu-

98 He indeed let be known his displeasure with people looking to the Convention. When the Svea Court of Appeals was consulted for its opinion relating to the proposed new expropriation law, it made some references to the European Convention. This caused the Human Rights Minister to express his displeasure in no uncertain terms in the parliamentary debate on 9 December 1971. The opinion of the Court of Appeals was referred to as "a mistake on the part of the Court of Appeals," a "stupidity," and "an opinion that the Svea Court of Appeals will prefer to forget." Snabbprotokoll frân riksdagsdebatterna , 1971 No. 162, 36. 99

Arbetsdomstolens domar 1972 No. 5.

100

Nytt Juridiskt

101

Regeringsrättens Ârsbok 1974, 121.

Arkiv 1973, 423.

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man Rights, are not to be directly applied by Swedish courts." 102 Statements to the same effect could be found in pliable legal scholarship. Thus, Professor Stig Strömholm argued in 1973 the existence of a "prevailing opinion .. .[that] such agreements are considered not to be directly binding for the organs of the realm; a piece of domestic legislation is required in order to transform their content into valid Swedish law." 103 And Professor UlfBernitz stated in 1980 that "in Sweden just like in the other Nordic countries the dualistic principle prevails."104 The energy that went into this attempt to block the effect of the Convention was matched by its daring. In fact all Swedish treaties in the time of the Union between Norway and Sweden had been published in the Official Gazette (Svensk Författningssamling ) and then naturally been applied by the courts. The dissolution of the Union in 1905 did not remove the treaties from the statute book, and so they continued to be applied although more recent treaties were published differently and not within the same easy reach of the courts. The outcome of the second world war and the triumph for the direct applicability of international law which it seemed to signify, were consequently quite welcome in Swedish university teaching, and during the 1950s and early 1960s the university teaching everywhere in Sweden was to the effect that international law was directly applicable when invoked before the courts, whether it be general principles or treaty law.105 Those who argued the transformation theory on the basis of the case law of the 1970s were openly contradicted or even ridiculed. 106 But that, of course, did not change the political heart of the matter. 6. Peter Leuprecht's Gamble It was part of the action programme of the Council of Europe to set up all over Europe a reporting and information system, centered in the Directorate of Human Rights in Strasbourg. In the early 1980s, the Director of Human Rights was dr. Peter Leuprecht. The Council of Europe had then recently set up a Human Rights Documentation Centre in the Directorate of Human Rights. One of its tasks was to be to provide an information and research service. In order to carry out this task, arrangements were made with 'national correspondents' who could help furnish some of those data. 102 See e.g. the Ε -meter Case, Appl. 7805/77,16 E C H R D R 68,1979 Y.B.Eur.Conv.H.R., vol. 22, 244. 103

Stig Strömholm , Grundlagen, folket och etablissemangen: till diskussionen om en ny regeringsform, 1973, 87. 104

UlfBernitz , Internationell marknadsrätt, 1980, 78.

105

For detail, see Jacob W. F. Sundberg, The European Convention on Human Rights in Swedish Law, German Yearbook of International Law, vol. 39, 1996, 558, 564 - 568. 106

Hilding Eek/Ove Bring/Lars Hjerner , Folkrätten, 4th ed., 1987, 259 - 261.

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Dr. Leuprecht was perfectly aware of the official transformation doctrine and the teaching that the Convention could not be invoked before a Swedish court. Nevertheless, the task of the national correspondent included to provide information on "judicial decisions referring to the European Convention on Human Rights." Since the official Swedish teaching denied the possibility of any judicial decisions referring to the Convention, dr. Leuprecht was gambling when appointing a Swedish national correspondent to report such decisions. In view of the flashback on Swedish legal history, it will be no surprise that during the years to come there was plenty of material available for furnishing such information. In fact, annual reports covering the years 1982 - 1984 were supplied to the Directorate. In governmental quarters, the situation was considered undesirable.107 The too energetic reporting was blocked by the task of National Correspondent being moved to the Wallenberg Institute of Human Rights and Humanitarian Law in Lund in 1985, an entity used to receiving favors from the Swedish Government.108 Evidently, the expectation was that the general public in Sweden was best served with as little knowledge as possible about the shortcomings of the official teaching that the Convention could not be invoked before the Swedish courts. 7. Opening the Gates The early 1980s witnessed a formidable amount of Swedish complaints in Strasbourg. This flood had several explanations. One of them was that the Council of Europe in 1980 had set up a colloquy on the Convention for Swedish advocates at Operaterrassen in Stockholm which was well attended and introduced a number of advocates to the European system. Another explanation was the fact that the Stock107

As it was put at an unofficial occasion on 24 May 1984, what was called for was to cultivate appropriate audiences in order to have the national correspondent (the Stockholm Institute of Public and International Law) removed from the task. See for detail Jacob W. F. Sundberg , fr. Eddan t. Ekelöf, I O I R Nr. 41, 2nd ed. 1990, 2. 108

At the Institute in Stockholm, the decision was then taken to continue the reporting but, instead of submitting the report in a typewritten copy only, headed for some drawer in Strasbourg, to publish the reports in the Institute series. Eventually, five volumes with such Annual Reports were published in the Institute series, covering the years 1982 -1988. The Institute was lucky to find an American publisher — Fred B. Rothman & Co — willing to take charge of the publication and in the end, the series was subscribed to by some 60 American and European university libraries. O n the Swedish side, this unexpected development was met with a regrettable boycott. While otherwise the publications of the Stockholm Institute were pretty well represented in the Swedish university libraries, an exception has to be made for the series Human Rights in Sweden. None of Rothman's volumes is to be found in the university libraries in Uppsala or Umeâ. If the situation is better in Stockholm, it has simply to do with the fact that the series was donated by the Institute to that library. Cf. Jacob W. F. Sundberg , Human Rights in Sweden. The Annual Report 1985, I O I R No. 67, vii - viii.

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holm Institute of Public and International Law at the initiative of the Director of Human Rights published a pocket edition in Swedish of the Convention text which was distributed among the general public of lawyers in some 10,000 copies. A third explanation was the Swedish Government losing the case Sporrong Lönnroth v. Sweden}™ This case ended with an award of 1 million Swedish crowns in just satisfaction, plus costs, and that brought the monetary aspect to the Convention system in the eyes of Swedish lawyers. Not surprisingly, that stimulated much lawyer interest in the European Convention as such among many advocates who were less than idealistic about human rights. But what was most important was the Colloquy on Laws, Rights and the European Convention on Human Rights that was held at the Svea Court of Appeals in March 1983 and which assembled some 70 high bureaucrats for an immediate exchange of views with a selected group of people from Strasbourg representing the Commission, the Directorate of Human Rights, and the Swiss Government.110 The end result was that Sweden, which during the 1970s had been almost devoid of complaints to the Convention organs in Strasbourg, 111 suddenly leaped to occupy the leading position in terms of number of complaints in relation to population.112 8. The Breakthrough Case: Sporrong Lönnroth ν . Sweden Sporrong Lönnroth ν . Sweden 113 was indeed a breakthrough case (1982,1984). It had been under preparation for a very long time, beginning in the early 1970s when lawyers faced with Mr. Lidbom's very Socialist plans for the future started looking 109

Sporrong Lönnroth v. Sweden , 5 EHRR 35, 7 E H R R 256.

110

See Jacob Sundberg (ed.), Laws, Rights and the European Convention on Human Rights. Proceedings at the Colloquy in the Plenary Hall of Svea Court of Appeals, March 29, 1983, 1986. For a review, see Christina Cerna , AJIL, vol. 81, 1987, 798 - 799. 111 "Les requêtes visant les Etats nordiques représentent donc à peu près 2,8 % de la totalité des requêtes introduites devant la Commission. Il s'agit là d'un chiffre dérisoire, surtout si l'on tient compte du fait que la population globale des quatre Etats nordiques représentent à peu près 10 % de la population globale des Etats qui ont reconnus le droit de recours individuel." Between 1955 and 1973, there had been no more than 63 applications against Sweden, most of them made, it would seem, by foreigners who may have had less difficulty with the English and French languages than Swedes in general. See Karel Vasak , Les Etats nordiques face à la protection internationale des droits de l'homme dans le cadre régional, Human Rights Journal 1975, 103, 113. 112 See The Period of Massive Complaints in: Jacob W. F. Sundberg, t The Swedish Experience of the European Convention: The View From Beneath, Akron L.Rev., vol. 20, 85, 86 with further references. 113 Sporrong Lönnroth v. Sweden , 5 EHRR 35, ERD 52: 23 September 1982; 7 E H R R 256, ERD 85: 18 December 1984.

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around for some kind of protection. They found nothing in domestic law, but they believed to have found something in the European Convention.114 The system they wanted to challenge was a side effect, perhaps, of the plans for the urban rejuvenation of the center of Stockholm. In order to achieve that, it had been made possible to get an expropriation permit for a whole urban area, and avoid having to expropriate house after house. The forced sale, judicially determined, that was prescribed in the law, worked fine in relation to single houses, but it could not keep pace with the expropriation of big urban areas, simply because on the architect side the people fell behind under the impact of the sheer size of the task in deciding how the properties were going to be used, the task being further complicated by changing fashions relating to car traffic. Cars that once were welcome and needed enormous infrastructure investments, suddenly were unwelcome under the impact of the 'green wave' in the late 1960s and all plans had to be redrawn. So the expropriating city had to ask for delay after delay and the judicial sale never took place. Since a building ban fell over the properties as soon as the expropriation permit had been granted, the upkeep of the buildings stopped and they fell into disrepair and quickly became slums. This was not unwelcome to the expropriating party since thereby the price to be set at the ultimate judicial sale fell towards zero. The system had been in effect for decades and challenging it before the Ombudsman had only resulted in the latter deploring it: it was not worthy of a society under the rule of law.115 Change it he could not. Eventually, the lawyers working on the challenge started looking for clients to make the complaint to Strasbourg. It turned out that nobody wanted to. In an overregulated society like the Swedish one, people in the housing business did not want to risk future government permits by cutting an unsympathetic profile. So in the end, the only people who did not care were a couple of small house owners, uninterested in the housing business but hard hit by the car-happy architects' plans.116 One house was to become a pillar in the enormous viaduct that was planned, the other a parking house. These people, the Estate of Col. Sporrong (who happened to die during the proceedings)117 and Mrs. Inga-Mari Lönnroth , became the applicants. They succeeded. The European Court found a violation of Article 1 of the First Additional Protocol as well as a violation of Article 6 (1) inasmuch as the Swedish system allowed no access to court in spite of the enormous delays that the system 114

Ulf Brun}elter, Historien kring processen, in: Jacob Sundberg (ed.), Sporrong-Lönnroth. En handbok, I O I R No. 63, 185, 186 - 192. 115 116 117

Justitieombudsmannens Berättelse 1967:3. Ulf Brunfelter

(note 114), 191.

Once the colonel had passed away, the family met under his portrait to discuss whether to insist on the proceedings or not. They looked at the portrait and decided yes. See Birgitta Atmer y Fastigheten Riddaren nr 8, in: Jacob W. F. Sundbergy Jubileumsantologin Sporrong Lönnroth, I O I R No. 100, 3, 5.

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entailed. Furthermore, after negotiations in vain about what the proper compensation should be, the applicants went back to the European Court and secured an award of 1 million Swedish Crowns. 9. The Aftermath The displeasure in the Socialist Cabinet was visible in many ways. It could see no reason to do more than had already been done, when the case became admissible and the expropriation permits had been revoked by the Government. But the housing industry suddenly became optimistic and this spurred the boom in the real property market of the 1980s.118 So the most important effect of the Sporrong Lönnroth judgment became the second issue, that of access to court. It took a few years before it was decided that something had to be done, and indeed the realization was spurred by the case Benthem v. Netherlands 119 as Mr. Hans Corell has testified. 120 What then followed was the Act on Legal Review of Certain Administrative Decisions, 1988,121 which was enacted for a few years only but which since has been renewed several times and now been made permanent.122 10. iura sunt vigilantibus et non dormientibus In Sporrong Lönnroth , the European Court had established a violation of Article 1 (1) of the First Additional Protocol and awarded damages on the basis of that. But Mrs. Lönnroth was owner only of three fourths of the house in question. The owner of the remaining fourth thereafter turned up and demanded to be compensated for the injury suffered by his share of the house in the same way as Mrs. Lönnroth. This claim was accepted by the Swedish Government: if he had "been a party to the case 118 Mats Wickman , För all framtid. Stockholms stads brandförsäkringskontor 250 âr, Sell'n 1996, 200. 119

Benthem v. Netherlands , 8 E H R R 1, ER£> 97.

120

Hans Corell, Swedish Cases Before the European Court of Human Rights: Are the Findings Acceptable to Swedish Politicians?, in: Lars Adam Rehof/Claus Gulmann (eds.), Human Rights in Domestic Law and Development Assistance Policies of the Nordic Countries, 1989, 177, 179, 180: "I must say that the judgment Benthem v.. the Netherlands was the case where I really saw that there was no way back, and it is not a simple matter of just amending the legislation. You have to go thoroughly through this and consider it." 121

See for detail Jacob W. F. Sundberg, , Human Rights in Sweden. The Annual Report 1988, I O I R No. 88, 1 - 47. 122

See Rättsprövningslagen , Svensk Författnings Samling/the Swedish Law Gazette (SFS) 1988:205, valid until the end of 1991; SFS 1991:1825, valid until the end of 1994; SFS 1994:1759, valid until the end of 1997; and SFS 1996:420, valid without restrictions.

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before the [European] Court, he would have, in view of his co-ownership to the piece of real property, been awarded damages on the corresponding grounds and to the same extent.. Λ 1 2 3 Thereupon, all the land owners in Stockholm who had been in situations equivalent to the one of the original applicants, i.e. hit by the same expropriation permits and suffering under the same building bans, asked for compensation, claims totaling some 86 million crowns. 124 When the Government refused, the claimants brought the case before the European Commission. In a decision of 5 July 1989, the Commission refused admissibility: Since the Government had revoked the expropriation permits after admissibility was granted in Sporrong Lönnroth, the six-month period should be reckoned from then and therefore it was too late.125 The Swedish general public was shocked by the outcome of the landowners' case. When the occasional wealth tax for life insurance companies (SFS 1986:1225) was challenged before the European Commission, therefore, some 157,106 people joined the application in order to avoid the effects of the Commission's reasoning in the landowners case.126 11. Questioning the Judicial Office : Langborger and Holm As far as judicial office is concerned, the attitude in Sweden, during the 1970s, became much less unequivocal and high-principled than previously. The new Constitution of 1974 brought the matter out in the open. "The new Constitution completely discards the separation-of-powers system that characterized, originally, the 1809 Constitution."127 This development was accompanied by a new attitude among Swedish professional judges. In a doctoral dissertation published in 1973 it was asserted, credulously, that "in Sweden, there is no doubt that the judicial organs consider themselves subordinate to the highest political organs (Parliament and Cabinet) . . . although these [judicial organs] under the [1809] Constitution are equal to the former

123

See Jacob W. F. Sundberg , Human Rights in Sweden. The Annual Report 1985, 56 - 57.

124

Id. , 57 - 58; Jacob W. F. Sundberg , Human Rights in Sweden. The Annual Report 1986,42.

125

Wallin and others v. Sweden , Appl. 12 452/86, adm. denied 5 July 1989 (not reported).

126

Holmberg and others v. Sweden, Appl. 13 041/87, adm. denied6May 1989. Cf. WA SA Liv and 15.000 others v. Sweden , Appl. 13 013/87, adm. denied 14 December 1988; and Skandia v. Sweden , Appl.. 13 046/87, adm. denied 6 May 1989. The decisions have been published in translation into Swedish in 157.000 pensionssparare v. Sweden , I O I R No. 82; for comments, see also Jacob W. F. Sundberg, Engângsskattemâlet — hade det nâgon verkan?, Nordisk Försäkringstidskrift 1995, 135 - 144. 127

Kungl. Proposition 1973:90, at 91, 155.

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[political] organs and furthermore nowadays have a law-making function that has clearly been spelled out." 128 In Socialist thinking, the place left for courts is very restricted. Socialist analysis accords no value as such to courts or the administration of justice. Jur. dr. Lennart Geijer , the Swedish Minister of Justice 1969 -1976, explained: "the courts do not exist outside of society but are societal agencies that offer a service to society."129 The typical expression of the Socialist conviction may be taken from dr. Göran Elwin : "In Sweden, the courts are seen as implementing societal policy rather than as organs set up to protect the individual against the interventions of the state."130 And dr. Geijer concurred: "Behind the saying that the courts are there to protect the individual against the'authorities' there lurks an anti-democratic criticism of the parliamentary system of government. It is therefore a dangerous saying."131 In 1954, the lay assessors became politically elected officials. 132 Thereupon, the lay assessors were given increased influence upon court judgments. Eventually, the lay assessors' service on the bench was regarded as a special political responsibility. This role was explained in Parliament when the so-called lex Timrâ was passed in December 1975: "To us, Social Democrats, it can never be a question of the responsibility for the political ideology . . . disappearing if we are elected lay assessors."133 Certainly, controlling the lay assessors was a serious matter in the Socialist parties. The lay assessors representing the Social Democrats were instructed in closed party sessions. The Communists limited their political commitment to electing only old and reliable card-bearing 'Comrades' to the post of lay assessors. With this development, a confrontation was unavoidable with the basic philosophy of the European Convention with its insistence on impartial courts as the essence of the society under the rule of law. Such confrontations took place relating to the representatives of interest in some Swedish special courts and to the freedom of the press jury.

128

Àke Frandhergy

129

Lennart Geijer , public lecture in Lund, 22 February 1973.

O m analog användning av rättsnormer, Stockholm 1973, 159.

130

Göran Elwin, Nâgra frâgor angâende lagtillämpning och domskrivning i straffrätten, in Festskrift tili Per OlofEkelöf, 1972, 224, 244. 131

Lennart Geijer (note 129).

132

SFS 1954:234, Kungl. Proposition 1954:190.

133

Snabbprotokoll frân riksdagsdebatterna 1975/76 Nr. 45, at 13 et passim. The Act that is called lex Timrâ (SFS 1975:1288) reflects that the Socialists in the community Timrâ had made a point of only making socialists lay assessors. The Act meets that trend by insisting on political proportionate representation on the lay part of the Bench.

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In Langborger v. Sweden 134 the matter came to light for the first time. The question was raised before the Commission in an earlier case — Kroken v. Sweden — whether a tenancy tribunal, or committee, really is a "court" in the sense of Article 6 (1). Kroken failed however because it did not concern a civil right. Langborger was better equipped on this side, and the matter here came to concern whether Bostadsdomsto len li 5 met the requirements of an impartial tribunal in Article 6. One reason why it could be questioned was that it seated people representing the Tenants Movement in Sweden; an undercover support organization for the Social Democratic Government. By his complaint, Mr. Langborger challenged exactly that movement. It was his real adversary before the Court, and on the Bench sat the representatives of that movement. The Swedish judiciary had been very unwilling to pick fault with this composition of the Court. 136 The European Court applied its customary distinction between a subjective test and an objective test. It found the Court failed the objective test, and said: 35. In the present case there is no reason to doubt the personal impartiality of the lay assessors in the absence of any proof. As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court notes that they had been nominated by, and had close links with two associations which both had an interest in the continued existence of the negotiation clause. As the applicant sought the deletion from the lease of this clause, he could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court's composition in other cases, was liable to be upset when the court came to decide its own claim.

The next challenge to this political infrastructure came with Holm ν . Sweden 137 This case concerned the freedom of the press jury. In crimes concerning the freedom of the press, Sweden operates with a jury system. The Freedom of the Press Act, adopted in 1949, provides special court procedures in cases concerning infringements of the Act. In these cases the district courts are composed of three legally trained judges and of a jury. 138 The jury consists of nine members. The jurors are politically

134

Langborger v. Sweden , 12 E H R R 416, ERD 155.

135

The name of this Court has been variously translated into English. The Strasbourg people seem to prefer calling it The Housing and Tenancy Court. In the series Human Rights in Sweden. The Annual Reports, it is called, in a more literal translation, the Court of Dwellings. 136

NJA 1982, 564.

137

Holm v. Sweden , 18 E H R R 79, ERD 279-A.

138

Unless both parties agree to refer the case to the court for decision without a jury. Unlike ordinary court proceedings with lay assessors, the task of the jury is limited to examining the question whether a criminal offence has been committed. It has no influence on the penal sanctions to be imposed or on the amount of damages.

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elected and the list of jurors will even show which political party elected each member. The Holm Case originated in a libel suit and a damage claim brought against an author, Mr. Sven-Ove Hansson, a consultant to the Social Democratic Party, and against the Party publishing house which employed him, for allegedly libelous remarks in a book surveying organizations and persons on the right wing of the political spectrum. Mr. Hansson and the publishing house requested a jury trial. The majority of the jury selected belonged to the Social Democratic Party. Mr. Holm's challenge of the composition was unsuccessful and the district court's judgment simply noted that the jury had denied the guilt of the defendants. That terminated the case. The case went to Strasbourg and eventually the Commission concluded that there had been a violation of Article 6 (1): 64. Furthermore, the Commission recalls that under the Swedish system of jury trials the judgment eventually delivered does not contain any reasons indicating the objective basis of the jury's verdict. Moreover, where, as in the present case, that verdict is an acquittal, there is no right for the plaintiff to have the verdict effectively reviewed upon appeal. The Commission considers that in such a system it is of even greater importance to exclude any elements which could give rise to doubts as to the independence and impartiality of the jurors.

The European Court agreed. The outcome of these two judgments which struck at the root of the Social Democratic system of government, was met with horror and dismay. The preferred argument now became that the European system perhaps was good, but it certainly was 'unnecessary'. 'It only intruded in a well-working Swedish system and nobody needed it.' But the Government had to act under Article 53. A minimal change was introduced in 1991.139 In the Act (1974:1082) on the Court of Tenancy and Housing, 140 an amendment was made to the effect that the rules on bias in the Code of Judicial Procedure should be applied to that Court. A follow up reform followed in 1994,141 and the same year the Court itself was abolished and its instruction revoked.142

139 It was reported to the Committee of Ministers that according to Sec. 5a of SFS 1991:637 and Sec. 14a SFS 1991:637, both of 30 May 1991, the lay assessors must be replaced by ordinary judges whenever there may be a conflict of interests. See SFS 1991:636: Lag om ändring i lagen (1974:1082) om hostadsdomstol , § 14a; SFS 1991:637: Lag om ändring i lagen (1973:188) om arrendenämnder och hyresnämnder , § 5a. See also Committee of Ministers, Resolution D H (91) 25. 140

SFS 1991:636: Lag om ändring i lagen (1974:1082) om hostadsdomstol.

141

SFS 1994:816: Lag om ändring i hyresförhandlingslagen

142

SFS 1994:924: Förordning om upphävande avßrordningen Bostadsdomstolen. Cf. Prop. 1993/94:200.

(1978:304). (1988:903) med Instruktion for

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12. Questioning the Cradle-to-grave

Welfare System : the Childsnatching C

During the Palme epoch, a cradle-to-grave welfare system was established in Sweden in the apparent belief that resources were limitless. An enormous social bureaucracy was created to handle the system. The formation of its cadre took place during the 1970s at certain universities and, judging from, in particular, a number of complaints to the Chancellor of Justice and the Ombudsman, this was a rather extreme formation. The system seemed to mean something that was commonly described as 'Red terror — Marxist mobbing — Massive Left-extremist propaganda'. In this way the ranks of the expanding social bureaucracy were filled with people sharing the ideas about the Marxist Progression and finding its task to be to contribute to the development of Socialist Man who was to be active in the new Socialist Society, about to appear around the corner. 143 The attitudes manifested during the preparations of the Social Welfare Act, 1980, should be read in this light. The time had come to get rid of 'thinking in symptoms' and to arrive at a totality perspective, a perspective including not the least 'the relationship between the Individual and Society'. Handling social welfare was in the final resort 'a political activity' and the goal was 'a nivellation between the living conditions of various groups'. The danger to the child's health that was a condition for the taking into public care was interpreted in a new way. What was needed was simply to interpret 'the psychiatric apartness' of the parents (their special mental character) and their 'personal disposition'. It will be no surprise that a social bureaucracy trained in such thinking must encounter much skepticism and hostility when faced with young parents, not so trained. On the other hand, the social bureaucracy was given the money. One way in which it was used was by setting up a formidable industry of foster parents, paid by the social bureaucracy with generous amounts that allowed them a standard of living that was beyond reach for most of the natural parents, all for receiving a few children taken into public care.

143 Essential to this philosophy was the dynamic view of the evolution; that Man's nature is reformable and that as time goes by it shall be possible to create Socialist Man. Detrimental influences in the advance towards this goal stem mainly from the Family. The Family must therefore be supervised closely so that it becomes the ultimate instrument of the State Power. If the family happens to peddle the wrong message that is not in harmony with what is expected, you have to deprive the family of that influence. The way to do this is by taking the child into public care, or preventing the situation from occurring by reducing the family influence as much as possible. The fewer hours and minutes that people spend together in the family, the less chance there is that the evil, wrongful influence is exercised that entails the unhappy consequences.

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It will again be no surprise, then, that such a system must generate a great number of complaints to Strasbourg, once it had been discovered that the Convention indeed was intended to protect the family against the intrusions of the State. And so it did! The discovery cases were Aminoff v. Sweden and Widen v. Sweden, 144 both with great media visibility. Alexander Aminoff had been taken into public care, because his mother published newspaper articles deeply skeptical about the intentions of the social bureaucracy — or so she claimed — and was placed with a foster father on an isolated island in the lake Malaren . He escaped by rowing great distances away from the island, and eventually his escape gave rise to the worldwide expression KinderGulag im Sozialstaat Schweden and became a matter of top-government concern.145 Ulla Widen was no good at cleaning her apartment and this was one of the reasons for taking her children into public care — or so she claimed. Both cases were taken to Strasbourg and ended in friendly settlements with generous damage awards. The seminal case was, however, Olsson v. Sweden 146 because that judgment was an outright attack on the placing of a brother and sister in foster homes at enormous distances from each other and from their real parents. The Social District Board had moved in and taken the couple Stig and Gun Olsson's three children into public care, nine, four and two years old respectively. After fighting the authorities for seven years, the couple succeeded in getting back their eldest son who had considerable physical handicaps; the two younger children remained with the foster parents. The Commission picked fault with the social authorities and as the case moved forward in the Court, the tension rose in the social bureaucracy which was not trained for, and never had experienced, a threat of this kind. 147 The editorials in the Socialist

144

Eva Aminoff v. Sweden , Appl. 10 554/83, reported in Jacob W. F. Sundberg , Human Rights in Sweden. The Annual Report 1986,49 - 53, 8 EHRR 71; Ulla Widén v. Sweden , Appl. 10 723/83, reported in id., 53 - 56, 69 - 71, 8 E H R R 79. 145 Hermann Orth, Kinder Gulag im Sozialstaat Schweden, Der Spiegel 1983 No. 31. See further Jacob W F. Sundberg, Tystnadsspiralen, I O I R No. 96, 66 - 70. 146

Stig and Gun Olsson v. Sweden , 11 E H R R 259, ERD 130.

147

A typical blast at the European system was published by Mr. Jesus A Icala after the judgment in the daily Dagens Nyheter , 4 April 1988. It was there said, inter alia : "One Advocate, spearheading . . . a furious campaign in favor of unrestricted parental rights, is known to harbour the opinion that each and every social-welfare intervention evidences the dictatorial State — meddlesome and unduly inclined to interfere. Here is an openly expressed aversion against social authorities, and a devoted conviction that children are part and parcel of private property. . . . the risk is evident that cases about taking into public care . . . will turn into veritable hate campaigns against Sweden and the Swedish social model. Of course, this campaign character will be particularly patent when the case is pursued further before the organs of the Council of Europe." Of course, 'private property' is a key word in this kind of Swedish polemics.

1

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flagship, Aftonbladet , mirrored a rising apprehension. After the hearings before the European Court, the message was that rightist forces are pursuing their campaign before the European Court in Strasbourg. An Advocate assisting a couple of unfortunate Swedish parents does not hesitate to label as 'kidnappings' the takings into public care, and she alleges that the social workers survey all the children in the country with an eagle's eye in order to, whenever an opportunity occurs, strike at them and let Society educate them collectively.148

The European judgment that was rendered on 24 March 1988 was even less to the liking of the newspaper people: The social service may well profit of being scrutinized by independent lawyers. That is one thing. It is another that Parliament neither could nor should give up its legislative competence in favor of a court in Strasbourg. 149

The passage in the Court's judgment that caused the uproar read like this: 83. In conclusion, in the respects indicated above and despite the applicants' unco-operative attitude, the measures taken in implementation of the care decision were not supported by 'sufficient' reasons justifying them as proportionate to the legitimate aim pursued. They were therefore, notwithstanding the domestic authorities' margin of appreciation, not 'necessary in a democratic society'.

As a result, the Court held that "the implementation of the care decision, but not that decision itself or its maintenance in force, gave rise to a breach of Article 8" (No. 84). Certainly, the proceedings had some effect. In its judgment 18 June 1987, the Supreme Administrative Court decided to terminate the public care: "It is the youngster's need of treatment that shall determine the length of the care. If there is no longer any need for exercising the special powers given by LVU, the care shall be discontinued."150

148

When the Court's judgment had been read, there appeared the following editorial: The way in which the European Commission and its Court apply the Human Rights Convention has . . . caused wonder and criticism in Sweden. This has to do with the fact that they sometimes have not contented themselves with testing the legality of decisions politically taken. They have begun to operate as a kind of constitutional court which reviews what the Swedish Parliament has done and not done. Such a system cannot be reconciled with the established borderline in Sweden between politics and law. Here, Parliament makes the laws and here Parliament determines how the governmental authorities are to apply the laws or how they should be changed. Yrsa Stenius , Domstol med politiskt syfte [A court with a political purpose], Aftonbladet 24 September 1987. 149

Yrsa Stenius Sverige stiftar sina egna lagar [Sweden makes its own laws], Aftonbladet 25 March 1988. 150

RÂ 1987 ref 123, 18 June 1987,

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But this was not to the satisfaction of the social bureaucracy. Within less than a week from the decision of the Supreme Administrative Court, the social welfare board decreed a ban on removal to disarm the parents, pursuant to Section 28 of the Social Welfare Act. 151 The spouses Olsson appealed, and eventually the case reached the Supreme Administrative Court which decided, on 30 May 1988, that the removal ban should end on 30 June 1989.152 Had the spouses Olsson believed that would be the end of the matter, they deceived themselves. Three days before the expiry of the term set, 27 June 1989, the social welfare board renewed the removal ban. There is reason to come back to this point. Having as they thought, come closer to getting their children back by the Supreme Administrative Court decision on 18 June 1987, the spouses Olsson on 10 August 1987 instituted civil proceedings claiming the return of their children pursuant to the Parents and Children Code. They were unsuccessful in court, but they attracted the fire of the social welfare board. On 18 December 1987, the chairman of the board hit them with a ban on access when the parents insisted on meeting with their children in privacy, i.e. without supervision. This ban on access was not expressly foreseen in the 1980 Act, LVU and there were no means of appealing against it. The matter came before the Supreme Administrative Court which held in a decision on 18 July 1988 that the ban lacked basis in law.153 This was a blow to the social bureaucracy. But what was worse was that the European Court in the case Eriksson v. Sweden, 154 decided on 22 June 1989, to use the Swedish precedent as evidence of a violation of the Convention. This brought the legislature into action, and in the new LVU which was enacted on 8 March 1990 and entered into force on 1 July 1990, there was a special provision in Section 31, making such a ban on access lawful (lex Eriksson). 155 Now Olsson v. Sweden No. 2 156 was under way. In an application of 23 October 1987, the spouses Olsson complained that the social welfare authorities had hindered their reunion with their children and prevented the parents from having access to them. The Commission found the ban on access to be in violation of Article 8, and so did the Court but only for the period until the entry into force of lex Eriksson. The Commission also accepted that the ban on removal was a violation of Article 8, but the Court "having regard to the margin of appreciation to be left to the national

1*

151

Socialtjänstlagen,

152

RÂ 1988 re/79, 30 May 1988.

153

RÄ 1988 ref 89, 18 July 1988.

154

Eriksson v. Sweden, 12 EHRR 183, ERD 156.

155

SFS 1990:52: Lag medsärskilda

156

Olsson v. Sweden (No. 2), 17 EHRR 134, ERD 250.

SFS 1980:620, § 28.

bestämmelser om vardav unga, 8 March 1990.

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authorities, ha[d] come to the conclusion that it ha[d] not been established that the social welfare authorities failed to fulfil their obligation to take measures with a view to the applicants being reunited with Helena and Thomas ." (30 October 1992) It transpires however that in the meantime the social authorities had instituted proceedings for a transfer of the custody of the two children to their respective foster parents, and had secured a district court judgment on 24 January 1991. Appeals against this decision had placed the case before the Supreme Court where the case was pending at the time of the European judgment.157 As measures intended to reunite the real parents and their children, these proceedings do not easily qualify, but the attempts of the spouses Olsson to have them scrutinized in Strasbourg had stranded since they were held to fall outside of the decision on admissibility.158 In the meantime, Eriksson ν . Sweden 159 — a rather parallel case — had made its way through the Strasbourg proceedings. In this case, the social bureaucracy had moved in and taken Lisa Eriksson into care in 1978 right after birth when her mother was put in prison for drug offences. But her mother soon recovered and went through a religious conversion and wanted her daughter back and the public care terminated. She also wanted access to her daughter. These applications were rejected in 1980, but on 21 January 1983 the Social Council changed its mind and decided that the care should terminate as of 15 February 1983. However, the public care was replaced by a ban on removal until further notice. Then again on 31 March 1983, Cecilia Eriksson was given right of access — "in the foster home every second month." Cecilia Eriksson took the case through the administrative courts, asking for a time limit set to the ban on removal while the social welfare authorities insisted on 'until further notice'. On 11 October 1984, the Supreme Administrative Court sided with the authorities. 160 In an application of 7 December 1984, Cecilia Eriksson on her own and on Lisa's behalf challenged the Swedish system. They did not dispute the taking into care, but they questioned the compatibility with the Convention of the LVU of 1980 in combination with Section 28 of the Social Services Act, as well as the practice of the Swedish courts. In its report of 14 July 1988, the Commission found a violation of Article 6 (1) in respect of the claim for access to Lisa and a violation of Article 8 in relation to both Erikssons. It was decided to take the matter up in the plenary Court. The Court could then benefit from its experience with the Olsson Case and it relied on the Supreme Admin-

157

Olsson v. Sweden (No. 2% 17 EHRR 134, No. 53: 30 October 1992.

158

Olsson v. Sweden (No. 2), 17 EHRR 134, N o 75.

159

Cecilia and Lisa Eriksson v. Sweden , 12 EHRR 183, ERD 156.

160

RÂ 84 2:78, 11 October 1984.

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istrative Court's decision a half year before, on 18 July 1988, to the effect that the ban on access lacked basis in law.161 If the Olsson ban did, so did the Eriksson ban.162 Next came the question whether the restrictions on access and the prohibition on removal were 'necessary in a democratic society*. The Court found a violation of Article 8 it appears that under Swedish law Mrs. Eriksson did not, after the lifting of the care order, have any enforceable visiting rights while the prohibition on removal was in force. Furthermore, and in particular on account of the restrictions on access, she was in fact denied the opportunity to meet with her daughter to an extent and in circumstances likely to promote the aim of reuniting them or even the positive development of their relationship. In this situation she has not been able to have the prohibition on removal lifted. .. . . . . the unsatisfactory situation that has ensued in the present case seems to a large extent to stem from the failure to ensure any meaningful access between mother and daughter with a view to reuniting them.

To the violation of Article 8 was added one of Article 6 (1). Mrs. Eriksson argued that she did not have any remedy before a court with regard to the restrictions imposed on her access to her daughter. Here again the Court could rely on its experience from the Olsson Case. There it was established through the Supreme Administrative Court's judgment of 18 July 1988163 that no administrative appeal lay against a decision by the Social Council to restrict access. Since Lisa Eriksson's case was altogether parallel to her mother's, the same violations were found in this part. 13. The Ombudsman Has a Problem with Res. (85) 13 Since the two judgments of the Supreme Administrative Courts — RÂ 84 2:78 and RÂ 1988 re/ 89 — were invoked by the European Court in support of finding violations, it was perhaps natural that reference should be made before the Swedish Ombudsman to the judgment in the Eriksson Case as evidence of the law. Having experienced the ban on access, imposed by the chairman of the social welfare board on 18 December 1987, the spouses Olsson also turned to the Ombudsman for relief, invoking the judgment of the European Court in the Eriksson Case. The Ombudsman, Mrs. GunnelNorell Söderblom , — while mainly agreeing with the complainant — used the occasion of her decision in the matter on 2 May 1990 to distance herself from the European decision:164 161

RÄ

162

1988 re/89 , 18 July 1988.

Eriksson v. Sweden , 12 E H R R 183, No. 65.

163

RÂ 1988 re/89 , 18 July 1988.

164

Justitieombudsmannens Berättelse 1990/91, 186, 187.

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Firstly, concerning the question what legal effect should be attributed to the judgment of the European Court in Sweden I want to say the following. Sweden has obliged itself to comply with the Convention in question. This means that the state has undertaken to work for the domestic legislation not being incompatible with the Convention. If the European Court thus finds that the decision of a governmental authority in Sweden is at variance with the Convention, the Swedish state may change the domestic legislation. But the state may pursuant to the Constitution not determine how a court or an administrative authority should adjudicate or decide in a specific case or how a court or an administrative authority otherwise should apply the law in a specific case. Consequently it follows that a Swedish court or administrative agency is not formally bound by the judgments of the European Court.

Certainly, this was a far cry from what was said in Resolution (85) 13, adopted by the Committee of Ministers. It was also rather different from the attitude of the Ombudsman in the Riganakos Case that had been decided in 1972, and in which the Ombudsman said that it might well be that there was no formal obligation to apply other than Swedish legislation but that this did not mean that the governmental authorities ought not follow treaty provisions even if there was no formal Swedish law in issue.165 14. Margareta and Roger Andersson v. Sweden 166 Another attack on the sovereign ways of the social bureaucracy came along in the Andersson Case. This time the matter concerned writing letters and using the telephone. According to the Act containing special provisions on the care of young persons, 1980 — here referred to as LVU 1980167 — Section 11, it was up to the Social Council to decide "how care is to be arranged for the young person concerned and where he is to reside during the period of care." Furthermore, "the Social Council or the person charged with care of the young person by the Council shall keep the young person under surveillance and make such decisions concerning his personal circumstances as are necessary for the discharge of care." Section 15 of same Act provided for placing restrictions on the right to correspondence of persons taken into care, provided that the matter concerned a young person "seriously endangering his health or development by abuse of habit-forming substances, criminal activity or any other comparable behavior." The character of such restrictions was explained in the section:

165 Justitieombudsmannens Berättelse 1972 ,496. For detail, see Jacob W. F. Sundberg, Tystna spiralen, I O I R No. 96, 114 -116. 166

Roger and Margareta Andersson v. Sweden , 14 EHRR 615, ERD 226, 25 February 1992.

167

Lag 1980:621 med särskilda bestämmelser om vârd av unga, LVU.

The European Convention on Human Rights and the Nordic Countries . . . To this end the person in charge of the care at the home may open and examine mail arriving for or sent by the young person. If incoming mail contains any material which the young person is not allowed to possess, it shall be sequestrated. Correspondence between the young person and a Swedish authority or advokat or his official counsel shall be transmitted without prior scrutiny. 168

According to a guide (1981:2) on the 1980 Act, issued by the National Board of Health and Social Welfare, the Social Council was empowered under Section 16 to restrict and terminate completely the parents' access to the child. On 5 June 1985, the chairman of the social committee decided that Roger Andersson, born 1974, should be immediately taken into public care. He had become a school dropout and the social workers and his mother did not like each other. Nor did the boy like the clinics into which he was put to cure his distaste for school; he ran away repeatedly and rejoined his mother. It was believed that she helped him in this by bringing him hidden money and clothes to escape in. He was then placed in a tough foster home which he disliked to the extent of developing diabetes. Mrs. Andersson liked the foster father no better. A single social worker decided to put a ban of access on mother and child until further notice and this decision was confirmed by the Social Committee on 21 August 1986. The prohibition covered telephone communications and correspondence. The foster father stopped all letters from and to the boy and forbid him to use the phone. He was not completely successful. Roger Andersson managed to send two letters to his mother during the autumn of 1986. Meetings were organized between the boy and his mother, but supervised by 4 or 5 other people. They were not very successful; shortly after the first meeting the boy attempted to escape from the foster home. On 3 February 1987 Roger Andersson was hospitalized because he had developed diabetes and he remained in hospital until 25 February 1987. In an application of 13 February 1987 to the Commission complaints were then made relating to the prohibition of access, including communications by correspondence and telephone, and the absence of an effective remedy with regard to the restrictions on access. On 27 April 1988, however, the Administrative Court of Appeal terminated the public care of Roger Andersson. The Court noted that the mother's dislike of the social authorities had rather worsened during the time of the care order, but it preferred to let Roger return home since if so the kind of conflicts arising under the care order at least would be avoided. The European Commission found, in 1990, 168 "För detta ändamal far den som förestar vârden vid hemmet öppna och ta del av försändelser som ankommer till eller avsänds frân den unge. O m en ankommande försändelse innehâller nâgot som den unge inte far inneha, skall detta omhändertagas. Brev mellan den unge och en svensk myndighet eller advokat eller hans offentliga biträde skall vidarebefordras utan föregaende granskning."

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unanimously that there had been a violation of Article 8, but in a split vote a violation of Article 13 was denied. In conclusion, the Commission found that it was not clear what legal basis a ban on phone calls and letters did have, something that was reflected in confusion between the courts. So in view of the lack of precision both of the law itself and of the decisions taken on the basis of that law , the ban on Margareta derson's phone contacts and correspondence with Roger , were not 'in accordance with the law' (No. 102). The case went before the European Court. The Court took a much more lenient approach than the Commission. It picked no quarrel with the lack of precision, and the limitations on access were consequently considered to be in accordance with the law after an interesting analysis of the Swedish case law (No. 82), rather different from the one made by the Commission (Nos. 59 and 99). The Anderssons ' assertion of illicit aims behind the ban on access — to hide the conditions in the foster home — was summarily dismissed: "there is nothing to suggest that it was applied for any other purpose [than legitimate ones]." (No. 87) Not until the Court arrived at 'necessary in a democratic society* did the voice become more demanding. The Court focused on the Anderssons being prohibited from having any contact by mail or telephone during the period from 6 August 1986 to 5 February 1988 when the prohibition was revoked (except that it was for Roger to take the initiative in telephone communications). In the Court's view the measures relating to this period were particularly far-reaching. They had to be supported by strong reasons and to be consistent with the ultimate aim of reuniting the Andersson family, in order to be justified under Article 8 (2). 96. The reasons adduced by the Government... do not sufficiently show that it was necessary to deprive the applicants of almost every means of maintaining contact with each other for a period of approximately one and a half years. Indeed, it is questionable whether the measures were compatible with the aim of reuniting the applicants. 97. Having regard to all the circumstances of the case, the Court considers that the aggregate of the restrictions imposed by the social welfare authorities on meetings and communications by correspondence and telephone between the applicants was disproportionate to the legitimate aims pursued and, therefore, not 'necessary in a democratic society'. There has accordingly been a breach of Article 8.

15. The Swedish Dilemma The Swedish dilemma that generated these cases has been sketched in the following way by the Vice-President of the Commission, Ms. Gro Hillestad Thune™ \

169 Reference is here made to Ms. Gro Hillestad's plaidoyer for the Commission in the case Rieme v. Sweden , 16 E H R R 155, which is reproduced in relevant parts in: Jacob W. F. Sundberg, The Trip to Nowhere, I O I R No. 106, 21 - 22.

The European Convention on Human Rights and the Nordic Countries

The Swedish system has established two separate procedures to deal with the child's situation. First, an initial one, in which social authorities and, if necessary, also the administrative courts, test the conditions of the natural home, and only these, in order to see whether public care can lawfully be maintained. Second, a subsequent one, whereby the same organs test whether separating the child from his foster home would create a risk, which is not of a minor nature, of harming its physical or mental health — in which case a prohibition on removal is issued as a provisional measure, either for a fixed period of time with the possibility of renewal, or until further notice. The complexity of this decision-making process increases uncertainties about the child's final home and puts added stress on the parent-child relationship. A situation where the authorities with one hand open the door for a return of the child to the natural home and then with the other immediately close it, is bound to create conflict between the natural parents and the foster parents. Such a floating situation, where the possibility of lifting the prohibition on removal depends on the extent of the contact between the child and its real parents can only encourage a constant competition between them and the foster parents as to actual access. Wanting to keep the child the foster parents may be expected to avoid access or making meetings as unprofitable as possible. However, Gro Hillestad Thune also focused on differing points of departure: There is little common ground between the courts and the social authorities. For court lawyers, it is natural that once public care has ceased, the social authorities should in principle attempt to reunite the child with its natural parents. The social authorities, contrariwise, consider that once a child has had time to root itself in a foster home, it should be allowed to remain there also after public care has been terminated. To this may perhaps be added, depending on the formation of the social workers and the political culture thus generated, the idea that the foster home is better than the natural home, and the foster homes being paid from the social welfare funds they have become a kind of clients to the social workers and should be accordingly protected. One result of this has been that under the Swedish system the social authorities can in practice disregard or even obstruct a court judgment without resulting sanction. They may with impunity display almost contempt for the courts. 16. The Oral Hearing Cases: Ekbatani and Fredin The next Swedish problem area was the subject of oral hearings. During the 1980s it became clear in the European case law that the wording in Article 6 (1) that "everyone is entitled to a fair and public hearing" was to be understood in accordance with the French text which talks about "entendue publiquement" , i.e. heard in public. The

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first time that this understanding hit the Swedish legal system was in 1988, in the case of John Ekbatani. a) Ekbatani v. Sweden 170 John Ekbatani , born 1930 in Teheran, came to Sweden in 1978. After two years his savings ran out and he finally found a job with the tramway company in Gothenburg. However, in this job he was required to hold a driving license. Being an American citizen and having driven cars in the United States for some twenty years, he did not see this as an obstacle. His American driving license was no longer valid for driving in Sweden. Mr. Ekbatani decided to get a Swedish driving license by passing a Swedish driving test. However, by that time, perspectives had shifted in the Swedish traffic bureaucracy. Driving was said to be not only a matter of skill but also a matter of 'attitude'. The attitude was determined by 'understanding the demands of traffic safety' and this again was supposed to belong to a group 'with a characteristic cultural pattern'. The Swedish educational standard was supposed to rank highly internationally, but skepticism prevailed when looking at non-Swedish cultures. Mr. Ekbatani walked into the local Road Safety Office in Gothenburg, ready to submit to a driving test. The conditions surrounding the test were less than harmonious. Mr. Ekbatani spoke English, while the traffic inspector in the car only spoke Swedish. The test completed, Ekbatani was told by the inspector that he had failed. This upset Mr. Ekbatani but the inspector only smiled and left. Meeting him another day in the street, an exchange took place which deteriorated into a fight. Evidence of what took place was conflicting and came exclusively from the two antagonists. Ekbatani was then charged in court with threatening a public official. Both antagonists were heard, but Ekbatani lost and was fined. He took an appeal. At that time, the Code of Judicial Procedure stated that "the case may be examined without a main hearing if the lower court has . . . sentenced [the defendant] to a fine . . . and there is no reason to impose a more severe sentence." On the basis of this the Court of Appeals advised the parties that the case would be determined without a hearing, and subsequently judgment was rendered on 12 November 1982, confirming the judgment of the lower court. The Supreme Court refused leave to appeal. Ekbatani brought his case to Strasbourg and the Commission expressed the opinion that there had been a violation of Article 6 (1). The European Court rendered judgment on 26 May 1988. The following excerpts from the holding should be set out:

170

John Ekbatani v. Sweden , 13 E H R R 504, ERD 134, 26 May 1988.

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32. Here, the Court of Appeal was called upon to examine the case as to the facts and the law. In particular, it had to make a full assessment of the question of the applicant's guilt or innocence The only limitation on its jurisdiction was that it did not have the power to increase the sentence imposed by the City Court. However, the above-mentioned question was the main issue for determination also before the Court of Appeal. In the circumstances of the present case that question could not, as a matter of fair trial, have been properly determined by the applicant — who claimed that he had not committed the act alleged to constitute the criminal offence . . . — and by the complainant. Accordingly, the Court of Appeal's re-examination of Mr. Ekbatanïs conviction at first instance ought to have comprised a full rehearing of the applicant and the complainant. 33. Having regard to the entirety of the proceedings before the Swedish courts, to the role of the Court of Appeal, and to the nature of the issue submitted to it, the Court reaches the conclusion that there were no special features to justify a denial of a public hearing and of the applicant's right to be heard in person. Accordingly, there has been a violation of Article 6 (1).

The Ekbatani judgment was rendered in Strasbourg on 26 May 1988. That was only two months after the condemning judgment in Olsson which was given on 24 March 1988.171 At the same time, the Eriksson Case was underway; the Commission Report was adopted on 14 July 1988, finding violations of Articles 6 (1) and 8. There is every reason to believe that the development was followed with alarm in the Ministry of Foreign Affairs and the Ministry of Social Affairs. This might explain what took place after my public lecture on the Convention system at the University of Stockholm on 18 March 1988.172 Moreover, in 1988, the Swedish member of the European Commission, Mr. Hans Danelius , was appointed Justice of the Supreme Court; and Mrs. Elisabeth Palm , Justice of the Supreme Administrative Court, in a surprise election, was made judge of the European Court. 173 171 It may be noted that the social authorities at that time gave up the fight against Ferenc Lovacz; on 17 March 1988 the Social District Board withdrew its appeal against the decision of the Administrative District Court terminating the public care of the boy Frans Lovasz. It should perhaps be added that the driving force behind the action against Frans Lovasz was the mother of one of the initiators of the ius docendi action (see next note). The Administrative Court of Appeal then struck it from the list on 11 April 1988. At the same time the care order against Roger Andersson was terminated by the Administrative Court of Appeal, on 27 April 1988. On 18 July 1988, the Supreme Administrative Court had observed that the ban on access in the Olsson case lacked basis in law (RÄ 1988ref89). 172 See further E[douard] S[hils\ Academic Freedom at the University of Stockholm, 29 Minerva. A Review of Science, Learning and Policy 321 - 330, and documentation 330 - 385. A summary of the latter will be found in: Jacob W. F. Sundberg, An American Idea in a Nordic Setting, Revue hellénique de Droit International 1996, 289, 292 note 11. 173

See Jacob W. F. Sundberg , Domare med mission, I O I R No. I l l , 3; compare Jacob W. F. Sundberg, O m citatskartellen — reflexioner kring en avhandling som började i allmän rättslära, 8 Juridisk Tidskrift, 1996-97, 1087, 1087, 1088.

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This background may explain some otherwise surprising features in the seminal case of Lennart Andersson. b) NJA 1988 ρ 572 Mr. Lennart Andersson got upset when bush from the neighboring community wood started to spread into his fields. Clearing the bush away, he made a pile of the cut scrub in his own field and, when he thought the occasion was good, he put the pile on fire. However, the wind changed unexpectedly and the neighboring wood caught fire. The police intervened and Mr. Andersson was indicted for carelessly endangering the public. The trial was held in the absence of the defendant and judgment was rendered the same day, sentencing Mr. Andersson to 30-day fines of SEK 20 each. Mr. Andersson appealed, requesting that the judgment be vacated and the case remanded to the District Court. He also asked for a public defense counsel to be appointed so that he could appear at the session before the Göta Court of Appeal. This request was rejected and the parties were informed that the case might be determined without a hearing. Judgment was given on 3 September 1986, confirming the lower court's judgment. No leave to appeal was asked for and the judgment became final. On 2 February 1987, however, Mr. Andersson wrote to the European Commission, and — being informed by the Secretariat that he had not exhausted his Swedish remedies174 — he wrote on 26 February 1987 to the Supreme Court requesting relief for grave procedural error ( What Every Food Manufacturer Needs to Know: Realizing the Impact of Globalization on National Food Regulations, Food and Drug Law Journal, vol. 52, 1997, 31, 32. 116 Alison Maitlandy E U Farm Chief Hits at W T O Over Meat Row, Financial Times, 4 September 1997, 26 (reporting EC Farm Commissioner blaming "the W T O sanitary and phyto-sanitary agreement for 'paralysing* progress in adopting higher food standards."). 117

Hormones Panel Report (note 12), para. 8.86.

118

Hormones Appellate Report (note 13), para. 165.

119

Id. y para. 172.

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These examples of science at the mercy of international politics explode any illusion that the appeal to science in the science paradigm escapes politics. Science not only is embedded in a particular power framework in international relations but also is subject to the political decisions made by States. Science in the science paradigm is really 'political science'. 3. National Science ? Sovereign Expressions of Science Science is supposed to transcend national boundaries as an endeavor that produces universal truths. Yet, controversies in the international trade area suggest that science can be very national. The 'mad cow' dispute between the United Kingdom and the EC over the scientific justification for the EC's ban on British beef exports,120 the long-running dispute between the EC and the United States over the use of growth hormones in beef production, and recent U.S.-EC trade squabbles over meat, pork, and poultry inspection systems121 all involve scientific clashes as well as trade conflicts. Atik argues that "[w]e can anticipate many cases where scientific consensus is split along national lines."122 This, of course, raises the specter of trade interests corrupting the scientific process and pre-determining scientific evidence.123 In the science paradigm, science is supposed to act as a neutral arbiter between public health sovereignty and trade interests. If trade interests in fact drive, or are perceived to be driving, science, then the attractiveness of the science paradigm wanes considerably. The convenient tailoring of scientific theories to national economic interests is an old phenomenon, dating back at least to the nineteenth century. 124 The international sanitary conferences of the nineteenth century, up to the breakthrough conferences of the 1890s, were plagued by the great scientific debate over the nature of diseases. The opponents of national quarantine systems, led by the British, favored the 'miasma' theory of diseases, which posited that cholera and other diseases were not contagious and thus not carried through the channels of international trade but arose 120 A tik (note 111), 748 (noting that in the 'mad cow' crisis, "the United Kingdom had maintained that the European's Union ban on exports of British beef was entirely without scientific justification."). 121

See Fidler (note 3), 34, fn. 104 for description of this U.S.-EC trade controversy.

122

Atik (note 111), 748.

123

Atik cautions that "we need not reach the cynical view that one group of scientists (say, the Europeans) is corrupted by the economic interest of its country to account for the division of opinion."). Id. Scientific uncertainty could also account for the division of science along national lines; but, even in a situation of scientific uncertainty, why does the division fall along national lines? 124

Howard-Jones (note 55), 26 ("Both the contagionists and anti-contagionists made up their minds first and then selected the facts that seemed to fit their theories.").

Trade and Health: The Global Spread of Diseases and International Trade

from bad air or soil where the diseases actually occurred. 125 If miasma theory was correct, then the troublesome system of European quarantine regimes that frustrated British trade was unnecessary. The British dismantled their quarantine system and developed an approach that mirrored provisions later adopted in the international sanitary conventions.126 Those countries that wanted to keep their quarantine systems for health and political (e.g., anti-British) reasons favored the contagionist theory, which argued that diseases were spread between human populations through trade and that quarantine, thus, was a rational strategy. This 'great debate' took place in a morass of scientific ignorance until the work of Pasteur and Koch proved contagionist theory to be correct. In the end, the British did all the right things for the wrong reasons, and the quarantine-favoring countries did all the wrong things for the right reason. The whole episode serves to illustrate the intertwining, for better or worse, of science and national interest in the trade-health linkage. The vulnerability of science to economic interests is also well illustrated in the scientific controversies surrounding tobacco consumption. The major American tobacco companies have waged a 'scientific' battle for nearly thirty years by producing research that found no link between smoking and ill-health.127 The effort of the tobacco companies to deny the dangerous nature of smoking by using science ultimately failed and was exposed as fraudulent. The ultimate triumph of 'good science' in the tobacco situation does not, however, remove concerns that the entire episode reveals about the ability of powerful interests, be they companies or governments, to manipulate science for particular economic and political objectives. The role of science in international environmental law is also illustrative of problems facing the science paradigm in the trade-health context. According to Susskind , science has not played a very strong role in the formulation of international environmental law since 1972.128 While science helped international negotiations on acid rain, ozone depletion, and biodiversity, Susskind argues that science "was secondary or irrelevant in shaping the terms of the treaties dealing with whaling, hazardous waste trade, tropical deforestation, Antarctic mineral exploitation,... trade in African elephant ivory . . . ocean dumping, world heritage, wetlands and migratory species 125

Goodman (note 51), 38 (discussing doctrine of miasma).

126

Howard-fones (note 55), 56 (noting that "paradoxically, the measures of sanitary control advocated and practised by the British were completely in line with the thinking and practice of today, as exemplified in the International Health Regulations."). 127

See Philip /. Hilts, Smoke Screen: The Truth Behind the Tobacco Industry Cover-up, 1996 (analyzing tobacco industry's disinformation machine and tactics). 128

Lawrence Susskind , Environmental Diplomacy: Negotiating More Effective Global Agreements, 1994,63 ("A review of most of the international treaties negotiated since the 1972 Stockholm conference shows that scientific evidence has played a surprisingly small role in issue definition, fact-finding, bargaining, and regime strengthening.").

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protection, and rewriting the Law of the Sea."129 In addition, science becomes very politicized in international environmental negotiations because the complexity of these issues produces uncertainty that allows politics to dominate the discussions.130 A battle is presently being waged over the science of global warming that reveals the vulnerability of environmental science to politics.131 The use of science by States in the environmental context also shows how science is subordinate to concepts of national interest and power. 132 The science paradigm is premised on science not becoming coopted into the normal dynamics of international politics. Realism — the dominant international relations theory since Thucydides u} — informs us that all aspects of international politics are about power. In Hans Morgenthau's famous phrase, statesmen think and act in terms of interest defined as power. 134 In the realist's world, science is no different from other instruments, such as morality, that are harnessed by sovereign States in their pursuit of power. While the realist theory is by no means universally accepted, its dominance over time, and its continued existence, provide one theoretical angle with which to think about the phenomenon of 'national science'.

The Interpretation

4. Science According to Non-Scientists? and Enforcement of Science-Based Rules of International L

Another problem with the science paradigm is how science-based rules of international law will be interpreted and enforced. The lack of authoritative interpretative mechanisms is sometimes considered a general weakness of international law.135 129

Id.

130

Id. (noting that "there will always be self-interested actors willing to exploit scientific uncertainty for their own ends, arguing against any global action (that would hurt them) on the grounds that a fuller understanding is required before a clear course of action can be charted. When scientists acknowledge uncertainty, they allow political actors greater control over decision making."). 131 See, e.g., ]. D. Mahlman , Uncertainties in Projections of Human-Caused Climate Warming, Science, vol. 278,1997,1416,1417 ("Characterizations of the state of science of greenhouse warming are often warped in differing ways by people or groups with widely varying sociopolitical agendas and biases."). 132

Susskind (note 128), 65 ("When its purposes are served (and we are not alone in this), the United States uses scientific evidence to argue for the actions it favors. When we prefer to take a different political course, we attack the available data as insufficient, regardless of the strength of the worldwide scientific consensus."). 133 Anne-Marie Slaughter , International Law in a World of Liberal States, European Journal of International Law, vol. 6, 1995, 1, 5. 134

Hans Morgenthau

135

See H.L. A. Hart , The Concept of Law, 1961,209 (arguing that international law lacks "a

y

Politics Among Nations, 5 t h ed. rev. 1978, 5.

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Similarly, enforcement is sometimes considered the great black hole for international law, into which its finely crafted rules are sucked into non-existence. Thus, discussing the interpretation and enforcement issues in the trade-health context should come as no surprise. But, at least in terms of international trade law, the interpretation and enforcement problems are not the classical concerns. In this Part IV.4,1 explore the interpretation and enforcement issues confronting both international health law and international trade law. a) International Health Law Commentators have frequently observed that the IHR suffer from frequent noncompliance by WHO member States.136 Member States of the WHO often do not report outbreaks of diseases subject to the IHR and often impose measures against other member States suffering outbreaks that go beyond the maximum measures provided in the Regulations. The WHO historically has shown no interest in monitoring or enforcing the IHR. This reluctance is explained by the powerful non-legal ethos at WHO 1 3 7 and by the unwillingness on the part of WHO member States to empower WHO against themselves. The non-enforcement of the IHR's rules seriously erodes the effectiveness of the science paradigm. The scientifically-informed rules of the IHR are not observed, which means science is not driving WHO member State behavior in the IHR context. The science paradigm in the IHR seems irrelevant to State behavior, which is contrary to the purpose of using science to balance sovereignty and trade interests. b) International Trade Law A key difference between the SPS Agreement and the IHR is that the former is plugged into a powerful dispute resolution system in the form of the WTO's dispute settlement regime. WTO member States accused of violating the SPS Agreement cannot prevent the complaining State from bringing the dispute before a WTO dispute unifying rule of recognition specifying 'sources' of law and providing general criteria for the identification of its rules."). 136 See, e.g., Fidler (note 22), 843 - 849; and Allyn L. Taylor , Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations, Houston Law Review, vol. 33, 1997, 1327, 1352. 137

See Allyn L. Taylor , Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health, American Journal of Law and Medicine, vol. 18, 1992, 301, 303 (WHO's unwillingness to use law and legal institutions "stems, in large part, from the organizational culture established by the conservative medical professional community that dominates the institution.").

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resolution panel. The science paradigm in the SPS Agreement has, as a result, a sophisticated and public mechanism for interpreting, monitoring, and enforcing its rules. While avoiding the problems that have plagued the IHR, the dispute settlement system linked to the SPS Agreement raises other important concerns. The two most prominent are: (1) the interpretation of scientific evidence by WTO dispute resolution panels, and (2) the application of the trade-related disciplines to scientificallyjustified public health measures. aa) The Interpretation of Scientific Evidence by WTO Dispute Resolution Panels As demonstrated by the Beef Hormones Case, in SPS Agreement cases the WTO will have to decide whether a member State has scientifically justified a challenged SPS measure. In essence, a panel of non-scientists will be making scientific determinations.138 This situation raises concerns about the competence of WTO dispute panels to make scientific judgments when rival scientific cases are made. The SPS Agreement attempts to address this in allowing WTO panels to have access to scientific experts to help it through the thickets of scientific controversy. 139 Where an international standard has been set, then worries about the competence of the WTO panel might be less sharp because ostensibly an authoritative scientific body has evaluated the evidence. But competence issues might remain: how does the WTO panel determine whether the challenged State has provided a scientific justification for a measure that is more stringent than international standards? In appealing the Hormones Panel Report, for example, the EC argued that the WTO panel "disregarded and distorted the evidence with regard to both the . . . hormones at issue supplied by the Panel's experts, as well as the scientific evidence presented by the European Communities."140 The competence concern boils down to a question of deference: how much deference is a WTO panel going to give to the scientific evidence and arguments of a 138

David A. Wirth , The Role of Science in the Uruguay Round and N A F T A Trade Disciplines, Cornell International Law Journal, vol. 27, 1994, 817, 843 ("An additional issue arises when decision-makers in an adjudicatory setting, such as members of G A T T panels, are lay persons and not technical experts who are specially trained in the scientific discipline to a particular dispute."); Charnovitz (note 105), 490 (noting that "the use of science in judicial review is a rapidly evolving field — one that ad hoc G A T T panels would seem ill-equipped to handle."). 139

SPS Agreement (note 83), Art. 11.2. The Appellate Body upheld how the panel in the Beef Hormones Case utilized scientific experts. Hormones Appellate Report (note 13), paras. 146 - 154. 140

Hormones Appellate Report (note 13), para. 17.

Trade and Health: The Global Spread of Diseases and International Trade

WTO member State? Another way to think about this is formulating a standard of review for scientific evidence: will WTO panels use a standard like 'rational review' or 'heightened scrutiny' or a more rigorous 'cost-benefit analysis'? Wirth has argued that WTO and NAFTA panels have to accord national regulatory authorities deference on scientific issues.141 He believes that dispute resolution panels should conduct a procedural rather than a substantive review of the scientific evidence presented and only look for a "minimal level of scientific evidence."142 In appealing the Hormones Panel Report, the EC similarly argued "that WTO panels should adopt a deferential 'reasonableness' standard when reviewing a Member's decision to adopt a particular science policy or a Member's determination that a particular inference from the available data is scientifically plausible."143 The SPS Agreement appears to require, however, WTO panels to apply a standard of review that is more critical than a rational review approach, Wirth's procedural approach, or the EC's deferential 'reasonableness' standard but not as stringent as a cost-benefit calculus or a de novo standard of review because it requires a showing of 'sufficient scientific evidence' supporting SPS measures.144 In addition, the Appellate Body in the Beef Hormones Case pointed out that, under Article 11 of the WTO Dispute Settlement Understanding, panels should make an objective assessment of the facts in all cases.145 The Appellate Body held that an objective assessment of the facts involved more than deference and less than de novo review of the facts. 146 In the Hormones Panel Report, the panel took a heightened scrutiny approach by (1) using individual scientific experts to assist its deliberations on scientific matters,147 and (2) closely examining the EC's scientific case supporting the import ban.148 In addition, Codex Alimentarius had set international standards for five of the six growth hor-

141

Wirth (note 138), 854 - 855.

142

Id., 856.

143

Hormones Appellate Report (note 13), para. 14.

144

SPS Agreement (note 83), Art. 2.2. Atik comments that H[t]he requirement that a SPS measure be premised on a scientific basis represents a middle-ground between a more searching cost-benefit analysis that introduces international economic values and the quite liberating rational relationship test ."Atik (note 111), 745. Barcelo argues that the European Court of Justice uses a cost-benefit balancing test in its rulings on measures taken to protect public health that restrict intra-EC trade. John J. Barcelo III , Product Standards to Protect the Local Environment — the G A T T and the Uruguay Round Sanitary and Phytosanitary Agreement, Cornell International Law Journal, vol. 27, 1994, 755, 771 - 772. 145

Hormones Appellate Report (note 13), para. 116.

146

Id. , para. 117.

147

Hormones Panel Report (note 12), para. 8.7.

148

Id ., paras. 8.117 - 8.159. As Charnovitz observed, "[t]he panel accorded no deference to the Commission's factual findings." Charnovitz (note 106), 1785.

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mones in issue in the case,149 which provided the WTO panel with an independent scientific foundation against which to evaluate the EC measures. It also helped the WTO panel that none of the scientific studies cited by the EC supported its position at all, 150 suggesting that the EC import ban would not have survived even a rational review standard.151 The Appellate Body upheld the standard of review applied by the panel.152 Other, more difficult, cases are likely to present themselves under the SPS Agreement in which the WTO panel's competence to make scientific determinations will be more questionable. Atik observes that "[e]ven more challenging would be cases . . . where affirmative scientific justifications can be argued both for the regulation and for its removal." 153 Atik cites the EC's muesli case as an example. Sandoz produced muesli cereal enhanced with vitamins to promote good health, and such vitamin supplementation was legal in Germany and Belgium. The Netherlands, on the other hand, banned the importation of such muesli because it might be harmful to human health by encouraging the consumption of fat-soluble vitamins.154 Other products might also have mixed health effects in a population that could be regulated in ways that trigger SPS Agreement scrutiny. 155 It is not clear at this point how WTO panels will approach such difficult scientific determinations.156 The Appellate Body clearly held in the Beef Hormones Case that the Dispute Settlement Understanding mandates that the heightened scrutiny approach embodied in the 'objective assessment of the facts' standard be applied by WTO panels, but how such a standard of review operates in cases with more complicated scientific controversies than the Beef Hormones Case remains to be seen. If the experience of American federal courts in dealing with scientific evidence is any guide, the WTO panels attempting to make scientific determinations in the SPS Agreement context are in for a controversial future. The handling of science in American federal court litigation may point to problems that WTO panels will face in SPS Agreement disputes. The major controversy has been the standard of admissibility for scientific evidence. The 'general acceptance' test prevailed in federal courts 149

Hormones Panel Report (note 12), para. 8.159.

150

Id. y para. 8.137.

151

Charnovitz (note 106), 1785 (noting that "[f]rom the panel's perspective, there wasn't much to accord deference to."). 152

Hormones Appellate Report (note 13), para. 119.

153

Atik (note 111), 757.

154

Id., 754. See Case 174/82, Criminal Proceedings Against Sandoz BV, 1983 ECR 2445.

155

See Atik (note 111), 757 (noting that "SPS measures present many of these difficult cases" and referring to pharmaceutical products that have both harmful and healthful effects). 156 Charnovitz (note 106), 1785 ("Whether panels should accord deference remains an unresolved issue in W T O jurisprudence.").

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3

from 1923 until 1993. Under this test, federal courts admitted scientific evidence from the litigants if the evidence was generally accepted as reliable by the appropriate scientific community.157 In 1993, the U.S. Supreme Court noted that the general acceptance test has "been much debated, and scholarship on its proper scope and application legion."158 In the same case, the U.S. Supreme Court held that the Federal Rules of Evidence, not the general acceptance test, governed the admissibility of scientific evidence in federal courts. 159 Under the Federal Rules of Evidence, all relevant evidence is admissible; and expert witnesses may provide testimony on scientific evidence if it will assist the trier of fact. 160 The Supreme Court held that nothing in the Federal Rules of Evidence indicates that they incorporate the general acceptance test.161 Under the Federal Rules of Evidence, the federal trial judge "must ensure that any and all scientific testimony admitted is not only relevant, but reliable." 162 The trial judge is to act as a 'gatekeeper' by screening scientific evidence for its relevance and reliability. 163 The foci of the gatekeeper approach set out in Daubert is "whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."164 In short, American federal courts have moved from a standard that focused on the end results of scientific inquiry (the general acceptance test) to a standard that focuses on the reliability and relevance of the methodology of the scientific inquiry (the gatekeeper approach). The gatekeeper approach has, however, come under fire from both judges and commentators. Kesan has, for example, noted that "[m]any judges have expressed discomfort at having to review methodologies and techniques that undergird scientific evidence presented in courts." 165 The results produced by the gatekeeper approach have contradicted the U.S. Supreme Court's confident prediction "that federal judges

157

Frye v. United States , 293 F. 1013, 1014 p . C . Cir. 1923) (holding that for scientific evidence to be admissible it "must be sufficiently established to have gained general acceptance in the particular field to which it belongs."). 158

Daubert et ux., individually and as guardians ad litem for Daubert , et al. v. Merrell Do Pharmaceuticals, Inc., 509 U.S. 579, 586 (1993). 159

Id., 587.

160

Id., 587 - 588 (citing Rules 402 and 702 of the Federal Rules of Evidence).

161

Id., 588.

162

Id., 589.

163

General Electric Company, etal. v. Joiner, etux., 1997 LEXIS 7503,15 December 1997,12 (interpreting Daubert). 164 165

Daubert (note 158), 592 - 593.

Jay P. Kesan, A Critical Examination of the Vost-Daubert Scientific Evidence Landscape, Food and Drug Law Journal, vol. 52, 1997, 225, 225.

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possess the capacity to undertake this review." 166 Kesan writes: "The result of these gatekeeping exercises is a tortured landscape of post-Daubert decisions, which are non-uniform, inconsistent, and irreconcilable." 167 Within the Beef Hormones Case, a similar shift from a general acceptance test to a gatekeeper approach may have occurred as the case moved from the panel to the appellate stage. The Appellate Body took issue with the panel over its handling of the 'substantive requirements, of the risk assessment required by Article 5.1 of the SPS Agreement. In the opinion of the Appellate Body, the panel wrongly interpreted Article 5.1 to require that the scientific conclusions reflected in the relevant SPS measure must conform to the scientific conclusions of the risk assessment.168 The Appellate Body explicitly rejected the notion, implicitly fostered by the panel's interpretation, that Article 5.1 incorporates a general acceptance test: "Article 5.1 does not require that the risk assessment must necessarily embody only the view of the majority of the relevant scientific community."169 In addition, the Appellate Body rejected an implication it sensed in the Hormones Panel Report that the risk assessment required by Article 5.1 mandated "a certain magnitude or threshold level of risk be demonstrated."170 In other words, the SPS Agreement does not require that a risk cross a minimum threshold of probability to support a SPS measure.171 All that is required by the Article 5.1 risk assessment is that a reasonable relationship exist between the SPS measure and the risk identified in the risk assessment.172 While acknowledging that States base most SPS measures on "'mainstream' scientific opinion," 173 the Appellate Body argued that "equally responsible and representative governments may act in good faith on the basis of what, at a given time, may be a divergent opinion coming from qualified and respected sources."174 The Appellate Body has rejected a general acceptance approach to scientific evidence in favor of a test that looks to the reliability and relevance of such evidence — does it come from 166

Daubert (note 158), 593.

167

Kesan (note 165), 251.

168

Hormones Appellate Report (note 13), paras. 193 - 194. See Hormones Panel Report (note 12), para. 8.137 (arguing that "the scientific conclusion reflected in the EC measures in dispute . . . does not conform to any of the scientific conclusions reached in the evidence referred to by the European Communities."). 169

Hormones Appellate Report (note 13), para. 194.

170

Id., para. 186.

171

Id. ("To the extent that the Panel purported to require a risk assessment to establish a minimum magnitude of risk, we must note that imposition of such a quantitative requirement finds no basis in the SPS Agreement") See also id., para. 184. 172

Id., paras. 193 - 194.

173

Id., para. 194.

m

Id.

Trade and Health: The Global Spread of Diseases and International 335 Trade

a 'qualified and respected source* and does it reasonably support the SPS measure at issue? One interpretation of the Hormones Appellate Report is that the Appellate Body has mandated an approach to scientific evidence that is even more liberal than the Daubert gatekeeper standard in U.S. federal courts because it did not specifically require WTO panels to examine the methodology underlying the scientific reasoning. The approach of the Appellate Body makes clear, however, that WTO panels should examine whether the reasoning or methodology underlying the evidence applies to the facts of the case. The Appellate Body noted, for example, that much of the scientific literature produced by the EC did not evaluate the carcinogenic potential of the relevant hormones when used for animal growth promotion. 175 The Appellate Body has, in essence, mandated that WTO panels be Daubert-like gatekeepers for scientific evidence presented in future SPS Agreement cases by WTO member States. In one important respect, however, a WTO gatekeeper approach is different from the Daubert standard. Under Daubert , the scientific evidence is still subject to jury deliberations after having been admitted by the gatekeeper. The jury may reject the evidence and the legal claims flowing from it. Under the Hormones Appellate Report, if the scientific evidence is relevant and comes from reliable sources, then the SPS measure at issue will in all likelihood bear a rational relationship to the evidence, which means that the WTO member State has satisfied its science-based legal obligations under the SPS Agreement. A panel could not, at that point, reject the evidence as not in conformity with mainstream scientific knowledge — as could a domestic jury. Under the Hormones Appellate Report, once the evidence is past the panel gatekeepers, legal consequences automatically result. 176 Just as under Daubert it is easier for a litigant to get scientific evidence admitted, under the gatekeeper approach crafted in the Hormones Appellate Report it will be easier for a WTO member State to satisfy the science-based disciplines of the SPS Agreement than under a WTO version of the general acceptance test. In the Beef Hormones Case, the EC could not even satisfy the WTO gatekeeper standard because it did not produce relevant scientific evidence that rationally supported its import ban. Although the WTO gatekeeper approach appeared to work in the Beef Hormones Case, trouble may still be looming ahead, if U.S. federal court travails with the Daubert test are any indication. WTO panels may confront harder cases than the Beef Hormones Case. In fact, the EC proclaimed victory when the Appellate Body released its decision because it believed it had succeeded in achieving 175 176

Id. , paras. 199 - 200.

This distinction between Daubert and the W T O flows from the fact that under the SPS Agreement and Dispute Settlement Understanding all evidence is admitted to the ultimate decision makers (i.e., the panel members) for consideration, whereas under Daubert a federal judge may not allow certain scientific evidence to reach the jury.

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legal interpretations that would allow it to satisfy the science-based discipline of the SPS Agreement.177 Apparently the EC is at work on a new risk assessment that it believes will pass muster under the Appellate Body's interpretations of the SPS Agreement.178 More generally, WTO gatekeeping exercises might evolve into a tortured landscape of post -Beef Hormones Case decisions that are non-uniform, inconsistent, and irreconcilable because the gatekeeper approach will not prove any easier to use within the WTO than in U.S. federal courts. ' The role WTO panels will play in interpreting scientific evidence also raises the question about the quality of the international standards on which they will lean for scientific support. The Beef Hormones Case illustrates this problem. In this case, the EC argued that the vote in the Codex Alimentarius on the international standards in question was very close (33 votes for, 29 against, and seven abstentions),179 suggesting that the international standards established in the Codex process did not represent a clear scientific victory for the United States' position. The WTO panel ruled that whether an international standard is adopted by a wide or narrow margin is not relevant because of the unambiguous command in Article 3.1 of the SPS Agreement that WTO member States base their health protection measures on existing international standards.180 Narrow votes in international standards-setting organizations clearly raise, however, scientific and legal concerns. Does a close and controversial vote mean that there is no scientific consensus? Does the close and controversial vote mean that politics has infiltrated what is supposed to be a scientific, technical endeavor? Despite the Appellate Body's effort to disparage the notion that international standards become legally binding through the SPS Agreement, the Beef Hormones Case raises the stake of each and every vote in standard-setting international organizations, perhaps contributing to the politicization and paralyzation of these processes. More importantly, it suggests that international standard setting does not escape the problems haunting the science paradigm. Other aspects of the Beef Hormones Case raise questions about the operation of the science paradigm in international trade disputes. For example, the Appellate Body held that the panel erred as a matter of law in allocating the evidentiary burden of proof to (1) the member State that imposes a SPS measure as a general matter, and (2) the member State that imposes a SPS measure that is more protective than relevant international standards.181 Interestingly, the Appellate Body held that the SPS Agree177

Trade Disputes: Big Beef, The Economist, 24 January 1998,71 (noting that both the U.S. and EC proclaimed victory after the Appellate Body released its decision). 178

Id. (noting that the "EC can keep the ban in place for another 15 months while it studies the alleged risks all over again."). 179

Hormones Panel Report (note 12), para. 8.67.

180

Id. y para. 8.69. The Appellate Body did not address this issue in its decision.

181

Hormones Appellate Report (note 13), para. 253(a).

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ment differs from the traditional relationship between GATT obligations and Article XX(b) claims.182 Under GATT, the party relying on Article XX(b) bears the burden of satisfying the conditions laid out in that Article. 183 But, under the SPS Agreement, the Appellate Body held that the complaining member State bears the burden of establishing through evidence and legal arguments a prima facie case that the member State imposing the SPS measure has violated the SPS Agreement.184 So, the Appellate Body determined "that the United States and Canada have to make a prima facie case that these [SPS] measures are not based on a risk assessment."185 The Appellate Body's allocation of the burden of proof to the complaining member State may make challenging SPS measures more difficult and certainly accords more deference to public health sovereignty than the allocation of the burden of proof under Article XX(b) of GATT. 186 In addition, it raises questions about the relationship between Article XX(b) and the SPS Agreement. In the Hormones Panel Report, the panel held that the SPS Agreement stands alone and does not require the existence of a prior violation of GATT in order to be violated by a member State.187 But, the panel also held that "if a violation of GATT were found, we would need to consider whether Article XX(b) could be invoked and would then necessarily need to examine the SPS Agreement."188 Under traditional Article XX(b) analysis, the State invoking Article XX(b) bears the burden of establishing that the measure meets the trade-related disciplines in the chapeau of Article XX and the necessary requirement in Article XX(b) itself. If the panel must look to the SPS Agreement to interpret the validity of an Article XX(b) claim, the Appellate Body appears to reverse the onus of the burden of proof by placing it on the complaining party not the party invoking Article XX(b). Such a result would constitute a radical departure from prior Article XX(b) jurisprudence. The Appellate Body also held that the panel erred as a matter of law in bifurcating risk analysis into 'risk assessment', which involves only scientific factors, and 'risk management', which can involve non-scientific factors. 189 Under the SPS Agreement, risk assessment is the only requirement; and member States can factor into risk assess182

Id., para. 104.

m

Id.

184

Id ., paras. 108 - 109.

185

Id., para. 197, fn. 180.

186

The Appellate Body did determine that the U.S. and Canada had both made the necessary prima facie case that the EC's import ban was not based on a risk assessment. Id., para. 197, fn. 180. 187

Hormones Panel Report (note 12), paras. 8.31 - 8.42.

188

Id., para. 8.42.

189

Hormones Appellate Report (note 13), para. 181. See Hormones Panel Report (note 12), paras. 8.94 - 8.95.

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ments "not only risk ascertainable in a science laboratory operating under strictly controlled conditions, but also risk in human societies as they actually exist, in other words, the actual potential for adverse effects on human health in the real world where people live and work and die."190 The Appellate Body broadened the scope of risk assessment from the narrow, purely scientific process envisioned by the panel. While this broadening did not affect the outcome of the Beef Hormones Case,191 it creates more flexibility for public health sovereignty because risk assessments may examine and evaluate all "risks for human health whatever their precise and immediate origin may be."192 The Appellate Body also reversed the panel on an issue relating to the harmonization element of the science paradigm. As noted earlier, the panel held that Article 3.3 of the SPS Agreement is an exception to the general obligation in Articles 3.1 and 3.2 to harmonize SPS measures on international standards. Thus, a failure to justify scientifically a higher than international standard under Article 3.3 also triggered a violation of Article 3.Ts harmonization duty. The Appellate Body interpreted the relationship between Articles 3.1, 3.2, and 3.3 differently. First, the Appellate Body reversed the panel's holding that 'based on' international standards in Article 3.1 was the same as 'conform to' international standards in Article 3.2.193 This interpretation produces two harmonization strategies: (1) national SPS measures can be based on, but not identical to, international standards (Article 3.1); and (2) national SPS measures can conform to, or be identical to, international standards (Article 3.2). Only national SPS measures that conform to international standards enjoy the benefit of the presumption that such measures are consistent with the SPS Agreement and GATT. 194 But, under the burden of proof ruling, a member State challenging a SPS measure based on but not conforming to international standards must show a prima facie case that the measure is either not based on an international standard or inconsistent with the risk assessment obligations.195 As for member States imposing higher than international standards under Article 3.3, the Appellate Body stressed that the right to adopt such higher standards "is an autonomous right and not an 'exception' from a 'general [harmonization] obligation' under Article 3.1.1,196 A violation of Article 3.3 resulting from a failure to provide a 190

Hormones Appellate Report (note 13), para. 187.

191

The Appellate Body held that the EC did not provide an assessment of the risks "arising from the failure of observance of good veterinary practice combined with problems of control of the use of hormones for growth promotion purposes." Id ., para. 208. 192 193 m

Id., para. 206. Id paras. 163 - 166. Id., para. 170.

195

Id. , para. 171.

196

Id., para. 172.

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scientific justification for a higher standard does not, in the Appellate Body's view, also produce a violation of the harmonization provision in Article 3.1.197 The Appellate Body's interpretation of Articles 3.1, 3.2, and 3.3 does not, however, adversely affect the harmonization element of the science paradigm because two of the three options involve harmonization strategies (Articles 3.1 and 3.2) while the non-harmonization option (Article 3.3) remains subject to the science disciplines of the SPS Agreement. bb) The Application of the Trade-Related Disciplines to Scientifically-Justified SPS Measures Another concern about the WTO dispute settlement system involves the application of the trade-related disciplines (z.e., the necessary requirement, the no unjustified discrimination requirement, and the no disguised restriction on trade requirement) to scientifically-justified SPS measures. Having a scientific basis for a SPS measure does not end the analysis under the SPS Agreement because all SPS measures must also satisfy the trade-related disciplines. Of the three trade-related disciplines, the most controversial is the necessary requirement, which many people argue has been interpreted in such a narrow fashion that legitimate sovereign health concerns are subordinated to trade interests. aaa) Discrimination and Disguised Restrictions The requirement that a SPS measure not constitute arbitrary or unjustified discrimination 198 flows from the most-favored-nation principle that is a pillar of GATT law. 199 The prohibition on SPS measures constituting disguised restrictions on international trade 200 derives from the GATT principle of national treatment.201 Given the importance of the most-favored-nation and national treatment principles in GATT, the application of these trade-related disciplines is not surprising and is relatively uncontroversial. Banning the importation of a product from one country because of a perceived health risk but not the like product from another country posing exactly the same health risk does not make public health sense since the risk is the same. Similarly, banning an imported product with a health risk while allowing a like

197

Id., para. 253(h).

198

G A T T (note 67), Art. X X [chapeau)-, SPS Agreement (note 83), arts. 2.3 and 5.5.

199

G A T T (note 67), Art. I.

200

Id., Art. X X {chapeau)-, SPS Agreement (note 83), arts. 2.3 and 5.5.

201 G A T T (note 67), Art. ΠΙ.

2 *

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domestic product with the same risk to be sold and consumed raises questions about the public health sincerity of the government's action. The controversy over Thailand's banning of imported cigarettes while allowing the sale of domestic cigarettes raised these very questions. In attacking the Thai cigarette import ban, the United States believed that Thailand was using public health as a smokescreen for protectionism. 202 Leading scholars also viewed the Thai cigarette import ban as protectionism rather than a legitimate public health measure.203 Charnovitz argued that the Thai panel "reached the right conclusion but for the wrong reason" by basing its holding on the necessary requirement rather than on the disguised restriction to trade prohibition. 204 The facts of the Thai Cigarette Case demonstrate, however, that it can make public health sense to ban an imported product posing a health risk while allowing a like domestic product with the same risk to be consumed. Thailand's import ban represented a key element in its overall effort to reduce smoking. In addition to the import ban, Thailand had banned cigarette advertising, imposed a requirement for warning labels on cigarette packages, and reduced its own cigarette exports.205 Given the evidence that cigarette consumption increased in other markets after being forced open by the United States,206 the Thai import ban was not clearly a protectionist measure disguised as a public health policy. The Beef Hormones Case also contains some interesting arguments and holdings concerning the 'discrimination' and 'disguised restrictions on trade' disciplines. The SPS Agreement imposes both these disciplines generally in Article 2.3 and then more specifically in Article 5.5.207 Neither the panel nor the Appellate Body interpreted Article 2.3 in detail in the Beef Hormones Case. The controversy came in interpreting Article 5.5. Article 5.5 prohibits member States from having SPS measures that contain arbitrary or unjustifiable distinctions in measures designed for different situations if such distinctions result in discrimination or a disguised restriction on international trade. 208 The Appellate Body held that a member State complaining of a viola202

In 1990, the U.S. Trade Representative argued that Τ don't see how health concerns can enter the picture if the people are smoking their own cigarettes . . . . They smoke a whole lot of their own cigarettes." Quoted in Suthiphon Thaveechaiyagarn , Current Developments: The Section 301 Cigarette Case Against Thailand — A Thai Perspective, Law and Policy in International Business, vol. 21, 1990, 367, 384. 203

Charnovitz (note 67), 326 fn. 145 (arguing in connection with the Thai import ban that "[i]t is difficult to imagine a clearer example of a 'disguised restriction' on trade."). 204

Id.

205

Thaveechaiyagarn

206

Id., 377.

207

SPS Agreement (note 83), arts. 2.3 and 5.5.

208

Id., Art. 5.5.

(note 202), 374, 375 fn 56.

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tion of Article 5.5 has to show (1) that the accused member State has adopted SPS measures against risks in several different situations; (2) that the levels of protection exhibit arbitrary or unjustifiable distinctions in their application in different situations; and (3) that the arbitrary and unjustified distinctions result in discrimination or a disguised restriction on international trade.209 What this construction of Article 5.5 means is that there is no violation if the distinctions in levels of SPS protection are only arbitrary and unjustified. 210 While the Appellate Body agreed with the panel that one distinction in EC levels of protection was unjustified, 211 it reversed the panel's holding that the unjustifiable distinction constituted a discrimination or a disguised restriction on international trade. 212 The panel based its holding on prior Appellate Body rulings on the meaning of the trade-related disciplines in the chapeau of Article XX, 2 1 3 but the Appellate Body did not believe that these rulings could simply be imported to interpret Article 5.5 of the SPS Agreement.214 In other words, the trade-related disciplines in Article 5.5 do not mirror those in the chapeau of Article XX. The question that arises from the Hormones Appellate Report is whether proving violations of the trade-related disciplines in Article 5.5 is more difficult than under Article XX of GATT. The unjustifiable distinction combined with the significant size of the discrepancy in levels of protection was not enough to support a finding that the EC ban was a disguised restriction on international trade.215 The weight of those considerations was counterbalanced, according to the Appellate Body, by the depth and extent of the anxieties experienced within the European Communities concerning the results of general scientific studies,... the dangers of abuse... of hormones and other substances used for growth promotion and the intense concern of consumers within the European Communities over the quality and drug-free character of the meat available in its internal market. 216

In this case, good faith irrationality fueled by consumers shielded the EC from being found in violation of the trade-related disciplines in Article 5.5.

209

Hormones Appellate Report (note 13), para. 214.

210

Id ., para. 215 (arguing that "both the second and third elements must be found.").

211

Id ., para. 235. The Appellate Body reversed the panel's rulings that some distinctions were arbitrary and unjustified. See id.> paras. 219 - 235. 212

Id, para. 246.

213

Hormones Panel Report (note 12), paras. 8.182 - 8.184.

214

Hormones Appellate Report (note 13), para. 239. This is another example where the Appellate Body distances the SPS Agreement from Article X X jurisprudence. 215

Id. , para. 240.

216

Id. , para. 245.

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bbb) The Necessary Requirement More controversial historically in the area of the trade-related disciplines is the interpretation of the necessary requirement. In the Thai Cigarette Case, the GATT panel ruled "that the import restrictions imposed by Thailand could be considered to be 'necessary' in terms of Article XX(b) only if there were no alternative measure consistent with the General Agreement, or less inconsistent with it, which Thailand could reasonably be expected to employ to achieve its health policy objectives."217 This interpretation of the necessary requirement in Article XX(b) has also been followed by the GATT panel in the Tuna-Dolphin Case218 and the WTO panel in the U.S. Gasoline Case.219 The SPS Agreement appears to follow this GATT jurisprudence because (1) Article 2.2 states that "Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health; and (2) Article 5.6 requires that SPS measures be "not more trade restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility." 220 A SPS measure is more trade-restrictive than required if "there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade." 221 Forcing States to adopt the least trade-restrictive policy possible has come under criticism as a standard that unduly favors trade over health and that represents an unwarranted restriction on public health sovereignty.222 The United States has, for example, expressly rejected the least trade-restrictive interpretation of the necessary requirement in the interpretation of the necessary requirement found in NAFTA

217

Thai Cigarette Case (note 36), para. 75.

218

Tuna-Dolphin Case (note 93), para. 5.28.

219 U.S. Gasoline Case (note 94), para. 6.24. The W T O panel in the Beef Hormones Case did not interpret the necessary requirement in the SPS Agreement. The United States and Canada appealed to the Appellate Body that the panel should have addressed this issue by interpreting Articles 2.2 and 5.6 of the SPS Agreement. Hormones Appellate Report (note 13), para. 74. The Appellate Body upheld the panel's decision not to interpret Articles 2.2 and 5.6. Id ., para. 250. 220

SPS Agreement (note 83), arts. 2.2 and 5.6.

221

Id., Art. 5.6, fn. 3.

72 1

Jeffrey Dunoff argues that f,[a]s the Thai Cigarette and Tuna-Dolphin cases demonstrate, in practice it is almost impossible to meet the requirement that a trade measure be the least G A T T inconsistent remedy reasonably available." Jeffrey L. Dunoff, Institutional Misfits: The G A T T , the ICJ & Trade-Environment Disputes, Michigan Journal of International Law, vol. 15, 1994, 1043, 1063.

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SPS provisions.223 In the scholarly literature, Schoenbaum argues that the least traderestrictive interpretation of the necessary requirement in Article XX(b) relates to the protection of living things not to whether the measure is a necessary departure from GATT obligations.224 Schoenbaum advocates that a SPS measure that has a scientific basis should then only be judged against the discrimination and disguised restriction of trade disciplines.225 He argues that "in deciding what is 'necessary', WTO panels should employ a 'rule of reason' approach that allows some freedom of action to member states."226 In other words, a scientifically-based SPS measure does not have to be the least trade-restrictive measure possible, which creates more room for public health sovereignty in selecting policy options. A scientifically-based SPS measure will only be ruled incompatible with GATT law if it imposes an unreasonable burden on international trade or if it is applied in a discriminatory manner in violation of the most-favored-nation or national treatment principles. One way to work through this rule of reason approach is to apply it to the facts of the Thai Cigarette Case, which is the source of the traditional interpretation of 'necessary' in Article XX(b). In this case, the GATT panel ruled that the Thai import ban, which violated Article X I of GATT, was not necessary because the Thais had alternative measures available that could have been applied consistently with GATT obligations. To meet its goals of ensuring the quality of cigarettes consumed in Thailand and of reducing the quantity of cigarettes sold, Thailand could have instituted (1) strict, non-discriminatory labeling and ingredient disclosure regulations and a ban on unhealthy additives to address the quality concern,227 and (2) a ban on cigarette advertising of both domestic and foreign brands to deal with the quantity concern.228 The end result of the GATT panel's least trade-restrictive interpretation of the necessary requirement was the opening of the Thai market to American and other countries' tobacco exports. Since the opening of national markets to tobacco imports, smoking in Thailand and other Asian countries has increased dramatically, compounding the public health problems caused by tobacco consumption in Asian countries.229 This outcome in Thailand's case was entirely foreseeable. In its expert 223

Barcelo (note 144), 769 ("in interpreting N A F T A article 712(5) [which contains the requirement that SPS measures only be applied to the extent necessary]... the U.S. Trade Representative expressly claimed that the article does not impose a 'least-trade-restrictive' requirement."). 224

Schoenbaum (note 7), 276.

225

Id. m Id. 227

Thai Cigarette Case (note 36), para. 77.

228

Id. y para. 78.

229 Lown (note 28) (noting that after the U.S. government successfully pressured Japan, Taiwan, South Korea, and Thailand to allow the sale of American cigarettes "smoking soared

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submission to the GATT panel in the Thai Cigarette Case, the WHO "stated that the experience in Latin America and Asia showed that the opening of closed cigarette markets dominated by a state tobacco monopoly resulted in an increase in smoking." 230 In addition, the WHO commented on the effect of advertising regulations on big tobacco companies: "Multinational tobacco companies had routinely circumvented national restrictions on advertising through indirect advertising and a variety of other techniques."231 The GATT panel never addressed why it believed Thailand would be successful in opening its market to tobacco imports and in reducing smoking when the opposite had happened everywhere else in the developing world where tobacco imports were allowed.232 Opening the Thai market to imports from the major Anglo-American tobacco companies through the least trade-restrictive interpretation of the necessary requirement in Article XX(b) directly contributed to the exponential worsening of the public health problems Thailand was experiencing because of tobacco consumption.233 The interpretation of 'necessary* proved a boon among young people"). 230

Thai Cigarette Case (note 36), para. 55. Thailand made these facts part of its arguments: "Since the health consequences of the opening of cigarette markets constituted one of the major justifications for Thailand's cigarette import regime, Thailand deemed it necessary that the panel consult with experts from the World Health Organization (WHO) on recent experience in countries which had been made to open their markets for cigarettes. This showed that once a market was opened, the United States cigarette industry would exert great efforts to force governments to accept terms and conditions which undermined public health and governments were left with no effective tool to carry out public health policies. Advertising bans were circumvented and modern marketing techniques were used to boost sales. Hence, Thailand was of the view that an import ban was the only measure which could protect public health." Id. , para. 27. 231

Id. In its submissions, Thailand also argued that, despite the import ban on foreign cigarettes, "foreign cigarette manufacturers had advertised on Thai television, in mass circulation newspapers and on billboards. Indirect advertising had also taken place and the logos of cigarette manufacturers had appeared on clothing and many other non-tobacco products." Id ., para. 21. 232

Jeffrey L. Dunoff, Reconciling International Trade with Preservation of the Global Commons: Can We Proposer and Protect?, Washington and Lee Law Review, vol. 49, 1992, 1407, 1449 (noting that "the Panel did not consider the relative effectiveness of the import ban as opposed to labelling and advertising regulations."). Lack of inquiry into the effectiveness of alternative, less trade-restrictive measures appears to be a feature of G A T T panel analysis because "no G A T T panel has required that the proposed alternative measure be as effective as the measure actually employed." Dunoff(note 222), 1063. 233 "Thailand contended that the prohibition on imports of cigarettes was justified by the objective of public health policy which it was pursuing, namely to reduce the consumption of tobacco which was harmful to health. . . . smoking lowered the standard of living, increased sickness and thereby led to billions of dollars being spent every year on medical costs, which reduced real income and prevented an efficient use being made of resources, human and natural." Thai Cigarette Case (note 36), para. 21.

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to the tobacco trade but a disaster to public health. In short, a balance between public health sovereignty and foreign trade interests did not exist. Under a rule of reason approach, the outcome in the Thai cigarette case might have been different and more beneficial to public health. Given that Thailand easily established the scientific justification for tobacco control measures, the question then becomes whether the import ban constitutes an unreasonable restraint on international trade in the circumstances of the case. A powerful argument could be made that such an import ban imposed by a developing country vulnerable to the economic power of multinational tobacco companies selling a dangerous product is a reasonable restraint on international trade from a public health perspective.234 The history of developing countries in Latin America and Asia experiencing worse smoking problems after market penetration by Western tobacco companies solidifies the reasonableness of the import ban as a SPS measure. Unlike the formalistic and abstract approach of the GATT panel in the Thai Cigarette Case, the rule of reason approach is sensitive to context; and this sensitivity gives public health policy more options and flexibility in establishing SPS measures. The rule of reason approach restores equilibrium between public health sovereignty and international trade interests. A possible concern about the rule of reason approach to the necessary requirement in the SPS Agreement relates to the case-by-case nature of the approach. WTO panels will be in the position of fashioning a 'common law* of necessity in SPS cases.235 In fashioning this common law of necessity, WTO panels will have to develop guidelines in operating the rule of reason approach. Clearly one of the items WTO panels would have to consider is the likely public health effects of alternative and less traderestrictive measures. The GATT panel in the Thai Cigarette Case never took such effects into consideration. If this had been a consideration in the Thai Cigarette Case, then the result would have been different given the overwhelming evidence from other countries that the less trade-restrictive measures suggested by the GATT panel would not have protected public health in Thailand. In addition, WTO panels should include in any rule of reason analysis consideration of the dangerousness of the product in question. The more inherently dangerous a product, such as tobacco, the WTO panel should place less emphasis on reducing trade restrictions and more emphasis on public health protection. The facts of the Thai cigarette case and the dangerous nature of tobacco consumption may make the rule of reason approach look very attractive, but WTO panels 234 235

See Thaveechaiyagarn

(note 202), 384 - 385.

Atik argues that "[a]ssuming a flow of dispute resolution decisions under the W T O and N A F T A , there may come to be a 'common law' of scientific determinations." Atik (note 111), 755. The same point applies to the interpretation of the necessary requirement in the SPS Agreement.

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may confront harder cases. There may be situations where the health risks of a product might be very controversial and where the health ramifications of less trade-restrictive measures are unclear. How does the rule of reason approach work in these harder SPS cases? Should the balance be struck in favor of public health sovereignty by deferring to the State that enacted the measure or in favor of international trade by requiring a less trade-restrictive measure? In short, it may be difficult in some cases to determine whether a scientifically-justified SPS measure imposes an unreasonable burden on international trade in the particular circumstances because there are few clear parameters guiding such a decision. Perhaps some insight can be gained by looking to the EC law principle of proportionality. Under Article 36 of the EC Treaty, EC member States can restrict the freedom of movement of goods in order to protect, among other things, public health.236 The European Court of Justice (ECJ) reviews trade-restricting public health measures to evaluate whether they have a disproportionate impact on intra-EC trade. While this sounds like a reasonableness standard, the proportionality principle in EC law is actually closer to the traditional GATT interpretation of 'necessary*. Under the proportionality principle, "a measure may not restrict trade between Member States more than is necessary to achieve its legitimate object."237 The ECJ has ruled that "[n]ational rules or practices do not fall within the exception specified in Article 36 if the health and life of humans can [be] as effectively protected by measures which do not restrict intra-Community trade so much."238 This formulation reminds one of the least trade-restrictive interpretation of GATT's necessary requirement. If emphasis is placed on the concept 'effectively protected' in the proportionality principle, then perhaps room for consideration of context, as suggested by the rule of reason approach, is possible. But splitting hairs in EC law interpretation probably will not get us very far given the peculiar nature of the EC project of building a single market, which is not an objective of the WTO. The ECJ historically has reviewed all Article 36 claims very strictly in terms of their impact on intra-EC trade. 239 The same strictness may not be the proper course within the WTO, as suggested by the Thai Cigarette Case. One way to establish a WTO rule of reason approach is to develop a presumption that a scientific justification for a SPS measure makes the trade-restrictive aspects of 236 EÇ Treaty, in: European Union: Selected Instruments Taken from the Treaties, vol. 1, 1995, 91, Art. 36. 237

Peter Oliver , Free Movement of Goods in the European Community under Articles 30 to 36 of the Rome Treaty, 3rd. ed. 1996, 185. 238 239

Case 104/75, Adriaan dePeijper , 1976 ECR 613, 636.

Paul Craig/Grainne de Burca , EC Law: Text, Cases, & Materials, 1995, 605. See also Barcelô (note 144), 771 - 111 (describing rigorous ECJ cost-benefit balancing test in proportionality principle).

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such a measure reasonable and thus necessary in terms of GATT. The presumption could be overcome by the complaining party demonstrating that the burden of the scientifically-based SPS measure on international trade is unreasonable. This burden of proof might be satisfied by establishing that the SPS measure in question does not address any real health threat while seriously disrupting international trade flows. The costs to international trade would have to grossly outweigh speculative health benefits in the enacting State. In essence, the complaining State would have to prove that (1) the SPS measure bears no rational relationship to the health objective despite having a scientific basis, and (2) the measure seriously disrupts international trade. Rather than being a nearly impossible standard to satisfy, the 'necessary* requirement would be a less stringent standard of review. 240 The trade-related disciplines of 'no unjustified discrimination* and 'no disguised restriction* on international trade still remain to keep SPS measures in conformity with fundamental GATT principles. 241 Does the Beef Hormones Case offer any support for the development of a rule of reason approach to the necessary requirement in the SPS Agreement? The incorporation of the traditional GATT interpretation of 'necessary' into Articles 2.2 and 5.6 of the SPS Agreement poses an obstacle to the development of a rule of reason approach in SPS Agreement cases. Because neither the panel nor the Appellate Body addressed Articles 2.2 or 5.6 substantively, the Beef Hormones Case offers no direct indication that the WTO is inclined to move away from the traditional GATT interpretation of necessary towards a rule of reason approach. The Appellate Body*s interpretations of risk assessment do, however, bring the controversy about the necessary requirement alive. As discussed earlier, the Appellate Body held that a member State does not have to establish any minimum magnitude of risk in conducting a risk assessment.242 Thus, a SPS measure can be legitimate when supported by a very small risk as long as there is "a rational relationship between the measure and the risk assessment."243 Interpreting the SPS Agreement not to require any threshold level of risk be established raises the question how to prevent member States from seriously disrupting international trade through SPS measures protecting against low-probability risks. The 'necessary' and 'not more trade-restrictive than required* standards in Articles 2.2 and 5.6 respectively stand as potential disciplines against measures significantly restricting international trade to protect against lowprobability risks. While the facts of the Thai Cigarette Case (high-probability risk from importation of an inherently dangerous product into a developing country) 240

As Schoenbaum argues, the rule of reason approach "will effectively lower the threshold required to satisfy the exception in Article XX(b)." Schoenbaum (note 7), 277. 241

Id. ("The lower threshold is appropriate because of the possibility of applying the chapeau [of Article XX]."). 242

Hormones Appellate Report (note 13), para. 186.

243

Idpara.

193.

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support a rule of reason approach, the Beef Hormones Case suggests that the traditional necessary discipline is more attractive in cases involving low-probability risks from importation of products not inherently dangerous. Assuming that the EC's next risk assessment establishes a very low-probability risk from hormone-treated meat, the EC will have satisfied the science-based disciplines of the SPS Agreement under the Hormones Appellate Report. The question would then be whether some less trade-restrictive measure than an import ban would reasonably be available to the EC to achieve its appropriate level of health protection. Responding to United States and Canadian arguments that the panel erred in not finding the EC in violation of Article 5.6, the EC argued that only a total import ban would achieve the objective of ensuring "that consumers are not exposed to any residues of hormones used for growth promotion purposes."244 Given the lengths that the Appellate Body went to in its interpretations of Articles 3 and 5 of the SPS Agreement to emphasize the public health sovereignty of member States, it seems questionable that the WTO would apply Articles 2.2 and 5.6 as rigorously as GATT and WTO panels have applied the necessary requirement of Article XX(b). Thus, the Hormones Appellate Report could be interpreted as indirectly setting the stage for a more lenient approach to the necessary requirement in SPS cases.245 This leniency will not, however, develop necessarily into a rule of reason approach. What is more likely is the development of a standard that falls somewhere in between the rule of reason approach and the traditional, strict interpretation of necessary in Article XX(b). Such a standard would probably have to involve WTO panels paying close attention to the less trade-restrictive alternative measures allegedly available and evaluating them for their technical and economic feasibility, their potential to achieve the appropriate level of health protection, and their trade-restrictiveness. Panel deliberations of alternative measures under Articles 2.2 and 5.6 are, thus, likely to be more detailed and comprehensive than GATT panel considerations of possible less trade-restrictive alternatives under Article XX(b). The Appellate Body suggested as much in refusing to address Article 5.6 because it argued that "it cannot be assumed that all findings of fact necessary to proceed to a determination of consistency or inconsistency of the EC measures with the requirements of Article 5.6 have been made by the Panel, which Article also provides that 'technical and economic feasibility' should be taken into account."246 In sum, the likely impact of the Beef Hormones Case on the 'necessary' trade discipline is that WTO panels will begin to demonstrate greater sensitivity to arguments 244

Id., para. 83.

245

This analysis again points to the Appellate Body distancing the SPS Agreement from Article XX(b) of G A T T . What in effect may have happened is that the Appellate Body has undertaken a radical re-interpretation of Article XX(b) through the SPS Agreement. 246

Hormones Appellate Report (note 13), para. 251.

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and counterarguments about possible less trade-restrictive alterative measures. WTO panels cannot adopt a rule of reason approach given the express language of Articles 2.2 and 5.6 and the prior Article XX(b) interpretations, but the Appellate Body's clear recognition of public health sovereignty in its interpretations of Articles 3 and 5 suggests that WTO panels will not repeat the approach taken to alternative measures in the Thai Cigarette Case. Just as the Appellate Body steered a middle course between deference and de novo review in setting the appropriate standard of review for scientific evidence, the Appellate Body appears to have pointed to, if not actually blazed, a via media between the deferential rule of reason approach and the very strict least trade-restrictive alternative approach under Article XX(b). Such a via media might be, in the Appellate Body's words, "essential for the maintenance of the delicate and carefully negotiated balance in the SPS Agreement between the shared, but sometimes competing, interests of promoting international trade and of protecting the life and health of human beings."247

V. Paradigm Lost? The Future of the Trade-Health Linkage The global public health crises of emerging infectious diseases and the tobacco pandemic will keep the trade-health linkage front and center in international health law and international trade law. Given the central role of the science paradigm in both of these areas of international law, the future of the trade-health linkage depends greatly on how the paradigm operates. In this Part V, I explore the future of the science paradigm in international health law and international trade law. 1. International Health Law a) Infectious Diseases Since 1951, the IHR have served as the only set of international legal rules directly concerned with the prevention of the spread of infectious diseases.248 As elaborated earlier, the IHR embody the science paradigm; but the member States of WHO have rendered the IHR ineffective by (1) not keeping them relevant to the changing nature of the infectious disease threat, and (2) routinely violating them. The WHO is currently preparing a revision of the IHR to make them more relevant to the era of EIDs, but the proposed principles guiding the revision have left commentators 247 248

Id. , para. 177 (describing requirements of Articles 5.1 and 2.2).

World Health Organization, Division of Emerging and Other Communicable Diseases Surveillance and Control, Emerging and Other Communicable Diseases Strategic Plan 1996 2000,1996, W H O / E M C / 9 6 . 1 , 1 0 (the I H R constitute the "only international health agreement on communicable diseases that is binding on [ W H O ] Member States.").

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unimpressed.249 A particular weakness of the IHR revision principles is no apparent desire to improve compliance with the Regulations. While the science paradigm will get an overhaul in the move from reporting just three diseases to reporting disease syndromes,250 WHO has not indicated publicly that it will attempt to improve compliance with reporting duties through monitoring and enforcement. 251 Nor has it publicly confronted the problem of how to deal with excessive measures taken by WHO member States in violation of the IHR. 252 All of which suggests the revised IHR may create an improved science paradigm that again is lost in the more irrational world of international politics. The WHO might fruitfully explore how to utilize the WTO and the SPS Agreement to shore up the revised IHR. Historically, excessive measures taken by WHO member States seriously affected international trade.253 The maximum measures provided in the IHR are based on scientific principles, which suggests that excessive measures are suspect scientifically. These excessive measures could be challenged under the SPS Agreement as lacking a scientific justification. The IHR and WHO statements on the excessive measures in question could be powerful ammunition under the SPS Agreement in demonstrating that the measures lacked a scientific basis. The WHO does not necessarily need to build into the revised IHR an entire enforcement regime, but it could build the necessary bridges that would allow excessive measures to be challenged successfully under the SPS Agreement. In short, the revision of the IHR has an opportunity to link trade and health synergistically in pursuit of the objective of the maximum protection against the international spread of disease with minimum interference with world trade. The international health law and international trade law regimes would, thus, blend together in an overarching trade-health system. Such a coordinated approach could help health and trade experts secure a 249

See Fidler (note 22), 851 - 863; David P. Fidler , Mission Impossible? Emerging Infectious Diseases and International Law, Temple International & Comparative Law Journal, vol. 10, 1996, 493; and Taylor (note 136), 1346 - 1360. But see Bruce JayPlotkin , Mission Possible: The Future of the International Health Regulations, Temple International & Comparative Law Journal, vol. 10, 1996, 503. 250

The Revision of the International Health Regulations (note 114), 234 ("The current role and function of the I H R should be revised and expanded, particularly the practice of immediate reporting of only 3 specific diseases which should be replaced by immediate reporting to W H O of defined syndromes representing disease occurrence of international importance."). 251 Taylor (note 136), 1352 ("It is highly doubtful whether the revisions suggested by W H O ' s expert committee will adequately address the problems of noncompliance ..."). 252

Fidler (note 22), 858 (discussing weakness in W H O plans to educate member States better about excessive measures). 253

David P. Fidler/David L Heymann/Stephen M. Ostroff/Terry P. O'Brien , Law and Emerg ing and Re-Emerging Infectious Diseases: Challenges for International, National, and State Law, The International Lawyer, vol. 31,1997, 773, 778 (noting huge economic losses suffered by Peru and India from W H O member States applying excessive measures).

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more appropriate balance in the trade-health linkage and avoid having the linkage degenerate into trade versus health. b) Framework Convention on International Tobacco Control A second important item on the horizon of international health law is the development of the proposed framework convention on international tobacco control. The substance of the actual framework convention and the specific issues that might be addressed in the protocols to it are not yet clear because the WHO initiative on the convention is still very young. The convention will, however, have to address the global tobacco trade. Derek Yach has argued that the "growing international support for an international convention on tobacco control. . . will in all likelihood require tobacco and tobacco products to be exempted from the terms of the World Trade Organization." 254 Removing tobacco from the WTO regime will be a very controversial undertaking given the long-standing efforts by the United States and other tobacco-exporting countries to pry open new markets. Unless trade in tobacco is directly confronted, protocols on labeling, advertising, or educational campaigns will be vulnerable to the rapacity of multinational tobacco companies in the same way that similar domestic legislation in developing countries has been powerless to stop the growth of tobacco consumption. But no one should have any doubts about the difficulty of including trade regulations in the proposed tobacco framework/protocol strategy because of the historical behavior of the United States and multinational tobacco companies.255 The recent proposed U.S. domestic tobacco litigation settlement256 has fortunately caused people to re-examine U.S. tobacco export efforts. In July 1997, legislation was introduced in both the U.S. House of Representatives and Senate proposing to make American tobacco exports and American tobacco advertising overseas subject to the

254 Derek Yach> Progress in Achieving International Tobacco Control: Output of the 48 th World Health Assembly, Geneva, May 1995, Tobacco Control, vol. 4, 1995, 278, 278. 255 An ironic story illustrates in a small way the uphill fight against global tobacco consumption. Yach reported that at the World Health Assembly meeting in 1995 at which delegates supported global tobacco control efforts "[t]here was an almost continuous presence of tobacco smoke at gathering points outside the main meeting halls of the World Health Assembly. Ashtrays sponsored by tobacco companies were prominently displayed and used even by Ministers of Health from a wide variety of countries. N o attempt was made by W H O officials to try to implement a ban on smoking within meeting areas." Id. 256

U.S. Tobacco Settlement Proposal, available at .

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restrictions on labeling and advertising in effect in the United States.257 The Senate version of the legislation also would prevent the United States Trade Representative "from undermining another country's tobacco restrictions if those restrictions are applied to both foreign and domestic products in the same manner."258 The House of Representatives' bill would prohibit federal funds from being used by the U.S. government to seek to remove or reduce foreign countries' restrictions on tobacco products or to promote tobacco exports.259 In introducing the Senate bill, Senator Lautenberg Starkly characterized past U.S. trade policy on tobacco: Mr. President, the success tobacco companies have had in selling death overseas is not solely due to their own efforts. In the past, the U.S. Government assisted U.S. tobacco companies in hooking foreigners by using trade policy to dismantle foreign tobacco regulations, such as advertising bans, in several key markets. While most of this assistance occurred in the 1980s, its effects are felt today. Japan, South Korea, Thailand, and Taiwan were on the other side of this dispute with our Government over their antitobacco laws. They lost, their citizens lost, and the U.S. tobacco companies won. Smoking in these countries is higher as a result of past action by the U.S. Trade Representative. 260

The strength of such anti-tobacco sentiments in Congress was revealed in November 1997 when Congress passed and the President signed an appropriations statute that prohibits the use of any of the appropriated funds "to promote the sale or export of tobacco or tobacco products, or to seek the reduction or removal by any foreign country of restrictions on the marketing of tobacco or tobacco products, except for restrictions which are not applied to all tobacco or tobacco products of the same type." 261 While this provision represents the first time "Congress has restricted employees of the government from contesting health regulations designed to reduce 257 See U.S. House of Representatives bill H.R. 2135, "The International Tobacco Responsibility Act of 1997"; and U.S. Senate bill S. 1060, "The Worldwide Tobacco Disclosure Act of 1997." 258

Congressional Record, vol. 143, S7950-4, S7959 (statement of Senator Lautenberg). Senator Lautenberg's emphasis on the non-discriminatory application of domestic tobacco regulations fits well with the rule of reason approach to the necessary requirement outlined earlier in the paper. Senator Lautenberg's proposed legislation does not require that other countries adopt the least trade-restrictive tobacco regulations. Senator Lautenberg states that his proposed legislation conforms to the Thai cigarette ruling because the G A T T panel "held that member nations can use various policies to protect health as long as they are applied evenly to domestic and foreign products". Id. The G A T T panel's ruling in the Thai Cigarette Case did not, however, turn on a violation of a non-discrimination principle but on the 'necessary' requirement of Article XX(b). 259

U.S. House of Representatives bill H.R. 2135, § 5.

260

Congressional Record (note 258).

261

An Act Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies for the Fiscal Year Ending September 30, 1998 and For Other Purposes, U.S. Public Law 105 -119, § 618. See Congressional Record, vol. 143, H8009 H8013 for statements in the House of Representatives on this provision.

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smoking in other countries," 262 the provision does not actually bar the United States from attacking foreign tobacco control laws resembling those attacked in Thailand because they do not treat domestic and foreign tobacco and tobacco products equally, as required by the statute. While, legally, challenges to foreign tobacco laws that violate the principle of national treatment are still possible, politically such challenges will be very difficult to mount with such laws on the books. The anti-tobacco activity in the United States indicates that the framework/protocol strategy on international tobacco regulation will have to confront the global tobacco trade or the situation will continue to be one where trade prevails over public health as has already happened throughout the developing world. In many respects, the framework/protocol strategy on international tobacco regulation has to create a more powerful science paradigm for tobacco-related diseases in international health law and a deeper commitment to the paradigm for global public health progress to be made. The nagging fear is, however, that the creation of such a paradigm now the global tobacco pandemic is well under way may well be lost in the smoke increasingly inhaled and exhaled in the global village. Potential synergy exists between the proposed tobacco framework/protocol strategy and international trade law. As the international consensus against tobacco consumption builds through the framework/protocol effort, WTO panels might give more weight to public health concerns in tobacco trade disputes (and possibly other SPS disputes) than the GATT panel in the Thai Cigarette Case. As with the IHR, the WHO should be building bridges with the WTO regarding tobacco in a comprehensive effort to link trade and health. 2. International Trade Law The future of the trade-health linkage in international trade law depends upon the direction of a number of developments. The most fundamental area will be the interpretations of the SPS Agreement rendered by WTO panels because these decisions will form the 'common law* of the trade-health linkage. How bridges are built between international health law and international trade law, as suggested above, will determine whether WTO panel interpretations move away from the public health myopia witnessed in the Thai Cigarette Case. In addition, great questions remain about (1) how the science paradigm is affected by its politicization, (2) how WTO panels will deal with making scientific decisions under the politicized science paradigm, and (3) how WTO panels interpret the 'necessary' trade discipline in the SPS Agreement. 262 Congress Bars Taxpayer Support for Big Tobacco in Appropriations Measure, Press Release from Lloyd Doggett (Democrat-Texas), 14 November 1997, available at < h t t p : / / w w w . house.gov/ doggett/pr_l 11497.htm > .

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The great danger in the international trade law area is that the science paradigm becomes, or becomes perceived to be, a facade for greedy trade interests rather than the traditional way of balancing trade and health objectives. If the development of international standards and the nature of national scientific research become, or become perceived to be, dominated by powerful trade interests, then the science paradigm will be seen as a sell-out to economics over health. If WTO panels continue to rely on the traditional interpretation of 'necessary', the 'common law' of the tradehealth linkage may be rejected by many as anti-health; and the science paradigm will be perceived to be subordinate to the trade-related disciplines in the trade-health linkage.

Conclusion The globalization of public health forces States to cooperate to deal with global health threats. The problem of emerging infectious diseases and the global tobacco pandemic pose serious public health problems all over the planet, but especially in the developing world. The processes of globalization, particularly international trade, act as stimulants for these global health threats. A key aspect of the need for international cooperation in facing the globalization of public health is finding ways to balance public health sovereignty and international trade interests. Striking the tradehealth balance is an old challenge that dates back at least to the mid-nineteenth century, but its age does not dilute the relevance that it has as the new millennium approaches. Since the late nineteenth century, science has been at the center of the balancing efforts in international health law. In international trade law, science has more recently been given a similar role. In both areas of international law, the science paradigm dominates the trade-health balancing act. Science has become the standard against which national public health measures are evaluated. Science sets the standards that form the basis for international regulatory harmonization. Science becomes institutionalized in international organizations as they attempt to balance public health sovereignty and international trade. The science paradigm does not, however, live up to science myths. The paradigm is subject to the machinations of States in international politics, which erodes our vision of the paradigm as an objective and universal source of wisdom perfectly balancing health and trade in international relations. The concerns about the science paradigm are serious and have to be faced forthrightly, but the concerns do not necessarily mean that the science paradigm is without merit in the continuing trade-health relationship. The fact that science has for over 100 years been at the center of the trade-health linkage suggests it has both deep appeal and practical value. The science paradigm promises to remain the center of gravity in the trade-health linkage.

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Science is not, of course, the only feature of the trade-health linkage. As illustrated by the analysis of the trade-related disciplines of GATT and the SPS Agreement, nondiscriminatory application of scientifically-based SPS measures remains mandatory in international trade law. The non-discrimination principles dovetail nicely with the science paradigm because discriminatory application of SPS measures often makes little public health sense when the risks posed in the two situations are the same. More problematic is the interpretation of 'necessary* because upon the interpretation of this term hinges the nature of the balance between trade and health in international trade law. The traditional GATT interpretation, found in the Thai Cigarette Case, subordinates public health to international trade, which produces not balance but disequilibrium. What has happened to tobacco consumption in Thailand and other developing countries proves that trade interests were allowed to run roughshod over public health objectives. Re-establishing equilibrium requires emphasis on the science paradigm and the maintenance of its purpose. In the eras of the globalization of public health witnessed since the mid-nineteenth century, trade and health have been and currently are in tension. It is an unavoidable tension because of the structure of the international system and the nature of human diseases. As international trade continues to increase, and as global health crises develop, the tension will become acute. The political pressures on the science paradigm are becoming intense as the trade and health stakes are raised by the globalization of markets and of public health. In such an environment, matters can quickly deteriorate as trade and health factions square off for battle. The outcome of the battle is, however, known: at the end of the day trade and health will still be linked, but much damage may be done to the spirit and stamina needed in the delicate balancing of trade and health interests. Diseases spread through trade by land and by sea have shaped the course of human history. Emerging infectious diseases and the global tobacco pandemic are merely the latest chapters in this ancient saga. The horrible human death and suffering on the horizon because of these two great global health crises should be sobering motivation to maintain perspective and to sharpen our determination to find sustainable and creative ways to coordinate trade and health in all areas of international law.

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Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems By Rainer Hofmann

Introduction Since the demise of the seemingly so firmly established economic, legal, political and social order in the formerly socialist countries of Europe, the process of European integration has — again — gained considerable momentum. This is particularly well reflected in the fact that the Council of Europe, in which membership had been restricted for almost 40 years to the 'Western* part of the continent, has now become, within a very short period of time, a truly pan-European international organization. Another development of probably even greater relevance constitutes the envisaged enlargement of the European Union, although it seems quite inconceivable — at least as regards the foreseeable future — that this supranational organization will have a geographic extension as large as the Council of Europe. 1. Respect of the Constitutional Heritage of Europe in the Field of Fundamental Rights as a Precondition for European Integration There seems to be unanimous acceptance of the view that this process of European integration presupposes, inter alia, the existence of a common legal basis shared by all participants. This precondition found its very clear expression already in the 1949 Statute of the Council of Europe, in particular in its Article 3 that limits membership to States which respect the principles of the rule of law and of the enjoyment of human rights and freedoms; their maintenance and further realization are, moreover, identified as one of the Council's principal aims in Article 1(b) of its Statute. The essential importance of human rights for membership in the Council of Europe is well reflected in the relatively recent, but nonetheless already firmly established, practice to make the admission of new Member States contingent upon their preparedness to sign and to ratify — within a reasonable period of time — the 1950 European Convention on Human Rights (ECHR) and the Additional Protocols, and upon a positive assessment of the existing human rights situation in the respective State based upon pertinent reports authored by independent experts, usually mem-

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bers of the European Commission or Court of Human Rights. Thus, human rights and fundamental freedoms as enshrined in these instruments and as applied and interpreted by the competent Strasbourg organs may rightly be considered as constituting the public order of Europe. In this context, it must be stressed that the interpretation given to the substantive human rights provisions — and, in particular, to the applicable restrictive clauses such as, e.g., "necessary in a democratic society" — by these organs seems to be consistently, albeit not always explicitly, based upon a previous attempt to identify the pertinent standard common to all, or at least a large majority of, the Member States. This essential relevance of a common standard of human rights protection as a cornerstone of European integration and the requirement of a State's adherence to those standards as a precondition of its participation in that process is now also established as regards the European Union. Transforming the pertinent jurisprudence of the European Court of Justice that had been developed over the years into positive 'primary' law, Article F (2) of the Maastricht Treaty on European Union (TEU) now unequivocally states the Union's respect for fundamental rights, as guaranteed by the ECHR and, as they result from the constitutional traditions common to the Member States, as general principles of Community law. Moreover, Article J.l (2) TEU declares the respect for human and fundamental rights to constitute one of the major aims of the Union's Common Foreign and Security Policy. As a consequence thereof, the human rights record of a given State necessarily constitutes an important factor to be taken into account in the framework of the relationship between such State and the Union and Communities respectively, in particular as regards applications for accession to the Union. Moreover, once the 1997 Treaty of Amsterdam will have entered into force, the voting — and some other — rights of Member States of the Union that do not respect those fundamental principles such as the safeguarding of human rights may be suspended upon a pertinent decision by the Council of Ministers. Thus, there can be no doubt that, from a legal point of view, the further European integration will have to be based upon a common standard in the field of human rights and fundamental freedoms. This is also a political conditio sine qua non: It is simply inconceivable that the "ever closer union" envisaged in Article A TEU would be accepted and supported by the peoples of Europe were it not based upon such common standards. Consequently, the identification of the elements that constitute those common standards or, to put it in a different way, the constitutional heritage of Europe, is of primordial importance for the process of European integration to be successful.

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2. The Question of Individual and/or Group Holdership of Fundamental Rights as Part of the Constitutional Heritage of Europe For many years, global and European discussions on human or fundamental rights were characterized by a rather sharp antagonism between the 'West' and the 'East'; somewhat simplifying the issue, one might describe it as follows: Whereas the former — at least predominantly — adhered to the view that such rights must be protected as individual rights against possible interferences by State authorities, the latter emphasized not only the importance of social, economic, and cultural rights as compared to the 'traditional' civil and political rights, but also stressed the 'collective* character of (most) fundamental rights, thus denying or at least reducing the traditional role of fundamental rights, i.e. to guarantee and to protect life, liberty and personal integrity of the individual. Furthermore, the 'East* also strongly supported the emergence of the so-called 'third and fourth generation* rights, including rights to peace, to development, and to self-determination as rights of peoples or groups. Subsequent to the end of the Cold War period, i.e. the above-mentioned demise of socialism in Europe, this antagonism as regards the 'hierarchy' between civil and political rights, on the one hand, and social, economic, and cultural rights, on the other hand, seems to have been overcome: The accession of the formerly socialist European States to the Council of Europe and, thus, their adherence to the — in principle — 'individualistic' perception of fundamental rights often coincided with the enactment of new constitutions generally comprising bills of (the traditional civil and political) fundamental rights of the individual and usually perceiving social, economic, and cultural 'rights' as directives for State policies rather than as justiciable and, thus, genuine 'rights' of the individual. This new approach is, as a rule, also reflected in the jurisprudence of the newly established Constitutional Courts; this assessment seems to hold true also with regard to those States where legislative endeavors to enact completely new, 'Western' constitutions with a 'modern' bill of rights of the individual have — at least so far — not yielded any complete success. On the other hand, the demise of socialism in Europe also seems to have been the development which resulted in an enhanced discussion as to the existence of (certain) group rights: rights of persons belonging to national minorities (this notion comprising cultural, ethnic, linguistic, and religious minorities) versus rights of national minorities. It is indeed interesting to note that the — most often quite successful — struggle of such minorities for the recognition of their 'rights' in the 'old' ('Western') Member States of the Council of Europe, such as, e.g., Austria, Belgium, Denmark, Finland, Germany, Italy, Spain, Switzerland, and, to a much lesser extent, in France and the United Kingdom, had not resulted in such a discussion on any larger scale. According to a widely accepted view, it was the demise of socialism that opened the gate for the renaissance of 'nationalism' and the concept of the nation-state in

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'Eastern' Europe which, in turn, seems to have triggered the re-emergence of minority (rights) issues in this part of Europe. These developments led not only to partly peaceful, partly belligerent dissolutions of 'old' and the creation of 'new' States, but also brought the issue of the legal and political situation of (persons belonging to) such minorities and their 'rights' under international and domestic law into the focus of the international community and, in particular, the European community. Almost inevitably, this process also implied the emergence of the above-mentioned discussion as to who is to be considered as the holder and, thus, also as to the character of such rights: the persons belonging to such a minority as individuals or the minority as a group, i.e. individual rights or group rights. It is an undisputed fact that the existence of unsolved minority issues or problems constitutes a most serious risk for peace and stability in many areas of Europe and, thus, a considerable threat to the process of European integration. Therefore, it is necessary to identify not only those rights of (persons belonging to) national minorities that may be considered as forming part of the common constitutional heritage of Europe but also to seek to answer the above-mentioned question as to the character of such rights since, for obvious reasons, such an answer — if it can be given — might be rightly considered as also forming part of the constitutional heritage of Europe. To this end, it seems appropriate to examine this issue as it is addressed, first, in a number of domestic European legal systems, and, second, in public international law or, more precisely, in regional, i.e. European, public international law. Finally, two last introductory remarks seem to be called for: The first concerns the notion or concept of the so-called 'collective exercise' of (individual) fundamental rights; and the second the question as to whether not only natural persons (individuals), but also legal persons of private and/or public law may be holders of fundamental rights. The first notion or concept, familiar to some domestic European legal systems, reflects the — quite convincing — assessment that some individual fundamental rights such as, in particular, the right of the worker to organize with its corollaries, namely the rights to engage in collective bargaining and to resort to collective measures such as strikes, may only be effectively implemented if 'collectively' exercised. It must be emphasized, however, that the 'collective' exercise of a fundamental right held by the persons concerned as individuals does not alter the holdership and, thus, the legal character of such a right: It remains a fundamental right of the individual and does not become a group right. However, this concept might serve as the legal tool to bridge the gap between the concepts of individual rights and group rights also as regards the issue of minority rights. The second concept, i.e. the acceptance of legal persons as holders of (some) fundamental rights such as, e.g. the right to property, is to be found in some national legal

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systems. It has been rightly observed that this applies to those countries that are inspired by "d'idées plus organicistes telles qu'elles ont été defendues dans les pays germaniques et par le catholicisme social,"1 Le. in particular Austria, Germany, Greece, Italy, Portugal, Spain, Switzerland, and, more recently, Estonia; in contrast thereto, a very large number — if not the majority — of European States seem to have adopted the Trench model' according to which holdership of individual rights is restricted to individuals. Notwithstanding the conceptual interest of this question, it must be emphasized that it has little, if any, relevance for the topic of this paper since the concept of group rights does not (necessarily) perceive such a 'group' as a legal person.

I. Overview of National Legal Systems Since the aim of this article consists of the attempt to contribute to the identification of the (common) constitutional heritage of Europe, it seems appropriate to start with a brief overview of the historical developments concerning the concept of fundamental rights in Europe; bearing in mind the topic of this paper, this overview will focus on the question of the holdership of such rights. This (historical) overview will be followed by an analysis of the existing national legal systems as to their position with regard to the question of holdership of human rights in general and minority rights in particular. 1. The Historical Background The historical development of fundamental rights, first as intellectual concepts and later as part of positive law, may be subdivided into three major phases. The first one, dating back to ancient Greece and Rome2 and covering the philosophical and theological developments of early Christianity 3 and the Middle Ages,4 and ending in 1

See Catherine Grewe/ Hélène Ruiz Fahri, Droits constitutionnels européens, 1995, 172.

2

Within the framework of this paper, it is impossible to enter into the debate as to whether the concept of human liberty as developed by Plato and, in particular, Aristotle did indeed embrace the concept of liberty of men 'against' the polis or State; to the contrary, it seems correct to state that liberty existed 4 within' the polis or State which means that one cannot speak of fundamental rights as rights held by the individual and opposable to the State. 3

The distinction between the civitas terrena and the civitas caelestis as developed by Augustinus in his De civitate dei did not allow for, it is suggested, the conceptualization of fundamental rights in the modern sense, i.e. rights opposable to the State. 4

Of particular relevance in this context was, of course, Thomas Aquinus according to whom the sovereign was bound by divine law and, thus, was not allowed to violate the dignitas humana embracing life, liberty and property of men; it is important to stress, however, that these "rights" were not considered as being held by all individuals and the pursuit of individual goals

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the aftermath of the Reformation, 5 is characterized by the emergence of limitations of the royal power and privileges, rights granted to the estates (nobility, clergy, "freemen") and, at the most, singular rights6; the absence of fundamental rights of the individual, both as a concept and in law, is hardly surprising since, in a period where a person was seen as a member of a group, the idea of fundamental rights held by the individual could not be conceived. The second phase could be described as being characterized by the laying of the intellectual foundations for the recognition of the concept of liberty and of natural rights of men,7 an intellectual process which found its textual repercussions in some of the English constitutional documents;8 thus, this phase, the end of which might be dated to the proclamationof the 1776 Virginia Bill of Rights, saw the emergence of the concept of fundamental rights of the individual as a result of the 'discovery' of man as an individual member of society. The third phase started with the proclamation of (modern) bills of fundamental rights in the United States9 and the 1789 Déclaration des droits de l'homme et du not considered as their raison d'être. 5

Particular importance, in this context, is to be attributed to Calvin's thoughts and their influence upon later philosophers such as Hooker , AIthusius, Coke , Grotius , Milton , and Locke , and to the Monarchomachs such as, e.g., Buchanan and du Plessis-Mournay and their concept of a contract concluded between the sovereign and the people (not the estates) that bound the sovereign not only to the ius divinum and the ius naturale but also to the leges fundamentales (lois fondamentales, fundamental laws) as conditions of that contract. 6

The foremost example of such instruments is, of course, the Magna Charta Libertatum of 1215 which had an enormous influence on similar charters in Spain, Denmark, Brabant, and elsewhere. It should be stressed, however, that — although these instruments usually included some habeas corpus and other individual rights (held, however, by certain individuals such as 'freemen' only) — they should be seen rather as pacta concluded between the sovereign and the estates than as bills of fundamental rights held by individuals. 7

Within the framework of this paper, it is impossible to describe this very complex process; among the various strands should be mentioned the emergence of the modern ius naturale — that was no longer based upon any religious foundation — as developed by continental lawyers and philosophers such as, in particular, A Ithusius, Grotius , Pufendorf and Huber , on the one hand, and their counterparts on the British Isles such as, in particular, Coke and Locke , on the other hand; although it must be admitted that Hobbes made an important contribution to this development, it seems quite doubtful whether he might be considered as a proponent for the existence of fundamental rights with a view to his Leviathan as not being bound by the 'natural rights' of men. 8

These are, in particular, the 1679 Act of Habeas Corpus, the 1688 Declaration of Rights, and the 1689 Bill of Rights; however, mention should also be made of their precursors, the 1627 Petition of Rights and the 1647 Agreements of the People. 9

In addition to the 1776 Virginia Bill of Rights must be mentioned the 1776 Constitution of Pennsylvania and the 1791 Amendmends to the (Federal) Constitution; these may be considered as the first examples of modern constitutions combining the concept of State power being

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citoyen 10 — documents which either served as models for or, at least, heavily influenced the bills of rights of the national constitutions of continental Europe, in particular in the 19th century but also, to a lesser extent, in the 20th century 11; these bills of fundamental rights of the various national constitutions then resulted in the emergence of 'national* theories of fundamental rights based upon these constitutional provisions,12 theories that are focused, with certain variations, on the individual as holder of such fundamental rights. Notwithstanding the still rather unchallenged predominance of such 'national* theories of fundamental rights, it seems that we have entered the transition period to a fourth phase that is characterized by the search for common standards as regards fundamental rights; this development is largely due to the emergence of the concept of fundamental rights as universal rights held by all individuals throughout the world after World War Π and, in Europe, to the above-mentioned necessity to found the process of European integration upon a common concept of fundamental rights as part of the constitutional heritage of Europe. In this context, in particular with a bound by a set of rules distributing competences and establishing procedures with the concept of State power being bound by the respect for fundamental rights held by all individuals.

10 In this context, it is not necessary to elaborate on the issue how much the 1789 Declaration owes — it is suggested: in contrast to the American Bills of Rights — to the philosophie des lumières , above all to Rousseau's contrat social , but also to Montesquieu , the Physiocrates , an Voltaire. 11

This paper is clearly not the proper place to re-open the — it is suggested: rather useless — dispute as to which one of these documents was of major importance for this development, a dispute that so violently opposed, in the beginning of this century, Georg Jellinek and Emile Boutmy , and which was overshadowed by clear chauvinist assumptions; nonetheless, it seems justified to recall two aspects. First, whereas the American instruments introduced justiciable rights of the individual to be enforced by the courts against State authorities, the 1789 Declaration was — in the words of Pound — of a basically "hortative character," i.e. their provisions were "exhortations addressed to the agencies of government as to how they ought to act." Second, it must be emphasized that practically all catalogues of fundamental rights introduced into national constitutions in the 19th century were, following in particular the influential model of the provisions of the 1831 Belgian Constitution, clearly inspired by the 1789 Declaration — both as regards their texts and their primarily programmatic character. Only after World War Π, starting with the enactment of the 1947 Italian Constitution and the 1949 Bonner Grundgesetz , the justiciability and enforceability of fundamental rights became a common feature of European constitutions, in most cases connected with the creation of special Constitutional Courts. Thus, it seems justified to state that it took almost 200 years for these two major concepts to be merged resulting in the current European human rights law. 12 This is particularly true with regard to the Federal Republic of Germany where jurisprudence and doctrine developed quite a sophisticated theory of fundamental rights ( DD > CC > CD). There are no prospects for cooperation and mutual reception, as the only change acceptable for all participants is a complete blocking of access. Translated back to reality, this means that a viable burden-sharing strategy first and foremost needs to break free from the conservation of inequality by the Dublin and Schengen instruments.106 Considering the geographical and demographic differences between European States, the effect of those instruments and the quest for equitable burden-sharing are simply not compatible. What has been said on the effects of the Schengen and Dublin Conventions on burden-sharing applies mutatis mutandis to bi- and multilateral readmission of protection seekers to so-called Safe Third Countries as well. This expands the scope of the problem to certain parts of Central and Eastern Europe. In this context, the ongoing discussions on the drafting of a Parallel Convention to the Dublin Convention

of one of the most developed border surveillance systems in Europe. For further on this topic see, Gregor Noll , Non-admission and return of protection seekers in Germany, International Journal of Refugee Law, vol. 9, 1997, 415. 106

It seems that only a binding instrument of international law could a) legally override the Schengen and Dublin Conventions and b) provide for the necessary stabilizing effect on the Prisoners' Dilemma of burden-sharing. The political feasibility of such an instrument is quite another matter.

2 *

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should be noted. This instrument would allow Central and Eastern European States to be integrated into the reallocation mechanism contained in the Dublin Convention. Conclusions Let us briefly recall the main conclusions that emerged in the course of this inquiry. 1. In the absence of a specific obligation for States to receive refugees, the preservation of their willingness to do so is essential for the functioning of the contemporary international refugee regime. Equitable burden-sharing is inextricably linked to the preservation of this willingness. 2. In this sense, equitable burden-sharing is a part of an obligation to create an international system in which the right to seek and enjoy protection from persecution can be fully realized. 3. Two strategies are prone to comply with this obligation. Harmonization intends to level out differences between States, which differences are significant for attracting refugees. Harmonization is part of a liberal approach, which takes account of refugees' choices. However, geographic or demographic differences are beyond influence and represent the limits of this strategy. Burden-sharing proper, i.e. the redistribution of refugees along a certain key, represents the second strategy, ultimately relying on a control paradigm. 4. While the harmonization strategy has been used to some extent by European States, they have hitherto failed to develop a viable burden-sharing mechanism. 5. The Schengen and Dublin Conventions stabilize an inequitable distribution of protection seekers between contracting States. It represents a paradox that those States have used a form of burden-sharing strategy, namely the Schengen and Dublin Conventions, for the preservation rather than the dissolution of inequality. 6. As equitable burden-sharing is systemically blocked by the Schengen and Dublin instruments, the only choice left for States perceiving themselves as overburdened is: a) to restrict benefits accorded to non-Convention refugees or b) to block access to their territory. Of course, the challenges of burden-sharing in Europe are not limited to those mentioned here. It remains to be seen whether EU Member States actually perceive the reception of protection seekers as a matter of collective action. If this turns out to be the case, States still need to establish consensus on which form burden-sharing should take. Would financial contributions be sufficient, or is there a need to share responsi-

Prisoners ' Dilemma in Fortress Europe

bility for the sociopolitical reality of refugee reception? Having answered this question, the next task would be to develop a distributive key and a mechanism preventing defection by single States. How all this should be done is a matter falling beyond the scope of this text.107

107

A study of the German attempts to redistribute Bosnian refugees between the different Länder would be a valuable contribution to the continuing debate. With large inflows of Bosnians in the South, the Ministers of the Interior of the Länder organised a rudimentary form of burden-sharing. See, e.g., Erlaß des Innenministeriums vom 11. März 1994, Az.: 4-13-BosnienHerzegowina/2 (Baden-Württemberg).

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The European Convention on Nationality By Roland Schärer

Introduction The European Convention on Nationality1 is the first comprehensive approach on the international level to codify the main principles and rules applicable to nationality. In order to understand why the Council of Europe has adopted such a Convention, I think it is useful to place it into its historical context. The Council of Europe has been dealing with nationality matters since the adoption of the 1963 Convention on the reduction of cases of multiple nationality and on military obligations in cases of multiple nationality.2 The nationality part of the 1963 Convention — which is still in force and remains untouched by the new Convention —- was exclusively aimed at fighting against multiple nationality. It provided for the automatic loss of a previous nationality in case of voluntary acquisition of a new nationality3 and imposed the obligation on States to release their citizens from their nationality if they possessed the nationality of another contracting State and were habitually resident in its territory for a certain period.4 The military part of the 1963 Convention dealt with the most serious consequence of multiple nationality: the obligation of multiple military service in different States of origin. 5 It provided that a multiple national is obliged to fulfil his military obligations in only one of these States.6 The 1963 Convention proved to be satisfactory until the end of the 1980s, even though some minor modifications were adopted in 1977/ New developments in the 1 European Convention on Nationality [hereinafter the "Convention"], opened for signature 7 November 1997, ETS 166. 2 Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, 6 May 1963, 634 U N T S 221. 3

Id., Art. 1 para. 1.

4

Id., Art. 2 para. 2.

5

Id., Art. 5 and 6.

6

Id., Art. 5 para. 1.

7

Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 24 September 1977, ETS 95; Addi-

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member States of the Council of Europe only gave rise to a few resolutions of the Committee of Ministers8 and recommendations of the Parliamentary Assembly.9 An important change in attitude with regard to the principle of fighting against multiple nationality in case of voluntary acquisition of another nationality occurred in 1992 through the adoption of the Second Protocol amending the 1963 Convention 10 : it exempted spouses of nationals and second generation migrants from loss of previous nationality in case of voluntary acquisition of the nationality of the other spouse or of the State of residence.11 On the one hand, the protocol reflects the fact that the introduction of the principle of equality between men and women with regard to the transmission of nationality to their children 12 had brought about, in nationally mixed marriages, a large number of cases of multiple nationality which were considered justified and which led, in turn, to a certain 'banalisation' of the phenomenon of multiple nationality.13 On the other hand, permitting second generation migrants and spouses of nationals to retain their nationality of origin in case of acquisition of the nationality of the host country was viewed as eliminating an important obstacle to their full integration in the host country. 14 However, a certain number of States wished to abandon the very principle of fighting against multiple nationality in case of voluntary acquisition of another nationality.15 This view coincided with the democratic changes in Central and Eastern Europe and the need of new States to set up their legislation on nationality. In some of these States, nationality questions were among major issues to be resolved.16 The Council of Europe decided, therefore, to prepare a comprehensive instrument on nationality. It should deal with all its major aspects and contain principles, rules on tional Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 24 September 1977, ETS 96. 8

See, Res. [77] 12 on the nationality of spouses of different nationalities; Res. [77] 13 on the nationality of children born in wedlock. 9

See, Ree. 564 (1969) on the acquisition by refugees of the nationality of their country of residence; Ree. 841 (1978) on second generation migrants; Ree. 1081 (1988) on problems of nationality in mixed marriages. 10

Second Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 1 November 1993, ETS 149. 11

Id. y Art. 1, para. 6.

12

Res. [77] 13; Second Protocol (note 10), Preamble.

13

Second Protocol (note 10).

"Id. 15 16

Eg. y France, Italy, the Netherlands, Switzerland.

E.g.y the Baltic States and the successor States of the former Socialist Federal Republic of Yugoslavia.

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acquisition, retention, loss and recovery of nationality, procedural rights, multiple nationality, nationality in the context of State succession, and military obligations. It should, if necessary, repeat principles and important rules on nationality contained in existing international agreements.17 The Convention was adopted by the Council of Europe Committee of Ministers in Spring 1997 and was opened for signature by States on 7 November 1997.18 It may be noted that the success of the Convention had been considerable when it was still a Draft Convention. In particular, the text of the Draft Convention had already inspired new nationality legislation in many Central and Eastern European States19 — and even in non-European States20 — and the respect of its provisions had been made a condition for the accession of a certain number of new members to the Council.21 I. Commentary on the Convention 1. Preamble In the preamble it is recognized that "in matters concerning nationality, account should be taken both of the legitimate interests of States and those of individuals." It may be interesting to note that this consideration gave rise to lengthy discussions, even strong opposition, from some States during the preparation of the Convention. On the one hand, it may be self-evident that in nationality matters — as in many 17

The most important agreements include the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, the 1948 Universal Declaration of Human Rights, the 1951 Convention relating to the Status of Refugees, the 1954 Convention relating to the Status of Stateless Persons, the 1957 Convention on the Nationality of Married Women, the 1961 Convention on the Reduction of Statelessness, the Optional Protocols to the 1961 Vienna Convention on Diplomatic Relations concerning Acquisition of Nationality and the 1963 Vienna Convention on Consular Relations, the 1964 Convention of the International Commission on Civil Status on the exchange of information concerning acquisition of nationality, the 1966 International Convention on the Elimination of All Forms of Racial Discrimination, the 1966 International Covenant on Civil and Political Rights, the 1967 European Convention on the Adoption of Children, the 1969 American Convention on Human Rights, the 1973 Convention of the International Commission on Civil Status to reduce the number of cases of statelessness, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, and the 1989 Convention on the Rights of the Child. 18

Status as of 31 December 1997: 15 signatures.

19

E.g. y the Czech Republic, Lithuania, the Former Yugoslav Republic of Macedonia, Slovakia, Slovenia and Ukraine. 20 21

E.g. y Azerbaijan, Kyrgyzstan.

E.g. y Croatia, Estonia, Latvia. Respect of the provisions of the Convention remains a condition for the accession of Byelorussia and Bosnia and Herzegovina to the Council of Europe.

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other fields — a balance has to be struck between the legitimate interests of States and the ones of individuals. On the other hand, individual interests, however legitimate they may be, had historically much less weight than the ones of States in the field of nationality. In this sense, the Convention may be a landmark in the evolution towards taking into account individual interests in a more balanced way. Many provisions bear witness to this evolution, e.g. the rules related to facilitated acquisition of nationality,22 the right to renounce a nationality,23 the procedural rights, 24 and a more open attitude towards multiple nationality.25 2. General Matters (Articles 1 and 2) Article 1 of the Convention mentions its object, i.e. the establishment of general principles and specific rules in the field of the nationality of natural persons. The Article specifies that the provisions of the Convention are not self-executing but require a transformation into national law. This is also consistent with the character of the Convention. Not only its principles but also many of its more detailed rules are so general that they require the intervention of the national legislature; e.g. Article 6, paragraph 4, according to which a State Party shall facilitate the acquisition of its nationality for certain groups of persons without specifying how the facilitation should occur. It may be noted in the same context that there is also a certain link between the non-self-executing character of the Convention and the remaining large competencies of the State in the field of nationality.26 Among the definitions under Article 2 of the Convention, I would like to mention the one which stirred up most controversies: the term of nationality. According to paragraph a of Article 2, "'nationality' means the legal bond between a person and a State and does not indicate the person's ethnic origin." This definition was necessary because in most Central and Eastern European States the term 'nationality' indicates an individual's ethnic origin, whereas the term 'citizenship' refers to the legal bond between the individual and the State. For the purpose of the Convention, the terms 'nationality' and 'citizenship' are synonymous. In the Convention, the term 'nationality' has finally been preferred because it is the one traditionally used in this respect in international instruments.27 22

Convention, Art. 6.

23

Id., Art. 8.

24

Id., Arts. 10-13.

25

Id., Arts. 14, 15.

26

Id., Art. 3.

27 See, e.g., Convention on the Nationality of Married Women, 29 January 1957,309 U N T S 65; Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April 1930, 179 LNTS 89; Convention on the Reduction of Cases of Multiple Nationality and on

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3. Competence of the State (Article 3) Under the general principles relating to nationality, the Convention first recalls in Article 3, paragraph 1, the fundamental principle of State sovereignty28 and in paragraph 2 the limitations on State sovereignty in this field. 29 These provisions are and remain so fundamental in nationality matters that they have been taken over without change from Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws.30 Most of the articles of the Convention deal with specific limitations imposed on State sovereignty in the field of nationality. They will be dealt with in the following paragraphs. There are, however, a few limitations which may result directly from this article and which might be of practical importance, especially in the context of State succession. It is on the one hand the fundamental principle, laid down by the International Court of Justice in the Nottebohm case, according to which a State is not obliged to recognize the granting of the nationality of another State to a person who has no 'genuine and effective link' with that State.31 It may be noted that there is even a tendency to extend this principle beyond the simple recognition of the nationality of another State to the obligation of a State to grant its nationality to a person having a 'genuine and effective link* with that State, or to prohibit the withdrawal of nationality from a person who retains such a 'genuine and effective link' with that State.32 On the other hand, another limitation on State sovereignty directly linked with this article consists in the principle, generally recognized in nationality matters — and connected in some way with the one of the 'genuine effective link* — that nationality shall not be granted arbitrarily, e.g. without reference to either origin (jus sanguinis ), place of birth (jus soli), place of residence or another effective link (in case of naturalisation).33

Military Obligations in Cases of Multiple Nationality (note 2). 28

Article 3, paragraph 1 states: "Each State shall determine under its own law who are its nationals." 29 Article 3, paragraph 2 states: "This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognized with regard to nationality." 30

Convention on Certain Questions Relating to the Conflict of Nationality Laws (note 27).

31

Nottebohm Case (Liecht. v. Guat.) 1955 ICJ 4.

32

See, e.g., the Convention, Art. 6, para. 3; Art. 7, para. 1(e); Art. 18, para. 2 (a).

33

See, e.g., Venice Commission, Report on the Consequences of State Succession for Nationality, Council of Europe, 1997.

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4. Principles (Articles 4 and 5) The Convention then continues by proclaiming in Article 4 that the rules on nationality shall be based on the principles that "everyone has the right to a nationality" 34 and that "statelessness shall be avoided."35 These principles are contained in Article 15 of the Universal Declaration of Human Rights,36 the 1961 Convention on the Reduction of Statelessness,37 the 1966 International Covenant on Civil and Political Rights,38 the 1969 American Convention on Human Rights39 and the 1989 Convention on the Rights of the Child.40 The first principle — that everyone has the right to a nationality — constitutes an obligation on the State to grant its nationality to a person without nationality, but does not specify which one of the States concerned (i.e. the State of origin of the parents or the State of birth of the child) is obliged to grant its nationality. The second principle — that statelessness shall be avoided — is more precise insofar as it constitutes a prohibition on a determined State taking its nationality away from one of its citizens if this would result in statelessness. The Convention goes on stating that the rules on nationality shall be based on the principle that "no one shall be arbitrarily deprived of his or her nationality."41 This principle is also contained in Article 15 of the Universal Declaration of Human Rights42 and the 1969 American Convention on Human Rights.43 Even if it is linked with the principle that statelessness must be avoided, it goes beyond this principle insofar as it prohibits the arbitrary deprivation of nationality, even in the case where a person would not become stateless as a result of such deprivation. According to the next paragraph of the Convention, "neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse."44 This provision is based on Article 1 of the 1957 Convention on the Nationality of Married Women45 and Article 9 of the 34

Convention, Art. 4, para. a.

35

Id., Art. 4, para. b.

36

GA Res. 217 Α(ΙΠ) of 10 December 1948.

37

30 August 1961, 989 U N T S 175.

38

19 December 1966, 999 U N T S 171, Art. 24 para. 3.

39

22 November 1969, 9 I L M 673, Art. 20 para. 1.

40

20 November 1989, 28 I L M 1457, Art. 7 para 1.

41

Convention, Art. 4, para. c.

42

Universal Declaration of Human Rights (note 36), Art. 15.

43

American Convention on Human Rights (note 39), Art. 20, para 3.

44

Convention, Art. 4, para. d.

45

Convention on the Nationality of Married Women (note 27).

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1979 Convention on the Elimination of All Forms of Discrimination against Women.46 Based on the wording of the 1979 Convention, the principle has been extended to spouses in general, in order to take into account the principle of equality between men and women. The more detailed rules on acquisition, in Article 6, and on loss of nationality, in Articles 7 and 8, are based to a large extent on the principles mentioned in Article 4. These principles have a great significance in the context of the Convention as Article 29 allows no reservations with respect to them. The next principle of the Convention deals with non-discrimination. According to Article 5, paragraph 1, "The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin." With the exception of discrimination on the grounds of sex — which has been dealt with in the previous paragraph and will be done so again under Article 6 of the Convention — there is no international instrument so far which expressly prohibits discrimination in the field of nationality on the grounds mentioned in this provision. The 1966 Convention on the Elimination of All Forms of Racial Discrimination excludes nationality from its field of application (Article 1, paragraph 2). Article 14 of the European Convention on Human Rights, which treats non-discrimination, does not apply to nationality questions as such. The express non-discrimination provision of the Convention is thus an innovation in an international instrument, even if it does not contain all prohibited grounds for discrimination mentioned in Article 14 of the ECHR but limits itself to the core elements of such discriminations in nationality matters. The authors of the Convention hope that the non-discrimination principle in the field of nationality will, with time, become an integral part of the generally accepted principles in nationality matters. It may be pointed out in this context that justified distinctions in nationality matters do not amount to prohibited discriminations. A preferential granting of nationality to persons having closer connections with a State through language, descent or ethnic origin, therefore cannot be considered as prohibited discrimination in the sense of this provision. The Convention goes on declaring that "Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently."47 The provision does not contain a mandatory rule but appeals to States to apply the principle of equality of treatment between nationals at birth and persons who have acquired their nationality subse-

46

Convention on the Elimination of All Forms of Discrimination against Women [hereinafter CED AW], 18 December 1979, 19 I L M 33. 47

Convention, Art. 5, para. 2.

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quently. The provision might have the impact that State Parties will either change discriminatory provisions in this field or at least interpret them restrictively. 5. Acquisition of Nationality for Children (Article 6, paragraphs 1 and 2) Under the rules relating to nationality, the Convention provides for the acquisition of nationality for "children one of whose parents possesses, at the time of birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad . . Λ 4 8 This provision is based on the 1979 Convention on the Elimination of All Forms of Discrimination against Women, according to which "States Parties shall grant women equal rights with men with respect to the nationality of their children." 49 The provision has been extended to parents in general, in order to take into account the principle of equality between men and women. Thus, on the basis of Article 6, paragraph 1 of the Convention, children born in the State concerned will automatically acquire by birth the nationality of that State if the father or the mother is a citizen. If the child is born abroad, the acquisition of citizenship may not be automatic — as e.g. in most Central and Eastern European States — but based on registration with the relevant consular and diplomatic authorities. Nevertheless, the aforementioned principle of equality of treatment between men and women with regard to the transmission of nationality to children, as well as the principle of avoiding statelessness50 must be respected. As to children born out of wedlock, the Convention provides the following: "With respect to children whose parenthood is established by recognition, court order or similar procedures, each State Party may provide that the child acquires its nationality following the procedure determined by its internal law."51 It results from this provision that children born out of wedlock acquire ex lege the nationality of their parent if the conditions for the establishment of parenthood according to the internal law of the State Party concerned are met. The Convention furthermore provides for the acquisition of the nationality of a State Party ex lege in case of "foundlings found in its territory who would otherwise be stateless."52 It is left to each State Party to decide whether such a foundling acquires its nationality in order to prevent statelessness or whether the foundling is considered the ex lege child of a national and thus a national. 48

Id. , Art. 6, para. 1(a).

49

CED A W (note 46), Art. 9, para. 2.

50

Convention, Art. 4, paras, a, b.

51

Id., Art. 6, para. 1(a).

52

Id. , Art. 6, para. 1(b).

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In order to generally fight against statelessness of children, the Convention provides that children born on the territory of a State Party who do not acquire at birth another nationality shall be able to acquire the nationality of that State Party. "Such nationality shall be granted a) at birth ex lege or b) subsequently, to children who remained stateless, upon an application Such an application may be made subject to a lawful and habitual residence on its territory for a period not exceeding five years . . Λ 5 3 This provision is an application of Article 15 of the Universal Declaration of Human Rights,54 the 1966 International Covenant on Civil and Political Rights,55 the 1969 American Convention on Human Rights,56 the 1989 Convention on the Rights of the Child 57 and Article 4, paragraphs a and b of the Convention. In particular, it is directly inspired by Article 1 of the 1961 Convention on the Reduction of Statelessness58 but grants some additional rights compared to that convention. 6. Naturalisation (Article 6, paragraphs 3 and 4) Among the rules on acquisition of nationality, the Convention stipulates: "Each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years . . Λ 5 9 This rule can be looked at as an application and a further development of the principle of the 'genuine and effective link* mentioned in the Nottebohm case.60 The provision institutes the obligation for a State to provide for naturalisation of persons having a 'real and effective link' with the State and considers that such a link at least exists after a period of lawful and habitual residence of ten years. It may be noted that a State Party may set further conditions for naturalisation, e.g. with regard to good reputation and sufficient integration. Article 6, paragraph 4 of the Convention provides for facilitated acquisition of nationality in quite a number of cases (spouses of nationals, children, second generation migrants, stateless persons, and refugees). These rules have only a framework character. They provide for facilitated naturalisation in a very general way without specifying of what the facilities should consist. It will be left to each State Party to de53

Id., Art. 6, para. 2.

54

Universal Declaration of Human Rights (note 36).

55

Convention, Art. 24 para. 3.

56

Id. , Art. 20 para. 2.

57

Id., Art. 7 para. 1.

58

Convention on the Reduction of Statelessness (note 37).

59

Convention, Art. 6, para. 3.

60

See, Nottebohm Case (note 31) and accompanying text.

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cide on its contents. Compared to normal naturalisation, the facilities may reside in a shorter residence period, less stringent conditions for good reputation and integration, an easier procedure and lower fees. However, in order to be compatible with this paragraph, facilities for the persons concerned have to be substantial. On the other hand, there are some States in which naturalisation conditions are much easier to fulfil than in others, or, in other words, in which the normal naturalisation requirements are as easy to meet as the facilitated ones in other States. These States are not obliged to further facilitate the naturalisation of the groups of persons concerned. The Convention provides in Article 6, paragraph 4, subparagraph a, that States shall facilitate the acquisition of their nationality for "spouses of nationals." This is in line with the Council of Europe resolution on the nationality of spouses61 as well as the Second Protocol amending the 1963 Convention.62 According to the next two provisions, the following children shall benefit from facilitated acquisition of nationality: children one of whose parents possesses the nationality of a State Party and who cannot acquire that nationality because they were born abroad63 and children one of whose parents acquires or has acquired the nationality of a State Party at a time the child did not fulfil the conditions for inclusion into the naturalisation of the parent.64 The term 'child', as defined in Article 2, paragraph c of the Convention, means "every person below the age of eighteen years . . .". According to Article 6, paragraph 4, subparagraph d of the Convention, adopted children shall benefit from facilitated acquisition of the nationality of their adoptive parents. A State also has the possibility, going beyond the obligation to facilitate the acquisition of its nationality, to grant its nationality ex lege to minor children adopted by its nationals. This rule is in compliance with Article 11 of the 1967 European Convention on the Adoption of Children. 65 The Convention provides in Article 6, paragraph 4, subparagraph e, that States shall facilitate the acquisition of their nationality for "persons who were born on its territory and reside there lawfully and habitually" and, in subparagraph f, "persons who are lawfully and habitually resident on its territory for a period of time beginning before the age of 18, that period to be determined by the internal law of the State Party concerned." The facilitation concerns second generation migrants who were either born in the territory of the State Party concerned or who have taken up residence in its territory before the age of 18. This facility is in line with the Council 61

Res. 77 [12] (note 8).

62

Second Protocol (note 10).

63

Convention, Art. 6, para. 4(b).

64

Id., Art. 6, para. 4(c).

65

European Convention on the Adoption of Children, 24 April 1967, 634 U N T S 255.

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of Europe resolution on second generation migrants66 as well as the Second Protocol amending the 1963 Convention.67 The Convention furthermore provides for the facilitated acquisition of nationality for two other groups of persons: "Stateless persons and recognized refugees lawfully and habitually resident on its territory." 68 The facilitation for stateless persons is based in particular on the aforementioned Article 15 of the Universal Declaration of Human Rights69 and the 1961 Convention on the Reduction of Statelessness,70 as well as the 1954 Convention Relating to the Status of Stateless Persons;71 the facilitation concerning refugees, for its part, is based on the 1951 Convention Relating to the Status of Refugees.72 It was stressed during the elaboration of the Convention that persons who have intentionally become stateless in order to apply for the benefits usually granted stateless persons are not entitled to apply for facilitated naturalisation on the basis of this paragraph. 7. Loss of Nationality (Articles 7 and 8) Article 7 of the Convention deals with the loss of nationality ex lege or at the initiative of a State Party. It is based on the principle, contained in Article 15 of the Universal Declaration of Human Rights,73 the 1969 American Convention on Human Rights74 and Article 4, paragraph c of the Convention, that "no one shall be arbitrarily deprived of his or her nationality." The causes of loss of nationality mentioned in this provision may thus be considered as justified causes of loss and therefore do not constitute arbitrary deprivations of nationality. The article contains an exhaustive list of cases in which a State Party is allowed to provide for the automatic loss of its nationality or to withdraw its nationality. No other case of loss of nationality is admissible. Each State Party is free, however, to admit more favorable solutions and to permit persons to retain their nationality, even if Article 7 would justify as such the loss or withdrawal of that nationality.

66

Ree. No. R (84) 9.

67

Second Protocol (note 10).

68

Convention, Art. 6, para. 4(g).

69

Universal Declaration of Human Rights (note 36).

70

Convention on the Reduction of Statelessness (note 37).

71

28 September 1954, 360 U N T S 130.

72

28 July 1951, 189 U N T S 137.

73

Universal Declaration of Human Rights (note 36).

74

American Convention on Human Rights (note 39), Art. 20, para. 3.

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Loss of nationality is thus allowed in case of "voluntary acquisition of another nationality."75 According to the 1963 Convention on the reduction of cases of multiple nationality and on military obligations in case of multiple nationality, State Parties were obliged to provide for the loss of their nationality in case of voluntary acquisition of another nationality.76 The new Convention, however, permits State Parties to decide whether or not they want to provide for the loss of the previous nationality in case of voluntary acquisition of another nationality. A State Party may provide for the loss of its nationality in case of "acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant."77 Fraudulent conduct means a deliberate act or a deliberate omission concerning a fact relevant for the granting of nationality.78 Thus, a mere administrative error not attributable to the applicant cannot be considered brought about fraudulently by the latter. The loss of nationality on the basis of this provision may occur, according to the internal law of the State Party, either ex nunc or ex tuncP Nationality may be lost in case of "voluntary service in a foreign military force." 80 The provision does not apply to compulsory military service, nor to military service chosen in one of the States of origin in conformity with Article 21, paragraph 3, subparagraph a of the Convention. States will have to determine the exact conditions under which the provision applies. Nationality may be withdrawn in case of "conduct seriously prejudicial to the vital interests of the State Party." 81 The provision, which does not include general criminal offences, has been drawn from Article 8 of the 1961 Convention on the Reduction of Statelessness.82 A State Party may provide for the loss of its nationality in case of "lack of a genuine link between the State Party and a national habitually residing abroad."83 This provision normally concerns dual nationals born or living for a long time abroad, who have lost contact with the State Party concerned, who did not register, 75

Convention, Art. 7, para. 1(a).

76

Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality (note 2), Art. 2, para. 2. 77

Convention, Art. 7, para. 1(b).

78

Explanatory Report to the European Convention on Nationality, Council of Europe, 1997, para. 61. 79

Id. , para. 63.

80

Convention, Art. 7, para. 1(c).

81

Id. y Art. 7, para. 1(d).

82

Convention on the Reduction of Statelessness (note 37).

83

Convention, Art. 7, para. 1(e).

29 G Y I L 40

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Roland Schärer

nor apply for identity documents, nor give an express declaration with a view to conserving that nationality. In the context of the application of this provision, it is important to take account of the prohibition on arbitrary deprivation of nationality84 and the procedural guarantees in case of loss of nationality.85 It may also be pointed out that the situation of States withdrawing their nationality from persons having lost their genuine link with them is not quite different from the situation of those States who do not transfer their nationality at birth to persons born abroad (on the basis of Article 6, paragraph 1, sub-paragraph a) if they do not register in time for the nationality of the State concerned. It may be worth underlining that the provision is an application of the principle, developed in the Nottebohm case, that nationality is a legal bond based on a 'genuine and effective link' with the State concerned and it may be inferred from it that it prohibits withdrawal of nationality from a person who retains such a 'genuine and effective link* with that State.86 Nationality may be lost "where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled." 87 According to the legislation of some States, a change in civil status of a child (e.g. the annulment of parental ties to a national who transfers his or her nationality to his or her child) would not result in loss of nationality for the child but rather lead to the conclusion that the child never acquired the nationality in question. Other States, however, consider that the annulment of parental ties in such cases leads to loss of nationality. The Convention mentions this case in order to take account of that situation. Nationality may also be lost in case of "adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents."88 This provision is in line with the European Convention on the Adoption of Children. 89 According to Article 7, paragraph 2, "A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by sub-paragraphs c and d of paragraph 1." The exceptions concern voluntary service in a foreign military force and conduct seriously prejudicial to the vital interest of a State Party. In such cases children should suffer no adverse consequences from loss of nationality. The provision continues: "However, children shall not lose that nationality if one of their parents retains it." This is an application of the rule contained in

84

Id., Art. 4, para. c.

85

Id., Arts. 11, 12.

86

See Nottebohm Case (note 31) and accompanying text.

87

Convention, Art. 7, para. 1(f).

88

Id., Art. 7, para. 1(g).

89

24 April 1967, ETS 58.

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Article 6, paragraph 1, subparagraph a, according to which children shall acquire the nationality of a State Party if one of the parents possesses it. A very important limitation on the faculty of States to provide for the loss of their nationality is contained in Article 7, paragraph 3, according to which "a State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this Article if the person concerned would thereby become stateless, with the exception of cases . . . " of acquisition of the nationality of the State Party by means of fraudulent conduct. This provision on the prohibition of statelessness is again an application of Article 15 of the Universal Declaration of Human Rights90 and Article 4, paragraphs a and b of the Convention. It is inspired by the 1961 Convention on the Reduction of Statelessness91 and goes even further than this Convention in so far as it prohibits statelessness in all cases of loss of nationality except for withdrawal of a fraudulently acquired nationality. Under the title: "Loss of nationality at the initiative of the individual," the Convention stipulates that "Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless."92 This provision is not only an application of Article 15 of the Universal Declaration of Human Rights, of the 1961 Convention on the Reduction of Statelessness and Article 4, paragraphs a and b of the Convention. It is also directly linked to Article 15, paragraph 2 of the Universal Declaration of Human Rights, according to which "no one shall be . . . denied the right to change his nationality. " It seems to me that it results from the obligation of States to permit persons to change their nationality that States must also permit these persons to give up their previous nationality in order to acquire a new one. The term "renunciation of its nationality" must be understood in a wide sense as it may indifferently cover a unilateral declaration of renunciation or a decision of release of nationality on the basis of an application. According to Article 8, paragraph 2 of the Convention, "However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad." Thus, the only condition for renunciation, apart from avoiding statelessness, is residence abroad, whereas other conditions, such as accomplishment of military service, fulfilment of civil obligations or absence of criminal proceedings would not be in line with that rule. It may be noted that this paragraph corresponds to the amendment, adopted in 1977, of the 1963 Convention on

29*

90

Universal Declaration of Human Rights (note 36).

91

Convention on the Reduction of Statelessness (note 37).

92

Convention, Art. 8, para. 1.

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Roland Schär er

the reduction of cases of multiple nationality and on military obligations in cases of multiple nationality.93 8. Recovery of Nationality (Article 9) Under the title "Recovery of nationality" the Convention stipulates that "Each State Party shall facilitate, in the cases and under the conditions provided for by its internal law, the recovery of its nationality by former nationals who are lawfully and habitually resident on its territory." 94 The provision mainly concerns persons who have lost a former nationality due to lacking ties or who have given up a former nationality in order to acquire a new one. If the persons concerned re-establish substantial links with the former country of origin and come back to this country, they should be able to benefit from a facilitated acquisition of nationality. The rule is thus based on the 'genuine and effective link' mentioned above.95 Those States, however, in which even normal naturalisation conditions are extremely easy to fulfil, are not obliged to further facilitate the recovery of their nationality. 9. Procedures Relating to Nationality (Articles 10 to 13) The next chapter of the Convention deals with procedures relating to nationality. With regard to the processing of applications, Article 10 of the Convention provides that "Each State Party shall ensure that applications relating to the acquisition, retention, loss, recovery or certification of its nationality are processed within a reasonable time." With regard to decisions, the Convention provides in Article 11 that they shall "contain reasons in writing" and, in Article 12, "be open to an administrative or judicial review." Concerning fees, Article 13 of the Convention provides: "Each State Party shall ensure that the fees for the acquisition, retention, loss, recovery or certification of its nationality are reasonable." The chapter dealing with procedures relating to nationality is one of the most significant parts of the Convention. It ensures the correct application of its substantive rules. It indicates a more acceptable balance between the interests of the State and legitimate interests of the individual in the field of nationality. It reflects the idea that nationality matters are not just political questions where negative decisions can be taken without giving reasons and where there exists no possibility of appeal.

93

Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality (note 2), Art. 1. 94

Convention, Art. 9.

95

See Nottebohm Case (note 31) and accompanying text.

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10. Multiple Nationality (Articles 14 to 17) Under the chapter on multiple nationality, the Convention provides that "A State Party shall allow children having different nationalities acquired automatically at birth to retain these nationalities"96 and that "State Parties shall allow its nationals to possess another nationality where this other nationality is automatically acquired by marriage." 97 The provision regarding children is to a large extent based on Article 9 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women98 and has been worded in order to take account of the principle of equality between men and women. It has been considered that with regard to children dual nationality is justified because of usually effective links between the child and the nationalities of his or her parents. The paragraph concerning married women is based on Article 1 of the 1957 Convention on the Nationality of Married Women.99 It has to be taken into account that under previous laws of many States women automatically acquired the nationality of their husbands without being able to choose between their previous and their new nationalities. With regard to other possible cases of multiple nationality, the Convention declares in Article 15: "The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: (a) its nationals who acquire or possess the nationality of another State retain its nationality or lose it; (b) the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality." The Convention thus remains neutral in this respect and allows State Parties either to accept or to fight multiple nationality. This is a major change of attitude compared to the 1963 Convention on the reduction of cases of multiple nationality and on military obligations in case of multiple nationality. It expresses the widely accepted feeling that it is left to each State to decide which stance it intends to take with regard to multiple nationality. One exception to this rule concerns the renunciation of a previous nationality in case of acquisition of a new one. According to Article 16 of the Convention, "A State Party shall not make the renunciation or loss of another nationality a condition for the acquisition or retention of its nationality where such renunciation or loss is not possible or cannot reasonably be required." Such an impossible or unreasonable requirement might unduly prevent persons from seeking to acquire a nationality, respectively from changing their nationality. The provision is linked with Article 15, paragraph 2 of the Universal Declaration of Human Rights, according to which "No

96

Convention, Art. 14, para. 1(a).

97

Id. , Art. 14, para. 1(b).

98

CED A W (note 46).

99

Convention on the Nationality of Married Women (note 27).

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one shall be . . . denied the right to change his nationality."100 The provision has a particular importance in States which fight against multiple nationality with regard to persons who wish to acquire their nationality and who are first obliged to give up, as a condition, their previous nationality. As concerns the rights and duties related to multiple nationality, the Convention limits itself to declare that "nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party." 101 The Convention adds, in subparagraph a, that the provisions of this chapter do not affect "the rules of international law concerning diplomatic or consular protection by a State Party in favour of one of its nationals who simultaneously possess another nationality," as well as in subparagraph b, "the application of the rules of private international law of each State Party in cases of multiple nationality." The Convention thus wholly abides by the rules of 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws102 and its further developments. It may be added that the initial attempt to draft a more ambitious provision had to be abandoned due to irreconcilable points of view. 11. State Succession and Nationality (Articles 18 and 19) During the elaboration of the Convention an attempt was made to draft an exhaustive body of rules with regard to the consequences of State succession on nationality. As the divergences between States were too considerable, the ambitions had to be lowered and limited to establishing mere principles applicable in case of State succession. This will allow States, while respecting the principles, to formulate themselves the exact rules in this context. For the purpose of the Convention, State succession is understood within the meaning of the 1978 Vienna Convention on Succession of States in Respect of Treaties as "the replacement of one State by another in the responsibility for the international relations of territory." 103 The Convention, referring to fundamental principles, stipulates at first: "In matters of nationality in cases of State succession, each State Party concerned shall re-

100

Universal Declaration of Human Rights (note 36).

101

Convention, Art. 17, para. 1.

102

Convention on Certain Questions Relating to the Conflict of Nationality Laws (note 27). 103

22 August 1978, 17 I L M 1488, Art. 2, para. 1(b).

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455

spect the principles of the rule of law, the rules concerning human rights and the principles contained in Articles 4 and 5 of this Convention . . Λ 1 0 4 The reference to the rule of law and human rights has a particular significance for the member States of the Council of Europe which are bound by Article 3 of the Statute of the Council, according to which "Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms." 105 The Convention continues in paragraph 2 of Article 18: "In deciding on the granting or the retention of nationality in cases of State succession, each State Party concerned shall take account in particular of: (a) the genuine and effective link of the person concerned with the State; (b) the habitual residence of the person concerned at the time of State succession; (c) the will of the person concerned; (d) the territorial origin of the person concerned." The Convention stresses in paragraph 1 that the State Parties shall respect the principles of this paragraph "in particular to avoid statelessness." The first criterion to be taken into account concerns the "genuine and effective link of the person concerned with the State."106 According to the principle laid down in the Nottebohm case, the legal bond of nationality has to accord with the 'genuine and effective link' between an individual and a State.107 It may be inferred from this principle that persons concerned by State succession should be entitled to acquire the nationality of the successor State if they have such a 'substantial connection' with that State. If they would, as a consequence of State succession, have no nationality — e.g. in case of disappearance of the predecessor State — the principle that every person has the right to a nationality places, a stronger obligation on the successor State to grant nationality; in such a case even weaker factual connections should be taken into account. Likewise — in case a predecessor State continues to exist — a person living in the successor State but maintaining a 'genuine and effective link' with the predecessor State should be able to retain the nationality of that State. Withdrawing nationality from persons who continue to have a 'genuine and effective link' with the predecessor State might be considered an arbitrary deprivation of nationality in the sense of Article 15 of the Universal Declaration of Human Rights. An even stronger obligation not to withdraw its nationality is placed on the predecessor State if persons are not able to acquire the nationality of the successor State. In such a case, it seems to me, the principle of avoiding statelessness altogether prohibits the predecessor State from taking away its nationality. 104

Convention, Art. 18, para. 1.

105

5 May 1949, 87 U N T S 103.

106

Convention, Art. 18, para. 2(a).

107

See Nottebohm Case (note 31) and accompanying text.

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Another factor taken into account by the Convention is "the habitual residence of the person concerned at the time of State succession."108 This factor is, in State practice, one of the habitually used criteria in determining the acquisition of the nationality of the successor State. It has a direct relationship with the above mentioned factor of the 'genuine and effective link* insofar as the latter usually concerns persons who habitually reside in the successor State at the time of State succession. However, the criterion of 'habitual residence' as such does not constitute as strong a connection as the 'genuine and effective link.' The reason it is so widely used is probably its easy applicability and the fact that it normally benefits persons who do have close connections with the successor State. On the other hand, it may be noted that the acquisition of nationality on the basis of "habitual residence" (and the will of the individual) cannot be considered arbitrary according to the general rules on nationality.109 The next factor mentioned in the Convention is "the will of the person concerned."110 It is related to the 'genuine and effective link* insofar as it is one of the criteria permitting determination of the existence of this link. However, the "will of the person concerned" is not identical with such a link. Taking this factor into account probably means that a person having sufficient ties with a predecessor and a successor State or — in case of disappearance of the predecessor State — with several successor States should have a right of option between the nationalities of the States concerned. Moreover, there is a relationship between taking account of the "will of the person concerned" and Article 15, paragraph 2 of the Universal Declaration of Human Rights — which also is based on the will of the individual — according to which "no one shall be denied the right to change his nationality." On the other hand, it may be noted that the granting of nationality may even be arbitrary if it occurs against the wills of the persons concerned, in particular when they have neither habitual residence in, nor a genuine and effective link with, the State whose nationality is imposed on them. The last factor mentioned by the Convention is "the territorial origin of the person concerned."111 This factor is, in State practice, one of the possible, often complementary, criteria in determining the acquisition of the nationality of the successor State. It is particularly used in States possessing an internal citizenship. It is also related to the 'genuine and effective link' insofar as it might be one of the criteria permitting determination of the existence of this link. However, the "territorial origin " goes beyond such a link. This factor is especially important for persons who have no habitual residence, at the time of State succession, in the territory of the successor

108

Convention, Art. 18, para. 2(b).

109

See generally (notes 31-33) and accompanying text.

110

Convention, Art. 18, para. 2(c).

111

Id. , Art. 18, para. 2(d).

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457

State. If the predecessor State has disappeared, the criterion of "territorial origin" may contribute to avoiding statelessness by permitting persons to acquire the nationality of a successor State with which they are linked through "territorial origin." At any rate, it may be noted that the granting of nationality on the basis of "territorial origin" (and the will of the individual) cannot be considered as arbitrary. 112 The Convention adds the following: "Where the acquisition of nationality is subject to the loss of a foreign nationality, the provisions of Article 16 of this Convention shall apply." According to Article 16, a State shall refrain from requiring the loss of another nationality as a condition for the acquisition of its own nationality where this is not possible or cannot be reasonably required. This rule is of particular importance in the context of State succession. It eliminates a major obstacle to acquiring the nationality of a successor State which fights against multiple nationality by requiring applicants to renounce at first the nationality of another State which under reasonable conditions does not permit the release of its nationality. According to the Convention, priority should be given to settling matters of State succession by international agreement. Article 19 declares: "In case of State succession, States Parties concerned shall endeavour to regulate matters relating to nationality by agreement amongst themselves and, where applicable, in their relationship with other States concerned. Such agreements shall respect the principles and rules contained or referred to in this chapter." 12. State Succession and Non-nationals (Article 20) Under the title: "Principles concerning non-nationals," Article 20, paragraph 1 of the Convention contains the following rule: "Each State Party shall respect the following principles: (a) nationals of a predecessor State habitually resident in the territory over which sovereignty is transferred to a successor State and who have not acquired its nationality shall have the right to remain in that State; (b) persons referred to in sub-paragraph a shall enjoy equality of treatment with nationals of the successor State in relation to social and economic rights." Under paragraph 2, State Parties may exclude such persons "from employment in the public service involving the exercise of sovereign powers." The provisions of Article 20 do not directly deal with nationality. They concern, however, persons who had enjoyed all the rights attached to the nationality of the predecessor State and who, through State succession, had suddenly lost those rights. If they cannot — or if they will not — acquire the nationality of the successor State, their specific situation has to be taken into account by granting them a special status of non-nationals allowed to keep all the rights necessary for day-to-day life in the 112

See generally (note 33) and accompanying text.

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Roland Schärer

successor State. Their situation may be qualified as intermediate between nationals and ordinary aliens. In particular, when they do not wish to opt for the nationality of the successor State, they should not be obliged — as had usually been the case in previous times — to leave the country. This provision has been influenced largely by the fact that it will apply between member States of the Council of Europe which are bound by the rule of law, the European Convention on Human Rights and its Protocols, and the case-law of the European Court of Human Rights. 13. Military

Obligations in Cases of Multiple Nationality (Articles 21 and 22)

Military obligations in cases of multiple nationality have so far been dealt with satisfactorily by Chapter Π of the 1963 Convention on the reduction of cases of multiple nationality and on military obligations in cases of multiple nationality.113 It has been decided to take over this chapter, without any substantive change, in the new Convention, together with the 1977 Protocol amending the military part of the 1963 Convention. This is due to the fact that a certain number of States wish to abandon the nationality part (chapter I) of the 1963 Convention while sticking to its military part (chapter Π). As the 1963 Convention can only be denounced as a whole,114 it was necessary to take over without change its uncontested military part in the new Convention. 14. Cooperation between the States Parties (Articles 23 and 24) According to Article 23, paragraph 2 of the Convention, "States Parties shall cooperate amongst themselves and with other member States of the Council of Europe within the framework of the appropriate intergovernmental body of the Council of Europe in order to deal with all relevant problems and to promote the progressive development of legal principles and practice concerning nationality and related matters." It follows from this provision that no specific conventional committee has been set up and that the habitual intergovernmental body competent for nationality matters — the Committee of experts on nationality — will deal in the future with the application of the Convention. With regard to the exchange of information, Article 24 provides that "Each State Party may at any time declare that it shall inform any other State Party, having made the same declaration, of the voluntary acquisition of its nationality by nationals of the other State Party, subject to applicable laws concerning data protection. Such a 113

Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality (note 2). 114

Id., Art. 12.

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459

declaration may indicate the conditions under which the State Party will give such information." Such an exchange of information is of great practical importance for States whose legislation provides for the automatic loss of their nationality in case of voluntary acquisition of another nationality. Without exchange of information, their internal law on loss of nationality cannot be implemented satisfactorily. 15. Application of the Convention and Reservations (Articles 25 and 29) According to Article 25, any State may declare that it will exclude the chapter on military obligations in case of multiple nationality from the application of the Convention. This may concern in particular States which have abolished compulsory military service. According to Article 25, paragraph 2, the provisions on military obligations are applicable only in relation between States Parties for which they are in force. It follows from this that the other provisions of the Convention are applicable not only in the relations between States Parties but concern nationals of any State or stateless persons who enter into the field of application of the Convention with regard to a State Party. According to Article 29, no reservations may be made to the provisions contained in Chapter I (object of the Convention; definitions), Chapter Π (competence of the State; principles; non-discrimination) and Chapter VI (State succession and nationality) of the Convention. However, any State may make one or more reservations to other provisions as long as they are compatible with the object and purpose of the Convention, in accordance with Article 19(c) of the Vienna Convention on the Law of Treaties.115 This extensive possibility of reservations was the result of intense deliberations during the preparation of the Convention. It will remain to the intergovernmental body dealing with the application of the Convention to ensure that no reservations incompatible with the object and purpose of the Convention will be considered acceptable.

115

23 May 1969, 1155 U N T S 331.

ARTICLES Die Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996 Von Ursula E. Heinz

Im Berichtszeitraum 1 ist die Arbeit des Gerichtshofes weiter angestiegen. Der „Report of the International Court of Justice, 1 August 1995 - 31 July 1996"2 enthält erstmalig einen Abschnitt „Present Difficulties of the Court", in dem auf die steigende Belastung bei sinkenden personellen und finanziellen Mitteln hingewiesen wird. In einem Fall wurde durch Prozeßurteil auf Unzuständigkeit des Gerichtshofes erkannt, in drei Fällen wurde die Zuständigkeit des Gerichtshofes bejaht und das Verfahren in der Hauptsache fortgeführt, ein Fall zur Prüfung der Umstände gemäß Art. 63 seines Atomtesturteils von 1974 wurde durch Verfügung entschieden, in einem Falle vorsorgliche Maßnahmen erlassen, drei weitere Fälle blieben anhängig, zwei neue Fälle wurden anhängig, zwei Streitfälle erledigten sich. Im Berichtszeitraum war der Gerichtshof also mit insgesamt 13 streitigen Fällen befaßt. Außerdem erstattete der Gerichtshof zwei Gutachten. Im einzelnen handelte es sich um folgende Verfahren: —

Im Streit zwischen Portugal und Australien wegen Osttimor fand zwischen dem 30. Januar und 16. Februar 1995 die mündliche Verhandlung statt. Am 30. Juni 1995 entschied der Gerichtshof durch Urteil, daß er unzuständig sei (I.).

—

Im Streit zwischen Katar und Bahrain wegen der Meeresgrenze und territorialer Fragen urteilte der Gerichtshof am 15. Februar 1995, daß er zuständig und die Klage Katars zulässig sei (Π.), und setzte zunächst den 29. Februar, dann den 30. September 1996 als Frist für die schriftlichen Einlassungen der Parteien in der

1

Der Bericht schließt an den Vorbericht von DerrtePardo Lopez, Die Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1993 und 1994, German Yearbook of International Law, vol. 37, 1994, 446 - 488, an. 2

G A O R 5Ith Session, Supp. 4 (A/51/4).

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Hauptsache.3 Nachdem diese fristgemäß eingegangen waren, erhielten die Parteien Gelegenheit zu schriftlichen Gegenvorstellungen bis zum 31. Dezember 1997.4 —

Im Bohrinselstreit zwischen Iran und USA, in dem die USA die Zuständigkeit des Gerichtshofes gerügt hatten, verwarf der Gerichtshof mit Urteil vom 12. Dezember 1996 die Einrede der USA gegen seine Zuständigkeit (VI.) und setzte den USA für ihre Klageerwiderung in der Hauptsache eine Frist bis zum 23. Juni 1997.5

—

Mit Urteil vom 11. Juli 1996 verwarf der Gerichtshof in dem von Bosnien-Herzegowina gegen das jetzige Restjugoslawien angestrengten Verfahren wegen Verletzung der Völkermordkonvention die Einreden Jugoslawiens und stellte seine Zuständigkeit und die Zulässigkeit der Klage fest (V.). Jugoslawien wurde für die Klageerwiderung eine Frist bis zum 23. Juli 1997 gesetzt.6

—

Am 22. September 1995 entschied der Gerichtshof über einen von Neuseeland am 21. August 1995 gestellten Antrag auf Prüfung der Umstände gemäß Abs. 63 seines im Jahre 1974 gefällten Urteils im Atomtestfall (ΙΠ.).

—

Im von Kamerun gegen Nigeria eingeleiteten Fall betreffend die Land- und Meergrenze erhob Nigeria Einreden gegen die Zuständigkeit des Gerichtshofes und die Zulässigkeit der Klage Kameruns, so daß der Gerichtshof seiner Verfahrensordnung entsprechend das Verfahren in der Hauptsache aussetzte und Kamerun Gelegenheit gab, sich zu den Einreden Nigerias bis zum 15. Mai 1996 schriftlich zu äußern,7 was Kamerun fristgerecht tat. Am 12. Februar 1996 beantragte Kamerun den Erlaß vorsorglicher Maßnahmen wegen ernster bewaffneter Vorfälle zwischen den Streitkräften der Parteien, die seit dem 3. Februar 1996 auf der Bakassi-Halbinsel stattgefunden hätten. Uber diesen Antrag entschied der Gerichtshof am 15. März 1996 mit der Verfügung vorsorglicher Maßnahmen (VI.).

—

Im Fall betreffend das Gabcikovo-Nagymaros Projekt, den Ungarn gegen die Slowakei eingeleitet hatte, setzte der Gerichtshof, nachdem beide Parteien ihre Schriftsätze pünktlich eingereicht hatten, die Frist für Gegenvorstellungen auf den 20. Juni 1995.8 Beide Parteien reichten innerhalb der Frist entsprechende

3

Verfügungen vom 28. April 1995, ICJ Reports 1995, 83, und vom 1. Februar 1996, ICJ Reports 1996, 6. 4

Verfügung vom 30. Oktober 1996.

5

Verfügung vom 16. Dezember 1996.

6

Verfügung vom 23. Juli 1996.

7

Verfügimg vom 10. Januar 1996, ICJ Reports 1996, 3.

8

Verfügimg vom 20. Dezember 1994, ICJ Reports 1994, 151.

462

Ursula Ε. Heinz

Schriftsätze ein. Der Beginn der mündlichen Verhandlung wurde für den 3. März 1997 anberaumt. —

In den beiden Lockerbie-Fällen gingen innerhalb der festgelegten Frist die schriftlichen Klageerwiderungen der Klagegegner Vereinigtes Königreich und USA ein. Am 16. bzw. 20. Juni 1995 erhoben die Klagegegner vorgängige Einreden gegen die Zuständigkeit des Gerichts, so daß am 22. September 1995 das Verfahren in der Hauptsache zunächst suspendiert wurde. Libyen wurde eine Frist für seine schriftlichen Gegenvorstellungen zu den Einreden bis zum 22. Dezember 1995 eingeräumt,9 die von Libyen eingehalten wurde.

—

Ein neues Verfahren ist mit der Klage Spaniens gegen Kanada in einem Fischereistreit anhängig geworden. Spanien macht geltend, daß Kanada diverse Prinzipien und Normen des Völkerrechts verletzt habe, indem es mit seinem am 12. Mai 1994 geänderten Gesetz zum Schutze der Küstenfischerei fremden Schiffen verboten habe, im Regelungsbereich der nordwestatlantischen Fischereiorganisation (NAFO), d. h. in der Hohen See, zu fischen, und rechtswidrig ein unter spanischer Flagge fahrendes Fischereiboot in diesem Gebiet aufgebracht habe. Kanada bestreitet die Zuständigkeit des Gerichtshofes für diesen Streit unter Verweis auf Abs. 2(d) seiner Erklärung, mit der es sich am 10. Mai 1994 der obligatorischen Zuständigkeit des Gerichtshofes unterworfen hatte; diese Erklärung schließe die Zuständigkeit des Gerichtshofes in Streitigkeiten aus, die aus Regulierungs- und Schutzmaßnahmen gegenüber Schiffen, die im Regelungsbereich der NAFO fischen, herrühren. Nachdem sich beide Parteien über das weitere Verfahren vor dem Gerichtshof geeinigt hatten, entschied sein Präsident, daß die Schriftsätze der Parteien zunächst die Zuständigkeit des Gerichts behandeln sollten und setzte hierfür die Fristen auf den 29. September 1995 (Spanien) bzw. 29. Februar 1996 (Kanada).10 Nachdem die Schriftsätze pünktlich eingegangen waren, beantragte Spanien, Gegenvorstellungen zuzulassen, wogegen Kanada sich wehrte. Mit Verfügung vom 8. Mai 199611 entschied der Gerichtshof mit 15 gegen 2 Stimmen, daß er Gegenvorstellungen nicht zulasse, da er im gegenwärtigen Stande hinreichende Informationen über den Sachverhalt und die von den Parteien berufenen Rechtsgrundlagen besitze, so daß weitere Schriftsätze entbehrlich seien.

—

Ein weiterer Streit wurde dem Gerichtshof am 29. Mai 1996 auf Grund eines Schiedskompromisses zwischen Botswana und Namibia unterbreitet. In diesem Verfahren soll der Gerichtshof auf der Grundlage des britisch-deutschen Vertrages vom 1. Juli 1890 und der Normen und Prinzipien des Völkerrechts die 9

Verfügungen vom 22. September 1995, ICJ Reports 1995, 282 und 285.

10

Verfügung vom 2. Mai 1995, ICJ Reports 1995, 87.

11

ICJ Reports 1996, 58.

Rechtsprechung des Internationalen Gerichtshofes in den ahren 1995 und 1996

Grenze zwischen Namibia und Botswana bei der Kasikili/Sedulu Insel und den Rechtsstatus der Insel bestimmen. Beiden Parteien wurde bis zum 28. Februar 1996 bzw. 29. November 1997 Gelegenheit zur Darstellung bzw. Gegendarstellung ihrer Standpunkte gegeben. —

Der Streit wegen der Meeresgrenze zwischen Guinea-Bissau und Senegal wurde auf Antrag der Parteien am 8. November 1995 von der Liste der anhängigen Verfahren genommen.12

—

Auch im Streit zwischen Iran und den USA wegen des Luftzwischenfalls vom 3. Juli 1988 wurde zwischen den Parteien eine außergerichtliche Einigung erzielt und der Fall durch Verfügung vom 22. Februar 199613 von der Liste der anhängigen Verfahren genommen.

—

Das von der Weltgesundheitsorganisation (WHO) beantragte Rechtsgutachten über die Frage der Rechtmäßigkeit des Einsatzes von Atomwaffen durch einen Staat in einem bewaffneten Konflikt gab der Gerichtshof am 8. Juli 1996 ab (VE).

—

Am gleichen Tage gab er auch sein von der Generalversammlung beantragtes Gutachten über die Frage der Rechtmäßigkeit der Androhung oder des Einsatzes von Atomwaffen ab (Vm).

Am 24. Februar 1995 verstarb Richter Roberto Ago, als dessen Nachfolger für den Rest der Amtsperiode Luigi Ferrari Bravo gewählt wurde. Sir Robert Yewdall Jennings trat mit Wirkung vom 10. Juli 1995 von seinem Richteramt zurück; für den Rest seiner Amtsperiode wurde Rosalyn Higgins als Mitglied des Gerichtshofes gewählt. Am 24. Oktober 1995 verstarb Richter Andrés Aguilar-Mawdsley > dem Gonzalo ParraAranguren am 28. Februar 1996 nachfolgte. Am 6. November 1996 fand die Wahl der fünf Richter statt, deren Amtszeit am 5. Februar 1997 endete.14 Wiedergewählt wurden die Richter Bedjaoui, Schwebel und Vereshchetin, zu neuen Mitgliedern des Gerichtshofes wurden PieterH. Kooijmans und José F. Rezek gewählt. Das Mandat der im Juli 1993 errichteten Kammer für Umweltsachen,15 die nach Art. 26 Abs. 3 IGH-Statut auf Antrag der Parteien Umwelt-Fälle verhandelt und entscheidet, wurde bis zum 5. Februar 1997 verlängert. 16 Bislang wurde die Kammer allerdings noch nicht in Anspruch genommen.

12

Verfügung vom 8. November 1995, ICJ Reports 1995, 423.

13

ICJ Reports 1996, 9.

14

Dies waren die Richter Bedjaoui, Ferrari

Bravo, Shahabuddeen, Schwebel und Vereshchetin

15

Siehe Pardo Lopez (Anm. 1), 447.

16

G A O R 5Ith Session, Supp. 4 (A/51/4), Abs. 5.

464

Ursula Ε. Heinz

Im Berichtszeitraum unterwarfen sich Georgien17 und Paraguay18 der obligatorischen Zuständigkeit des IGH nach Art. 36 Abs. 2 IGH-Statut. Damit unterfallen ihr insgesamt 60 Staaten. I. Fall betreffend Osttimor 19 (Portugal gegen Australien) Urteil vom 30. Juni 1995, ICJ Reports 1995, 90

Besetzung des Gerichtshofes: Präsident Bedjaouv, Vizepräsident Schwebel; Richter Sir Robert Jennings, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry va, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin; Ad-hoc-Richter Sir Ni Stephen, Skubiszewski. Der Gerichtshof faßt im Rahmen der Prozeßgeschichte die Stellungnahmen der Parteien zusammen.20 Am 22. Februar 1991 hatte Portugal Klage gegen Australien wegen bestimmter Verhaltensweisen Australiens in bezug auf Osttimor erhoben. Die Zuständigkeit des Gerichtshofes hatte Portugal damit begründet, daß sich beide Parteien der obligatorischen Gerichtsbarkeit des IGH unterworfen hätten. Portugal hatte sich auf seinen Status als Verwaltungsmacht Osttimors berufen und Australien vorgeworfen, daß dieses mit Indonesien ein Abkommen über die Erforschung und Ausbeutung des Festlandsockels im „Timor Gap" geschlossen habe, innerstaatliche Durchführungsvorschriften dazu erlassen habe, über die Grenze des Sockels verhandele und jegliche Verhandlungen über diese Angelegenheiten mit ihm abgelehnt habe; dadurch habe Australien die Rechte des Volkes von Osttimor auf Selbstbestimmung, territoriale Integrität und Einheit sowie Souveränität über seine natürlichen Ressourcen verletzt; zugleich verletze es die Rechte Portugals als Verwaltungsmacht, verhindere die Erfüllung von Portugals Verpflichtungen gegenüber Osttimor und der internationalen Gemeinschaft und verstoße gegen Resolutionen des Sicherheitsrates bzw.

17

20. Juni 1995, G A O R 50th Session, Supp. 4 (A/50/4), Abs. 19.

18

25. September 1996, G A O R 52th Session, Supp. 4 (A/52/4), Abs. 14.

19 Siehe dazu Andreas Zimmermann, Die Zuständigkeit des Internationalen Gerichtshofes zur Entscheidung über Ansprüche gegen am Verfahren nicht beteiligte Staaten. Anmerkungen aus Anlaß der Entscheidung des I G H im Streitfall zwischen Portugal und Australien betreffend Ost-Timor (with English Summary), Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 55,1995,1051, und den Bericht von Karin OellersFrahm, Vereinte Nationen 2/1996, 67; ferner Christine Chinkin, The East Timor Case (Portugal v. Australia), in: International and Comparative Law Quarterly, vol. 45,1996,712, sowie Peter Hilpold, Der OsttimorFall — Eine Standortbestimmung zum Selbstbestimmungsrecht der Völker, 1996. 20

Abs. 1 - 10.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

mißachte Resolutionen von UN-Organen; Australien sei daher zum Schadensersatz und zur Unterlassung verpflichtet. Australien war demgegenüber der Ansicht gewesen, daß der Gerichtshof entweder für diese Klagen Portugals nicht zuständig oder die Klage Portugals unzulässig sei, im übrigen, daß die Handlungen Australiens keine Völkerrechtsverletzungen darstellten. Der Gerichtshof geht zunächst auf die Geschichte Osttimors ein,21 das seit dem 16. Jahrhundert eine Kolonie Portugals gewesen sei. Seit Ende 1960 sei Osttimor von der Generalversammlung als Gebiet ohne Selbstregierung betrachtet worden, und diese Position sei von Portugal 1974 akzeptiert worden. Nachdem 1975 indonesische Truppen in Osttimor interveniert hätten und Portugal sich mit seiner zivilen und militärischen Macht schließlich Ende 1975 vollständig von dort zurückgezogen habe, sei Osttimor von Indonesien besetzt, vollständig effektiv kontrolliert und durch dessen nationale Gesetzgebung in sein Territorium eingegliedert worden. In der Folgezeit hätten sich der Sicherheitsrat und die Generalversammlung mehrfach mit der Frage Osttimors befaßt, wobei sie den Anspruch des Volkes von Osttimor auf Selbstbestimmung und Unabhängigkeit betont, Indonesiens Verhalten verurteilt und auf Portugal als Verwaltungsmacht rekurriert hätten. Die Eingliederung Osttimors in indonesisches Hoheitsgebiet sei schließlich von Australien am 20. Januar 1978 de facto anerkannt worden, als sein Außenminister erklärt habe, daß es die indonesische Intervention mißbillige, daß man aber die Realität der effektiven Machtausübung Indonesiens in Osttimor akzeptieren müsse; obwohl die Art und Weise der Integration Osttimors in indonesisches Territorium nicht gebilligt werden könne, könne man nicht länger die Augen davor verschließen, daß Osttimor faktisch ein Teil Indonesiens geworden sei. Zu Beginn der Verhandlungen zwischen Australien und Indonesien über die Abgrenzung des Festlandsockels zwischen Australien und Osttimor habe Australien Ende 1978 auch de jure die Einverleibung Osttimors in indonesisches Gebiet anerkannt, wenn es auch hier wieder betont habe, daß es die Art und Weise der Einverleibung nicht billige. Die Abgrenzungsverhandlungen hätten nicht zum Erfolg geführt, statt dessen sei mit einem am 11. Dezember 1989 geschlossenen Vertrag eine „Zone der Zusammenarbeit im Gebiet zwischen der indonesischen Provinz Osttimor und Nord-Australien" geschaffen worden. Der Gerichtshof befaßt sich zunächst mit dem Einwand Australiens, daß es in Wahrheit zwischen ihm und Portugal gar keinen Streit gebe, sondern daß der wahre Gegner Portugals Indonesien sei.22 Er weist darauf hin, daß es für den Nachweis eines rechtlichen Streits nicht darauf ankomme, ob sich „der wahre Streit" zwischen Portugal und Indonesien abspiele. Entscheidend sei vielmehr, daß Portugal, ob zu Recht oder Unrecht, Tatsachen und Rechte gegenüber Australien geltend macht, die dieses 21

Abs. 11-18.

22

Abs. 21-22.

30 G Y I L 40

466

Ursula Ε. Heinz

bestreitet. Es sei offensichtlich, daß die Parteien rechtlich und tatsächlich nicht darin übereinstimmten, ob Australien durch sein Verhalten bei den Verhandlungen, dem Abschluß und Beginn der Ausführung des Vertrages von 1989 eine gegenüber Portugal bestehende Völkerrechtsverpflichtung verletzt habe. Deswegen liege ein Rechtsstreit vor. Anschließend prüft der Gerichtshof den Haupteinwand Australiens, daß nämlich mit der Klage Portugals vom Gerichtshof verlangt werde, über Rechte und Verpflichtungen eines dritten Staates, nämlich Indonesiens, ohne Zustimmung dieses Staates zu entscheiden.23 Zur Bekräftigung seiner Ansicht hatte Australien auf den Monetary Gold-Fall verwiesen.24 Portugal hatte demgegenüber argumentiert, daß seine Klage sich ausschließlich auf das Verhalten Australiens im Zusammenhang mit dem Vertrag von 1989 beziehe, und daß die Frage, ob Australien dabei seine Verpflichtung, Osttimor als Gebiet ohne Selbstregierung und Portugal als Verwaltungsmacht zu behandeln, verletzt habe, unabhängig von einer Beurteilung der Rechte und Pflichten Indonesiens entschieden werden könne. Der Gerichtshof bezieht sich jedoch auf das seit der Entscheidung im Monetary Gold-Fall aufgestellte Prinzip, daß er nicht einen Streit zwischen Staaten ohne die Zustimmung dieser Staaten entscheiden könne. Nach Ansicht des Gerichtshofes kann Australiens Verhalten nicht beurteilt werden, ohne vorher die Frage zu klären, ob Indonesien oder Portugal berechtigt war, den Vertrag zu schließen. Der eigentliche Kern der Entscheidung des Gerichthofes würde daher sein, darüber zu befinden, ob Indonesien in Anbetracht der Umstände, unter denen es nach Osttimor kam und dort blieb, die Macht erlangt hat, Verträge über Osttimors Festlandsockel abzuschließen oder nicht. Ohne Zustimmung Indonesiens könne er darüber nicht entscheiden. Das Prinzip sei auch nicht deswegen unanwendbar, weil das Selbstbestimmungsrecht ein erga omnes-Recht sei. Dieses Argument hatte Portugal vorgebracht und darauf verwiesen, daß es folglich gegen Australien, das dieses Recht verletzt habe, einen Anspruch auf Beachtung dieses Rechts habe und es unerheblich sei, ob noch ein anderer Staat sich ähnlich rechtswidrig verhalten habe. Der Gerichtshof bestätigt zwar, daß das Selbstbestimmungsrecht als grundlegendes Prinzip des gegenwärtigen Völkerrechts erga omnes-Charakter habe, dieses ändere jedoch nichts an der Regel, daß er nicht über die Rechtmäßigkeit des Verhaltens eines Staates urteilen könne, wenn er damit zugleich über die Rechtmäßigkeit des Verhaltens eines anderen Staates, der nicht Streitpartei sei, urteilen würde. Schließlich befaßt sich der Gerichtshof mit dem letzten Argument Portugals, mit dem dieses die Ubertragbarkeit der Rechtsprechung im Monetary Gold-Fall auf den

23

Abs. 23 - 29.

24

Monetary Gold Removed from Rome in 1943, ICJ Reports 1954, 32.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

vorliegenden bestreitet.25 Portugal hatte vorgetragen, daß die Hauptpunkte, auf die sich seine Klage gründe, nämlich der Status von Osttimor als Gebiet ohne Selbstregierung und Portugals Eigenschaft als Verwaltungsmacht dieses Gebiets, bereits vom Sicherheitsrat und der Generalversammlung im Rahmen ihrer Kompetenzen entschieden und folglich vom Gerichtshof hinzunehmen seien, so daß er sich mit Verhalten Indonesiens gar nicht zu befassen brauche. Australien hatte demgegenüber geltend gemacht, daß die seit der letzten Resolution des Sicherheitsrats über Osttimor aus dem Jahre 1976 und der letzten entsprechenden Generalversammlungsresolution aus dem Jahre 1982 vergangene Zeit und die seitherige Entwicklung berücksichtigt werden müßten; außerdem seien die Sicherheitsratsresolutionen weder nach Kapitel VE der UN-Charta oder sonstwie verbindlich noch als anordnende Beschlüsse formuliert. Der Gerichtshof stellt fest, daß beide Parteien Osttimor weiterhin als Gebiet ohne Selbstregierung ansähen und sein Volk als mit dem Recht auf Selbstbestimmung ausgestattet betrachteten; auch sei unstreitig zwischen den Parteien, daß sich Generalversammlungs- und Sicherheitsratsresolutionen auf Portugal als Verwaltungsmacht bezogen hätten; uneinig seien sie sich jedoch über die rechtlichen Wirkungen dieser Bezugnahmen auf Portugal als Verwaltungsmacht. Der Gerichtshof läßt die Frage, ob die Resolutionen verbindlichen Charakter haben, dahingestellt; jedenfalls gingen sie nicht so weit, daß sie eine Verpflichtung für dritte Staaten schaffen wollten, ausschließlich mit Portugal über den Festlandsockel Osttimors zu verhandeln; als Portugal anläßlich des Vertrages von 1989 protestiert habe, hätten beide UN-Organe nicht reagiert. Zum Schluß begründet der Gerichtshof, weshalb er im vorliegenden Falle anders als im Nauru-FzW 26 seine Gerichtsbarkeit verneint.27 Während in dem damaligen Verfahren zwar die Interessen von dritten Staaten berührt gewesen seien, aber nicht den eigentlichen Kern der zu treffenden Entscheidung gebildet hätten, würde mit einem Urteil im vorliegenden Streit über die Frage der Rechtmäßigkeit von Indonesiens Präsenz in Osttimor und seine Vertragskompetenz bezüglich der Festlandsockelressourcen Osttimors entschieden werden. Indonesiens Rechte und Pflichten bildeten damit den eigentlichen Kern der zu treffenden Entscheidung, was dem im Monetary Gold-Fall dargelegten Prinzip, daß der Gerichtshof seine Gerichtsbarkeit über einen Staat nur mit dessen Zustimmung ausüben könne, zuwider laufen würde. Dieses Prinzip sei auf alle von Portugal erhobenen Ansprüche anwendbar; denn bei allen sei die Frage ihres Bestehens davon abhängig, ob die Kompetenz, über den

25

3 *

Abs. 30 - 33.

26

Certain Phosphate Lands in Nauru (Nauru v. Australia), ICJ Reports 1992, 240.

27

Abs. 34.

468

Ursula Ε. Heinz

Festlandsockel Osttimors Verträge abzuschließen, bei Portugal oder Indonesien liege, und damit davon, ob Indonesiens Präsenz in Osttimor rechtmäßig sei.28 Der Gerichtshof verweist abschließend darauf, daß er sich, nachdem er zwar die erste Einrede Australiens zurückgewiesen, die zweite jedoch aufrechterhalten habe, mit den weiteren Einreden Australiens nicht befassen müsse und über die Klagen Portugals in der Sache selbst nicht entscheiden könne.29 Er verweist noch einmal auf seine Feststellung, daß aus der Sicht beider Parteien Osttimor ein Gebiet ohne Selbstregierung geblieben sei und sein Volk das Recht auf Selbstbestimmung besitze. Aus diesen Gründen urteilt der Gerichtshof mit vierzehn gegen zwei Stimmen,30 daß er im vorliegenden Fall nicht die Zuständigkeit, die ihm durch die Erklärungen der Parteien nach Art. 36 Abs. 2 seines Statuts übertragen worden sei, ausüben könne, um über den ihm durch die Klage Portugals vorgelegten Streit zu entscheiden.

Die Richter Oda, Shahabuddeen, Ranjeva und Vereshchetin fügten dem Urteil Er klärungen, Richter Weeramantry und Ad-hoc-Richter Skubiszewski abweichende Meinungen bei. Weeramantry und Skubiszewski stimmen mit der Mehrheit der Mitglieder des Gerichtshofes bezüglich des Haupteinwandes Portugals nicht überein und sind der Ansicht, der Gerichtshof hätte ein Sachentscheidung über Portugals Klage treffen müssen. Seine Rechtsprechung im Monetary Gold-Fall sei auf den vorliegenden Fall nicht übertragbar, weshalb auf Grund des erga owznes-Charakters des Selbstbestimmungsrechts Portugal klagebefugt gewesen sei. Unabhängig vom Verhalten eines anderen Staates sei, so Weeramantry, jeder Staat für sein eigenes völkerrechtswidriges Verhalten verantwortlich. Skubiszewski meint, daß, selbst wenn der Gerichtshof sich in einem Punkte zu einer Sachentscheidung nicht in der Lage gesehen habe, er seine Zuständigkeit in den anderen Punkten nicht ohne weiteres hätte verneinen dürfen.

28

Abs. 35.

29

Abs. 36 - 37.

30

Gegenstimmen: Richter Weeramantry,

Ad-hoc-Richter Skubiszewski.

Rechtsprechung des Internationalen Gerichtshofes in den ahren 1995 und 1996

II. Fall betreffend seewärtige Abgrenzung und territoriale Fragen31 (Katar gegen Bahrain) Zuständigkeit und Zulässigkeit Urteil vom 15. Februar 1995, ICJ Reports 1995, 6

Besetzung der Gerichtshofes: Präsident Bedjaoui; Vizepräsident Schwebel; Richter Oda, Sir Robert Jennings, , Guillaume , Shahabuddeen, Aguilar-Mawdsley, Weeram Ranjeva, Herczegh, S hi, Fleischhauer, Koroma; Ad-hoc-Richter Valticos, Torres B dez. In seinem Urteil entschied der Gerichtshof über seine Zuständigkeit in dem am 8. Juli 1991 von Katar anhängig gemachten Streit und die Zulässigkeit von Katars nunmehr eingereichter Klage. In seinem Urteil vom 1. Juli 1994 hatte der Gerichtshof beiden Parteien Gelegenheit gegeben, ihm bis zum 30. November 1994 den gesamten Streitstoff zu unterbreiten. 32 An diesem Tage reichte Katar ein Dokument ein, in dem darauf verwiesen wurde, daß die Parteien keine Übereinkunft über ein gemeinsames Vorgehen erzielt hätten und daß es dem Gerichtshof nunmehr den gesamten Streitstoff, der in seine Zuständigkeit falle, unterbreite, nämlich die Hawar Inseln einschließlich der Insel Janan; Fasht al Dibal und Qit'at Jaradah; die archipelagischen Basislinien; Zubarah; die Gebiete zum Perlentauchen und Fischen schwimmender Fische sowie alle sonstigen mit Meeresgrenzen zusammenhängenden Angelegenheiten. Es stellte ferner fest, daß nach seinem Verständnis Bahrain seinen Anspruch auf Zubarah als Souveränitätsanspruch betrachte. Es ersuchte den Gerichtshof, zu urteilen und zu erklären, daß Bahrain keine Souveränität oder andere territoriale Rechte über Janan oder Zubarah zustehen und daß jeder Anspruch Bahrains hinsichtlich der archipelagischen Basislinien und Perlentauch- und Fischgebiete unbeachtlich zum Zwecke der Meeresabgrenzung im vorliegenden Falle sei. Am gleichen Tag erhielt der Gerichtshof auch von Bahrain ein Dokument, in dem dieses feststellte, daß es das Urteil vom 1. Juli 1994 dahingehend verstehe, daß die Unterbreitung des gesamten Streitstoffs konsensual, d. h. im Wege einer Übereinkunft zwischen beiden Parteien, erfolgen müsse. Katars Vorschläge hätten jedoch eine Form angenommen, die nur so verstanden werden könnten, daß es seine einseitige Klageerhebung von 1991 weiterverfolgen würde. Weiterhin habe Katar ihm die Möglichkeit genommen, mit eigenen Worten die Angelegenheiten zu bezeichnen, die es geklärt haben wolle, und die Liste der umstrittenen Angelegenheiten um den Punkt der Souveränität über Zubarah zu ergänzen. Das Urteil des Gerichtshofes betraf daher 31

Hierzu Karin Oellers-Frahm,

32

Vgl. hierzu Pardo Lopez (Anm. 1), 483 ff.

Vereinte Nationen 2/1995, 75.

470

Ursula Ε. Heinz

zwei Punkte: ob er auf Grund früherer zwischen den Parteien erzielter Abkommen überhaupt für den Streit zuständig ist und ob der Streit ihm von nur einer Partei oder als Bestandteil eines Abkommens von beiden Parteien unterbreitet werden müsse. In seinem Urteil geht der Gerichtshof zunächst auf die Geschichte des Falles33 und die Einlassungen der Parteien ein.34 Er verweist sodann auf die Verhandlungen zwischen den Parteien nach seinem Urteil vom 1. Juli 1994 und die vorgelegten Dokumente und legt dar, daß er nunmehr über die Einwände Bahreins gegen seine Zuständigkeit zur Streitentscheidung und über die Zulässigkeit der Klage entscheiden müsse.35 Im Rahmen der Frage seiner Zuständigkeit36 legt er das Protokoll von Doha aus und kommt zum Ergebnis, daß sich die Parteien darin geeinigt hätten, alle zwischen ihnen streitigen Angelegenheiten vom Internationalen Gerichtshof entscheiden zu lassen. Bahrains Einwand, daß die Parteien darin nur grundsätzlich übereingekommen seien, den Gerichtshof zu befassen, daß aber erst der Abschluß eines — letztlich nicht zustandegekommenen — Sonderübereinkommens mit Hilfe des im DohaProtokoll eingesetzten trilateralen Sonderausschusses die Zuständigkeit des Gerichtshofes begründet hätte, weist der Gerichtshof unter Verweis auf den Wortlaut des Protokolls zurück. Ebensowenig akzeptiert der Gerichtshof den weiteren Einwand Bahrains, daß sich die Parteien in dem Protokoll darauf geeinigt hätten, nur gemeinsam den Gerichtshof zu befassen. Nach dem Wortlaut, Kontext sowie Ziel und Zweck des Protokolls erlaube dieses vielmehr ein einseitiges Vorgehen. Unter diesen Ümständen sei es entbehrlich, für die Feststellung des Sinnes des Protokolls auf weitere Auslegungsmittel zurückzugreifen. Ein weiteres Vorbringen Bahrains gegen seine Zuständigkeit weist der Gerichtshof ebenfalls zurück. Bahrain hatte argumentiert, daß, selbst wenn das Doha-Protokoll nicht einer einseitigen Befassung des Gerichtshofes im Wege stehe, eine Partei nicht berechtigt sei, den Gerichtshof mit einer Klage zu befassen; die Befassung sei nämlich nicht lediglich eine Verfahrens-, sondern eine Zuständigkeitsfrage, die Zustimmung zu einseitiger Befassung unterliege den gleichen Voraussetzungen wie die Zustimmung zu gerichtlicher Streitbeilegung und müsse eindeutig und unbestritten sei; wo dies nicht der Fall sei, sei nur eine gemeinsame Befassung erlaubt. Der Gerichtshof beurteilt demgegenüber die Befassung als eine verfahrenseinleitende Handlung unabhängig von der Zuständigkeit. Er könne zwar einen Fall solange nicht an sich ziehen, wie er trotz Zuständigkeit nicht mit der Angelegenheit befaßt worden sei; das Doha-Protokoll erlaube aber gerade eine einseitige Befassung. 33

Siehe hierzu Pardo Lopez (Anm. 1), 484 ff.

34

Abs. 1 -15.

35

Abs. 16 - 23.

36

Abs. 24 - 44.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Was die Zulässigkeit der Klage anbelangt,37 so führt der Gerichtshof aus, daß Katar — ähnlich wie Bahrain — mit den von ihm gebrauchten Worten genau den gesamten Streitstoff zwischen den Parteien beschrieben und damit dem Gerichtshof unterbreitet habe; unschädlich sei demgegenüber, daß nur Bahrain den Begriff „Souveränität" über die Hawar-Inseln und „Souveränität" über Zubarah gebraucht habe. Mit jeweils zehn zu fünf Stimmen38 befindet er daher, daß er 1. zuständig und 2. die Klage Katars zulässig ist. Vizepräsident Schwebe/, Richter Oda, Shahabuddeen, Koroma und Ad-hoc-Richter Valticos fügten dem Urteil abweichende Meinungen bei. III. Antrag auf Überprüfung der Umstände gemäß Absatz 63 des Urteils des Gerichtshofes im Atomtest-Fall vom 20. Dezember 197439 (Neuseeland gegen Frankreich) Verfügung vom 22. September 1995, ICJ Reports 1995, 288

Besetzung der Gerichtshofes: Präsident Bedjaoui; Vizepräsident Schwebel; Richter Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleisc Koroma, Vereshchetin, Ferrari Bravo, Higgins; Ad-hoc-Richter Sir Geoffrey Palm Im Rahmen der Verfahrensgeschichte 40 stellt der Gerichtshof zunächst das Vorbringen Neuseelands dar.41 Neuseeland hatte am 21. August 1995 einen „Antrag auf Prüfung der Umstände" gestellt. Darin hatte es darauf verwiesen, daß es hierzu durch eine vom französischen Präsidenten am 13. Juni 1995 öffentlich angekündigte letzte Reihe von acht, im September 1995 beginnenden Atomwaffenversuchen im Südpazifik veranlaßt worden sei, die im Falle ihrer Durchführung die Grundlage des Urteils des Gerichtshofes aus dem Jahre 1974 in dem Atomtest-Fall42 berühren würde. Damals 37

Abs. 45 - 48.

38

Gegenstimmen: Vizepräsident Schwebel, Richter Oda, Shahabuddeen, Koroma, Ad-hocRichter Valticos. 39

Siehe dazu Matthew C. R. Craven, New Zealand's Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand ν. France), International and Comparative Law Quarterly, vol. 45, 1996,725; Thilo Maraun/Karin OellersFrahm, Atomwaffen, Völkerrecht und die internationale Gerichtsbarkeit, Anmerkungen zur Spruchpraxis internationaler Organe hinsichtlich der völkerrechtlichen Zulässigkeit von Atomwaffentests, der Drohimg mit oder des Einsatzes von Atomwaffen, Europäische Grundrechte Zeitung 1997, 221 m.w.N. 40

Abs. 1-43.

41

Abs. 1 - 6.

42

Nuclear Tests (New Zealand ν. France), ICJ Reports 1974, 457.

472

Ursula Ε. Heinz

habe der Gerichtshof wegen Fortfalls des Streitgegenstandes über die von Neuseeland gegen Frankreich eingeleitete Klage in der Sache nicht entschieden, nachdem Frankreich erklärt habe, daß es seine oberirdischen Atomwaffenversuche einstellen werde. Um jedoch der Möglichkeit, daß Frankreich dieses Versprechen nicht einhalten oder andere das Urteil tragende Umstände nicht eintreffen würden, Rechnung zu tragen, habe der Gerichtshof in sein Urteil von 1974 den Absatz 63 aufgenommen, demzufolge der Kläger gemäß den Bestimmungen des IGH-Statuts einen Antrag auf Uberprüfung der Umstände stellen könne, falls die Grundlage des Urteils berührt werde; an einem solchen Antrag sei der Kläger auch nicht durch die von Frankreich am 2. Januar 1974 ausgesprochene Kündigung der Generalakte für die friedliche Beilegung internationaler Streitigkeiten, die die Zuständigkeit des Gerichtshofes für diesen Fall begründe, gehindert. Die entscheidende Passage im Absatz 63 des Urteils vom 20. Dezember 1974 sei der Satz „sollte die Grundlage dieses Urteils berührt werden, könnte der Kläger in Ubereinstimmung mit den Bestimmungen des Statuts eine Uberprüfung der Umstände beantragen". Mit dieser Passage werde zwar nicht ausdrücklich gekennzeichnet, was die Grundlage des Urteils sei, sehr wahrscheinlich aber habe der Gerichtshof damit auf die verbindlichen Erklärungen Frankreichs, in der südpazifischen Region keine weiteren oberirdischen Atomtests mehr durchzuführen, verweisen wollen. Bei der Klage von 1973 sei es jedoch um nukleare Kontamination der Umwelt durch Atomtests jedweder Art gegangen. 1974 habe Frankreich nur oberirdische Atomtests durchgeführt, deshalb sei es Neuseeland damals in erster Linie um diese gegangen. Der Gerichtshof habe seinerzeit gemeint, das Versprechen Frankreichs entspreche den Belangen Neuseelands und daher den Streit als erledigt betrachtet, was er aber sicher nicht getan hätte, wenn er gewußt hätte, daß mit einem Umstieg auf unterirdische Atomtests die Gefahren einer Kontamination nicht behoben seien; die Grundlage seines Urteils habe sich daher geändert, so daß Neuseeland das 1973 eingeleitete Verfahren wiederaufgreifen könne, wobei die Zuständigkeit des Gerichtshofes unverändert auf der Generalakte für die friedliche Beilegung internationaler Streitigkeiten von 1928 beruhe. Neuseeland hatte ferner vorgetragen, sowohl auf Grund besonderer vertraglicher Verpflichtungen aus der Noumea-Konvention als auch nach Völkergewohnheitsrecht müsse Frankreich vor weiteren Atomtests bei Mururoa und Fangataufa eine Umweltverträglichkeitsprüfung durchführen; nach dem anerkannten Vorsorgeprinzip sei Frankreich zu dem Nachweis verpflichtet, daß die neuen unterirdischen Atomtests keine radioaktiven Stoffe in die Meeresumwelt einbringen. Neuseeland hatte daher beantragt, der Gerichtshof solle urteilen und erklären, 1. daß die Durchführung der angekündigten Atomtests die Rechte sowohl Neuseelands als auch anderer Staaten nach Völkerrecht verletzen;

Rechtsprechung des Internationalen Gerichtshofes in den ahren 1995 und 1996

2. daß Frankreich rechtswidrig handelt, wenn es derartige Atomtests ohne eine vorherige Umweltverträglichkeitsprüfung nach anerkannten internationalen Standards durchführt. Wenn eine solche Prüfung nicht ergibt, daß die Tests weder unmittel- noch mittelbar zu einer radioaktiven Kontamination der Meeresumwelt führen, werden die Rechte Neuseelands wie auch anderer Staaten verletzt. Parallel zu diesem Antrag auf Prüfung der Umstände hatte Neuseeland unter Berufung auf die Verfügung vorsorglicher Maßnahmen des Gerichtshofes vom 22. Juni 1973 und auf sein Urteil vom 20. Dezember 1974 beantragt, in Ubereinstimmung mit Art. 33 Abs. 1 der Generalakte für die friedliche Regelung internationaler Streitigkeiten von 1928 und Art. 41 IGH-Statut weitere vorsorgliche Maßnahmen bezüglich der von Frankreich geplanten Atomversuche zu erlassen.43 Der Gerichtshof verweist sodann darauf, daß Australien, Samoa, die Salomonen, die Marshallinseln und Mikronesien Beitrittsanträge nach Art. 62 IGH-Statut gestellt bzw. Beitrittserklärungen nach Art. 63 IGH-Statut abgegeben hatten, und zwar sowohl bezüglich des Uberprüfungsverfahrens als auch des Antrags auf Erlaß vorsorglicher Maßnahmen.44 Der Gerichtshof erläutert anschließend das Vorbringen Frankreichs. 45 Dieses war der Ansicht gewesen, daß schon prima facie keine Zuständigkeit des Gerichtshofes, sich mit den Anträgen Neuseelands zu befassen, bestehe. Das Vorgehen Neuseelands habe mit dem Urteil im Atomtestfall von 1974 nichts zu tun, weil es in dem Fall, wie auch der Gerichtshof in Abs. 29 seines Urteils betont habe, ausschließlich um oberirdische Atomtests gegangen sei. Damals sei der Gerichtshof davon ausgegangen, daß der von Neuseeland erhobene Anspruch mit der Ankündigung Frankreichs, oberirdische Atomtests nicht mehr durchzuführen und zu unterirdischen Tests überzugehen, erloschen sei. Da mangels Zustimmung Frankreichs der Gerichtshof unzuständig sei, erhebe sich weder die Frage einer Ad-hoc-Richterwahl noch die eines Erlasses vorsorglicher Maßnahmen. Die Sache dürfe nicht auf die Liste der anhängigen Verfahren gesetzt werden. Im weiteren faßt der Gerichtshof die in schriftlichen informellen aide-mémoires und in der mündlichen Verhandlung vorgetragenen Stellungnahmen der Parteien zusammen.46 Sodann befindet er, daß er den Antrag Neuseelands auf Prüfung der Umstände auf die Liste der anhängigen Verfahren setzen müsse, damit er in der Lage sei, die um-

43

Abs. 8.

44

Abs. 11.

45

Abs. 13.

46

Abs. 17 - 42.

474

Ursula Ε. Heinz

strittene Frage zu entscheiden, ob die Bedingungen des Abs. 63 seines Urteils vom 20. Dezember 1974 im Atomtestfall erfüllt seien.47 Mit dieser Frage setzt sich der Gerichtshof anschließend auseinander. In ihr steckten zwei Elemente: Das eine Element betreffe den vom Gerichtshof vorgesehenen Verfahrensverlauf, wenn er damals festgestellt habe, der Kläger könne eine Überprüfung der Umstände „in Übereinstimmung mit den Bestimmungen des Statuts" beantragen; das andere Element beziehe sich darauf, ob die „Grundlage" dieses Urteils im Sinne seines Abs. 63 „berührt" worden sei.48 Zunächst überprüft der Gerichtshof das erste Element49 und stellt das dazu von den Parteien vorgetragenen Vorbringen gegenüber. Neuseeland hatte sich auf den Standpunkt gestellt, Abs. 63 des Urteils sei ein Mechanismus, der es erlaube, das Verfahren von 1973/74 fortzuführen oder wiederaufzugreifen. Der Gerichtshof habe dafür sorgen wollen, daß der Verlauf künftiger Ereignisse es gerechterweise Neuseeland ermöglichen solle, den Fall, der 1974 beendet worden sei, fortzuführen. Zu diesem Zwecke habe der Gerichtshof in Abs. 63 dieses abgeleitete Verfahren vorgesehen. Damit habe er das Recht verliehen, unter bestimmten Umständen „eine Überprüfung der Umstände in Übereinstimmung mit den Bestimmungen des Statuts zu beantragen". Diese Worte könnten nur bedeuten, daß der dann gestellte Antrag Teil desselben Falles und nicht eines neuen sein solle. Mit den „Bestimmungen des Statuts" in Abs. 63 könne nur auf Bestimmungen bezüglich des Verfahrens verwiesen worden sein, die im Falle einer Antragstellung anwendbar seien. Sein Antrag sei weder auf eine Auslegung des Urteils nach Art. 60 des Statuts noch auf eine Wiederaufnahme des Verfahrens nach Art. 61 des Statuts gerichtet. Frankreich hatte demgegenüber die Ansicht vertreten, daß der Gerichtshof ausdrücklich festgestellt habe, daß die möglichen Schritte, auf die er angespielt habe, in Übereinstimmung mit den „Bestimmungen des Statuts" zu ergreifen seien. Das sei ein Grundsatz, der auch ohne ausdrückliche Erwähnung gelte. Jedes Vorgehen des Gerichtshofes werde vom Statut bestimmt, das die Kompetenzen des Gerichtshofes und das von den Staaten einzuhaltende Verhalten vorgebe, von dem nicht einmal einvernehmlich abgewichen werden könne. Deshalb könne ein Staat nicht einseitig vor dem Gerichtshof ohne Grundlage im Statut verfahren. Neuseeland stütze sich nicht und könne sich auch nicht stützen auf irgendeine Bestimmung, die in verfahrensmäßiger Hinsicht sein Vorgehen rechtfertigt. Es handele sich weder um einen Antrag auf Auslegung noch um einen Wiederaufnahmeantrag noch um eine neue Klage, deren Aufnahme in die Liste anhängiger Verfahren schon gar nicht zur Debatte stünde.

47

Abs. 44.

48

Abs. 47.

49

Abs. 48 - 54.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Der Gerichtshof kommt zu dem Schluß, daß er mit den Worten „der Kläger könnte eine Uberprüfung der Umstände in Ubereinstimmung mit den Bestimmungen des Statuts beantragen" nicht bezweckt haben konnte, den Kläger auf rechtliche Verfahren wie Klageerhebung, Auslegungs- oder Wiederaufnahmeantrag zu verweisen, die er ohnehin einschlagen könne. Vielmehr habe er damit für den Fall des Eintritts von Umständen, die die „Grundlage" des Urteils „berühren", ein besonderes Verfahren nicht ausschließen wollen. Dieses Verfahren sei untrennbar mit dem Vorhandensein solcher Umstände verbunden, es könne nicht eingeschlagen werden, wenn die fraglichen Umstände nicht einträten. Sodann befaßt sich der Gerichtshof mit dem zweiten Element,50 nämlich mit der Frage, ob die Grundlage seines Urteils von 1974 durch die Tatsachen, auf die Neuseeland sich bezieht, berührt worden sei und der Gerichtshof die Umstände folglich, wie in Abs. 63 seines Urteils vorgesehen, überprüfen könne. Dafür müsse er an Hand des Textes zunächst definieren, was Grundlage seines Urteils von 1974 gewesen sei. In seinen damaligen Gründen habe er die Klage zum Ausgangspunkt genommen und mit Hilfe dieser, dem Vorbringen des Klägers und anderen Dokumenten, auf die dieser sich bezogen hätte, den eigentlichen Streitgegenstand und Sinn und Zweck des geltend gemachten Anspruches ermittelt. Dabei habe er sich u. a. auf eine Verlautbarung des Premierministers von Neuseeland bezogen, derzufolge die Möglichkeit weiterer oberirdischer Versuche offengeblieben sei und der Streit zwischen Neuseeland und Frankreich fortdauere, bis man sicher sei, daß Atomtests dieser Art endgültig beendet seien. Daraus habe er geschlossen, daß die neuseeländische Klage sich nur auf oberirdische und nicht auf andersartige Atomtests bezogen habe, und zwar auf solche Versuche, bei denen die Gefahr radioaktiven Niederschlags auf neuseeländisches Territorium bestehe. In dem am gleichen Tage gefällten Urteil im Atomtest-Fall Australien gegen Frankreich, 51 in dem Australien ausdrücklich beantragt habe, daß er urteile und erkläre, daß die Durchführung weiterer oberirdischer Atomwaffenversuche unvereinbar mit den anwendbaren Normen des Völkerrechts sei, habe er in Abs. 60 die gleichen Formulierungen wie in Abs. 63 des Falles Neuseeland gegen Frankreich gebraucht; auch der Tenor beider Urteile sei der gleiche; dem Gerichtshof seien beide Fälle von ihrem Gegenstand her, der ausschließlich oberirdische Atomtests beinhaltet habe, identisch erschienen. Wenn er damals zu diesem Ergebnis gelangt sei, könne er jetzt die Frage, ob Neuseelands Klage von 1973 umfassendere Ziele als nur die Beendigung oberirdischer Atomtests zum Gegenstand gehabt habe, nicht wiederaufgreifen; denn jetzt dürfe er nur das Urteil von 1974 einer Analyse unterziehen.

50

Abs. 55-66.

51

Nuclear Tests (Australia ν. France), ICJ Reports 1974, 253.

476

Ursula Ε. Heinz

Zudem habe er seinerzeit eine Verlautbarung des französischen Präsidenten zur Kenntnis genommen, nach der Frankreich angesichts seines erreichten Standes im nuklearen Verteidigungsprogramm in der Lage sei, nach einer Reihe von im Sommer geplanten Tests auf unterirdische Explosionen überzugehen. Daraus und aus ähnlichen offiziellen Erklärungen Frankreichs habe er eine Selbstverpflichtung hergeleitet, bei der die dahinter stehende Absicht und die äußeren Umstände zu berücksichtigen seien. Frankreich habe seine Erklärungen außerhalb des Gerichts öffentlich und erga omnes abgegeben und zum Ausdruck gebracht, daß es beabsichtige, seine oberirdischen Tests zu beenden. Der Gerichtshof habe damals das Versprechen Frankreichs mit dem Begehren Neuseelands verglichen und befunden, daß er sich einer Situation gegenübersehe, in der das Ziel des Klägers faktisch erreicht worden sei; dementsprechend habe er erklärt, daß die Klage erledigt sei und es nichts mehr gebe, worüber er urteilen könne. Die Grundlage des Urteils von 1974 sei folglich das Versprechen Frankreichs, keine oberirdischen Atomtests mehr durchzuführen, gewesen. Deshalb wäre die Grundlage dieses Urteils nur dann berührt, wenn wieder oberirdisch getestet würde, was aber nicht der Fall sei. Da er bei der Analyse seines Urteils von 1974 zum Schluß gelangt sei, daß jenes sich nur mit oberirdischen Tests befaßt habe, könne er jetzt nicht Fragen, die sich auf unterirdische Tests beziehen, berücksichtigen. Deshalb könne er sich ebensowenig mit dem Vorbringen Neuseelands befassen, insoweit es sich auf die unterirdischen Atomtests seit 1974 und die Entwicklung des Völkerrechts in den vergangenen Jahrzehnten, insbesondere den Abschluß der Noumea-Konvention von 1986, beziehe, wie mit dem Vorbringen Frankreichs hinsichtlich des Verhaltens Neuseelands seit 1974. Schließlich verweist der Gerichtshof darauf, daß seine Verfügung nichts mit den Verpflichtungen der Staaten zur Achtung und zum Schutze der Umwelt zu tun habe, Verpflichtungen, die die Parteien im vorliegenden Falle bekräftigt hätten. Der Gerichtshof befindet daher, daß die Grundlage des Urteils von 1974 nicht berührt worden sei, Neuseelands Antrag daher nicht den Bestimmungen des Abs. 63 dieses Urteils entspreche und der Antrag folglich zurückgewiesen werden müsse. Abschließend stellt der Gerichtshof fest, daß er folglich auch Neuseelands weiteren Antrag auf Erlaß vorsorglicher Maßnahmen sowie die Interventionsanträge Australiens, Samoas, der Salomonen, der Marshallinseln und Mikronesiens zurückweisen müsse. Dementsprechend befindet der Gerichtshof mit zwölf gegen drei Stimmen,52 daß 1. der von Neuseeland am 21. August 1995 eingereichte Antrag auf Uberprüfung der Umstände gemäß Abs. 63 seines Urteils vom 20. Dezember 1974 im Atomtestfall (Neuseeland gegen Frankreich) nicht den Bestimmungen des besagten Abs. 63 entspricht und dementsprechend zurückzuweisen ist; 52

Gegenstimmen: Richter Weeramantry,

Koroma, Ad-hoc-Richter Sir Geoffrey

Palmer.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

2. mit zwölf gegen drei Stimmen,53 daß der am gleichen Tage von Neuseeland eingelegte weitere Antrag auf Erlaß vorsorglicher Maßnahmen zurückzuweisen ist; 3. mit zwölf gegen drei Stimmen,54 daß der von Australien eingebrachte Antrag auf Zulassung zur Intervention sowie die von Samoa, den Salomonen, den Marshallinseln und Mikronesien abgegebenen Interventionserklärungen ebenso zurückzuweisen sind. Die Richter Oda und Ranjeva legten der Verfügung Erklärungen, Richter Shahabuddeen eine eigene Meinung, die Richter Weeramantry, Koroma und Ad-hocRichter Sir Geoffrey Palmer abweichende Meinungen bei. Die abweichenden Meinungen werden im wesentlichen damit begründet, daß es Australien im früheren wie im vorliegenden Verfahren um die Abwehr von radioaktiver Kontamination gegangen sei und daß es daher nicht auf die Frage ober- oder unterirdischer Tests ankomme. Der Gerichtshof hätte ihrer Ansicht nach das damalige Verfahren fortführen müssen. IV. Fall betreffend die Land- und Seegrenze zwischen Kamerun und Nigeria (Kamerun gegen Nigeria) Vorsorgliche Maßnahmen Verfügung vom 15. März 1996, ICJ Reports 1996, 13

Besetzung des Gerichtshofes: Präsident Bedjaoui; Vizepräsident Schwebel; Richter Oda, Guillaume , Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleisc Koroma, Vereshchetin, Ferrari Bravo, Higgins , Ρ a rra-A ra ngu ren ; Ad-hoc-Rich Mbaye, Ajibola. Der Gerichtshof geht zunächst, wie üblich, auf die Prozeßgeschichte und den Stand des Verfahrens ein.55 Als vorsorgliche Maßnahmen hatte Kamerun beantragt: 1. Die bewaffneten Streitkräfte der Parteien ziehen sich auf die Position zurück, die sie vor dem nigerianischen bewaffneten Angriff vom 3. Februar 1996 innehatten. 2. Bis zur Entscheidung des Gerichtshofes enthalten sich die Parteien jeglicher militärischer Aktivitäten entlang der gesamten Grenze. 3. Die Parteien tun oder unternehmen nichts, was die Beweiserhebung im diesem Falle vereiteln könnte.56 53

Gegenstimmen: siehe Anm. 51.

54

Gegenstimmen: siehe Anm. 51.

55

Abs. 1 - 27.

56

Abs. 20.

478

Ursula Ε. Heinz

Nigeria übermittelte demgegenüber unter der Überschrift „Regierung von Kamerun zwingt Nigerianer in Bakassi (umstrittenes Territorium), sich für die Kommunalwahlen registrieren zu lassen und zu wählen" eine nicht als Gegenantrag zu verstehende57 Verlautbarung, daß Kamerun als souveräner Staat zwar das Recht habe, Wahlen auf seinem Staatsgebiet anzuberaumen und durchzuführen, daß dieses Recht sich aber nicht auf zwischen ihnen umstrittene Gebiete erstrecken könne und dürfe; in flagranter Verletzung dieses grundlegenden Prinzips habe Kamerun Teile der Bakassi-Halbinsel in die Wahlbezirke miteinbezogen und darüber hinaus nigerianische Bewohner gezwungen, sich registrieren zu lassen und für die herrschende, von Präsident Biya geführte CPDM-Partei zu stimmen, andernfalls mit sehr ernsten Sanktionen seitens der örtlichen Polizei zu rechnen sei. Nigeria ersucht den Gerichtshof daher, diesen Protest zur Kenntnis zu nehmen und Kamerun zur Ordnung zu rufen; Kamerun solle davor gewarnt werden, bis zur endgültigen Entscheidung des Gerichtshofes in dieser Sache weiterhin nigerianische Bürger auf der Bakassi-Halbinsel zu belästigen.58 In der Sache selbst befaßt sich der Gerichtshof kurz mit seiner Zuständigkeit im Zusammenhang mit der Anordnung vorsorglicher Maßnahmen59 und der Zulässigkeit der Klage60 und kommt zum Ergebnis, daß prima facie gegen seine Zuständigkeit keine Bedenken bestünden, da beide Parteien vorbehaltlos Erklärungen nach Art. 36 Abs. 2 seines Statuts abgegeben hätten. Auch sei im Hinblick auf die ausführliche Klageschrift Kameruns die Klage nicht prima facie unzulässig. Sodann verweist er auf die rechtlichen Voraussetzungen für die Anordnung vorsorglicher Maßnahmen: Ziel einer solchen Anordnung sei es, im Dringlichkeitsfall während eines laufenden Verfahrens die Vereitelung von umstrittenen Rechten der Beteiligten, die Gegenstand der Entscheidung seien, zu verhindern. Nigeria habe zwar geltend gemacht, durch die Vermittlung des Präsidenten von Togo sei es am 17. Februar 1996 zu einem Waffenstillstand gekommen, so daß sich der Eilantrag Kameruns erledigt habe, dieser Umstand berühre indes nicht die Rechte und Pflichten des Gerichtshofes. Die Einzelheiten der Zwischenfälle auf der Bakassi-Halbinsel seien zwischen den Parteien umstritten, unstreitig sei jedoch, daß es zu bewaffneten Zusammenstößen mit der Folge von Todesfällen, Verwundeten, Vermißten und größerem Sachschaden gekommen sei. Im vorliegenden Verfahren gehe es um die Frage souveräner Rechte der Parteien auf Staatsgebiet, die auch Personen beträfen; die bewaffneten Zwischenfälle hätten auf dem Gebiet stattgefunden, das Gegenstand des Verfahrens sei; wie 57

Abs. 26.

58

Abs. 23.

59

Abs. 28-31.

60

Abs. 32-33.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

sowohl der frühere Ständige als auch der jetzige Gerichtshof in früheren Entscheidungen betont hätten, dürften Vorfälle, die den Streit wahrscheinlich verschärfen oder erweitern, in keinem Falle und in keinerlei Ausmaß das Bestehen oder den Wert der von jeder Partei beanspruchten souveränen Rechte über das Territorium berühren, sollten diese Rechte vom Gerichtshof in einer späteren Entscheidung in der Hauptsache ordnungsgemäß anerkannt werden. Der Gerichtshof könne nach Art. 41 seines Statuts unabhängig von den Anträgen der Parteien zur Wahrung bestimmter Rechte, wann immer er es für nötig halte, vorsorgliche Maßnahmen anordnen, um die Verschärfung oder Erweiterung eines Streits zu verhindern. Die Ereignisse, die zu dem Eilantrag geführt hätten, insbesondere die Tötung von Menschen, hätten zu einem irreparablen Schaden an den Rechten, die die Parteien möglicherweise an der Halbinsel haben, geführt; Personen im umstrittenen Gebiet und damit die Rechte der Parteien innerhalb dieses Gebiets seien der ernsthaften Gefahr weiteren irreparablen Schadens ausgesetzt; bewaffnete Aktionen könnten Beweismittel, die für den vorliegenden Fall von Bedeutung seien, gefährden; außerdem bestehe Wiederholungsgefahr für Ereignisse, die den Streit verschärfen oder erweitern könnten, was eine Streitbeilegung erschweren würde. Im Eilverfahren könne der Gerichtshof nicht zu abschließenden Erkenntnissen hinsichtlich des Tatbestandes und der Zurechenbarkeit kommen; die Rechte jeder Partei, angebliche Tatsachen zu bestreiten, die Verantwortlichkeit für solche Tatsachen in Frage zu stellen und Stellungnahmen hinsichtlich der Hauptsache abzugeben, dürfe durch diese gerichtliche Entscheidung nicht berührt werden.61 Abschließend verweist der Gerichtshof darauf, daß die Entscheidung im vorliegenden Eilverfahren keinesfalls die Fragen der Zuständigkeit des Gerichtshofes, der Zulässigkeit der Klage oder der Hauptsache selbst präjudiziere und die Rechte der Parteien, diesbezügliche Stellungnahmen abzugeben, unberührt lasse.62 Er erwähnt ferner Briefe des Präsidenten des Sicherheitsrats, in denen die Parteien aufgerufen worden seien, den am 17. Februar beschlossenen Waffenstillstand einzuhalten, sich weitere Gewaltanwendung zu enthalten und ihre Streitkräfte auf die Positionen zurückzuziehen, die sie innegehalten hätten, bevor der Streit dem Gerichtshof unterbreitet worden sei, und daß der Einsatz einer Fact-finding Mission geplant sei.63 Im Ergebnis verfügt der Gerichtshof folgende vorsorglichen Maßnahmen: 1. einstimmig, daß beide Parteien sicherstellen, daß keinerlei Handlung, insbesondere nicht durch ihre bewaffneten Streitkräfte, unternommen wird, die die Rechte der anderen Partei bezüglich des Urteils präjudizieren oder den Streit vor dem Gericht verschärfen oder erweitern könnte; 61

Abs. 34 - 43.

62

Abs. 44.

63

Abs. 45 - 46.

480

Ursula Ε. Heinz

2. mit sechzehn Stimmen gegen eine,64 daß beide Parteien das zwischen den Außenministern am 17. Februar 1996 vereinbarte Abkommen über die Beendigung aller Feindlichkeiten auf der Bakassi-Halbinsel einhalten; 3. mit zwölf gegen fünf Stimmen,65 daß beide Parteien sicherstellen, daß sich auf der Bakassi-Halbinsel bewaffnete Streitkräfte nicht jenseits der Positionen aufhalten, die sie vor dem 3. Februar 1996 innegehalten haben; 4. mit sechzehn Stimmen gegen eine,66 daß beide Parteien alles tun, um die für den vorliegenden Fall einschlägigen Beweismittel zu bewahren; 5. mit sechzehn Stimmen gegen eine,67 daß beide Parteien die vom Generalsekretär der Vereinten Nationen vorgeschlagene Fact-finding Mission in jeder Weise unterstützen.

Die Richter Oda, Shahabuddeen, Ranjeva, Koroma und Ad-hoc-Richter Mbaye ga ben Erklärungen, die Richter Weeramantry, Shi und Vershchetin eine gemeinsame Erklärung ab; Ad-hoc-Richter Ajibola gab eine gesonderte Erklärung ab. V. Fall betreffend die Anwendung der Konvention über die Verhütung und Bestrafung des Völkermordes68 (Bosnien-Herzegowina gegen Jugoslawien) Urteil vom 11. Juli 1996 über vorgängige Einreden

Besetzung des Gerichtshofes: Präsident Bedjaoui\ Vizepräsident Schwebel; Richter Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koro Vershchetin, Ferrari Bravo, Parra-Aranguren; Ad-hoc-Richter Lauterpacht, Kreca Der Gerichtshof faßt im Rahmen der Prozeßgeschichte69 noch einmal den Verlauf des am 20. März 1993 eingeleiteten Verfahrens bis zur Verfügung der vorsorglichen Maßnahmen zusammen,70 verweist darauf, daß er durch Verfügung vom 21. März 1995 auf Antrag Jugoslawiens die Frist für die Klageerwiderung bis zum 30. Juni 1995 64

Gegenstimme: Ad-hoc-Richter Ajibola.

65

Gegenstimmen: Richter Shahabuddeen, Weeramantry, Ajibola. 66

Gegenstimme: Ad-hoc-Richter Ajibola.

67

Gegenstimme: Ad-hoc-Richter Ajibola.

Shi, Vereshchetin,

68

Ad-hoc-Richter

Siehe William L. Hurlock , The International Court of Justice: Effectively Providing a Long Overdue Remedy for Ending State-Sponsored Genocide (Bosnia-Herzegovina v. Yugoslavia), American University Journal of International Law and Policy, vol. 12, 299. 69

Abs. 1 -15.

70

Siehe dazu bereits Pardo Lopez (Anm. 1), 450 - 453 und 458 - 460.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

verlängert habe und daß Jugoslawien innerhalb dieser Frist vorgängige Einreden gegen seine Zuständigkeit und die Zulässigkeit der Klage vorgebracht habe,71 so daß er das Verfahren zur Hauptsache ausgesetzt habe. Am 2. Februar 1996 habe Jugoslawien ihm das Dayton-Friedensabkommen als für das Verfahren einschlägiges Dokument übermittelt. Er stellt sodann fest, daß Bosnien-Herzegowina die Zuständigkeit des Gerichtshofes in erster Linie auf Art. DC der Völkermordkonvention gestützt habe. Zunächst wolle er sich daher mit den dagegen vorgebrachten Einreden befassen, wobei mit der dritten Einrede Jugoslawiens bestritten werde, daß die Konvention zwischen den Parteien verbindlich sei, während mit der fünften Einrede bestritten werde, daß der Streit zu den von Art. IX der Konvention erfaßten Fällen gehöre.72 Im Rahmen der Uberprüfung seiner Zuständigkeit ratione personae n verweist der Gerichtshof darauf, daß sich die Gebiete der beiden an diesem Verfahren beteiligten Staaten innerhalb des ehemaligen Jugoslawien befänden, welches 1950 vorbehaltlos die Völkermordkonvention ratifiziert habe. Jugoslawien habe am 27. April 1992 anläßlich seiner Proklamation, daß es jenes Völkerrechtsubjekt weiterhin repräsentiere, erklärt, daß es allen von jenem eingegangenen internationalen Bindungen unterliege, und diese Absicht den Vereinten Nationen notifiziert. Außerdem sei nicht bestritten, daß Jugoslawien Vertragspartei der Konvention sei. Folglich sei Jugoslawien zum Zeitpunkt der Einleitung dieses Verfahrens an die Bestimmungen der Konvention gebunden gewesen. Bosnien-Herzegowina habe seinerseits den Vereinten Nationen am 29. Dezember 1992 notifiziert, daß es im Wege der Nachfolge mit Wirkung vom 6. März 1992, dem Zeitpunkt seiner Unabhängigkeit, den Bindungen der Konvention unterliegen wolle, was der Generalsekretär am 18. März 1993 den Parteien der Konvention mitgeteilt habe. Jugoslawien hatte die Gültigkeit der Notifikation vom 29. Dezember 1992 mit dem Vorbringen bestritten, daß Bosnien-Herzegowina seine Unabhängigkeit mit Handlungen erreicht habe, die sich als Verletzungen des Prinzips gleicher Rechte und des Selbstbestimmungsrechts der Völker darstellten, so daß es als Mitglied der Konvention ungeeignet gewesen sei. Der Gerichtshof weist demgegenüber darauf hin, daß Bosnien-Herzegowina gemäß den Beschlüssen der dafür nach der Charta zuständigen Organe Sicherheitsrat und Generalversammlung vom 22. Mai 1992 Mitglied der Vereinten Nationen geworden sei. Da die Völkermordkonvention nach ihrem Art. XI jedem Mitglied der Vereinten Nationen offen stehe, habe Bosnien-Herzegowina mit seiner Aufnahme in die Ver-

71 Von den insgesamt sieben Einreden wurde in der mündlichen Verhandlung die vierte Einrede nicht mehr erhoben. Von der Wiedergabe der Einreden wird hier wegen ihres mehrere Seiten umfassenden Inhalts abgesehen.

3

72

Abs. 16.

73

Abs. 17 - 26.

GYIL40

482

Ursula Ε. Heinz

einten Nationen Vertragspartei der Konvention werden können. Die Umstände, unter denen es seine Unabhängigkeit erlangt habe, seien daher unerheblich. Damit stehe fest, daß Bosnien-Herzegowina im Wege der Staatennachfolge Mitglied der Konvention habe werden können. Die Streitparteien zögen jedoch unterschiedliche Rechtsfolgen aus einer im vorliegenden Fall eingetretenen Nachfolge. Nach Bosnien-Herzegowinas Vorbringen gehöre die Völkermordkonvention zum Instrumentarium des Menschenrechtsschutzes, so daß die Regel der „automatischen Nachfolge" anwendbar sei; folglich sei es mit Wirkung vom Zeitpunkt des Erlangens seiner Unabhängigkeit Vertragspartei der Konvention geworden. Der Gerichtshof läßt es jedoch dahingestellt, ob bei bestimmten Arten internationaler Verträge oder Konventionen das Prinzip der automatischen Nachfolge zur Anwendung gelangt: es komme nicht darauf an, ob Bosnien zum Zeitpunkt des Erlangens seiner Unabhängigkeit oder zum Zeitpunkt seiner Erklärung vom 29. Dezember 1992 die Nachfolge in die Völkermordkonvention angetreten habe, denn jedenfalls sei es zum Zeitpunkt der Klageerhebung Vertragspartei gewesen. Jugoslawien hatte in seiner sechsten Einrede ferner geltend gemacht, daß, sofern die Erklärung Bosnien-Herzegowinas vom 29. Dezember 1992 als Beitrittserklärung im Sinne von Art. X I der Konvention interpretiert werde, der Beitritt nach Art. XIII der Konvention erst am 90. Tage nach seiner Hinterlegung wirksam geworden sei. Der Gerichtshof verweist demgegenüber darauf, daß Bosnien-Herzegowina im Wege der Staatennachfolge Vertragspartei der Konvention geworden sei, so daß Art. X I und ΧΠΙ nicht zur Anwendung kämen. Selbst aber wenn man Bosniens Erklärung als Beitritt werten würde — was zur Folge hätte, daß die Klage neun Tage zu früh eingelegt worden wäre —, hätte Bosnien diesen formellen Verfahrensfehler durch erneute Klageerhebung heilen können; der Gerichtshof müsse formellen Erwägungen nicht die gleiche Bedeutung zumessen, die sie möglicherweise im innerstaatlichen Recht hätten. Jugoslawien hatte weiter vorgetragen, daß selbst bei einer Bindung Bosniens an die Konvention im März 1993 diese Konvention nicht zwischen den Streitparteien in Kraft befindlich gewesen sei, da sich die beiden Staaten nicht gegenseitig anerkannt hätten und folglich die erforderlichen Voraussetzungen für eine einvernehmliche Zuständigkeit des Gerichtshofes nicht erfüllt gewesen seien. Dem setzt der Gerichtshof entgegen, daß jedenfalls mit der Unterzeichnung und dem Inkrafttreten des Dayton-Abkommens am 14. Dezember 1995 diese Voraussetzungen erfüllt worden seien. Zwar müsse normalerweise seine Zuständigkeit zum Zeitpunkt der Klageerhebung vorliegen, er wie auch sein Vorgänger, der Ständige Internationale Gerichtshof, hätten jedoch immer nach dem Prinzip gehandelt, daß ein Fehler bei einem Verfahrensschritt, dem der Kläger ohne weiteres durch Einlegung einer neuen Klage abhelfen könnte, nicht sanktioniert werden solle. Selbst wenn man im vorliegenden Falle unterstellen würde, daß die Parteien im Verhältnis zueinander erst mit Wirkung vom 14. Dezember 1995 durch die Konvention gebunden seien, könne er seine Zu-

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

ständigkeit aufgrund der Konvention nicht verneinen, da Bosnien jederzeit eine neue identische Klage einreichen könnte, die insoweit unanfechtbar wäre. Die dritte Einrede Jugoslawiens sei daher zu verwerfen. Als nächstes befaßt sich der Gerichtshof mit der fünften Einrede Jugoslawien, mit der die Zuständigkeit des Gerichtshofes ratione materiae 74 mit dem Vorbringen, daß der Streit außerhalb des Anwendungsbereichs des Art. IX der Völkermordkonvention liege, bestritten worden war. Nach dieser Vorschrift werden Streitfälle zwischen den Vertragschließenden Parteien hinsichtlich der Auslegung, Anwendung oder Durchführung dieser Konvention einschließlich derjenigen, die sich auf die Verantwortlichkeit eines Staates für Völkermord oder eine der sonstigen in Artikel III aufgeführten Handlungen beziehen, auf Antrag einer der an dem Streitfall beteiligten Parteien dem Internationalen Gerichtshof unterbreitet. Der Gerichtshof stellt fest, daß bei beiden Parteien eindeutig gegensätzliche Ansichten über die Frage der Einhaltung oder Nichteinhaltung bestimmter vertraglicher Pflichten bestünden und daß wegen der Nichtanerkennung der Ansprüche Bosniens seitens Jugoslawiens ein Rechtsstreit bestehe. Er müsse jedoch klären, ob dieser Streit den Regelungen des Art. IX der Völkermordkonvention unterfalle. Jugoslawien hatte geltend gemacht, daß es sich im vorliegenden Falle nicht um einen internationalen Streitfall im Sinne der Konvention handele, zum einen, weil der in bestimmten Teilen des klägerischen Gebiets stattfindende Konflikt innerstaatlicher Art gewesen sei, es daran nicht beteiligt gewesen sei und in diesem Gebiet keine Hoheitsgewalt ausgeübt habe, und zum anderen, weil staatliche Verantwortlichkeit vom Anwendungsbereich des Art. IX ausgeschlossen sei. Den ersten Begründungsansatz verwirft der Gerichtshof unter Hinweis auf Art. I der Völkermordkonvention 75, nach dem die Art des Konflikts, im Rahmen dessen Völkermord begangen werde, für die Anwendbarkeit der Konvention ohne Bedeutung sei; ob Jugoslawien an dem Konflikt beteiligt sei, sei Sache des Haupt Verfahrens; die in der Konvention enthaltenen Rechte und Pflichten zur Verhütung und Bestrafung von Völkermord seien erga omnes-Rechte und Pflichten, so daß sie nicht territorial beschränkt seien. Hinsichtlich des zweiten Begründungsansatzes ist der Gerichtshof der Auffassung, daß Art. IX der Konvention entgegen der Ansicht Jugoslawiens nicht die Verantwortlichkeit eines Staates für einen von ihm selbst begangenen Völkermord ausschließt. Ebensowenig sei die Verantwortlichkeit eines Staates für Taten seiner Organe nach Art. IV der Konvention ausgeschlossen, wenn dort von regierenden Personen oder öffentlichen Beamten die Rede sei. Da die Parteien mithin auch über die Bedeutung und den rechtlichen Anwendungsbereich verschiedener 74 75

Abs. 27 - 33.

Art. I lautet: Die Vertragschließenden Parteien bestätigen, daß Völkermord, ob im Frieden oder im Krieg begangen, ein Verbrechen gemäß internationalem Recht ist, zu dessen Verhütung und Bestrafung sie sich verpflichten.

31*

484

Ursula Ε. Heinz

Bestimmungen der Konvention einschließlich des Art. IX stritten, bestünde zwischen ihnen Streit über die Auslegung, Anwendung oder Durchführung der Konvention einschließlich eines Streits über die Verantwortlichkeit eines Staates für Völkermord, so daß er die fünfte Einrede Jugoslawiens verwerfen müsse. Als nächstes befaßt sich der Gerichtshof mit der sechsten und siebenten vorgängigen Einrede Jugoslawiens, die sich auf die Zuständigkeit ratione temporis beziehen. Jugoslawien hatte geltend gemacht, daß sich der Gerichtshof für den Fall seiner Zuständigkeit wegen des Rückwirkungsverbots nur mit Ereignissen nach den Zeitpunkten der Anwendbarkeit der Konvention für die Parteien untereinander befassen dürfe. Dem hält der Gerichtshof entgegen, daß die Konvention, insbesondere ihr Art. IX, eine derartige Einschränkung ratione temporis nicht enthalte; auch hätten die Parteien weder zur Konvention noch anläßlich der Unterzeichnung des DaytonAbkommens einen entsprechenden Vorbehalt angebracht. Er sei daher für die Befassung mit Tatsachen seit Beginn des Konflikts in Bosnien-Herzegowina zuständig; das entspreche auch Sinn und Zweck der Konvention. Die sechste und siebente Einrede Jugoslawiens seien daher zurückzuweisen.76 Anschließend prüft der Gerichtshof von Bosnien zusätzlich geltend gemachte Grundlagen für seine Zuständigkeit,77 auf die er bereits in seinen Verfügungen über vorsorgliche Maßnahmen eingegangen war.78 Bosnien hatte sich auf ein Schreiben von Bulatovic und Milosevic gestützt, das diese am 8. Juni 1992 an den Präsidenten der Schiedskommission der internationalen Konferenz für Frieden in Jugoslawien gerichtet hatten und in dem sie die Ansicht vertraten, daß Streitfragen, die nicht einvernehmlich gelöst würden, vom Internationalen Gerichtshof entschieden werden sollten. Außerdem hatte Bosnien den Vertrag von Saint-Germain-en-Laye vom 10. September 1919, der eine Streitschlichtungsklausel durch den Ständigen Internationalen Gerichtshof enthielt, angeführt. Weiterhin hatte Bosnien gewohnheitsrechtliches und vertragliches Kriegsvölkerrecht für die Zuständigkeit des Gerichtshofes benannt. Alle diese Argumente weist der Gerichtshof jedoch unter Hinweis auf seine Ausführungen in den Verfügungen über vorsorgliche Maßnahmen, zu denen nichts Neues vorgetragen worden sei, zurück. Ebenso weist er das Argument Bosniens zurück, Jugoslawien habe sich mit seinem am 1. April 1993 gestellten Antrag auf Erlaß vorsorglicher Maßnahmen nach der Lehre vom forum prorogatum einer über Art. IX Völkermordkonvention hinausgehenden Zuständigkeit des Gerichtshofes unterworfen.

76

Siehe dazu Adrian Chua/Rohan Hardcastle , Retroactive Application of Treaties Revisited: Bosnia-Herzegovina v. Yogoslavia , Netherlands International Law Review, vol. 44, 1997, 414. 77

Abs. 35 - 41.

78

Siehe Pardo Lopez (Anm. 1), 460.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Schließlich befaßt sich der Gerichtshof mit den auf die Zulässigkeit der Klage bezogenen Einreden Jugoslawiens.79 Mit der ersten Einrede hatte Jugoslawien geltend gemacht, daß die Klage unzulässig sei, weil sie sich auf Ereignisse im Rahmen eines Bürgerkriegs bezögen, so daß kein internationaler Streit vorliege. Insoweit bezieht sich der Gerichtshof auf seine Ausführungen zur fünften Einrede, mit denen er diese Frage bereits beantwortet habe und verwirft die Einrede. Mit der zweiten Einrede hatte Jugoslawien vorgetragen, daß die Klage unzulässig sei, weil sie von Izetbegovic initiiert worden sei, der nicht Präsident der Republik, sondern nur Präsident des Präsidiums und als solcher noch nicht einmal rechtmäßig handelnd gewesen sei. Auch diese Einrede verwirft der Gerichtshof mit der Begründung, daß er sich mit innerstaatlichen Rechtsvorschriften nicht zu befassen brauche, daß vielmehr nach Völkerrecht jedes Staatsoberhaupt seinen Staat bei dessen internationalen Beziehungen vertreten könne und daß Izetbegovic bei Klageerhebung und auch danach als Staatsoberhaupt Bosnien-Herzegowinas anerkannt gewesen sei und verschiedene internationale Abkommen einschließlich des Dayton-Abkommens unterschrieben habe. Abschließend betont der Gerichtshof, daß Jugoslawien mit dem Einlegen seiner Einreden keinen Rechtsmißbrauch, wie von Bosnien behauptet, begangen habe.80 In jedem ihm unterbreiteten Fall müsse er seine Zuständigkeit und, falls erforderlich, die Zulässigkeit der Klage überprüfen. Dagegen eingelegte Einreden könnten für die Klärung der Rechtslage nützlich sein, was bei den von Jugoslawien eingelegten Einreden der Fall gewesen sei. Nachdem nunmehr seine Zuständigkeit gemäß Art. IX der Völkermordkonvention und die Zulässigkeit der Klage feststehe, könne zum Verfahren in der Hauptsache übergegangen werden. Aus diesen Gründen 1. verwirft der Gerichtshof unter Kenntnisnahme von der Rücknahme der vierten von Jugoslawien erhobenen Einrede a) mit vierzehn Stimmen gegen eine81 die erste, zweite und dritte vorgängige Einrede; b) mit elf gegen vier Stimmen82 die fünfte vorgängige Einrede; c) mit vierzehn Stimmen gegen eine83 die sechste und siebente vorgängige Einrede;

79

Abs. 42 - 45.

80

Abs. 46.

81

Gegenstimme: Ad-hoc-Richter Kreöa.

82

Gegenstimmen: Richter

83

Gegenstimme: Ad-hoc-Richter Kreca.

Oda, Shi, Vereshchetin, Ad-hoc-Richter Kreca.

486

Ursula Ε. Heinz

2. a) befindet er mit dreizehn gegen zwei Stimmen84, daß er auf der Grundlage des Art. IX der Konvention über die Verhütung und Bestrafung des Völkermordes zuständig für die Entscheidung des Streites ist; b) verwirft er mit vierzehn Stimmen gegen eine85 die von Bosnien-Herzegowina zusätzlich geltend gemachten Zuständigkeitsgrundlagen; 3. befindet er mit dreizehn gegen zwei Stimmen86, daß die von Bosnien-Herzegowina eingelegte Klage zulässig ist. Der Entscheidung fügten Richter Oda, Shi und Vershebetin (diese gemeinsam) sowie Ad-hoc-Richter Lauterpacht eine Erklärung bei, die Richter Shahabudden, Weeramantry \mà Parra-Aranguren gaben jeweils getrennte Erklärungen ab, Ad-hoc-Richter Kreca fügte seine abweichende Meinung bei. VI. Fall betreffend Ölbohrinseln 87 (Islamische Republik Iran gegen Vereinigte Staaten von Amerika) Urteil vom 12. Dezember 1996 über vorgängige Einreden

Besetzung des Gerichtshofes: Präsident Bedjaoui; Vizepräsident Schwebel; Richter Oda, Guillaume , Shahabuddeen, Weeramantry, Ranjeva,, Herczegh, Shi, Fleis Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren; Ad-höc-Rich Rigaux. Zur Prozeßgeschichte88 bemerkt der Gerichtshof, daß Iran am 2. November 1992 gegen die USA das Verfahren wegen eines Streits eingeleitet habe, der wegen der am 19. Oktober 1987 und 18. April 1988 erfolgten Angriffe amerikanischer Kriegsschiffe auf drei im Eigentum der staatlichen iranischen Olgesellschaft stehende und von ihr betriebene küstenferne Olproduktionanlagen und deren Zerstörung entstanden war. Die Klage Irans stützt sich auf den zwischen Iran und den USA geschlossenen Vertrag über Freundschaft, Wirtschaftsbeziehungen und konsularische Rechte von 1955. Nach dem Vorbringen Irans hätten die USA mit ihren Angriffen mehrere Bestimmungen dieses Vertrages verletzt. Die Zuständigkeit des Gerichtshofes ergebe sich aus 84

Gegenstimmen: Richter Oda, Ad-hoc-Richter Kreca.

85

Gegenstimme: Ad-hoc-Richter Lauterpacht.

86

Gegenstimmen: Richter Oda, Ad-hoc-Richter Kreca.

87 Barbara Kwiatkowska , Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Hague Yearbook of International Law 1996, 55. Roger S. Clark , The Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) — Preliminary Objection, Leiden Journal of International Law, vol. 10, 1997, 541. 88

Abs. 1-11.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Art. XXI Abs. 2 des Vertrages. Die USA hatten gegen die Zuständigkeit der Gerichtshof eine prozeßhindernde Einrede erhoben, so daß der Gerichtshof seiner Verfahrensordnung entsprechend das Verfahren in der Hauptsache ausgesetzt hatte und in das Verfahren zur Entscheidung über die Einrede übergegangen war. In diesem hatten die USA beantragt, daß der Gerichtshof ihrer Einrede stattgibt. Iran hatte beantragt, daß der Gerichtshof urteilt und erklärt, 1. daß die Einrede gänzlich verworfen wird, 2. daß folglich der Gerichtshof nach Art. XXI Abs. 2 des Freundschaftsvertrages zuständig für die Befassung mit den in der Klageschrift und der Klagebegründung erhobenen Anträgen Irans ist, da sich diese auf einen Streit über die Auslegung und Anwendung des Vertrages beziehen, 3. hilfsweise für den Fall, daß die vorgängige Einrede nicht völlig verworfen wird, daß die Einrede unter den Umständen des Falles keinen ausschließlich vorgängigen Charakter im Sinne von Art. 79 Abs. 7 der Verfahrensordnung hat und 4. jede andere dem Gerichtshof angebracht erscheinende Abhilfe. Der Gerichtshof führt sodann89 aus, daß die Klage Irans im Verlaufe des Verfahrens letztlich auf einen Bruch der Art. I, Art. IV Abs. 1 und Art. X Abs. 1 des Freundschaftsvertrages gestützt worden sei, nicht auf einen Bruch des Zieles und Zweckes des Vertrages oder des Völkerrechts im allgemeinen. Der Streit unterfalle nach Ansicht Irans daher entsprechend Art. XXI Abs. 2 des Vertrages der Zuständigkeit des Gerichtshofes. Die USA hatten demgegenüber darauf bestanden, daß der Streit keine Beziehung zu dem Freundschaftsvertrag aufweise und dementsprechend eine Zuständigkeit des Gerichtshofes nach Art. XXI Abs. 2 nicht gegeben sei. Im weiteren90 befaßt sich der Gerichtshof mit der Frage, ob die Voraussetzungen des Art. XXI Abs. 2 erfüllt sind, nach dem jeder Streit zwischen den Hohen Vertragschließenden Parteien über die Auslegung oder Anwendung dieses Vertrages, der nicht befriedigend auf diplomatischem Wege bereinigt wird, dem Internationalen Gerichtshof unterbreitet wird, es sei denn, daß die Hohen Vertragschließenden Parteien übereinkommen, ihn auf andere friedliche Weise beizulegen. Unstreitig sei das Vorliegen eines Streits zwischen den Parteien. Es sei auch nicht möglich gewesen, diesen auf diplomatischem Wege beizulegen, und die beiden Staaten seien nicht übereingekommen, ihn auf andere friedliche Weise beizulegen. Uneinigkeit bestünde ausschließlich in der Frage, ob der Streit über die Rechtmäßigkeit der von den USA gegen die iranischen Olplattformen durchgeführten Einsätze ein Streit über die Auslegung und Anwendung des Vertrages von 1955 sei. Um diese Frage zu beantworten, müsse der Gerichtshof feststellen, ob die von Iran geltend gemachten Vertragsverletzungen von den Vertragsbestimmungen erfaßt seien und folglich der Streit von der Sache her zu seiner Zuständigkeit gehöre.

89

Abs. 12-14.

90

Abs. 15 -16.

488

Ursula Ε. Heinz

Als erstes befaßt sich der Gerichtshof mit dem Einwand der USA, der Vertrag sei nicht anwendbar auf Fragen der Gewaltanwendung.91 Die USA hatten vorgetragen, daß der Angriff und die Zerstörung der Olplattformen im Kontext einer Serie von Attacken iranischer militärischer und paramilitärischer Streitkräfte auf amerikanische und andere neutrale Handelsschiffe geschehen seien, wobei es nicht darauf ankomme, wie diese Vorfälle im Rahmen eines bewaffneten Konflikts zu charakterisieren seien; eigentlich gehe es bei dem Streit um die Frage der Rechtmäßigkeit von Einsätzen amerikanischer Seestreitkräfte, die mit Gefechtshandlungen einhergegangen seien; demgegenüber zielten Freundschafts-, Handels- und Schiffahrtsverträge auf den gegenseitigen Schutz der Staatsangehörigen und Gesellschaften bei ihren Handels-, Unternehmens- und Finanztätigkeiten im jeweils anderen Land, so daß es keine Beziehung zwischen den rein wirtschaftlich und konsularisch ausgerichteten Bestimmungen des Vertrages und der Klage Irans, die ausschließlich auf die angeblich rechtswidrige Gewaltanwendung gestützt sei, gebe. Hierzu bemerkt der Gerichtshof zunächst, daß der Vertrag von 1955 keine Bestimmung enthalte, die bestimmte Angelegenheiten von der Zuständigkeit des Gerichtshofes ausnehme. Indes sehe Art. XX Abs. 1(d) vor, daß dieser Vertrag nicht die Anwendung solcher Maßnahmen ausschließt, die für die Erfüllung von Verpflichtungen der Hohen Vertragschließenden Parteien zur Aufrechterhaltung oder Wiederherstellung von internationalem Frieden und Sicherheit oder für den Schutz ihrer eigenen Sicherheitsinteressen erforderlich seien. Dies könne so ausgelegt werden, als seien damit bestimmte Maßnahmen vom Anwendungsbereich des Vertrages ausgeschlossen, mit der Folge, daß die Zuständigkeit des Gerichtshofes, solche Maßnahmen auf ihre Rechtmäßigkeit hin zu überprüfen, ausgeschlossen sei. Man könne dies aber auch so verstehen, daß damit lediglich ein Gegenargument für die Sache selbst geboten werde. Unter Berufung auf sein Urteil im Nicaragua-VAX vom 27. Juni 198692, wo er zu letzterer Auslegung bei der Anwendung eines Vertrages mit einer identischen Klausel gekommen sei, sieht er sich in diesem Falle zu keiner anderen Interpretation veranlaßt, zumal die Vereinigten Staaten selbst vorgetragen hätten, daß es sich bei der Auslegung und Anwendung des Art. XX Abs. 1(d) um eine Angelegenheit der Hauptsache handele. Durch den Vertrag von 1955 seien für die Parteien verschiedene Verpflichtungen geschaffen worden. Jede Handlung einer Partei, die damit unvereinbar sei, sei rechtswidrig, ob sie nun durch Gewaltanwendung, Verwaltungsentscheidung oder sonstwie erfolge. Angelegenheiten, die sich auf Gewaltanwendung bezögen, seien daher nicht per se von der Reichweite des Vertrages ausgeschlossen, so daß dieser Einwand der Vereinigten Staaten zurückgewiesen werden müsse.

91 92

Abs. 17 - 21.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986, 14.

Rechtsprechung des Internationalen Gerichtshofes in den ahren 1995 und 1996

Als nächstes befaßt sich der Gerichtshof mit der Frage, ob eine Verletzung der Art. I, IV Abs. 1 und X Abs. 1 als möglich erscheint. Bei ihrer Auslegung seien Art. 31 und 32 der Wiener Vertragsrechtskonvention, die Völkergewohnheitsrecht ausdrückten, zu beachten. In bezug auf Art. I, 93 nach dem zwischen den USA und Iran fester und andauernder Frieden und echte Freundschaft herrscht, hatte Iran vorgebracht, daß diese Bestimmung die Vertragsparteien verpflichte, langdauernde friedliche und freundschaftliche Beziehungen aufrechtzuerhalten; damit würden die Parteien verpflichtet, sich gegenüber dem anderen im Einklang mit den einschlägigen Regeln der UN-Charta und des Gewohnheitsrechts zur Gewaltanwendung und der Friendly Relations-Declaration 2625 (XXV) der Generalversammlung zu verhalten; verletze eine Partei auf Kosten der anderen eine dieser Regeln, verletze er zugleich den Freundschaftsvertrag. Deshalb sei der Gerichtshof dafür zuständig, die Rechtmäßigkeit der Waffeneinsätze der USA im Hinblick auf Art. I des Vertrages und die solchermaßen in diese Bestimmung inkorporierten allgemeinen Völkerrechtsregeln zu bewerten. Demgegenüber wird nach Ansicht der USA mit Art. I nur eine Erwartung statuiert; die Vorschrift müsse im Zusammenhang und unter Beachtung des rein wirtschaftlichen und konsularischen Charakters des Vertrages ausgelegt werden; dies entspreche auch der gemeinsamen Absicht der Parteien, den Umständen beim Vertragsabschluß und der Praxis der Parteien.

Bei der Auslegung der allgemein gehaltenen Bestimmung des Art. I müsse Ziel und Zweck des Vertrages beachtet werden, konstatiert der Gerichtshof. Er vergleicht den Vertrag mit anderen Freundschaftsverträgen, betrachtet die einzelnen Vorschriften des Vertrages und kommt zu dem Ergebnis, daß Sinn und Zweck des hier in Rede stehenden Vertrages nicht die Regelung friedlicher und freundschaftlicher Beziehungen zwischen den beiden Staaten im allgemeinen Sinne sei, so daß mit Art. I nicht alle diese Beziehungen betreffenden Völkerrechtsnormen in den Vertrag inkorporiert seien. Mit Art. I hätten die beiden Staaten vielmehr nur zum Ausdruck bringen wollen, daß Frieden und Freundschaft Vorbedingungen für eine harmonische Entwicklung ihrer wirtschaftlichen, finanziellen und konsularischen Beziehungen seien und daß eine solche Entwicklung umgekehrt Frieden und Freundschaft stärkt. Auch aus den Urkunden ergebe sich nicht, daß bei den Vertragsverhandlungen oder beim Vertragsabschluß die USA dem Art. I die Bedeutung, die Iran dieser Vorschrift nunmehr gebe, beigemessen habe. Auch bei der nachfolgenden Übung, wie etwa im Teheraner Geisel-Fall 94 oder im Fall betreffend den Luftzwischenfall vom 3. fuli 1988 93

Abs. 22-31.

94

United States Diplomatie and Consular Staff in Tehran (United States of America v. Islamic Republic of Iran), das Verfahren wurde mit Verfügung vom 12. Mai 1981 eingestellt, ICJ Reports 1981, 45. 95 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), das Verfahren wurde eingestellt, siehe oben, Anm. 13.

490

Ursula Ε. Heinz

hätten sich weder die USA noch Iran auf diese Bestimmung berufen. Art. I habe daher die Bedeutung, daß die anderen Vorschriften des Vertrages im Lichte seiner Zielvorstellung von Frieden und Freundschaft auszulegen seien, biete für sich genommen aber keine Grundlage für die Zuständigkeit der Gerichtshofes. Als nächstes untersucht der Gerichtshof die Möglichkeit einer Verletzung des Art. IV Abs. 1 des Vertrages,96 demzufolge jede Hohe Vertragschließende Partei jederzeit den Staatsangehörigen und Gesellschaften der anderen Hohen Vertragschließenden Partei sowie deren Vermögen und Unternehmen gerechte und gleichen Behandlung gewährt und zusichert, daß deren rechtmäßige vertragliche Ansprüche nach dem anwendbaren Recht durchsetzbar sind. Iran hatte dazu vorgetragen, daß mit dieser Bestimmung die Parteien verpflichtet seien, willkürliche oder diskriminierende Handlungen gegenüber Staatsangehörigen oder Vermögen der anderen Partei zu unterlassen, und zwar unabhängig davon, wo sich diese befinden. Die USA hatten demgegenüber argumentiert, Art. IV Abs. 1 befasse sich mit der Behandlung von Staatsangehörigen und Gesellschaften der einen Partei, die aus wirtschaftlichen oder privaten Anlässen in das Gebiet der anderen Partei gelangt seien. Die angeblichen Einsätze der USA beträfen jedoch nicht iranische Staatsangehörige oder Gesellschaften, die in die USA gelangten. Ihr Verhalten könne daher nicht an Art. IV Abs. 1 des Vertrages gemessen werden, so daß dem Gerichtshof für das auf diese Vorschrift gestützte Vorbringen Irans die Zuständigkeit fehle. Der Gerichtshof stellt zunächst fest, daß Art. IV Abs. 1 im Unterschied zu den anderen Absätzen des Artikels, die sich mit Enteignung, Eigentumsstörungen oder der Verwaltung von Unternehmen befassen, keine territoriale Einschränkung enthalte; sein Anwendungsbereich sei daher weiter; die Argumente der USA überzeugten daher nicht. Dies gelte aber auch für die des Iran. Die gesamte Vorschrift sei ausgerichtet auf die Art und Weise, in der natürliche und juristische Personen bei der Durchführung ihrer privaten oder beruflichen Tätigkeiten von dem jeweiligen Staat zu behandeln seien. Von ihr seien die in diesem Fall von den USA gegen den Iran durchgeführten Einsätze nicht erfaßt. Daher könne auch diese Vorschrift nicht als Grundlage für eine Zuständigkeit des Gerichtshofes dienen. Schließlich wendet sich der Gerichtshof der Frage zu, ob eine mögliche Verletzung des Art. X Abs. 1, nach dem zwischen den Gebieten der beiden Hohen Vertragschließenden Parteien Handels- und Schiffahrtsfreiheit herrschen, eine Basis für seine Zuständigkeit bietet.97 Da von klägerischer Seite nicht behauptet worden sei, durch irgendeinen militärischen Einsatz sei ihre Schiffahrtsfreiheit beeinträchtigt worden, bliebe als Basis für seine Zuständigkeit nur eine mögliche Beeinträchtigung der Handelsfreiheit. Iran hatte hierzu vorgetragen, daß von Art. X Abs. 1 nicht nur See96

Abs. 32 - 36.

97

Abs. 37 - 52.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

handel, sondern Handel allgemein erfaßt werde; dieser sei gebietlich uneingeschränkt geschützt; zu ihm gehörten nicht nur der An- und Verkauf von Waren, sondern auch die Handlungen, die der Anfertigung von für den Austausch bestimmten Waren dienten. Die USA hatten demgegenüber für eine enge Auslegung des Begriffs „Handel" plädiert, das nur den Seehandel, und auch nur den zwischen den USA und dem Iran, und nur den eigentlichen Verkauf oder Warenaustausch erfasse. Der Gerichtshof kommt zu der Überzeugung, daß mit dem Begriff „Handel" (commerce) in Art. X Abs. 1, obwohl in dem Artikel im übrigen lediglich auf Seehandel eingegangen werde, nicht nur dieser gemeint sei, da es andere Hinweise in dem Vertrag gebe, die darauf deuteten, daß die Parteien Handel im allgemeinen regeln wollten. Ein Anzeichen dafür sei Art. XXII, nach dem der Vertrag ein vorläufiges Abkommen über wirtschaftliche und andere Beziehungen ersetzen solle, ein weiteres Art. IV, soweit er die Freiheit der Gesellschaften betrifft, ihre Tätigkeiten auszuüben, das Recht auf eine dauernde Kontrolle und Verwaltung ihrer Unternehmen innezuhaben und alles zu tun, was für die wirksame Durchführung ihrer Angelegenheiten erforderlich oder einschlägig ist. Mit der Frage, ob in Art. X Abs. 1 nur der Handel zwischen USA und Iran gemeint sei, brauche er sich, so der Gerichtshof, nicht befassen, da unstreitig zumindest bis nach der Zerstörung der ersten Gruppe von Olplattformen bis zu einem gewissen Grade Öl vom Iran in die USA exportiert worden sei. Er überprüft sodann, ob sich der Begriff „Handel" auf An- und Verkauf beschränkt. Dabei kommt er zu dem Ergebnis, daß dieser Begriff im allgemeinen wie im juristischen Sprachgebrauch sowohl auf nationaler wie auch internationaler Ebene mehr umfaßt, Handelsverträge erfaßten einen weiten Bereich von dazugehörenden Angelegenheiten, auch der Vertrag von 1955 befasse sich in seinen allgemeinen Bestimmungen mit einer großen Bandbreite von Dingen, die dem Handel dienten; auch in der Bezeichnung des Vertrages werde nicht der Begriff „Handel", sondern der weitere Begriff „wirtschaftliche Beziehungen" verwandt. Bereits der Ständige Internationale Gerichtshof habe im Oscar Chinn-Fall 98 bei der Überprüfung des Konzepts der Handelsfreiheit gemäß Art. I des Vertrages von Saint-Germain geäußert, daß die Handelsfreiheit jede kommerzielle Tätigkeit umfaßt, d. h. neben dem eigentlichen Handel durch An- und Verkauf auch Industrie und insbesondere Transport, sei es innerhalb des Landes oder mit anderen Ländern. Nach Ansicht des Gerichtshofes umfaßt der Begriff „Handel" in Art X Abs. 1 des Vertrages daher nicht nur An- und Verkauf, sondern darüber hinaus kommerzielle Tätigkeiten im allgemeinen. Abschließend verweist der Gerichtshof darauf, daß diese Bestimmung der Vertrages ausdrücklich nicht „Handel", sondern „Handelsfreiheit" schützt. Jede Handlung, die diese Freiheit behindere, sei damit verboten. Wenn diese Freiheit nicht zu einer Leerformel verkommen solle, müsse man der Möglichkeit, daß sie durch Handlungen wie die Zerstörung von für den Export bestimmten Gütern oder Handlungen, 98

PCIJ, Series A/B, No. 63, 65.

492

Ursula Ε. Heinz

die ihren Transport oder ihre Lagerung für einen Export beeinträchtigen könnten, Rechnung tragen. In diesem Zusammenhang weist der Gerichtshof darauf hin, daß das von den angegriffenen Bohrinseln geförderte Öl über unterseeische Leitungen zum Ölterminal auf der Insel Lavan geleitet worden sei. Die Ölproduktion sei ein wichtiger Bestandteil des iranischen Außenhandels. Er sei im gegenwärtigen Erkenntnisstand zwar nicht in der Lage zu beurteilen, ob und in welchem Ausmaß die Zerstörung der iranischen Olplattformen Auswirkungen auf den Außenhandel mit iranischem Ol gehabt habe, die Zerstörung könnte jedoch eine solche Auswirkung gehabt haben und folglich könnte sie eine nachteilige Wirkung auf die in Art. X Abs. 1 garantierte Handelsfreiheit gehabt haben. Demnach könne ihre Rechtmäßigkeit an Hand dieses Absatzes überprüft werden. Dieses Ergebnis werde auch gestützt durch den Gedanken des Art. I des Vertrages, der zwar nicht selbst Rechte und Pflichten begründe, aber bei der Interpretation der anderen Vorschriften des Vertrages heranzuziehen sei, so daß im Zweifelsfalle eine Auslegung vorzuziehen sei, die mit dem Ziel friedlicher und freundschaftlicher Beziehungen besser übereinstimme. Deshalb kommt der Gerichtshof zum abschließenden Ergebnis," daß zwischen den Parteien ein Streit über die Auslegung und Anwendung von Art. X Abs. 1 des Vertrages von 1955 besteht; daß dieser in den Anwendungsbereich der Kompromißklausel in Art. XX Abs. 2 des Vertrages fällt und daß folglich der Gerichtshof für diesen Streit zuständig ist. Da er folglich die Einrede der Vereinigten Staaten zurückweisen müsse, habe sich der Hilfsantrag Irans erledigt. Aus diesen Gründen 1. verwirft der Gerichtshof mit vierzehn gegen zwei Stimmen100 die vorgängige Einrede der Vereinigten Staaten von Amerika, nach der der Vertrag von 1955 keine Grundlage für die Zuständigkeit der Gerichtshofes enthält; 2. befindet er mit vierzehn gegen zwei Stimmen101, daß er auf der Grundlage des Art. X X I Abs. 2 des Vertrages von 1955 zuständig ist, sich mit den vom Iran nach Art. X Abs. 1 dieses Vertrages geltend Ansprüchen zu befassen.

Die Richter Shahabuddeen, Ranjeva, Higgins und Parra-Aranguren sowie Ad-hoc Richter R igeaux fügen dem Urteil getrennte, Vizepräsident Schwebel und Richter Oda abweichende Meinungen bei. Schwebel ist der Ansicht, der Streit sei um Angriffe der USA auf militärische Ziele innerhalb des Hoheitsbereichs des Iran gegangen und habe mit Vertrag, der keinerlei Regelungen über militärische Gewaltanwendung durch eine der Parteien enthalte, nichts zu tun. Wenn darüber hinaus Art. XX Abs. 1(d) des Vertrages Maßnahmen zum Schutze der eigenen Sicherheitsinteressen von seinem Anwendungsbereich ausschließe, könne der Gerichtshof sich schwerlich für zuständig 99

Abs. 53 - 54.

100

Gegenstimmen: Vizepräsident Schwebel, Richter Oda.

101

Gegenstimmen: Vizepräsident Schwebel, Richter Oda.

Rechtsprechung des Internationalen Gerichtshofes in den ahren 1995 und 1996

halten, sich mit einer die Sicherheitsinteressen der Parteien betreffenden Klage zu befassen. Wenn er es im Nicaragua-Fall unterlassen habe, diese Frage im Rahmen der Prüfung seiner Zuständigkeit zu behandeln, so sei er daran in diesem Verfahren nicht gebunden. Außerdem könne die Zuständigkeit nicht auf Art. X Abs. 1 des Vertrages gegründet werden, da darin nur Seehandel angesprochen sei. Aber selbst wenn man Handel im umfassenden Sinne unter die Vorschrift subsumieren würde, fiele Produktion nicht darunter, diese sei dem Handel vorgeschaltet und nicht ein Bestandteil dessen. Oda betont, daß seiner Meinung nach eine in einem zweiseitigen Vertrag enthaltene Schiedsklausel, die die Beilegung eines Streits über die Auslegung und Anwendung des Vertrages durch den Gerichtshof vorsieht, eng ausgelegt werden müsse. Gegenstand eines solchen Streits könne nicht die Frage sein, ob sich der Vertrag wegen seines Ziels und Zwecks auf wesentliche Fragen erstreckt, sondern nur die Auslegung und Anwendung der einzelnen Bestimmungen. Ohne gegenseitiges Einvernehmen über Ziel und Zweck des Vertrages wäre dieser nicht zustandegekommen; bei unterschiedlichen Meinungen über Ziel und Zweck ihres Vertrages diesen Streitpunkt einseitig von dritter Seite, dem Gerichtshof, klären zu lassen, widerspreche dem Grundprinzip internationaler Gerichtsbarkeit, nach dem nur mit Zustimmung der souveränen Staaten eine Unterwerfung unter die Gerichtsbarkeit stattfindet. Außerdem habe der Gerichtshof in diesem Verfahrensabschnitt nur darüber urteilen dürfen, ob er nach dem Vertrag zuständig ist, sich mit dem durch die Zerstörung der Plattformen verursachten Streit zu befassen, nicht aber mit Ansprüchen aus bestimmten Vorschriften wie in diesem Falle aus Art. X Abs. 1. VII. Rechtmäßigkeit des Einsatzes von Atomwaffen durch einen Staat in einem bewaffneten Konflikt 102 Gutachten vom 8. Juli 1996, ICJ Reports 1996, 66

Besetzung des Gerichtshofes: Präsident Bedjaoui; Vizepräsident Schwebel; Richter Oda, Guillaume , Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleisc Koroma, Vereshchetin, Ferrari Bravo, Higgins.

102

Siehe Michael /. Matheson, The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons, American Journal of International Law 91, 1997, 417 m.w.N.; Maraun/OellersFrahm (Anm. 39); C. F. Amerasinghe , The Advisory Opinion of the International Court of Justice in the W H O Nuclear Weapons Case: A Ctitique, Leiden Journal of International Law, vol. 10, 1997, 525; fochen Herbst, Nukleare Konflikte im Visier des Internationalen Gerichtshofes. Die Beschlüsse vom 8. Juli 1996, Neue Zeitschrift für Wehrrecht 1996,177; Hartmut Hillgenberg, Das Gutachten-Verfahren vor dem I G H zur völkerrechtlichen Zulässigkeit von A-Waffen, Vorträge, Reden und Berichte aus dem Europa-Institut, Nr. 341, 1996.

494

Ursula Ε. Heinz

Zur Geschichte und zum Verlauf des Verfahrens der Gutachtenanfrage 103 bemerkt der Gerichtshof, daß sich zu der ihm von der Weltgesundheitsorganisation (WHO) vorgelegten Frage, ob der Einsatz von Atomwaffen durch einen Staat in einem Kriege oder sonstigen bewaffneten Konflikt angesichts der Auswirkungen auf die Gesundheit und Umwelt eine Verletzung völkerrechtlicher Pflichten einschließlich des WHO-Statuts sei, eine Vielzahl von Staaten schriftliche Stellungnahmen und Gegenvorstellungen eingereicht hätten. Auch in der mündlichen Verhandlung seien noch einmal vielfach Äußerungen abgegeben worden. Sodann untersucht der Gerichtshof, ob die drei Voraussetzungen für die Abgabe eines Gutachtens nach Art. 96 Abs. 2 UN-Charta i.V.m. Art. 65 IGH-Statut, d. h. wenn der Antrag nicht von der Generalversammlung oder dem Sicherheitsrat, sondern von einem anderen Organ oder einer Sonderorganisation gestellt wird, erfüllt sind. Zu diesen Voraussetzungen gehöre, daß die das Gutachten beantragende Einrichtung der UN-Charta entsprechend ermächtigt sei, Gutachten vom Gerichtshof zu beantragen, daß das beantragte Gutachten eine Rechtsfrage zum Gegenstand habe und schließlich, daß es sich dabei um eine den Tätigkeitsbereich der beantragenden Einrichtung betreffende Frage handele.104 Die erste Bedingung sieht der Gerichtshof im Hinblick auf sich deckende Ermächtigungen im WHO-Statut und dem Abkommen zwischen der Sonderorganisation und den Vereinten Nationen als erfüllt an. Dieser Punkt sei auch unbestritten und überdies bei einer früheren Gutachtenanfrage der WHO in gleicher Weise behandelt worden. 105 Weit umstrittener sei die Erfüllung der anderen beiden Voraussetzungen gewesen. Außerdem sei vorgebracht worden, der Gerichtshof solle von seinem Ermessen bei der Frage, ob er überhaupt ein Gutachten abgeben wolle, in negativer Weise Gebrauch machen. Der Gerichtshof betont jedoch, daß er von seinem Ermessen erst Gebrauch machen könne, wenn die tatbestandlichen Voraussetzungen für seine Zuständigkeit gegeben seien.106 Sodann prüft er, ob es sich bei der ihm vorgelegten Frage um eine Rechtsfrage handelt und kommt zum Ergebnis, daß die Frage, ob das Verhalten von Staaten rechtmäßig sei, ungeachtet ihrer politischen Implikationen eine Rechtsfrage sei.107 Ausführlich befaßt sich der Gerichtshof schließlich mit der letzten der drei Voraussetzungen, nämlich der Frage, ob sich das erbetene Gutachten auf eine Frage, die den Tätigkeitsbereich der Organisation betrifft, bezieht.108 Hierbei müsse er zunächst 103

Abs. 1 - 9; siehe dazu bereits Pardo Lopez (Anm. 1).

104

Abs. 10.

105

Abs. 11-12.

106

Abs. 13 - 14.

107

Abs. 15 -17.

108

Abs. 18-31.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

auf das in erster Linie einschlägige Statut der WHO, ihre Verfassung, zurückgreifen, einen multilateralen Vertrag, der nach den Regeln des Vertragsrechts auszulegen sei. Gründungsurkunden von internationalen Organisationen hätten darüber hinaus aber auch einen institutionellen Charakter, so daß bei ihrer Auslegung die spezifische Eigenart der Organisation, die von ihren Gründern gesetzten Zielvorgaben, die mit einer wirkungsvollen Funktionserfüllung verbundenen Notwendigkeiten sowie ihre Praxis zu berücksichtigen seien. In der Verfassung der WHO seien die Funktionen der Organisation in 22 Absätzen des Art. 2 aufgeführt, von denen keiner einen Hinweis auf die Rechtmäßigkeit von gesundheitsgefährdenden Handlungen enthalte; keine Aufgabe der WHO sei abhängig von der Rechtmäßigkeit des Zustandes, bei dem sie zum Handeln aufgerufen sei. Ziel der Organisation sei nach Art. 1 ihrer Verfassung, daß alle Völker den höchstmöglichen Gesundheitsstand erreichen. Aus dem Wortlaut, Zusammenhang, Ziel und Zweck der Verfassung sowie aus der Praxis der WHO könne man eine Befugnis der Organisation ableiten, sich mit den gesundheitlichen Auswirkungen des Einsatzes von Atomwaffen oder anderer gefährlicher Verhaltensweisen zu befassen und vorbeugende Maßnahmen zum Schutze der Volksgesundheit im Falle des Einsatzes solcher Waffen oder Verhaltensweisen zu ergreifen. Die dem Gerichtshof vorgelegte Frage beziehe sich jedoch nicht auf die gesundheitlichen Auswirkungen des Einsatzes von Atomwaffen, sondern auf die Rechtmäßigkeit ihres Einsatzes angesichts ihrer Auswirkungen auf die Gesundheit und Umwelt. Die Befugnis der WHO, sich mit diesen Auswirkungen zu befassen, sei unabhängig von der Rechtmäßigkeit der sie verursachenden Handlungen, so daß aus Art. 2 WHO-Statut keine Kompetenz zur Befassung mit der Rechtmäßigkeit der Einsatzes von Atomwaffen und folglich ebensowenig eine Kompetenz, den Gerichtshof darüber zu befragen, hergeleitet werden könne. Die Ursachen für eine Verschlechterung der menschlichen Gesundheit seien zahlreich und unterschiedlichster Art; ob sie rechtmäßig oder rechtswidrig seien, bleibe ohne Einfluß auf die von der WHO ζ. Β. im Falle eines Einsatzes von Atomwaffen zu ergreifenden Maßnahmen. Die Auswirkungen auf die menschliche Gesundheit bei rechtmäßigem oder rechtswidrigem Atomwaffeneinsatz seien die gleichen, dementsprechend beeinflusse dessen Rechtmäßigkeit oder Rechtswidrigkeit nicht die Frage, welche vorbeugenden oder Heilmaßnahmen gegen die Auswirkungen zu ergreifen seien. Die Bezugnahme auf Auswirkungen auf die Gesundheit und Umwelt in der dem Gerichtshof gestellten Frage mache diese noch nicht zu einer Angelegenheit, die in den Funktionsbereich der WHO falle. Der Gerichtshof befaßt sich sodann mit der Rechtsstellung von internationalen Organisationen allgemein und speziell von Sonderorganisationen im System der Vereinten Nationen und führt aus, daß internationale Organisationen im Unterschied zu Staaten keine umfassende, sondern nur die ihnen von den Staaten nach dem Prinzip der Spezialität übertragenen eingeschränkten Sonderkompetenzen einschließlich der

496

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sog. implied powers , d. h. der für ihre Funktionserfüllung erforderlichen Kompetenzen, hätten. Sich mit der Rechtmäßigkeit des Einsatzes von Atomwaffen zu befassen sei aber nicht zur Erfüllung der Funktionen der WHO erforderlich. Darüber hinaus sei das in den Art. 57, 58 und 63 UN-Charta begründete System der Vereinten Nationen auf eine Beziehung zwischen den Vereinten Nationen als einer Organisation mit umfassender Kompetenz einerseits und verschiedenen eigenständigen und ergänzenden Organisationen mit sektoralen Kompetenzen andererseits angelegt. Wenn Art. 63 von weitreichenden internationalen Aufgaben auf den Gebieten der Wirtschaft, des Sozialwesens, der Kultur, der Erziehung, der Gesundheit und verwandter Gebiete spreche, so seien die weitreichenden internationalen Aufgaben der WHO auf den Bereich „Gesundheit" beschränkt und dürften nicht auf die anderen Teilen des Systems der Vereinten Nationen zugeordneten Aufgaben übergreifen. Fragen der Gewaltanwendung, Rüstung und Abrüstung gehörten eindeutig in den Kompetenzbereich der Vereinten Nationen, nicht in den von Sonderorganisationen. Aus all diesen Überlegungen heraus kommt der Gerichtshof zum Ergebnis, daß die dem Gerichtshof von der WHO vorgelegte Frage nicht in den von ihrer Verfassung vorgesehenen Tätigkeitsbereich dieser Organisation fällt. Bestätigt werde dies durch die Praxis der WHO. 1 09 Aus den Berichten und Resolutionen der WHO könne an keiner Stelle auf eine Praxis geschlossen werden, nach der ihre Mitglieder einvernehmlich ihre Verfassung in der Weise interpretieren, daß die Organisation ermächtigt sei, sich mit der Frage der Rechtmäßigkeit des Einsatzes von Atomwaffen zu befassen. Auch die Tatsache, daß die Gutachtenanfrage die Worte „einschließlich des WHOStatuts" gebrauche, ändere nichts an dem Umstand, daß die WHO nicht berechtigt sei, ein Gutachten über die Auslegung ihres Statuts hinsichtlich von Angelegenheiten außerhalb ihres Tätigkeitsbereichs anzufordern. 110 Außerdem sei die Zuständigkeit des Gerichtshofes damit begründet worden, daß die Resolution WHA46.40 der WHO-Versammlung, in der die Gutachtenanfrage beschlossen worden sei, mit der erforderlichen Mehrheit beschlossen worden sei und folglich die Vermutung einer gültigen Annahme in sich berge. Der Gerichtshof verweist demgegenüber darauf, daß zwischen formellen und materiellen Fehlern einer Resolution zu unterscheiden sei. Eine formell ordnungsgemäß zustandegekommene Resolution könne nicht über mögliche inhaltliche Mängel wie ultra vires hinweghelfen. Der Gerichtshof habe in einem früheren Urteil festgestellt, daß zuvörderst jedes Organ über seine Kompetenzen bestimme. Deshalb sei es das gute Recht der WHO gewesen, über die Kompetenz zu entscheiden, dem Gerichtshof die Gutachtenanfrage vorzulegen. Ebenso müsse sich aber auch der Gerichtshof fragen dürfen, 109

Abs. 27.

110

Abs. 28.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

ob die Bedingungen für seine eigene Kompetenz, ein Gutachten abzugeben, erfüllt seien. Da Art. 96 Abs. 2 UN-Charta auf den „Tätigkeitsbereich" der Organisation und Art. X Abs. 2 des Abkommens von 1948 über die Beziehungen zwischen den Vereinten Nationen und der WHO auf deren „Kompetenz" verweise, habe er sich auch verpflichtet gefühlt, das Statut der WHO auszulegen. In Ausübung seiner ihm durch Art. 65 Abs. 1 seines eigenen Statuts übertragenen Funktionen müsse er solch eine Auslegung vornehmen, und zwar unabhängig von dem Verfahren, das das WHO-Statut für den Fall eines Streits zwischen Staaten über die Auslegung oder Anwendung des Statuts vorsieht. 111 Ferner sei vorgetragen worden, daß die Generalversammlung der Vereinten Nationen, von der sich die Kompetenz der WHO zu Gutachtenanfragen herleitet, in einer Resolution die Kompetenz der WHO bestätigt habe, ein Gutachten über die dem Gerichtshof gestellte Frage anzufordern. Mit der besagten Resolution habe die Generalversammlung das Vorgehen der WHO politisch unterstützt und gutgeheißen, aber nach Ansicht des Gerichtshofes nicht der WHO die Kompetenz übertragen, ein Gutachten über die gestellte Frage zu beantragen, zumal die Generalversammlung nicht beabsichtigt haben konnte, von den Chartabestimmungen und dem mit der WHO geschlossenen Abkommen von 1948 abzuweichen.112 Da der Gutachtenantrag sich nicht auf eine Frage innerhalb des Tätigkeitsbereichs der WHO gemäß Art. 96 Abs. 2 UN-Charta beziehe, sei der Gerichtshof zum Ergebnis gelangt, daß eine grundlegende Voraussetzung für seine Zuständigkeit im vorliegenden Falle fehle und er folglich nicht das Gutachten abgeben könne. Deshalb könne er auch nicht auf das Vorbringen, das sich auf sein Ermessen zur Abgabe eines Gutachtens beziehe, eingehen. Aus diesen Gründen befindet der Gerichtshof mit elf gegen drei Stimmen,113 daß er nicht das von der Weltgesundheitsversammlung mit Resolution WHA46.40 beantragte Gutachten abgeben kann. Die Richter Ranjeva und Ferrari Bravo fügten dem Gutachten Erklärungen bei, Richter Oda eine getrennte Ansicht, die Richter Shahabuddeen, Weeramantry und Koroma abweichende Meinungen. Shahabuddeen findet, der Gerichtshof habe die von der WHO gestellten Frage falsch aufgefaßt. Diese könne sinnvollerweise nur so verstanden werden, daß danach gefragt wird, ob der Atomwaffeneinsatz die Verletzung einer völkerrechtlichen Pflicht insoweit ist, als er sich auch als Verletzung von Verpflichtungen auf Grund der WHO-Verfassung darstellt. Es liege im Kompetenzbereich der WHO, sich mit der Frage zu befassen, ob eines ihrer Mitglieder dadurch, daß es eine Situation schafft, die die WHO zum Tätigwerden veranlaßt, seine Pflich-

3

111

Abs. 29.

112

Abs. 30.

113

Gegenstimmen: Richter Shahabuddeen, Weeramantry,

G Y I L 40

Koroma.

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ten nach der WHO-Verfassung verletzt hat. Weeramantry meint, der Gerichtshof habe die von der WHO gestellte Frage so wie die von der Generalversammlung gestellte Frage behandelt und habe nicht die staatlichen Verpflichtungen bezüglich der Gesundheit, Umwelt und nach der WHO-Verfassung geprüft. Diese drei Gebiete seien auf engste mit den Angelegenheiten der WHO verknüpft, und in allen drei Bereichen würden staatliche Verpflichtungen durch Atomwaffen verletzt. Bei einem Atomangriff müßten sich sowohl das betroffene Land als auch neutrale Staaten an die WHO um Hilfe wenden, zu deren Aufgabe die Planung und Vorsorge im Bereich Gesundheit gehöre, wofür sie eben diese Rechtsauskunft des Gerichtshofes brauche. Dieser hätte die Verfassung der WHO im Lichte ihres Ziels und Zwecks auslegen müssen. Die Frage der Rechtmäßigkeit von Atomwaffen nicht zu den Angelegenheiten zu zählen, die zum Aufgabenbereich der WHO gehören, sei zu eng gesehen, ebenso wie die vom Gerichtshof vorgenommene Funktionsaufteilung der UN-Institutionen nach dem Prinzip der Spezialität. Angesichts der Auswirkungen von Nuklearwaffen auf die Gesundheit könne die WHO nicht auf ein Tätigwerden erst nach Eintritt einer Katastrophe verwiesen werden. Mit der Rechtmäßigkeit dieses gesundheitsschädlichen Mittels könne sie sich ebenso wie mit der Rechtmäßigkeit eines krebserzeugenden pharmazeutischen Mittels befassen. Auch nach Koromas Ansicht gehört die von der WHO gestellte Frage, die sich auf die Auswirkungen von Atomwaffen auf die Gesundheit und Umwelt und darauf, ob wegen dieser Wirkungen Staaten ihre Verpflichtungen verletzen, beziehe, zum Aufgabenbereich der WHO. Anstatt von seiner Rechtsprechung, derzufolge er nur aus zwingenden Gründen eine Gutachtenanforderung ablehnt, abzuweichen, hätte der Gerichtshof daher ein Gutachten abgeben sollen, und zwar des Inhalts, daß wegen der Auswirkungen von Atomwaffen auf die Gesundheit und Umwelt ihr Einsatz in einem bewaffneten Konflikt völkerrechtswidrig ist. VIIL Rechtmäßigkeit der Androhung oder des Einsatzes von Atomwaffen 114 Gutachten vom 8. Juli 1996, ICJ Reports 1996, 226

Besetzung des Gerichtshofes: Präsident Bedjaoui; Vizepräsident Schwebel; Richter Oda, Guillaume , Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleisc Koroma, Vereshchetin, Ferrari Bravo, Higgins.

114 Siehe dazu Richard Λ. Falk, Nuclear Weapons, International Law and the World Court: a Historie Encounter, American Journal of International Law, vol. 91, 1997, 64, sowie die Nachweise in Anm. 102.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Der Gerichtshof legt dar, 115 daß der Generalsekretär der Vereinten Nationen ihm mit Schreiben vom 19. Dezember 1994, das als Fax am folgenden Tage und im Original am 6. Januar 1995 eingegangen sei, den durch Resolution 49/75 Κ vom 15. Dezember 1994 gefaßten Beschluß der Generalversammlung übermittelt habe, dringend ein Gutachten des Gerichtshofes über die Frage, ob die Androhung oder der Einsatz von Atomwaffen in irgendeiner Situation nach Völkerrecht erlaubt sei, anzufordern. Mit Verfügung vom 1. Februar 1995116 habe er entschieden, daß Staaten, die vor dem Gerichtshof auftreten können, und die Vereinten Nationen Auskunft über die Frage geben könnten, und die Frist für die schriftlichen Darstellungen und Stellungnahmen hierzu auf den 20. Juni bzw. 20. September 1995 festgesetzt. Sowohl schriftlich wie mündlich seien eine Fülle von Argumenten vorgebracht worden. Der Gerichtshof befaßt sich sodann mit der Frage seiner Zuständigkeit.117 Nach Art. 65 Abs. 1 seines Statuts kann er auf Antrag jeder Einrichtung, die durch die Charta der Vereinten Nationen oder im Einklang mit ihren Bestimmungen zur Einholung eines solchen Gutachtens ermächtigt ist, zu jeder Rechtsfrage ein Gutachten abgeben. Der insoweit einschlägige Art. 96 Abs. 1 der Charta lautet: Die Generalversammlung oder der Sicherheitsrat kann über jede Rechtsfrage ein Gutachten des Internationalen Gerichtshofs anfordern. Einige Staaten seien der Ansicht gewesen, daß auch nach Art. 96 Abs. 1 der Charta eine Berechtigung zur Anforderung eines Gutachtens nur über eine Rechtsfrage innerhalb des Tätigkeitsbereichs des antragstellenden Organs bestehe. Ob diese Auslegung stimmt, läßt der Gerichtshof dahingestellt, da in jedem Falle die Generalversammlung zur Gutachtenanfrage berechtigt sei: Die Kompetenz der Generalversammlung sei nach der Charta umfassend, und sie habe sich auch seit langem mit Fragen der Gewaltanwendung, Abrüstung und den Auswirkungen des Einsatzes von Atomwaffen befaßt. Es sei unerheblich, ob sich auch andere Institutionen mit diesen Angelegenheiten befaßten und ob die Generalversammlung in diesen Bereichen nur Empfehlungen aussprechen könne.118 Was die Frage, ob es sich bei der Gutachtenanfrage um die Klärung einer Rechtsfrage handele, angeht, so befindet der Gerichtshof auch hier, daß die mögliche politische Motivation für die Anfrage und politischen Implikationen des Gutachtens den Rechtsgehalt der Anfrage unberührt lassen.119 Da Art. 65 Abs. 1 seines Statuts ihm Ermessen einräumt, ob er das Gutachten abgibt oder nicht, befaßt sich der Gerichtshof mit dem Für und Wider. 120 In dem Zu-

32*

115

Abs. 1 - 9 .

116

ICJ Reports 1995, 3.

117

Abs. 10 - 19.

118

Abs. 10 -12.

119

Abs. 13.

120

Abs. 14 - 19.

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sammenhang betont er unter Hinweis auf frühere Entscheidungen, daß er sein Gutachten nicht für Staaten, sondern für das Organ, das zur Anforderung ermächtigt ist, abgibt. Als Hauptrechtsprechungsorgan der Vereinten Nationen solle er nur aus zwingenden Gründen die Antwort auf eine Rechtsfrage verweigern. In der Geschichte des Gerichtshofes habe er im Rahmen dieser Ermessensausübung noch nie die Erstellung eines Gutachtens abgelehnt. Gegen ein Gutachten war vorgebracht worden, daß die Frage vage und abstrakt sei, weil ihr kein konkreter Streit zugrunde läge. Dieses Argument verwirft der Gerichtshof, da Zweck des Gutachtenverfahrens im Unterschied zum streitigen Verfahren die Rechtsberatung von Organen und Institutionen sei, nicht aber die Streitbeilegung. Außerdem war befürchtet worden, daß die Abstraktheit der Frage den Gerichtshof zu hypothetischen oder spekulativen Erklärungen außerhalb seiner richterlichen Funktion veranlassen könnte. Dem entgegnet der Gerichtshof, daß er sich mit den aufgeworfenen Fragen in all ihren Aspekten nur unter Anwendung der einschlägigen Rechtsnormen befassen werde. Der Erwägung, daß die Generalversammlung nicht erklärt habe, wofür sie das Gutachten benötige, verschließt sich der Gerichtshof mit dem Hinweis darauf, es sei nicht seine Sache zu entscheiden, ob die Generalversammlung für die Durchführung ihrer Aufgaben ein Gutachten benötigt, dies sei vielmehr deren Angelegenheit. Auch die Überlegung, daß sich die Antwort nachteilig auf Abrüstungsverhandlungen auswirken und damit dem Interesse der Vereinten Nationen zuwiderlaufen könnte, überzeugt den Gerichtshof nicht: Seine Schlußfolgerungen würden vielleicht die fortdauernde Diskussion in der Generalversammlung beeinflussen und den Verhandlungen ein zusätzliches Element hinzufügen, jenseits dessen sei aber alles offen. Dem Einwand, der Gerichtshof würde seine richterliche Kompetenz überschreiten und rechtsetzende Funktionen wahrnehmen, begegnet der Gerichtshof mit dem Hinweis darauf, daß dies voraussetze, daß das Recht lückenhaft sei, er hingegen nur bestehendes Recht feststelle und anwende, selbst wenn er dabei dessen Anwendungsbereich bestimme und manchmal dessen allgemeine Tendenz vermerke. Insgesamt gäbe es daher keine zwingenden Gründe für eine Nichterstattung des Gutachtens. Eine völlig andere Frage sei, ob er angesichts der ihm als Rechtsprechungsorgan auferlegten Bindungen eine erschöpfende Antwort auf die ihm gestellte Frage geben könne. Das sei aber etwas anderes als die Ablehnung, überhaupt zu antworten.

Als nächstes befaßt sich der Gerichtshof mit der Formulierung der an ihn gestellten Frage.121 Hierzu war vorgetragen worden, es sei gefragt worden, ob in jeder Situation (in any circumstance/en toute circonstance ) die Androhung oder der Einsatz von Atomwaffen nach Völkerrecht erlaubt sei, was notwendigerweise verneint werden müsse. Der Gerichtshof bemerkt dazu nur kurz, daß das tatsächliche Ziel der Frage klar sei, nämlich die Rechtmäßigkeit oder Rechtswidrigkeit der Androhung oder des Einsatzes von Atomwaffen festzustellen. Außerdem war das Wort „erlaubt" gerügt 121

Art. 20 - 22.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

worden, weil es impliziere, daß das entsprechende Verhalten von einer vertraglichen oder gewohnheitsrechtlichen Ermächtigung abhängig sei, was unvereinbar mit dem grundlegenden völkerrechtlichen Souveränitäts- und Zustimmungsprinzip sei. Dazu bemerkt der Gerichtshof, daß die Atomwaffenstaaten wie auch die anderen Staaten, die am Verfahren teilgenommen oder vor ihm aufgetreten seien, entweder gebilligt oder nicht bestritten hätten, daß ihre Unabhängigkeit durch völkerrechtliche Prinzipien und Normen, insbesondere humanitäres Recht, eingeschränkt sei. Aus dem Gebrauch des Wortes „erlaubt" seien daher keine rechtlichen Schlußfolgerungen zu ziehen. Der Gerichtshof wendet sich sodann dem für die Beantwortung der Frage einschlägigen Recht zu.122 Einige Befürworter der Rechtswidrigkeit des Atomwaffeneinsatzes waren insoweit der Ansicht, daß mit ihm das durch Art. 6 des Internationalen Paktes über bürgerliche und politische Rechte garantierte Recht auf Leben verletzt werde. Demgegenüber hatten andere geltend gemacht, der Pakt sei auf Menschenrechtsschutz im Frieden angelegt, für Fragen des rechtswidrigen Verlustes von Leben bei Kampfhandlungen gelte das Recht des bewaffneten Konflikts. Dazu führt der Gerichtshof aus, daß der Pakt auch im Krieg weitergelte; die Staaten könnten zwar nach Art. 4 des Paktes im Falle eines öffentlichen Notstandes einige Bestimmungen außer Kraft setzen, zu denen Art. 6 jedoch nicht gehöre; gelte mithin das Recht, nicht willkürlich seines Lebens beraubt zu werden, auch bei Kampfhandlungen, so sei aber für die Frage, was eine willkürliche Beraubung des Lebens sei, das Recht des bewaffneten Konflikts, das das Verhalten bei Kampfhandlungen regele, als das speziellere Recht anwendbar. Einige Staaten hatten außerdem auf das Verbot des Völkermords als anwendbares Recht verwiesen. Einschlägig sei dieses Recht aber nur, so der Gerichtshof, wenn der Einsatz von Atomwaffen in der Absicht erfolge, gegen eine nationale, ethnische, rassische oder religiöse Gruppe vorzugehen, was nur im Einzelfall beurteilt werden könne. Einige Staaten hatten vorgebracht, daß ein Atomwaffeneinsatz gegen Umweltvölkerrecht verstoße, wie etwa gegen Art. 35 Abs. 3 des Ersten Zusatzprotokolls von 1977 zu den Genfer Konventionen, Art. 1 des Umweltkriegsübereinkommens vom 18. Mai 1977, Prinzip 21 der Stockholmer Deklaration von 1972 und Prinzip 2 der Rio-Deklaration von 1992; diese und auch andere Umweltschutzbestimmungen würden im Frieden wie im Krieg gelten und bei einem Atomwaffeneinsatz mit seinen weitreichenden und grenzüberschreitenden Wirkungen verletzt werden. Andere Staaten hatten die Verbindlichkeit des Umweltschutzinstrumentariums in Frage gestellt, seine Geltung für den Atomwaffeneinsatz bei Kampfhandlungen bestritten, die Bindung an einzelne Konventionen verneint bzw. auf entsprechende Vorbehalte verwiesen. Der Gerichtshof führt aus, daß mittlerweile zum Umweltvölkerrecht allgemeine Verpflichtungen der Staaten gehörten, dafür zu sorgen, daß Handlungen inner122

Abs. 23 - 34.

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halb ihrer Hoheitsgewalt und Kontrolle die Umwelt anderer Staaten und staatsfreier Räume schonen; fraglich sei aber, ob diese Verpflichtungen auf eine völlige Einschränkung während eines bewaffneten Konflikts abzielten. Der Gerichtshof geht davon aus, daß die fraglichen Verträge nicht bezwecken, Staaten wegen ihrer Verpflichtungen zum Umweltschutz von der Ausübung ihres Selbstverteidigungsrechts auszuschließen. Diese müßten allerdings Umweltbelange bei der Einschätzung dessen, was zur Verfolgung ihrer legitimen militärischen Ziele erforderlich und verhältnismäßig ist, in Rechnung stellen. Insgesamt verbiete das Umweltvölkerrecht nicht ausdrücklich einen Atomwaffeneinsatz, enthalte aber wichtige Umweltfaktoren, die angemessen im Kontext der Erfüllung von Prinzipien und Normen des Rechts des bewaffneten Konflikts zu berücksichtigen seien. Damit kommt der Gerichtshof zum Schluß, daß das auf die ihm gestellte Frage am unmittelbarsten anwendbare Recht dasjenige ist, das sich auf das in der Charta verankerte Gewaltverbot bezieht, und das Recht des bewaffneten Konflikts, das das Verhalten bei Waffenhandlungen regelt, wie auch besondere Atomwaffenverträge, die der Gerichtshof möglicherweise für einschlägig hält. Bei der Anwendung dieses Rechts auf den vorliegenden Fall müsse er aber bestimmte einzigartige Eigenschaften von Atomwaffen in Rechnung stellen,123 die im Vergleich zu anderen Waffen nicht nur beträchtlich mehr Hitze und Energie freigäben, sondern als einzige eine hochwirksame und anhaltende Verstrahlung bewirkten, womit sie Zivilisation und Ökosystem des Planeten vollständig zerstören könnten. Als nächstes überprüft der Gerichtshof die Rechtmäßigkeit oder Rechtswidrigkeit des Atomwaffeneinsatzes im Lichte der sich auf die Androhung oder Anwendung von Gewalt beziehenden Charta-Bestimmungen.124 Er nennt in diesem Zusammenhang das in Art. 2(4) niedergelegte Gewaltverbot, das in Art. 51 anerkannte Selbstverteidigungsrecht sowie Art. 42, nach dem der Sicherheitsrat militärische Sanktionsmaßnahmen in Ubereinstimmung mit Kapitel VII durchführen kann. Keine dieser Bestimmungen verbiete oder erlaube den Atomwaffeneinsatz. Eine Waffe, die bereits Vertrags- oder gewohnheitsrechtlich per se unerlaubt sei, werde auch nicht dadurch erlaubt, daß sie für ein nach der Charta legitimes Ziel eingesetzt werde. Die Ausübung des Rechts auf Selbstverteidigung unterliege gewohnheitsrechtlich den Bedingungen der Erforderlichkeit und Verhältnismäßigkeit. Nach dem Verhältnismäßigkeitsprinzip als solchem sei der Atomwaffeneinsatz bei einer Selbstverteidigung nicht unter allen Umständen ausgeschlossen. Aber zugleich müsse Gewaltanwendung, um nach dem Recht der Selbstverteidigung verhältnismäßig zu sein, den Anforderungen des Rechts des bewaffneten Konflikts, insbesondere den Prinzipien und Normen des humanitären Rechts, genügen. Einige Staaten hätten vorgetragen, daß wegen der besonderen Eigenart von Atomwaffen und der hohen Wahrscheinlichkeit einer Eskala123

Abs. 35 - 36.

124

Abs. 37 - 50.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

tion von atomaren Gegenschlägen ein äußerst hohes Risiko der Verheerung bestehe, so daß keine Verhältnismäßigkeit gegeben sein könne. Der Gerichtshof meint dazu, daß er sich weder auf die Größenordnung solcher Risiken einlassen müsse noch darauf, ob es taktische Atomwaffen gibt, die ausreichend präzise sind, um diese Risiken zu begrenzen. Es genüge zu unterstreichen, daß Staaten, die meinen, sie könnten in Übereinstimmung mit dem Prinzip der Verhältnismäßigkeit einen atomaren Gegenschlag als Selbstverteidigung ausüben, zusätzlich die besondere Eigenart aller Atomwaffen und die mit ihnen einhergehenden gewaltigen Risiken bedenken müssen. Der Gerichtshof verweist sodann auf die weiteren Tatbestandsmerkmale des Art. 51 der Charta, die dort im Hinblick auf den Sicherheitsrat statuiert sind, und auf die Resolution 984 (1995) des Sicherheitsrates anläßlich der Verlängerung des Vertrages über die Nichtverbreitung von Atomwaffen, in dem dieser einerseits die Sicherheitsgarantien der Ätomwaffenstaaten gegenüber den atomwaffenfreien Staaten und andererseits die Absichtserklärung gewisser Staaten, bei atomaren Angriffen auf Nicht-Atomwaffenstaaten oder entsprechenden Androhungen Hilfe zu leisten, begrüßt hatte. Manche Staaten betrachteten den Atomwaffeneinsatz bei Repressalien als legal. Der Gerichtshof weist insoweit kurz darauf hin, daß bewaffnete Repressalien in Friedenszeiten rechtswidrig sind und im Kriege ebenso wie Selbstverteidigung dem Verhältnismäßigkeitsprinzip entsprechen müssen. Um der Gefahr rechtswidriger Angriffe zu begegnen, würden Staaten manchmal signalisieren, daß sie im Besitze bestimmter Waffen zur Selbstverteidigung bei einer Verletzung ihrer territorialen Unversehrtheit oder politischer Unabhängigkeit seien. Ob das eine Androhung von Gewalt im Sinne von Art. 2(4) der Charta sei, hinge von verschiedenen Faktoren ab. Fest stünde, daß „Androhung" und „Anwendung" von Gewalt zueinander in dem Verhältnis stehen, daß, wenn die angedrohte Gewaltanwendung rechtswidrig ist, dieses auch für ihre Androhung gilt. Einige Staaten hatten geltend gemacht, daß der Besitz von Atomwaffen als solcher eine rechtswidrige Androhung von Gewaltanwendung ist. Der Gerichtshof führt insoweit aus, daß der Besitz von Atomwaffen eine Bereitschaft zum Einsatz nahelege. Wenn Abschrekkungspolitik wirksam sein soll, müsse die Absicht eines Atomwaffeneinsatzes glaubwürdig sein. Ob das eine nach Art. 2(4) verbotene Androhung von Gewalt ist, hinge davon ab, ob die beabsichtigte Gewaltanwendung gegen die territoriale Unversehrtheit oder Unabhängigkeit eines Staates oder gegen die Ziele der Vereinten Nationen gerichtet sein oder im Falle der Selbstverteidigung gegen die Prinzipien der Erforderlichkeit und Verhältnismäßigkeit verstoßen würde. Angesichts der vor ihm abgegebenen Stellungnahmen fühlt sich der Gerichtshof nicht aufgerufen, sich mit militärischen Sanktionsmaßnahmen des Sicherheitsrats nach Kapitel VII der Charta oder mit innerstaatlicher Androhung oder Anwendung von atomarer Gewalt zu befassen.

504

Ursula Ε. Heinz

Nach der Behandlung der einschlägigen Charta-Bestimmungen wendet der Gerichtshof das Recht des bewaffneten Konflikts an,125 wobei er zuerst überprüft, ob es Völkerrechtsnormen über die Rechtmäßigkeit oder Rechtswidrigkeit des Rückgriffs auf Atomwaffen als solche gibt, und sodann, inwieweit die ihm gestellte Frage mit humanitärem Völkerrecht und schließlich im Lichte des Neutralitätsrechts beantwortbar ist. Einführend weist er darauf hin, daß es im Völkergewohnheits- und Vertragsrecht weder eine ausdrückliche Vorschrift gibt, die zur Androhung oder zum Einsatz von Atomwaffen im allgemeinen oder unter bestimmten Umständen, insbesondere bei Ausübung der Selbstverteidigung, ermächtigt noch eine, die die Rechtmäßigkeit des Atomwaffeneinsatzes oder seiner Androhung von einer ausdrücklichen Ermächtigung abhängig macht. Wie die Staatenpraxis zeige, sei die Rechtswidrigkeit des Einsatzes bestimmter Waffen nicht das Resultat einer fehlenden Ermächtigung, sondern eines Verbots. Im Rahmen der Prüfung, ob Atomwaffen als solche verboten sind,126 untersucht er zunächst einschlägiges Vertragsrecht. 127 Hierzu war vorgetragen worden, Nuklearwaffen sollten wie vergiftete Waffen behandelt werden, so daß sie nach der Zweiten Haager Erklärung vom 29. Juli 1899, die die Verwendung von Geschossen mit erstickenden oder giftigen Gasen verbietet, nach Art. 23(a) der Bestimmungen betreffend die Gesetze und Gebräuche des Landkrieges vom 18. Oktober 1907, der die Verwendung von Gift oder vergifteten Waffen verbietet, und nach dem Genfer Giftgasprotokoll vom 17. Juni 1925 untersagt seien. Der Gerichtshof bemerkt dazu, daß diese Bestimmungen in der Staatenpraxis stets so verstanden worden seien, daß von ihnen nur Waffen mit vergiftender oder erstickender Wirkung erfaßt seien, nicht aber Atomwaffen. Massenvernichtungswaffen seien bislang mittels spezieller Instrumentarien, wie dem Übereinkommen über bakteriologische (biologische) Waffen vom 10. April 1972 und dem Chemiewaffenübereinkommen vom 13. Januar 1993, als illegal eingestuft worden. In diesen Verträgen sei aber kein Bezug auf Atomwaffen enthalten. Über diese habe man in den vergangenen zwei Jahrzehnten vielfach verhandelt, zu einem allgemeinen Verbot von Atomwaffen wie dem von biologischen und chemischen Waffen sei es aber nicht gekommen. Es seien zahlreiche spezielle Verträge zur Begrenzung a) des Erwerbs, der Herstellung und des Besitzes von Atomwaffen, b) der Stationierung von Atomwaffen und c) von Atomwaffenversuchen geschlossen worden. Unmittelbar angesprochen sei der Rückgriff auf Atomwaffen in zwei Konventionen, nämlich dem Vertrag von Tlaltelolco vom 14. Februar 1967 einschließlich seines Zweiten Protokolls und dem Vertrag von Rarotonga vom 6. August 1985, wie auch in Verbindung mit der unbefristeten Verlängerung des Nichtverbreitungsvertrages. 125

Abs. 51-97.

126

Abs. 53 - 73.

127

Abs. 54 - 63.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Von den Befürwortern der Rechtswidrigkeit eines Rückgriffs auf Atomwaffen war angeführt worden, daß sich aus all den Konventionen über die Begrenzung oder Beseitigung von Atomwaffen in bestimmten Gebieten oder über bestimmte Kontollmaßnahmen und Beschränkungen von Atomwaffen auf das Vorhandensein einer Norm eines vollständigen Verbots jedweden Atomwaffeneinsatzes schließen läßt. Die Gegner dieser Ansicht halten diese Schlußfolgerung für unlogisch: durch die Konventionen, insbesondere den Nichtverbreitungsvertrag, sei gebilligt worden, daß die Atomwaffenstaaten im Besitze von Atomwaffen sind; damit werde zugleich anerkannt, daß ihr Einsatz unter bestimmten Umständen zulässig sei. Die Sicherheitsgarantien, die die Atomwaffenstaaten 1968 und im Zusammenhang mit der Verlängerung des Nichtverbreitungsvertrages abgegeben hätten und die der Sicherheitsrat in seinen Resolutionen zur Kenntnis genommen habe, machten ohne die Vermutung einer Rechtmäßigkeit ihres Einsatzes in besonderen Situationen keinen Sinn. Der Gerichtshof entnimmt den Verträgen eine zunehmende Besorgnis der internationalen Gemeinschaft über diese Waffen, die auf ein künftiges allgemeines Einsatzverbot hindeuten könnte, nicht aber ein bereits bestehendes Verbot. Aus den Verträgen von Tlatelolco und Rarotonga mit ihren Protokollen sowie den in Verbindung mit der unbefristeten Verlängerung des Nichtverbreitungsvertrages abgegebenen Erklärungen ergebe sich, a) daß sich eine Reihe von Staaten verpflichtet hätte, in bestimmten Zonen (Lateinamerika, Südpazifik) oder gegen bestimmte andere Staaten (Nicht-Atomwaffenstaaten) keine Atomwaffen einzusetzen, b) daß sich die Atomwaffenstaaten aber sogar in diesem Rahmen das Recht vorbehalten hätten, unter Umständen Atomwaffen einzusetzen und c) daß diesen Vorbehalten weder von den Vertragsparteien noch vom Sicherheitsrat widersprochen worden sei. Auch in Anbetracht der Unterzeichnung der Verträge vom 15. Dezember 1995 über die südostasiatische atomwaffenfreie Zone und vom 11. April 1996 über die Schaffung einer atomwaffenfreien Zone in Afrika könne nicht von einem umfassenden universellen Verbot der Androhung oder des Einsatzes von Atomwaffen als solchen nach Völkervertragsrecht ausgegangen werden. Sodann untersucht der Gerichtshof, ob nach Völkergewohnheitsrecht Atomwaffen als solche verboten sind, mithin, ob insoweit eine Staatenpraxis und opinio iuris bestehen.128 Staaten, die Atomwaffeneinsatz für rechtswidrig halten, hatten darauf verwiesen, daß es in der Staatenpraxis seit 1945 keinen Atomwaffeneinsatz gegeben habe und daß damit die Atomwaffenstaaten eine entsprechende opinio iuris zum Ausdruck gebracht hätten. Befürworter der Rechtmäßigkeit haben zugunsten ihrer Position auf die Abschreckungsdoktrin und -praxis verwiesen, mit der sie sich im Einklang mit gewissen anderen Staaten immer das Recht vorbehalten hätten, diese Waffen zur Selbstverteidigung gegen einen bewaffneten, ihre lebenswichtigen Sicherheitsinteressen bedrohenden Angriff einzusetzen; der Nichteinsatz beruhe nicht auf 128

Abs. 64-73.

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Ursula Ε. Heinz

einer bestehenden oder entstehenden Gewohnheit, sondern sei dem glücklichen Umstand zu verdanken, daß es zu einer Situation, die den Einsatz gerechtfertigt hätte, nicht gekommen sei. Zur „Abschreckungspolitik" will sich der Gerichtshof nicht äußern, sondern stellt lediglich fest, daß eine Reihe von Staaten diese Praxis während und nach dem kalten Krieg verfolgt haben. Angesichts der Tatsache, daß die Mitglieder der internationalen Gemeinschaft bei der Frage, ob sich der Nichteinsatz von Atomwaffen als Ausdruck einer opinio iuris darstelle, zutiefst gespalten seien, kann er keine Rechtsüberzeugung erkennen. Einige Staaten hatten ihre Meinung, der Rückgriff auf Atomwaffen sei nach Völkergewohnheitsrecht verboten, mit der bedeutenden Anzahl von Resolutionen der Generalversammlung begründet, die, ausgehend von Resolution 1653 (XVI) von 1961, regelmäßig die Illegalität von Nuklearwaffen bekräftigt hätten. Andere Staaten hatten dagegen auf die Unverbindlichkeit von Resolutionen der Generalversammlung verwiesen und ihnen den Charakter einer Deklaration von Völkergewohnheitsrecht abgesprochen; außerdem hätten nicht alle Atomwaffenstaaten und auch sonstige Staaten für sie gestimmt. Dem hatten Verfechter der Rechtswidrigkeit von Atomwaffen entgegengesetzt, daß mit den Resolutionen nicht etwa neues Recht geschaffen, sondern bereits bestehendes Gewohnheitsrecht bezüglich der Art und Weise der Kriegführung bekräftigt werden sollte; gelegentlich negatives Abstimmungsverhalten sei daher irrelevant. Dazu bemerkt der Gerichtshof, daß Resolutionen der Generalversammlung trotz ihrer Unverbindlichkeit manchmal normativen Wert haben. Sie könnten unter Umständen als Nachweis einer bestehenden opinio iuris dienen, wofür ihr Inhalt und die Umstände ihrer Annahme maßgeblich seien, aber auch, ob in Bezug auf den normativen Gehalt opinio iuris gegeben sei. Außerdem könnten sie das Entstehen einer opinio iuris anzeigen. Wenn man die vorgelegten Resolutionen untersuche, so sei festzustellen, daß viele mit einer beträchtlichen Anzahl von Gegenstimmen und Enthaltungen angenommen worden seien; in ihnen komme zwar eine tiefe Besorgnis über das Problem der Kernwaffen zum Ausdruck, nicht aber die Rechtsüberzeugung, daß der Atomwaffeneinsatz rechtswidrig ist. In der ersten Resolution, in der Atomwaffeneinsätze als rechtswidrig gebrandmarkt worden seien, sei zunächst auf gewisse internationale Erklärungen und verbindliche Abkommen, angefangen von der Petersburger Erklärung von 1868 bis hin zum Genfer Protokoll von 1925, Bezug genommen worden und sodann die Rechtsnatur von Atomwaffen und ihre Wirkungen bestimmt und allgemeine Normen des Völkerrechts auf Atomwaffen angewendet worden. Die Anwendung allgemeiner Normen durch die Generalversammlung zeige, daß es ihrer Meinung nach keine besondere Norm des Völkergewohnheitsrecht, die Atomwaffeneinsatz verbietet, gegeben habe; andernfalls hätte sie sich auf diese beziehen und von einer Bestimmung der Rechtsnatur absehen können. Mit der jähr-

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

liehen von einer breiten Mehrheit getragenen Annahme der Resolutionen, in denen die Mitglieder zum Abschluß eine Konvention, die den Atomwaffeneinsatz unter allen Umständen verbietet, aufgerufen werden, komme der Wunsch eines großen Teils der internationalen Gemeinschaft zu einem Fortschritt in Richtung auf eine vollständige nukleare Abrüstung zum Ausdruck; der Nachweis einer gewohnheitsrechtlichen Norm, die ausdrücklich den Atomwaffeneinsatz als solchen verbietet, scheitere hingegen an den Spannungen zwischen einer entstehenden opinio iuris einerseits und dem immer noch starken Festhalten an der Abschreckungspraxis andererseits. Als nächstes untersucht der Gerichtshof, ob ein Atomwaffeneinsatz nach humanitärem Kriegsrecht oder Neutralitätsrecht verboten ist.129 Aus dem Haager und Genfer Recht hätten sich gewohnheitsrechtliche Normen entwickelt, zu deren Hauptprinzipien einmal der Schutz der Zivilbevölkerung und ziviler Objekte und zum anderen das Verbot der Verursachung unnötiger Leiden von Kombattanten gehöre. Außerdem trage die Martens'sche Klausel der rasanten Entwicklung der Militärtechnologie Rechnung. Aus diesen Prinzipien ergebe sich, daß bestimmte Waffengattungen entweder wegen ihrer unterschiedslosen Wirkung auf Kombattanten und Zivilpersonen oder wegen unnötiger Leiden von Kombattanten verboten seien. Die grundlegenden Regeln der Haager und Genfer Ubereinkommen stellten sich als unüberschreitbare Prinzipien des Völkergewohnheitsrechts dar, die von allen Staaten unabhängig von ihrer Ratifikation beachtet werden müßten. Es könne dahinstehen, ob — was behauptet worden war — diese humanitären Normen und Prinzipien ius cogens seien, weil der Rechtscharakter einer Norm nicht die Frage nach der Anwendbarkeit des humanitären Rechts auf den Gebrauch von Atomwaffen und den Folgen der Anwendbarkeit für die Rechtmäßigkeit ihres Gebrauchs löse. Ebensowenig müsse er sich mit der Frage befassen, ob das Zusatzprotokoll I von 1977 auf Atomwaffen anwendbar ist. Dieses Protokoll habe lediglich bereits bestehendes Gewohnheitsrecht zum Ausdruck gebracht; der Umstand, daß man sich auf der diplomatischen, von 1974 bis 1977 dauernden Konferenz nicht mit bestimmten Waffengattungen befaßt habe, erlaube keine rechtlichen Schlußfolgerungen hinsichtlich der Fragen, die ihr Einsatz aufwirft. Dem zuweilen erhobenen Einwand, daß das humanitäre Recht sich vor der Erfindung der Atomwaffen entwickelt habe und sich die Genfer Konferenzen von 1949 und 1974 - 1977 nicht speziell mit Atomwaffen befaßt hätten, so daß das humanitäre Recht nicht auf die Androhung oder den Einsatz von Atomwaffen anwendbar sei, begegnet der Gerichtshof in Übereinstimmung mit der breiten Mehrheit der Staaten, daß ein solche Schlußfolgerung mit dem ureigenen humanitären Charakter der fraglichen Rechtsprinzipien, die das gesamte Recht des bewaffneten Konflikts durchdringen und für alle Arten der Kriegführung und Waffen der Vergangenheit, Gegenwart 129

Abs. 74 - 97.

508

Ursula Ε. Heinz

und Zukunft gelten, unvereinbar sei. In diesem Verfahren habe auch niemand einen derartigen Einwand erhoben. Zum Prinzip der Neutralität weist der Gerichtshof darauf hin, daß dieses Prinzip ebenso wie die Prinzipien des humanitären Völkerrechts auf jeden internationalen bewaffneten Konflikt unabhängig von der Art der eingesetzten Waffen Anwendung findet. Die aus der Anwendbarkeit des humanitären Völkerrechts und des Prinzips der Neutralität zu ziehenden Folgerungen waren umstritten. So war einerseits vertreten worden, daß sich aus dem Umstand, daß der Einsatz von Atomwaffen dem Recht des bewaffneten Konflikts unterworfen ist, nicht notwendigerweise ein Verbot des Einsatzes herleiten läßt. Was die wahrscheinliche Verlustrate bei der Zivilbevölkerung anbelangt, so könnten Atomwaffen in einer großen Bandbreite mit unterschiedlichen Ergebnissen zum Einsatz gebracht werden. Der Einsatz einer Atomwaffe mit geringer Reichweite gegen Kriegsschiffe auf der Hohen See oder Truppen in dünn besiedelten Gegenden würde vergleichsweise geringe Verluste bei der Zivilbevölkerung verursachen, diese seien auch bei einem Einsatz gegen ein militärisches Ziel nicht eine unvermeidliche Begleiterscheinung. Andererseits war vorgebracht worden, daß der Einsatz von Atomwaffen unvereinbar mit den Prinzipien und Regeln des humanitären Rechts und dem Prinzip der Neutralität und deshalb verboten ist, weil Atomwaffen nicht zwischen Zivilbevölkerung und Kombattanten oder zivilen und militärischen Objekten unterscheiden könnten und ihre Wirkungen sich weder zeitlich noch räumlich auf militärische Ziele beschränken ließen. Wegen der durch die Explosion verursachten Druckwelle, Hitze und Strahlung würden sie unterschiedslos töten und zerstören, und die sich daraus ergebenden Verluste wären gewaltig. Nach den Beobachtungen des Gerichtshofes hat keiner der Staaten, die vertreten, daß ein Atomwaffeneinsatz unter Umständen, wie beim „sauberen" Einsatz kleinerer taktischer Atomwaffen mit geringer Reichweite, legal ist, genau Situationen benannt, die solch einen Einsatz — angenommen, er sei derart begrenzt durchführbar — rechtfertigen würden, oder etwas dazu vorgetragen, ob ein derart begrenzter Einsatz nicht zu einem in voller Stärke stattfindenden Einsatz von Nuklearwaffen mit hoher Reichweite eskalieren könnte. Ob deren Ansicht zutrifft, könne er daher mangels hinreichender Grundlage nicht entscheiden. Ebensowenig könne er beurteilen, ob die Ansicht derer, die einen Atomwaffeneinsatz wegen seiner ihm eigenen völligen Unvereinbarkeit mit dem Recht des bewaffneten Konflikts in jeder Situation für illegal halten, begründet ist. Zwar sei das Verhalten bei bewaffneten Handlungen auf Grund des Rechts des bewaffneten Konflikts, in dessen Mittelpunkt vorrangig die Beachtung von Menschlichkeit steht, strengen Anforderungen unterworfen, so daß Methoden und Mittel der Kriegführung, die zwischen zivilen und militärischen Zielen nicht unterscheiden oder zu unnötigen Leiden bei Kombattanten führen, verboten sind. Angesichts der einzigartigen Charakteristika von Atomwaffen scheine in der Tat ihr

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

Einsatz schwerlich diesen Anforderungen genügen zu können. Jedoch habe er nicht ausreichende Anhaltspunkte, um mit Sichérheit folgern zu können, daß der Atomwaffeneinsatz notwendigerweise in jeder Situation im Widerspruch zu den Prinzipien und Normen des Rechts des bewaffneten Konflikts steht. Außerdem könne er nicht das grundlegende Recht jeden Staates auf Überleben und damit auf Selbstverteidigung entsprechend Art. 51 der Charta bei einer Gefahr für sein Überleben außer Betracht lassen. Ebensowenig könne er ignorieren, daß ein beträchtlicher Anteil der internationalen Gemeinschaft über viele Jahre die Praxis der sogenannten „Politik der Abschreckung" verfolgt habe. Auch die Vorbehalte bestimmter Atomwaffenstaaten etwa zu den Verträgen von Tlatelolco und Raratonga sowie ihre in Verbindung mit der Verlängerung der Nichtverbreitungsvertrages abgegebenen Erklärungen seien zu berücksichtigen. Deswegen sehe er sich außerstande, abschließend zu beurteilen, ob der Atomwaffeneinsatz eines Staates in einer höchstgradigen Selbstverteidigungslage, in der sein Überleben auf dem Spiele steht, rechtmäßig oder rechtswidrig ist. In Anbetracht der überaus schwierigen Fragen bei der Anwendung des Rechts der Gewaltanwendung und darüber hinaus des Rechts des bewaffneten Konflikts auf Atomwaffeneinsätze überprüft der Gerichtshof einen weiteren im größeren Sachzusammenhang gesehenen Aspekt der ihm vorgelegten Frage.130 Zweifellos würden auf Dauer das Völkerrecht und mit ihm die internationale Ordnung, die es regeln soll, durch fortdauernde unterschiedliche Ansichten hinsichtlich des Rechtsstatus' von Waffen, die so tödlich wie Atomwaffen sind, Schaden erleiden. Dem Zustand müsse ein Ende bereitet werden, was am ehesten mittels der seit langem versprochenen vollständigen nuklearen Abrüstung erreicht werde. Unter diesen Umständen komme dem Art. VI des Nichtverbreitungsvertrages, der die Parteien verpflichtet, nach Treu und Glauben über eine baldige Beendigung des nuklearen Wettrüstens und über nukleare Abrüstung sowie über einen Vertrag zur allgemeinen und vollständigen Abrüstung unter strenger und wirksamer internationaler Kontrolle zu verhandeln, eine besondere rechtliche Bedeutung zu: Die damit angesprochene Verpflichtung der 182 Vertragsstaaten, die die breite Mehrheit der internationalen Gemeinschaft darstellten, sei nicht nur eine Verhandlungspflicht, sondern die Pflicht, durch ein bestimmtes Verhalten ein konkretes Ergebnis zu erzielen, nämlich atomare Abrüstung in jeder Hinsicht. Daß insoweit die gesamte Gemeinschaft in die Pflicht genommen werde, zeigten die wiederholten einstimmig angenommenen Resolutionen der Generalversammlung über nukleare Abrüstung. Wenn mit ihr ernst gemacht werden solle, sei die Zusammenarbeit sämtlicher Staaten erforderlich. Daß diese sich vertrauensvoll gestalten müsse, belege der Hinweis auf „Treu und Glauben", damit auf ein Grundprinzip, das, ausgehend von seiner Niederlegung in Art. 2(2) der Charta, die Erschaffung und Durchführung internationaler Pflichten präge. 130

Abs. 98 - 103.

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Ursula Ε. Heinz

Abschließend betont der Gerichtshof, daß seine Antwort auf die ihm vorgelegte Frage auf allen in Abs. 20 - 103 ausgeführten Rechtsgründen beruhe; jeder müsse im Lichte der anderen gesehen werden. Wenn sich auch manche Gründe nicht im Tenor niederschlügen, so behielten sie seiner Ansicht nach dennoch ihr Gewicht.131 Aus diesen Gründen 1. entscheidet der Gerichtshof mit dreizehn Stimmen gegen eine,132 der Anforderung eines Gutachtens nachzukommen; 2. beantwortet er die ihm von der Generalversammlung vorgelegte Frage folgendermaßen: A. einstimmig, daß es weder im Völkergewohnheits- noch Völkervertragsrecht eine spezielle Ermächtigung zur Androhung oder zum Einsatz von Atomwaffen gibt; B. mit elf gegen drei Stimmen,133 daß es weder im Völkergewohnheits- noch Völkervertragsrecht ein umfassendes und universelles Verbot der Androhung oder des Einsatzes von Atomwaffen als solchen gibt; C. einstimmig, daß Gewaltandrohung oder -anwendung mittels Atomwaffen, die im Widerspruch zu Art. 2(4) der Charta der Vereinten Nationen steht und nicht die Anforderungen des Art. 51 erfüllt, rechtswidrig ist; D. einstimmig, daß eine Androhung oder ein Einsatz von Atomwaffen auch mit den Anforderungen des internationalen Rechts des bewaffneten Konflikts, insbesondere den Prinzipien und Normen des humanitären Völkerrechts, sowie den speziellen Verpflichtungen aus Verträgen und anderen Vereinbarungen, die sich ausdrücklich mit Atomwaffen befassen, vereinbar sein soll; E. auf Grund der entscheidenden Stimme des Präsidenten mit sieben gegen sieben Stimmen,134 daß sich aus den oben genannten Anforderungen ergibt, daß die Androhung oder der Einsatz von Atomwaffen in der Regel im Widerspruch zu den Normen des internationalen Rechts des bewaffneten Konflikts, insbesondere den Prinzipien und Normen des humanitären Rechts stehen würde; daß aber der Gerichtshof angesichts des gegenwärtigen Standes des Völkerrechts und der verfügbaren Tatsachenelemente nicht abschließend beurteilen kann, ob die Androhung oder der Einsatz von Atomwaffen in einer höchstgradigen Selbstverteidigungslage, in der das Uberleben eines Staates auf dem Spiele steht, rechtmäßig oder rechtswidrig sein würde; 131

Abs. 104.

132

Gegenstimme: Richter Oda.

133

Gegenstimmen: Richter Shahabudden , Weeramantry , Koroma.

134

Gegenstimmen: Vizepräsident Schwebel , Richter Oda, Guillaume, Shahabpiddeen, Weeramantry, Koroma, Higgins.

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

F. einstimmig, daß eine Verpflichtung besteht, nach Treu und Glauben Verhandlungen mit dem Ziel einer atomaren Abrüstung in jeder Hinsicht unter strenger und wirksamer internationaler Kontrolle fortzuführen und abzuschließen.

Dem Gutachten fügten Präsident Bedjaoui sowie die Richter Herczegh, Shi, Vereshchetin und Ferrari Bravo jeweils Erklärungen bei. Besondere Meinungen wurden von den Richtern Guillaume, Ranjeva und Fleischhauer beigefügt. Abweichende Meinungen gaben Vizepräsident Schwebel und die Richter Oda, Shahabuddeen, Weeramantry, Koroma und Higgins ab. Schwebel verurteilt den 2. Absatz von Ziff. 2. E. des Tenors, in dem der Gerichtshof die Frage der Rechtmäßigkeit des Atomwaffeneinsatzes offengelassen hatte. Dadurch, daß er in bezug auf die wichtigsten Normen des modernen Völkerrechts, nämlich über Fragen der Androhung oder Anwendung von Gewalt eine mehrdeutige Aussage gemacht habe, indem er zu dem Schluß gekommen sei, es gebe insoweit kein Recht, habe er die Bestimmungen der UN-Charta, nach denen er das Hauptrechtsprechungsorgan der Vereinten Nationen ist, außer Acht gelassen. Wie es sich z. B. im Golfkrieg gezeigt habe, in dem dem Irak gegenüber der Eindruck erweckt worden sei, daß ein Einsatz von chemischen oder biologischen Waffen gegen die Alliierten mit einem Einsatz taktischer Atomwaffen beantwortet werden könnte, was ihn möglicherweise vom Einsatz der B- und C-Waffen abgehalten habe, sei die Androhung eines Atomwaffeneinsatzes unter außerordentlichen Umständen nicht nur vollkommen rechtmäßig, sondern auch überaus wünschenswert. Aus der Praxis der Staaten, in der seit über 50 Jahren zur Abschreckung Nuklearwaffen hergestellt und stationiert worden seien, ergebe sich, daß die internationale Gemeinschaft anerkannt habe, daß sie unter bestimmten Umständen eingesetzt oder ihr Einsatz angedroht werden könnten. Das zeige auch der Nichtverbreitungsvertrag und die vom Sicherheitsrat einstimmig gebilligten Sicherheitsgarantien der Nuklearmächte. Dem widersprechende Resolutionen der Generalversammlung könnten kein Recht setzen oder bestehendes Völkerrecht deklarieren. Oda ist der Ansicht, der Gerichtshof hätte von seinem Ermessen, ob er ein Gutachten erstellt, in negativer Weise Gebrauch machen sollen, weil in der Generalversammlung keine Einigkeit über die Vorbereitung eines Übereinkommens zum Verbot von Atomwaffen herrsche und das Gutachten nicht zur Klärung einer Rechtsfrage, sondern zum Zwecke der Beseitigung von Atomwaffen, also aus politischen Gründen, angefordert worden sei. Außerdem sollte seiner Ansicht nach aus Gründen der Prozeßökonomie ein Gutachten nur bei tatsächlichem Bedarf erstellt werden. Wegen der Unwahrscheinlichkeit eines Atomwaffeneinsatzes auf Grund der derzeitigen Abschreckungsdoktrin bestünde ein solcher Bedarf nicht. Auch die Zweideutigkeit, die in Ziff. 2. E. enthalten sei, gegen die er daher gestimmt habe, belegten, daß der Gerichtshof besser beraten gewesen wäre, kein Gutachten abzugeben.

512

Ursula Ε. Heinz

Shahabuddeen meint, dem Gerichtshof sei die Frage vorgelegt worden, wie das Spannungsverhältnis zwischen der zwingenden Notwendigkeit einer Selbstverteidigung einerseits und der Gefährdung des Überlebens der Menschheit andererseits zum Ausgleich zu bringen sei. Diese Frage hätte der Gerichtshof eindeutig auf die eine oder andere Weise beantworten sollen, da weder das Recht noch der Sachverhalt lückenhaft seien. Nach Weeramantry ist der Atomwaffeneinsatz mit seinen bekannten einzigartigen Wirkungen oder seine Androhung unter allen Umständen zweifelsfrei rechtswidrig. Mit ihm würden fundamentale Völkerrechtsprinzipien verletzt und der der Struktur des humanitären Rechts innewohnende humanitäre Gedanke geleugnet, gegen Vertragsrecht verstoßen, dem grundlegenden Prinzip der Würde und des Wertes des Menschen, das alles Recht bestimme, widersprochen und die menschliche Umwelt in einer Weise gefährdet, die das gesamte Leben der Erde bedrohe. Es könne nicht zweierlei Recht gleichzeitig im selben Konflikt anwendbar sein, eines für konventionelle und eines für nukleare Waffen. In einem glaubwürdigen Rechtssystem wie dem Völkerrecht könne nicht eine Norm enthalten sein, nach der die Vernichtung der gesamten Menschheit rechtmäßig sei. Auch Koroma hält den Atomwaffeneinsatz in jeder Situation für rechtswidrig, weil er letztlich die Prinzipien und Normen insbesondere des humanitären Rechts verletze. Mit seiner Aussage in Ziff. 2. E., daß der Einsatz oder seine Androhung „im allgemeinen" gegen humanitäres Völkerrecht verstößt, habe sich der Gerichtshof vor der Beantwortung der ihm gestellten Frage gedrückt. Statt die Frage der Rechtmäßigkeit des Atomwaffeneinsatzes zu beantworten, habe er die Frage nach dem „Überleben des Staates" aufgeworfen. Die Aussage des Gerichtshofes sei nicht nur rechtlich unhaltbar, sondern trage möglicherweise zur Destabilisierung der internationalen Ordnung bei, indem sie nicht nur den Staaten die Beurteilung der Rechtmäßigkeit des Atomwaffeneinsatzes überlasse, sondern das Regime der UN-Charta hinsichtlich Gewaltverbot und Selbstverteidigung in Zweifel ziehe und gleichzeitig die rechtlichen Beschränkungen, denen Atomwaffen unterworfen sind, aufweiche. Das auf die gestellte Frage anwendbare Recht sei in präziser Form vorhanden, so daß für ein non liquet kein Raum gewesen sei. Nach der Meinung der Richterin Higgins hat es der Gerichtshof verfehlt, das humanitäre Recht systematisch so anzuwenden, daß das im ersten Absatz von Ziff. 2. E. gefundene Ergebnis, dessen Bedeutung unklar sei, nachvollziehbar ist. Auch das non liquet im zweiten Absatz sei unnötig und rechtlich unhaltbar. Um dem rechtlichen Gebot zu entsprechen, daß ein militärisches Ziel nicht angegriffen werden darf, wenn dabei im Verhältnis zum militärischen Vorteil übermäßige Verluste bei der Zivilbevölkerung auftreten, müsse der militärische Vorteil eines Atomeinsatzes auf ein militärisches Ziel im Überleben des Staates oder in der Abwendung großen und schweren Leides der eigenen Bevölkerung liegen und das einzige Mittel zur Beseiti-

Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1995 und 1996

gung des militärischen Ziels sein. Es gebe Atomwaffen unterschiedlicher Wirkungen. Um dem Gebot der Unterscheidung von Kombattanten und Zivilbevölkerung gerecht zu werden, dürfe nicht eine Atomwaffe verwendet werden, die wegen ihrer Wirkung zu einer Unterscheidung nicht in der Lage sei. Auch das Verhältnis der beiden Absätze der Ziff. 2. E. zueinander sei unklar. Die Verwendung der Formulierung „in der Regel" deute auf eine Ausnahme. Wenn, wie der Gerichtshof ausgeführt habe, nach der Charta der Einsatz von Atomwaffen als solchen nicht rechtswidrig sein würde und wenn ein Einsatz sowohl den Voraussetzungen des Art. 51 als auch humanitärem Recht entsprechen würde, könne er im zweiten Absatz schwerlich sagen, er wisse nicht, ob solch ein Einsatz in einer höchstgradigen Selbstverteidigungslage rechtmäßig oder rechtswidrig sein würde.

33 G Y I L 40

Die Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte im Jahre 1996 Von Marian Niestedt und Dominik Ziegenhahn

I. Allgemeines Der Europäische Gerichtshof für Menschenrechte (EGMR) fällte im Berichtszeitraum 1 72 Urteile —16 mehr als im Vorjahr. Zehn Fälle wurden wegen ihrer Bedeutung für die Auslegung der Europäischen Konvention zum Schutze der Menschenrechte und Grundfreiheiten (EMRK) nach Art. 53 der Verfahrensordnung-B des Gerichtshofes (VerfO-B 2) durch die aus 21 Richtern bestehende Große Kammer entschieden. In 39 Fällen stellte das Gericht eine oder mehrere Verletzungen der EMRK fest. Dagegen hielt der Gerichtshof in 28 Fällen die jeweils gerügten staatlichen Maßnahmen für mit der Konvention vereinbar. In zwei Urteilen wurde aufgrund einer gütlichen Einigung der Parteien die Streichung aus dem Register gem. Art. 54 Abs. 4 VerfO-A vorgenommen,3 während ein Urteil ausschließlich die Entschädigung nach Art. 50 EMRK4 betraf. 5 Zudem erging eine Gerichtsentscheidung zur Auslegung eines

1

Der folgende Bericht schließt an den Vorjahresbericht von Frank Bodendiek/Karsten Nowrot, Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1995, German Yearbook of International Law (GYIL), vol. 39, 1996, 481 - 522, an. 2

Die VerfO-B hat für alle Staaten Geltung, für die die EMRK in der Fassimg des 9. Zusatzprotokolles vom 6. November 1990 gilt, sofern das Verfahren nach dem Zeitpunkt des Inkrafttretens des 9. Zusatzprotokolles, dem 1. Oktober 1994, beim Gerichtshof anhängig gemacht wurde. Die alte VerfO (VerfO-A) gilt weiterhin für die Staaten, die noch nicht an das 9. Zusatzprotokoll gebunden sind. Bis Ende 1996 hatten 23 Staaten das 9. Zusatzprotokoll ratifiziert. 3

Urteile Fouquet gegen Frankreich vom 31. Januar 1996, Reports 1996-1, 19 ff. und Vogt gegen Deutschland (Art. 50) vom 2. September 1996, Reports 1996-IV, 1086 ff. 4

Artikel ohne Bezeichnung sind im folgenden solche der EMRK.

5

UrteÜ Welch gegen Vereinigtes

Königreich vom 26. Februar 1996, Reports 1996-Π, 386 ff.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im fahre 1996

Urteils gem. Art. 57 VerfO-A 6 und erstmals betraf schließlich ein Urteil die Frage der Wiederaufnahme eines Verfahrens nach Art. 58 VerfO-A. 7 Die Beschwerden, über deren Begründetheit der Gerichtshof urteilte, richteten sich gegen fünfzehn der Mitgliedstaaten der Konvention: Zwölf davon gegen Frankreich, elf gegen das Vereinigte Königreich, acht gegen Italien, sieben gegen Griechenland, jeweils fünf gegen die Türkei und die Niederlande, jeweils drei gegen Portugal und die Schweiz, jeweils zwei gegen Belgien, Norwegen und Spanien sowie jeweils eine gegen Dänemark, Deutschland und Schweden. Während das kürzeste Verfahren, gerechnet ab dem Zeitpunkt der Einlegung der Beschwerde bei der Europäischen Kommission für Menschenrechte (EKMR), zwei Jahre dauerte,8 wurde in einem Fall erst nach neun Jahren und zwei Monaten entschieden.9 Im Rahmen der folgenden Rechtsprechungsübersicht soll zunächst auf die Behandlung der Zulässigkeitsfragen durch das Gericht und anschließend auf dessen Ausführungen zur Begründetheit der Individualbeschwerden eingegangen werden. II. Zulässigkeit der Individualbeschwerden Auch 1996 befaßte sich der Gerichtshof mit verschiedenen Fragen der Zulässigkeit von Individualbeschwerden. Er bestätigte erneut, daß es nicht in seiner Kompetenz liege, sich mit Verfahrenseinreden der Regierungen, die bereits von der Kommission für unzulässig erachtet wurden 10 oder die erstmalig vorgebracht wurden, 11 zu befassen. Soweit allerdings eine Prozeßeinrede einer Regierung nicht separat, sondern als Teil der Argumentation bezüglich einer materiellen Verletzung vor der Kommission geltend gemacht wird, hält sich der Gerichtshof für kompetent, sich mit dieser Ein-

6

Urteil Allenet de Ribemont gegen Frankreich

(Interpretation) vom 7. August 1996, Reports

1996-m, 903 ff. 7 Urteil Pardo gegen Frankreich 860 ff.

(Wiederaufnahme) vom 10. Juli 1996, Reports 1996-ΙΠ,

8

Urteil Ahmed gegen Österreich vom 17. Dezember 1996, Reports 1996-VI, 2195 (2205), § 30.

9

Urteil Guillot gegen Frankreich

vom 24. Oktober 1996, Reports 1996-V, 1593 (1601), § 16.

10

Urteile Leutscher gegen Niederlande vom 26. März 1996, Reports 1996-Π, 427 (434), § 22; Süßmann gegen Deutschland vom 16. September 1996, 1158 (1169), § 29; Miailhe gegen Frankreich (Nr. 2) vom 26. September 1996, Reports 1996-IV, 1319 (1335), § 37; Terra Woningen Β. V. gegen Niederlande vom 17. Dezember 1996, Reports 1996-VI, 2105 (2121), § 45; Ahmed (Anm. 8), 2195 (2205), § 34. 11 Urteile Doorson gegen Niederlande vom 26. März 1996, Reports 1996-Π, 446 (465), §§ 51 f.; Süßmann (Anm. 10), 1158 (1169), § 30; Terra Woningen B.V. (Anm. 10), 2105 (2122), § 49; Vacher gegen Frankreich vom 17. Dezember 1996, Reports 1996-VI, 2138 (2145), § 18.

33*

516

Marian Niestedt und Dominik Ziegenhahn

rede zu befassen, selbst wenn die Kommission darauf im Rahmen der Zulässigkeit nicht eingegangen ist.12 Zudem erinnerte das Gericht an seine ständige Rechtsprechung, nach der grundsätzlich vorrangig die Kommission für die Sachverhaltsermittlung zuständig ist, während es bei der Bewertung der Tatsachen nicht an die der Kommission gebunden ist.13 Bezüglich der Anforderungen an die Geltendmachung einer Konventionsverletzung vor der Kommission bekräftigte das Straßburger Gericht, daß es genügt, wenn der Beschwerdeführer (Bf.) die Verletzung der Substanz nach geltend gemacht hat.14 1. Entscheidung über die Aktivlegitimation Art. 48 Abs. 1 lit. e)

einer natürlichen Person —

Aufgrund der Neuerungen des 9. Zusatzprotokolles wurden gem. Art. 48 EMRK i.V.m. Art. 34 Abs. 1 lit. a), Abs. 3, Abs. 4 VerfO-B 55 Entscheidungen durch den aus drei Richtern bestehenden Vorprüfungsausschuß über unmittelbar an den EGMR gerichtete Individualbeschwerden getroffen. Dieser hatte sich mit der Frage zu beschäftigen, ob eine natürliche Person gem. Art. 48 Abs. 1 lit. e) aktivlegitimiert war. Dabei kam der nach Art. 34 Abs. 4 VerfO-B gebildete Vorprüfungsausschuß jeweils zu der Überzeugung, daß die Rechtssache weder eine schwerwiegende Frage der Auslegung oder Anwendung der Konvention aufwarf noch aus einem anderen Grund die Prüfung durch den Gerichtshof rechtfertigte. Der jeweilige Antrag der Bf. war daher abzulehnen.15

12 Urteile Amuur gegen Frankreich vom 25. Juni 1996, Reports 1996-ΙΠ, 826 (845 f.), § 35; deutsche Übersetzung des Urteils in Europäische Grundrechte-Zeitschrift (EuGRZ) Bd. 23, 1996, 577 ff. mit Anmerkung von Juliane Kokott, Zur Rechtsstellung von Asylbewerbern in Transitzonen, EuGRZ Bd. 23, 1996, 569 ff.; Buckley gegen Vereinigtes Königreich vom 25. September 1996, Reports 1996-IV, 1271 (1286), § 48. 13

Urteile Akdivar u. a. gegen Türkei vom 16. September 1996, Reports 1996-IV, 1192 (1214), § 78; siehe dazu die Anmerkung von Leo Zwaak> The European Court of Human Rights has the Turkish Security Forces Held Responsible for Violations of Human Rights: The Case of Akdivar and Others, Leiden Journal of International Law 1997, 99 ff.; Loizidou gegen Türkei (Begründetheit) vom 18. Dezember 1996, Reports 1996-VI, 2216 (2235), § 55; Aksoy gegen Türkei vom 18. Dezember 1996, Reports 1996-VI, 2260 (2272), § 38. 14

Urteil Phocas gegen Frankreich

15

Siehe nur z. B. die Entscheidung Sacchi gegen Italien vom 29. Januar 1996, Reports 1996-1,

1(3).

vom 23. April 1996, Reports 1996-Π, 519 (545), § 66.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

2. Zuständigkeit ratione loci Zwar wurde die Zuständigkeit ratione loci des Gerichtshofes im Jahre 1996 von keinem Mitgliedsstaat der Konvention bestritten. Bezüglich des räumlichen Geltungsbereichs der Konvention wies der Gerichtshof jedoch implizit im Urteil Amuur darauf hin, daß die Garantien der Menschenrechtskonvention auch in Transitbereichen von Flughäfen gelten, da diese keinen extraterritorialen Status beanspruchen können.16 3. Zuständigkeit ratione temporis Mehrfach hatte sich der Gerichtshof mit Verfahrenseinreden der türkischen Regierung auseinanderzusetzen, die die Zuständigkeit ratione temporis insoweit bestritt, als es um die Beurteilung von Vorkommnissen und Tatsachen ging, die sich bereits vor der nach Art. 46 erforderlichen Unterwerfungserklärung der Türkei vom 22. Januar 1990 abgespielt hatten. Bezüglich des maßgeblichen Zeitpunktes für seine Jurisdiktion betonte der Gerichtshof, daß es auf den Zeitpunkt der Notifikation der Unterwerfungserklärung ankommt.17 Im Fall Yagiz hatte die Bf. als Verletzung von Art. 3 unter anderem Schläge auf die Fußsohlen und sexuelle Belästigung während ihrer Haft in der Türkei geltend gemacht. Hier brauchte der Gerichtshof sich nicht mit den Gründen zu befassen, da die angebliche Behandlung mehr als einen Monat vor der Unterwerfungserklärung stattgefunden haben sollte.18 Ebenso waren im Fall Mitap undMüftüoglu die meisten gerügten Maßnahmen bereits vor dem 22. Januar 1990 abgeschlossen. Allein die Dauer des innerstaatlichen Verfahrens konnte als Verstoß gegen Art. 6 Abs. 1 geltend gemacht werden, wenn auch erst ab dem Zeitpunkt der Unterwerfungserklärung. 19 Sofern die eigentliche Verletzungshandlung vor dem Zeitpunkt der Unterwerfungserklärung stattfand, kann indes nach der Rechtsprechung des EGMR das Konzept von der fortgesetzten Verletzung im Rahmen der EMRK dazu führen, daß das Gericht dennoch ratione temporis zuständig ist.20 Einen solchen Fall hatte das Gericht in seinem zweiten Urteil Loizidou vom 18. Dezember 1996 zu entscheiden, in dem die Bf. eine solche fortgesetzte Eigentumsverletzung geltend machte. Die türkische Regierung brachte jedoch vor, daß die Bf. bereits vor der Unterwerfungserklärung, 16

Urttü Amuur (Anm. 12), 826 (851), § 52.

17

Urteü Yagiz gegen Türkei vom 7. August 1996, Reports 1996-IV, 966 (973), § 27.

18

UrteÜ Yagiz (Anm. 17), 966 (973), § 28.

19

Urteü Mitap undMüftüoglu gegen Türkei vom 25. März 1996, Reports 1996-Π, 402 (410 f.),

§28. 20

Urteü Loizidou (Begründetheit)

(Anm. 13), 2216 (2227 ff.), §§ 32 ff.

518

Marian Niestedt und Dominik Ziegenhahn

nämlich am 7. Mai 1985, ihr Eigentum an ihrem Grund und Boden verloren habe und der EGMR somit ratione temporis nicht zuständig sei.21 Da das Konzept von der fortgesetzten Verletzung nach Ansicht des EGMR nur dann Anwendung finden kann, wenn der Bf. noch Eigentümer ist, hatte der Gerichtshof sich zunächst mit der Frage auseinanderzusetzen, ob die Bf. durch die Enteignung im Rahmen des Art. 159 der Verfassung der „Türkischen Republik von Nordzypern " (TRNZ) tatsächlich ihr Eigentum verloren hat. In diesem Zusammenhang war die völkerrechtliche Geltung dieser Verfassung zu untersuchen. Unter Bezugnahme auf zwei Resolutionen des Sicherheitsrates der Vereinten Nationen und auf eine Resolution des Europarates stellte das Gericht heraus, daß die TRNZ keinerlei völkerrechtliche Anerkennung gefunden hatte. Da die EMRK ein Menschenrechtsvertrag sei, sei es verpflichtet, auch relevante Normen des Völkerrechts in die Entscheidung von Streitigkeiten über die Zuständigkeit ratione temporis mit einzubeziehen. Aus diesem Grund konnte nach Auffassung des Gerichtshofes die Verfassung der TNRZ für das Staatsvolk von Zypern keine rechtlich-verbindliche Wirkungen entfalten. Dies hat zur Folge, daß die Bf. nicht als enteignet betrachtet werden und das Prinzip der fortgesetzten Rechtsverletzung Anwendung finden konnte. Damit war der Einwand der türkischen Regierung abzulehnen und der Fall als innerhalb der Jurisdiktion des EGMR zu erachten.22 4. Zuständigkeit ratione materiae Wenn prozeßhindernde Einwendungen hinsichtlich der Zuständigkeit ratione materiae eng mit materiell-rechtlichen Fragen verbunden sind, sollen diese nach Auffassung des Gerichtes erst im Rahmen der Begründetheitsprüfung bewertet werden.23 Mit der Einwendung, daß fiskalische Streitigkeiten nicht in den Anwendungsbereich von Art. 6 der Konvention fallen würden, hatte sich das Gericht im Fall Miailhe auseinanderzusetzen. Das Gericht erachtete diesen Einwand deshalb als unbeachtlich, weil die betreffenden Verfahren jedenfalls vor einem nationalen Rechtsprechungsorgan, namentlich dem Conseil d'Etat , anhängig waren.24

21

Bereits im Vorjahr hatte der EGMR in einem Zwischenurteil über die Zulässigkeit der Klage einer griechischen Zypriotin bezüglich ihres Eigentums im türkisch regierten Nordteil Zyperns zu entscheiden, Urteil Loizidou gegen Türkei vom 23. März 1995, Series A, no. 310, SS 44 ff. 22

Urteil Loizidou (Begründetheit)

(Anm. 13), 2216 (2232), S 47.

23

Urteil Matos e Silva, Lda. u. a. gegen Portugal vom 16. September 1996, Reports 1996-IV, 1092 (1108), S 59. 24

Urteil Miailhe (Nr. 2) (Anm. 10), 1319 (1335), S 37.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

5. Zuständigkeit ratione personae Verschiedentlich hatte das Gericht zu prüfen, ob es ratione personae zuständig war, da die Regierungen teilweise die Opfereigenschaft der Bf. i.S.d. Art. 25 Abs. 1 bestritten. Nach gefestigter Rechtsprechung ist unter dem Begriff „Opfer" die Person zu verstehen, die durch die streitige Maßnahme unmittelbar betroffen ist.25 Im Fall Amuur wurde die Opferqualität der Bf. von der französischen Regierung unter Hinweis darauf verneint, daß diese durch ein Urteil des tribunal de grande instance Créteil vom 31. März 1992 entfallen sei, in dem letzteres das Festhalten der Bf. im Transitbereich des Flughafens Paris-Orly für rechtswidrig erklärt und deren Freilassung angeordnet habe.26 Der Gerichtshof wies die Einrede der Regierung zurück. Eine Entscheidung oder Maßnahme zugunsten des Bf. reiche prinzipiell nicht dafür aus, diesem seine Öpferqualität im Sinne der EMRK abzuerkennen, es sei denn, die innerstaatlichen Behörden hätten ausdrücklich oder der Sache nach einen Verstoß gegen die Konvention anerkannt und Abhilfe geschaffen. 27 Da die Bf. bereits am 29. März 1992 abgeschoben worden waren, sei diese Entscheidung zu spät ergangen. Eine frühere Klage seitens der Bf. sei dagegen nicht möglich gewesen, da sie nicht vor dem 24. März hätten anwaltliche Hilfe finden können. Ebenso entfällt die Opfereigenschaft nach Ansicht des EGMR nicht bereits dadurch, daß ein nationales Gericht die beanstandete Situation beendet, zumal wenn die Regierung selbst weiterhin eine Konventionsverletzung bestreit. Vielmehr sei es erforderlich, daß die gerügten Verletzungshandlungen aufgehoben würden oder dem Opfer eine Entschädigung für diese Maßnahmen zugebilligt werde.28 In einem Urteil gegen Griechenland stellte der Gerichtshof fest, daß die Witwe und die Kinder eines verstorbenen Bf., der durch seine Schriften nach Meinung der nationalen Gerichte die öffentliche Ordnung gestört hatte, ein legitimes Interesse daran haben, feststellen zu lassen, daß seine Verurteilung im Widerspruch zum Recht auf Meinungsfreiheit steht.29

25 Urteüe Amuur (Anm. 12), 826 (846), § 36; Nsona gegen Niederlande vom 28. November 1996, Reports 1996-V, 1979 (2004), § 106; siehe bereits das Urteü Ecklegegen Deutschland vom 15. Juli 1982, Series A, no. 51, 1 (30), § 66. 26

Urteü Amuur (Anm. 12), 826 (845), § 34.

27

Urteü Amuur (Anm. 12), 826 (846), § 36.

28

Urteü Nsona (Anm. 25), 1979 (2005), § 107.

29

Urteü Ahmet Sadik gegen Griechenland vom 15. November 1996, Reports 1996-V, 1638 (1652), § 26.

520

Marian Niestedt und Dominik Ziegenhahn

6. Einwand des Rechtsmißbrauchs Im Fall Akdivar berief sich die türkische Regierung darauf, daß die Einlegung der Beschwerde bei den Straßburger Institutionen rechtsmißbräuchlich gewesen sei, da es den Bf. nur darum gegangen sei, die Türkei und ihre Institutionen zu verunglimpfen sowie die Aktivitäten der Kurdischen Arbeiterpartei (PKK) zu legitimieren. Der Gerichtshof wies diesen Einwand unter Hinweis darauf zurück, daß sich die Bf. nicht auf offensichtlich falsche Tatsachen beriefen, sondern vielmehr die Tatsachenermittlung der Kommission die Behauptung der Bf., ihr Eigentum sei zerstört worden, bestätigt habe.30 7. Erschöpfung des Rechtsweges —Art. 26 Gleich mehrfach hatte der EGMR darüber zu entscheiden, ob gem. der Anforderung des Art. 26 der innerstaatliche Rechtsweg erschöpft worden war. Dabei unterstrich das Gericht, daß das Erfordernis der Rechtswegerschöpfung den Vertragsstaaten Gelegenheit geben solle, etwaige Konventionsverletzungen zu verhindern oder zu beseitigen.31 Um den nationalen Gerichten zu ermöglichen, Abhilfe zu schaffen, sei es ausreichend, aber auch erforderlich, daß der Bf. die Verletzungen der Konvention jedenfalls der Sache nach32 und in der vom nationalen Recht vorgeschriebenen Form und Frist 33 geltend mache. Dabei müsse Art. 26 mit einer gewissen Flexibilität und ohne übertriebenen Formalismus angewandt werden.34 Im Fall Ahmet Sadik hatte der Bf. dem Erfordernis der Rechtswegerschöpfung trotzdem nicht genügt.35 Für die Erschöpfung des Rechtsweges könne es jedoch nicht darauf ankommen, ob die Klagen von den nationalen Gerichten als zulässig angesehen wurden. 36 Im übrigen brauche der Bf. nur diejenigen Rechtswege zu erschöpfen, die effektiv und geeignet seien, der Beschwer abzuhelfen. 37 In besonderen Fällen seien entsprechend den allge30

Urteil Akdivar u. a. (Anm. 13), 1192 (1206), § 54.

31

Urteile Remli gegen Frankreich vom 23. April 1996, Reports 1996-Π, 559 (571), § 33; Ankert gegen Schweiz vom 23. Oktober 1996, Reports 1996-V, 1553 (1565), § 34. 32 Urteile Remli (Anm. 31), 559 (571), § 33; Ankerl (Anm. 31), 1553 (1565), § 34; Katikaridis u. a. gegen Griechenland vom 15. November 1996, Reports 1996-V, 1673 (1686), § 35; Aksoy (Anm. 13), 2206 (2276), § 53; siehe auch das Sondervotum des Richters Martens in Ahmet Sadik (Anm. 29), 1638, 1657 (1662), § 12. 33

Urteile Ankerl (Anm. 31), 1553 (1565), § 34; Ahmet Sadik (Anm. 29), 1638 (1653 f.), § 30.

34

Urteile Ankerl (Anm. 31), 1553 (1565), § 34; Ahmet Sadik (Anm. 29), 1638 (1653 f.), § 30; Katikaridis u. a. (Anm. 32), 1673 (1686), § 35. 35

Urteil Ahmet Sadik (Anm. 29), 1638 (1654 f.), §§ 32 ff.

36

Urteil Ankerl (Anm. 31), 1553 (1564 f.), §§ 31 ff.

37

Urteile Remli (Anm. 31), 559 (571), § 33; Manoussakis u. a. gegen Griechenland vom 26.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

mein anerkannten Regeln des Völkerrechts sogar Ausnahmen vom Erfordernis der Rechtswegerschöpfung zulässig.38 Dies befand die Große Kammer des EGMR im Fall Akdivar u. a. Denn zum Zeitpunkt der in Rede stehenden Vorkommnisse hatte im Südosten der Türkei eine bürgerkriegsähnliche Situation geherrscht, so daß man nicht von dem ordnungsgemäßen Funktionieren der Justiz und der Verwaltung ausgehen konnte.39 Es muß einem Bf. danach auch zumutbar sein, die innerstaatlichen Rechtsmittel einzulegen. Dies betonte das Gericht ebenfalls im Fall Aksoy, wo der Bf. nicht nur 14 Tage lang ohne rechtlichen Beistand und ohne medizinische Hilfe festgehalten worden war, sondern während dieser Zeit auch derartig schwere Verletzungen erlitten hatte, daß er stationär behandelt werden mußte. Der den Bf. zum Zeitpunkt seiner Inhaftierung verhörende Staatsanwalt, dem die während der Haft erlittene beidseitige Lähmung der Arme des Bf. nicht entgangen sein konnte, brachte indes keinerlei entsprechende Untersuchungen in Gang, zu welchen er nach türkischem Recht verpflichtet gewesen wäre. Diese Umstände sprachen dafür, daß der Bf. sich gegenüber den staatlichen Vertretern verletzbar, machtlos und ausgeliefert fühlen mußte. Da schon der Staatsanwalt nicht selbständig tätig geworden war, war es dem Bf. nicht zuzumuten, innerstaatliche Rechtsmittel einzulegen, von welchen er sich keinerlei Aufklärung oder Unterstützung erwarten konnte.40 Im Fall Manoussakis u. a. wandte die griechische Regierung ein, daß die Bf. es unterlassen hätten, ein Beschwerde wegen Amtsmißbrauchs gegen die stillschweigende Ablehnung ihres Antrags auf Genehmigung der Benutzung einer Halle als Gebetsund Versammlungsraum durch den zuständigen Minister beim Obersten Verwaltungsgericht einzubringen. Der EGMR wies diese Argumentation zurück, indem er klarstellte, daß das Verhalten der Behörden, die mehrfach die Prüfung des Antrags zugesichert hatten, nicht als stillschweigende Ablehnung des Antrages zu werten war. Deshalb konnte von den Bf. nicht erwartet werden, entsprechende Rechtsmittel dagegen zu einzulegen, zumal eine Entscheidung des Obersten Verwaltungsgerichtes im Sinne der Bf. nicht automatisch auch zu einer Genehmigung durch den Minister geführt hätte.41

September 1996, Reports 1996-IV, 1346 (1359), § 33; Tsomtsosu. a. gegen Griechenland vom 15. November 1996, Reports 1996-V, 1699 (1713), § 32; Bizzotto gegen Griechenland vom 15. November 1996, Reports 1996-V, 1724 (1736), § 25. 38

UrteÜe Akdivar u. a. (Anm. 13), 1192 (1210), § 67; Aksoy (Anm. 13), 2260 (2276), § 52.

39

Urteü Akdivar u. a. (Anm. 13), 1192 (1213 f.), §§ 76 f.

40

Urteü Aksoy (Anm. 13), 2260 (2277), § 57.

41

Urteü Manoussakis u. a. (Anm. 37), 1346 (1360), § 34.

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8. Einhaltung der Sechsmonatsfrist Gemäß Art. 26 ist die Beschwerde vor der Kommission innerhalb von sechs Monaten nach dem Ergehen der innerstaatlichen Entscheidung vorzubringen. Diese Frist beginnt nach Maßgabe der Konvention zu laufen, d. h. nach Ergehen des letztinstanzlichen innerstaatlichen Urteils, und richtet sich nicht etwa nach abweichenden nationalen Vorschriften. 42 Zudem wies der Gerichtshof im Urteil Remli zum wiederholten Male darauf hin, daß die Sechsmonatsfrist des Art. 26 erst mit dem letztinstanzlichen Urteil, hier dem der Cour de cassation , zu laufen beginnt, unabhängig davon, ob die Einlegung des Rechtsmittels von vorneherein wahrscheinlich aussichtslos war. 43

III. Das Verbot der Folter und der unmenschlichen und erniedrigenden Behandlung — Art. 3 Hinsichtlich des durch Art. 3 gewährten Schutzes vor Folter und unmenschlicher oder erniedrigender Behandlung, welcher einen der fundamentalsten Werte demokratischer Gesellschaften heilige, betonte das Gericht, daß dieses Verbot absolut sei und dessen Befolgung unabhängig vom Verhalten des Opfers zu erfolgen habe.44 In den Urteilen Valsamis und Efstratiou bekräftigte der Gerichtshof, daß Schlechtbehandlungen eine gewisse Intensität erreichen müssen, um als unmenschlich im Sinne von Art. 3 eingestuft werden zu können.45 Ein vorübergehender Ausschluß einer Schülerin vom Schulunterricht, wie in den Fällen Valsamis und Efstratiou, kann dieser Anforderung hingegen nicht genügen. Dagegen stellt das Aufhängen eines nackten Untersuchungshäftlings (sog. Palästinensische Hänge), das zu einer Lähmung der Arme führt, eine derart schwerwiegende und grauenhafte Behandlung dar, daß sie der Beschreibung von Folter entspricht.46 In mehreren Fällen bekräftigte der Gerichtshof seine ständige Rechtsprechung, nach der auch eine drohende Ausweisung und Abschiebung von Ausländern einen Verstoß gegen Art. 3 darstellen kann, wenn substantielle Gründe für die Annahme vorlägen, daß die Beteiligten dort dem Risiko der Folter oder der unmenschlichen 42

UrteÜe Di Pede gegen Italien vom 26. September 1996, Reports 1996-IV, 1376 (1384), § 22; Zappia gegen Italien vom 26. September 1996, Reports 1996-IV, 1403 (1411), § 18. 43

Urteü Remli (Anm. 31), 559 (572), § 42.

44

UrteÜe Chahal gegen Vereinigtes Königreich vom 15. November 1996, Reports 1996-V, 1831 (1855), § 79; Ahmed (Anm. 8), 2195 (2206 f.), § 40. 45 Urteüe Valsamis gegen Griechenland vom 18. Dezember 1996, Reports 1996-VI, 2312 (2326), § 37; Efstratiou gegen Griechenland vom 18. Dezember 1996, Reports 1996-VI, 2347 (2361), § 42; siehe auch Nsona (Anm. 25), 1979 (2001), § 92. 46

UrteÜ Aksoy (Anm. 13), 2260 (2279), § 64.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

oder erniedrigenden Behandlung ausgesetzt wären.47 Dabei sei primär auf die Sachlage zum Zeitpunkt der Abschiebung abzustellen. Das Gericht sei aber nicht daran gehindert, bei der Beurteilung auch nachträgliche Gegebenheiten in die Beurteilung einfließen zu lassen.48 Im Urteil Chahal ging es um die drohende Abschiebung eines des Terrorismus verdächtigen, in Großbritannien lebenden Sikhs nach Indien. Dieser unterstützte religiös-fundamentalistische Sikhs-Gruppen und die Bewegung zur Gründung eines unabhängigen Sikhs-Staates. Aus Gründen der öffentlichen Sicherheit und unter anderem auch mit dem Ziel der Bekämpfung des internationalen Terrorismus wurde gegen ihn eine Ausweisungsentscheidung erlassen. Der Bf. machte geltend, durch die drohende Abschiebung werde er der Gefahr der Folter ausgesetzt. Das Gericht stellte, auch unter Zuhilfenahme von Stellungnahmen einiger als amicae curiae auftretender Menschenrechtsorganisationen, fest, daß es in Indien zu schwerwiegenden Menschenrechtsverletzungen durch staatliche Organe gekommen sei. Es bestand daher die Befürchtung, daß dem Bf. als einer Zentralfigur der Sikhs in Großbritannien in Indien die Verfolgung durch eine Sondereinheit drohen würde. Daher stellte die Große Kammer des Gerichtshofes fest, daß im Falle der Abschiebung Art. 3 verletzt würde, woran auch die Tatsche nichts ändere, daß der Bf. Terrorist ist.49 Genauso konnten im Fall Ahmed die vom Bf. vorgebrachten Gründe für die Annahme einer konkreten und ernsthaften Gefahr der Folter oder unmenschlicher oder erniedrigender Behandlung in Somalia von der österreichischen Regierung nicht widerlegt werden, so daß auch hier nach Erachten des Gerichts Art. 3 im Falle der Abschiebung verletzt wäre.50 Zu einem anderen Ergebnis kam das Gericht dagegen im Fall Nsona, da dort keine Befürchtung bestand, daß die Bf. in ihrem Heimatland Zaire von den Behörden verfolgt werden würde. 51 Ebenso lehnte das Gericht im Fall Akdivar u. a. eine Verletzung von Art. 3 durch türkische Organe mangels ausreichender Beweise ab.52

47

Urteile Chahal (Anm. 44), 1831 (1853), § 74; Nsona (Anm. 25), 1979 (2001), § 92; Ahmed (Anm. 8), 2195 (2206), § 39; siehe bereits Soering gegen Vereinigtes Königreich vom 7. Juli 1989, Series A, no. 161, 1 (35 f.), § 91. 48

Urteil Nsona (Anm. 25), 1979 (2001), § 92.

49

Urteil Chahal (Anm. 44), 1831 (1861), § 107.

50

Urteil Ahmed (Anm. 8), 2195 (2208), § 47.

51

Urteil Nsona (Anm. 25), 1979 (2004), § 103.

52

Urteil Akdivar u. a. (Anm. 13), 1192 (1216), § 91.

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Marian Niestedt und Dominik Ziegenhahn

IV. Das Recht auf Freiheit und Sicherheit — Art. 5 1. Rechtmäßigkeit der Haft —Art. 5 Abs. 1 Hinsichtlich der Rechtmäßigkeit der Festnahme oder Haft einschließlich der Frage, ob die Freiheitsentziehung auf dem gesetzlich vorgeschriebenen Wege vorgenommen wurde, verwies der Gerichtshof auf das innerstaatliche Recht,53 betonte aber zugleich, daß eine Freiheitsentziehung nicht dem Zweck des Art. 5, den einzelnen vor Willkür zu schützen, zuwiderlaufen dürfe. 54 Im Fall Bizzotto wurde eine Verletzung von Art. 5 Abs. 1 lit. a) durch den Gerichtshof mit der Begründung verneint, daß die Haftmodalitäten grundsätzlich keinen Einfluß auf die Rechtmäßigkeit der Haft nach Art. 5 haben könnten.55 Der Bf. hatte gerügt, entgegen der richterlichen Anordnung im Rahmen seiner Verurteilung als Drogendealer nicht in ein besonderes Behandlungszentrum, das seiner eigenen Drogenabhängigkeit gerecht werden sollte, überwiesen worden zu sein. Das Gericht verwies zudem im Urteil Benham, in welchem eine staatliche Maßnahme im Hinblick auf ihre Vereinbarkeit mit Art. 5 Abs. 1 lit. b) untersucht wurde, darauf, daß der bloße Umstand der Aufhebung einer rechtswirksam verhängten erstgerichtlichen Haftanordnung durch das Rechtsmittelgericht noch nicht die Unrechtmäßigkeit der Inhaftierung bewirke. Daher stellte es im Gegensatz zur Kommission keine Verletzung von Art. 5 Abs. 1 fest. 56 Zur Verneinung einer Verletzung kam der EGMR auch im Fall Scott bezüglich Art. 5 Abs. 1 lit. c).57 Der Bf. war in Spanien wegen Verdachts auf Vergewaltigung festgenommen worden und sollte nach Verbüßung einer etwaigen Freiheitsstrafe nach Großbritannien ausgeliefert werden, da dort gegen ihn ein internationaler Haftbefehl wegen Mordes gestellt worden war. Trotz Aufhebung der Untersuchungshaft wurde die Auslieferungshaft in Spanien jedoch fortgesetzt. Das Gericht befand, daß weder die Anordnung der Fortsetzung der Auslieferungshaft noch die Verhängung einer neuerlichen Untersuchungshaft willkürlich oder unrechtmäßig waren, sondern in Ubereinstimmung mit dem nationalen Recht erfolgten. Ebenso verneinte das Gericht im Fall Chahal eine Verletzung von Art. 5 Abs. 1 lit. f). Eine Haft sei zwar dann nicht mehr als rechtmäßig anzusehen, wenn das Aus53

UrteÜe Benham gegen Vereinigtes Königreich vom 10. Juni 1996, Reports 1996-ΙΠ, 738 (752 f.), § 40; Amuur (Anm. 12), 826 (850), § 50. 54

Urteüe Benham (Anm. 53), 738 (752 f.), § 40; Amuur (Anm. 12), 826 (850), § 50; Scott gegen Spanien vom 18. Dezember 1996, Reports 1996-VI, 2382 (2395), § 52. 55

Urteü Bizzotto (Anm. 37), 1724 (1739), § 35.

56

Urteü Benham (Anm. 53), 738 (754), § 47.

57

Urteü Scott (Anm. 54), 2382 (2398), § 66.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im ahre 1996

weisungsverfahren nicht mit der erforderlichen Sorgfalt durchgeführt werde. Vorliegend befand der EGMR die Dauer der eirizelnen Verfahren vor den Gerichten und Behörden trotz deren Länge aufgrund der Komplexität des Falles für angemessen. Zudem bestanden ernsthafte Indizien dafür, daß eine Freilassung des Bf. wegen dessen terroristischer Aktivitäten Risiken für die nationale Sicherheit mit sich gebracht hätte, so daß den nationalen Stellen kein willkürliches Verhalten vorgeworfen werden konnte.58 Im Fall Amuur y der ebenfalls lit. f) betraf, war bereits fraglich, ob das Festhalten von Asylbewerbern in der Transitzone des Flughafens Paris-Orly eine Freiheitsentziehung darstellen kann. Anders als die Kommission und die französische Regierung, die argumentierten, daß die Bf. nicht daran gehindert gewesen wären, die Transitzone in Richtung auf ein auswärtiges Ziel ihrer Wahl zu verlassen, kam der Gerichtshof zu dem Ergebnis, daß Art. 5 Abs. 1 anwendbar sei.59 Der Unterschied zwischen Entzug und Beschränkung der Freiheit sei lediglich eine Frage der Intensität.60 Die Frage, ob die Freiheit einer Person entzogen werde, hänge von verschiedenen Kriterien wie der Art, der Dauer, den Auswirkungen sowie der Art der Durchführung der betreffenden Maßnahmen ab. Das Festhalten der Bf. in der Transitzone des Flughafens kam nach Ansicht des Gerichts angesichts der erlittenen Einschränkungen — keine rechtliche und soziale Hilfe, strikte und ständige polizeilicher Überwachung einer Freiheitsentziehung gleich. Für eine solche forderte das Gericht eine gesetzliche Grundlage, die hinreichend bestimmt sein müsse.61 Zudem verlangte es einen effektiven Zugang zu einem Verfahren, in dem über den Flüchtlingsstatus und Zugang zu rechtlicher, humanitärer und sozialer Hilfe entschieden werde, sowie die gerichtliche Kontrolle der Bedingungen und Dauer im Falle eines langwierigen Festhaltens in der Transitzone.62 Die zum maßgeblichen Zeitpunkt gültigen französischen Rechtsregeln enthielten derartige Garantien für das Recht auf Freiheit nicht in hinreichendem Ausmaß.63 2. Unverzügliche Vorführungspflicht

—Art. 5 Abs. 3 Satz 1

Während das Gericht in einem früheren Fall bereits festgestellt hatte, daß eine Inhaftierung ohne Rechtsaufsicht über 4 Tage und 6 Stunden nicht dem Erfordernis 58

Urteil Chahal (Anm. 44), 1831 (1865), § 123.

59

Urteil Amuur (Anm. 12), 826 (850), § 49.

60

Urteil Amuur (Anm. 12), 826 (848), § 42.

61

Urteil Amuur (Anm. 12), 826 (850 f.), § 50.

62

Urteil Amuur (Anm. 12), 826 (851 f.), § 53.

63

A m 6. Juli 1992 wurde die Rechtslage in Frankreich entsprechend geändert, vgl. Urteil Amuur (Anm. 12), 826 (851), § 52.

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von „unverzüglich" im Sinne von Art. 5 Abs. 3 entspricht,64 wurde der Bf. im Fall Aksoy sogar über einen Zeitraum von 14 Tagen festgehalten, ohne einem Haftrichter oder einem anderen, gesetzlich zur Ausübung richterlicher Funktionen ermächtigten Beamten vorgeführt zu werden.65 Zwar berief sich die türkische Regierung auf Art. 15. Dies wurde vom Gericht auch insoweit ankannt, als sich die Türkei aufgrund des PKK-Terrorismus im Südosten des Landes zweifelsohne in einem öffentlichen Notstand i.S.v. Art. 15 befunden habe.66 Jedoch habe der Umfang der Lage es nicht erforderlich gemacht, den Bf. so außergewöhnlich lange ohne juristischen, medizinischen oder familiären Beistand festzuhalten. Die Maßnahmen seien mithin als Verstoß gegen Art. 5 Abs. 3 einzustufen. 67 3. Angemessene Dauer der Untersuchungshaft

—Art. 5 Abs. 3 Satz 2

Ob ein Verstoß gegen Art. 5 Abs. 3 Satz 2 vorliegt, bestimmt sich nach den Umständen des Einzelfalles. 68 Der für die Beurteilung der Angemessenheit der Untersuchungshaft relevante Zeitraum betrug im Fall Scott vier Jahre und 16 Tage. Zwar war der Haftgrund der Fluchtgefahr gegeben und die Fortsetzung der Haft somit gerechtfertigt. Jedoch war der Fall weder besonders komplex, noch war dem Bf. ein eigenes Verschulden für die Dauer der Haft zuzurechnen. Die zuständigen Behörden hatten vielmehr nicht die nötige Sorgfalt aufgebracht, so daß das Gericht die Haftdauer als unangemessen und unvereinbar mit Art. 5 Abs. 3 Satz 2 erachtete.69 4. Recht auf Haftprüfung

—Art. 5 Abs. 4

In zwei Urteilen, Hussain und Singh , hatte der EGMR darüber zu urteilen, ob es mit Art. 5 Abs. 4 der Konvention zu vereinbaren war, daß der Children and Young Persons Act 1933 kein Recht auf Haftprüfung durch ein Gericht vorsah. Beide Bf. waren als Minderjährige gemäß diesem Gesetz wegen Mordes zu einer Haft during Her Majesty's pleasure verurteilt worden. Ob die Konvention eine regelmäßige Haftüberprüfung verlangte, hing davon ab, ob diese Haft im Vergleich mit Erwachsenenstrafen eher einer lebenslangen Haftstrafe oder einer Ermessensstrafe gleichkam, denn im Fall der Verhängung einer obligatorischen lebenslangen Haftstrafe besteht nach 64

UrteÜ Brogan u. a. gegen Vereinigtes 145-B, 11 (33 f.) § 62. 65

Königreich vom 29. November 1988, Series A, no.

Urteü Aksoy (Anm. 13), 2260 (2279 f.), § 66.

66

Urteü Aksoy (Anm. 13), 2260 (2281), § 70.

67

Urteà Aksoy (Anm. 13), 2260 (2284), § 84.

68

Urteü Scott (Anm. 54), 2382 (2399 f.), § 74.

69

Urteü Scott (Anm. 54), 2382 (2401), § 83.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

der Rechtsprechung der Straßburger Richter kein Anspruch auf Haftprüfung. 70 Vorliegend kam das Gericht zu dem Schluß, daß die Haft during Her Majesty's pleasure nach Verbüßung eines unbedingten Teils der Haftstrafe (ιtariff) zwar einer lebenslangen Haft ähnelte. Indem ein Ausschuß darüber zu beraten hatte, ob er eine bedingte Haftstrafe empfehlen sollte, wurde die tatsächliche Dauer der Haft jedoch in das Ermessen der staatlichen Organe gestellt. Wenn es sich aber um eine Ermessensstrafe handele, müsse nach Art. 5 Abs. 4 die Möglichkeit bestehen, in vernünftigen Abständen die Rechtmäßigkeit der Haft zu überprüfen, so das Gericht. 71 Art. 5 Abs. 4 fordere eine mündliche Verhandlung in einem Verfahren, in dem die Parteien durch einen Rechtsanwalt vertreten seien und die Möglichkeit zur Zeugenbenennung und -befragung hätten. Die verfügbaren Möglichkeiten wurden diesen Anforderungen nicht gerecht. Der Ausschuß, der nur Empfehlungen abgab, war kein Gericht oder gerichtsähnliche Behörde i.S.v. Art. 5 Abs. 4. Daher sah der EGMR einen Verstoß gegen Art. 5 Abs. 4 als gegeben an.72 Aus dem gleichen Grund erkannten die Richter auch im Fall Chahal auf eine Verletzung des Art. 5 Abs. 4. Obwohl die Haft von einem beratenden Ausschuß überprüft wurde, bot dieser nicht die erforderlichen verfahrensrechtlichen Garantien, um als Gericht oder gerichtsähnliche Behörde i.S.d. Art. 5 Abs. 4 gelten zu können.73 Die Gerichte selbst hatten jedoch keine Einsicht in die Akten der Sicherheitsbehörden, so daß insofern kein Rechtsmittel bestand. Der EGMR unterstrich, daß, selbst wenn es um die nationale Sicherheit gehe, dies nicht dazu führen dürfe, daß die nationalen Behörden keiner Kontrolle unterlägen. Dagegen wurde im Fall Silva Rocha eine Verletzung verneint. Wegen Schuldunfähigkeit war der Bf., der für den Tod eines Nachbarn verantwortlich war, nicht zu einer Haftstrafe verurteilt worden, sondern statt dessen für mindestens drei Jahre in eine psychiatrische Anstalt eingewiesen worden. Der Bf. rügte, daß für ihn keine Möglichkeit bestanden habe, die Internierung in vernünftigen Abständen überprüfen zu lassen. Der Gerichtshof befand, daß bezüglich der ersten drei Jahre der Haft diese Kontrolle bereits mit dem Urteil des portugiesischen Strafgerichtes erfolgt sei. Anschließend sah zum einen das nationale Recht eine automatische und periodische Überprüfung der Einweisung nach zwei Jahren vor, und zum anderen hatte der Bf. jederzeit die Möglichkeit, bei einem Gericht um Aufhebung der Maßnahme zu ersuchen. Da die Abstände zwischen den einzelnen Entscheidungen nicht exzessiv wa70

Urteü Wynne gegen Vereinigtes

Königreich vom 18. Juli 1994, Series A, no. 294-A, 1 (15),

§36. 71 Urteüe Hussain gegen Vereinigtes Königreich vom 21. Februar 1996, Reports 1996-1, 252 (269), § 54; Singh gegen Vereinigtes Königreich vom 21. Februar 1996, Reports 1996-1,280 (299),

§62. 72

Urteile Hussain (Anm. 71), 252 (271), § 62; Singh (Anm. 71), 280 (301), § 70.

73

Urteü Chahal (Anm. 44), 1831 (1867), § 132.

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Marian Niestedt und Dominik Ziegenhahn

ren und der Bf. im übrigen inzwischen freigelassen worden war, lag nach Auffassung des Gerichts, im Gegensatz zur Ansicht der Kommission, keine Verletzung von Art. 5 Abs. 4 vor. 74 V. Verfahrensgarantien gem. Art. 6 Wie bereits in den Vorjahren betrafen auch im Jahr 1996 die meisten der Urteile Art. 6 der Konvention. In 39 Fällen war von den Bf. eine Verletzung von Art. 6 vor dem Gerichtshof gerügt worden. Zum Teil brauchte das Gericht allerdings auf eine Verletzung von Art. 6 nicht einzugehen, weil die damit in Zusammenhang stehenden Fragen bereits als innerhalb der Zulässigkeitsprüfung als ausreichend erörtert angesehen wurden 75 oder bereits die Verletzung anderer Vorschriften der EMRK festgestellt worden war. 76 In einem Fall hatte der Bf. aufgrund der besonderen Umstände des Falles gar nicht versucht, die ordentlichen Gerichte seines Landes anzurufen, so daß es der EGMR nicht für möglich hielt, darüber zu entscheiden, ob diese in der Lage gewesen wären, die Garantien des Art. 6 zu wahren. Vielmehr, so das Gericht, sei dann auf die allgemeineren Grundsätze des Art. 13 zurückzugreifen. 77 1. Anwendbarkeit des Art. 6 Abs. 1 Art. 6 findet nur dann Anwendung, wenn das nationale Gericht über zivilrechtliche Ansprüche und Verpflichtungen oder über die Stichhaltigkeit einer gegen den Bf. erhobenen strafrechtlichen Anklage zu entscheiden hat. a) Vorliegen einer Streitigkeit über zivilrechtliche Ansprüche oder Verpflichtungen Erneut hatte das Gericht den Begriff „Streitigkeit über einen zivilrechtlichen Anspruch" i.S.d. Art. 6 Abs. 1 auszulegen. Kein Anspruch i.S.d. Art. 6 Abs. 1 ist gegeben, wenn dem nationalen Gericht für seine Entscheidung ein Ermessen verbleibt. 78 Wie der Gerichtshof zudem im Fall Gustafsson feststellte, garantiert Art. 6 selbst keinen besonderen Inhalt der zivilrecht74

Urteil Silva Rocha gegen Portugal vom 15. November 1996, Reports 1996-V, 1913 (1922),

§32. 75

Urteil Akdivar u. a. (Anm. 13), 1192 (1217), § 96.

76

Urteil Gaygusuz gegen Österreich vom 16. September 1996, Reports 1996-IV, 1129 (1144),

§55. 77

Urteil Aksoy (Anm. 13), 2260 (2286), § 94.

78

Urteil Leutscher (Anm. 10), 427 (434 f.), § 24.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

liehen Ansprüche und Verpflichtungen in den Vertragsstaaten.79 Es könne sich daher nicht auf Art. 6 berufen, wem es nicht um das Fehlen eines effektiven Rechtsschutzes, sondern vornehmlich darum gehe, zu klären, ob eine gegen ihn gerichtete Gewerkschaftsaktion von den nationalen Gesetzen gedeckt ist. Im Fall Hamer war das Gericht im Gegensatz zur Kommission nicht der Auffassung, daß Art. 6 anwendbar war. 80 Die Bf. trat in einem Strafverfahren als Nebenklägerin auf und beanstandete, daß das Verfahren mit 14 Jahren unangemessen lang gewesen sei. Der Gerichtshof kam aber zu dem Ergebnis, daß ihre Stellung nicht mit der eines zivilrechtlichen Klägers vergleichbar gewesen ist. Sie hatte weder Schadensersatz gefordert noch derartige Absichten erkennen lassen. Das Verfahren hatte deshalb keine Bedeutung für die spätere Geltendmachung eines zivilrechtlichen Anspruches. Das Gericht hob zudem hervor, daß der Fall nicht mit anderen Fällen vergleichbar war, in denen der negative Ausgang des Prozesses den Bf. die Möglichkeit genommen hatte, Schadensersatz zu fordern. 81 Vorliegend war der Täter verurteilt worden und hatte zudem seine zivilrechtliche Verantwortlichkeit anerkannt und dem Opfer Entschädigung gezahlt. Im Fall Levages Prestations Services brachte die französische Regierung vor, daß es bei dem in Frage stehenden Urteil der Cour de cassation nur um die Auslegung des Art. 979 der neuen französischen Zivilprozeßordnung gegangen sei. Der EGMR bekräftigte jedoch seine Rechtsprechung, nach der Art. 6 Abs. 1 immer dann auf ein Urteil der Cour de cassation anwendbar sei, wenn dessen Entscheidung sich auf die Rechtsstellung der betroffenen Person auswirke.82 Im vorliegenden Fall ging der EGMR davon aus, daß das bemängelte Urteil Auswirkungen auf die Verpflichtungen der beschwerdeführenden Firma gehabt haben könnte. Es handelte sich mithin um eine Streitigkeit i.S.v. Art. 6. Erstmals hatte der Gerichtshof darüber zu entscheiden, ob das Recht auf Entscheidung in angemessener Frist gem. Art. 6 Abs. 1 in einem Verfassungsgerichtsverfahren gewahrt worden war. 83 Der EGMR befand, daß auch verfassungsgerichtliche Verfahren an den Anforderungen des Art. 6 Abs. 1 zu messen seien, wenn ihr Ausgang entscheidende Auswirkungen auf zivilrechtliche Ansprüche des Bf. habe. Im vorliegenden Fall handelte es sich letztlich um eine Streitigkeit über die Höhe von Pensionsansprüchen, die unbestritten Vermögenswerten Charakter hätten. Somit waren zivil79

Urteü Gustafsson gegen Schweden vom 25. Aprü 1996, Reports 1996-Π, 637 (659), § 66.

80

Urteü Hamer gegen Frankreich vom 7. August 1996, Reports 1996-IV, 1029 (1044), SS 78 f.

81

Urteü Hamer (Anm. 80), 1029 (1044), § 77.

82

UrteÜ Levages Prestations Services gegen Frankreich vom 23. Oktober 1996, Reports 1996V, 1530 (1541), § 36; siehe bereits Delcourt gegen Belgien vom 17. Januar 1970, Series A, no. 11, 13 ff., SS 25 ff. 83

Urteü Süßmann (Anm. 10), 1158 (1171), S 40.

34 G Y I L 40

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Marian Niestedt und Dominik Ziegenhahn

rechtliche Ansprüche des Bf. betroffen, weshalb Art. 6 Abs. 1 auch auf das Verfahren vor dem deutschen Bundesverfassungsgericht (BVerfG) Anwendung finden mußte.84 b) Vorliegen einer strafrechtlichen Anklage Für die Frage, ob ein Verfahren strafrechtlichen Charakter hat, stellt der Gerichtshof auf drei alternative Kriterien ab. Zunächst sei die rechtliche Einordnung des Gesetzes, das die Zuwiderhandlung definiert, oder des Verfahrens im nationalen Recht heranzuziehen, wobei diesem Kriterium eine eher untergeordnete Bedeutung zukommt.85 Entscheidender sei die wahre Natur der fraglichen Zuwiderhandlung bzw. des Verfahrens sowie die Art und Schwere der strafrechtlichen Sanktion.86 Während das Gericht im Fall Benham diese Kriterien als erfüllt ansah,87 verneinte es dies, anders als die Kommission, im Fall Putz.™ Dort hatte der Bf. die juristischen Methoden in Osterreich mit denen in Nazi-Deutschland und im Ostblock verglichen, woraufhin gegen ihn wegen beleidigender Äußerungen mehrere Ordnungsstrafen vom Vorsitzenden Richter verhängt wurden. Nach Ansicht der Straßburger Richter hatten die Sanktionen jedoch nicht den Charakter eine Strafe i.S.d. Art. 6. Die in Rede stehenden Ordnungsstrafen seien im österreichischen Recht dem Disziplinarrecht zuzurechnen, nicht dem Strafrecht. Ebenso habe das nationale Gericht nur seine Disziplinargewalt ausgeübt, um einen geordneten Verfahrensablauf sicherzustellen. Schließlich würde die Zuwiderhandlung auch nicht ins Strafregister eingetragen werden. 2. Die Grundsätze des fairen Verfahrens gem. Art. 6 Abs. 1 a) Das Recht auf öffentliche Anhörung Im Rechtsmittelverfahren kann eine öffentliche Anhörung unterbleiben, wenn bereits in der ersten Instanz eine Anhörung stattgefunden hat. Dies könne durch die Besonderheit des Verfahrens gerechtfertigt sein und hänge von den Umständen der jeweiligen Verfahren vor den nationalen Gerichten ab.89 Nach Ansicht der Straßbur84

Urteil Süßmann (Anm. 10), 1158 (1172), § 46.

85

Urteil Benham (Anm. 53), 738 (756), § 56.

86

Urteile Putz gegen Österreich vom 22. Februar 1996, Reports 1996-1,312 (324 ff.), §§ 31 ff.; Benham (Anm. 53), 738 (756), § 56; siehe bereits Engel u. a. gegen Niederlande vom 8. Juni 1976, Series A, no. 22, 1 (34 f.), § 82. 87

Urteil Benham (Anm. 53), 738 (756), § 56.

88

Urteil Putz (Anm. 86), 312 (326), § 37.

89

Urteil Bulut gegen Österreich vom 22. Februar 1996, Reports 1996-Π, 346 (357), § 40.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im fahre 1996

ger Richter ist eine Anhörung vor einem Obersten Gerichtshof dann entbehrlich, wenn es im Rechtsmittelverfahren nicht um Tatsachen geht, sondern nur Rechtsfragen behandelt werden.90 Im Fall Bulut konstatierte das Gericht daher keine Konventionsverletzung.91 Anders lag der Fall Botten, in dem nach Ansicht des Gerichts besondere Umstände vorlagen, so daß der Angeklagte einen Anspruch auf persönliche Teilnahme an einer Verhandlung vor dem Obersten Gerichtshof hatte.92 Gegen den Bf. war ein Militärstrafverfahren angestrengt worden. Nach einem Freispruch in der ersten Instanz war dieser in zweiter Instanz verurteilt worden, wobei das nationale Gericht nicht nur Rechtsfragen erörterte, sondern auch die vom Erstgericht festgestellten Tatsachen. Da dabei auch Fragen aufgeworfen wurden, die die Auslegung von Dienstvorschriften und der Schuld des Angeklagten sowie seines Charakters betrafen, hätte dies die Ladung und Vernehmung des Bf. erfordert. b) Das Recht auf Anhörung in billiger Weise Die Bf. Ferrantelli und Santangelo hatten behauptet, ihre im Strafverfahren abgelegten Geständnisse seinen unter psychischem und physischem Zwang zustande gekommen, wobei sie sich nicht auf Art. 3 beriefen, sondern einen Verstoß von Art. 6 Abs. 1 geltend machten. Beide waren im Alter von 17 bzw. 18 Jahren unter dem Verdacht, an der Ermordung von zwei Polizeibeamten beteiligt gewesen zu sein, festgenommen worden. Der Gerichtshof betonte, daß die Würdigung von Beweismitteln grundsätzlich den nationalen Gerichten vorbehalten bleibe. Er überprüfe nur, ob ein Verfahren im ganzen einschließlich der Beweisaufnahme und Beweiswürdigung den Grundsätzen eines fairen Verfahrens genüge.93 Im vorliegenden Fall konnten die festgestellten Verletzungen auch auf andere Weise entstanden sein. Zudem hatte der Untersuchungsrichter befunden, daß die Geständnisse nicht unter Zwang zustande gekommen seien.94 Selbst wenn noch Zweifel bestünden, so reichten die Beweise nicht für die Annahme einer Verletzung des Art. 6 Abs. 1, urteilte das Gericht. 95

90

Urteü Bulut (Anm. 89), 346 (358), § 42.

91

Urteü Bulut (Anm. 89), 346 (358), § 43.

92

Urteü Botten gegen Norwegen vom 19. Februar 1996, Reports 1996-1, 123 (145), § 53.

93 UrteÜ Ferrantelli (949 f.), § 48.

3 *

und Santangelo gegen Italien vom 7. August 1996, Reports 1996-ΙΠ, 937

94

Urteü Ferrantelli

und Santangelo (Anm. 93), 937 (950), § 49.

95

Urteü Ferrantelli

und Santangelo (Anm. 93), 937 (950), § 50.

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Marian Niestedt und Dominik Ziegenhahn

c) Das Recht auf Entscheidung in angemessener Frist Ob eine gerichtliche Entscheidung innerhalb einer angemessenen Frist ergeht, bestimmt sich nach der Rechtsprechung des Gerichtshofes nach drei Kriterien: der Komplexität des Falles in tatsächlicher und rechtlicher Hinsicht, dem Verhalten des Bf. und dem Verhalten der staatlichen Stellen.96 Der Fall A. u. a. betraf Schadensersatzprozesse von Bluterkranken, die HIV-infizierte Bluttransfusionen erhalten hatten. Die erste Frage, mit der sich der Gerichtshof beschäftigte, betraf die Festlegung des Prozeßbeginns. Zwar hatte zunächst die Dänische Blutervereinigung Klage erhoben; der für die Bestimmung einer möglicherweise überlangen Verfahrensdauer i.S.d. Art. 6 Abs. 1 ausschlaggebende Zeitraum beginnt nach Ansicht des Gerichtes aber erst zu dem Zeitpunkt, an dem einzelne Mitglieder der Vereinigung namentlich als Kläger des Verfahrens bezeichnet werden.97 Bezüglich der Frage, ob die Verfahrensdauer von vier bis sechs Jahren unangemessen gewesen sei, kam das Gericht zu dem Ergebnis, daß dies bei acht von zehn Klägern zu bejahen sei, weil die zuständigen Behörden nicht die erforderliche Sorgfalt aufgebracht hatten.98 Obwohl das Verfahren komplex gewesen war und die Verzögerungen bis zu einem gewissen Grad durch die Bf. mitverursacht worden waren, war für die überlange Verfahrensdauer das Verhalten der Verwaltungsbehörden und Gerichte entscheidend gewesen, zumal wegen der unheilbaren Krankheit und der geringen Lebenserwartung der Kläger ein besonderes Interesse an rascher gerichtlicher Entscheidung bestand. Auch im Urteil Ausiello war die lange Verfahrensdauer von sechs Jahren vornehmlich dem Verhalten der Behörden zuzurechnen, die über einen Zeitraum von über zwei Jahren untätig geblieben waren, ohne daß die Regierung dafür eine Erklärung fand. 99 Da der Fall zudem nicht komplex war, lag eine Verletzung von Art. 6 vor. 100

Trotz der Komplexität der Verfahren verurteilte der EGMR die Türkei und Italien in den Fällen Mitap undMüftüoglu sowie Ferrantelli und Santangelo} 01 Im ersteren Fa hatte das Verfahren seit dem Zeitpunkt der türkischen Unterwerfungserklärung unter die Gerichtsbarkeit des EGMR mehr als sechs Jahre gedauert. Zudem bezog der 96

UrteÜe A u. a. gegen Dänemark vom 8. Februar 1996, Reports 1996-1, 85 (103), § 67; deutsche Übersetzung in EuGRZ Bd. 23,1996,192 it.; Ausiello gegen Italien vom 21. Mai 1996, Reports 1996-ΙΠ, 717 (722), § 19; Zappia (Anm. 42), 1403 (1412), § 23; Ceteroni gegen Italien vom 15. November 1996, Reports 1996-V, 1748 (1756), § 22. 97

UrteÜ A. u. a. (Anm. 96), 85 (103), § 64.

98

UrteÜ A. u. a. (Anm. 96), 85 (108), § 81.

99

Urteü Ausiello (Anm. 96), 717 (722), § 21.

100 101

Urteü Ausiello (Anm. 96), 717 (722), § 22.

Urteüe Mitap undMüftüoglu 93), 937 (949), § 43.

(Anm. 19), 402 (412), § 37; Ferrantelli

und Santangelo (Anm.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

Gerichtshof in die Entscheidung mit ein, daß zu diesem Zeitpunkt schon neun Jahre seit Beginn des innerstaatlichen Verfahrens vergangen waren. 102 Im letzteren Fall hielt der EGMR 16 Jahre von der Verhaftung der Bf. bis zu deren Verurteilung für unangemessen, wenn man das gesamte Verfahren in seiner Länge betrachtete.103 Selbst 8 10 Jahre dauernde Verfahren sah das Gericht als unvereinbar mit Art. 6 Abs. 1 an.104 Im Fall Ceteroni zog sich das von den Gläubigern angestrebte Berufungsverfahren gegen die insolvente Firma des Bf. über einen Zeitraum von ungefähr elf Jahren hin. Die Verzögerungen waren dem Antrag eines Liquidatoren, in das Verfahren mit einbezogen zu werden, und der Versetzung des zuständigen Richters zuzuschreiben, nicht jedoch der Komplexität des Falles oder dem Bf. 105 Ebenso war Art. 6 im Fall Zappia verletzt, 106 in dem ein zivilrechtliches Verfahren, gefolgt von einem Vollstreckungsverfahren 1968 begann und noch nicht abgeschlossen war, als die Beschwerde bei der Kommission eingelegt wurde. Zwar war Italien erst seit dem 1. August 1973 an die Konvention und Art. 25 gebunden und der Bf. mitursächlich für die Länge des Verfahrens, jedoch, so das Gericht, könne dies nicht die Überlänge des Verfahrens erklären. Vielmehr ließe sich diese auf die defizitäre Funktionalität des Gerichts- und Vollstreckungswesens zurückführen. Ebenso war auch im Fall Matos e Silva y Lda. u. a. das Verfahren noch immer anhängig; nachdem die Regierung von Portugal selbst eingestand, daß bezüglich der Dauer eine Verletzung vorläge, brauchte das Gericht nicht zu untersuchen, ob es einen rechtfertigenden Grund für die überlange Verfahrensdauer gab und konnte die Verletzung von Art. 6 Abs. 1 bejahen.107 Wenn die lange Dauer eines Verfahrens indes eher dem Bf. zuzuschreiben ist, ist Art. 6 Abs. 1 nicht verletzt. Dies befand eine knappe Mehrheit der Richter im Fall Phocas, wo der Bf. mehrmals auf schriftliche Anfragen nicht antwortete und keine präzisen Informationen beibrachte.108 Zu einem negativen Ergebnis kam das Gericht auch in den Fällen Johansen> Süßmann sowie Katikaridis u. a. Im ersten dieser Fälle wurden die Verfahren mit der nötigen Sorgfalt geführt, so daß in Anbetracht der Komplexität des Falles 1 Jahr und neun Monate nicht unangemessen waren. 109 Im Fall Süßmann dauerte das in Frage stehende Verfahren vom 11. Juli 1988 bis zum 5. Dezember 1991. Diese lange Dauer kam zum einen dadurch zustande, daß das BVerfG 102

UrteÜ Mitap undMüftüoglu

103

Urteü Ferrantelli

(Anm. 19), 402 (411), § 31.

und Santangelo (Anm. 93), 937 (949), § 43.

104 Urteü DiPede (Anm. 42), 1376 (1385 f.), §§ 31 f.; Urteü Duclosgegen Frankreich vom 17. Dezember 1996, Reports 1996-VI, 2163 (2183), § 65, (2186), § 78, (2187), § 86. 105

UrteÜ Ceteroni (Anm. 96), 1748 (1756 f.), § 24.

106

Urteü Zappia (Anm. 42), 1403 (1412 f.), § 25.

107

Urteü Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1110), § 69.

108

Urteü Phocas (Anm. 14), 519 (547), § 73.

109

Urteü Johansen gegen Norwegen vom 7. August 1996, Reports 1996-IV, 979 (1011), § 88.

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Marian Niestedt und Dominik Ziegenhahn

alle anhängigen Beschwerden, die sich gegen die Kürzung der Beamten-Zusatzpension richteten, zusammenfassen mußte. Zum anderen hatte sich das BVerfG zur gleichen Zeit mit zahlreichen Beschwerden gegen eine Bestimmung des Einigungsvertrages zu befassen. Die Straßburger Richter in der Besetzung einer Großen Kammer stellten einstimmig heraus, daß der Ausgang des Verfahrens für den Bf. in Anbetracht seines Alters zwar einerseits von erheblicher Bedeutung war, daß die Kürzung seiner Zusatzpension andererseits jedoch nicht so gravierend war, daß sein Fall mit besonderer Dringlichkeit zu behandeln gewesen wäre. Die Dauer des Verfahrens war somit nicht unangemessen.110 Die Zeitspanne von November 1985 bis Juni 1991 war im Fall Katikaridis u. a. auf die Komplexität des Falles und die unterschiedliche Rechtsauffassung zweier Kammern des involvierten Gerichtes zurückzuführen, die eine Entscheidung im Plenum erforderlich machten. Daher lag auch hier nach Meinung des Gerichtes und entgegen dem einstimmigen Bericht der Kommission keine Verletzung des Rechtes auf eine Anhörung innerhalb einer angemessenen Frist vor. 111 d) Die Grundsätze der Waffengleichheit und des kontradiktorischen Verfahrens Die Grundsätze der Waffengleichheit und des kontradiktorischen Verfahrens sind nicht ausdrücklich von Art. 6 geschützt, werden aber vom Erfordernis eines fairen Verfahrens erfaßt. 112 Im Hinblick auf das Erfordernis eines unter Waffengleichheit geführten kontradiktorischen Verfahrens ergingen die Urteile Lobo Machado und Vermeulen, die beide von einer Großen Kammer entschieden wurden. 113 In beiden Verfahren ging es um die besondere Rolle der generalanwaltlichen Abteilungen (Prokuratur) in Portugal und Belgien, deren Beamte den Justizministern unterstellt sind und denen in beiden Staaten ähnliche Aufgaben zukommen. Neben staatsanwaltlicher Tätigkeit und der anwaltlichen Vertretung des Staates obliegt ihnen auch die Beteiligung an Gerichtsverfahren als amici curiae zur Sicherstellung einer ordnungsgemäßen Rechtspflege und einer einheitlichen Entscheidungspraxis. Der Bf. Lobo Machado klagte gegen seinen früheren Arbeitgeber, ein verstaatlichtes Unternehmen, auf höhere Pensionsleistungen. Vermeulen hatte gegen die Eröffnung des Konkurses über sein Unterneh110

Urteil Süßmann (Anm. 10), 1158 (1175), § 62.

111

Urteil Katikaridis

112

Urteil Vidal gegen Belgien vom 22. April 1992, Series A, no. 235-B, 17 (32 f.), § 33.

u. a. (Anm. 32), 1673 (1687), § 43.

113 Urteil Lobo Machado gegen Portugal vom 20. Februar 1996, Reports 1996-1,195 ff.; Urteil Vermeulen gegen Belgien vom 20. Februar 1996, Reports 1996-1,224 ff.; siehe dazu die Urteilsanmerkung von Florence Benoît-Rohmer , Conseil d'Etat et Cour de cassation contre Cour européenne des Droits de l'Homme à propos de l'influence possible des arrêts Vermeulen et Lobo Machado de la Cour européenne des Droits de l'Homme sur la procédure contentieuse française, Revue trimestrielle de Droit européen 1997, 373 ff.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

men geklagt. In beiden Fällen folgten die Obergerichte der nach Abschluß der mündlichen Verhandlung abgegebenen schriftlichen Stellungnahme der Prokuratur, das Rechtsmittel abzulehnen. Für die Beteiligten war es nicht möglich, eine Kopie der Stellungnahme zu erhalten, um diese zu kommentieren. Das Straßburger Gericht bekräftigte, daß die Verfahrensparteien Zugang zu allen Beweismitteln in einem Ziviloder Strafverfahren haben müssen, auch wenn diese von unabhängigen Justizstellen stammen. Vorliegend sah der Gerichtshof daher einen Verstoß gegen Art. 6 Abs. 1 als gegeben an.114 Eine weitere Verletzung des Grundsatzes eines kontradiktorischen Verfahrens sah der EGMR darin, daß jeweils ein Vertreter der generalanwaltlichen Abteilungen bei einer nichtöffentlichen Beratung des entscheidenden Senates anwesend gewesen war. 115 Auch im Fall Bulut erkannte der Gerichtshof auf Verletzung der Waffengleichheit. Ein Generalstaatsanwalt hatte eine Stellungnahme an ein Gericht mit dem Inhalt abgegeben, die Nichtigkeitsbeschwerde des wegen versuchter Beamtenbestechung verurteilten Bf. in nichtöffentlicher Sitzung zurückzuweisen, ohne daß dies der Verteidigung mitgeteilt worden war. 116 Im Fall Miailhe hatte das Gericht bereits 1993 in einem ersten Verfahren die Durchsuchung der Wohnung des Bf. durch Zollbeamte als Verletzung von Art. 8 beurteilt. 117 Der Bf. brachte nunmehr vor, daß die in dem nachfolgenden Strafverfahren gegen ihn verwandten Dokumente aus der Beschlagnahmung durch jene Zollbeamten stammten. Er fügte hinzu, daß er keinen Zugang zu diesen gehabt habe, um sich angemessen zu verteidigen. Das Gericht stellte fest, daß die benannten Dokumente in die entsprechende Gerichtsakte aufgenommen worden waren und der Bf. sich somit Zugang hätte verschaffen können. Unter Beachtung aller Umstände seien die Verfahren gegen den Bf. folglich als fair zu beurteilen und eine Verletzung von Art. 6 Abs. 1 abzulehnen.118 Daß der Grundsatz der Waffengleichheit auch für Verfahren gilt, in denen sich private Interessen gegenüberstehen, hob das Gericht im Fall Ankerl hervor. 119 Auch in solchen Verfahren könne eine unterschiedliche Behandlung hinsichtlich der Anhörung und Vereidigung von Zeugen das Prinzip grundsätzlich verletzen. Im vorliegenden Fall war die Zeugin des Bf. nicht vereidigt und ihre Zeugenaussage im Vergleich zu denen der gegnerischen Streitpartei entsprechend weniger gewichtet worden. Dennoch lehnte das Gericht eine Verletzung des Grundsatzes der Waffengleich114

UrteÜe LoboMachado (Anm. 113), 195 (207), § 31; Vermeulen (Anm. 113), 224 (234), § 33.

115

UrteÜe LohoMachado (Anm. 113), 195 (207), § 32; Vermeulen (Anm. 113), 224 (234), § 34.

116

Urteü Bulut (Anm. 89), 346 (360), § 50.

117

Urteü Miailhe gegen Frankreich

vom 25. Februar 1993, Series A, no. 256-C, 75 (90), § 40.

118

UrteÜ Miailhe (Nr. 2) (Anm. 10), 1319 (1339), § 46.

119

Urteü Ankerl (Anm. 31), 1553 (1567 f.), § 38.

536

Marian Niestedt und Dominik Ziegenhahn

heit ab, da das nationale Gericht die Zeugenaussage als nicht ausreichend relevant für den Ausgang des Falles erachtet hatte und deshalb auf ihre Vereidigung verzichten durfte. 120 e) Das Recht, vor einem unabhängigen und unparteiischen Gericht gehört zu werden aa) Das Recht auf Zugang zu einem Gericht In einigen Fällen rügten die Bf. bereits, daß ihnen der Zugang zu einem Gericht gänzlich verwehrt gewesen sei. Der Gerichtshof betonte indes, daß das Recht auf Zugang zu einem Gericht nicht absolut sei, sondern durchaus Gegenstand von Begrenzungen sein könne. Allerdings dürften diese nicht dazu führen, daß das Recht auf Zugang zu einem Gericht inhaltslos werde. Beschränkungen seien mithin nur dann mit Art. 6 Abs. 1 vereinbar, wenn sie den Anforderungen der Verhältnismäßigkeit entsprächen.121 Dabei stellte das Gericht fest, daß der Zugang zu einem Gericht dann nicht als behindert angesehen werden könne, wenn der Kläger, vertreten durch seinen Anwalt, ein Verfahren vor einem Gericht frei in Gang bringen, seine Interessen vorbringen und eine Berufung gegen ablehnende Entscheidungen einlegen kann.122 Die Ablehnung der Zulässigkeit einer Revision zum französischen Kassationshof kann nach Auffassung des EGMR eine zulässige Beschränkung des Rechtes auf ein Zugang zu einem Gericht darstellen. Gerade die spezielle Funktion eines Kassationshofs, die allein in einer Uberprüfung der richtigen Rechtsanwendung besteht, könne dazu führen, daß die Voraussetzungen für die Zulässigkeit strenger seien.123 Im Fall Stubbings u. a. wurde eine zivilrechtliche Klage zur Geltendmachung von Entschädigungsansprüchen der Opfer von sexuellem Kindesmißbrauchs wegen Verjährung abgewiesen. Das englische Recht sieht für Fälle dieser Art eine Verjährungsfrist von 6 Jahren ab Vollendung des 18. Lebensjahres vor, so daß für die mittlerweile über 30 Jahre alten Bf. keine Möglichkeit mehr bestand, etwaige Ansprüche geltend zu machen.124 Der Gerichtshof hob hervor, daß den Vertragsstaaten grundsätzlich die Möglichkeit offenstehe, den Zugang zu den Gerichten gesetzlich zu regeln und somit auch zeitlich zu begrenzen. Zwar dürften solche Einschränkungen nicht dazu führen, daß der Wesensgehalt dieses Rechtes berührt werde, jedoch hätten die 120

Urteü Ankerl (Anm. 31), 1553 (1567 f.), § 38.

121

UrteÜe Stubbings u. a. gegen Vereinigtes Königreich vom 22. Oktober 1996, Reports 1996IV, 1487 (1502), § 50; Levages Prestations Services (Anm. 82), 1530 (1543), § 40. 122

UrteÜ Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1109), § 64.

123

Urteü Levages Prestations Services (Anm. 82), 1530 (1544 f.), § 48.

124

Urteü Stubbings u. a. (Anm. 121), 1487 (1501), § 47.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im ahre 1996

Bf. ab Erreichen der Volljährigkeit innerhalb von 6 Jahren eine Schadensersatzklage erheben können. Diese Verjährungsfrist war nach Ansicht des Gerichtshofes auch nicht zu kurz bemessen. Darüber hinaus seien die Verjährungsfristen dadurch gerechtfertigt, daß sie höherrangigen Zielen wie der Rechtssicherheit und dem Vertrauensschutz dienen. Schließlich bestehe auch kein allgemein anerkannter Grundsatz, nach dem die Verjährungsfristen für den Kläger erst ab Kenntnis der Schädigung zu laufen begönnen. Das Gericht betonte zwar, daß politisch eine länderübergreifende Regelung zur Vereinheitlichung der Verjährungsfristen in diesem hochsensiblen und emotional aufgeladenen Bereich angebracht wäre, es läge jedoch nicht in seiner Kompetenz, darüber zu urteilen. 125 Aus diesen Gründen war das Recht auf Zugang zu einem Gericht nicht verletzt. Anders fiel das Urteil im Fall Terra Woningen Β. V aus, in dem der EGMR betonte, daß das Recht auf Zugang zu einem Gericht verlange, daß das Gericht in der Entscheidung über zivilrechtliche Ansprüche und Verpflichtungen zur Prüfung aller entscheidungsrelevanten tatsächlichen und rechtlichen Fragen befugt sei.126 Im vorliegenden Fall ging das nationale Gericht von der Existenz einer ernsthaften Gesundheitsgefährdung aus und stützte sich dabei auf die Entscheidung der Provinzregierung, ein Bodensanierungsprogramm durchzuführen. Für eine eigenständige Untersuchung der Auswirkungen der Bodenverunreinigung erklärte es sich für unzuständig, obwohl diese Frage für den Ausgang des Verfahrens von entscheidender Bedeutung gewesen wäre. bb) Das Recht auf ein unabhängiges und unparteiisches Gericht Mehrere vor das Gericht gebrachte Fälle betrafen die Frage, ob das Gericht im Ausgangsverfahren als unabhängig und unparteiisch i.S.v. Art. 6 Abs. 1 der Konvention gelten konnte. Dies überprüfte der Gerichtshof anhand eines subjektiven und eines objektiven Tests, der sowohl für Geschworene als auch für Berufsrichter gilt. 127 Der subjektive Test erfordert, daß keine Person des Gerichts persönlich befangen sein darf und stützt sich auf Gründe, die in der persönlichen Überzeugung und im Verhalten eines bestimmten Richters liegen. Objektiv müssen Garantien vorhanden sein, die etwaige Zweifel an der Unabhängigkeit oder Unparteilichkeit eines Gerichtes ausräumen,128 wobei dem objektiven Test die entscheidende Bedeutung zukommt.129 125

Urteü Stubbings u. a. (Anm. 121), 1487 (1503 f.), § 56.

126

Urteü Terra Woningen Β. V (Anm. 10), 2105 (2123), §§ 52 und 54.

127

Urteüe Remli (Anm. 31), 559 (574), § 46; Pullargegen Vereinigtes Königreich vom 10. Juni 1996, Reports 1996-ΙΠ, 783 (793), § 32. 128 Urteü Pullar (Anm. 127), 783 (792), § 30, Thomann gegen Schweiz vom 10. Juni 1996, Reports 1996-ΙΠ, 806 (815), § 30; Ferrantelli und Santangelo (Anm. 93), 937 (951), § 56. 129

Urteile Remli (Anm. 31), 559 (574), § 46; Pullar (Anm. 127), 783 (794), § 37; Ferrantelli

538

Marian Niestedt und Dominik Ziegenhahn

Unter Anwendung dieser Kriterien gelangte das Gericht im Fall Bulut zu der Auffassung, daß das nationale Gericht unabhängig und unparteiisch war, obwohl einer der Richter bereits am Untersuchungsverfahren beteiligt gewesen war. Der Vorsitzende Richter hatte den Anwalt des Bf. vor Beginn der Verhandlung und nochmals vor Beginn der Beweisaufnahme über diese Tatsache informiert. Die Verteidigung nahm dies jedoch ohne Erwiderung zur Kenntnis. Dabei war allseits auf die Geltendmachung des Umstandes als Nichtigkeitsgrund verzichtet worden. Da der Richter nicht abgelehnt worden war, im Untersuchungsverfahren auch nur zwei Zeugen vernommen hatte und sonst keine Anhaltspunkte dafür bestanden, daß er befangen wäre, war der Grundsatz des fairen Verfahrens beachtet worden. 130 Auch im Fall Pullar kam der EGMR zu dem Ergebnis, daß keine Verletzung vorlag.131 Im gegen den Bf. angestrengten Strafverfahren wegen Bestechung stellte sich heraus, daß ein Mitglied der aus 15 Personen bestehenden Jury Angestellter eines Zeugen der Anklage war. Das Gericht betonte, daß die Tatsache allein, daß jemand einen Zeugen persönlich kenne, noch nicht ausreiche, um darauf zu schließen, daß dieser für die Zeugenaussage voreingenommen sei. Es komme vielmehr auf den Einzelfall an.132 Vorliegend hatte der Geschworene selbst nichts mit der Angelegenheit zu tun gehabt und war inzwischen entlassen worden. Zudem war die Unparteilichkeit der Geschworenen gewährleistet, da die Zusammenstellung der Jury durch ein Losverfahren erfolgt war und die Mitglieder darüber hinaus an einen Schwur gebunden waren. 133 Wenn ein Gericht, das aus denselben Personen zusammengesetzt ist, die einen Angeklagten bereits einmal in absentia verurteilt haben, diesen erneut verurteilt, muß dies dann keine Verletzung des Erfordernisses der Unparteilichkeit eines Gerichtes bedeuten, wenn die Richter in keiner Weise an die frühere Entscheidung gebunden sind und den Fall unter voller Beweisaufnahme einschließlich der Anhörung des Angeklagten neu bewerten.134 Vorliegend war der Bf. zudem bei seiner ersten Verurteilung einer Ladung zu einer festgesetzten Gerichtsverhandlung nicht gefolgt, und dies sollte ihm nicht zum Vorteil gereichen.135 Im Fall Remli waren fünf der neun Richter der Uberzeugung, daß Art. 6 verletzt sei.136 Ein unabhängiger Zeuge hatte angeblich vor der Gerichtsverhandlung zufällig und Santangelo (Anm. 93), 937 (952), § 58. 130

Urteil Bulut (Anm. 89), 346 (357), § 34.

131

Urteil Pullar (Anm. 127), 783 (795), § 41.

132

Urteil Pullar (Anm. 127), 783 (794), § 38.

133

Urteil Pullar (Anm. 127), 783 (795), § 40.

134

Urteil Thomann (Anm. 128), 806 (816), § 37.

135

Urteil Thomann (Anm. 128), 806 (816), § 36.

136

Urteil Remli (Anm. 31), 559 (574), § 48.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

eine rassistische Bemerkung in bezug auf den Angeklagten durch einen Geschworenen gehört. Das nationale Gericht hatte den Antrag der Anwälte, von dieser Aussage formelle Notiz zu nehmen, mit der Begründung abgelehnt, daß die angebliche Bemerkung vor Beginn des Prozesses stattgefunden habe und nicht in Anwesenheit der Richter getätigt worden sei. Der EGMR hob dagegen hervor, daß den Anforderungen des Art. 6 Abs. 1 deshalb nicht Genüge getan worden sei, weil das nationale Gericht selbst seine Unparteilichkeit nicht untersucht habe. Indem nicht einmal formelle Notiz genommen worden sei, sei dem Bf. die Möglichkeit genommen worden, einen Befangenheitsantrag zu stellen und sich im Rechtsmittelverfahren darauf zu berufen. Ebenfalls auf eine Verletzung erkannte der Gerichtshof im Fall Ferrantelli und Santangelo. 137 Der Vorsitzende Richter des Appelationsgerichtes hatte bereits einen der Mittäter verurteilt. Da sich zum einen in jenem Urteil bereits Stellungnahmen des Richters die Rolle von Ferrantelli und Santangelo betreffend fanden und zum anderen im Urteil gegen die beiden Bf. einige Passagen aus dem Urteil gegen den Mittäter zitiert wurden, handelte es sich nach Auffassung der Richter nicht um ein unparteiisches Gericht. f) Das Recht, zu schweigen und sich nicht selbst zu belasten gem. Art. 6 Abs. 1 und Abs. 2 Nach der Rechtsprechung des Gerichtshofes stellen das Recht, während einer polizeilichen Vernehmung zu schweigen, und das Recht, sich nicht selbst zu belasten, international anerkannte Grundsätze dar, die den Kern eines fairen Verfahrens gem. Art. 6 ausmachen, auch wenn die Vorschrift diese Grundsätze nicht ausdrücklich erwähnt. 138 Der EGMR stellte fest, daß das Recht zu schweigen nicht absolut sei. Vielmehr komme es auf die Umstände des Einzelfalles an. Vor allem sei zu prüfen, aus welchen Umständen Schlußfolgerungen gezogen würden, welche Rolle die aus dem Schweigen gezogenen Schlußfolgerungen im Strafverfahren spielten und inwieweit der Beschuldigte zur Aussage gezwungen werden konnte.139 Der Bf. John Murray war wegen Beihilfe zur Freiheitsberaubung eines Doppelinformanten der IRA und der nordirischen Polizei rechtskräftig zu 8 Jahren Haft verurteilt worden. Der Gerichtshof hielt es angesichts der Umstände nicht für unfair, daß aus der Nichteinlassung des Bf. Schlußfolgerungen gezogen wurden, denn er war von der Geisel selbst belastet worden und 137

Urteü Ferrantelli

und Santangelo (Anm. 93), 937 (952), § 60.

138

Urteü John Murray gegen Vereinigtes Königreich vom 8. Februar 1996, Reports 1996-1, 30 (49), § 45; deutsche Übersetzimg des Urteüs in EuGRZ Bd. 23, 1996, 587 ff. mit Anmerkung von Hans Heiner Kühne, Anwaltlicher Beistand und das Schweigerecht des Beschuldigten im Strafverfahren, EuGRZ Bd. 23, 1996, 571 ff. 139

UrteÜ Murray (Anm. 138), 30 (49), § 47.

540

Marian Niestedt und Dominik Ziegenhahn

hatte die Beantwortung aller an ihn gestellten Fragen trotz des Hinweises auf etwaige negative Folgen verweigert. 140 Deshalb sei das aus Art. 6 Abs. 1 und Abs. 2 folgende Recht zu schweigen nicht verletzt und die Beweislast nicht unter Verstoß gegen die Unschuldsvermutung von der Anklage zur Verteidigung hin verschoben worden. 141 Im Fall Saunders richtete sich die Beschwerde gegen die Verwertung von Aussagen in einem strafrechtlichen Verfahren, die der Bf. unter Androhung von Sanktionen dem vernehmenden Inspektor gegenüber gemacht hatte. Nach Ansicht des EGMR spielt es keine Rolle, ob Aussagen tatsächlich selbstbeschuldigender Natur seien oder nicht, da auch neutrale Aussagen von der Staatsanwaltschaft gegen den Beklagten benutzt werden könnten. Hier waren die Aussagen dazu benutzt worden, die Glaubhaftigkeit des Bf. in Zweifel zu ziehen und somit die Jury von der Schuld des Bf. zu überzeugen. Da diese Aussagen trotz der Einwände des Bf. über einen Zeitraum von drei Tagen der Jury verlesen worden waren, stellte der EGMR eine Verletzung von Art. 6 Abs. 1 fest. 142 3. Die Unschuldsvermutung des Art. 6 Abs. 2 Art. 6 Abs. 2 gewährt nach der Rechtsprechung des Gerichtshofes weder einen Entschädigungsanspruch, noch stellt die Ablehnung einer Entschädigung durch ein nationales Gericht für sich genommen bereits eine Verurteilung dar. Art. 6 Abs. 2 kann nach Auffassung des Gerichtes jedoch dann verletzt sein, wenn die Begründung für die Ablehnung einer Entschädigung einem Schuldspruch gleichkommt.143 Dies wurde im Urteil Leutscher verneint. 144 Dort war die erstinstanzliche Verurteilung wegen Steuervergehen vom Rechtsmittelgericht aufgehoben worden, weil nach Ansicht des nationalen Gerichts der Bf. nicht innerhalb einer angemessenen Frist i.S.d. Art. 6 der Konvention gehört worden war. Der Bf. machte daraufhin einen Anspruch auf Entschädigung für seine Auslagen geltend. Der EGMR hob zum einen hervor, daß das über die Entschädigung urteilende Gericht diesbezüglich einen weiten Ermessensspielraum gehabt habe. Zum anderen habe es in die Entscheidung auch den gegen den zunächst Verurteilten bestehenden Verdacht einbeziehen dürfen, der durch die Aufhebung der Verurteilung nicht beseitigt worden war. Dies hatte das nationale

140

UrteÜ Murray (Anm. 138), 30 (52), § 56.

141

Urteü Murray (Anm. 138), 30 (53), §§ 57 f.

142

UrteÜ Saunders gegen Vereinigtes 2044 (2067), § 76.

Königreich vom 17. Dezember 1996, Reports 1996-VI,

143

UrteÜ Leutscher (Anm. 10), 427 (436), § 29.

144

Urteü Leutscher (Anm. 10), 427 (437), § 32.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

Gericht dadurch deutlich gemacht, daß es die ursprüngliche Verurteilung als materiell rechtmäßig einstufte. 145 4. Die speziellen Verfahrensgarantien

des Art. 6 Abs. 3

Da Art. 6 Abs. 3 nur spezielle Ausprägungen des in Abs. 1 niedergelegten allgemeinen Rechtes auf ein faires Verfahren enthält, prüft das Straßburger Gericht Art. 6 Abs. 3 in Verbindung mit Art. 6 Abs. I. 1 4 6 Deshalb ist letztere Bestimmung bei der Auslegung der Garantien des Abs. 3 zu beachten.147 a) Information eines Beschuldigten über die gegen ihn erhobenen Vorwürfe — Art. 6 Abs. 3 lit. a) Ein Bf. machte geltend, im Verlaufe eines strafrechtlichen Verfahrens durch ein Obergericht wegen einer qualifizierten Veruntreuung verurteilt worden zu sein, während er in den ersten Instanzen wegen einer einfachen Veruntreuung für strafbar befunden worden war. Der Gerichtshof stellte jedoch fest, daß bereits die ursprüngliche Anklage auf die Veruntreuung öffentlicher Gelder gerichtet war, so daß der Bf. damit habe rechnen müssen, daß die Tatsache seiner Ausübung eines öffentlichen Amtes einen erschwerenden Umstand für die Bestimmung seiner Strafe bilden könnte.148 b) Das Recht auf ausreichend Zeit und Gelegenheit, sich zu verteidigen — Art. 6 Abs. 3 lit. b) Hinsichtlich des aus Art. 6 Abs. 3 lit. b) fließenden Rechtes, über ausreichend Zeit und Gelegenheit zur Verteidigung zu verfügen, urteilte der EGMR, daß eine aus der Kontrolle des Briefverkehrs zwischen dem Bf. und seinem Anwalt resultierende Verzögerung ersteren in seinem Recht aus Art. 6 Abs. 3 lit. b) verletze, auch wenn der Verfahrensausgang vorhersehbar gewesen sei.149

145

Urteü Leutscher (Anm. 10), 427 (436), § 31.

146

UrteÜe Benham (Anm. 53), 738 (755), § 52; Pullar (Anm. 127), 783 (796), § 45; Vacher (Anm. 11), 2138 (2147), § 22. 147

Urteü Ferrantelli

und Santangelo (Anm. 93), 937 (950), § 41.

148

Urteü De Salvador Torres gegen Spanien vom 24. Oktober 1996, Reports 1996-V, 1577 (1587), § 33. 149

§39.

Urteü Domenichini gegen Italien vom 15. November 1996, Reports 1996-V, 1789 (1800 f.),

542

Marian Niestedt und Dominik Ziegenhahn

Im Fall Vacher prüfte das Gericht Art. 6 Abs. 3 lit. b) und c) kombiniert. Dort war nach seiner Uberzeugung das Recht des Angeklagten dahingehend verletzt worden, daß er der Möglichkeit beraubt worden war, seinen Fall effektiv der Cour de cassation vorzulegen und sich selbst zu verteidigen. Diese hatte seine Klage als nicht fristgemäß abgelehnt, weil er sein schriftliches Plädoyer nicht rechtzeitig vor der Anhörung eingereicht habe. Der Gerichtshof begründete den Verstoß gegen Art. 6 Abs. 3 damit, daß in dem Fall grundsätzlich keine Fristen bestanden hätten und der Bf. nicht darüber informiert worden sei, daß das französische Gericht für das Verfahren weniger als die übliche Zeit gebraucht habe. Es sei auch nicht mit der von Art. 6 geforderten Sorgfaltspflicht zu vereinbaren, wenn dem Bf. die Pflicht aufgebürdet würde, sich selbst nach etwaigen Fristen zu erkundigen.150 c) Das Recht, sich selbst zu verteidigen oder den Beistand eines Verteidigers eigener Wahl zu erhalten — Art. 6 Abs. 3 lit. c) Art. 6 Abs. 3 lit. c) verlangt, daß einem Angeklagten, dem eine Freiheitsstrafe droht und welcher nicht über die finanziellen Mittel verfügt, sich einen Rechtsbeistand zu leisten, ex officio ein Pflichtverteidiger zur Verfügung gestellt wird. Wenn dies nicht geschehe, sei Art. 6 Abs. 1 i.V.m. Abs. 3 lit. c) verletzt, so das Gericht im Fall Benham,151 in dem der Bf. wegen seiner Weigerung, die Gemeindesteuer zu bezahlen, zu einer Beugehaft verurteilt worden war. Der Anspruch auf die Zurverfügungstellung eines Rechtsbeistandes hänge dabei von der Komplexität des Falles und der Schwere der drohenden Strafe ab.152 Daß Art. 6 und besonders dessen Abs. 3 bereits im Stadium vor der förmlichen Anklageerhebung relevant sein können, wenn und soweit durch anfängliche Nichtbeachtung der Grundsätze des fairen Verfahrens auch die Fairneß des weiteren Verfahrens in Frage gestellt ist, bekräftigte das Gericht in seinem Urteil John Murray™ Die Art der Anwendung von Art. 6 Abs. 3 lit. c) hänge allerdings von den Besonderheiten des betreffenden Verfahrens und den Umständen des Falles ab. So könne das Recht auf Beistand eines Anwaltes bereits im anfänglichen Stadium eines Verfahrens wohlbegründeten Einschränkungen unterworfen sein.154 Der vorliegende Fall betraf die Frage, ob der Verteidigerbeistand in der polizeilichen Vernehmungssituation in Nordirland 48 Stunden hinausgezögert werden durfte. Der Gerichtshof verneinte dies und befand, daß die Verweigerung des Zuganges zu einem Anwalt hier eine Ver150

Urteil Vacher (Anm. 11), 2138 (2148 f.), §§ 28 ff.

151

Urteil Benham (Anm. 53), 738 (757), §§ 63 f.

152

Urteil Benham (Anm. 53), 738 (757), § 60.

153

Urteil Murray (Anm. 138), 30 (54 f.), §§ 62 ff.

154

Urteil Murray (Anm. 138), 30 (54 f.), §§ 62 f.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

letzung von Art. 6 Abs. 1 i.V.m. Abs. 3 lit. c) darstelle.155 Wegen der Gefahr irreparabler Beeinträchtigung der Verteidigungsrechte verlange Art. 6, daß der Angeklagte bereits zu Beginn der polizeilichen Befragung die Hilfe eines Anwaltes in Anspruch nehmen könne, was immer auch die Gründe für die Verweigerung des Zuganges zu einem Anwalt sein mögen.156 d) Die Rolle von Zeugen gem. Art. 6 Abs. 3 lit. d) Der Gerichtshof verwies darauf, daß der Begriff „Zeuge" i.S.d. Art. 6 Abs. 3 lit. d) autonom interpretiert werde 157 und daher auch Personen erfasse," deren nur schriftliche Stellungnahme einem innerstaatlichen Gericht vorliege. Im Fall Pullar rügte der Bf., daß er die Richtigkeit einer schriftlichen Zeugenaussage nicht durch ein Kreuzverhör überprüfen lassen konnte. Allerdings bestanden nach Ansicht des Gerichtes für den Anwalt des Bf. im entscheidenden Zeitpunkt, als das Schriftstück vorgelegt wurde, verschiedene Handlungsmöglichkeiten. Beispielsweise hätte er den Zeugen zwecks Hörbeweises vor Gericht laden lassen können. Da er es aber zu diesem Zeitpunkt versäumt hatte, derartige Schritte zu unternehmen, sah das Gericht Art. 6 nicht als verletzt an.158 In zwei weiteren Fällen wies der Gerichtshof darauf hin, daß die Frage der Zulässigkeit von Beweisen vorrangig eine Sache des nationalen Rechtes sei und die Beweiswürdigung den nationalen Gerichten zukomme. Er habe nur zu überprüfen, ob das Verfahren, eingeschlossen die Beweisaufnahme, insgesamt fair verlaufen sei.159 In beiden Fällen verneinte das Gericht eine Verletzung von Art. 6 Abs. 3 lit. d).160 Im Fall Doorson waren zwei Zeugen vom Untersuchungsrichter ohne Anwesenheit des den Bf. vertretenden Anwaltes gehört worden. Bei der Anhörung vor Gericht war der Anwalt dann allerdings zugegen gewesen. Auch der Umstand, daß Zeugenaussagen von anonymen Zeugen im Untersuchungsverfahren später als Beweise im Prozeß genutzt wurden, war nach Meinung des Gerichtes mit Art. 6 vereinbar. Die Anonymität sei aus Gründen des Zeugenschutzes erforderlich gewesen, und die Tatsache, daß dies für die Verteidigung ein Erschwernis dargestellt habe, sei durch das nationale Gericht bei der Urteilsfindung berücksichtigt worden. Denn es hatte sich nicht entscheidend auf diese Zeugenaussagen gestützt, was nach Ansicht des EGMR unzulässig 155

Urteü Murray (Anm. 138), 30 (56), § 70.

156

Urteü Murray (Anm. 138), 30 (55), § 66.

157

Urteü Pullar (Anm. 127), 783 (796), § 45.

158

Urteü Pullar (Anm. 127), 783 (796), § 46.

159

und Santangelo (Anm. 93), 937

160

und Santangelo (Anm. 93), 937

Urteüe Doorson (Anm. 11), 446 (470), § 67; Ferrantelli (949 f.), § 48. Urteüe Doorson (Anm. 11), 446 (474), § 83; Ferrantelli (951), § 53.

544

Marian Niestedt und Dominik Ziegenhahn

gewesen wäre. 161 Im Urteil Ferrantelli und Santangelo machten die Richter darauf aufmerksam, daß normalerweise alle Beweise in öffentlicher Verhandlung dem Angeklagten zu präsentieren seien. Allerdings sei der Gebrauch von Stellungnahmen, die während des Untersuchungsverfahrens gemacht würden, dann zulässig, wenn der Angeklagte während des Verfahrens ausreichend Gelegenheit habe, einen ihn belastenden Zeugen zu befragen. 162 Eine solche Befragung hatte im Fall von Ferrantelli und Santangelo nicht stattgefunden, bevor der Belastungszeuge erhängt in seiner Zelle aufgefunden wurde. Allerdings unterstrich der EGMR, daß das nationale Gericht nicht für dessen Tod verantwortlich gemacht werden könne. Zudem seien die vom Zeugen in den Voruntersuchungen gemachten Aussagen sorgfältig geprüft und durch andere Beweiselemente bestätigt worden. 163 VI. Der Grundsatz nulla poena sine lege — Art. 7 Im Fall Cantoni wehrte sich der Bf. gegen die Verurteilung wegen Verkaufs von medizinischen Produkten gemäß Art. 511 des französischen Code de la Santé Publique. Er brachte vor, daß der dort verwandte Begriff „Medikament" zu unbestimmt sei und den Behörden einen zu großen Beurteilungsspielraum ließe. Nach Auffassung des Gerichtes wurde dieser unbestimmte Rechtsbegriff vorliegend aber durch eine umfangreiche Rechtsprechung eingegrenzt, die bestimmte pharmazeutische Produkte als Medikamente i.S.d. Code de la Santé Publique eingestuft hatte. Für den Bf. als Geschäftsführer eines Supermarktes sei es daher klar vorhersehbar gewesen, daß er sich mit dem Verkauf von pharmazeutischen Produkten dem Risiko aussetzte, strafrechtlich verfolgt zu werden.164 VII. Die Freiheitsrechte der Art. 8, 9, 10 und 11 Hinsichtlich der in der Konvention garantierten Freiheitsrechte soll zunächst dargelegt werden, in welchen Fällen das Gericht einen Eingriff in den Schutzbereich angenommen hat. Daran schließt sich die Betrachtung der jeweiligen möglichen Rechtfertigung an.

161

Urteü Doorson (Anm. 11), 446 (472), § 76.

162

Urteü Ferrantelli

und Santangelo (Anm. 93), 937 (950), § 51.

163

Urteü Ferrantelli

und Santangelo (Anm. 93), 937 (950 f.), § 52.

164

Urteü Cantoni gegen Frankreich

§35.

vom 15. November 1996, Reports 1996-V, 1614 (1629),

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

1. Eingriff

in den Schutzbereich

a) Das Recht auf Achtung des Familienlebens, der Wohnung und des Privatlebens — Art. 8 Abs. 1 aa) Anspruch auf Achtung des Privatlebens In den Fällen Domenichini und Calogero Diana beklagten die Bf. die Zensur ihrer schriftlichen Korrespondenz mit ihren Anwälten. Das Gericht beurteilte dies als einen Eingriff in das Recht aus Art. 8 Abs. 1, welcher an den Maßstäben des Art. 8 Abs. 2 zu messen sei.165 Ebenso genießt das Recht, den eigenen Kindern einen selbstgewählten Namen zu geben, den Schutz des Art. 8 Abs. 1, auch wenn diese Bestimmung das Recht auf freie Namensgebung nicht ausdrücklich gewährleistet. Das Gericht stellte fest, daß die Namensgebung eine persönliche und emotionale Entscheidung sei, die grundsätzlich vom Recht auf Anspruch des Privat- und des Familienlebens umfaßt sein müsse.166 Die sich aus der fehlenden öffentlichen Registrierung eines Namens ergebenden Umstände erachtete das Gericht als nicht so gravierend, daß dies bereits als Eingriff in Art. 8 angesehen werden könnte, zumal dem Bf. als Kompromiß angeboten worden war, den Namen Marie-Fleure anstatt Fleure de Marie zu verwenden, worauf er sich nicht eingelassen hatte. bb) Anspruch auf Achtung der Wohnung Zum Schutzbereich des Anspruches auf Achtung der Wohnung führte das Gericht aus, daß die Bedeutung des Begriffes „Wohnung" überdehnt würde, wenn das bloße Eigentum, auf welchem man ein Heim zu errichten gedenke, bereits als eine Wohnung i.S.d. Art. 8 anerkannt würde. Ebenso könne der Begriff „Wohnung" nicht dahingehend interpretiert werden, daß er auch das Gelände umfasse, auf dem man lediglich aufgewachsen sei, inzwischen aber nicht mehr lebe.167 Andererseits, so das Gericht im Fall Buckley , werde das Recht auf Wohnung auch dann durch Art. 8 geschützt, wenn die Wohnung unter Verletzung innerstaatlicher Gesetze erworben wurde. Zwar hatte die Bf. erst nachträglich um eine Genehmigung für die Aufstellung dreier Wohnwagen auf ihrem Grundstück, in denen sie mit ihrer Familie lebte, ersucht, welche ihr nicht erteilt worden war. Für die Eröffnung des 165 Urteüe Domenichini (Anm. 149), 1789 (1799), § 28; Calogero Diana gegen Italien vom 15. November 1996, Reports 1996-V, 1765 (1775), § 28. 166

Urteü Guillot (Anm. 9), 1593 (1603 f.), § 27.

167

Urteü Loizidou (Begründetheit)

35 G Y I L 4 0

(Anm. 13), 2216 (2238), § 66.

546

Marian Niestedt und Dominik Ziegenhahn

Schutzbereiches von Art. 8 genügte jedoch, daß die Bf. das Land erworben hatte, um sich dort niederzulassen, und auch bereits mehrere Jahre auf dem Grundstück gelebt hatte.168 Die Verweigerung einer Baugenehmigung, die Anordnung der Entfernung der Wohnwagen und die wegen der Nichtbefolgung verhängte Geldbuße stellten mithin einen Eingriff in Art. 8 dar. Das vorsätzliche Inbrandsetzen von Wohnungen durch staatliche Organe ist ein schwerer Eingriff sowohl in das Recht auf Achtung des Familienlebens als auch in das Recht auf Achtung der Wohnung dar. 169 cc) Anspruch auf Achtung des Familienlebens Zwei Urteile betrafen die Frage, ob in den Vertragsstaaten lebende Ausländer einen aus Art. 8 folgenden Anspruch darauf haben, daß ihre im Ausland gebliebenen Familienmitglieder nachziehen können. Zunächst war jeweils zu klären, ob eine den Anforderungen des Art. 8 genügende Familienbindung bestand. Im Fall Gül hatte der Bf. bei den Schweizer Behörden um Erlaubnis darum ersucht, daß sein minderjähriger Sohn zu ihm kommen könne. Er und seine Frau — beide türkische Staatsbürger — waren zu einem befristeten Aufenthalt in der Schweiz aus humanitären Gründen berechtigt. Das Gericht bejahte das Vorliegen einer familiären Bindung zum Sohn trotz der geographischen Distanz, da der Bf. seinen Sohn einige Male in der Türkei besucht hatte. Ein Familienleben i.S.d. Art. 8 war auch im Fall Ahmut gegeben.170 Fraglich war dagegen, ob die staatlichen Behörden durch die Ablehnung der Anträge in das Recht auf Achtung des Familienlebens aus Art. 8 eingegriffen hatten. Der Gerichtshof erinnerte daran, daß der Anspruch auf Achtung des Familienlebens auch positive Verpflichtungen des Staates umfassen könne. Dazu führte das Gericht im Fall Gül aus, daß das Ausmaß der Verpflichtung eines Staates, Verwandten von Einwanderern Nachzug zu gewähren, von den Umständen der betreffenden Person sowie dem Gemeinwohlinteresse abhänge. Art. 8 könne nicht dahingehend interpretiert werden, daß ein Staat generell verpflichtet sei, eine Familienzusammenführung auf seinem Gebiet zu autorisieren. 171 Das Gericht untersuchte, ob der Nachzug des jüngsten Sohnes in die Schweiz der einzige Weg war, das Familienleben mit dem Sohn aufrechtzuerhalten, und verneinte dies. Es begründete dies unter anderem damit, daß der Bf. die Trennung durch das Verlassen der Türkei selbst verursacht habe. Zudem hät168

Urteü Buckley (Anm. 12), 1271 (1287), § 54.

169

Urteü Akdivar u. a. (Anm. 13), 1192 (1215), § 88.

170

Urteü Ahmut gegen Niederlande vom 28. November 1996, Reports 1996-VI, 2017 (2041),

§45. 171

Urteü Gül gegen Schweiz vom 19. Februar 1996, Reports 1996-1, 159 (174 f.), § 38.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im fahre 1996

ten die Eltern zu ihrem Sohn in die Türkei zurückkehren können. Jedenfalls zeige die Tatsache, daß der Vater den Sohn mehrmals besucht hatte, daß die Gründe für das Verlassen der Türkei nicht mehr bestünden. Auch besäßen die Bf. nur eine Aufenthaltsgenehmigung aus humanitären Gründen, die zurückgenommen werden könne.172 Daher war die Schweiz ihren Verpflichtungen aus Art. 8 nachgekommen und ein Eingriff abzulehnen.173 Ebenso betonte das Gericht im Fall Ahmut> Art. 8 beinhalte nicht das Recht, den geeignetsten Ort für die Entwicklung des Familienlebens zu wählen. Der Bf. — gebürtiger Marokkaner — beantragte für seinen Sohn aus erster Ehe eine Aufenthaltsbewilligung in den Niederlanden. Auch hier stellte sich die Frage, ob die Niederlande ihren positiven Verpflichtungen nachgekommen waren. Die niederländischen Behörden nahmen eine Abwägung zwischen den Interessen der Bf. und dem Interesse der Niederlande an einer kontrollierten Einwanderung vor. Da der Kontakt des Vaters zur in Marokko lebenden Familie aufrechterhalten blieb, verneinte das Gericht auch hier einen Eingriff. Um die Frage, ob das Familienleben betroffen war, ging es auch in zwei Ausweisungsfällen. In beiden Fällen bestanden Zweifel an einer ausreichenden familiären Bindung im jeweiligen Aufenthaltsstaat. Das Gericht stellte heraus, daß das Familienleben auch dann die Beziehung zwischen Vater und Kind erfasse, wenn er nicht mehr mit der Mutter eines unehelich geborenen Kindes174 oder aber wegen des Verbüßens einer Haftstrafe nicht mehr mit dem Kind zusammenlebe, wie im Fall des Marokkaners C.175 Der Bf. Boughanemi hatte ein Kind aus einer Beziehung zu einer Französin nachträglich anerkannt und seine Eltern sowie Geschwister lebten in Frankreich, während im Fall des Bf. C. dieser für seinen Sohn das Sorgerecht besaß, so daß eine Familienbindung in beiden Fällen gegeben war. Eine solche könne aber nur unter außergewöhnlichen Umständen abgebrochen werden, betonte das Gericht. 176 Durch die Abschiebung bzw. Ausweisung der Bf. war daher in Art. 8 eingegriffen worden. 177 Im Fall von C., der seit seinem elften Lebensjahr in Belgien lebte, war auch in das Privatleben eingegriffen

172

Urteil Gül (Anm. 171), 159 (175 f.), § 42.

173

Urteil Gül (Anm. 171), 159 (176), § 43.

174

Urteil Boughanemi gegen Frankreich

vom 24. April 1996, Reports 1996-Π, 593 (607 f.),

§35. 175

Urteil C. gegen Belgien vom 7. August 1996, Reports 1996-ΙΠ, 915 (922 f.), § 25.

176

Urteile Gül (Anm. 171), 159 (173 f.), § 32; Boughanemi (Anm. 174), 593 (607 f.), § 35; C. (Anm. 175), 915 (922 f.), § 25. 177

3 *

Urteile Boughanemi (Anm. 174), 593 (608), § 35; C. (Anm. 175), 915 (923), § 25.

548

Marian Niestedt und Dominik Ziegenhahn

worden, da Art. 8 auch das Recht umfasse, Beziehungen, auch beruflicher oder geschäftlicher Natur, zu Mitmenschen bilden und entwickeln zu können.178 Im Fall Nsona ließ der EGMR offen, ob eine Familienbindung vorlag, verneinte jedoch einen Eingriff in Art. 8 durch die Abschiebung der Erstbeschwerdeführerin. 179 Diese besaß bei der Einreise in die Niederlande im Gegensatz zur Zweitbeschwerdeführerin weder ein Visum noch eine gültige Aufenthaltsgenehmigung, weshalb beide gegenüber den Einwanderungsbehörden bewußt falsche Angaben über ihr Verwandtschaftsverhältnis gemacht hatten, um die Einreise zu erreichen. Der Gerichtshof hob hervor, daß es den Bf. zuzumuten gewesen sei, dieses gegenüber den Behörden offenzulegen und daß den niederländischen Behörden kein Vorwurf gemacht werden könne, wenn sie später weitere unbewiesene Angaben zurückwiesen.180 Bezüglich einer Beschwerde gegen Norwegen wurde hingegen ein Eingriff in das Recht auf Achtung des Familienlebens bejaht.181 Nach dem Sohn war auf Anweisung eines Gesundheits- und Sozialausschusses auch die Tochter der Bf. in die öffentliche Fürsorge übernommen worden. Auf Empfehlung des Jugendamtes war der Bf. das Sorgerecht entzogen, die Tochter in einem Pflegeheim untergebracht und zur Adoption freigegeben worden. Schließlich waren der Bf. auch die verbliebenen elterlichen Rechte, wie bspw. das Recht, die Tochter zu besuchen, auf Dauer aberkannt worden. Mit der positiv-rechtlichen Dimension des Art. 8 setzte sich das Gericht auch im Fall Stubbings u. a. auseinander. Es stellte fest, daß sexueller Kindesmißbrauch in den Schutzbereich von Art. 8 falle, auch wenn sich der Achtungsanspruch eigentlich gegen willkürliche Eingriffe seitens staatlicher Behörden richte. Jedoch obliege dem Staat auch die Pflicht, durch entsprechende Maßnahmen die Achtung des Privatlebens zwischen Privatpersonen untereinander zu gewährleisten.182 Allerdings verlange Art. 8 nicht, daß der Staat dieser Verpflichtung durch unverjährbare Schadensersatzansprüche nachzukommen habe, wenn Delikte wie die Vergewaltung strafrechtlich bewährt seien, wie im untersuchten Fall. Der durch die britische Rechtsordnung gewährleistete Schutz war daher, unter Berücksichtigung des den Staaten in solchen Fällen eingeräumten Ermessensspielraumes, ausreichend, so daß Großbritannien nicht gegen Art. 8 verstoßen hatte.183

178

Urteü C. (Anm. 175), 915 (923), § 25.

179

Urteü Nsona (Anm. 25), 1979 (2007), § 114.

180

Urteü Nsona (Anm. 25), 1979 (2007), § 113.

181

Urteü Johansen (Anm. 109), 979 (1001 f.), § 52.

182

Urteü Stubbings u. a. (Anm. 121), 1487 (1505), § 62.

183

Urteü Stubbings u. a. (Anm. 121), 1487 (1505 f.), § 67.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

b) Das Recht der Gedanken-, Gewissens- und Religionsfreiheit — Art. 9 Abs. 1 Die bf. Töchter in den Fällen Valsamis und Efstratiou behaupteten, durch den auf die Disziplinarmaßnahmen zurückgehenden vorübergehenden Ausschluß vom Unterricht in ihrem Recht auf Religionsfreiheit verletzt worden zu sein. Das Gericht stellte fest, daß dem Recht auf Religionsfreiheit bereits dadurch genüge getan worden ist, daß die Bf. vom orthodoxen Religionsunterricht und von der Teilnahme am orthodoxen Gottesdienst befreit worden wären. Die Verpflichtung zur Teilnahme an einer Schulparade stelle hingegen noch keine Verletzung von Art. 9 dar. 184 Im Fall Manoussakis u. a machten die Kläger geltend, daß es bereits gesetzlich vorgeschrieben gewesen sei, den Zeugen Jehovahs die Errichtung eines Gotteshauses bzw. einer Kirche zu erlauben. Das Gericht befaßte sich jedoch nicht mit dieser generellen Frage, da Art. 9 bereits aus anderen Gründen einschlägig war. 185 Die Bestrafung dafür, das von den Bf. gemietete Gebäude ohne die gesetzlich vorgeschriebene Erlaubnis für religiöse Zwecke genutzt zu haben, stellte unbestritten einen Eingriff in ihre Religionfreiheit dar. c) Das Recht der freien Meinungsäußerung — Art. 10 Abs. 1 Im Fall Goodwin war dem Bf., einem Journalisten, durch gerichtlichen Beschluß aufgegeben worden, seine Informationsquelle offenzulegen. Als er sich weigerte, wurde ihm eine Geldstrafe auferlegt. Ein Informant hatte ihm Mitteilungen über die finanzielle Schwierigkeiten der Firma Tetra Ltd. gemacht, die sich aus einem streng vertraulichen Papier ergaben. Sowohl in dem Beschluß als auch in der Geldstrafe sah der Gerichtshof jeweils einen Eingriff in Art. 10.186 Ein anderer Fall betraf einen Antrag auf Bewilligung für den Vertrieb eines Videos, in dem auch die Vornahme sexueller Handlungen am Körper des gekreuzigten Jesu gezeigt werden sollte. Der Antrag wurde vom British Board of Film Classification abgelehnt, da das Video den Straftatbestand der Blasphemie erfülle. Auch hier lag ein Eingriff in das Recht auf freie Meinungsäußerung vor.'* 7

184

Urteüe Valsamis (Anm. 45), 2312 (2326), SS 37 f.; Efstratiou SS 38 f. 185 186

(Anm. 45), 2347 (2361),

Urteü Manoussakis u. a. (Anm. 37), 1346 (1362), S 38.

Urteü Goodwin gegen Vereinigtes (496), S 28.

Königreich vom 27. März 1996, Reports 1996-Π, 483

187 Urteü Wingrove gegen Vereinigtes Königreich vom 25. November 1996, Reports 1996-V, 1937 (1953), S 36.

550

Marian Niestedt und Dominik Ziegenhahn

d) Versammlungs- und Vereinigungsfreiheit — Art. 11 Abs. 1 Bereits die Anwendbarkeit des Art. 11 war im Fall Gustafsson, der aufgrund seiner Bedeutung von der Großen Kammer entschieden wurde, zweifelhaft. Der Bf., Inhaber eines Restaurants und einer Jugendherberge, war weder Mitglied in einem Arbeitgeberverband, noch bereit, ersatzweise eine Vereinbarung mit der Gewerkschaft der Hotel- und Restaurantangestellten (HRAF) zu schließen, die das zwischen Gewerkschaft und Arbeitgebern geschlossene kollektive Tarifabkommen umgesetzt hätte. Daraufhin wurde sein Restaurant „blockiert" und ein Boykott durch die HRAF erklärt, dem sich auch andere Gewerkschaften anschlossen mit der Folge, daß die Lieferungen an sein Restaurant eingestellt wurden. Deshalb ersuchte er die schwedische Regierung, darauf hinzuwirken, daß die Gewerkschaften ihre Boykottmaßnahmen einstellten. Die Regierung hielt sich indes nicht für autorisiert, über einen solchen Streit zwischen Privatrechtssubjekten zu urteilen. Diese Untätigkeit der Regierung war Gegenstand der Rüge des Bf. Das Gericht bejahte vorliegend mit elf zu acht Stimmen die Anwendbarkeit von Art. 11, da die Maßnahmen der Gewerkschaft darauf abzielten, ihn zur Mitgliedschaft in der Arbeitgebervereinigung zu zwingen oder dazu, sich am Kollektiwertragssystem zu beteiligen.188 Jedoch verneinte der Gerichtshof eine Verletzung, ohne explizit auf die Rechtfertigungsgründe des Abs. 2 einzugehen.189 Auf der einen Seite beinhalte Art. 11 für die Mitgliedstaaten auch die positive Verpflichtung, die negative Vereinigungsfreiheit zu gewährleisten. Auf der anderen Seite schütze Art. 11 auch die Wahrnehmung der Berufsinteressen der Gewerkschaftsmitglieder durch die Gewerkschaften, was auch durch den Abschluß von Kollektivverträgen geschehen könne.190 Da die negative Vereinigungsfreiheit des Bf. nicht in signifikanter Weise betroffen war und die Gewerkschaft angesichts der Bedeutung der Kollektivverträge ein legitimes Ziel verfolgte, bestand für den schwedischen Staat keine positive Verpflichtung, die Rechte des Bf. zu wahren. 191 2. Rechtfertigung der Eingriffe a) Gesetzlich vorgesehen Hinsichtlich des Merkmals „gesetzlich vorgesehen" unterstrich der Gerichtshof, die Norm müsse so hinreichend bestimmt sein, daß die betroffenen Personen in der Lage 188

Urteü Gustafsson (Anm. 79), 637 (652), § 44.

189

Urteü Gustafsson (Anm. 79), 637 (656), § 55.

190

Urteü Gustafsson (Anm. 79), 637 (652 f.), § 45.

191

Urteü Gustafsson (Anm. 79), 637 (655 f.), §§ 52 ff.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im ahre 1996

seien, die Folgen ihrer Handlungen in einem den Umständen entsprechenden, vernünftigen Ausmaß vorherzusehen. Diesem Erfordernis könne auch eine Ermessensnorm genügen, sofern der Ermessensumfang und die Art und Weise der Ermessensausübung unter Berücksichtigung des in Frage stehenden legitimen Zwecks hinreichend bestimmt definiert seien, so daß das Individuum vor willkürlichen Eingriffen ausreichend geschützt sei.192 In den Entscheidungen Calogero Diana und Domenichini sah der EGMR diese Voraussetzungen nicht als gegeben an.193 b) Legitimer Zweck Das Gericht erkannte an, daß ein Staat grundsätzlich ermächtigt sei, zu entscheiden, ob eine Bewegung oder Vereinigung in der Verfolgung religiöser Ziele ein Gefahr darstelle. Obwohl die Zeugen Jehovas nach griechischem Recht zu den anerkannten Religionsgemeinschaften gehören, entschied das Gericht aufgrund der besonderen Umstände des Falles, daß die Maßnahmen, die Nichterteilung der Genehmigung von Messen, ein legitimes Ziel gemäß Art. 9 Abs. 2 verfolgten, nämlich den Schutz der öffentlichen Ruhe und Ordnung. 194 Als legitimes Ziel wurden auch das wirtschaftliche Wohl des Landes, der Umweltschutz und das Recht des Staates auf Landschaftsplanung 195 ebenso wie der Schutz der religiösen Gefühle anderer gesehen.196 c) Notwendig in einer demokratischen Gesellschaft Ein Eingriff in die Freiheitsrechte der Konvention muß notwendig in einer demokratischen Gesellschaft, das heißt insbesondere gerechtfertigt durch ein dringendes gesellschaftliches Bedürfnis und verhältnismäßig zum verfolgten legitimen Ziel sein.197 Dabei kommt den Staaten diesbezüglich ein Beurteilungsspielraum zu,198 dessen Reichweite von den Umständen des Einzelfalles abhängt.199

192

Urteile Goodwin (Anm. 186), 483 (496 f.), § 31; Wingrove

(Anm. 187), 1937 (1954), § 40.

193

Urteile Calogero Diana (Anm. 165), 1765 (1776), § 33 ; Domenichini (Anm. 149), 1789 (1799 f.), § 33. 194

Urteil Manoussakis u. a. (Anm. 37), 1346 (1362), § 40.

195

Urteil Buckley (Anm. 12), 1271 (1289), §§ 62 f.

196

Urteil Wingrove

197

Urteile Boughanemi (Anm. 174), 593 (610), § 41; Wingrove (Anm. 187), 1937 (1956), § 53.

(Anm. 187), 1937 (1955), § 46.

198

Urteile Boughanemi (Anm. 174), 593 (610), § 41; Domenichini (Anm. 149), 1789 (1799), § 32; Wingrove (Anm. 187), 1937 (1956), § 53. 199

Urteile Johansen (Anm. 109), 979 (1003 f.), § 64; Buckley (Anm. 12), 1271 (1291 f.), § 74.

552

Marian Niestedt und Dominik Ziegenhahn

In zwei Fällen Art. 8 betreffend, in denen der Gerichtshof über die Rechtfertigung eines Eingriffs durch die Abschiebung von Ausländern zu entscheiden hatte, verneinte er eine Verletzung. 200 Im Rahmen der Abwägung führte das Gericht an, daß die jeweiligen Bf. sich nicht um die Staatsangehörigkeit des Aufenthaltsstaates bemüht hätten, beide vielmehr noch Bindungen zu ihrem Heimatstaat aufwiesen. Zudem hob das Gericht jeweils die Straffälligkeit der Bf. hervor. Im Fall Johansen maß der EGMR in seiner Urteilsfindung dem Kindeswohl entscheidende Bedeutung bei.201 Das Gericht kam zu dem Ergebnis, daß in der Entziehung des Sorgerechtes der Bf. für ihre Tochter und der temporären Aufrechterhaltung der Maßnahme keine Verletzung des Art. 8 lag, da sich beide insbesondere auch auf Sachverständigengutachten stützten.202 Eine strengere Untersuchung nahm das Gericht aber hinsichtlich der Folgemaßnahmen, der Entziehung der elterlichen Rechte und des Besuchsrechtes im Zusammenhang mit Unterbringung im Pflegeheim und der nachfolgenden Freigabe zur Adoption, vor. Da dadurch für die Bf. ein Familienleben mit dem Kind unmöglich wurde, sah das Gericht diese Maßnahmen als besonders schwerwiegend an, so daß besondere Anforderungen an eine Rechtfertigung zu stellen waren, 203 die vorliegend nicht gegeben waren. Mithin bejahte der EGMR eine Verletzung von Art. 8, zumal sich die materielle Lage der Bf. inzwischen gebessert hatte.204 Im Rahmen der Abwägung stand im Fall Buckley das Recht der Klägerin auf das Bewohnen ihrer Wohnwagen auf ihrem Land sowie auf die Fortsetzung ihrer Lebensweise dem öffentlichen Interesse an einer einheitlichen Raumplanungspolitik gegenüber. Das Gericht hob unter Anwendung der Prinzipien des Art. 8 Abs. 2 wertend hervor, daß der Bf. zum einen nur relativ niedrige Bußgelder auferlegt worden waren, vor allem aber, daß ihr zum anderen eine Wohnerlaubnis für ein in der Nähe liegendes Grundstück angeboten worden war. Aus diesen Gründen seien die Maßnahmen der Behörden als verhältnismäßig anzusehen und eine Verletzung von Art. 8 abzuleh205

nen. Im Fall Manoussakis u. a. versuchte die Regierung die strafrechtliche Verurteilung der Bf. damit zu rechtfertigen, daß sie ein Gebäude ohne Genehmigung des Bischofs und des zuständigen Ministers als Gotteshaus nutzten. Der Gerichtshof lehnte diese Begründung jedoch damit ab, daß über den Antrag der Bf. auf diese Genehmigung noch nicht entschieden worden war. Somit war die strafrechtliche Sanktion keine in 200

UrteÜe Boughanemi (Anm. 174), 593 (610), § 45; C. (Anm. 175), 915 (925), § 36.

201

Urteü Johansen (Anm. 109), 979 (1003), § 64, (1008 f.), § 78.

202

Urteü Johansen (Anm. 109), 979 (1006 f.), § 73.

203

Urteü Johansen (Anm. 109), 979 (1008 f.), § 78.

204

Urteü Johansen (Anm. 109), 979 (1010), § 84.

205

Urteü Buckley (Anm. 12), 1271 (1294), § 84.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

einer demokratischen Gesellschaft notwendige Maßnahme im Interesse der öffentlichen Sicherheit, sondern bloßes Beharren auf Formalitäten und daher nicht ange206

messen. Der EGMR erinnerte an die Bedeutung der Meinungsfreiheit als einer der wesentlichen Grundlagen einer demokratischen Gesellschaft 207 und hob diesbezüglich die besondere Bedeutung der Pressegarantien hervor. 208 Sofern die Vertrautheit der Informationsquellen für Journalisten, die für die Gewährleistung der Pressefreiheit grundlegend sei, eingeschränkt werde, müsse eine besonders sorgfältige Prüfung der Rechtfertigung vorgenommen werden.209 Angesichts der Tatsache, daß die Verbreitung der vertraulichen Informationen bereits durch die einstweilige Verfügung verhindert war, so daß die Interessen der Firma kaum gefährdet waren, stellte die Anordnung, Notizen über Telefongespräche herauszugeben, damit die Quelle ermittelt werden könne, eine weitergehende Einschränkung der Meinungsfreiheit dar. Da auch das Interesse der Firma an einem Vorgehen gegen den Informanten die Pressefreiheit nicht überwiegen könne, stellten sowohl die Anordnung als auch die Geldstrafe eine Verletzung von Art. 10 dar. 210 Keine Verletzung lag dagegen im Fall Wingrove vor, da im Falle des Inverkehrbringens des Videofilms strafrechtliche Tatbestände erfüllt worden wären, der Vertrieb die Empfindungen gläubiger Christen in signifikanter Weise hätte verletzen können und der Bf. sich geweigert hatte, die blasphemischen Sequenzen seines Videofilms herauszuschneiden oder zu ändern.211 VIII. Beschwerdemöglichkeit bei Verletzung der Rechte oder Freiheiten der Konvention — Art. 13 1. Anwendbarkeit Art. 13 stellt den allgemeinen Grundsatz der in Art. 6 speziell formulierten Rechtsweggarantie auf und findet in den Fällen Anwendung, in denen einem Individuum keine wirksame Beschwerdemöglichkeit vor den nationalen Gerichten eingeräumt wird. Entscheidend ist, daß Art. 13 nur insoweit eingreifen kann, als der Bf. tatsäch-

206

Urteil Manoussakis u. a. (Anm. 37), 1346 (1366), § 53.

207

Urteile Goodwin (Anm. 186), 483 (500), § 39; Wingrove

208

Urteil Goodwin (Anm. 186), 483 (500), § 39.

209

Urteil Goodwin (Anm. 186), 483 (500), § 40.

210

Urteil Goodwin (Anm. 186), 483 (502 f.), § 46.

211

Urteil Wingrove (Anm. 187), 1937 (1960), § 64.

(Anm. 187), 1937 (1956), § 52.

554

Marian Niestedt und Dominik Ziegenhahn

lieh in einer der durch die EMRK geschützten Rechtspositionen verletzt worden ist.212 Des weiteren stellte der EGMR erneut fest, daß Art. 13 einem Bf. kein Recht einräume, vor nationalen Gerichten Gesetze der Vertragsstaaten abstrakt auf ihre Vereinbarkeit mit der EMRK überprüfen zu lassen.213 2. Verletzung Da im Fall Aksoy ein Verstoß gegen Art. 3 festgestellt worden war, konnte das Gericht sich mit der Rüge einer Verletzung von Art. 13 auseinandersetzen.214 Es verwies dabei auf die fundamentale Bedeutung des Folterverbots und die besonders verletzliche Position von Folteropfern, weshalb im Fall der Folter durch Bedienstete eines Staates letzterer den Opfern eine wirksame Beschwerde zu ermöglichen habe. Dieser Grundsatz beinhalte zum einen, den Opfern eine entsprechende Entschädigung zu zahlen, sofern dies angemessen ist. Zum anderen seien auch die dafür nötigen Untersuchungsmechanismen zu schaffen, die zur Aufklärung der Tatsachen beitrugen und die Identifikation und Verurteilung der Verantwortlichen ermöglichten. Obwohl nach türkischem Recht Staatsanwälte verpflichtet sind, entsprechende Untersuchungen in Gang zu bringen, war dies trotz offensichtlicher Anhaltspunkte für eine Verletzung nicht geschehen. Daher führte das Verhalten des zur strafrechtlichen Untersuchung verpflichteten Hoheitsträgers der Sache nach zur Ineffektivität jedes anderen möglichen Rechtsmittels, so daß eine Verletzung von Art. 13 zu bejahen war. 215 Ebenso bejahte das Gericht im Fall Chahal eine Verletzung von Art. 13 i.V.m. Art. 3, weil die innerstaatlichen Instanzen die Behauptung des Bf., ihm drohe Folter und Mißhandlung bei Abschiebung in sein Herkunftsland, nicht in einer gesonderten Untersuchung gewürdigt, sondern diesen Einwand unter Hinweis auf die vom Bf. ausgehenden Bedrohung für die nationale Sicherheit abgewiesen hatten.216 In den Fällen Valsamis und Efstratiou stellte das Gericht eine Verletzung von Art. 13 i.V.m. Art. 9 und Art. 2 des 1. ZP fest, da es den Eltern der Bf. jeweils nicht möglich gewesen war, einen von der Schule als Disziplinarmaßnahme verfügten Schulausschluß durch ein Verwaltungsgericht überprüfen zu lassen. Die Feststellung 212 Urteüe Gustafsson (Anm. 79), 637 (660), § 70; Putz (Anm. 86), 312 (327), § 41; Aksoy (Anm. 13), 2260 (2286), § 95; Valsamis (Anm. 45), 2312 (2327), § 49; Efstratiou (Anm. 45), 2347 (2362), § 50. 213

UrteÜ Gustafsson (Anm. 79), 637 (660), § 70; vgl. auch James u. a. gegen Vereinigtes Königreich vom 21. Februar 1986, Serres A, no. 98, 1 (47), § 84. 214

Urteü Aksoy (Anm. 13), 2260 (2287), § 98.

215

UrteÜ Aksoy (Anm. 13), 2260 (2287), § 100.

216

Urteü Chahal (Anm. 44), 1831 (1871), § 153.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im ahre 1996

der Rechtswidrigkeit wäre jedoch die Basis für entsprechende zivilrechtliche Entschädigungsansprüche gewesen, weshalb den Bf. somit kein wirksames Rechtsmittel zur Verfügung gestanden hatte.217 Daß im italienischen Recht kein effektives Rechtsmittel gegen die richterliche Anordnung der Überwachung der Gefangenenkorrespondenz existiere, wurde von den Bf. Calogero Diana und Domenichini gerügt.218 Der EGMR führt aus, daß die bloße Möglichkeit, sich direkt an den Richter wenden zu können, nicht als ein den Anforderungen des Art. 13 genügendes Rechtsmittel anerkannt werden könne, da dies nur darauf hinausliefe, daß der Richter seine eigene Entscheidung überprüfe. Da der richterlichen Anordnung auch kein Rechtscharakter zukäme und das italienische Recht auch sonst über keinerlei Rechtsmittel gegen derartige Anordnungen verfüge, sei in den vorliegenden Fällen eine Verletzung von Art. 13 zu bejahen.219 In zwei anderen Fällen wies der EGMR die Prüfung einer möglichen Verletzung von Art. 13 deshalb zurück, weil bereits eine Verletzung des strengere Voraussetzungen enthaltenden Art. 6 Abs. 1 bejaht worden war. 220 IX. Verletzung von Art. 25 Einen Verstoß gegen Art. 25 hatte der Gerichtshof im Fall Akdivar u. a. zu prüfen. Wie die Kommission dem EGMR berichtete, hatten türkische Behörden sich an die Bf. und an andere Personen gewandt, um sich über deren Petitionen im Rahmen der EMRK zu erkundigen. Dabei seien ihnen ohne Beisein rechtlicher Vertreter Erklärungen zur Unterschrift vorgelegt worden, die die Rücknahme ihrer Beschwerden vor der Kommission zum Inhalt hatten. Im Fall zweier Personen war dies sogar gefilmt worden. Der Gerichtshof schloß sich der Auffassung der Kommission für Menschenrechte an, nach der das Verhalten der türkischen Behörden eine Verletzung von Art. 25 darstelle, ungeachtet der Tatsache, daß es letzteren nicht gelang, die Rücknahme der Beschwerden zu erzwingen. Er stellte mit Nachdruck heraus, daß die EMRK Individuen garantiere, nicht von staatlichen Behörden derart unter Druck gesetzt werden zu können, daß sie ihre Beschwerden zurücknehmen oder abändern. Es sei jedoch als „Realität im Südosten der Türkei" zu werten, daß die Bürger staatliche Repressalien durch staatliche Organe zu befürchten haben, wobei im vorliegenden 217 Urteile Valsamis (Anm. 45), 2312 (2327), §§ 48 f.; Efstratiou SS 49 f.

(Anm. 45), 2347 (2362),

218

Urteile Calogero Diana (Anm. 165), 1765 (1776 f.), S 39; Domenichini (Anm. 149), 1789 (1801), S 40. 219

Urteile Calogero Diana (Anm. 165), 1765 (1777), S 41; Domenichini (Anm. 149), 1789 (1801 f.), S 42. 220

Urteile Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1110), S 64; Terra (Anm. 10), 2105 (2123), % 55.

Woningen E.V.

556

Marian Niestedt und Dominik Ziegenhahn

Fall das Verhalten der türkischen Behörden das Ausmaß eines illegalen und nicht zu akzeptierenden Drucks auf die bf. Individuen angenommen hatte.221 Die Klagevertreter des getöteten Bf. machten im Fall Aksoy geltend, daß dessen Tod in unmittelbarem Zusammenhang mit seiner Beschwerde bei der Kommission für Menschenrechte stünde. Sie brachten vor, daß er bereits früher telephonisch bedroht worden sei, um die Rücknahme seiner Beschwerde zu erreichen. Da der Kommission ein Beweis dieser Behauptung nicht gelang, mußte das Gericht eine Verletzung von Art. 25 ausschließen.222 X. Die Eigentumsgarantie — Art. 1 des 1. ZP Einen weiteren Schwerpunkt in der Rechtsprechungstätigkeit des EGMR stellte der Eigentumsschutz gem. Art. 1 des 1. ZP dar. 1. Anwendbarkeit Während im Fall Gaygusuz eine mögliche Verletzung von Art. 1 des 1. ZP bereits im Rahmen von Art. 14 bejaht wurde, 223 war die eigenständige Prüfung von Art. 1 des 1. ZP im Fall DiPede aufgrund der Umstände des Falles und der Entscheidung des Gerichts hinsichtlich Art. 6 Abs. 1 für nicht notwendig erachtet worden. 224 2. Schutzbereich Nach ständiger Rechtsprechung des EGMR enthält die Eigentumsgarantie des Art. 1 des 1. ZP drei verschiedene Regeln, wobei Art. 1 Abs. 1 Satz 1 den allgemeinen Grundsatz des Eigentumsschutzes aufstellt und die Vertragsstaaten generell zur Achtung des Eigentums verpflichtet. 225 Art. 1 Abs. 1 Satz 2, der vor formaler und faktischer Eigentumsentziehung schützt, und Art. 1 Abs. 2, der Schutz vor Eigentumsnutzungsregelungen bietet, ergänzen den allgemeinen Grundsatz des Eigentumsschutzes um spezielle Regelungen. Diese allgemeine Eigentumsgarantie entfaltet zweierlei Wirkung: zum einen sind die speziellen Regelungen stets im Lichte dieser

221

UrteÜ Akdivar u. a. (Anm. 13), 1192 (1219), § 105.

222

Urteü Aksoy (Anm. 13), 2260 (2288), § 106.

223

Urteü Gaygusuz (Anm. 76), 1129 (1142 f.), §§ 42 ff.

224

Urteü Di Pede (Anm. 42), 1376 (1386), § 35.

225

Urteüe Phocas (Anm. 14), 519 (541 f.), § 51; Gustafsson (Anm. 79), 637 (658), § 60; siehe bereits Sporrong und Lönnroth vom 23. September 1982, Series A, no. 52, 1 (24), § 61.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im ahre 1996

Garantie auszulegen226 und zum anderen stellt sie eine Art Auffangtatbestand für jene Fälle der Mißachtung des Eigentums dar, die nicht von den beiden spezielleren Regeln erfaßt werden.227 Das Gericht bestätigte seine Rechtsprechung vom Vorjahr, nach der unter Eigentum i.S.d. Art. 1 des 1. ZP nicht nur das Volleigentum an körperlichen Gegenständen zu verstehen ist,228 sondern daß auch der durch die Zusammenlegung von Agrarland entstehende Schaden, namentlich der erlittene Ertragsverlust, vom Schutzbereich der Eigentumsgarantie erfaßt sei.229 Der EGMR stellte klar, daß er grundsätzlich nicht zuständig sei, darüber zu entscheiden, ob einem Bf. ein Eigentumsrecht nach nationalem Recht zustehe oder nicht. Dennoch habe das „Eigentum" i.S.d. Art. 1 des 1. ZP unabhängig von einer bestreitbaren Zuordnung im Rahmen der nationalen Rechtsordnung eine eigenständige Bedeutung. Daher war im Fall Matos e Silva, Lda. u. a. darauf abzustellen, daß das Recht der Bf. auf das umstrittene Land seit über einem Jahrhundert unangefochten war, so daß dieses wie auch die Erträge, die sie durch die landwirtschaftlichen Nutzungen gezogen hatten, als „Eigentum" im Sinne des ZP zu qualifizieren seien.230 In einem anderen Fall hatte das Gericht darüber zu entscheiden, ob die den nördlichen Teil von Zypern besetzt haltende Türkei überhaupt für die mögliche Verletzung des Eigentums der Bf. verantwortlich zu machen sei. Unabhängig von der Frage, ob die Türkei eine effektive Kontrolle über die Tätigkeiten der türkischen Autoritäten in Nordzypern gehabt habe oder ob die Besetzung Zypern rechtmäßig gewesen sei, stellte das Gericht heraus, daß die Türkei bereits zu einem früheren Zeitpunkt des Verfahrens zugestanden hatte, die Bf. sei durch die Besetzung und die Ausrufung der Republik „Türkisch Zypern" enteignet worden. Da die Türkei auch im weiteren nicht abgestritten habe, dem Bf. mehrmals den Zugang zu ihrem Territorium verweigert zu haben, sei ihr eine entsprechende Eigentumsverletzung auch zuzurechnen.231 Nicht in den Schutzbereich von Art. 1 des 1. ZP hingegen fallen dem Staat nicht zurechenbare Streitigkeiten über rein vertragliche Beziehungen zwischen Privat226

UrteÜe Phocas (Anm. 14), 519 (541 f.), § 51; Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1114), § 85. 227

Urteü Gustafsson (Anm. 79), 637 (657), § 59.

228

UrteÜe Gasus Dosier- und Fördertechnik GmbH gegen Niederlande vom 23. Februar 1995, Serres A, no. 306-B, 23 (46), § 53; Pressos Compania Naviera S.A. u. a. gegen Belgien vom 20. November 1995, Serres A, no. 332, 1 (21), § 31. 229

Urteü Prötsch gegen Österreich vom 15. November 1996, Reports 1996-V, 1812 (1824),

§42. 230

Urteü Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1111), § 75.

231

Urteü Loizidou (Begründetheit)

(Anm. 13), 2216 (2236), § 57.

558

Marian Niestedt und Dominik Ziegenhahn

rechtssubjekten, so daß im Fall Gustafsson der Boykottaufruf der Gewerkschaft bezüglich des Restaurants des Bf. nicht vom Schutzbereich der Eigentumsgarantie erfaßt

3. Eingriff Ein Eingriff liegt beispielsweise dann vor, wenn Grundstücksinhaber zur Ermöglichung eines großen Straßenbauvorhabens enteignet werden.233 Auch das Niederbrennen von Wohnhäusern stellt einen schwerwiegenden Eingriff in das Recht auf die friedvolle Nutzung des Eigentums dar. 234 Schließlich sei ein Eigentumseingriff auch dann zu bejahen, wenn ein Grundstücksinhaber mangels Wirksamkeit einer Enteignungsverfügung zwar rechtlich gesehen Eigentümer bleibe, effektiv jedoch alle Kontrolle über das Eigentum sowie auch die Möglichkeit, es zu nutzen, verloren habe.235 Selbst dann, wenn die Bf. trotz einer angefochtenen Enteignungsanweisung ihr Land zwar noch bearbeiten und nutzen können, aber ihre Eigentümerpositionen insoweit substantiell verkürzt sind, als daß die bf. Eigentümer nur noch beschränkt über die Grundstücke verfügen können und deren Wert erheblich vermindert wird, ist ein Eingriff in das Eigentum zu bejahen.236 4. Rechtfertigung der Eingriffe a) Rechtfertigung einer Eigentumsentziehung i.S.v. Art. 1 Abs. 1 Satz 2 Ein Eingriff in Art. 1 Abs. 1 Satz 2 ist nur dann gerechtfertigt, wenn ein fairer Ausgleich zwischen den Bedürfnissen des Allgemeinwohls und den Grundrechten der betroffen Individuen geschaffen wird. 237 Dies ist bei einer auf Enteignung beruhenden Eigentumsentziehung jedenfalls dann zu verneinen, wenn die Bf. keine volle Entschädigung für den Verlust ihrer Besitztümer erlangen.238

232 233

Urteil Gustafsson (Anm. 79), 637 (658), § 60.

Urteile Katikaridis (1714), § 36.

u. a. (Anm. 32), 1673 (1688), § 45; Tsomtsos u. a. (Anm. 37), 1699

234

Urteil Akdivar u. a. (Anm. 13), 1192 (1215 f.), § 88.

235

Urteil Loizidou (Begründetheit)

236

Urteil Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1112 f.), § 79.

(Anm. 13), 2216 (2237), § 63.

237 Urteile Zuhani gegen Italien vom 7. August 1996, Reports 1996-IV, 1067 (1078), § 50; Phocas (Anm. 14), 519 (542), § 53; Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1114), § 86; siehe bereits Sporrong und Lönnroth (Anm. 225), 1 (26), § 69. 238

Urteile Zuhani (Anm. 237), 1067 (1078), § 50; Katikaridis § 51; Tsomtsos u. a. (Anm. 37), 1699 (1716), § 42.

u. a. (Anm. 32), 1673 (1689),

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im ahre 1996

So wurde im Fall Katikaridis u. a. die ein Straßenbauvorhaben ermöglichende Enteignung deshalb als eine Verletzung von Art. 1 Abs. 1 Satz 1 angesehen, weil das relevante griechische Recht die unwiderlegliche Vermutung aufstellte, daß die aus der Enteignung entstehenden Schäden durch die Vorteile hinsichtlich der verbesserten Infrastruktur vollkommen aufgewogen würden. Grundsätzlich erkannte der EGMR zwar die Möglichkeit an, die aus einer Enteignung resultierenden Nachteile mit etwaigen Vorteilen aufzurechnen, jedoch berücksichtige die Vermutungsregel die besonderen Umstände des Einzelfalls nicht ausreichend.239 Da es sich im vorliegenden Fall um eine kreuzungsfreie Hochstraße handelte, zu welcher die Bf. überhaupt keinen direkten Zugang hatten, sondern vielmehr gezwungen wurden, auf eine Nebenstraße auszuweichen, habe die die Enteignung rechtfertigende Baumaßnahme den Bf. keineswegs die vermuteten Vorteile gebracht. Vielmehr ist der Wert ihrer Besitztümer erheblich herabgesetzt worden, so daß mangels entsprechender Entschädigung die Enteignung nicht allein mit dem Allgemeinwohlinteresse gerechtfertigt werden konnte.240 Auch in dem ähnlich gelagerten Fall Tsomtsos u. a,., der sich insoweit vom vorhergehenden unterschied, als es bei den Enteignungen um kultivierbare Nutzflächen mit der Möglichkeit der Bebauung ging, stellte das Gericht fest, daß die entsprechende gesetzliche Regelung mit ihrer unwiderlegbaren Vermutung, daß die Enteignung durch die neugeschaffenen Nutzungsmöglichkeiten der Straße kompensiert würde, zu unflexibel sei und ohne sachliche Rechtfertigung die Eigentümerinteressen des Klägers verletze.241 Demgegenüber bejahte das Gericht eine Verletzung von Art. 1 des 1. ZP in zwei anderen Fällen deshalb, weil die verantwortliche türkische Regierung keinerlei rechtfertigende Gründe vorbrachte, sondern eine Beteiligung an den Eingriffen schlichtweg bestritt, 242 oder gar nicht erst versuchte, ihre Eingriffe zu rechtfertigen, 243 und auch das Gericht keine rechtfertigenden Gründe finden konnte. Im Fall Matos e Silva, Lda. u. a. prüfte das Gericht zunächst, ob die Eingriffe in das Eigentum der Bf. am Maßstab des Art. 1 Abs. 1 Satz 2 zu beurteilen seien, verneinte jedoch eine formale oder faktische Eigentumsentziehung, da die Bf. trotz einer nicht rechtskräftigen Enteignungsanweisung noch in der Lage gewesen seien, ihr Land zu bearbeiten und zu nutzen. Der Schaden, der aus der eingeschränkten Verfügungsbefugnis über ihren Grund und Boden einerseits und der Anfechtung der Enteignungsanweisung andererseits entstanden sei, habe zwar die Eigentümerposition der Bf. sub239

UrteÜ Katikaridis

u. a. (Anm. 32), 1673 (1688), § 49.

240

Urteü Katikaridis

u. a. (Anm. 32), 1673 (1688), §§ 50 f.

241

Urteü Tsomtsos u. a. (Anm. 37), 1699 (1716), § 42.

242

UrteÜ Akdivar u. a. (Anm. 13), 1192 (1215), § 88.

243

Urteü Loizidou (Begründetheit)

(Anm. 13), 2216 (2237 f.), § 64.

560

Marian Niestedt und Dominik Ziegenhahn

stantiell verkürzt, sie ihnen aber nicht gänzlich entzogen.244 Auch sei die Eigentümerposition nicht irreversibel beeinträchtigt, weshalb das Gericht zwar die Anwendbarkeit von Art. 1 Abs. 1 Satz 2 ablehnte, aber schlußfolgerte, daß zur Rechtfertigung der verschiedenen das Eigentum betreffenden Maßnahmen auf Art. 1 Abs. 2 zurückzugreifen sei. Die Maßnahmen seien im Lichte des allgemeinen Grundsatzes des ersten Satzes von Art. 1 Abs. 1 zu bewerten.245 c) Rechtfertigung eines Eingriffs in die allgemeine Eigentumsgarantie des Art. 1 Abs. 1 Satz 1 Ein Eingriff in Art. 1 Abs. 1 Satz 1 ist dann gerechtfertigt, wenn die Bedürfnisse des Allgemeinwohls in einer Gesellschaft Vorrang vor den schützensweiten Individualinteressen des einzelnen haben.246 Der Zweck der angestrebten Enteignung, der im Fall Matos e Silva, Lda. u. a. darin bestand, ein Naturschutzgebiet auf einem Teil der Grundstücke der Bf. zu errichten, entsprach durchaus dem Allgemeinwohlinteresse.247 Es waren jedoch die Umstände der geplanten Errichtung dieses Naturschutzgebietes, die die Bf. ernsthaft und schwer in ihrem Recht auf Nutzung ihres Eigentums verletzten. Indem sich die Verfahren über 13 Jahre hinzogen, wurden sie bezüglich der Zukunft ihres Landes und der Möglichkeit einer entsprechenden Entschädigung über einen derart langen Zeitraum im Unsicheren belassen, daß die nachteiligen Effekte der angefochtenen Maßnahmen weiter verschlimmert wurden. So hatten die Bf. im Ergebnis eine unverhältnismäßige Last bezüglich ihrer Eigentumsrechte zu tragen, die nicht mehr im Verhältnis zu dem öffentlichen Interesse der Enteignung stand. Daher entschied der EGMR zugunsten der Bf., daß der Eingriff unverhältnismäßig war und Art. 1 Abs. 1 Satz 1 des 1. ZP verletzte.248 Im Fall Prötsch machten die Bf. geltend, daß die Grundabfindungen für die Zusammenlegung ihrer Grundstücke nicht den damit verbundenen Ertragsverlust ausglichen.249 Mithin hatte der Gerichtshof festzustellen, ob dieser Eingriff durch das öffentliche Interesse gerechtfertigt und verhältnismäßig war. Das öffentliche Interesse bestand in der Verbesserung der ländlichen Infrastruktur. Da die den Bf. neu zuge244

Urteü Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1114), § 85.

245

Urteü Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1114), § 84.

246

Urteüe Phocas (Anm. 14), 519 (542), § 53; Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1114), § 86; Prötsch (Anm. 229), 1812 (1824), § 43; siehe schon Sporrong und Lönnroth (Anm. 225), 1 (26), § 69. 247

Urteü Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1114), § 87 - 88.

248

UrteÜ Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1115), § 93.

249

Urteü Prötsch (Anm. 229), 1812 (1822), § 34.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1996

wiesenen Parzellen nahezu gleichviel wert waren wie die alten und auch deren landwirtschaftliche Erträge zumindest als ebenso gut einzustufen waren, hielt der EGMR den Eingriff in das Eigentum im Verhältnis zum öffentlichen Interesse für verhältnismäßig.250 Im Urteil Phocas war Gegenstand der Prüfung von Art. 1 des 1. ZP die Frage, ob die Länge und die Art der Durchführung der staatlichen Enteignungsmaßnahmen die Rechte des Bf. verletzt hatten. Das Gericht stellte fest, daß auch ein Stadtentwicklungsplan grundsätzlich im Interesse des Allgemeinwohls stehen kann und daß den zuständigen Behörden diesbezüglich ein weiter Ermessensspielraum zustehe.251 Nach Ansicht des Gerichtes waren auch die Individualinteressen des Bf. ausreichend beachtet worden, weil dem Bf. im Laufe des Verfahrens wirksame Rechtschutzmöglichkeiten zur Verfügung standen, die er wegen Fristablaufs ungenutzt verstreichen ließ, und er zudem ein Kaufangebot der zuständigen Behörden abgelehnt hatte.252 XI. Die Achtung des Erziehungsrechtes der Eltern — Art. 2 des 1. Zusatzprotokolls Das Gericht mißbilligte in den Fällen Valsamis und Efstratiou die Tatsache, daß Schüler unter Androhung eines Schulverbotes gezwungen werden, an einer Schulparade teilzunehmen. Die alljährliche Schulparade zu Ehren des griechischen Nationalfeiertags diene aber der Huldigung demokratischer Werte wie Freiheit und Menschenrechte, und nicht etwa der Kriegsverherrlichung, so daß das Gericht keinen Zusammenhang zwischen der Teilnahmeverpflichtung und den in Art. 2 des 1. ZP geschützten Rechten der Eltern herstellen konnte. Im übrigen beraube die Teilnahmeverpflichtung der Schüler deren Eltern auch nicht ihres Rechtes, die Erziehung entsprechend ihren eigenen religiösen und weltanschaulichen Uberzeugungen zu gestalten. Die Disziplinarmaßnahme hatte somit nicht ausschließlich Erziehungscharakter, war von begrenzter Dauer und konnte demzufolge nicht als Verletzung von Art. 2 des 1. ZP gewertet werden.253 XII. Das Diskriminierungsverbot — Art. 14 Im Fall Buckley stellte der Gerichtshof bereits keine Diskriminierung fest. Es war nicht ersichtlich, daß die Bf. wegen ihrer Lebensweise als Zigeunerin bestraft oder

250

Urteü Prötsch (Anm. 229), 1812 (1826), § 48.

251

Urteü Phocas (Anm. 14), 519 (544), § 55

252

Urteü Phocas (Anm. 14), 519 (544 f.), § 60.

253

UrteÜe Valsamis (Anm. 45), 2312 (2325), § 33; Efstratiou

36 G Y I L 40

(Anm. 45), 2347 (2360), § 34.

562

Marian Niestedt und Dominik Ziegenhahn

sonstwie benachteiligt worden sei. Vielmehr habe die staatliche Politik zum Ziel, den Zigeunern eine ihren Bedürfnissen entsprechende Lebensweise zu erlauben.254 In einigen Fällen hatte sich der Gerichtshof mit der Frage auseinanderzusetzen, ob die in Frage stehende staatliche Maßnahme gerechtfertigt war. Dabei erinnerte das Gericht an seine ständige Rechtsprechung, wonach eine unterschiedliche Behandlung dann diskriminierend i.S.v. Art. 14 sei, wenn sie nicht objektiv und sachlich gerechtfertigt sei, d. h. kein legitimes Ziel verfolge und unverhältnismäßig sei.255 Art. 14 spielt keine eigenständige Rolle, sondern ist immer in Zusammenhang mit anderen Normen der EMRK und der Zusatzprotokolle zu sehen.256 So war im Fall Gaygusuz zu prüfen, ob im Hinblick auf die allgemeine Eigentumsgarantie des Art. 1 des 1. ZP eine verbotene Ungleichbehandlung darin zu sehen war, daß dem Bf. die beantragte Arbeitslosenhilfe allein aufgrund der fehlenden österreichischen Staatsbürgerschaft verweigert wurde, während er ansonsten aber alle gesetzlichen Voraussetzungen erfüllte. Da er überdies auch die Beiträge an den Arbeitslosenversicherungsfonds gezahlt hatte, konnte das Gericht keine objektiven und vernünftigen Gründe für die Ungleichbehandlung von Österreichern und NichtÖsterreichern erkennen, so daß Art. 14 i.V.m. Art. 1 des 1. ZP als verletzt anzusehen war. 257 Im Fall Stubbings u. a. fehlte es nach Ansicht des Gerichts bereits an der Vergleichbarkeit zu anderen Personengruppen. Die Opfer vorsätzlicher Schädigungen befänden sich gegenüber Opfern von fahrlässigen Schädigungen, für die eine längere Verjährungsfrist galt, nicht in einer vergleichbaren Situation. Das Gericht erkannte an, daß die Vertragsstaaten einen gewissen Gestaltungsspielraum besitzen, um unterschiedliche Sachverhalte als nicht vergleichbar einzustufen und entsprechend anders zu regeln. Selbst wenn man jedoch eine Vergleichbarkeit annehmen wollte, sei die Ungleichbehandlung sachlich gerechtfertigt, da dem Opfer einer vorsätzlichen Schädigung die Möglichkeit einer Schadensersatzklage offenkundiger sein dürfte als einem Opfer fahrlässiger Schädigung. Demzufolge verneinte der EGMR eine Verletzung von Art. 14 i.V.m. Art. 8 und/oder Art. 6 Abs. I. 2 5 8 Ebenso prüfte der Gerichtshof eine Ungleichbehandlung zwischen Staatsangehörigen von Mitgliedstaaten der Europäischen Union und Bürgern anderer Staaten auf dessen Rechtmäßigkeit. Ihm lag die Frage vor, ob es eine Diskriminierung darstelle, wenn Straftäter aus der Europäischen Union im Gegensatz zu anderen Straftätern 254

Urteü Buckley (Anm. 12), 1271 (1296), § 89.

255

Urteüe Gaygusuz (Anm. 76), 1129 (1142), § 42; Stubbings u. a. (Anm. 121), 1487 (1507), § 72; siehe bereits das Urteü "relating to certain aspects of the laws on the use of languages in education in Belgium" (Begründetheit) vom 23. Juli 1968, Series A, no. 6, 1 (34 f.), § 10. 256

Urteü Gaygusuz (Anm. 76), 1129 (1141), § 36.

257

Urteü Gaygusuz (Anm. 76), 1129 (1143), § 52.

258

UrteÜ Stubbings u. a. (Anm. 121), 1487 (1508), § 75.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im fahre 1996

nicht aus Belgien abgeschoben würden. Die Straßburger Richter sahen aber eine bevorzugte Behandlung von Bürgern aus der Europäischen Union als gerechtfertigt an, da die Mitgliedstaaten der Europäischen Union ein eigenes Rechtssystems formten, das zudem eine Unionsbürgerschaft geschaffen habe.259 XIII. Angemessene Entschädigung — Art. 50 In der Mehrzahl der Entscheidungen äußerte sich der Gerichtshof auch zur Frage einer angemessenen Entschädigung der Opfer von Konventionsverletzungen i.S.d. Art. 50, wobei sich ein Urteil ausschließlich mit der Bestimmung der Höhe einer angemessenen Entschädigung befaßte. 260 In einigen Fällen wurde die Entscheidung über einen Antrag auf Entschädigung i.S.v. Art. 50 entweder gem. § 54 Abs. 1 und 4 VerfO-A 261 oder gem. § 56 Abs. 1 und 4 VerfO-B 262 verschoben, um den nationalen Gerichten und Behörden selbst die Möglichkeit zu geben, mit dem Bf. zu einer gütlichen Einigung zu kommen. 1. Allgemeines Eine Entschädigung nach Art. 50 kommt gem. Art. 50 Abs. 1 VerfO-A nur dann in Betracht, wenn der Bf. einen entsprechenden Antrag in seinem Klageschriftsatz oder aber in einem anderen separaten Schriftsatz bis spätestens einen Monat vor dem Termin der mündlichen Verhandlung eingereicht hat.263 Wenn er diesen Antrag während der Verhandlung wieder zurückzieht, weil nationale Behörden inzwischen eine Ausgleichszahlung vorgenommen haben, braucht das Gericht sich unabhängig von der Billigkeit dieser Kompensation auch nicht mehr mit Art. 50 auseinanderzuset264

zen. Zweimal hatte der EGMR über die Löschung von Verfahren im Gerichtsregister gem. Art. 49 VerfO-A zu entscheiden: So ging es im Fall Vogt um die Zubilligung einer Entschädigung i.S.v. Art. 50, nachdem Deutschland bereits mit dem Urteil vom 26. September 1995 wegen eines Verstoßes gegen Art. 10 und 11 der Konvention ver-

259

Urteil C. (Anm. 175), 915 (925), § 38.

260

Urteil Welch (Art. 50) (Anm. 4), 386 ff., §§ 1 ff.

261

Urteile Akdivar u. a. (Anm. 13), 1192 (1220), § 112; Katikaridis u. a. (Anm. 32), 1673 (1690), § 56; Tsomtsos u. a. (Anm. 37), 1699 (1717), § 47; Loizidou (Begründetheit) (Anm. 13), 2216 (2239), § 69. 262

36*

Urteil Zuhani (Anm. 237), 1067 (1079), § 53.

263

Urteil Gaygusuz (Anm. 76), 1129 (1145), § 65.

264

Urteile Botten (Anm. 92), 123 (146), § 55; Johansen (Anm. 109), 979 (1011 f.), § 93.

564

Marian Niestedt und Dominik Ziegenhahn

urteilt worden war. 265 Der Gerichtshof stellte nunmehr abschließend fest, daß es inzwischen zu einer gütlichen Einigung bezüglich der ursprünglich geltend gemachten Entschädigung gem. Art. 50 zwischen dem Bf. und Deutschland gekommen war, die der Gerichtshof auch als gerecht i.S.v. § 54 Abs. 4 VerfO-A erachtete. Folglich konnte dieser Fall als abgeschlossen betrachtet werden und gem. Art. 49 VerfO-A aus dem Verfahrensregister gelöscht werden.266 Ebenso war dank einer gütlichen Einigung zwischen dem Bf. im Fall Fouquet, der einen Verstoß gegen Art. 6 Abs. 1 durch die Cour de cassation gerügt hatte, und der Französischen Regierung der Fall gem. § 49 Abs. 2 und 4 VerfO-A aus dem Register zu streichen.267 Im Fall Zubani hielt das Gericht die von dem Bf. vorgebrachten Informationen nicht für ausreichend, um zu einer Entscheidung über einen materiellen oder immateriellen Schaden gelangen zu können. Daher lehnte es gem. § 56 Abs. 1 und 4 VerfO-B eine positive Entscheidung ab und verwies den Bf. zwecks einer Aufklärung und Einigung an den Vertragsstaat zurück. 268 Wiederholt mußte der Gerichtshof darauf hinweisen, daß er über die Feststellung einer Schädigung i.S.d. Art. 50 und gegebenenfalls der Festsetzung einer entsprechenden Entschädigung hinaus nicht dafür zuständig ist, bestimmte Empfehlungen an die Vertragsstaaten auszusprechen.269 Ebenso liegt es nicht in der Zuständigkeit des Gerichtshofes, einen Konventionsstaat zu einem Wiederaufnahmeverfahren bei einem Schwurgericht zu veranlassen oder zumindest die Herabsetzung einer lebenslangen Freiheitsstrafe auf 15 Jahre zu erwirken. 270 2. Materieller Schaden Hinsichtlich des Ersatzes eines materiellen Schadens stellten die Straßburger Richter fest, daß Art. 50 zwar grundsätzlich auch dann Anwendung findet, wenn eine Konventionsverletzung unmittelbar bevorsteht. Allerdings lehnten sie den Ersatz eines materiellen Schadens im Fall Ahmed ab, da sie keine unmittelbare Verknüpfung zwischen dem geltend gemachten Schaden und den Feststellungen zu Art. 3 erkennen konnten.271 265

Urteü Vogt gegen Deutschland vom 26. September 1995, Series A, no. 323, 1 (30), § 61, (31), §68. 266

Urteü Vogt (Art. 50) (Anm. 3), 1086 (1091), § 10.

267

Urteü Fouquet (Anm. 3), 19 (25), § 17.

268

Urteü Zubani (Anm. 237), 1067 (1079), § 53.

269

Urteüe Vacher (Anm. 11), 2138 (2150), § 36; Duclos (Anm. 104), 2163 (2188), § 42.

270

Urteü Remli (Anm. 31), 559 (575), §§ 53 f.

271

Urteü Ahmed (Anm. 8), 2195 (2208), § 49.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im fahre 1996

Auch in verschiedenen weiteren Fällen lehnte der Gerichtshof Entschädigungsansprüche der Bf. mangels einer kausalen Verknüpfung zwischen der Konventionsverletzung und dem geltend gemachten materiellen Schaden ab.272 So war beispielsweise in zwei Urteilen nicht festzustellen, ob eine Beachtung der Konvention einen Einfluß auf die gegen Art. 6 verstoßende Länge eines Verfahrens gehabt hätte.273 Das Gericht sah auch im Urteil Saunders davon ab, dem Bf. den materiellen Schaden zu ersetzen, der aus der Verwendung nicht verwertbarer Aussagen entstanden war, da nicht mit Sicherheit zu klären war, ob die NichtVerwendung zu einem anderen Ergebnis des Strafverfahrens geführt hätte.274 In anderen Fällen hielt das Gericht die Feststellung der Konventionsverletzung bereits für ausreichend, den erlittenen materiellen Schaden zu kompensieren.275 Schließlich lehnte der EGMR es auch in einigen Fällen ab, den Bf. eine Kompensation geltend gemachter materieller Schäden zu gewähren, wenn diese sich nicht ausreichend nachweisen ließen.276 Im Fall Welch ist ein materieller Schadensersatz für fehlende Mieteinnahmen deshalb abgelehnt worden, weil der Bf. sich weder im innerstaatlichen Verfahren vor dem High Court in Großbritannien bemüht hatte, eine Ausnahmegenehmigung hinsichtlich der in Rede stehenden Immobilien zu erlangen, noch in seiner Beschwerde vor der Kommission die entsprechenden Wirkungen des richterlichen Verbotes geltend gemacht hatte.277 Demgegenüber verurteilte das Gericht in einigen Fällen die Mitgliedstaaten zum Ersatz materieller Schäden der Bf. So stand im Fall Zappia noch immer ein rechtskräftiges Urteil für einen im Jahr 1963 stattgefundenen Vertragsbruch aus, so daß der EGMR neben der Feststellung der Verletzung von Art. 6 Abs. lauch eine billige Entschädigung i.H.v. 24 Mio. Lire Schadensersatz zusprach.278 Im Fall Di Pede machte der Bf. einen Schadensersatzanspruch i.H.v. 1 Mrd. Lire geltend. Da er einen Schaden in dieser Höhe zwar nicht nachweisen konnte, das Gericht aber den materiellen Schaden grundsätzlich anerkannte, gewährte es dem Bf. einen Ausgleich i.H.v. 15 Mio. Lire. 279

272

Urteile Bulut (Anm. 89), 346 (360), § 54; Mitap undMüftüoglu (Anm. 19), 402 (413), § 41; Ausiello (Anm. 96), 717 (723), § 25; Terra Woningen B.V. (Anm. 10), 2105 (2124), § 61. 273

Urteile Vermeulen (Anm. 113), 224 (235), § 37; Duclos (Anm. 104), 2163 (2188), § 90.

274

Urteil Saunders (Anm. 142), 2044 (2069), § 86.

275

Urteil Amuur (Anm. 12), 826 (852), § 59.

276

Urteile Ceteroni (Anm. 96), 1748 (1757 f.), § 30; Calogero Diana (Anm. 165), 1765 (1778),

§44. 277

Urteil Welch (Anm. 4), 386 (390), § 13.

278

Urteil Zappia (Anm. 42), 1403 (1413), §§ 28 ff.

279

Urteil Di Pede (Anm. 42), 1376 (1387), §§ 37 ff.

566

Marian Niestedt und Dominik Ziegenhahn

Da der Bf. Gaygusuz aufgrund der staatlichen Verweigerung der ihm rechtlich zustehenden Notstandshilfe gezwungen war, 1987 aus Osterreich auszureisen, wurde ihm ein Ausgleich i.H.v. 200.000 Schilling als materieller Schadensersatz zugestanden.280 Im Fall Matos e Silva, Lda. u. a. lehnte der EGMR den von den Bf. geltend gemachten Schadenersatz ab, da keine Enteignung vorgelegen habe, sprach ihnen jedoch einen finanziellen Ausgleich für die Schäden zu, die sie aufgrund der Länge des Verfahrens und den Eingriffen in die Eigentumsfreiheit tatsächlich erlitten haben.281 In Anbetracht der extrem schweren Verletzungen der Konvention, die der Sohn des Bf. im Fall Aksoy erlitten hatte und die Angst und das Leiden, die beim Vater hervorgerufen worden waren, wurde vom Gericht die volle Kompensation in Höhe der geforderten Summe (4.283.450.000 türk. Lira) gewährt.282 3. Immaterieller Schaden In den meisten Fällen, in denen die Bf. die Wiedergutmachung eines erlittenen immateriellen Schadens im Sinne von Art. 50 geltend machten, hielt der Gerichtshof bereits die Feststellung einer Konventionsverletzung für ausreichend,283 insbesondere dann, wenn nicht nachzuweisen war, daß eine Beachtung der Konvention durch die Vertragsstaaten den erlittenen immateriellen Schaden mit Sicherheit ausgeschlossen hätte.284 Eine Entschädigung in Geld sei jedoch für solche immateriellen Schäden zu leisten, die nicht allein durch die Feststellung einer Konventionsverletzung ausgeglichen würden. In drei Fällen sprach der EGMR den Bf. daher aufgrund der exzessiven Verfahrenslänge einen Ersatzanspruch für erlittene immaterielle Schäden zu,285 wobei jedoch die ex gntf&z-Zahlungen eines Vertragsstaates mit zu verrechnen seien.286 280

UrteÜ Gaygusuz (Anm. 76), 1129 (1145), § 63.

281

UrteÜ Matos e Silva, Lda. u. a. (Anm. 23), 1092 (1117), § 101.

282

UrteÜ Aksoy (Anm. 13), 2260 (2289 f.), § 113.

283

UrteÜe John Murray (Anm. 138), 30 (57), § 83; Lobo Machado (Anm. 113), 195 (208), § 40; Vermeulen (Anm. 113), 224 (235), § 37; Hussain (Anm. 71), 252 (272), § 66; Welch (Anm. 4), 386 (391), § 19; Goodwin (Anm. 186), 483 (503), § 50; Remli (Anm. 31), 559 (575), § 52; Ausiello (Anm. 96), 717 (723), § 25; Manoussakis u. a. (Anm. 37), 1346 (1366), § 57; Calogero Diana (Anm. 165), 1765 (1778), § 44; Domenichini (Anm. 149), 1789 (1802), § 45; Chahal (Anm. 44), 1831 (1872), § 158; Saunders (Anm. 142), 2044 (2069), § 89; Vacher (Anm. 11), 2138 (2149), § 34; Ahmed (Anm. 8), 2195 (2208 f.), § 51; Valsamis (Anm. 45), 2312 (2328), § 53; Efstratiou (Anm. 45), 2347 (2363), § 54; Scott (Anm. 54), 2382 (2403), § 87. 284

Urteüe Hussain (Anm. 71), 252 (272), § 66; Singh (Anm. 71), 280 (301 f.), § 73.

285

UrteÜe A u. a. (Anm. 96), 85 (109), §§ 83, 85; Mitap undMüftüoglu (Anm. 19), 402 (413), § 41; Ceteroni (Anm. 96), 1748 (1757 f.), §§ 29 ff.; Duclos (Anm. 104), 2163 (2188), § 90. 286

Urteü A. u. a. (Anm. 96), 85 (109), §§ 83, 85.

Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im fahre 1996

XIV. Sonstiges 1. Antrag auf Auslegungeines Urteils gem. Art. 57 VerfO-A

Ein zweites Mal nach dem Urteil Ringeisen gegen Österreich (Interpretation) von 1973287 wurde im Fall Allenet de Ribemont gegen Frankreich (Interpretation) Art. VerfO-A geltend gemacht. Dem Bf. war im Juli 1995 mitgeteilt worden, daß die ihm vom Straßburger Gericht nach Art. 50 zugesprochene Entschädigung i.H.v. 2 Mio. Francs gepfändet werden würde. Daraufhin ersuchte die Kommission auf Antrag des Bf. den Gerichtshof um Auslegung seines Urteils. Hinsichtlich der Frage, ob die Entschädigungssumme dem Betroffenen direkt zugute komme und von der Pfändung ausgenommen sei, führte der Gerichtshof aus, daß er zwar dazu berufen sei, Bedeutung und Tragweite einer früheren Entscheidung zu klären, 288 nicht jedoch einen Artikel der Konvention, wie im Fall Art. 50, abstrakt zu interpretieren. 289 Jedenfalls, so der Gerichtshof, habe er die Auszahlung der Summen an keine Bedingungen geknüpft, so daß den nationalen Behörden eine Pfändung nicht verwehrt gewesen sei. Auf die weitere Frage, ob sich die nach Art. 50 zugebilligte Summe in eine Entschädigung für materiellen und immateriellen Schaden aufteilen lasse, antwortete das Gericht, es sei zu einer solchen Unterscheidung nicht verpflichtet, zumal diese oftmals gar nicht möglich sei. Da sein Urteil von 1995 insoweit hinreichend klar sei und eine andere Entscheidung dieses bindende Urteil modifizieren würde, gebe es keinen Anlaß zu einer Auslegung nach Art. 57 der VerfO-A. 290 2. Antrag auf Wiederaufnahme

eines Verfahrens gem. Art. 58 VerfOA

Der Gerichtshof hatte 1996 erstmals Gelegenheit, sich zu einem Antrag auf Wiederaufnahme eines Verfahrens zu äußern. Ein Bf. konnte zwei neue Dokumente beibringen, zu denen er während des Verfahrens vor dem Gerichtshof noch keinen Zugang gehabt hatte. Eine nach Art. 43 gebildete Kammer entschied gem. Art. 58 Abs. 4 Satz 2 der VerfO-A, daß der Antrag zulässig war, und verwies ihn an die ursprüngliche entscheidende Kammer. 291 Da es sich dabei um eine Ausnahme handelte, die zwar in der Verfahrensordnung, nicht jedoch in der EMRK vorgesehen war, nahm

287

Urteil Ringeisen gegen Österreich (Interpretation)

vom 23. Juni 1973, Series A, no. 16,1 (8),

§13. 288

Urteil Allenet de Ribemont (Interpretation)

(Anm. 6), 903 (910), § 17.

289

Urteil Allenet de Ribemont (Interpretation)

(Anm. 6), 903 (910), § 19.

290

Urteil Allenet de Ribemont (Interpretation)

291

(Anm. 6), 903 (911), §§ 22 f.

Urteil Pardo (Wiederaufnahme) (Anm. 7), 860 (870), § 25; siehe dazu Pardo gegen Frankreich vom 20. September 1993, Series A, no. 261-B, 21 (31), § 29.

568

Marian Niestedt und Dominik Ziegenhahn

das Gericht dabei eine strenge Zulässigkeitsprüfung vor, die verlangte, daß die neu vorgebrachten Tatsachen eine maßgebliche Bedeutung für das Urteil hatten.292

292

Urteü Pardo (Wiederaufnahme)

(Anm. 7), 860 (869 f.), § 21.

Die Tätigkeit des Ministerkomitees und der Parlamentarischen Versammlung des Europarates in den Jahren 1995 und 1996 Von Martin Mennecke und Christian Tams

I. Organisatorische Fragen; Allgemeines 1. Sitzungen des Ministerkomitees und der Parlamentarischen Versammlung; Wahlen Das Ministerkomitee des Europarates (MK) kam im Berichtszeitraum 1 zu seinen Sitzungen Nr. 96 bis 99 zusammen. Den Vorsitz der 96. Sitzung am 11. Mai 1995 hatte der zypriotische Außenminister Alecos P. Michaelides inne.2 Die 97. Sitzung am 9. November 1995 leitete sein tschechischer Amtskollege Josef Zieleniec? die 98. Sitzung am 3. Mai 1996 der Däne Niels Helveg Petersen. 4 Am 6 Jl. November 1996 tagte das MK unter dem Vorsitz des estnischen Außenministers Siim Kallas schließlich zum 99. Mal.5 Die Parlamentarische Versammlung des Europarates (PV) kam in den Jahren 1995 -1996 zu jeweils vier Sitzungsperioden zusammen. Im Jahr 1995 fanden die Sitzungen vom 30. Januar bis 2. Februar, 24. bis 28. April, 26. bis 30. Juni und 25. bis 29. September statt. 1996 tagte die PV vom 22. bis 26. Januar, 22. bis 26. April, 24. bis 28. Juni und 23. bis 27. September.

1

Der Bericht schließt an die Darstellung von Britta Buchenau/Anja Stein, Die Tätigkeit des Ministerkomitees und der Parlamentarischen Versammlung des Europarates in den Jahren 1993 und 1994, German Yearbook of International Law (GYIL), vol. 38, 1995, 389 ff., an. 2

Council of Europe, Parliamentary Assembly, Documents, Working Papers (hiernach Doc.) 7332, 1. 3

Doc. 7640, 1.

4

Doc. 7582, 1.

5

Doc. 7736, 1.

570

Martin Mennecke und Christian Tams

Als Präsident der PV wurde für die Sitzungsperiode 1995 der seit Mai 1992 amtierende spanische Sozialist Miguel Angel Martinez wiedergewählt.6 In der ersten Sitzung des Jahres 1996 wählten die Parlamentarier dann die deutsche Christdemokratin und bisherige Vizepräsidentin Leni Fischer zu ihrer Präsidentin.7 Sie gehört der PV seit 1985 an und ist die erste Parlamentarierin, die dieser Institution vorsteht. Die Amtszeit der französischen Sozialistin Catherine Lalumiere als Generalsekretärin des Europarates endete 1994. Seit seiner Wahl am 12. April 1994 amtiert der schwedische Liberale Daniel Tarschys als ihr Nachfolger. 8 2. Neue Mitglieder Die Zahl der Mitgliedstaaten des Europarates erhöhte sich in den Jahren 1995 1996 erneut deutlich: Am 10. Februar 1995 wurde Lettland als letzte der drei baltischen Republiken aufgenommen.9 Es folgten am 13. Juli 1995 Moldawien und Albanien10 sowie am 9. November 1995 die Ukraine und „die ehemalige jugoslawische Republik Mazedonien".11 Im Jahr 1996 kam es schließlich zur Aufnahme Rußlands (28. Februar) 12 und Kroatiens (6. November)13. Diesen beiden Beitritten gingen langwierige und schwierige Verhandlungen voraus, die von der üblichen Praxis, die sich in den Jahren nach dem Fall des eisernen Vorhangs herausgebildet hatte, erheblich abwichen.14

6

CouncÜ of Europe, Parliamentary Assembly, Official Record of Debates (hiernach Debates) 1995, 4. 7

Debates 1996, 4.

8

Debates 1994, 323, 326; Doc. 7043.

9

Doc. 7283, 1.

10

Doc. 7393, 1.

11

Doc. 7640, 1. Griechenland bestand auf der Bezeichnung Mazedoniens als „ehemalige jugoslawische Republik"; vgl. nur die Redebeiträge griechischer Parlamentarier im Rahmen der Debatte in der PV, Debates 1995, 904, 906 f. Insoweit folgte der Europarat dem Vorgehen der Vereinten Nationen bei Aufnahme des Landes; vgl. GA res. 47/225 vom 8. Aprü 1993, U N G A O R , 47th Sess., Suppl. 49A, 6. 12

Doc. 7527, 1.

13

Doc. 7736, 1.

14

Zu den bisherigen Aufnahmeverfahren vgl. Hans Winkler, Democracy and Human rights in Europe. A Survey of the Admission Practice of the Councü of Europe, Austrian Journal of Public and International Law (AJPIL), vol. 47, 1995, 147, 155 ff.; kritisch Anke Gimbal , Der Europarat und die Europäische Menschenrechtskonvention, Jahrbuch der Europäischen Integration ([EI) 1995/96, 375,380 f. und dies., Persüschein oder Gütesiegel?, F A Z vom 6.10.1997, Nr. 231, 10.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

Mit Rußland, dessen Aufnahmeantrag schon am 7. Mai 1992 beim Europarat eingegangen war, wurden die Verhandlungen im Februar 1995 unterbrochen, nachdem der Tschetschenien-Konflikt durch das brutale Eingreifen russischer Truppen eskaliert war. Die PV verfaßte die Resolution 1055, mit der sie Rußland aufforderte, nach einer friedlichen Lösung des Konfliktes zu suchen, da das Handeln Rußlands in Tschetschenien nicht mit den Werten und Vorstellungen des Europarates überein zu bringen sei.15 Erst nachdem sich die Lage in Grosny im Sommer durch die Vermittlung von Friedensgesprächen entspannt hatte, nahm die PV die Beitrittsverhandlungen wieder auf. 16 Trotz der weiterhin vorhandenen Defizite in den Bereichen Rechtsstaatlichkeit und Menschenrechtsschutz stimmte die PV im Januar aufgrund zahlreicher von der russischen Regierung abgegebener Verpflichtungen für die Aufnahme Rußlands in den Europarat. 17 Am 28. Februar 1996 schließlich unterzeichnete der russische Außenminister Jewgenij Primakov die Beitrittsurkunde in Straßburg. Kroatiens Aufnahme in den Europarat gestaltete sich ähnlich schwierig. Auch der kroatische Antrag auf Mitgliedschaft im Europarat stammte aus dem Jahr 1992. Bis Ende 1995 hatte die PV aufgrund der Beteiligung Kroatiens am Krieg in Bosnien-Herzegowina die Verhandlungen über dessen Beitritt ausgesetzt.18 Nach dem Abschluß des Dayton Peace Agreement hatte sich das außenpolitische Umfeld für Kroatien verbessert. Als die Berichterstatter der Delegationen der PV 15 Res. 1055 vom 2. Februar 1995. Resolutionen, Recommendations und andere verabschiedete Dokumente der PV werden fortlaufend veröffentlicht in der Sammlung Council of Europe, Parliamentary Assembly, Texts Adopted by the Assembly. Res. 1055 ist auch abgedruckt in Human Rights Law Journal (HRLJ), vol. 17,1996,196; siehe auch die Diskussion in der PV über die Aussetzung der Verhandlungen mit Rußland, Debates 1995, 221 ff. und die dazugehörigen Vorlagen, Does. 7230 und 7231; vgl. auch Georg Link, Der Europarat und die Europäische Menschenrechtskonvention, JEI 1994/95, 369, 370, sowie Gimbal, JEI 1995/96 (Anm. 14), 376 ff. 16

Resolution 1065 vom 27. September 1995, auch abgedruckt in HRLJ, vol. 17,1996,196 f.; vgl. auch hier die Redebeiträge in der PV, Dèbates 1995, 804 ff. und die Vorlagen in Does. 7372, 7384 und 7400. 17 Ähnlich wie beim Beitritt Rumäniens 1993, vgl. dazu Winkler (Anm. 14), 164 f., gab es auch bei Rußland schwerwiegende Zweifel daran, ob der Stand der russischen Reformen tatsächlich den Standards des Europarates entspräche; siehe dazu den Bericht der Expertenkommission, Report on the Conformity of the Legal Order of the Russian Federation with Council of Europe Standards, abgedruckt in HRLJ, vol. 15, 1994, 250 ff. und die Stellungnahmen der Berichterstatter der PV, Docs. 7443 und 7463; letztlich gaben politische Erwägungen den Ausschlag für das positive Votum der PV, vgl. die Äußerungen in den Debates 1996, 216 ff. und 241 ff.; eingehend zum ganzen auch Heinrich Klehes/Despina Chatzivassilliou, Problèmes d'ordre constitutionnel dans le processus d'adhésion d'Etats de l'Europe centrale et orientale au Conseil de l'Europe, Revue Universelle de Droit de l'Homme (RUDH), vol. 8,1996,269,281. 18

Doc. 7510, 1 und 5.

571

572

Martin Mennecke und Christian Tams

nach Kroatien dem Antragsteller deutliche Fortschritte bei den Reformen hin zum demokratischen Rechtsstaat bescheinigten, befürwortete die PV am 24. April 1996 die Aufnahme Kroatiens in den Europarat. 19 Wenige Tage später überstürzten sich aber die Ereignisse in Kroatien: In einem Handstreich wurden nach einem innenpolitischen Machtkampf mit der Opposition kurzerhand das Zagreber Stadtparlament aufgelöst und die repressiven Maßnahmen gegen regierungskritische Medien verschärft. 20 Die PV wertete dieses Vorgehen der kroatischen Regierung als klaren Verstoß gegen die noch im März gegebenen Versprechungen, demokratische Regeln einzuhalten und entsprechende Institutionen zu stärken.21 Nach einem Protest der PV und der Androhung des MK, die Entscheidung über die Aufnahme zu verschieben, bekräftigte die kroatische Regierung ihren Willen, alle getroffenen Vereinbarungen zu erfüllen.22 Am 2. Juli beschloß das MK nach einer befürwortenden Stellungnahme der PV, Kroatien in den Europarat aufzunehmen. Allerdings behielt sich das MK dabei erstmals vor, dies später, im Herbst 1996, noch einmal zu „überdenken".23 Nachdem sich die innenpolitische Lage in Kroatien entspannt und die kroatische Regierung die Abhaltung der Kommunalwahlen in Bosnien-Herzegowina unterstützt hatte, wurde Kroatien am 6. November vom MK in den Europarat aufgenommen.24 Dem Europarat gehören damit mittlerweile 40 Staaten an. 19 Doc. 7569,1 f.; Berichte über den Stand der inneren Reformen in Kroatien finden sich in den Stellungnahmen der Berichterstatter der PV, Does. 7510,7533 und 7534; vgl. darüber hinaus den Bericht der Expertenkommission, Bericht vom 24.01.1995 über die Rechtslage in Kroatien unter besonderer Berücksichtigung des Menschenrechtsschutzes und der Rechte der Minderheiten; auf englisch abgedruckt in HRLJ, vol. 16, 1995, 326 ff., auf französisch in R U D H , vol. 7, 1995, 335 ff. 20 Zu diesen Ereignissen, aber auch den rechtlichen Besonderheiten des Beitritts Kroatiens zum Europarat, vgl. Frank Hoffmeister, Kroatiens Beitritt zum Europarat und seine Auswirkung auf die kroatische Verfassungsgerichtsbarkeit, Europäische Grundrechte — Zeitschrift (EuGRZ), Bd. 24,1997, 93 ff. 21

Kroatien hatte sich durch ein Schreiben der Regierung an den Europarat vom 15. März 1996 abermals dazu bekannt, eine Reihe von Verpflichtungen einzuhalten. Dazu gehörten u. a. die Zusammenarbeit mit dem UN-Kriegsverbrechertribunal in Den Haag, das Einhalten der Bestimmungen des Dayton-Abkommens, der Beitritt zu mehreren Europarat-Konventionen, u. a. der EMRK samt Zusatzprotokollen und Reformen von Wahl- und Medienrecht, vgl. Doc. 7510,34, Add. V H I und zu den einzelnen Verpflichtungen Doc. 7510,2 ff.; vgl. zu diesem Versprechen Kroatiens auch Hoffmeister (Anm. 20), 94. 22 Resolution 1089 vom 29. Mai 1996, abgedruckt in R U D H , vol. 8,1996, 342; Does. 7569, 1 f. und 7617,1 ff. und Add. I und ΠΙ. 23 Resolution (96) 31, Doc. 7614, abgedruckt auf französisch in R U D H , vol. 8, 1996, 342; zur rechtlichen Einordnung dieser „Bedingung" siehe Hoffmeister (Anm. 20), 97 f. 24

An dem ernsthaften Willen Kroatiens, seinen Beitrittverpflichtungen nachzukommen, bestanden auch im Oktober 1997 noch Zweifel, so daß erwogen wurde, eine Monitoring-Mission dorthin zu entsenden, um vor Ort die Verwirklichung der kroatischen Versprechen in Augen-

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

Alle beigetretenen Staaten unterzeichneten anläßlich ihrer Aufnahme die EMRK. Diese hat nach Ratifikation durch die natiohalen Parlamente bereits Geltung in Lettland, Albanien, Moldawien, der Ukraine, „der ehemaligen jugoslawischen Republik Mazedonien" sowie in Kroatien erlangt; lediglich die Ratifikation durch Rußland steht noch aus.25 3. Beobachter-Status

Bereits im Jahr 1993 hatte das Ministerkomitee in Statutory Resolution (93) 2626 die Einrichtung eines Beobachter-Status beschlossen. Dieser kann Staaten gewährt werden, die an einer Zusammenarbeit mit dem Europarat interessiert sind und sich Demokratie, Rechtsstaatlichkeit und der Wahrung der Menschenrechte verpflichtet fühlen. Der Status berechtigt zur Beteiligung an Diskussionen in verschiedenen Gremien der Organisation, bringt aber kein Anrecht auf Sitz und Stimme in MK und PV. Er ersetzt die bisher nicht institutionalisierten Formen der Zusammenarbeit mit Nicht mit gliedern sowie den special guest- Status. Mit Resolution (95) 37 vom 7. Dezember 1995 lud das MK „vorbehaltlich der Zustimmung der Parlamentarischen Versammlung" die USA ein, dem Europarat als ständiger Beobachter beizutreten.27 Im Januar 1996 forderte das MK die PV auf, ein Votum über ein entsprechendes Gesuch Japans abzugeben.28 Das Interesse dieser beiden Nationen am Beitritt wertete das MK als Beleg für die steigende Anerkennung für die Arbeit des Europarates. Im Mai 1996 erhielt auch Kanada den Beobachterstatus zuerkannt.29

schein zu nehmen, vgl. FAZ vom 1.10.1997, Nr. 228, 5; kritisch zum Beitritt Gimbal, JEI 1995/96 (Anm. 14), 378 f. 25

Stand Ende 1997.

26

Doc. 6748.

27

Die Formulierung „vorbehaltlich der Zustimmung" rief die Kritik der PV hervor, die sich in ihrem Mitentscheidungsrecht übergangen fühlte; vgl. den jeweiligen Absatz 5 der Explanatory Memoranda zu Does. 7518 und 7543. In nachfolgenden Verhandlungen über die Gewährung des Beobachter-Status wurde dann darauf hingewiesen, daß die Zuerkennung erst nach Zustimmung auch der PV wirksam werde; vgl. den in Doc. 7518 abgedruckten Schriftwechsel. 28

Doc. 7460, 3.

29

Doc. 7582,3; vgl. zur Entwicklung des Beobachter-Status Gimbal, JEI 1995/96 (Anm. 14),

378.

573

574

Martin Mennecke und Christian Tams

II. Rechtliche Zusammenarbeit In den Jahren 1995 und 1996 wurden vom Europarat insgesamt fünf neue Vertragswerke sowie drei Protokolle zu bereits bestehenden Vertragswerken zur Unterzeichnung aufgelegt.

1. Das Rahmenübereinkommen zum Schutz nationaler Minderheiten (ETS 157 Als Folge des Bekenntnisses zum Minderheitenschutz in der Wiener Erklärung der Regierungschefs vom Oktober 1993 begannen die Arbeiten am Entwurf eines Rahmenrechtsübereinkommens zum Minderheitenschutz.31 Die Konvention steht in der Reihe der Arbeiten diverser internationaler Organisationen, die in den letzten Jahren der Renaissance des Minderheitenrechts Rechnung getragen haben.32 Sie stellt aber das erste multilaterale rechtsverbindliche Dokument dar, das diesem Thema in allgemeiner Weise — d. h. nicht bezogen auf einzelne Aspekte des Minderheitenschutzes —gewidmet ist. In seinem ersten Abschnitt (Art. 1 - 3) werden allgemeine Prinzipien verkündet: daß der Minderheitenschutz einen integralen Bestandteil des Menschenrechtsschutzes darstelle (Art. 1), daß die nachfolgend in Art. 4 bis 19 aufgelisteten Rechte nicht der Minderheit als solcher, sondern ihren Angehörigen — wenn auch gegebenenfalls in Gemeinschaft mit anderen — zuständen (Art. 1, Art. 3 Abs. 2)33 und daß ein jeder Angehöriger einer Minderheit das Recht habe, frei zu entscheiden, als solcher behandelt zu werden oder nicht (Art. 3 Abs. I). 34 Es findet sich allerdings keine Definition 30

Auch abgedruckt in EuGRZ, Bd. 22,1995,268 ff; verabschiedet vom M K am 10. November 1994, zur Signatur aufgelegt am 1. Februar 1995. Für einen umfassenden Überblick siehe Rainer Hofmann, Die Rolle des Europarates beim Minderheitenschutz, in: Manfred Mohr (Hrsg.), Friedenssichernde Aspekte des Minderheitenschutzes in der Ära des Völkerbundes und der Vereinten Nationen in Europa, 1996,111,130 ff.; sowie Heinrich Klebes, Das Rahmenübereinkommen des Europarates zum Schutz nationaler Minderheiten — Eine Einführung, EuGRZ, Bd. 22, 1995, 262 ff. 31

Anhang Π der Wiener Erklärung vom 8./9. Oktober 1993, EuGRZ, Bd. 20,1993,484 ff.; siehe dazu Stein/Buchenau (Anm. 1), 390. 32

Vgl. nur die Resolution der UN-Generalversammlung vom Dezember 1992, GA res. 47/135, U N GAOR, 47th Sess., Suppl. 49, 210 ff. (auch abgedruckt in HRLJ, vol. 14, 1993, 54 ff. und Vereinte Nationen (VN), Bd. 41, 1993, 190 ff.), das Kopenhagener Dokument der KSZE/OSZE, EuGRZ, Bd. 17, 1990, 239 ff. oder auch die vorhergegangenen Empfehlungen 1134 (1990), 1177 (1992) und 1201 (1993) der PV des Europarates. 33

Auch diese Rahmenkonvention erkennt damit keine kollektiven Rechte einer Minderheit an. Klarstellend auch der Erläuternde Bericht, abgedruckt in EuGRZ, Bd. 22, 1995, 271 ff., Abs. 13. 34

Insoweit existiert jedoch kein Recht für Personen, sich wÜlkürlich einer Minderheit zuzu-

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

des Begriffs der „nationalen Minderheit", wie sie noch in Vorentwürfen der PV für Minderheitenschutzabkommen enthalten war. 35 Unter den in Abschnitt Π (Art. 4 -19) aufgezählten einzelnen Rechten der Angehörigen nationaler Minderheiten sind Ansprüche auf Nichtdiskriminierung (Art. 4), Schutz vor gewaltsamer Assimilierung (Art. 5), Versammlungs- und Vereinigungs(Art. 7) sowie Religions- (Art. 8) und Meinungsäußerungsfreiheit (Art. 9). In Art. 10 und 11 werden der Gebrauch der Minderheitensprache gegenüber Behörden und die Verwendung traditioneller Namen und topographischer Bezeichnungen geregelt. Art. 12 bis 15 behandeln das Anrecht der Minderheitenangehörigen auf Zugang zu ihrer Kultur. Schließlich wird erstmals in einem internationalen Dokument ein Recht auf grenzübergreifende Kontakte, insbesondere mit Angehörigen derselben ethnischen Gruppierung, festgeschrieben (Art. 17). Die Bestimmungen des zweiten Abschnitts sind jedoch häufig geprägt von dehnbaren Formulierungen oder Programmsätzen, die der Ausfüllung durch nationale Gesetzgebung harren. 36 Begrenzungen der Rechte finden sich im dritten Abschnitt der Konvention: Minderheitenrechte sind nur im Rahmen der nationalen Gesetze und unter Beachtung der Rechte anderer Bevölkerungsgruppen auszuüben (Art. 20). Auch berechtigt die Rahmenkonvention nicht zur Mißachtung anerkannter internationalrechtlicher Grundsätze, insbesondere der souveränen Gleichheit der Staaten und ihrer territorialen Unversehrtheit (Art. 21).37 Im vierten Abschnitt finden sich Bestimmungen über einen Kontrollmechanismus zur Übereinkunft. Unterstützt von einem Beratenden Ausschuß soll das MK selbst über die Einhaltung der Bestimmungen wachen (Art. 24,26). Zu diesem Zweck ist es regelmäßig von den Mitgliedstaaten zu informieren (Art. 25). Nicht gedacht ist an die Einrichtung einer rechtlichen Überwachungsbehörde oder Kommission mit der Kompetenz zur Entsendung von Beobachtermissionen; dies vor allem aufgrund der Offenheit der im Rahmenübereinkommen enthaltenen Bestimmungen.38 ordnen, die Zugehörigkeit zu einer nationalen Minderheit ist abhängig von objektiven Kriterien; vgl. den Erläuternden Bericht (Anm. 33), Abs. 35. 35

Vgl. Art. 1 der Recommendation 1201 (1993). Daß sich im Rahmenübereinkommen keine vergleichbare Bestimmung findet, ist einer der vielfach geäußerten Kritikpunkte. Dazu zusammenfassend Hofmann (Anm. 30), 132; zur Auseinandersetzung der PV mit dem Rahmenübereinkommen siehe auch noch unten, Dö[.2a. 36 Diese Vagheit hat zu deutlicher Kritik am Rahmenübereinkommen geführt; dies insbesondere, da Vorentwürfe (wie ζ. B. Recommendation 1201 (1993) der PV) nach Ansicht der Kritiker weitergehende Bestimmungen enthalten hatten. Zur Debatte siehe Klehes (Anm. 30), 262 ff. 37

Bereits im vorletzten Absatz der Präambel findet sich eine Ablehnung etwaiger Sezessionsbestrebungen. 38

Im Zuge der Vorbereitungen des Vertragswerkes waren derartige Vorschläge gemacht

575

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Martin Mennecke und Christian Tams

Im Schlußabschnitt V wird bestimmt, daß das Übereinkommen drei Monate nach Ratifikation durch zwölf Mitgliedstaaten des Europarates in Kraft tritt (Art. 28 Abs. 1). Ein Beitritt anderer Staaten nach Inkrafttreten ist gem. Art. 29 möglich, ebenso die Unterzeichnung durch sie bereits vor diesem Datum (Art. 27) . 39 Die Konvention ist bereits am Tag ihrer Auflegung von 21 Mitgliedstaaten unterzeichnet worden. Bis Ende 1997 ist die Zahl der Unterzeichnungen auf 37, die der Ratifikationen auf 16 angewachsen. Drei Monate nach Ratifikation durch das zwölfte Europaratsmitglied (Finnland) tritt die Rahmenkonvention am 1. Februar 1998 in Kraft. 40

2. Abkommen über den illegalen Transport von Suchtstoffen zur See (ETS 1 Seit dem 31. Januar 1995 steht das Abkommen über den illegalen Transport von Suchtstoffen zur See zur Unterzeichnung offen. Sein Untertitel — Durchführungsabkommen gem. Art. 17 der UN-Konvention gegen den unerlaubten Verkehr mit Suchtstoffen und psychotropen Stoffen 42 — macht den Bezug zu einem 1988 in Wien aufgelegten internationalen Abkommen deutlich. Dieses regte in seinem Art. 17 Abs. 9 den Abschluß bilateraler oder regionaler Folgeabkommen an, die zur besseren Umsetzung der zum Teil allgemein gehaltenen Bestimmungen führen sollten. Das europäische Abkommen kann gem. seinem Art. 27 Abs. 1 daher nur von denjenigen Europaratsmitgliedern unterzeichnet werden, die auch Vertragsstaaten des UN-Übereinkommens sind.43 Es läßt aus diesem resultierende Rechte oder Verpflichtungen unberührt (Art. 30 Abs. 1).

worden, vgl. Klebes (Anm. 30), 264. Ihre Nichtberücksichtigung hat wiederum zur Kritik am Rahmenübereinkommen geführt: Nach Ansicht der PV z. B. ist der gesamte Durchführungsmechanismus unzureichend ausgebaut, siehe nur die Äußerungen in Recommendation 1255 (1995). A m 17. September 1997 hat das M K in Resolution (97) 10 - abgedruckt in EuGRZ, Bd. 24, 1997, 650 f. — die Verfahrensregeln für den Beratenden Ausschuß festgelegt; vgl. dazu Matthias Weckerling, Der Durchführungsmechanismus des Rahmenübereinkommens des Europarates zum Schutz nationaler Minderheiten, EuGRZ, Bd. 24, 1997, 605 ff. 39

Gedacht ist vor allem an den Beitritt von OSZE-Mitgliedstaaten, die nicht dem Europarat angehören, vgl. den Erläuternden Bericht (Anm. 33), Abs. 99. 40

Finnland ratifizierte das Abkommen am 3. Oktober 1997. Deutschland hatte am 11. Mai 1995 unterzeichnet; am 10. September 1997 stimmte der Bundestag zu. 41

Eine kurze Zusammenfassung gibt Hans-Jürgen Bartsch, CouncÜ of Europe — Legal Cooperation in 1995, Yearbook of European Law (YEL), vol. 15, 1995, 515, 516 ff. 42

Vom 18. Dezember 1988, in Kraft seit dem 11. November 1990, U N Doc. E / C O N F . 82/15. 43

Auch der — grundsätzlich gem. Art. 28 Abs. 1 mögliche — spätere Beitritt zur Konvention durch Staaten, die nicht dem Europarat angehören, ist an diese Voraussetzung geknüpft.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

Ziel des Abkommens ist die Verbesserung der internationalen Zusammenarbeit gegen den illegalen Transport von Suchtstoffen auf Schiffen (Art. 2 Abs. 1). Dem Abkommen unterfallen alle nach Art. 3 Abs. 1 der UN-Konvention für unzulässig erklärte Handlungen, d. h. vor allem Produktion von und Handel mit den bezeichneten Stoffen sowie Förderungen derartiger Aktivitäten. Kern des Abkommens sind die Bestimmungen über die Ausübung von Hoheitsgewalt durch einen „intervenierenden Staat" (Art. la) gegenüber Schiffen fremder Flagge auf Hoher See (Art. 6-16). Gemäß Art. 6 ist für jede der nachstehend bezeichneten Aktionen die vorherige Autorisierung durch den Flaggenstaat erforderlich. Die Entscheidung über den Antrag auf Autorisierung kann an Bedingungen geknüpft werden (Art. 8), soll aber binnen vier Stunden erfolgen (Art. 7). Gemäß Art. 9 des Abkommens kann der intervenierende Staat ermächtigt werden, das Schiff zu stoppen, zu durchsuchen und verdächtige Materialien zu beschlagnahmen, und es für weitere Untersuchungen in seine Hoheitsgewässer zu überführen. Die Festsetzung verdächtiger Personen und des betroffenen Schiffes ist nach Art. 10 zulässig, muß dem Flaggenstaat aber bekanntgegeben und auf das zeitliche Mindestmaß begrenzt werden. Art. 13 bis 15 des Abkommens regeln den Zuständigkeitskonflikt, der entsteht, wenn der intervenierende Staat ein unter fremder Flagge fahrendes Schiff festgesetzt hat. Grundsätzlich hat der Flaggenstaat in diesem Fall die Möglichkeit, vorrangige Hoheitsgewalt {preferential jurisdiction ) auszuüben, d. h. sich selbst der Strafverfolgung anzunehmen und dadurch die Kompetenz des intervenierenden Staates auszuschließen (Art. 13 unter Bezugnahme auf die Definition in Art. lb). Uber die Ausübung dieses Rechts hat er binnen 14 Tagen zu beschließen; nach Ablauf dieser Frist wird er behandelt, als habe er sich seiner Hoheitsrechte freiwillig begeben (Art. 14 Abs. 2). Erklärt sich der Flaggenstaat für zuständig, so ist der intervenierende Staat verpflichtet, die festgehaltenen Personen, Schiffe, Fracht und Beweisstücke zu überliefern (Art. 15). Zu dieser Verpflichtung macht Art. 16 insofern eine Ausnahme, als daß die Auslieferung von Personen dann verweigert werden kann, wenn die begangene Straftat im Flaggenstaat mit der Todesstrafe bedroht ist. Diese Ausnahme war für nötig befunden worden, weil der Vertrag gem. Art. 28 auch Staaten offensteht, die nicht dem Europarat angehören44 und die für Drogendelikte unter Umständen die Todesstrafe vorsehen.45 Art. 17 bis 24 regeln Verfahrensfragen wie z. B. die Form der Anträge auf Autorisierung (Art. 19). Gemäß Art. 25,26 trägt der intervenierende Staat grundsätzlich die Kosten seines Vorgehens und haftet für etwaig auftretende Schäden. Unter den verbleibenden Schlußbestimmungen ist Art. 34, der das Streitbeilegungsverfahren regelt.

3

44

Siehe schon oben, Anm. 43.

45

Vgl. Bartsch (Anm. 41), 518.

G Y I L 40

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Martin Mennecke und Christian Tams

Die Parteien sind gehalten, Streitigkeiten über die Auslegung von Vertragsbestimmungen zunächst eigenständig oder durch ein von ihnen angerufenes Schiedsgericht beizulegen (Art. 34 Abs. 2 und 3). Bleibt ein solches Verfahren erfolglos, so ist die Streitfrage nach Art. 34 Abs. 4 auf Antrag einer Partei dem IGH zur Entscheidung vorzulegen; Abs. 5 läßt jedoch ausdrücklich Vertragsvorbehalte für diese Klausel zu. Das Abkommen tritt drei Monate nach Ratifizierung durch drei Mitglieder des Europarates in Kraft (Art. 27 Abs. 3). Bisher haben es sechs Staaten unterzeichnet; Norwegen ratifizierte als erstes Land im September 1997. Die Unterzeichnung durch Deutschland ist noch nicht erfolgt. 3. Europäische Konvention über die Ausübung von Kinderrechten

(ETS 160/

Das Vertragswerk knüpft an die UN-Konvention über die Kinderrechte 47 vom 20. November 1989 an. Dort waren in Art. 4 alle Vertragsparteien eingeladen worden, auch ihre eigene Gesetzgebung im Sinne der UN-Konvention zugunsten der Kinder zu ändern. Die PV verabschiedete 1990 eine Empfehlung, in der sie die Mitgliedsstaaten des Europarates aufrief, die UN-Kinderkonvention zu ratifizieren. 48 Die Europäische Konvention über die Ausübung von Kinderrechten regelt nun die Stellung von Kindern unter 18 Jahren in den sie betreffenden Gerichtsverfahren, also vor allem ihre Beteiligung in Familiensachen, beispielsweise der Entscheidung über das Sorgerecht (Art. 1). Diese prozeduralen Rechte waren in der UN-Konvention weitgehend unberücksichtigt geblieben.49 In der Europäischen Konvention über die Ausübung von Kinderrechten werden dabei zum einen in Art. 3 die Rechte des Kindes formuliert: Es gibt einen Anspruch auf Mitteilung aller für das Kind relevanten Informationen, auf Anhörung vor dem und durch das Gericht, auf Aufklärung über die möglichen Konsequenzen des laufenden Verfahrens und auf einen speziellen Vertreter, der die Interessen des Kindes dann wahrnimmt, wenn die Eltern aufgrund eines Interessenkonfliktes dies nicht selbst tun können (Art. 4). Die Rechte des Kindes werden aber abhängig gemacht von der Einsichtsfähigkeit des Kindes, die sich wiederum nach nationalem Recht bemessen soll (Art. 3).50

46

Zur Signatur aufgelegt am 25. Januar 1996. Für einen Überblick siehe Hans-Jürgen Bartsch, Council of Europe — Legal Co-operation in 1996, YEL, vol. 16, 1997, 645, 646 ff. 47

U N Doc. A/44/49 (1989)/BGB1. 1992 Π, 122 ff.

48

Recommendation 1121 (1990).

49

Vgl. zu der Enstehungsgeschichte der Konvention Doc. 7270, 1 f.

50

Kritisch dazu der Report der Berichterstatterin Karin Jaani y Ausschuß für Justiz und Menschenrechte, Doc. 7270, 12 f.; siehe auch die Diskussion in der PV, Debates 1995, 305 ff.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

579

Diesen Ansprüchen des Kindes entsprechen die Pflichten des entscheidenden Gerichts, das Kind im Sinne seiner Rechte aus Art. 3 miteinzubeziehen (Art. 6). Grundsätzlich sollen im Interesse der Kinder die Verfahren möglichst schnell durchgeführt werden (Art. 7), wobei bei ernster Gefahr für das Wohl des Kindes der Richter auch selbst Initiativen ergreifen kann (Art. 8). An die diese Konvention unterzeichnenden Staaten richtet sich der Appell, zum Wohle der Kinder auch Organisationen zu fördern, die sich für Belange der Kinder in Gesellschaft und Politik einsetzen (Art. 12). Daneben sollen innerstaatlich Schlichtungsverfahren wie das der Mediation eingeführt bzw. ausgebaut werden, damit Kindern wenn möglich Gerichtsverhandlungen erspart bleiben können (Art. 13). Als Aufsichtsorgan wird durch Art. 16 ein Ständiger Ausschuß eingerichtet. In ihm sollen Vertreter der Vertragsparteien, aber auch andere Länder und Organisationen wie die EU und die Vereinten Nationen (vertreten durch den UN-KinderrechteAusschuß) mit Beobachterstatus über Ergänzungen und Änderungen des Konventionstextes beraten und die Kooperation zwischen Staaten in diesem Bereich anregen und fördern. Uber seine Arbeit soll der Ständige Ausschuß dem MK regelmäßig Bericht erstatten (Art. 19). Der Beitritt zu der Konvention steht nach Art. 22 auch Nicht-Mitgliedstaaten des Europarates offen. Bis Ende 1997 ist sie von elf Staaten unterzeichnet, von zweien auch schon ratifiziert worden. Deutschland gehört bisher nicht zu den Unterzeichnern.

4. Europäisches Abkommen betreffend Personen, die an Verfahren vor dem Europäischen Gerichtshof für Menschenrechte beteiligt sind (ETS 16 Seit dem 5. März 1996 steht das Abkommen betreffend Personen, die an Verfahren vor dem Europäischen Gerichtshof für Menschenrechte beteiligt sind, zur Unterzeichnung offen. Es ersetzt das Abkommens gleichen Titels vom 6. Mai 1969 (ETS 67), stimmt inhaltlich mit diesem aber weitgehend überein. Eine Neufassung und -formulierung war nötig geworden, weil durch das 11. Zusatzprotokoll zur EMRK 52 wesentliche Änderungen des Verfahrens vor dem zukünftigen Ständigen Europäischen Gerichtshof für Menschenrechte vorgenommen wurden.53 Das neugefaßte 51

Auch abgedruckt in HRLJ, vol. 17, 1996, 472 f.

52

ETS 155, auch abgedruckt in HRLJ, vol. 15,1994,81 ff.; vgl. dazu A ndrew Drzemczewski/ Jens Meyer-Ladewigy Grundzüge des neuen EMRK-Kontrollmechanismus nach dem am 11. Mai 1994 unterzeichneten Reform-Protokoll (Nr. 11), EuGRZ, Bd. 21,1994,317 ff., und JensMeyerLadewigy Ein neuer ständiger Europäischer Gerichtshof für Menschenrechte, Neue Juristische Wochenschrift (NJW), Bd. 48, 1995, 2813 ff. 53

sion.

3 *

So entfallen z. B. im Abkommen von 1996 zwangsläufig alle Verweise auf die Kommis-

580

Martin Mennecke und Christian Tams

Abkommen gilt nur für Verfahren vor dem zukünftigen Ständigen Gerichtshof; für das z.Zt. noch gültige System bleibt das Abkommen von 1969 weiterhin in Kraft. 54 Gemäß seinem Art. 1 bezieht sich das Abkommen auf alle Personen, die als Beteiligte, Beteiligtenvertreter, Zeugen oder Sachverständige in Verfahren vor dem Gerichtshof auftreten oder dem MK im Zuge der Überwachung der Umsetzung von Gerichtsentscheidungen (gem. Art. 46 Abs. 2 des 11. Zusatzprotokolls) Stellungnahmen abzugeben haben. Der Umfang des Schutzes, der diesen Personen zukommt, ist in Art. 2 - 6 — in nahezu vollständiger Übereinstimmung mit dem Abkommen alter Fassung — bestimmt: Sie genießen Schutz vor rechtlicher Verfolgung hinsichtlich ihrer Verfahrenshandlungen vor dem Gerichtshof (Art. 2 Abs. 1) und weitgehende Bewegungsfreiheit auf dem Wege zum und vom Verfahren (Art. 4 Abs. I). 55 Die Vertragsparteien sind verpflichtet, geschützte Personen, die sich auf dem Weg zum bzw. vom Verfahren in ihrem Land aufhalten, nicht wegen früherer Straftaten zu verfolgen oder festzunehmen (Art. 4 Abs. 2). Nach Art. 5 Abs. 2a ist allein der Gerichtshof berechtigt, die Immunität der geschützten Personen aufzuheben; er ist aber zur Aufhebung verpflichtet, wenn es zur Herstellung des Rechts geboten ist und zu keiner Beeinträchtigung der Unabhängigkeit des Auftretens vor dem Gerichtshof führt. Nach Art. 3 Abs. 2 haben Inhaftierte wie alle anderen geschützten Personen ein Recht auf Korrespondenz mit einem zur Vertretung berechtigten Anwalt und dem Gerichtshof, wobei letztere nicht zur Verhängung von Disziplinarmaßnahmen führen darf. In Abweichung von der bisherigen Regelung haben nach dem nunmehr verabschiedeten Abkommen Inhaftierte zusätzlich einen Anspruch darauf, daß ihre Korrespondenz in angemessener Zeit und ohne Veränderung befördert wird. 56 Das Abkommen wird einen Monat nach Ratifikation durch das zehnte Europaratsmitglied, keinesfalls aber vor dem 11. Protokoll zur EMRK, auf das es sich ja bezieht, in Kraft treten (Art. 8 Abs. 1). Bisher liegen zwölf Unterzeichnungen — darunter die Deutschlands vom 23. Oktober 1996 — und eine Ratifikation (durch die Niederlande) vor.

54

Erläuternder Bericht, abgedruckt in HRLJ, vol. 17, 1996, 473 f., Abs. 2.

55

Vorbehaltlich der auch schon nach dem Abkommen alter Fassung bestehenden Ausnahmen: Eingriffe in die Bewegungsfreiheit bleiben rechtmäßig, wenn Schutz des ordre public oder der öffentlichen Sicherheit es gebieten. 56

Die Änderung im Vergleich zum Abkommen alter Fassung geht auf das Urteil Thomas Campbell gegen Vereinigtes Königreich vom 25. März 1992, Series A, vol. 233 (insbesondere para. 62 f.) — auch abgedruckt in HRLJ, vol. 13, 1992, 371 ff. — zurück, in dem der Gerichtshof Eingriffe in die Vertraulichkeit des Schriftverkehrs zwischen Inhaftiertem und der Kommission für unzulässig erklärt hatte; vgl. auch den Erläuternden Bericht, Abs. 9.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

5. Europäische Sozialcharta (revidierte

Fassung) (ETS 163f 7

Seit dem 3. Mai 1996 liegt die revidierte Europäische Sozialcharta zur Signatur auf. Sie faßt die Europäische Sozialcharta und das Zusatzprotokoll von 198858 in einem Vertragswerk zusammen, nimmt aber zum Teil auch Änderungen vor und trifft neue Regelungen. Beide bisherigen Verträge bleiben jedoch weiterhin neben der revidierten Fassung bestehen, ebenso das 1995 verabschiedete weitere Zusatzprotokoll zur Sozialcharta über die Errichtung eines Systems kollektiver Beschwerdemöglichkeiten.59 Für die revidierte Sozialcharta wurde die Struktur der ursprünglichen Fassung insoweit übernommen, als in Teil Π die einzelnen sozialen Rechte aufgelistet sind. Gemäß Art. A des dritten Teils haben Vertragsparteien weiterhin die Möglichkeit, zu bestimmen, welche der aufgelisteten Artikel sie gegen sich gelten lassen möchten, sie dürfen dabei eine Mindestanzahl an Bestimmungen aber nicht unterschreiten. Teil Π der revidierten Charta umfaßt insgesamt 31 Artikel, von denen acht neu eingefügt wurden. Die ersten 23 Artikel geben im wesentlichen bereits bestehende soziale Rechte wieder; es wurden jedoch zum Teil Änderungen eingefügt. Unter diesen sind ζ. B. die Verlängerung des Jaliresmindesturlaubs von zwei auf vier Wochen (Art. 2 Abs. 3), die Bestimmung eines Mindestalters für die Ausführung von gefährlichen Tätigkeiten (Art. 7 Abs. 2:18 Jahre), die Ausweitung des Kündigungsschutzes bei Schwangerschaften (Art. 8 Abs. 2), die Aufnahme eines Anspruchs auf spezielle Fortbildungsmaßnahmen für Langzeitarbeitslose (Art. 10 Abs. 4) sowie die Anerkennung eines Anrechts Behinderter auf „effektive Ausübung ihres Rechts auf Unabhängigkeit" einschließlich der Integration in das gesellschaftliche Leben (Art. 15) . 6 0 Durch Art. 24 bis 31 werden über diese Änderungen hinaus nunmehr auch die folgenden Rechte garantiert: das Recht von Arbeitnehmern auf Schutz nach Beendigung des Arbeitsverhältnisses (Art. 24) und auf Sicherung ihrer Lohn- und Gehaltsforderungen im Fall der Zahlungsunfähigkeit ihres Arbeitgebers (Art. 25), der Anspruch auf Würde am Arbeitsplatz (Art. 26), der ζ. B. in Fällen sexueller Belästigung mißachtet ist, sowie Rechte von Arbeitnehmern mit familiären Verpflichtungen auf Gleichbehandlung (Art. 27). Art. 28 und 29 sollen die Tätigkeit von Arbeitnehmer57

Für eine Zusammenfassung siehe Francois Vandamme, The revision of the European Social Charter, International Labour Review, vol. 133,1994,635 ff., sowie die Stellungnahme und den Erläuternden Bericht der PV in Doc. 7243. Einen umfassenden Uberblick über die Anwendimg der Sozialcharta in ihrer ursprünglichen Form gibt Lenia Samuel, Fundamental Social Rights. Case Law of the European Social Charter, Straßburg 1997. 58

ETS 35, geändert durch ein Protokoll von 1990 (ETS 142) bzw. ETS 128.

59

ETS 158; zu dieser weiteren Neuregelung siehe sogleich unten II.6b.

60

Weiterhin wurden viele Veränderungen im Detail vorgenommen, die zum großen Teü den schon bestehenden Schutz geringfügig ausbauen. Derartige Änderungen finden sich in Art. 2 Abs. 4, Art. 3, Art. 7, Art. 12, Art. 16, Art. 17. Siehe dazu jeweüs die Ausführungen im Erläuternden Bericht (Anm. 57).

581

582

Martin Mennecke und Christian Tams

Vertretern garantieren sowie ein Recht dieser Vertreter auf Information und Anhörung bei bevorstehenden Massenentlassungen begründen. Art. 30 und 31 schließlich schaffen Ansprüche auf Schutz vor Armut und Obdachlosigkeit, zielen damit also wie auch der neugefaßte Art. 15 über den Schutz bei der Arbeit hinaus. Für die Kontrolle der Einhaltung der Verpflichtungen verweist Art. C (Teil IV) der revidierten Sozialcharta auf das Uberwachungssystem des ursprünglichen Vertragswerkes, weshalb sich keine Änderungen ergeben. In Art. Ε (Teil V) ist der Grundsatz der Nichtdiskriminierung in Anlehnung an Art. 14 EMRK zusätzlich als allgemeine Bestimmung eingefügt worden. Art. F bis J fassen die bisherigen Regelungen über die Möglichkeiten der Außerkraftsetzung bzw. Begrenzung der Schutzbestimmungen, der Vertragsumsetzung und -änderung zusammen. Gemäß Art. Κ (Teil VI) tritt die revidierte Sozialcharta einen Monat nach Ratifikation durch das dritte Europaratsmitglied in Kraft. Bis Ende 1997 war sie von zwölf Staaten unterzeichnet worden; zu einer Ratifikation ist es jedoch bisher nicht gekommen. Eine Unterzeichnung durch Deutschland steht noch aus. 6. Sonstiges Zusätzlich zu den erwähnten Vertragswerken verabschiedete das MK im Berichtszeitraum drei weitere Protokolle, die bereits bestehende Abkommen ergänzen sollen.

a) Am 9. November 1995 wurde in Straßburg das Zusatzprotokoll zum Europäischen Rahmenübereinkommen über die grenzüberschreitende Zusammenarbeit zw Gemeinden und Gebietskörperschaften (ETS 159, hiernach ZPGZ) zur Signatur aufgelegt. Es trifft Regelungen über die grenzüberschreitende Zusammenarbeit zwischen Einheiten lokaler bzw. regionaler Selbstverwaltung. Nach Art. 3 ZPGZ kann die Zusammenarbeit von einer Organisation mit eigener Rechtspersönlichkeit durchgeführt werden. Diese unterliegt den Gesetzen des Landes, in dem sie ihren Hauptsitz hat; dies auch dann, wenn sie im anderen Land tätig wird (Art. 4 Abs. 1 und Abs. 2a). Jedoch darf sie gem. Art. 4 Abs. 2b und c nicht zu Eingriffen in die Freiheitssphäre von Bürgern ermächtigt werden und auch keine Steuern erheben. Gemäß Art. 5 ZPGZ können die vertragsschließenden Parteien die Organisation auch als Einrichtung des öffentlichen Rechts gründen und ihr Hoheitsgewalt verleihen, gegen die dann allerdings der Rechtsweg nach dem Recht des jeweils betroffenen Staates offensteht (Art. 6 Abs. 3). Bei der Unterzeichnung oder Ratifikation haben Staaten ausdrücklich zu erklären, ob sie Art. 4 und 5 ZPGZ gegen sich gelten lassen wollen (Art. 9). Das Zusatzprotokoll steht nach Art. 10 Abs. 1 allen Mitgliedern der Rahmenkonvention zur Unterzeichnung offen. Es tritt drei Monate nach Ratifikation durch vier Europaratsmitglieder in Kraft (Art. 11 Abs. 1). Bis Ende September 1997 ist es zu acht Unterzeichnungen und drei Ratifikationen gekommen; Deutschland hat

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

583

das Zusatzprotokoll am Tage seiner Auflegung unterzeichnet, es aber noch nicht ratifiziert.

b) Ebenfalls seit dem 9. November 1995 liegt ein Zusatzprotokoll zur Europäischen Sozialcharta über die Errichtung eines Systems kollektiver Beschwerdemöglichke Unterzeichnung auf (ETS 158, hiernach ZPSC).61 Kern des Zusatzprotokolls sind Bestimmungen, die den Kreis der zur Beschwerde über Verletzungen der Europäischen Sozialcharta Berechtigten ausweiten. Nach Art. 1 ZPSC steht es nunmehr auch den folgenden Vereinigungen zu, Beschwerden an den Sachverständigenausschuß zu richten: internationalen Tarifverbänden, die schon bisher gem. Art. 27 Abs. 2 der Sozialcharta am Uberprüfungsverfahren beteiligt waren, europäischen Nicht-Regierungsorganisationen mit Beraterstatus beim Europarat sowie nationalen Gewerkschaften und Unternehmerverbänden. Darüber hinaus können sich die Vertragsparteien bereiterklären, auch anderen nationalen Nicht-Regierungsorganisationen mit besonderem Bezug zur Sozialpolitik die Beschwerdemöglichkeit einzuräumen (Art. 2 Abs. 1). Durch die Beteiligung der genannten Vereinigungen soll es zu einer Effektivierung des Schutzes im sozialen Bereich kommen; das Beschwerdeverfahren selbst erfährt dagegen keine Veränderungen.62 Es besteht — wie auch gem. Teil IV der Sozialcharta — aus einem Bericht des Sachverständigenausschusses an das MK, das durch Beschluß eine Verletzung der Vertragspflichten feststellen kann (Art. 7 - 9 ZPSC). Die Erweiterung des Kreises der Beschwerdeberechtigten wird auch für die revidierte Fassung der Europäischen Sozialcharta Gültigkeit haben.63 Gemäß Art. 13,14 ZPSC können Vertragsparteien der Europäischen Sozialcharta dem Zusatzprotokoll beitreten; es tritt einen Monat nach Ratifikation durch das vierte Europaratsmitglied in Kraft. Mittlerweile ist es zu zehn Unterzeichnungen und drei Ratifikationen gekommen. Deutschland hat das Zusatzprotokoll noch nicht unterzeichnet.

c) Seit dem 5. März 1996 steht das 6. Protokoll zum Allgemeinen Abkommen über Vorrechte und Immunitäten des Europarates (ETS 162)64 zur Unterzeichnung offen. E ergänzt die Bestimmungen der Art. 40 des Statuts des Europarates i.V.m. Art. 18 des Allgemeinen Abkommens über Vorrechte und Immunitäten des Europarates sowie 61 Die Europäische Sozialcharta (ETS 35/BGBl. 1964 Π, 1262 ff.) ist seit 1965 in Kraft. Ihre Ergänzung durch ein System kollektiver Beschwerdemöglichkeiten war durch die PV beständig gefordert worden; vgl. dazu Recommendation 1168 (1991), Opinion No. 167 (1993). Einen umfassenden Überblick über das neue Zusatzprotokoll gibt Klaus Lörcher, Eine neue Etappe zum Schutz der sozialen Grundrechte: das Beschwerdeprotokoll zur Europäischen Sozialcharta, Arbeit und Recht, Bd. 44, 1996, 48 ff. 62

Auch dazu siehe Lörcher (Anm. 61), 48 ff.

63

Vgl. Art. D (TeÜ ΙΠ) der revidierten Sozialcharta.

64

Auch abgedruckt in HRLJ, vol. 17, 1996, 474 f.

584

Martin Mennecke und Christian Tams

Art. 59 EMRK, die den Grundsatz festschreiben, daß Richter des Europäischen Gerichtshofes für Menschenrechte die zur Ausführung ihrer Tätigkeit nötigen Privilegien zu gewähren sind. Es ersetzt die bisher bestehenden Protokolle Nr. 4 und 5 zum Allgemeinen Abkommen über Vorrechte und Immunitäten, die getrennte Regelungen für Kommissionsmitglieder und Angehörige des Gerichtshofes trafen. Nach Verabschiedung des 11. Zusatzprotokolls zur EMRK und der damit verbundenen Reorganisation des Verfahrens vor dem zukünftigen Ständigen Gerichtshof war eine Neufassung nötig geworden.65 Die Zusatzprotokolle Nr. 4 und 5 behalten jedoch für Verfahren nach dem bisherigen System ihre Geltungskraft. Gemäß Art. 1 des nun verabschiedeten 6. Zusatzprotokolls soll Richtern und ihren Familien derselbe Schutz wie diplomatischen Gesandten zukommen.66 Nach Art. 3 genießen sie auch nach Ablauf ihrer Amtsperiode Schutz vor rechtlicher Verfolgung. Dieser kann allein durch das Plenum des Gerichtshofes aufgehoben werden; die Aufhebung muß allerdings erfolgen, wenn es zur Herstellung des Rechts notwendig ist und zu keiner Behinderung der Amtsausübung führt (Art. 4). Vom Schutz umfaßt sind auch Dokumente, die in bezug zur Tätigkeit des Gerichtshofes stehen (Art. 6). Nach Art. 7 können alle Europaratsmitglieder, die zugleich Mitgliedstaaten des Allgemeinen Abkommens über Vorrechte und Immunitäten sind, dem Protokoll beitreten. Es tritt einen Monat nach Ratifikation durch den dritten Staat, nicht aber vor dem 11. Zusatzprotokoll zur EMRK in Kraft (Art. 8). Bis Ende 1997 haben zehn Staaten das Protokoll unterzeichnet, darunter Deutschland am 30. September 1996. Nach mittlerweile vier Ratifikationen wird das Protokoll zeitgleich mit dem 11. Zusatzprotokoll zur EMRK am 1.11.1998 in Kraft treten.

65 66

Erläuternder Bericht, abgedruckt in HRLJ, vol. 17, 1996, 475 f., Abs. 2.

Also insbesondere die Vorrechte nach dem Wiener Ubereinkommen über diplomatische Beziehungen (UNTS 500,96 ff./BGBl. 1964 Π, 957 ff.) und der Diplomatenschutzkonvention (UNTS 1035, 167 ff./BGBl. 1976 Π, 1745 ff.).

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

III. Behandlung allgemeinpolitischer Fragen im Europarat 1. Das Ministerkomitee

67

a) Zentral- und Osteuropa Wie in den vergangenen Jahren bildeten auch 1995 und 1996 die Beziehungen zu den Staaten in Osteuropa einen Schwerpunkt der Tätigkeit des Europarates. Mit Albanien, Weißrußland, Moldawien, der Ukraine, Rußland und den Staaten des ehemaligen Jugoslawien wurden Verhandlungen über die Aufnahme in den Europarat und den Beitritt zu bestehenden Konventionen geführt. Vor der Aufnahme in den Europarat erfolgte meist als Zwischenschritt die Einladung des Europarates an die beitrittswilligen Länder, einzelne Konventionen zu ratifizieren. 68 Vielfach wurde dem an der Aufnahme interessierten Staat auch aufgegeben, zunächst demokratische Reformen voranzutreiben und den Menschenrechtsschutz im eigenen Land effektiv zu gestalten. An Rußland richtete das MK in diesem Zusammenhang z. B. den Appell, den Konflikt in Tschetschenien auf friedlichem und politischem Wege zu lösen.69 Neben Beitrittsverhandlungen gab es zahlreiche, vom MK initiierte Projekte in einzelnen zentral- oder osteuropäischen Ländern.70 Als Beispiel sei hier das gemeinsam mit der Europäischen Union durchgeführte PHARE-Programm in Albanien zur Förderung der Menschenrechte genannt.71 Darüber hinaus kam es mehrfach zu Gesprächen mit hochrangigen Vertretern der jeweiligen Landesregierungen und Reisen von Delegationen des Europarates in diese Länder, so z. B. dem Besuch des Vorsitzenden des MK und des Generalsekretärs des Europarates in Moskau am 18. Januar 1996.72

67 Im folgenden wird lediglich eine schwerpunktmäßige Zusammenfassimg der umfangreichen Tätigkeiten des M K gegeben. Für eine detailliertere Ubersicht empfiehlt sich das Studium der Statutory Reports, Communications on the Activities of the Committee of Ministers, Docs. 7283, 7332, 7393, 7460, 7527, 7582, 7632, 7736. 68

Docs. 7283, 3 f.; Doc. 7332, 2; Doc. 7393, 1; 7632, 2.

69

Doc. 7582, 1; für Kroatien siehe Docs. 7582, 3 und 7632, 3.

70

Docs. 7332, 2 f. und 7393, 1 f.

71

Doc. 7283, 3; zur Medienfreiheit in Weißrußland Doc. 7332, 2.

72

Doc. 7460, 4.

585

586

Martin Mennecke und Christian Tams

b) Ehemaliges Jugoslawien Ein besonderes Augenmerk galt erneut den Bemühungen um den Wiederaufbau Bosnien-Herzegowinas und der übrigen Staaten auf dem Gebiet des ehemaligen Jugoslawiens.73 So verabschiedete das MK ein Bündel von Maßnahmen zur Unterstützung von unabhängigen Medien im ehemaligen Jugoslawien.74 Außerdem wirkte das MK durch die Ernennung von acht Richtern an der Errichtung der im Dayton Peace Agreement vorgesehenen Menschenrechtskammer für Bosnien-Herzegowina mit. 75 In der Schlußerklärung der 97. Sitzung betonten die Mitglieder des MK erneut ihre Bereitschaft, beim demokratischen Wiederaufbau Bosnien-Herzegowinas und der anderen Teile des ehemaligen Jugoslawiens mitzuwirken, und erklärten dies zu einer Hauptaufgabe der europäischen Institutionen.76 Die Vorbereitung freier Wahlen und die Organisation der Rückkehr der Flüchtlinge in die Staaten des ehemaligen Jugoslawiens rückte in der 98. Sitzung in den Mittelpunkt der Tätigkeit des Europarates.77 In der 99. Sitzung suchte das MK nach Möglichkeiten, den demokratischen Wiederaufbau Bosnien-Herzegowinas finanziell noch nachhaltiger zu unterstützen und den Beitritt des Landes zum Europarat vorzubereiten. 78 c) Mittelmeerraum Einer Empfehlung der PV folgend, beschloß das MK im Februar 1995, die Kooperation des Europarates mit den Anrainerstaaten im Mittelmeerraum zu fördern. Als möglicher Anknüpfungspunkt wurde die Zusammenarbeit in den Bereichen Menschenrechte, Kampf gegen den Drogenhandel, Umwelt und Kultur genannt. Eine ad hoc-Arbeitsgruppe hielt mehrere Treffen ab, um einen diese Themen betreffenden Beitrag des Europarates für die Mittelmeerkonferenz der EU vom 25. bis 27. November 1995 in Barcelona vorzubereiten. 79 Außerdem beschäftigte sich das Europäische Zentrum für Globale Interdependenz und Solidarität mit dem Mittelmeerraum. Ein Ergebnis war die Vorstellung einer eigenen Internet-Seite, genannt MedGate, im November 1995.80

73

Doc. 7632, 2 f.

74

Doc. 7283, 4.

75

Does. 7460, 4; 7527, 1 f.

76

Doc. 7460, 27.

77

Doc. 7582, 2.

78

Doc. 7736, 4.

79

Doc. 7460, 6.

80

Doc. 7460, 19.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

d) Nichteuropäische Staaten Im März 1995 beauftragte das MK das Sekretariat damit, die Kontakte zu den Staaten in der transkaukasischen Region (Armenien, Aserbeidschan und Georgien) auszubauen.81 Im Februar 1996 ergingen Einladungen an diese Länder, als Beobachter in den verschiedenen Arbeitsgruppen und Ausschüssen des Europarates mitzuarbeiten. Nach weiteren Gesprächen beantragte Armenien als erstes Land aus der transkaukasischen Region im März 1996 die Mitgliedschaft; die anderen beiden Staaten folgten im Juli desselben Jahres.82 Vom 13. bis 17. Juli bereiste der damalige Vorsitzende des MK, des estnischen Außenministers Siim Kallas, zusammen mit dem Generalsekretär Daniel Tarschys die aufnahmewilligen Staaten.83 Wie bei den osteuropäischen Staaten standen vor dem tatsächlichen Eintritt in den Europarat auch bei den transkaukasischen Ländern zunächst der Stand der inneren Reformen und der Beitritt zu einzelnen Konventionen im Vordergrund. 84 e) Internationale Organisationen Das MK erörterte wiederholt die Möglichkeit, Vorhaben mit anderen internationalen Organisationen zu koordinieren, beispielsweise beim Wiederaufbau BosnienHerzegowinas.85 Besonders viele Anknüpfungspunkte ergaben sich dabei aufgrund des sich teilweise deckenden Themen- und Mitgliederkreises für eine Zusammenarbeit mit der Europäischen Union und der OSZE. aa) Europäische Union Das MK beschäftigte sich auf seiner 96. Sitzung am 11. Mai 1995 ausführlich mit der künftigen Rolle des Europarates in dem entstehenden Gefüge von europäischen Institutionen, insbesondere unter dem Aspekt der wachsenden Mitgliederzahl des Europarates und der Maastricht Π-Konferenz. 86 Die Minister stellten fest, daß der Europarat durch sein Eintreten für Demokratie, Rechtsstaatlichkeit und Menschenrechte einen Beitrag zur Stabilität und Sicherheit Europas leiste. Deshalb solle die weitere Aufnahme von Mitgliedern in ein europäisches Gesamtkonzept eingebettet werden. Grundlegend sei somit die Vertiefung der Kooperation mit der Europäischen 81

Doc. 7283, 4.

82

Does. 7527, 2; 7582, 4; 7632, 1.

83

Doc. 7632, 1.

84

Does. 7632, 1 f.; 7736, 4.

85

Does. 7283, 1 f.; 7460, 3.

86

Doc. 7332, 3.

587

588

Martin Mennecke und Christian Tams

Union und der OSZE. Zur Ausarbeitung von Vorschlägen wurde im Juni 1995 eine ad Äoc-Arbeitsgruppe installiert, die auch die Stellungnahmen der PV miteinbezog. Daneben fanden regelmäßig Treffen zwischen dem Generalsekretär und dem Vorsitzenden des Europarates und Mitgliedern der EU-Kommission statt. Ihren vorläufigen Höhepunkte fanden diese Bestrebungen im Herbst 1996, als nach einem solchen Gipfel am 23. Oktober 1996 feierlich eine Erklärung über die Zusammenarbeit zwischen Europarat und EU ausgetauscht wurde, die an die Stelle einer Ubereinkunft aus dem Jahre 1987 trat. 87 Gemeinsame Aktionen von Europarat und EU gab es z. B. beim Kampf gegen Rassismus und Ausländerfeindlichkeit 88 und in der Ukraine bei dortigen Reformen der Gesetzgebung und Justiz . 8 9 Am 14. Februar 1996 vereinbarten die EU und der Europarat gemeinsame Maßnahmen zur Unterstützung der russischen Regierung bei ihren Bemühungen um die Reform der Justiz und den Aufbau eines wirksamen Menschenrechtsschutzes.90 Aber auch in den Bereichen Soziales, Umwelt, Bildung und Kultur liefen Kooperationsprogramme. 91 bb) OSZE Auch mit der OSZE gab es gemeinsame Arbeitstreffen und mehrfach Austausch auf höchster Ebene, sogenannte „2+2-Gespräche" zwischen den beiden Vorsitzenden und Generalsekretären. Ziel dieser Gespräche war es, sicherzustellen, daß Hilfsprogramme und ähnliche Projekte im ehemaligen Jugoslawien und anderen Krisengebieten miteinander koordiniert werden.92 Die Zusammenarbeit mit der OSZE erstreckte sich u. a. auf die Bereiche des Schutzes nationaler Minderheiten und des Kampfes gegen Rassismus und Intoleranz in Europa. Daneben gab es zum Beispiel gemeinsame Seminare zum Thema „Sicherheitsmodelle im 21. Jahrhundert". 93 Beim Wiederaufbau in den Staaten des ehemaligen Jugoslawien kooperierten Europarat und OSZE mehrfach, so in der Menschenrechte-Kommission in Bosnien-Herze-

87

Doc. 7736, 5.

88

Doc. 7460, 9 f.

89

Doc. 7460, 5.

90

Doc. 7527,3.

91

Doc. 7393,9 (Gemeinsamer Schutz des kulturellen Erbes); Doc. 7460,12 (Umweltschutz beim industriellen Umbau in Osteuropa); Doc. 7582, 4. 92

Does. 7460, 5; 7632, 4.

93

Docs. 7393, 3; 7582, 4.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

gowina und bei der Entsendung einer gemeinsamen Untersuchungskommission nach Kroatien. 94 cc) Andere internationale Organisationen Des weiteren gab es Gespräche zwischen Vertretern des Europarates und Mitarbeitern der Vereinten Nationen und der OECD und gemeinsame Ausschußsitzungen und Workshops.95 Konkret wurde die Zusammenarbeit mit den Vereinten Nationen bei einzelnen Projekten im ehemaligen Jugoslawien.96 Im April 1995 beschloß der Europarat, seinen Beobachterstatus bei den Vereinten Nationen künftig stärker zu nutzen.97 f) Konferenzen einzelner Fachminister Am 3./4. Mai 1995 trafen sich auf Einladung des luxemburgischen Jugendministers Alex Bodry 43 europäische Jugendminister in Luxemburg, um die Tätigkeit des Europarates in den vergangenen zehn Jahren auf diesem Gebiet zu beleuchten und Perspektiven für die Zukunft aufzuzeigen. Die Konferenz, an der auch die Vertreter mehrerer internationaler Jugendorganisationen teilnahmen, verabschiedetete eine Deklaration, in der die Minister versprachen, ihre Anstrengungen für eine europäische Jugendpolitik in den Bereichen Bildung, Wohnen und soziale Integration zu .

.

go

intensivieren. Ähnliche Fachkonferenzen hielten auch die Minister für Sport, Kultur, Familie, die Justizminister und die Sozialminister ab.99 Dabei wurden Themen wie „Das kulturelle Erbe: eine ökonomische und soziale Herausforderung", 100 Einwanderung nach Europa 101 und die Finanzen der Gemeinden102 diskutiert.

94

Doc. 7582, 2.

95

Doc. 7393, 2 f. und 11 f.

96

Doc. 7632, 3.

97

Doc. 7283, 2.

98

Doc. 7332, 15.

99

Does. 7332, 16 f.; 7393, 15 f.; 7582, 21 f.; 7736, 27 f.

100

Doc. 7582,21.

101

Doc. 7582, 22.

102

Doc. 7736, 27.

589

590

Martin Mennecke und Christian Tams

g) Sonstige politische Inhalte 1995 und 1996 Das MK beschäftigte sich über die aufgeführten Schwerpunkte hinaus noch mit einer Fülle weiterer Themen aus der Sozial-103, Medien-104, Entwicklungs-105 und Umweltpolitik 106 . Als Beispiel sei hier die Antirassismus-Kampagne des Europarates genannt. 1995 hielt der Europarat eine Jugendkampagne gegen Rassismus, Ausländerfeindlichkeit, Intoleranz und Antisemitismus in Europa ab. Demonstrationen, Theateraufführungen und Seminare in allen Mitgliedsstaaten fanden ihren Höhepunkt in einer Aktionswoche vom 9. bis 15. Juli in Straßburg: Hierzu trafen mit sechs Sonderzügen mehrere hundert Jugendliche ein, die in den Tagen zuvor quer durch Europa für die Antirassismus-Kampagne geworben hatten.107 Der Europarat wertete diese Kampagne als vollen Erfolg und beschloß, sich auch weiterhin aktiv mit den Belangen von Jugendlichen in Europa auseinanderzusetzen. Als Zentrale für weitere Schritte in diese Richtung, insbesondere in den neuen Mitgliedstaaten in Zentral- und Osteuropa, eröffnete der Europarat am 15. Dezember 1995 ein Europajugendzentrum in Budapest.108 2. Die Parlamentarische

Versammlung

a) Themen der Debatten aa) Die Lage im ehemaligen Jugoslawien Auch in den Jahren 1995 und 1996 setzte sich die PV immer wieder mit der Lage im ehemaligen Jugoslawien auseinander. Auf den erneuten erneuten Ausbruch der Gewalttätigkeiten in Bosnien-Herzegowina im Frühsommer 1995 ging die PV in einer Dringlichkeitssitzung ein.109 Sie befaßte sich speziell mit der Lage der Bürger-

103 Siehe zur Gleichberechtigung von Frauen und Männern im Berufsleben, aber auch im Europarat selbst Does. 7332, 5; 7393, 6; 7632, 5 f.; zur Eingliederung von behinderten Menschen ins Berufsleben vgl. Does. 7332, 9 f.; 7460, 11 f.; 7527, 11 f.; 7582, 13 f. 104

Zum Filmförderungsprogramm Eurimages siehe u. a. Does. 7393,13 und 7527,16; zu den Publikationen des Europarates in diesem Bereich vgl. Doc. 7527,15 f. 105

Zu den Sitzungen des Nord-Süd-Ausschusses siehe z. B. Doc. 7393, 12.

106

Europäischer Artenschutz und andere Umweltthemen in Does. 7460, 12 und 7582, 10.

107

Doc. 7393, 3 f.; siehe auch Doc. 7283, 5.

108

Doc. 7460,13.

109

Debates 1995, 663 ff.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

kriegsflüchtlinge. 110 Die internationalen Bemühungen um eine friedliche Lösung des Konflikts ab Mitte 1995 unterstützte sie ausdrücklich111 und forderte die Konfliktparteien im Verlauf des Jahres 1996 mehrfach zur Einhaltung des Dayton Peace Agreement auf. 112 Im Zuge der Verhandlungen über den Beitritt Kroatiens zum Europarat verurteilte die PV im Mai 1996 die kroatische Führung wegen Eingriffen in die Presse· und Wahlfreiheit und stieß so die Debatte über den Beitritt neu an.113 bb) Sonstige Gefährdungen von Frieden und Sicherheit Auch außerhalb des Konfliktes in Ex-Jugoslawien befaßte sich die PV mit aktuellen Gefährdungen von Frieden und Sicherheit. Sie erteilte Forderungen der türkischzypriotischen Bevölkerungsgruppe nach Eigenstaatlichkeit eine erneute Absage und unterstützte statt dessen die von UN-Generalsekretär Boutros Boutros-Ghali neu initiierten Friedensbemühungen.114 Der türkische Einmarsch in den Nordirak im Frühjahr 1995 wurde kritisiert und ein sofortiger Truppenrückzug gefordert. 115 Wiederholt ging die PV auch auf die Eskalation der Gewalt im Nahen Osten ein. In einer Dringlichkeitssitzung im April 1996 wurden die Attentate der Hisbollah und das erneute militärische Vorgehen israelischer Truppen gegen Ziele im Südlibanon verurteilt. 116 Im September 1996 wurde der Entwurf einer Empfehlung zurückgezogen, weil am selben Tag ein erneutes Attentat die Hoffnungen auf Frieden wieder erschüttert hatte.117 Allein vier Debatten waren darüber hinaus der Situation in Tschetschenien gewidmet. Nach deutlicher Kritik am militärischen Vorgehen der russischen Truppen beschloß die PV im Januar 1995, die Beschäftigung mit dem russischen Wunsch nach Beitritt zum Europarat auszusetzen.118 Auch nach Wiederaufnahme der Verhandlungen und dem Beitritt des Landes zum Europarat 119 blieb das Thema Gegenstand der

110

Debates 1996,175 ff., 184 ff., 204 ff.; Doc. 7444, Resolution 1077, Recommendation 1288.

111

Debates 1995, 836 ff., Doc. 7395, Resolution 1066.

112

Debates 1996, 499 ff., 526 ff., Doc. 7509, Recommendation 1297; ebenso Debates 1996, 834 ff., Doc. 7588, Recommendation 1301. 113

Resolution 1089; siehe dazu schon oben 1.2.

114

Debates 1995, 205 ff., Doc. 7206, Resolution 1054, Recommendation 1259.

115

Debates 1995, 378 ff., Doc. 7290, Recommendation 1266.

116

Debates 1996, 598 ff., Doc. 7540, Resolution 1088.

117

Debates 1996, 1101 ff.

118

Debates 1995, 221 ff., Does. 7230 und 7231, Resolution 1055, Order 506.

119

Debates 1995, 804 ff., Does. 7372 und 7400, Resolution 1065 sowie Debates 1996,216 ff., 229 ff., 235 ff., 253 ff., Does. 7443 und 7475, Opinion 193, Order 516.

591

592

Martin Mennecke und Christian Tams

Debatten, in denen die Parlamentarier z. B. weiterhin Kritik an der massiven russischen Truppenpräsenz äußerten.120 cc) Kooperation mit den Staaten Zentral- und Osteuropas Die stetige Erweiterung des Europarates um Staaten Zentral- und Osteuropas führte zu einer häufigen Beschäftigung mit Fragen der Zusammenarbeit zwischen alten und neuen Mitgliedstaaten. Die Parlamentarier diskutierten über Möglichkeiten der Kooperation in den Bereichen Kultur, 121 Wissenschaft und Technologie.122 Sie erörterten die Situation von Flüchtlingen und Asylbewerbern 123 sowie die wirtschaftliche Entwicklung in Osteuropa124 und befaßten sich mit der Problematik des kommunistischen Erbes.125 dd) Minderheitenrechte, Menschenrechte Auch nach Verabschiedung der o. g. Rahmenkonvention zum Minderheitenschutz126 blieb das Thema auf der Agenda der PV. Die Verabschiedung der Rahmenkonvention wurde von den Parlamentariern zwar begrüßt, aber nicht für ausreichend zur Durchsetzung eines effektiven Minderheitenschutzes befunden. In Empfehlung 1255 vom Januar 1995 wurde erneut die Verankerung aller Minderheitenschutzbestimmungen in einem Zusatzprotokoll zur EMRK gefordert; 127 ein Jahr später dann die Nichtbeachtung dieses Vorschlags kritisiert und die Relevanz des Themas Minderheitenschutz noch einmal hervorgehoben. 128 Aus dem Bereich des Schutzes individueller Menschenrechte diskutierte die PV Möglichkeiten der Verbesserung der Haftbedingungen in europäischen Gefängnissen.129 Die Arbeiten an einem Zusatzprotokoll zur EMRK über die Rechte von In120

Debates 1996, 806 ff., Does. 7475, 7560.

121

Debates 1995, 336 ff., 340 ff., 346 ff., Doc. 7272, Recommendation 1265.

122

Debates 1996, 69 ff., Doc. 7451, Resolution 1075.

123

Debates 1995, 714 ff., 730 ff., Doc. 7368, Recommendation 1278.

124

Debates 1996, 300 ff., Doc. 7453, Resolution 1078.

125

Debates 1996, 765 ff., 793 ff., Doc. 7568, Resolution 1096.

126

Siehe oben Π.Ι.

127

Debates 1995, 74 ff., 77 ff., Doc. 7228, Recommendation 1255; siehe auch schon den detaillierten Vorschlag der PV für ein solches Ergänzungsabkommen in Recommendation 1201 (1993). 128

Debates 1996, 108 ff., Doc. 7442, Recommendation 1285; zur weiteren Auseinandersetzung mit der Fragestellung siehe auch Debates 1996,677 ff., Doc. 7572, Recommendation 1300. 129

Debates 1995, 126 ff., Doc. 7215, Recommendation 1257.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

haftierten sind nach Ansicht der Parlamentarier schnellstmöglich zum Abschluß zu bringen. Zum wiederholten Mal trat die PV für die vollständige Abschaffung der Todesstrafe in Europa ein.130 Zur Herbeiführung der Chancengleichheit zwischen Männern und Frauen wurde schließlich die Ausarbeitung eines weiteren Zusatzprotokolls zur EMRK angeregt; auch wurden alle Mitgliedstaaten zur Unterzeichnung des Übereinkommens über die Beseitigung jeder Form von Diskriminierung der Frau 131 aufgefordert. 132 Im Zuge der Beratungen der Entwürfe der Bioethik-Konvention äußerten sich die Parlamentarier besorgt über die ihrer Ansicht nach zu geringe Beachtung des Rechtes aller Patienten auf physische Integrität und Selbstbestimmung. In Stellungnahme Nr. 184 wurde daher eine „gründliche Überarbeitung" des Textentwurfs und die Aufnahme weiterer Bestimmungen zum Schutz von Patienten vor Eingriffen, die ohne ihr Einverständnis erfolgen, gefordert. 133 Trotz teilweiser Berücksichtigung dieser Modifikationen blieb auch die erneute Debatte im September 1996 kontrovers, erbrachte jedoch nur noch minimale Anderungsvorschläge. 134 ee) Sonstige Themen Weiterhin befaßten sich die Parlamentarier im Berichtszeitraum mehrfach mit Fragen des Umwelt- und Naturschutzes,135 der Situation von Kindern und Jugendli130

Debates 1996, 848 ff., Doc. 7589, Resolution 1097, Recommendation 1302; siehe dazu auch schon Resolution 1044 und Recommendation 1246 aus dem Jahr 1994. 131

U N T S 1249, 13 ff./BGBl. 1985 Π, 648 ff.

132

Debates 1995, 464 ff., Doc. 7271, Recommendation 1269; zur Forderung nach einem Zusatzprotokoll siehe auch schon Recommendation 1229 aus dem Jahr 1994. Zur spezifischen Problematik der Diskriminierung im Namensrecht siehe Debates 1995, 486 ff., Doc. 7259, Recommendation 1271. 133

Debates 1995, 172 ff., 175 ff., Doc. 7210, Opinion Nr. 184. Zur vorherigen Diskussion über Entwürfe der Bioethik-Konvention vgl. Does. 7210, 7223, 7234, 7622, 7654, 7664. 134

Debates 1996,1063 ff., 1092 ff., Doc. 7622, Opinion Nr. 198. Über die verbleibenden Änderungsvorschläge wurde in der Folgezeit schnell Klarheit erzielt, so daß die Bioethik-Konvention verabschiedet wurde und seit dem 4. Aprü 1997 zur Unterzeichnung offensteht (ETS 164). Vgl. Anke Gimhal, Europarat und Europäische Menschenrechtskonvention, JEI1996/97, 379, 380 f.; zur Diskussion in Deutschland siehe Adolph Laufs, Das Menschenrechtsübereinkommen zur Biomedizin und das deutsche Recht, NJW, Bd. 50, 1997, 776 ff. Der Text der Konvention sowie der Erläuternde Bericht sind auch abgedruckt in HRLJ, vol. 18, 1997, 135 ff. 135 Tagesordnungspunkte waren im einzelnen: Umwelt und Erziehung, Debates 1995,96 ff., 154 ff., Doc. 7189, Recommendation 1258; Europäische Umweltpolitik, Debates 1996, 83 ff., Doc. 7441, Resolution 1076, Recommendation 1284; Tierschutz, Debates 1996, 307 ff., Doc. 7427, Recommendation 1289; Konsequenzen der Katastrophe von Tschernobyl, Debates 1996, 580 ff., Doc. 7538, Resolution 1087.

38 G Y I L 4 0

593

594

Martin Mennecke und Christian Tams

chen,136 der Rolle von Regionen in Europa 137 sowie sozialpolitischen Fragestellungen.138 Sie nahmen darüber hinaus die Tätigkeitsberichte der OECD 139 und der Europäischen Bank für Wiederaufbau und Entwicklung140 entgegen. b) Ansprachen von Regierungsvertretern Wie schon in den Vorjahren richteten auch 1995 und 1996 eine beträchtliche Anzahl von Staats- und Regierungsvertretern Ansprachen an die Parlamentarier. 141 Der lettische Parlamentspräsident Anatolijs Gorbunovs dankte am Tage des Beitritts seines Landes dem Europarat für dessen Politik der Nichtanerkennung der Inkorporation der baltischen Republiken gegenüber der ehemaligen Sowjetunion.142 Er stellte die Ratifizierung weiterer europäischer Vertragswerke, wie z. B. der Rahmenkonvention zum Minderheitenschutz, durch sein Land in Aussicht, betonte aber gleichermaßen, daß Lettland nicht gewillt sei, dem russisch-stämmigen Teil seiner Bevölkerung die Staatsbürgerschaft zuzubilligen. König Hussein II. von Jordanien sprach zu den Parlamentariern über den israelischjordanischen Friedensvertrag von 1994 und die Möglichkeiten einer Lösung des israelisch-palästinensischen Konflikts. 143 Mit Blick auf die Situation im Irak rief er die internationale Gemeinschaft zur Aufhebung der Wirtschaftsblockade auf, die im Volk für unbeschreibliches Leid sorge.

136 Allgemein zur Lage der Kinder und Jugendlichen Debates 1996, 133 ff., Doc. 7436, Recommendation 1286 sowie Debates 1996,702 ff. Speziell zum Problem der sexuellen Mißhandlung von Kindern Debates 1996, 984 ff., Doc. 7659, Resolution 1099. 137

Debates 1995, 88 ff., Doc. 7220, Resolution 1053, Recommendation 1256. Speziell zur Situation in Grenzregionen Debates 1995,453 ff., Doc. 7273, Recommendation 1268; zu Bergregionen siehe Debates 1995, 563 ff., Doc. 7319, Recommendation 1274; zu ländlichen Regionen Debates 1996, 385 ff., Doc. 7507, Recommendation 1296. 138

I m einzelnen: Arbeitszeit, Debates 1995, 735 ff.; Sozialpolitik und Arbeitslosigkeit in Europa, Debates 1996, 932 ff., 936 ff., Doc. 7620, Resolution 1098 sowie Doc. 7634, Recommendation 1304. 139 Debates 1995,921 ff., 945 ff., Doc. 7348, Resolution 1069; Debates 1996,1001 ff., 1023 ff., Doc. 7615, Resolution 1100. 140 Debates 1995, 543 ff., Doc. 7320, Resolution 1064; Debates 1996, 651 ff., 656 ff., Doc. 7564, Resolution 1094. 141 Insgesamt hielten 1995 Regierungsvertreter aus 24, 1996 aus 18 Staaten Ansprachen in Straßburg; 142

Debates 1995, 61 ff.

143

Debates 1995, 722 ff.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

595

In der vorletzten Sitzung des Jahres 1995 forderte Bundeskanzler Helmut Kohl, den Weg zur europäischen Einigung fortzusetzen. 144 Er betonte die — trotz der Existenz der Europäischen Union — eigenständige Funktion des Europarates in diesem Prozeß, z. B. als Forum für die Staaten Zentral- und Osteuropas. Die Parlamentarische Versammlung bezeichnete er aufgrund ihres beständigen Eintretens für die „europäischen Werte" als das „demokratische Gewissen" des Kontinents.145 In der dritten Sitzung des Jahres 1996 wies der schweizerische Bundesrat Flavio Cotti auf die zunehmende Bereitschaft seines Landes zur Mitwirkung an Projekten internationaler institutionalisierter Zusammenarbeit hin. 146 In seiner Funktion als Vorsitzender der OSZE forderte er eine Ausweitung der Kooperation zwischen beiden Organisationen und ging auf die positiven Auswirkungen der OSZE-Missionen in Moldawien, Bosnien-Herzegowina und im Transkaukasus ein. Anläßlich des zwanzigsten Jahrestages des Beitritts Portugals zum Europarat sprach dessen Präsident Jorge Sampaio vor der PV über die Notwendigkeit einer Initiative zur Schaffung von Arbeitsplätzen.147 Er verurteilte die Unterdrückung des Selbstbestimmungsrechtes der Bevölkerung von Ost-Timor und hob die Rolle seines Landes bei der Überbrückung des Nord-Süd-Gegensatzes hervor.

Unter den weiteren Rednern waren u. a. die Staatsoberhäupter Lennart Meri (Estland),148 Mati Ahtisaari (Finnland),149 Leonid Kuchma (Ukraine), 150 Kiro Gligorov („Ehemalige jugoslawische Republik Mazedonien")151 und Guntis Ulmanis (Lettland)152 sowie die Regierungschefs Edouard Balladur (Frankreich), 153 Vaclav Klaus (Tschechische Republik),154 Zhan Videnov (Bulgarien),155 Ingvar Carlsson (Schweden)156 und John Bruton (Irland). 157

38*

144

Debates 1995, 930 ff.

145

Debates 1995, 931.

146

Debates 1996, 102 ff.

147

Debates 1996, 871 ff.

148

Debates 1995, 316 ff.

149

Debates 1996, 154 ff.

150

Debates 1996, 352 ff.

151

Debates 1996, 618 ff.

152

Debates 1996, 909 ff.

153

Debates 1995, 63 ff.

154

Debates 1995, 11 ff.

155

Debates 1995, 283 ff.

156

Debates 1995, 586 ff.

157

Debates 1996, 230 ff.

596

Martin Mennecke und Christian Tams 3. CLRAE

Seit seiner zweiten Plenarsitzung (30. Mai -1. Juni 1995 in Straßburg) ist der Kongreß der Lokalen und Regionalen Behörden in Europa und seine beiden Kammern — Kammer der Regionen und Kammer der Lokalbehörden — voll arbeitsfähig. Delegierte aus 32 Mitgliedsstaaten des Europarates und weitere aus Ländern mit Beobachterstatus nahmen an der Sitzung teil. Hauptanliegen des Kongresses ist es, sich über lokale Probleme auf europäischer Ebene auszutauschen, um von den Erfahrungen der anderen zu Hause profitieren zu können.158 Behandelt wurden 1995 und 1996 dabei u. a. der Beitrag des Kongresses zur Jugendkampagne des Europarates gegen Rassismus, Ausländerfeindlichkeit, Antisemitismus und Intoleranz, das Subsidiaritätsprinzip und der Bericht einer Untersuchungskommission, die nach Rumänien entsandt worden war, um die zahlreichen Entlassungen dortiger Bürgermeister zu überprüfen. 159 Außerdem wurde ein europäisches Netzwerk gegründet, das den Schutz der Minderheit der Roma in den einzelnen Gemeinden der Mitgliedsstaaten koordinieren soll.160 Des weiteren erinnerte der Kongreß durch zahlreiche Seminare und Veranstaltungen an den zehnten Jahrestag der Charta der lokalen Autonomie und baute sein „Lokale Demokratie-Botschaften"-Programm aus, das Demokratie und Menschenrechte in konfliktbetroffenen Gemeinden wie beispielsweise in Sarajewo stärken soll.161 Auch 1996 entsandte der Kongreß Wahlbeobachter zur Überwachung von Gemeindewahlen. Die Delegationen besuchten zu diesem Zweck Albanien, Mazedonien und Armenien. 162 IV. Ausblick Ende 1996 ist die Erweiterung des Europarates zu einem vorläufigen Abschluß gekommen. Beitrittsverhandlungen laufen derzeit noch mit drei Staaten der transkaukasischen Region (Armenien, Azerbaidschan, Georgien), Weißrußland und BosnienHerzegowina. Bei nunmehr 40 Mitgliedsstaaten wächst nach Auffassung des MK die Möglichkeit, die Vision der Gründerväter des Europarates aus dem Jahr 1949 zu erfüllen: eine Organisation zu sein, die den gesamten europäischen Kontinent unter dem Konzept demokratischer Sicherheit umfaßt. 163 158

Doc. 7632,15.

159

Doc. 7332, 14 f.

160

Doc. 7393, 15; vgl. auch Doc. 7736, 27.

161

Does. 7460, 23 f.; 7527, 17 f.

162

Doc. 7736, 25 f.

163

Doc. 7460, 26.

Ministerkomitee

und Parlamentarische

Versammlung im Europarat

Zur Verbesserung der Zusammenarbeit fand im Oktober 1997 in Straßburg der zweite Gipfel der Staats- und Regierungschefs statt.164 Wie schon auf dem Wiener Gipfeltreffen von 1993 bildete die Diskussion über die Rolle des Europarates im Gefüge der europäischen Institutionen einen Schwerpunkt. Die Zusammenarbeit mit der Europäischen Union soll verbessert werden, indem beispielsweise die Kenntnisse über neue Beitrittskandidaten an die EU weitergegeben werden. Außerdem strebt der Europarat eine klarere Abgrenzung seiner Aktivitäten von denen der OSZE an. Darüber hinaus soll die Debatte über eine Reform der internen Struktur der Organisation belebt werden. Geplant sind die Stärkung der Rollen des Generalsekretärs sowie des MK. Dabei wird auch dem Gemeinsamen Ausschuß von PV und MK, der für die Koordinierung der Aktivitäten zuständig ist, zukünftig eine größere Rolle zukommen. Auch der neue, ständig tagende Gerichtshof für Menschenrechte, der ab November 1998 die Europäische Kommission für Menschenrechte und den Europäischen Gerichtshof für Menschenrechte ablösen wird, und ein noch zu schaffendes Amt eines Menschenrechtskommissars waren auf dem Gipfeltreffen Thema. Die Staats- und Regierungschefs beauftragten das MK im Hinblick auf den 50. Jahrestag der Gründung des Europarates im Jahr 1999 mit der Durchführung einer Strukturreform, um die Organisation den neuen Aufgaben und dem erweiterten Mitgliederkreis anzupassen. Weiter beschäftigten sich die vierzig Staats- und Regierungschefs mit der Umsetzung von Demokratie und Rechtsstaatlichkeit in den Mitgliedsstaaten. Zunehmend werden von der PV sogenannte Monitoring-Missionen in einzelne Länder entsandt, die vor Ort überprüfen, inwieweit die jeweilige Regierung ihren Verpflichtungen nachgekommen ist, und anschließend in Straßburg darüber Bericht erstatten. Dieser Kontrollprozeß soll vom MK im Rahmen eines konstruktiven Dialogs zwischen den Mitgliedsstaaten unterstützt werden.165

164 Eine Dokumentation der abschließenden Straßburger Erklärung der Staats- und Regierungschefs des Europarates findet sich in EuGRZ, Bd. 24,1997, 523 ff.; auf französisch auch in R U D H , vol. 9, 1997, 475 ff.; für die Vorbereitungen vgl. Doc. 7637, Recommendation 1303 sowie Doc. 7732. 165

Informationen über den Europarat sind mittlerweÜe auch im Internet unter http:// www.coe.fr abrufbar.

597

Die Tätigkeit der International Law Commission in den Jahren 1995 und 1996 Von Jörg Föh und Ina Wiesner

Die International Law Commission (ELC) hielt im Berichtszeitraum ihre 47. und 48. Tagung ab, die jeweils von Mai bis Juli in Genf stattfanden. Thematische Projekte waren weiterhin 1 die Erarbeitung von Kodifikationsentwürfen über —

Verbrechen gegen den Frieden und die Sicherheit der Menschheit (I),

—

Staatenverantwortlichkeit (Π),

—

die völkerrechtliche Haftung für Schäden aufgrund nicht-völkerrechtswidriger Aktivitäten (ΠΙ),

—

Vorbehalte bei Verträgen (IV).

Erstmalig beschäftigte die ILC sich mit den —

Auswirkungen von Staatensukzession auf die Staatsanghörigkeit natürlicher und juristischer Personen (V).

Am Ende dieser Darstellung folgen Überlegungen der ILC zu ihren Arbeitsmethoden und ein Ausblick auf künftige Vorhaben (VI).

Die 34 Mitglieder der ILC, die die Generalversammlung für die fünfjährige Amtszeit, beginnend mit dem 1. Januar 1992, gewählt hatte, sind aus der Gruppe der afrikanischen Staaten: Mohamed Bennouna (Marokko), SalifouFomba (Mali), Kamilldris (Sudan), Peter Kabatsi (Uganda), Abdul Koroma (Sierra Leone), AhmedMahiou (Algerien), Guillaume Pambou-Tchivounda (Gabun), Edilbert Razafindralambo (Madaga kar) undDoudou Thiam (Senegal); aus der Gruppe der asiatischen Staaten: HusainAlBaharna (Bahrain), Awn Al-Khasawneh (Jordanien), John de Saram (Sri Lanka), Mehmet Güney (Türkei), AndreasJacovides (Zypern), MochtarKusuma-Atmadja (Indone sien), Pemmaraju Sreenivasa Rao (Indien), Jiuyong Shi (China) und Chusei Yamad (Japan); aus der Gruppe der osteuropäischen Staaten: Vaclav Mikulka (Tschechien), Vladlen Vereshchetin (Russische Föderation) und Alexander Yankov (Bulgarien); aus der Gruppe der lateinamerikanischen und karibischen Staaten: Julio Barboza (Argentinien), Carlos Calero Rodrigues (Brasilien), Patrick Lipton Robinson (Jamaika), Albert 1

Vgl. dazu den Vorbericht von Christian Feist, Die Tätigkeit der International Law Commission in den Jahren 1993 und 1994, GYIL, vol. 38, 1995, 376 - 388.

Tätigkeit der International Law Commission in den Jahren 1995 und 1996

599

Szekely (Mexiko), Edmundo Vargas Carreno (Chile) und Francisco Villagran Kra (Guatemala); aus der Gruppe der westeuropäischen und anderen Staaten: Gaetano Arangio-Ruiz (Italien), Derek William Bowett (Vereinigtes Königreich), James Crawford (Australien), Gudmundur Eriksson (Island), Alain Pellet (Frankreich), Robert Rosenstock (Vereinigte Staaten) und Christian Tomuschat (Deutschland).

Nachdem Abdul Koroma, Jiuyong Shi und Vladen Vereshchetin zu Richtern am In ternationalen Gerichtshof gewählt worden waren, wurden ihre Plätze von Nabil Elaraby (Ägypten), Quizbi He (China) und Igor Ivanivich Lukasbuk (Russische Föderation) eingenommen. I. Verbrechen gegen den Frieden und die Sicherheit der Menschheit Die ILC erzielte im Berichtszeitraum einen großen Fortschritt bei der Kodifikation der Verbrechen gegen den Frieden und die Sicherheit der Menschheit. Die Kommission schloß auf ihrer 48. Tagung die zweite Lesung ab und verabschiedete zwanzig Artikelentwürfe. 1. 47. Tagung: Diskussion Nachdem auf der 43. Tagung (1991) der Entwurf einer Kodifikation der Verbrechen gegen den Frieden und die Sicherheit der Menschheit — bestehend aus einem ersten Teil allgemeiner Vorschriften und einem zweiten Teil, der eine Auflistung von Tatbeständen umfaßt — in erster Lesung angenommen wurde,2 lag der ILC auf der 47. Tagung (1995) der 13. Bericht des Sonderberichterstatters Doudou Thiam 3 als Arbeitsgrundlage vor. 4 In ihm waren Reaktionen der Staaten5 auf den ersten Entwurf als Anregung aufgenommen und verarbeitet worden.6 Das Hauptanliegen dieses Berichts war die Beschränkung der Anzahl der Tatbestände, um die Schlagkraft der Kodifikation zu erhöhen und nur solche Verbrechen zu erfassen, bei denen keine Kontroversen bezüglich ihres Charakters als Verbrechen gegen den Frieden und die Sicherheit der Menschheit bestehen.7

2

U N G A O R , 43rd Session, Supp. 10,198, U N Doc. A/43/10 (1988).

3

Sonderberichterstatter seit der 34. Tagung (1982), YBILC 1982, vol. Π, part 2, 121.

4

13. Bericht zum Kodifikationsentwurf der Verbrechen gegen den Frieden und die Sicherheit der Menschheit, U N Doc. A/CN.4/466 (1995). 5

Siehe zu den Staatenreaktionen: U N Doc. A/CN.4/448 & Add.l (1993).

6

Report of the International Law Commission on the Work of its Forty-Seventh Session (1995), U N GAOR, 50th Session, Supp. 10, U N Doc. A/48/10, 25 [im folgenden I L C Report 1995]. 7

U N Doc. A/CN.4/466, 4.

600

Jörg Föb und Ina Wiesner

Die Diskussionen der ILC drehten sich fast ausschließlich um die Tatbestände des zweiten Teils, wohingegen sich kaum Meinungsverschiedenheiten bezüglich des ersten Teils auftaten. 8 Es zeigte sich, daß eine Mehrheit den Vorschlag der Beschränkung der Anzahl der Tatbestände unterstützte.9 Kontroversen ergaben sich hauptsächlich bezüglich der Tatbestände Aggression und Verbrechen gegen die Menschlichkeit. Aggression ist in Art. 15 des ersten Kodifikationsentwurfes geregelt. Hierzu wurde von den Mitgliedern der ILC die Schwierigkeit einer präzisen Definition betont.10 Es wurde jedoch übereinstimmend festgestellt, daß diese Schwierigkeit nicht dazu führen dürfe, daß der Tatbestand der Aggression nicht in die Kodifikation aufgenommen werde.11 Einvernehmen wurde dahingehend erzielt, daß sich die Definition von der der Resolution der Generalversammlung12 lösen müsse, da diese eine politische Dimension enthalte.13 Der Vorschlag des Sonderberichterstatters diesbezüglich lautete, Art. 2 (4) UN-Charta als Grundlage heranzuziehen.14 Einige Mitglieder brachten dagegen jedoch vor, daß diese Vorschrift zu weit gehe und zudem keine ausreichend klare Definition für eine Strafrechtsnorm enthalte.15 Diskutiert wurde außerdem ausführlich Art. 21 des ersten Kodifikationsentwurfs, der die systematische oder massenhafte Menschenrechtsverletzung enthält. Der Sonderberichterstatter schlug vor, die Überschrift in Verbrechen gegen die Menschlichkeit abzuändern.16 Einige Mitglieder gaben demgegenüber zu bedenken, daß dadurch die Abgrenzung zu anderen Verbrechen gegen die Menschheit an Deutlichkeit verliere. 17 Thiam brachte in seinem Bericht den Vorschlag einer Neufassung ein, die sich eng an Art. 5 des Statuts des Jugoslawien-Tribunals18 anlehnt. Diskussionspunkt bezüglich dieses Verbrechens war insbesondere die Frage, ob auch eine Einzelperson ohne

8

I L C Report 1995, 28 ff.

9

Id., 31.

10

Id., 30.

11

Id., 34.

12

Definition of Aggression, GA Res. 3314 (XXIX) vom 14. Dezember 1974.

13

I L C Report 1995, 35.

14

U N Doc. A/CN.4/466, 14.

15

I L C Report 1995, 36 ff.

16

U N Doc. A/CN.4/466, 21.

17

I L C Report 1995, 48 ff.

18

SC Res. 808 vom 22. Februar 1993.

Tätigkeit der International Law Commission in den Jahren 1995 und 601 1996

Verbindung zum Staat dieses Verbrechen begehen könne.19 Hierin wurde keine Übereinstimmung erzielt.

Erstmals kam der Vorschlag auf, in diesen Artikel auch das sog. Verschwindenlassen (forced disappearance) von Menschen aufzunehmen, da dieses Verbrechen in den lateinamerikanischen Ländern eines der häufigsten des 20. Jahrhunderts darstelle. Basis für diesen Vorschlag waren die Declaration on the Protection of all Persons from Forced Disappearance und die Inter-A merican-Convention on Forced Disappearanc Persons. 11 Weiterhin wurde der Vorschlag diskutiert, institutionalisierte Rassendiskriminierung als Ausgleich für die für wahrscheinlich gehaltene Streichung der Apartheid als Tatbestand aufzunehmen. 22 Zusammenfassend wurde vom Sonderberichterstatter festgestellt, daß weitgehende Einigkeit herrsche, die Verbrechen Intervention, Drohung mit Aggression und Rekrutierung von Söldnern zu streichen. Demgegenüber sollten die Artikel zu Aggression, Völkermord, Kriegsverbrechen und Verbrechen gegen die Menschlichkeit aufgenommen und an den Redaktionsausschuß überwiesen werden. Bezüglich aller anderen Artikel, insbesondere der Frage der Verbrechen gegen die Umwelt und des unerlaubten Handels mit Drogen herrsche noch Diskussionsbedarf. 23 2. 48. Tagung: Der angenommene Entwurf Auf der 48. Tagung (1996) wurde der Kodifikationsentwurf in zweiter Lesung angenommen.24 Er besteht aus einem ersten Teil (Art. 1 - 15), der allgemeine Vorschriften für den gesamten Entwurf enthält, und einem zweiten Teil, in dem einzelne Verbrechen gegen den Frieden und die Sicherheit der Menschheit aufgelistet werden (Art. 16-20).

19

ILC Report 1995, 49.

20

GA Res. 47/133 vom 18. Dezember 1992.

21

Inter-American-Convention on the Forced Disappearance of Persons vom 9. Juni 1994, I L M , vol. 33,1994,1529. 22 2i

ILC Report 1995,51.

Id.

24

y

65 ff.

Report of the International Law Commission on the Work of its Forty-Eighth Session (1996), U N GAOR, 51st Session, Supp.10, U N Doc. A/51/10 [im folgenden I L C Report 1996].

602

Jörg Fö und Ina Wiesner

a) Allgemeiner Teil Art. 1 beschränkt die Anwendbarkeit der Kodifikation auf die Verbrechen, die im besonderen Teil aufgelistet werden und postuliert, daß diese Verbrechen als solche strafbar sind und das nationale Recht insofern unbeachtlich ist. Art. 2 schreibt die Umstände fest, unter denen eine Einzelperson strafrechtlich verantwortlich ist. Gemäß Art. 3 zieht die strafrechtliche Verantwortlichkeit die Strafbarkeit nach sich, wobei die Strafe dem Charakter und der Schwere des Verbrechens angemessen sein muß. Art. 4 stellt fest, daß der Kodifikationsentwurf die Staaten nicht aus ihrer Verantwortlichkeit entläßt. In Art. 5 ist das Prinzip enthalten, daß eine Befehlsausführung die Strafbarkeit nicht ausschließt, gegebenenfalls aber als mildernder Umstand berücksichtigt werden kann. Art. 6 regelt die Verantwortlichkeit eines militärischen Befehlshabers für die Handlungen seiner Untergebenen, und laut Art. 7 schließt eine offizielle Position die Verantwortlichkeit nicht aus. Art. 8 schreibt fest, daß die Gerichtsbarkeit über das Verbrechen der Aggression ausschließlich bei einem internationalen Strafgericht liegt, wobei jedoch eine Ausnahme für den Staat gilt, dessen Staatsangehöriger der Täter ist. Für alle anderen Verbrechen findet dagegen das Weltrechtsprinzip Anwendung. Art. 9 und 10 nehmen das Prinzip aut dedere aut iudicare auf, Art. 11-14 enthalten Verfahrensgarantien, und Art. 15 nennt mildernde Umstände. b) Besonderer Teil Wie von dem Sonderberichterstatter in seinem 13. Bericht vorgeschlagen, ist die Anzahl der Verbrechen erheblich reduziert worden; enthalten sind: Aggression, Genozid, Verbrechen gegen die Menschlichkeit, Verbrechen gegen UN- oder assoziiertes Personal sowie Kriegsverbrechen. Bei der Aggression (Art. 16) wurde die Schwierigkeit, eine tragfähige Definition zu finden, dahingehend gelöst, daß die Teilnahme an einer durch einen Staat begangene Aggression, d. h. einer schweren Verletzung von Artikel 2 (4) UN-Charta, 25 für die Verantwortlichkeit einer Einzelperson vorausgesetzt wird, der Entwurf selbst enthält keine eigenständige Definition. Als Täter erfaßt werden nur Führer und Organisatoren, also etwa hohe Regierungsbeamte und Militärs. 26 Dieser Entwurf bedeutet einen großen Schritt in Richtung guter Handhabbarkeit. Waren im ersten Entwurf noch sieben Absätze enthalten, beschränkt sich die jetzige Vorschrift auf einen.

25

I L C Report 1996, 85.

26

Id., 83.

Tätigkeit der International Law Commission in den Jahren 1995 und 1996

60

Bezüglich des Verbrechens des Völkermordes (Art. 17) hat der Vorschlag des Son derberichterstatters, sich eng an die Definition der Völkermord-Konvention 27 zu halten,28 Beachtung gefunden. Die Begründung hierfür liegt in der allgemeinen Akzeptanz dieser Definition und insbesondere der Tatsache, daß der IGH die der Konvention zugrundeliegenden Prinzipien als für alle Staaten verbindlich angesehen hat.29 Art. 17 entspricht somit Art. 2 der Konvention. Enthalten ist eine Auflistung von sechs Tathandlungen, die das Verbrechen des Völkermords darstellen, wenn sie mit der Absicht begangen werden, eine nationale, ethnische, rassische oder religiöse Gruppe ganz oder in Teilen zu vernichten. Art. 18 wurde mit der Uberschrift Verbrechen gegen die Menschlichkeit versehen. Enhalten ist eine Auflistung der erfaßten Verbrechen von Unterabschnitt a - k, wobei k eine Generalklausel enthält, so daß auch Tathandlungen erfaßt sein können, die nicht explizit aufgeführt sind. Voraussetzung ist jedoch, daß die Begehung systematisch oder in großem Ausmaß, d. h. gegen eine Vielzahl von Opfern gerichtet,30 stattfand und entweder von Regierungsseite oder einer anderen Gruppe geleitet oder initiiert worden ist. Erfaßt sind Taten sowohl in Kriegs- als auch in Friedenszeiten. Neu enthalten ist hier in Unterabschnitt (i) das sog. Verschwindenlassen {forced disappearance ) von Menschen als Aufnahme des auf der vorausgegangenen Tagung dahingehend gemachten Vorschlags. Hierbei handelt es sich nicht um eine bloße Kodifikation schon existierenden Völkergewohnheitsrechts.31 In der Kommentierung zu Artikel 1832 wird die Aufnahme mit der Schwere und Grausamkeit der Tat begründet und auf die schon oben erwähnte Resolution der Generalversammlung33 und die Inter-American-Convention 34 verwiesen. Hier greift die ILC somit in einer Vorreiterrolle ein Verbrechen auf, das erst in den letzten zwei Jahrzehnten eine Rolle zu spielen begann. Dies ist umso bemerkenswerter, als in den Diskussionen zu den anderen Tatbeständen immer wieder gefordert wurde, sich eng an schon bestehende Definitionen zu halten.

27 Convention on the Prevention and Punishment of Genocide vom 9. Dezember 1948, U N T S 78, 277. 28

U N Doc. A/CN.4/466,17.

29

Reservations to the Convention on the Prevention and Punishment of the Crime of Genoci (Advisory Opinion ), ICJ Reports, 1951, 12. 30

ILC Report 1996, 94 ff.

31

Robert Rosenstock, The Forty-Eighth Session of the International Law Commission, AJIL, vol. 91, 1997, 365, 368. 32

I L C Report 1996, 101 ff.

33

GA Res. 47/133.

34

Siehe Anm. 21.

604

Jörg Fö und Ina Wiesner

Verbrechen gegen UN- oder assoziiertes Personal fanden in Art. 19 Aufnahme in den Kodifikationsentwurf. Auch hier werden Tathandlungen aufgelistet, die unter der Prämisse, daß sie vorsätzlich und systematisch oder in großem Ausmaß vorgenommen werden, mit dem Ziel, die Mandatserfüllung zu verhindern oder zu erschweren, als Verbrechen gegen den Frieden und die Sicherheit der Menschheit qualifiziert werden. Nicht erfaßt sind UN-Maßnahmen nach Kapitel VE, da in diesen Fällen das Personal schon durch das Recht der bewaffneten internationalen Konflikte geschützt ist. Durch den Einschluß dieses Verbrechens wurde der Entwicklung der letzten Jahre Rechnung getragen, die eine starke Zunahme von derartigen Angriffen zeigte.35 Die Einstufung als Verbrechen gegen den Frieden und die Sicherheit der Menschheit wird damit begründet, daß das geschützte Personal als Vertreter der Staatengemeinschaft anzusehen sei und zudem zu befürchten sei, daß die Bereitschaft, an derartigen Missionen teilzunehmen, durch derartige Verbrechen sinke. Gegründet ist diese Tatbestandsbeschreibung auf der Konvention von 199436 und soll in gleicher Weise zu verstehen sein.37 Der besondere Teil schließt mit Art. 20, den Kriegsverbrechen. Diese Vorschrift enthält eine Auflistung von Handlungen, die schon im humanitären Völkerrecht Erwähnung gefunden haben — so bilden die Genfer Konventionen und deren Zusatzprotokolle sowie die Haager Landkriegsordnung die Grundlage für diese Vorschrift. Als Verbrechen im Sinne des Kodifikationsentwurfs gelten die Handlungen jedoch nur, wenn sie systematisch oder in großem Ausmaß begangen werden. II. Staatenverantwortlichkeit Schon auf ihrer allerersten Sitzung 1949 erkannte die ILC den Bereich der Staatenverantwortlichkeit als für eine Kodifikation geeignet an. Der Generalplan, einen Entwurf von Artikeln (draft articles ) zu erarbeiten, wurde schließlich auf der 27. Sitzung im Jahr 1975 beschlossen.38 Ins Auge gefaßt wurde ein Text bestehend aus drei Teilen — der erste zu den Voraussetzungen des Eintritts der völkerrechtlichen Verantwortlichkeit, der zweite zur Behandlung von Inhalt, Arten und Abstufungen

35

Siehe die Resolutionen der Generalversammlung: GA Res. 47/120 Β vom 20. September 1993, GA Res. 47/72 vom 14. Dezember 1992; GA Res. 48/37 vom 9. Dezember 1993. 36

Convention on the Safety of United Nations and Associated Personnel vom 9. Dezember 1994, GA Res. 49/59 (auch in ILM, vol. 34,1995, 482). 37 38

Rosenstock (Anm. 31), 368.

YBILC 1975, vol. Π, 47, 55 - 59, paras. 38 - 51; Report of the ILC on the Work of its Twenty-Seventh Session, U N Doc. A/10010/Rev. 1.

Tätigkeit der International Law Commission in den Jahren 1995 und 605 1996

dieser Verantwortlichkeit und der dritte zur Streitbeilegung und Durchsetzung der völkerrechtlichen Verantwortlichkeit. 1. 47. Tagung a) Siebter Bericht des Sonderberichterstatters Nachdem der erste Teil 1980 vorläufig verabschiedet wurde 39, lag 1995 zu Beginn des Berichtszeitraums der siebte Bericht des aktuellen vierten Sonderberichterstatters Gaetano Arangio-Ruiz zu diesem Thema vor. 40 Er befaßt sich zùm einen mit den Rechtsfolgen von Völkerrechtsverletzungen, die nach Teil 1, Art. 19 als Verbrechen qualifiziert sind (normativer Aspekt), zum anderen mit der Beilegung von Streitigkeiten, die sich auf die den Völkerrechtsverbrechen zugeordneten Rechtsfolgen beziehen (institutioneller Aspekt). In Hinsicht auf ersteren normativen Aspekt werden weiter materielle und instrumenteile Rechtsfolgen mit ihren jeweiligen Unterkategorien spezieller einschneidenderer sowie ergänzender Rechtsfolgen unterschieden, die nur für Verbrechen und nicht für Vergehen gelten sollen.41 Arangio-Ruiz spricht sich im Rahmen der gesetzlichen Rechtsfolgen dafür aus, einen Staat, der Völkerrechtsverbrechen begangen hat, dahingehend zu verurteilen, daß er den rechtmäßigen Zustand soweit wie möglich wiederherzustellen habe; die Grenzen seiner Leistungsfähigkeit dürften nur dort berücksichtigt werden, wo seine staatliche Existenz, die territoriale Integrität und die vitalen Interessen der eigenen Bevölkerung berührt würden. 42 Im Hinblick auf die instrumenteilen Rechtsfolgen von Verbrechen ergebe sich als Verschärfung zunächst, daß die gesamte Völkerrechtsgemeinschaft das Recht erlange, Gegenmaßnahmen zu ergreifen; zusätzlich aber sollten die Erfordernisse vorheriger Ankündigung und Ergreifung von zur Verfügung stehenden Mitteln zur Streitbeilegung entfallen. 43 Was den zweitgenannten institutionellen Aspekt betrifft, schlägt Arangio-Ruiz vor, die Generalversammlung oder den Sicherheitsrat darüber entscheiden zu lassen, ob ein Vorbringen substantiiert ist und den Internationalen Gerichtshof (IGH) darüber, 39 Zu Teil 1 des Kodifikationsentwurfes siehe: YBILC 1980, vol. Π, part 2, 26 - 63, chap. ΠΙ; Report of the I L C on the Work of its Thirty-Second Session, U N Doc. A/35/10. 40

U N Doc. A/CN.4/469.

41

I L C Report 1995, 93 ff.

42

Id., 94.

43

Id., 96 ff.

606

Jörg Fö und Ina Wiesner

ob tatsächlich ein Völkerrechtsverbrechen vorliegt und wenn ja, von welchem Staat es begangen wurde. Erst im Anschluß an einen solchen Kontrollmechanismus seien Gegenmaßnahmen zulässig.44 b) Diskussion in der ILC Im Verlauf der Diskussion innerhalb der ILC wurde auf die Schwierigkeiten aufmerksam gemacht, die sich aus der Grenzziehung zwischen Recht und Politik sowie daraus ergäben, daß Staaten der Konzeption eines wirkungsvolleren Völkerrechts und insbesondere der Kategorie völkerrechtlicher Verbrechen widerwillig gegenüberständen.45 Teilweise wurde darauf beharrt, daß nur Individuen, nicht aber ganze Völker oder gar Staaten für straffällig befunden werden könnten. Staaten könnten lediglich von einzelnen als Werkzeug mißbraucht werden.46 Dem Hinweis, die vorherrschende Doktrin gehe davon aus, daß — etwa im Falle von Völkermord — insbesondere Unrechtshandlungen von Staaten als Verbrechen angesehen würden, wurde entgegnet, daß der Sicherheitsrat seit dem Zweiten Weltkrieg eine Reihe internationaler Tribunale zur Verfolgung individueller Straftaten errichtet habe und es somit nicht der modernen Staatenpraxis entspräche, völkerrechtliche Verbrechen ausschließlich Staaten zuzuschreiben.47 Eine Reihe von Teilnehmern äußerte sich außerdem dahingehend, daß die Trennlinie zwischen Delikt und Verbrechen kaum bestimmbar sei. Andere meinten zwar, Verbrechen als Verstöße gegen Grundpfeiler des Völkerrechts charakterisieren zu können; allerdings war auch hier umstritten, ob Vorsatz und Verschulden Voraussetzung für die Begehung eines Verbrechens sind oder ob allein der rechtliche und moralische Gehalt der Unrechtsverwirklichung die Verantwortlichkeit begründen sollten.48 Besonders betont wurde die Notwendigkeit, zwischen Staatenverantwortlichkeit und individueller strafrechtlicher Verantwortung nach dem ELC-Kodifikationsentwurf zu Verbrechen gegen den Frieden und die Sicherheit der Menschheit49 zu unterscheiden. Außerdem dürfe es zu keinen Überschneidungen mit dem System der UN-Charta zur Erhaltung von internationalem Frieden und Sicherheit kommen.50

«Id., 99 ff. 45

Id., 102.

46

Id., 105.

47

Id., 104.

48

Id., 103, 106 f.

49

Siehe oben unter I.

50

Id., 108 f.

Tätigkeit der International Law Commission in den Jahren 1995 und 607 1996

Zweck der Konvention solle in keinem Fall sein, Strafen auszusprechen, sondern Wiedergutmachung herzustellen.51 Umstritten war weiterhin die Ansicht Arangio-Ruiz\ im Falle völkerrechtlicher Verbrechen generell allen Staaten Betroffenheit zuzusprechen — wie auch in Art. 5 ΠΙ (Art. 40 ΠΙ der späteren Endfassung des Konventionsentwurfs) grundsätzlich vorgesehen. Stattdessen wurde von einigen Teilnehmern gefordert, hier graduell nach unmittelbarer faktischer und rein rechtlicher Betroffenheit zu unterscheiden und entsprechend Rechte zu Gegenmaßnahmen und Schadensersatzansprüche in unterschiedlichem Umfang zuzusprechen.52 Bei der Abstimmung der weiteren Schritte sprach sich ein Teil der ILC dafür aus, die endgültige Behandlung des Begriffs des Völkerverbrechens zu vertagen — zumindest bis zur zweiten Lesung, um diese Frage gemeinsam mit dem damit zusammenhängenden Problem der Rechtsfolgen zu erörtern. 53 Dem wurde allerdings von einer Mehrheit entgegnet, daß Teil 1 und damit auch Art. 19 über Völkerrechtsverbrechen längst angenommen sei und die ILC sich zum aktuellen Zeitpunkt folglich ausschließlich den potentiellen Rechtsfolgen zuzuwenden habe. Erst nachdem das geschehen sei und man erste Anmerkungen zu den Entwürfen von Regierungen erhalten habe, seien die in erster Lesung verabschiedeten Bestimmungen zu überprüfen. 54 Somit wurden die Regelungen, die Arangio-Ruiz in seinem siebten Bericht vorgeschlagen hatte, dem Redaktionsausschuß zur Durchsicht übergeben. Außerdem sollte dieser die Vorschläge der ILC einarbeiten. c) Entwürfe der Regelungen zu Teil 2 und 3 Im einzelnen wurden folgende Ergänzungen zu Bestimmungen in Teil 2 und 3 des Kodifikationsentwurfs vorgenommen. Zunächst zu Teil 2 (Kapitel ΙΠ des zweiten Teils der späteren Endfassung) 55: Art. 13 (Art. 49 der Endfassung) verankert den Verhältnismäßigkeitsgrundsatz, an dem Gegen- und Vergeltungsmaßnahmen zu orientieren sind. Art. 14 (Art. 50) nennt diejenigen Gegenmaßnahmen, die in jedem Fall unzulässig sind; darunter fallen die Androhung oder Anwendung von Gewalt, die schon durch die UN-Charta verboten 51

Id., 113.

52

Id.,

53

Id., 135.

54

Id., 135 f.

55

110 ff.

Zu Teil 2, Kapitel I und Π der späteren Endfassung des Kodifikationsentwurfs siehe den Vorbericht von Feist (Anm. 1), 382 ff.

608

Jörg Fö und Ina Wiesner

sind; Zwang, der die Integrität oder Unabhängigkeit des verletzenden Staats gefährdet; Handlungen, die gegen die Unverletzlichkeit von Personen und Sachen, die vom diplomatischen Schutz umfaßt sind, verstoßen; jedes andere Verhalten, das gegen grundlegende Menschenrechte oder zwingendes Völkerrecht verstößt. Art. 13 und 14 wurden in ihren Formulierungen vorläufig angenommen. Art. 15 -19 lagen erst als Entwurf vor und waren somit noch Gegenstand der Diskussion. Diese bereitete den Weg für eine Zusammenfassung der Art. 15,16,18 in der Endfassung der Konvention zu Kapitel IV — Art. 51 - 53 — von Teil 2 vor. Art. 17 ging in den späteren Art. 47 - 49 auf. Die Artikel behandeln das Recht auf Gegenmaßnahmen gegen Völkerrechtsverbrechen und deren Rechtsfolgen. 56 In Art. 19 geht es um die Möglichkeiten einer Streitbeilegung in institutionalisierter Form. Sonderberichterstatter A rangio-Ruiz' oben genannten Vorschlag, in einem zweistufigen Verfahren von der Generalversammlung oder dem Sicherheitsrat eine Einschätzung und dem IGH eine Entscheidung darüber einzuholen, ob ein Völkerrechtsverbrechen vorliegt, wurde von einigen Teilnehmern entgegengehalten, daß dies sehr zeitaufwendig sei und Gegenmaßnahmen zusätzlich behindern würde. Außerdem wurde die Vereinbarkeit eines solchen Verfahrens mit Teilen der UNCharta bezweifelt und angeführt, daß die Möglichkeit, sich nicht gem. Art. 36 II IGH-Statut der Jurisdiktion des IGH zu unterwerfen, auch im vorliegenden Verfahren für eine mangelnde Bereitschaft spreche, sich an den IGH zu binden. Daraufhin wurde der Vorschlag gemacht, die Funktion des IGH durch eine von der Generalversammlung oder dem Sicherheitsrat einberufene Juristenkommission zu ersetzen. Dessen politisch motivierte Besetzung und ad hoc-Stztus stießen aber auf Widerspruch. Eine große Gruppe von Teilnehmern hielt das Konzept von Arangio-Ruiz indes für überzeugend und realistisch.57 Man einigte sich jedoch im folgenden darauf, es zunächst bei dem Mechanismus des Teil 3 (siehe im folgenden unten) und der Regelung des Art. 39 (Verhältnis der Konvention zur UN-Charta) zu belassen. Es wurde angeregt, die Reaktionen der Staaten abzuwarten und gegebenenfalls in zweiter Lesung Alternativkonzepte aufzugreifen. 58 Schließlich stellte der Vorsitzende des Redaktionsausschusses die Regelungen zur Streitbeilegung in Teil 3 vor. Der Besprechung der einzelnen Vorschriften ging eine Diskussion voraus, in der hauptsächlich drei Punkte angesprochen wurden. Zunächst ging es um das Verhältnis des in Teil 3 des Entwurfs geplanten Streitschlichtungsmechanismus zu bereits bestehenden Instrumentarien. Diesbezüglich kam man zu dem Schluß, daß diese sich nicht ausschließen oder behindern, sondern vielmehr er56

Siehe dazu im einzelnen unten den Bericht zur 48. Sitzimg der ILC.

57

Siehe dazu ILC Report 1995, 119 - 135; Robert Rosenstock, The Forty-Seventh Session of the International Law Commission, AJIL, vol. 89, 1995, 106 , 107. 58

Siehe dazu unten und I L C Report 1996, 165 ff.

Tätigkeit der International Law Commission in den Jahren 1995 und 1996

gänzen würden. Die zweite Frage drehte sich darum, ob der erarbeitete Mechanismus nicht zu weit gehe, weil er in Teilen obligatorisch für die betroffenen Staaten sei und damit gegen die freie Wahl der Mittel verstoße. Einige Teilnehmer äußerten daher den Wunsch, den Teil 3 aus der Konvention herauszunehmen und nur zusätzlich auf freiwilliger Basis den Staaten zur Befolgung anzubieten. Die Mehrheit indes sprach sich für ein Gesamtkonzept aus, da dies Progressivität zum Ausdruck bringe. Es stünde den Staaten frei zuzustimmen. Im übrigen würden auch andere Verträge obligatorische Mechanismen zur Streitbeilegung vorsehen. Darüber hinaus wahre die vorgeschlagene Schiedsgerichtsbarkeit die Gleichbehandlung der Parteien in allen Phasen des Streits. Der dritte Punkt der Diskussion war die vorgesehene Kompetenz des IGH für den Fall einer Anfechtung der Gültigkeit eines Schiedsspruchs. Erneut sprach sich auch hier die Mehrheit der ILC schon aus praktischen Erwägungen für diese Kompetenz des IGH aus, da es sehr wahrscheinlich sei, daß einzelne Parteien die Nichtbefolgung eines Schiedsspruchs mit dessen angeblicher Ungültigkeit begründeten.59 Im großen und ganzen stieß der Entwurf zu Teil 3 allerdings auf breite Zustimmung. Die einzelnen Vorschriften sehen folgendes vor: 60 Art. 1 (Art. 54 der Endfassung des Konventionsentwurfs) bestimmt, daß Parteien dieser Konvention jeden Streit über deren Auslegung oder Anwendung durch Verhandlungen lösen sollen, auch sofern nur eine von ihnen dies wünscht. Art. 2 (Art. 55) fordert daneben jeden Drittstaat, der auch Partei der Konvention ist, dazu auf, auf eigene Initiative oder auf die Bitte einer der Streitbeteiligten hin, in der Angelegenheit gute Dienste zu leisten oder zu vermitteln. Allerdings müssen alle Streitbeteiligten einem solchen Verfahren zustimmen. Nach Art. 3 ist es jeder beteiligten Partei erlaubt, den Streit einer Schlichtung zuzuführen, wenn dieser nicht in angemessener Zeit (drei Monate) nach Beginn des Verfahrens nach Art. 1 beigelegt oder einem anderen Entscheidungsverfahren übergeben ist. Art. 4 definiert die Aufgaben der Schlichtungskommission, welches die Aufklärung der Rechts- und Tatsachenfragen des Streits und das Bemühen sind, die Parteien zur Streitbeilegung zu bewegen. Die Parteien haben alle dazu erforderlichen Informationen zu liefern. Zum Schluß ihrer Auswertung spricht die Kommission unverbindliche Empfehlungen aus. Ist daraufhin noch immer keine Lösung erreichbar oder wehrt sich eine Partei gegen bereits eingeleitete Gegenmaßnahmen der anderen Partei, gewährt Art. 5 die Möglichkeit, ein Schiedsgericht anzurufen. Art. 6 drückt aus, daß das Schiedsgericht alle rechtlichen oder faktischen Streitfragen innerhalb von sechs Monaten verbindlich entscheiden soll. Wird die Gültigkeit des Schiedsspruchs bestritten, soll — wie bereits angedeutet — gem. Art. 7 der IGH die Kompetenz haben, darüber zu entscheiden.

59

Id ., 139 - 143.

60

Zu den Vorschriften des Entwurfs zu Teil 3 siehe I L C Report 1995, 173 - 194.

39 G Y I L 4 0

609

610

Jörg Fö und Ina Wiesner

Im Annex werden in zwei Bestimmungen jeweils die Zusammensetzung und das Verfahren der Schlichtungskommission und des Schiedsgerichts geregelt. 2. 48. Tagung Auf der 48. Sitzung im Jahr 1996 legte Arangio-Ruiz seinen achten und letzten Bericht vor 61 , mit dem er die Kommission vor allem auf noch bestehende Probleme hinwies, die sich trotz der vorläufigen Verabschiedung nach wie vor aus der Qualifizierung besonders gravierender Verletzungen des Völkerrechts als völkerrechtliche Verbrechen (Teil 1, Art. 19) ergaben. Nach jahrelanger Arbeit schloß der Redaktionsausschuß nun auch den Entwurf zum zweiten und dritten Teil der Kodifikation zur Staatenverantwortlichkeit in erster Lesung ab. Die ILC konzentrierte sich daraus auf die Besprechung der Art. 42 ΠΙ (Entschädigungen — als letzte Ergänzung zu Kapitel Π des zweiten Teils), Art. 47 - 48 (Gegenmaßnahmen eines verletzten Staats; Bedingungen für das Ergreifen von Gegenmaßnahmen — zur Vervollständigung von Kapitel ΠΙ) und Art. 51-53 (Rechtsfolgen völkerrechtlicher Verbrechen; spezifische Folgen für verletzte Staaten in Bezug auf Erstattungen und Schadensersatzleistungen; Verpflichtungen aller Staaten bei Vorliegen eines völkerrechtlichen Verbrechens — als das den zweiten Teil abschließende Kapitel IV). In Art. 42 ΠΙ wurde für den Entwurf endgültig festgeschrieben, daß Entschädigungsleistungen nicht die Mittel übersteigen dürfen, die für die eigene Existenz notwendig sind. Dies entspräche einem mittlerweile allgemeinen Rechtsprinzip. Dennoch war in der ILC umstritten, ob dies auch zu Lasten der Bevölkerung des verletzten Staates gelten dürfe. 62 Art. 47 beschreibt das Recht eines Staates, an sich rechtswidrige Maßnahmen zu ergreifen, um einen gegen ihn unrechtmäßig vorgehenden Staat dazu zu bewegen, sein Verhalten zu ändern. Voraussetzung ist, daß die friedliche Streitbeilegung gem. Art. 41 - 46 fehlgeschlagen ist. Auch dürfen die Gegenmaßnahmen nicht die Dauer des Verstoßes und den Rahmen der Notwendigkeit überschreiten, d. h. sie dürfen nur soweit ausgedehnt werden, bis ein Einhalten erreicht ist und Entschädigungen geleistet wurden. Das Risiko, exzessiv — etwa auch mit Strafabsicht — und somit selbst rechtswidrig zu handeln, trägt der sich wehrende Staat. Eine Verletzung von Rechten dritter Staaten ist stets ungerechtfertigt. Zwar wurden auch Schwierigkeiten dieses Konzepts zu bedenken gegeben, doch insgesamt setzten sich die Überlegungen durch, daß Maßnahmen zur Abwehr ungesetzlicher Handlungen auch gewohnheitsrechtlich 61

U N Doc. A/CN.4/476.

62

I L C Report 1996, 152 f.

Tätigkeit der International Law Commission in den Jahren 1995 und 611 1996

anerkannt seien und daß Staaten durchaus zuzutrauen sei, diese Gegenmaßnahmen nicht im Ubermaß auszuüben. Art. 48 setzt der Ausübung von Gegenmaßnahmen weitere Bedingungen, vor allem das Führen von Verhandlungen zur Streitbeilegung (dazu die Vorschriften in Teil 3 des Entwurfs). Dies schließt allerdings nicht vorläufige Maßnahmen aus, die zur Wahrung der eigenen Rechte oder der Wirksamkeit bestimmter Gegenmittel nicht aufgeschoben werden können. Ergreift ein Staat Gegenmaßnahmen, so ist der andere Staat berechtigt, eine verbindliche Schiedsgerichtsbarkeit gem. Art. 58 Π (früherer Art. 5 Π) oder entsprechenden anderen Parteivereinbarungen anzurufen. Während dieses Verfahrens müssen alle Gegenmaßnahmen ausgesetzt werden, wenn die ursprüngliche Unrechtshandlung selbst auch eingestellt wurde. Befolgt der Staat, der die Verletzung verursacht hat, dann aber nicht die Anweisungen der Richter oder Vermittler, so darf der verletzte Staat wieder zu allen erlaubten Gegenmaßnahmen greifen. Die ILC verspricht sich von diesem System eine effektive Unterbindung der Spirale nicht endender Gewalt und Gegengewalt.63 Art. 51 stellt die Konsequenz aus der Unterscheidung von Delikten und Verbrechen dar, indem er für letztere auf die erweiterten Rechtsfolgen der Art. 52 - 53 verweist. Umstritten war, von wem und nach welcher Maßgabe entschieden werden soll, ob im konkreten Fall ein Delikt oder ein Verbrechen vorliegt. Die ILC entschied sich schließlich dafür, sich auf die Streitschlichtungsmechanismen des Teil 3 des Entwurfs und die Regelung in Art. 39 (Verhältnis zur UN-Charta) zu beschränken. Art. 52 hebt bestimmte Begrenzungen von Entschädigungen in den Art. 41 - 45 für Fälle von Völkerrechtsverbrechen zum einen dahingehend auf, daß Naturalrestitution ohne Rücksicht darauf beansprucht werden kann, in welchem Verhältnis der dazu erforderliche Aufwand zu der Wiederherstellung steht (entgegen Art. 43 c). Zum anderen wird hier nicht davon ausgegangen, daß eine Naturalrestitution zum Ausgleich eines zuvor begangenen Verbrechens überhaupt geeignet ist, die politische Unabhängigkeit oder wirtschaftliche Stabilität des unrechtmäßig handelnden Staates ernsthaft zu gefährden (entgegen Art. 43 d). Entsprechendes gilt für die (in Art. 45 ΠΙ an sich festgelegte) Einschränkung von Schadensersatzansprüchen durch Unantastbarkeit der Würde des verpflichteten Staats. Art. 53 nennt Verpflichtungen, die alle Staaten in Fällen von Völkerrechtsverbrechen treffen. Dies sind einerseits die negativen Pflichten, die geschaffene unrechtmäßige Lage nicht anzuerkennen und den rechtswidrig handelnden Staat nicht zu unterstützen, andererseits die positiven, mit anderen Staaten dabei zu kooperieren und die Verbrechensfolgen zu beheben. Diese Grundsätze seien als Ausdruck der internationalen Solidarität anzusehen.64

39*

63

Zu Art. 47 - 48 des Entwurfs siehe ILC Report 1996, 153 - 164.

64

Zu Art. 51 - 53 des Entwurfs siehe ILC Report 1996, 164 - 170.

612

Jörg Fö und Ina Wiesner

Nach dieser Würdigung nahm die ILC den Entwurf nun also auch zu Teil 2 und 3 insgesamt an und entschied, ihn durch den Generalsekretär den Regierungen zur Stellungnahme bis zum 1. Januar 1998 vorzulegen. III. Die völkerrechtliche Haftung für Schäden aufgrund nicht völkerrechtswidriger Aktivitäten Die Arbeit an der Kodifikation zur völkerrechtlichen Haftung für Schäden aufgrund nicht völkerrechtswidriger Aktivitäten schritt im Berichtszeitraum fort. Nachdem auf der 46. Tagung die Artikel 1 - 2 und 11 - 20 in erster Lesung vorläufig verabschiedet worden waren,65 wurden auf der 47. Tagung vier Artikelentwürfe vorläufig angenommen, die 1988 bzw. 1989 an den Redaktionsausschuß überwiesen worden waren. Auf der 48. Tagung dagegen blieb nur wenig Zeit zur Diskussion. I. 47. Tagung Auf der 47. Tagung (1995) lag der elfte Bericht des Sonderberichterstatters Julio Barboza vor. 66 Es wurde allerdings beschlossen, daß dieser Bericht ebenso wie der vorausgegangene67 auf der folgenden Tagung 1996 beraten werden sollte. Einige Mitglieder gaben jedoch vorab schon Stellungnahmen zu beiden Berichten ab.68 Die Diskussion über den Berichts des Sekreteriats zur Verantwortlichkeit 69 wurde gleichermaßen vertagt. Die vier 1995 vorläufig angenommenen Artikel sind mit den Buchstaben A - D bezeichnet und enthalten allgemeine Regelungen. Über ihre endgültige Stellung innerhalb der Kodifikation soll erst mit Abschluß der ersten Lesung entschieden werden.70 Art. A legt fest, daß die Freiheit von Staaten, Handlungen auf ihrem Territorium oder unter anderen Umständen unter ihrer Jurisdiktion vorzunehmen, durch die Verpflichtung, Risiken der Verursachung schwerer grenzüberschreitender Schäden zu verhindern oder zu verringern, und durch spezielle Verpflichtungen gegenüber anderen Staaten beschränkt ist. Diese Vorschrift geht über die Declaration of the UNCon-

65

I L C Report 1994, 384; siehe dazu den Vorbericht von Feist (Anm. 1).

66

U N Doc. A/CN.4/468.

67

U N Doc. A/CN.4/459.

68

I L C Report 1995, 204 ff.

69

Survey of LiabÜity Regimes Relevant to the Topic of International LiabÜity for Injurious Consequences Arising out of Acts not Prohibited of International Law, U N Doc. A/CN.4/471. 70

I L C Report 1995,214.

Tätigkeit der International Law Commission in den Jahren 1995 und 613 1996

ference on the Human Environment und die Rio Declaration on Environment and Development 72 hinaus, indem schon die Risikovermeidung geboten ist und Aktivitäten aller Art eingeschlossen sind. Die in dieser Vorschrift enthaltene Beschränkung der staatlichen Handlungsfreiheit stellt die gedanklich notwendige Voraussetzung für alle weiteren Verpflichtungen dar. Nach Art. Β müssen die Staaten alle angemessenen Maßnahmen ergreifen, um das Risiko signifikanter grenzüberschreitender Schäden zu verhindern oder zu minimieren, was sich in Teilen mit dem zuvor vorläufig angenommenen Art. 1473 überschneidet. Die Kommission stellt in Aussicht, bei einer Neufassung des Art. 14 eine Harmonisierung der beiden Vorschriften vorzunehmen. Verpflichtet sind die Staaten dazu, die verkehrsübliche Sorgfalt (due diligence ) zu beachten; entscheidend ist somit, welche Maßnahmen der Staat ergriffen hat und nicht etwa, welches Ergebnis er damit erzielt hat. Maßstab ist die Angemessenheit und Verhältnismäßigkeit angesichts des konkreten Risikos.74 Art. C postuliert die Staatenverantwortlichkeit und die Verpflichtung zu Reparationszahlungen, sofern grenzüberschreitende Schäden durch den Staat verursacht worden sind. Diese Vorschrift stellt bislang lediglich eine Arbeitsgrundlage dar, da sie sich auf weitere Vorschriften zur Staatenverantwortlichkeit und zu Reparationsleistungen bezieht, die noch nicht verabschiedet sind und Inhalt und Reichweite des Artikel C bestimmen werden. In der Kommentierung dieser Vorschrift gibt sich die Kommission große Mühe, eine ausreichende Staatenpraxis für eine derartige Verpflichtung anzuführen, 75 was wohl auf die Kritik einiger Mitglieder an dem Mangel derselben zurückzuführen ist.76 Schließlich schreibt Art. D die Verpflichtung der Staaten zur Kooperation fest, die nach Treu und Glauben zu erfüllen ist. Diese Bestimmung stellt somit die Grundlage für die schon verabschiedeten Art. 15-19 dar 77, in denen die Kooperationsverpflichtung eine konkrete Ausgestaltung findet.

71

U N Publication, Sales Νο.Ε.73.Π.Α.14 and Corr., Principle 21.

72

U N Doc. A/Conf . 151/26/Rev. 1 (Vol. I), Principle 2.

73

I L C Report 1995, 211.

7A

Id., 111.

75

Id 228 ff.

76

Id., 206.

77

Id., 212 ff.

614

Jörg Fö und Ina Wiesner

2. 48. Tagung Auf der 48. Tagung (1996) lag der Kommission der 12. Bericht des Sonderberichterstatters 78 vor. Beschlossen wurde die Errichtung einer Arbeitsgruppe, die auf der Basis der bisherigen Arbeit der Kommission zu diesem Thema und der Berichte des Sonderberichterstatters eine Zusammenfassung (composite text) erstellen sollte mit dem Ziel, Stellungnahmen der Generalversammlung und den nationalen Regierungen zu erhalten. Die Arbeitsgruppe legte eine Fassung der Kodifikation vor 79 , in der alle bisherigen vorläufig angenommenen Vorschriften sowie die strittigen Punkte aufgenommen sind. Die oben erwähnten, auf der 47. Tagung verabschiedeten allgemeinen Vorschriften tauchen als Art. 3 - 6 auf, und sind somit Teil des ersten Kapitels allgemeiner Vorschriften. Das zweite Kapitel (Art. 9 -19) beschäftigt sich mit der Frage der Prävention und beinhaltet hier eine weitere Ausgestaltung der schon im ersten Kapitel enthaltenen allgemeinen Verpflichtungen. Der Text schließt mit der Wiedergutmachungspflicht im dritten Kapitel (Art. 20 - 22). Diese Zusammenfassung bietet insbesondere durch Herausstreichung der strittigen Fragen die große Chance, daß der Kommission eine Fülle von Stellungnahmen zugehen und die weitere Arbeit hierin ihren Rückhalt finden kann. IV. Vorbehalte bei Verträgen Die Frage des Rechts und der Praxis bezüglich Vorbehalten bei Verträgen steht als eigenständiges Thema erst seit 1994 auf der Agenda der ILC. Als Sonderberichterstatter wurde auf der 46. Tagung Alain Pellet gewählt, der auf der 47. Tagung seinen ersten Bericht vorlegte.80 1. Erster Bericht des Sonderberichterstatters

und 47. Tagung

Im Rahmen der 47. Tagung beschäftigte der Sonderberichterstatter sich zunächst mit der Frage, ob und inwieweit die schon bestehenden Regelungen des Vertragsrechts81 abgeändert werden sollten. Er strich heraus, daß diese zwar wenig detailliert seien, sich in der Praxis jedoch als ausreichend tragfähig erwiesen hätten. Eine Mög78

U N Doc. A/CN.4/475.

79

I L C Report 1996, Annex 1.

80

A/CN.4/470 and Corr.l.

81

Im einzelnen sind das: Vienna Convention on the Law of Treaties vom 23. Mai 1969, U N T S 1155, 331; Vienna Convention on Succession of States in Respect of Treaties vom 22. August 1978, I L M , vol. 17, 1978, 1488; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations vom 21. März 1986, I L M , vol. 25, 1986, 534.

Tätigkeit der International Law Commission in den Jahren 1995 und 1996

lichkeit sei daher, ein Protokoll oder Mustervorschriften (model clauses) zu entwerfen, die lediglich Präzisierungen zu den schon bestehenden Regelungen enthalten.82 Dieser Vorschlag des Sonderberichterstatters stieß während der Diskussion der Kommission auf große Zustimmung. Ziel der Arbeit an dem Thema Vorbehalte bei Verträgen solle die Ausfüllung der Lücken des Wiener Vertragsrechtsregimes sein. In welcher Form dies zu geschehen habe, wurde nicht abschließend geklärt.83 Ein weiterer strittiger Punkt, den der Sonderberichterstatter aufgriff und der auch in der Diskussion behandelt wurde, ist die Gültigkeit von Vorbehalten. Hier ist fraglich, ob die Gültigkeit eines Vorbehalts nur von den Einwendungen der anderen Staaten abhängt (so die school of opposability) oder ob inhaltlich geprüft werden muß, ob ein Vorbehalt dem Vertragszweck zuwiderläuft (so die school of permissibility)™ Mehrere Mitglieder vertraten hierzu die Auffassung, daß letztere Ansicht zwar in der Theorie vorzugswürdig sei, erstere jedoch der Staatenpraxis entspreche.85 In bezug auf die offene Frage nach dem Schicksal von Vorbehalten im Falle der Staatennachfolge wurde von den Mitgliedern der Kommission die Wichtigkeit des tabula ηζΛζ-Prinzips betont, wonach der Nachfolgerstaat das Recht habe solle, eigene Vorbehalte zu formulieren. Alte Vorbehalte sollten jedoch in Kraft bleiben, wenn der Nachfolgerstaat nicht widerspricht. 86 2. Zweiter Bericht des Sonderberichterstatters

und die 48. Tagung

Auf der 48. Tagung (1996) lag der zweite Bericht des Sonderberichterstatters 87 zur Diskussion vor. Der Bericht beinhaltet einen Vorschlag für eine mögliche Gliederung der weiteren Arbeit der Kommission88 und streicht die kontroversen Punkte heraus, insbesondere die Frage nach Vorbehalten bei Menschenrechtsverträgen. 89 Schließlich enthält der Bericht den Entwurf einer Resolution der Kommission zu diesem Thema, in der bekräftigt wird, daß das Regime der Wiener Vertragsrechtkonventionen möglichst erhalten bleiben müsse.90

82

ILC Report 1995, 245 ff.

83

Id., 249.

84

Id., 241 ff.

85

Id., 254.

86

Id., 254 ff.

87

A/CN.4/477 and Add.l.

88

ILC Report 1996, 184 ff.

89

Id., 186 ff.

90

Id., 192.

61

616

JörgFö und Ina Wiesner

Aus Zeitmangel kam die Kommission jedoch nicht dazu, sich eingehend mit dem Bericht zu beschäftigen. 91 Einige Mitglieder brachten in kurzen Stellungnahmen zum Ausdruck, daß sie eine Resolution der Kommission für wünschenswert hielten und warfen die Frage der Errichtung einer Arbeitsgruppe auf. Die ausführliche Diskussion des Berichts wurde auf die folgende Sitzung 1997 vertagt.92 V. Auswirkungen von Staatensukzession auf die Staatsangehörigkeit natürlicher und juristischer Personen Nach der Entscheidung der ILC von 1993, die Auswirkungen von Staatensukzession auf die Staatsangehörigkeit natürlicher und juristischer Personen auf ihre Agenda zu nehmen, ernannte sie im darauffolgenden Jahr Vaclav Mikulka zum Sonderberichterstatter für dieses Thema. Die Bewilligung der Generalversammlung erfolgte mit der Maßgabe, daß der Entscheidung über die abschließende Form dieser Arbeit eine vorläufige Studie vorangehen solle.93 1. 47. Tagung a) Erster Bericht des Sonderberichterstatters und dessen Diskussion innerhalb der ILC Im Rahmen der 47. Sitzung (1995) wurde die Diskussion der ILC zunächst auf der Grundlage des ersten Mikulka-Berichts 94 geführt. Es wurde festgestellt, daß die Frage der Staatsangehörigkeit — obgleich im wesentlichen durch das nationale Recht bestimmt — drei Bereiche des internationalen Rechts berühre, und zwar neben dem Staatsangehörigkeitsrecht aus internationaler Sicht das Recht der Staatensukzession und das der Menschenrechte, wobei insbesondere von letzterem gewisse Standards gesetzt würden, da die Frage, ob eine ganze Bevölkerung im Falle einer Sukzession ohne Staatsangehörigkeit dasteht, nicht der Willkür der einzelnen betroffenen Staaten überlassen werden dürfe. Entsprechend Art. 15 der Allgemeinen Erklärung der Menschenrechte95 müsse das Prinzip des Rechts auf eine Staatsangehörigkeit in den Mittelpunkt gerückt werden.96 Eine Grenze müsse dem nationalen Recht überall dort ge91 92

Id., 195. Ibid.

93

Para. 6 der GA Res. 49/51 vom 9. Dezember 1994.

94

A/CN.4/467.

95

Res. 217 (ΠΙ), Universal Declaration of Human Rights, U N GAOR, 3rd Session (Part Î), U N Doc. A/810,71 (1948). 96

I L C Report 1995, 75, 80.

Tätigkeit der International Law Commission in den Jahren 1995 und 617 1996

setzt werden, wo von ihm negative Auswirkungen wie Staatenlosigkeit und Probleme mit doppelter Staatsangehörigkeit ausgehen.97 Man entschied, die für die Generalversammlung anzufertigende vorläufige Studie auf der Grundlage der Darstellung der aktuellen Staatenpraxis vorzunehmen. Allerdings herrschten geteilte Meinungen darüber, ob Problembereichen bereits Lösungsvorschläge hinzuzufügen und ob grundlegende Prinzipien aufzustellen seien. Als mögliche Form wurde auch ein Protokoll zum Ubereinkommen zur Verminderung der Staatenlosigkeit von 196198 vorgeschlagen. Hinsichtlich der Wahl der Begriffe und der Kategorien von Sukzession folgte die überwiegende Ansicht der Anregung Mikulkas, an diejenigen anzuknüpfen, die in den Wiener Konventionen von 1978 und 1983" niedergelegt sind und sich bewährt hätten, jedoch mit einer deutlichen Unterscheidung von Vereinigung und Übernahme.100 Einigkeit wurde ebenso darüber erzielt, daß Fälle unrechtmäßiger Sukzession wegen ihrer zusätzlichen Probleme nicht bedacht werden sollten, wobei nicht ausgeschlossen wurde, daß bestimmte Ansätze, die im Rahmen der rechtmäßigen Sukzession gefunden würden, übertragen werden könnten.101 Teilweisen Zuspruch fand die Empfehlung Mikulkas y sich wegen ihrer besonderen Betroffenheit in der Staatsangehörigkeitsfrage auf natürliche Personen zu konzentrieren. Abweichend davon wurde jedoch auch das Anliegen vorgetragen, juristische Personen nicht zu vernachlässigen, da deren durch das Völkerrecht geregelter Status im Sukzessionsfalle beeinflußt werde. Außerdem hätten sich hier bereits viele einheitliche Regelungen entwickelt und seien viele Grundsätze auf beide Kategorien anwendbar.102 Einige Teilnehmer wiesen auf die Konsequenzen der Sukzession für das Recht auf diplomatischen Schutz hin und hielten es für angemessen, das Kontinuitätsprinzip nicht auf Situationen zu erstrecken, in denen der Wechsel der Staatsangehörigkeit Ergebnis einer Sukzession ist, sondern nur, wenn er auf freiem Entschluß beruht. Eine ausführliche Behandlung dieses Themas im vorliegenden Zusammenhang wurde indes ausgeschlossen.103 97

Id., 79.

98

Convention on the Reduction of Statelessness vom 30. August 1961, U N T S 175, 989; BGBl. 1977 Π, 597. 99 Vienna Convention on Succession of States in Respect of Treaties vom 23. August 1978, I L M , vol. 17, 1978,1488; Vienna Convention on Succession of States in Respect of State Property, Archives and Debts vom 8. April 1983, ILM, vol. 22, 1983, 306. 100

I L C Report 1995, 76.

101

Id., 77.

102

Id., 77 f.

103

Id., 78.

618

Jörg Fö und Ina Wiesner

Als erforderlich angesehen wurde die Bereithaltung eines Übergangsregimes für die Zeit, bevor der Nachfolgerstaat seine Gesetzgebung ausgearbeitet hat.104 Einige Mitglieder wiesen auf die Bedeutung des Prinzips der effektiven Staatszugehörigkeit und die Möglichkeiter der ILC hin, das Konzept der echten Verknüpfung (genuine link) im Hinblick auf die Rechtsprechung des IGH im Nottebohm-Fall 105 zu ·· · · 10ή präzisieren. Schließlich wurde das Recht angesprochen, zwischen Staatsangehörigkeiten wählen zu können. Dies zu gewährleisten wurde als erstrebenswert eingestuft, allerdings nicht schrankenlos, sondern nach der Maßgabe von Billigkeitserwägungen.107 b) Ergebnisse der Arbeitsgruppe Die anschließend gebildete Arbeitsgruppe 108 wurde mit dem Auftrag betraut, ihrerseits Punkte herauszuarbeiten, die mit dem Thema in Berührung stehen und der Kommission im Hinblick auf die aktuellsten Aspekte Handlungsempfehlungen zu unterbreiten. Sie setzte als oberstes Prinzip die Verpflichtung von Vorgänger- und Nachfolgerstaat fest, im Falle der Sukzession Probleme der Staatsangehörigkeit zu verhandeln und durch Vereinbarungen zu lösen, um den Eintritt von Staatenlosigkeit zu verhindern. Einbezogen werden sollen ihrem Vorschlag nach dabei auch Fragen der doppelten Staatsangehörigkeit, der Trennung von Familien, der Wehrpflicht, der sozialen Leistungen und des Aufenthaltsrechts (1.). Es wurde für Situationen von Abspaltungen oder Übertragungen von Territorien vorgeschlagen, daß Vorgängerstaaten die Staatsangehörigkeit nur in solchen Fällen entziehen dürften, in denen Personen entweder in Gebieten geboren und wohnhaft sind, die an den Nachfolgerstaat gingen, oder sie als zweite Staatsangehörigkeit diejenige einer Gebietseinheit besitzen, die Teil des Nachfolgerstaates geworden ist und sie in diesem oder einem Drittstaat leben — immer vorausgesetzt, dies hätte nicht ihre Staatenlosigkeit zur Folge. Einigen Gruppen wurde ein Wahlrecht zwischen der Angehörigkeit zum Vorgänger- oder Nachfolgerstaat eingeräumt. Darunter fallen etwa Personen, die in dem Vorgänger- oder einem Drittstaat leben und in Gebieten geboren wurden, die dem Nachfolgerstaat zugefallen sind; außerdem solche Personen, die 104

Ibid.

105

Nottebohm-Case (Liechtenstein v. Guatemala), ICJ Reports 1955, 4, 23 ff.

106

Id., 79.

107

Id., 81.

108

Siehe den Bericht der Arbeitsgruppe als Annex zum ELC Report 1995, 271 ff.

Tätigkeit der International Law Commission in den Jahren 1995 und 619 1996

in Gegenden geboren wurden, die dem Vorgängerstaat verblieben sind, jetzt aber im Nachfolgerstaat leben (2.a). Für Vereinigungen und Ubernahmen sieht die Arbeitsgruppe es als Verpflichtung des Nachfolgerstaates an, Angehörigen des Vorgängerstaates die eigene Staatsangehörigkeit zu garantieren, wenn sie in dem Nachfolgerstaat oder in einem Drittstaat, dessen Staatsangehörigkeit sie nicht besitzen, leben (2.b). Löst sich ein Staat auf, sollen grundsätzlich alle Nachfolgerstaaten verpflichtet sein, dessen ehemaligen Angehörigen ihre Staatsangehörigkeiten zu verleihen. Dies gilt ausdrücklich für Personen, die auf dem Territorium geboren sind, das Teil des Nachfolgerstaates geworden ist, und später auch dort oder in einem dritten Staat leben; darüber hinaus für diejenigen, die die Staatsangehörigkeit des aufgelösten Staates erworben haben und später in dem entsprechenden Nachfolgerstaat leben; schließlich Personen, die als zweite Staatsangehörigkeit die einer Gebietseinheit haben, die Teil des Nachfolgerstaates geworden ist, und die in diesem oder einem Drittstaat leben. Ein Wahlrecht sollen die Nachfolgerstaaten Personen zubilligen, die auf dem Gebiet geboren wurden oder dessen Staatsangehörigkeit erworben haben, das Teil eines anderen Nachfolgerstaates geworden ist als desjenigen, in dem sie fortan leben (2.c). Keinesfalls dürfe ein Staat jemandem seine Staatsangehörigkeit gegen den Willen aufzwingen. Außerdem müssen Staaten allen Menschen bei der Ausübung ihres Wahlrechts Aufklärung leisten und ihnen Informationen zukommen lassen, die für ihre Entscheidungen wichtig sind (3.). Vorgängerstaaten sollen daran gehindert sein, Staatsangehörigkeiten aufgrund ethnischer, sprachlicher, religiöser, kultureller oder ähnlicher Aspekte zu entziehen. Entsprechendes gilt für die Vergabe von Staatsangehörigkeiten durch Nachfolgerstaaten (4.). Als Konsequenzen für Nichtbefolgungen der von ihr entwickelten Grundsätze sieht die Arbeitsgruppe vor, daß Angehörige eines Vorgängerstaates im Falle eines insofern unrechtmäßigen Entzugs ihrer Staatsangehörigkeit von Drittstaaten weiterhin als Staatsangehörige dieses Vorgängerstaates anerkannt werdeil können. Ebensowenig muß ein Drittstaat die Erteilung einer Staatsangehörigkeit durch einen Nachfolgerstaat anerkennen, wenn dieses gegen die obigen Grundsätze verstößt. Wird eine Staatsangehörigkeit dagegen zu Unrecht nicht erteilt, weist aber die betroffene Person echte Verknüpfungen mit dem Nachfolgerstaat auf, so kann ein Drittstaat diese als Angehörige des Nachfolgerstaates ansehen. Darüber hinaus wurde allerdings festgestellt, daß für die Frage nach der Verantwortlichkeit von Staaten für Verstöße gegen die aufgestellten Grundsätze weitere klärende Studien notwendig seien (5.).

620

Jörg Fö und Ina Wiesner

Was schließlich das Kontinuitätsprinzip betrifft, so soll dessen Anwendung bei Wechsel der Staatsangehörigkeit kraft Gesetz und bei Ausübung des Wahlrechts bezüglich der Staatsangehörigkeit ausgeschlossen sein (6.). 2. 48. Tagung Auf der 48. Sitzung der ILC (1996) legte Sonderberichterstatter Mikulka seinen zweiten Bericht 109 vor, der darauf angelegt war, der ILC die Fertigstellung der vorläufigen Studie zu ermöglichen. Mit dem gleichen Ziel tagte auch erneut die in der vorangegangenen Sitzungsperiode bestellte Arbeitsgruppe. Sie empfahl, die Frage der Staatsangehörigkeit natürlicher Personen von der Frage der Staatszugehörigkeit juristischer Personen zu trennen, da erstere ein grundlegendes Menschenrecht, letztere aber lediglich den weniger dringlichen wirtschaftlichen Aspekt des Niederlassungsrechts betreffe und somit erst zweitrangig behandelt werden solle, wenn die Staaten sich nach einer Befragung dafür aussprächen.110 Zur Staatsangehörigkeit natürlicher Personen schlug sie die Ausarbeitung einer unverbindlichen, kommentierten Erklärung durch die Generalversammlung vor, deren erste Lesung bereits 1997 oder 1998 abgeschlossen werden sollte. Die Erklärung solle zum einen allgemeine Prinzipien, zum anderen Regelungen beinhalten, die auf bestimmte Situationen der Sukzession zielen. Während letztgenannter zweiter Teil auf den Schlußfolgerungen der vorangegangenen Sitzung basieren soll, werden für den ersten Teil u.a. folgende Grundsätze festgehalten: 111 das Recht jedes Menschen — und die korrespondierende Pflicht der Staaten —, am Tage der Sukzession zumindest die Staatsangehörigkeit entweder des Vorgänger- oder des Nachfolgerstaates zu besitzen; die staatliche Verpflichtung, bei der Sukzession im Hinblick auf das Staatsangehörigkeitsrecht gesetzgeberisch tätig zu werden und die Menschen darüber zu unterrichten; die weitgehende Berücksichtigung des Willens der betroffenen Menschen, auch bezüglich einer doppelten Staatsbürgerschaft; das Verbot willkürlicher und diskriminierender Entscheidungen; die Einhaltung zeitlich angemessener Rahmen und eine Garantie der richterlichen Überprüfung staatlicher Entscheidungen; der Schutz der Menschen in der Zeit zwischen der Sukzession und dem Ablauf der Gültigkeit der alten Staatsangehörigkeit; schließlich noch zu formulierende Rechte und Pflichten, die Drittstaaten im Falle einer Nichtbefolgung der entwickelten Grundsätze durch Vorgänger- und Nachfolgerstaat haben. Die ILC folgte den Empfehlungen der Arbeitsgruppe und schlug der Generalversammlung vor, sie zu ermächtigen, nach dem Abschluß der vorläufigen nun eine ver109

A/CN.4/474 and Corr. 1 and Corr. 2.

110

I L C Report 1996, 174.

111

Id.,

175 f.

Tätigkeit der International Law Commission in den Jahren 1995 und 1996

tiefte Studie unter dem Titel Staatsangehörigkeit in Beziehung zur Staatensukzession zu erstellen. VI. Überlegungen zu Arbeitsmethoden der ILC und künftige Vorhaben Auf eine diesbezügliche Anfrage der Generalversammlung112 hin reichte die ILC eine Studie über ihre Arbeitsverfahren und -methoden ein, anhand derer die Möglichkeiten einer Steigerung ihrer Beiträge zur progressiven Entwicklung und Kodifizierung des Völkerrechts überprüft werden sollte. Neben einer Berichterstattung im Hinblick auf die begonnenen Arbeiten wurde unter anderem angeregt, sich künftig in noch stärkerem Maße näher an praktischen Bedürfnissen der Generalversammlung zu orientieren, Plenumsdiskussionen in der ILC zu reformieren, die Sonderberichterstatter aufzufordern, Kodifikationsentwürfe umfangreicher mit Erläuterungen zu versehen, vermehrt Arbeitsgruppen und entwerfende Ausschüsse einzusetzen sowie Meinungsbilder von Regierungen einzuholen.113 Für die kommenden Jahre plant die ILC, eine Reihe neuer Themen auf ihre Agenda zu setzen, sofern sie von der Generalversammlung gebilligt werden. Zum einen wurde auf der 47. Sitzung (1995) angedacht, eine Durchführbarkeitsstudie zum Umweltrecht mit dem Ziel zu erstellen, die bisher sektoral erarbeiteten Standards in einem Gesamtkonzept zu integrieren und festzulegen. Unter dem Titel "Rechte und Pflichten von Staaten in Bezug auf den Schutz der Umwelt" sollen zunächst mögliche Schwerpunkte einer späteren konkreten Themensetzung erarbeitet werden. Geplant ist aber in jedem Fall, sich auf erga omnes-Pflichten zu konzentrieren, so daß auch der Bereich