German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 47 (2004) [1 ed.] 9783428518531, 9783428118533

Citation preview

VOLUME 47 · 2004

asdfghjk D U N C K E R & HU M B L O T · BE R L I N

G E R MAN YEAR B O O K O F I NTE R NATI O NAL LAW Volume 47 · 2004

Founders: Rudolf Laun · Hermann von Mangoldt Editors: Jost Delbrück, Rainer Hofmann and Andreas Zimmermann A s s i s t a n t E d i t o r s : Björn Elberling, Nilmini Silva-Send Walther-Schücking-Institut für Internationales Recht an der Universität Kiel Advisory Board of the Institute: Rudolf Bernhardt Heidelberg

Eibe H. Riedel Universität Mannheim

Christine Chinkin London School of Economics

Allan Rosas Court of Justice of the European Communities, Luxemburg

James Crawford University of Cambridge Lori F. Damrosch Columbia University, New York Vera Gowlland-Debbas Graduate Institute of International Studies, Geneva Fred L. Morrison University of Minnesota, Minneapolis

Bruno Simma International Court of Justice, The Hague Daniel Thürer Universität Zürich Christian Tomuschat Berlin Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 47 · 2004

asdfghjk DUNCKER & HUMBLOT / BERLIN

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

This Yearbook may be cited: GYIL 47 (2004)

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 # 2005 Duncker & Humblot GmbH, Berlin Printed by Color-Druck Dorfi GmbH, Berlin Printed in Germany ISSN 0344-3094 ISBN 3-428-11853-7 Gedruckt auf alterungsbeständigem (säurefreiem) Papier ∞ entsprechend ISO 9706 *

Internet: http://www.duncker-humblot.de

Contents Forum Rainer Hofmann: The German Federal Constitutional Court and Public International Law: New Decisions, New Approaches? . . . . . . . . . . . . . . . . . .

9

Petros C. Mavroidis: Cosi Fan Tutti [sic] – Tales of Trade and Development, Development and Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

Focus Section Africa and International Law Mohammed Bedjaoui: La contribution en demi-teinte de l’Afrique au développement du droit international . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

63

Bahame Tom Mukirya Nyanduga: Refugee Protection under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa .

85

Jean-Francois Durieux and Agnès Hurwitz: How Many Is Too Many? African and European Legal Responses to Mass Influxes of Refugees . . . . . . . . . . . . 105 Hennie Strydom: South Africa and International Law – From Confrontation to Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Natalie Klein: State Responsibility for International Humanitarian Law Violations and the Work of the Eritrea Ethiopia Claims Commission So Far . . . . . . . . . 214 Mariano J. Aznar-Gómez and Juan M. Ortega Terol: Spain and Its Former African Territories: A General Survey of Current Cooperation . . . . . . . . . . . . 267

General Articles Knut Dörmann and Laurent Colassis: International Humanitarian Law in the Iraq Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

6

Contents

Andrea Bianchi: Dismantling the Wall: The ICJ’s Advisory Opinion and Its Likely Impact on International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 David Kretzmer: The Supreme Court of Israel: Judicial Review during Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392 Robin Geiss: Failed States – Legal Aspects and Security Implications . . . . . . . . 457 Nicki Boldt: Outsourcing War – Private Military Companies and International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502 Angelika Siehr: Derogation Measures under Article 4 ICCPR, with Special Consideration of the ‘War Against International Terrorism’ . . . . . . . . . . . . . . . . . . 545 Anja Klug: Harmonization of Asylum in the European Union – Emergence of an EU Refugee System? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594 Birte Siemen: The EU-US Agreement on Passenger Name Records and EC-Law: Data Protection, Competences and Human Rights Issues in International Agreements of the Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Ronald Steiling and Alexander Schultz: Changes and Challenges to the EU Judicial System after the Constitutional Treaty – An Overview . . . . . . . . . . . . . . 666 Tilmann Laubner: Relieving the Court of Its Success? – Protocol No. 14 to the European Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 691

Reports René Groß und Sue Stubbe: Die Rechtsprechung des Internationalen Gerichtshofes im Jahre 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722 Till Müller: Die Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte im Jahre 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760 Heiko Leitsch: Die Rechtsprechung des Internationalen Strafgerichtshofes für das ehemalige Jugoslawien im Jahre 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Frank Bayer und Henning Jessen: Die Rechtsprechung des WTO-Streitbeilegungsgremiums im Jahre 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 834

Contents

7

Richard Happ and Noah Rubins: Awards and Decisions of ICSID Tribunals in 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878 Sara Jötten: Die Tätigkeit der International Law Commission im Jahre 2004 . . 922

Book Reviews Klaus Beckmann/Jürgen Dieringer/Ulrich Hufeld (Hrsg.): Eine Verfassung für Europa (Schwind) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 Eileen Denza: The Intergovernmental Pillars of the European Union (Goeters) . 959 Yoram Dinstein: The Conduct of Hostilities under the Law of International Armed Conflict (Boldt) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962 Oliver Dörr: Kompendium völkerrechtlicher Rechtsprechung (Klingberg) . . . . . 965 Emeka A. Duruigbo: Multinational Corporations and International Law. Accountability and Compliance Issues in the Petroleum Industry (Nowrot) . . . . . . . . . 967 Eilís Ferran: Building an EU Securities Market (Goeters) . . . . . . . . . . . . . . . . . 968 Jasper Finke: Die Parallelität internationaler Streitbeilegungsmechanismen – Untersuchung der aus der Stärkung der internationalen Gerichtsbarkeit resultierenden Konflikte (Oellers-Frahm) . . . . . . . . . . . . . . . . . . . . . . . . . . . 972 Malgosia Fitzmaurice/Dan Sarooshi (eds.): Issues of State Responsibility before International Judicial Institutions (Tams) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976 Walter Frenz: Handbuch Europarecht. Band I: Europäische Grundfreiheiten (Schwind) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979 Christof Heyns (ed.): Human Rights Law in Africa (Behnsen) . . . . . . . . . . . . . . 984 Silke von Lewinski (ed.): Indigenous Heritage and Intellectual Property. Genetic Resources, Traditional Knowledge and Folklore (Schlinkert) . . . . . . . . . . . . . 986 Manfred Nowak: Introduction to the International Human Rights Regime; and Theodor Schilling: Internationaler Menschenrechtsschutz: universelles und europäisches Recht (Tams) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988

8

Contents

René Provost: International Human Rights and Humanitarian Law (Tams) . . . . 991 Constanze Schulte: Compliance with Decisions of the International Court of 993 Justice (Zimmermann) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Albrecht Weber: Menschenrechte – Texte und Fallpraxis (Boldt) . . . . . . . . . . . . 994

Books Received

998

List of Contributors

1002

FORUM The German Federal Constitutional Court and Public International Law: New Decisions, New Approaches? By Rainer Hofmann A. Introduction On 19 June 2003, Justice Udo Di Fabio, Judge at the German Federal Constitutional Court (FCC) and, according to the internal distribution of tasks among the members of the bench, Judge-Rapporteur for most of the cases involving issues of public international law, spoke, in the context of a series of lectures organized by the Walther-Schücking-Institute for International Law, on the relationship between the FCC and International Courts.1 On 14 October 2004, the Second Senate of the FCC handed down a judgment on the relevance of decisions of the European Court of Human Rights (ECtHR) for German courts.2 This decision prompted a – so far – unknown reaction by members of the ECtHR who expressed their deep concern about the possible ramifications of this judgment,3 which in turn resulted in a statement by the President of the FCC, Justice Hans-Jürgen Papier, in which he stressed, inter

1

Udo Di Fabio, Das Bundesverfassungsgericht und die internationale Gerichtsbarkeit, in: Andreas Zimmermann/Ursula Heinz (eds.), Deutschland und die internationale Gerichtsbarkeit, 2004, 107–118. 2 Federal Constitutional Court, Second Senate, Order of 14 October 2004, 2 BvR 1481/04, available (in an official English translation) at: http://www.bverfg.de/ entscheidungen/rs20041014_2bvr148104e.html. 3 See, in particular, the interview with the President of the ECtHR, Luzius Wildhaber, Der Spiegel, No. 47/2004, 15 November 2004, 50 et seq.

10

Rainer Hofmann

alia, that “Strasbourg is not a superior court.”4 The scenario of a possible “clash of jurisdictions” or “conflict of courts” reminded many German lawyers of the early 1990s when a similar situation was foreseen for the relationship between the FCC and the European Court of Justice (ECJ) subsequent to the well-known Maastricht judgment of the FCC:5 For the first time, the issue of the relationship between “Karlsruhe” and “Strasbourg” was the subject of the main editorial of a leading German newspaper.6 But this judgment was not the end of the story. Only a few days later, on 26 October 2004, the Second Senate of the FCC handed down another judgment in which issues of the relationship between international public law, more precisely general rules of international law in the sense of Article 25 Grundgesetz (GG), and the domestic German legal order were at the core of the case.7 And on 24 November 2004, in a provisional order (Einstweilige Anordnung) pursuant to Section 32 of the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz, BVerfGG), the Second Senate of the FCC stopped the extradition of a person of dual (German and Syrian) citizenship to Spain;8 it held that it needed to clarify, in an ordinary procedure, whether the provisions of the German Act on International Legal Assistance (Internationales Rechtshilfegesetz) as amended by the Act on the European Arrest Warrant (Europäisches Haftbefehlsgesetz) of 21 July 20049 are compatible with the fundamental principles of the rule of law (rechtsstaatliche Grundsätze) as laid down in Article 16 para. 2 GG. So, within a very short period of time, the Second Senate of the FCC handed down three decisions of particular relevance for the relationship between inter4

The interview is reprinted in Frankfurter Allgemeine Zeitung (FAZ), 9 December 2004, 5. 5 See Official Collection of the Decisions of the Federal Constitutional Court (BVerfGE), vol. 89, 155; on this issue see, e.g., Stephan Hobe, The German State in Europe After the Maastricht Decision of the German Constitutional Court, German Yearbook of International Law, vol. 37, 1994, 113. 6 See Reinhard Müller, Das letzte Wort, FAZ, 23 October 2004, 1. 7 Federal Constitutional Court, Second Senate, Order of 26 October 2004, 2 BvR 955/00 and 2 BvR 1038/01, available (only in the authentic German version) at: http://www.bverfg.de/entscheidungen/rs20041026_2bvr095500.html. 8 Federal Constitutional Court, Second Senate, Provisional Order of 24 November 2004, 2BvR 2236/04, available (only in the authentic German version) at: http://www. bverfg.de/entscheidungen/rs20041124_2bvr223604.html. 9 Federal Law Gazette (Bundesgesetzblatt, BGBl), vol. 2004-I, 1748.

German Constitutional Court and Public International Law

11

national public law and the German domestic legal order. The first decision concerns not only the rank of international treaty law, in this case the European Convention on Human Rights (ECHR),10 within the German legal order, but also the legal effect of judgments of the ECtHR for German courts. The second decision contains important statements on the relevance of general principles of international law, or in other words customary law, for the German legal order. Finally, the third decision at least implicitly questions the compatibility of the decision of the German legislature to allow, by adopting the above-mentioned Act on the European Arrest Warrant, for the extradition of German citizens to Member States of the European Union and, more specifically – and, if one may say so, more dramatically – questions the compatibility of the Spanish legislation in the field of criminal procedure with what Article 16 para. 2 GG calls fundamental principles of the rule of law. But what is the relationship between these three quite important decisions and the above-mentioned speech by Justice Di Fabio? The answer is clear: With hindsight, his speech reads like a blueprint for these decisions. Therefore, this contribution will briefly present the main thrust of Justice Di Fabio’s arguments, continue by reporting, in a more detailed manner, the contents of the three decisions of the Second Senate of the FCC, and conclude by commenting upon their impact on the future relationship between public international law and the German legal order. B. Justice Di Fabio’s View on the Relationship between the Federal Constitutional Court and Public International Law Based upon his understanding of the fundamental role assumed by – international and national – courts in the emerging global community,11 Di Fabio presents his views on the tasks of national constitutional courts in this emerging global community, goes on to address the issue of human rights and the Grundgesetz, speaks briefly on the future role and impact of the dispute settlement bodies acting within the WTO system, and concludes by addressing the relationship between the FCC and the ECJ. For the purpose of this 10

European Convention for the Protection of Human Rights and Fundamental Freedom, 4 November 1950, ETS No. 5. 11 See Di Fabio (note 1), 107, referring, inter alia, to Udo Di Fabio, Der Verfassungsstaat in der Weltgesellschaft, 2001.

12

Rainer Hofmann

contribution, it is appropriate to focus on his thoughts on the tasks of national constitutional courts and on the issue of international human rights and the Grundgesetz. I. The Tasks of National Constitutional Courts

As concerns the – present and future – tasks of national constitutional courts in a world characterized by an emerging global community which increasingly relies on the existence and jurisprudence of international courts as means of peaceful settlement of disputes between States or States and individuals or – one is tempted to add in a more general way – between subjects of international law, Di Fabio holds that national constitutional courts and international courts, if they wish to create together a systemic relationship, have to recognize and respect each other’s basic raîson d’être (Gründungslogos) and their respective legitimate jurisdiction (legitimer Geltungsanspruch).12 They are therefore bound to interpret and apply their own legal standards in such a way as to facilitate the emergence of a complementary international legal order; this again necessitates a dialog among the various courts.13 Di Fabio continues by stating that the logos of the FCC is to be the guardian of the German Constitution. Since all constitutions aim at integrating a political community into a legal community, the task of a constitutional court is to create and to safeguard a legal order in such a way as to respects its basic principles as laid down in its constitution. The basic principles of the Grundgesetz consist of facilitating and safeguarding freedom and security in a community organized as a State, but it aims at the creation of an international and European peaceful order which, as a politically integrated legal order, complements and safeguards the constitutional order.14

12 Id., 109: “Wenn Verfassungsgerichte der Staaten und die internationalen Gerichte miteinander in eine systembildende Beziehung wachsen wollen, müssen sie den Gründungslogos und den legitimen Geltungsanspruch der jeweiligen Gerichtsbarkeit erkennen und achten.” 13 Id., referring to Di Fabio (note 11), 78–79; Christian Tomuschat, Das Bundesverfassungsgericht im Kreise anderer nationaler Verfassungsgerichte, in: Peter Badura/ Horst Dreier (eds.), Festschrift 50 Jahre Bundesverfassungsgericht, 2001, 245, 285 et seq. 14 Id., 109.

German Constitutional Court and Public International Law

13

II. Human Rights and the Grundgesetz

As to the issue of human rights and the Grundgesetz, Di Fabio differentiates between the jurisprudence of the ECtHR, thus the regional, European level, and the universal protection of human rights. 1. With respect to the jurisprudence of the ECtHR, Di Fabio sets out by stating that the ECHR represents, by and large, the nucleus of the human rights guarantees in a Verfassungsstaat. He continues by stating that the jurisprudence of the ECtHR constitutes, for the FCC, an important source when interpreting the human rights guarantees of the Grundgesetz.15 Then he addresses the crucial issue of the rank of such jurisprudence: If the human rights enshrined in the ECHR belong to the general principles of international law in the sense of Article 25 GG, either because they are recognized by a majority of all States, or because one accepts the existence of regional, i.e. European, customary law, the rank of a judgment of the ECtHR would be above German statute law without, however, constituting constitutional law, but it would not be directly applicable. He continues by stating that such direct domestic applicability would not reflect the intention of the ECHR, and stresses that the FCC had in some instances expressed its view that when interpreting human rights provisions of the Grundgesetz, it did not consider the ECHR to be of inferior rank to the Grundgesetz.16 Having said this, Di Fabio develops his own view. He starts by conceding that any interpretation of the human rights provisions of the Grundgesetz which would be in open contradiction with the jurisprudence of the ECtHR on corresponding provisions of the ECHR, insofar as it would provide for a clearly lower level of protection than the one afforded by the ECtHR, would not be compatible with the Grundgesetz: Such a decision of the FCC would result in a violation by Germany of the ECHR which the FCC is obliged to seek to avoid, an obligation arising from the very Grundgesetz itself, and which it therefore must not bring about by a decision of its own. In view of the Völkerrechts-

15

Id., 110, referring to BVerfGE, vol. 75, 1, 18 et seq.; vol. 92, 277, 320 et seq. Id., 110, referring to BVerfGE, vol. 74, 358, 370; vol. 82, 106, 120. He even mentions that several authors hold that the jurisprudence of the FCC might be interpreted in such a way as to accord to the ECHR, as applied by the ECtHR, a rank superior to the Grundgesetz; in so far he refers to Ingolf Pernice, Art. 25, mn. 92, in: Horst Dreier (ed.), Grundgesetz-Kommentar, vol. 2, 1998. 16

14

Rainer Hofmann

freundlichkeit of the Grundgesetz, its openness towards international law,17 and its resolution, expressed in its Article 1 para. 2, to respect human rights, a judgment of the FCC in which the Court would knowingly accept a violation of a human right could not be justified.18 Having said this, Di Fabio continues by qualifying this statement and states that the jurisprudence of the FCC, in view of the rank provided for to international treaty law by the Grundgesetz19 and the general principles of international law,20 is in need of some flexibility when interpreting the Grundgesetz in order to safeguard the uniformity of the interpretation and application of constitutional law. Therefore, the jurisprudence of the ECtHR must be taken into account when interpreting the provisions of the Grundgesetz if not doing so would result in a decision remaining below the standards provided for by the ECHR. Having said this, Di Fabio proceeds to make his decisive statement and explains that to ‘take into account’ means to take note and to avoid, to the largest extent possible, any conflicting decisions.21 He then concludes by stating that the FCC had always treated the jurisprudence of the ECtHR with respect and, in order to support his view, refers to a judgment of the FCC on the fire service levy in the Land of Baden-Württemberg22 in which it had followed a previous judgment of the ECtHR.23 The above-mentioned Völkerrechtsfreundlichkeit of the Grundgesetz implies also an obligation for the FCC to ensure within its competences that 17

Di Fabio (note 1), 110 refers here to Christian Tomuschat, Die staatsrechtliche Entscheidung des Grundgesetzes für die internationale Offenheit, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts, vol. 7, 1992, Sect. 172. 18 Di Fabio (note 1), 110–111. 19 Without doing so explicitly, Di Fabio refers here to Art. 59 para. 2 GG, which is generally understood to accord provisions of international treaties in force for Germany the rank of statute law within the domestic German legal order; see, e.g., Rudolf Streinz, Art. 59, mn. 63, in: Michael Sachs (ed.), Grundgesetz-Kommentar, 3rd ed. 2003. 20 According to Art. 25 GG, such general principles are generally held to have a rank inferior to the Grundgesetz, but superior to statute law, see, e.g., Streinz, Art. 25, mn. 88, in: Sachs (note 19). 21 Di Fabio (note 1), 111: “Berücksichtigen heißt zur Kenntnis nehmen und Kollisionen so weit als möglich zu vermeiden.” 22 BVerfGE, vol. 92, 91 et seq. 23 ECtHR, Karlheinz Schmidt v. Germany, Judgment of 18 July 1994, Series A, No. 291-B.

German Constitutional Court and Public International Law

15

administrative and judicial bodies respect the provisions of the ECHR and the pertinent jurisprudence of the ECtHR24 Moreover, the FCC is also obliged to see to it, again within its competences, that Germany does not violate her obligations under international treaty law. Corresponding limits result, however, from the ‘identity of the constitutional order’ (Identität der Verfassungsordnung): The Grundgesetz wants Germany to abide by her international legal obligations, but not at the cost of giving up its own identity.25 This final reserve of an open Constitution which is, however, resolved to safeguard its own identity is the reason underlying the prevalence of constitutional law over general principles of international law and international treaty law as expressed in Articles 25 and 59 para. 2 GG. 2. With respect to the protection of human rights on the universal level, in which he includes the activities of international criminal tribunals and courts, Di Fabio focuses on the question of under which conditions a person might be extradited to be tried before such an international criminal court or tribunal.26 According to the present version of Article 16 para. 2 GG, statute law may allow for German citizens to be extradited in order to be tried before a court of a Member State of the European Union or an international criminal court, as long as fundamental principles of the rule of law are guaranteed. Di Fabio sets out by stating that it is the duty of the FCC to control whether such a statute was rightly based upon the assessment that fundamental principles of the rule of law are indeed guaranteed. In this context, he raises several questions without, however, giving a final answer: Who is obliged to guarantee these fundamental principles – only international criminal courts and tribunals or also present and future Member States of the European Union –, and to what extent are they obliged? Is it sufficient that a minimum standard in the sense of 24

Di Fabio (note 1), 111. Id.: “Das Bundesverfassungsgericht ist […] verpflichtet, alles im Rahmen seiner Zuständigkeit zu tun, damit die Bundesrepublik nicht vertragsbrüchig wird. Grenzen dafür setzt nur die Identität der Verfassungsordnung. Das Grundgesetz will Völkerrechtstreue, freilich nicht um den Preis der Aufgabe der eigenen freiheitlichen Identität. Diese letzte Reserve einer offenen, aber zur Wahrung der Identität entschlossenen Verfassung ist der Grund für den in Art. 25 und Art. 59 Abs. 2 GG zum Ausdruck kommenden Vorranganspruch grundgesetzlicher Bestimmungen vor den allgemeinen Regeln des Völkerrechts und dem Völkervertragsrecht.” 26 Id., 112, referring to Andreas Zimmermann, Die Auslieferung Deutscher an Staaten der Europäischen Union und internationale Strafgerichtshöfe, Juristenzeitung, vol. 20, 2001, 233 et seq. 25

16

Rainer Hofmann

ordre public is guaranteed, or is there a need for a functional adequacy with German standards?27 Di Fabio addresses only the issue of extradition to Member States of the European Union and states that, in principle, there should be a presumption that Member States comply with the structural clause of Article 6 para. 1 TEU,28 but that this constitutes only a rebuttable presumption. If a Member State did not comply with such standards of the rule of law, and if the Union did not act under Article 7 TEU, could German citizens then be extradited to such a State? Since human rights provisions such as Article 16 para. 2 GG always aim at the protection of the individual holder of such a right, it will be necessary not only to look into the legal, but also into the factual situation. Fundamental principles of the rule of law are only guaranteed if extradited German citizens will be guaranteed a fair trial which essentially corresponds to the constitutionally protected standards under German law. There must not be any risk of torture or inhuman conditions of detention and there must be a guarantee for ‘equality of arms’ between prosecution and defense which respects the functional needs of any criminal procedure as well as the rights of the accused.29 Di Fabio’s general position, which is also reflected in his concluding remarks,30 seems to be that national constitutional courts including the FCC contribute – and should contribute – to the furthering of the emerging world legal order and assist the international courts as concerns the implementation, on the domestic level, of their judgments. However, as the primary task of – national – constitutional courts is to defend, if need be, the identity of the national constitutional order, there are, by necessity, limits. National constitutional courts will not respect judgments of international courts if doing so would result in a violation of the essential aspects of the national constitutional order. Whether, and to what extent, these views are reflected in the above-mentioned three recent decisions of the FCC will be dealt with in the subsequent section.

27

Id., 112. Consolidated Version of the Treaty on European Union, 24 December 2002, O.J. 2002 C 325/5 (TEU). 29 Di Fabio (note 1), 113. 30 Id., 117–118. 28

German Constitutional Court and Public International Law

17

C. The Three Recent Decisions of the Federal Constitutional Court As mentioned above, in the fall of 2004, the Second Senate of the FCC handed down three decisions dealing with various aspects of the relationship between public international law and the German domestic legal order. I. International Treaty Law, in Particular Judgments of the European Court of Human Rights, and the German Domestic Legal Order

General questions of the relationship between international treaty law, or more specifically the ECHR and pertinent decisions of the EctHR, and German law are at the core of the decision of 14 October 2004 in the Görgülu Case, resulting from a constitutional complaint (Verfassungsbeschwerde) lodged by Mr. Görgülu against a decision of the Oberlandesgericht (OLG) Naumburg in a child custody case. 1. The Facts Mr. Görgülu is the father of a boy born out of wedlock in August 1999. His mother gave her child up for adoption one day after his birth and later declared her prior consent to his adoption by the foster parents with whom the boy had been living since his birth. Since October 1999, when he had learned about the birth of his son, Mr. Görgülü had, in a number of rather protracted judicial proceedings, unsuccessfully endeavored to be given custody over his son and to be granted a right of access. By an order dated 31 July 2001 and without stating any grounds, the Third Chamber of the First Senate refused to admit his constitutional complaint against the pertinent decisions of the OLG Naumburg. In his individual application filed with the ECtHR in September 2001, Mr. Görgülu alleged that these decisions constituted a violation of his right to respect for private and family life as provided for by Article 8 ECHR. In a judgment of 26 February 2004, a Chamber of the Third Section of the ECtHR declared unanimously that the decision on custody and the exclusion of his right of access constituted a violation of Article 8 ECHR.31 It held that in cases in 31

ECtHR, Görgülü v. Germany, Judgment of 26 February 2004, available at: http:// hudoc.echr.coe.int/.

18

Rainer Hofmann

which family bonds to a child are shown to exist, the State has the duty to endeavor to reunite a natural parent with his or her child. Furthermore, it held that Mr. Görgülü must be enabled to have access to his son. Thereupon, by an order of 19 March 2004, in the still pending parallel proceedings on custody, the Amtsgericht Wittenberg transferred, in accordance with Mr. Görgülü’s application, custody to him and granted him a right of access by way of a temporary injunction taken proprio motu. By orders dated 30 March 2004 and 30 June 2004, the OLG Naumburg overturned this temporary injunction. It held, in particular, that the judgment of the ECtHR was, under Article 46 ECHR, binding solely upon the Federal Republic of Germany as a subject of public international law, but not upon its authorities and bodies responsible for the administration of justice, which are independent by virtue of Article 97 para. 1 GG. Therefore, the judgment of the ECtHR was not binding upon German courts. In his second constitutional complaint filed on 20 July 2004, Mr. Görgülü alleged violations of his fundamental rights under Articles 1, 3 and 6 GG and of the right to a fair trial. He submitted also that the OLG had disregarded international law and had failed to recognize the binding effect of the decisions of the ECtHR. 2. The Decision of the Federal Constitutional Court The Second Senate of the FCC sets out by stating that the ECHR and its protocols have been transformed, by pertinent Acts passed by the legislature under Article 59 para. 2 GG, into German law and therefore have the rank of federal statute law.32 Therefore, German courts must observe and apply the ECHR within the limits of a methodologically justifiable interpretation of German law. The guarantees of the ECHR are, however, not a direct constitutional standard of review in the German legal system; a complainant cannot, therefore, directly base a constitutional complaint upon an alleged violation of a human right contained in the ECHR.33 However, the guarantees of the ECHR impact upon the interpretation of the fundamental rights and constitutional principles of the Grundgesetz. The ECHR and the case-law of the ECtHR serve as a guiding 32 Order of 14 October 2004 (note 2), para. 31, referring to BVerfGE, vol. 74, 358, 370; vol. 82, 106, 120. 33 Id., para. 32, referring to BVerfGE, vol. 74, 102, 128.

German Constitutional Court and Public International Law

19

source in determining the content and scope of the fundamental rights and constitutional principles of the Grundgesetz, to the extent that this does not restrict or reduce the protection of a person’s fundamental rights under the Grundgesetz.34 This constitutional significance of an international treaty shows the Völkerrechtsfreundlichkeit of the Grundgesetz. If possible, it is to be interpreted in such a way that no conflict arises with obligations of Germany under international law.35 The Senate continues, however, by stating that the commitment to international law takes effect only within the democratic and constitutional system of the Grundgesetz:36 The Grundgesetz aims [at integrating] Germany into the legal community of peaceful and free States, but does not waive the sovereignty contained in the last instance in the German constitution. There is therefore no contradiction with the aim of commitment to international law if the legislature, exceptionally, does not comply with [international treaty law], provided this is the only way in which a violation of fundamental principles of the constitution can be averted.37

Having made these general statements, the Senate turns to the decisions of the ECtHR and states that they have a particular importance for Convention law because they reflect the current state of development of the ECHR and its protocols. Pursuant to Article 46 ECHR, the States Parties have agreed that in all legal disputes to which they are a party, they will abide by the final judgment of the ECtHR. Therefore, the judgments of the ECtHR are binding upon all parties to the proceedings, but also upon those parties only.38 The Senate continues by pointing out that, as to the facts, the ECtHR delivers a declaratory judgment which, however, does not directly quash the relevant measure of the State Party.39 It then elaborates on the various actions affected States Parties may take and concludes that the binding effect of a decision of the ECtHR extends to all State authorities and, in principle, imposes upon them an

34

Id., para. 32, referring to BVerfGE, vol. 74, 358, 370; vol. 83, 119, 128. Id., para. 33. 36 Id., para. 34. 37 Id., para. 35. 38 Id., para. 38. 39 Id., para. 40, referring to Jörg Polakiewicz, Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte, 1993, 217 et seq. 35

20

Rainer Hofmann

obligation, within their jurisdiction, to end a continuing violation of the ECHR and to establish a situation that complies with the ECHR.40 The Senate then embarks upon a more thorough discussion of the nature of the binding effect of the judgments of the ECtHR and holds that this depends upon the area of competences of the State authorities concerned and the relevant law: Under Article 20 para. 3 GG, administrative authorities and courts are bound by statute and law, which includes an obligation to take into account the guarantees of the ECHR and the decisions of the ECtHR as part of a methodologically justifiable interpretation of the law. Both a failure to consider a decision of the ECtHR and the implementation of such a decision in a schematic way may, therefore, amount to a violation of German fundamental rights in conjunction with the principle of the rule of law.41 This implies, inter alia, that domestic law must, as far as possible, be interpreted in harmony with the ECHR and its interpretation by the ECtHR42 The following rather detailed statements of the Second Senate of the effects of decisions of the ECtHR for German courts may be summarized as follows. Whereas the 1998 amendment of Section 359 of the Code of Criminal Procedure introduced the possibility of reopening criminal proceedings if the final judgment of the German court has been declared, by a judgment of the ECtHR, to constitute a violation of the guarantees of the ECHR,43 such a possibility is not explicitly provided for in other branches of the law. However, the Senate holds that there is an obligation for German courts to take into account a judgment of the ECtHR that relates to a case which they have already decided if they deal again with the matter on the basis of a new application or are still dealing with it under a different procedural setting.44 So far so good – or, at least, so far one might be inclined to follow the reasoning of the Second Senate, albeit with some major qualifications as to the use of the term “taking into account” when dealing with the effects of final judgments of the ECtHR for German courts. The Second Senate continues, however, by introducing additional and most considerable qualifications to its previous lines of reasoning. It states that 40

Id., paras. 41–46, referring, inter alia, to the recent judgments of the ECtHR in the cases Assanidze v. Georgia, Judgment of 8 April 2004, and Maestri v. Italy, Judgment of 17 February 2004, both available at: http://hudoc.echr.coe.int/. 41 Id., para. 47. 42 Id., para. 48. 43 Id., para. 54. 44 Id., para. 55.

German Constitutional Court and Public International Law

21

[i]n taking into account decisions of the [ECtHR], German authorities must include the effects on the national legal system in their application of the law. This applies in particular with regard to a partial system of domestic law whose legal consequences are balanced and that is intended to achieve an equilibrium between differing fundamental rights.45

What does this mean? An answer is given in the following paragraphs of the decision, where the Second Senate states that decisions of the ECtHR which usually concern specific individual cases involving legal relations between States Parties and individual applicants might also “encounter national partial systems of law shaped by a complex system of case-law. In the German legal system, this may happen in particular in family law and the law concerning aliens, and also in the law on the protection of personality46 in which conflicting fundamental rights are balanced by the creation of groups of cases and graduated legal consequences.” The Second Senate concludes that in these branches of the law, it is the task of the domestic courts to carefully integrate a decision of the ECtHR into the affected “partial area of the law.”47 The Second Senate then turns to the issue of the role of the FCC as concerns the domestic implementation of Germany’s obligations under international treaty law. It states that the FCC must, if possible, prevent and remove violations of international law that consist in the incorrect application or non-observance by German courts of obligations under international law and which may entail Germany’s responsibility under international law.48 This applies to a particularly high degree with respect to the obligations under international law arising from the ECHR, which contributes to the promotion of a joint and common European development of fundamental rights (gemeineuropäische Grundrechtsentwicklung). The Second Senate then states that as long as applicable methodological standards leave room for interpretation and balancing of interests, German courts must give precedence to interpretation in accordance with the ECHR. It continues, however, that the situation is different if observing the decision of the ECtHR would result in a clear violation of German statute law or German constitutional provisions, in particular the fundamental rights of third parties. It then defines the term “to take into account” – which is, as mentioned above, what 45

Id., para. 57. Id., para. 58; here the Senate refers explicitly to the – at least in Germany highly controversial – EctHR Judgment of 24 June 2004 in the Case von Hannover v. Germany, available at: http://hudoc.echr.coe.int/ (so-called Caroline of Monaco Case). 47 Id., para. 59. 48 Id., para. 61, referring to BVerfGE, vol. 58, 1, 34; vol. 59, 63, 89; vol. 109, 13, 23. 46

22

Rainer Hofmann

German courts have to do with respect to decisions of the ECtHR – as taking note of the respective provision of the ECHR as interpreted by the ECtHR and applying it to the case before the court, provided that such application does not result in the violation of superior law, in particular constitutional law; in any event, the provision of the ECHR, as interpreted by the ECtHR, must be taken into account when making a decision which implies that, as a minimum, the courts must duly consider it.49 Then the Second Senate makes a truly important step by stating that, by means of a constitutional complaint, any person may allege before the FCC that German State authorities including courts have disregarded, or failed to take into due account, any relevant provision of the ECHR as interpreted by the ECtHR and that such omission might constitute a violation of the applicable fundamental right protected by the Grundgesetz in conjunction with the rule of law.50 This is very important indeed because it means in fact that anyone who holds that one of his or her human rights guaranteed by the ECHR, as interpreted by the ECtHR, has been violated by an act, or omission, of a German authority is now – for the first time in German legal history – entitled to have this case heard by the FCC by alleging a violation of the corresponding fundamental right of the Grundgesetz in conjunction with the principle of the rule of law. Finally, the Second Senate applies these general considerations to the case before it and rules that the decision of the OLG Naumburg of 30 June 2004 constitutes a violation of Article 6 GG – which protects the right to family life and insofar corresponds to Article 8 ECHR – in conjunction with the principle of the rule of law as it did not take into sufficient account the judgment of the ECtHR of 26 February 2004 although it was under an obligation to do so.51 It argues that the OLG failed to show that it considered, in a comprehensible manner, the issue as to how Article 6 GG could have been interpreted in such a way as to comply with Germany’s obligations under the ECHR.52 It further considers as of central importance the fact that Germany’s violation of Article 8 ECHR, as established by the ECtHR, continues to exist since Mr. Görgülü still has no access to his son.53 The Second Senate continues by stating that the OLG had assumed, in a manner incompatible with constitutional law, that a judgment of the 49 50 51 52 53

Id., para. 62. Id., para. 63. Id., para. 64. Id., para. 65. Id., para. 66.

German Constitutional Court and Public International Law

23

ECtHR was binding only upon Germany as a subject of international, and had failed to abide by the obligation of all German courts to take into due account the guarantees of the ECHR and the relevant case-law of the ECtHR when interpreting fundamental rights and constitutional principles guaranteed by the Grundgesetz.54 In the present case, the OLG should, therefore, have considered the pertinent decision of the ECtHR in which it had found that Germany had violated Article 8 ECHR, since this decision was handed down in a matter with which the OLG had to deal again. This obligation, i.e. to take that decision into due account, neither adversely affected the independence of the OLG as guaranteed by the Grundgesetz nor did it force the OLG to implement the decision of the ECtHR without further consideration:55 In the legal assessment, in particular of new facts, and in balancing conflicting fundamental rights such as those of the foster family and in integrating the judgment of the ECtHR into the overall context of family law cases concerning the right of access, the OLG was not bound by the judgment of the ECtHR as to its specific conclusions.56 However, since the decision of the OLG completely failed to discuss the aspects of the interrelationship between the ECHR and the German legal order, the Second Senate rules, unanimously, that the decision of the OLG violated Mr. Görgülü’s fundamental right under Article 6 GG in conjunction with the principle of the rule of law, therefore reversing the decision and referring the matter back for a new decision to a different Senate of the OLG Naumburg. 3. The Follow-up This decision was, however, not the end of the story. On 2 December 2004, the Amtsgericht Wittenberg granted Mr. Görgülü limited access to his son. On appeal of the custodian of the boy, the OLG Naumburg again reversed this order on 20 December 2004 and instructed the Amtsgericht to reconsider its previous decision. Again, Mr. Görgülü filed a constitutional complaint alleging, inter alia, a violation of his right to family life as protected under Article 6 GG and moreover, relying on the reasoning of the FCC decision of 14 October 2004, he submitted that the decision of the OLG did not take into account the judgment of the ECtHR and thus violated his right resulting from Article 6 GG in conjunction with Article 20 para. 3 GG (principle of the rule of law). He also 54 55 56

Id., para. 67. Id., para. 68. Id., para. 69.

24

Rainer Hofmann

asked for a provisional order, as provided for by Section 32 BVerfGG, to allow him access to his son. On 28 December 2004, the Third Chamber of the First Senate of the FCC57 granted this provisional order.58 It held, in particular, that there were good grounds to assume that the OLG had not sufficiently taken into account the pertinent judgment of the ECtHR of 26 February 2004. Therefore, the Third Chamber ordered that Mr. Görgülu was entitled to have access to his son as ruled in the order of the Amtsgericht of 2 December 2004 pending the final decision on the constitutional complaint. II. General Principles of International Law and the German Domestic Legal Order

On 26 October 2004, the Second Senate of the FCC handed down a decision in which it made some quite important statements on the impact of the general principles of international law in the sense of Article 25 GG, i.e. rules of customary international law, on the German domestic legal order.59 1. The Facts In September 1945, the Soviet Military Administration in Germany issued several acts which resulted in the expropriation, without any compensation, of all private ownership of land exceeding 100 hectares. Judicial remedies were not available. In the context of the negotiations on the accession of the former German Democratic Republic to the Federal Republic of Germany, both governments stated, in their Common Declaration on the Regulation of Open Issues of Ownership of 15 June 1990,60 that with respect to the restitution of 57 Since this application primarily raised questions concerning the right to family life as protected by Art. 6 GG, it fell, according to the internal distribution of tasks between the two Senates of the FCC, within the competence of the First Senate. 58 Federal Constitutional Court, First Senate, Order of 28 December 2004, 1 BvR 2790/04, available (only in the authentic German version) at: http://www.bverfg.de/ entscheidungen/rk20041228_1bvr279004.html; it might be interesting to note that the Third Chamber of the First Senate of the FCC is presided by Justice Hans-Jürgen Papier, President of the FCC, who in a previous interview had been quoted as stating that “Strasbourg is not a superior court” (see, supra, note 4). 59 Order of 26 October 2004 (note 7). 60 Gemeinsame Erklärung zur Regelung offener Vermögensfragen, BGBl., vol. 1990-II, 1237.

German Constitutional Court and Public International Law

25

ownership rights concerning land and buildings, expropriation measures effected between 1945 and 1949 on the basis of acts issued by the Soviet occupation authorities would not be reversed, whereas for expropriation measures taken by the authorities of the German Democratic Republic between 1949 and 1990, the principle restitution before compensation (Rückgabe vor Entschädigung) would be applied. Pursuant to Article 41 para. 1, this Common Declaration became part of the Treaty on German Unification of 31 August 199061 and later, by its inclusion into Article 143 para. 3 GG, part of the constitutional order of the unified Germany. The applicants are the heirs of persons whose landed properties had been expropriated during the above-mentioned land reform. After 1990, their applications for restitution of such properties had been denied by the competent administrative authorities and courts. They allege, inter alia, that the exclusion of any claims for restitution constitutes a violation of general principles of international law in the sense of Article 25 GG and, therefore, also a violation of their rights under Article 2 para. 1 GG in conjunction with Article 25 GG. 2. The Decision of the Federal Constitutional Court The Second Senate sets out by stating that the general principles of international law are, by virtue of Article 25 GG, part of the domestic German legal order and that they prevail over statute law.62 Furthermore, by virtue of Article 20 para. 3 GG (principle of the rule of law – Rechtsstaatsprinzip), all German State organs are bound by international law.63 There is, however, no obligation to implement each and every norm of international law; this obligation applies only to such norms which correspond to the basic concepts upon which the Grundgesetz is based. The Grundgesetz aims at increasing the respect for international organizations safeguarding peace and liberty and for international law, but it reserves the final responsibility for the respect of human dignity and human rights to the German authorities.64

61

Einigungsvertrag, BGBl., vol. 1990-II, 889. Order of 26 October 2004 (note 7), para. 88. 63 Id., para. 90. 64 Id., paras. 91–92, with explicit reference to the above-discussed order of 14 October 2004 (note 2). 62

26

Rainer Hofmann

The general obligation to respect international law consists of three elements. Firstly, all German State organs are obliged to respect international law norms binding upon Germany. Secondly, the German legislature is under an obligation to guarantee, within the framework of the German legal order, that violations of international law norms committed by German State organs can be reversed. Thirdly, German State organs may be obliged to give effect, within the ambit of their competences, to international law norms which have been violated by other States.65 They are, in particular, obliged to refrain from any measure which would give effect, in the sphere of application of the Grundgesetz, to acts of other States which violate general principles of international law; moreover, they must also refrain from any measure which would contribute – in a decisive way – to violations of such general principles by acts of other States.66 This obligation might, however, result in a situation in which it jeopardizes another obligation resulting from the Grundgesetz, namely to cooperate with other States and other subjects of international law. In such a situation of potentially conflicting obligations, a solution must be found which is based upon a fair balance between these obligations.67 The Second Senate concludes these general statements by expressly recognizing the existence of international jus cogens norms from which no State may deviate unilaterally nor by means of treaty law.68 In the following, the Second Senate applies these general rules to the case at hand and concludes that there is no violation of the constitutional law obligation to respect international law. It sets out by stating that the expropriation measures effected between 1945 and 1949 in the part of Germany occupied by Soviet military forces had been ordered by the Soviet Military Administration and cannot be attributed to the Federal Republic of Germany.69 Subsequent to the foundation of the German Democratic Republic, its authorities had been legally entitled to reverse the expropriation measures effected by the military occupation authorities, but refrained from doing so. Upon the re-unification of Germany, the Federal 65

Order of 26 October 2004 (note 7), para. 93. Id., para. 95, referring to previous decisions: BVerfGE, vol. 75, 1, 18; vol. 109, 13, 26; vol. 109, 38, 52. This statement reflects the settled jurisprudence of the FCC. 67 Id., para. 96. 68 Id., para. 97, referring to BVerfGE, vol. 18, 441, 448. 69 Id., referring to BVerfGE, vol. 84, 90, 122. 66

German Constitutional Court and Public International Law

27

Republic of Germany acquired the sovereign right to decide whether or not to reverse the expropriation measures.70 The Court continues by stating that the 1907 Hague Regulations on Land Warfare71 which were applicable to the occupation of Germany provide for possible claims between the occupying power and the previously occupied State. In particular, a party to a conflict which violates norms of the 1907 Hague Regulations is, in principle, under an obligation to pay compensation according to the rules of State responsibility. However, the State entitled to such compensation may waive this right, as Germany has implicitly done in the context of the negotiations resulting in the conclusion, on 12 September 1990, of the Two-PlusFour-Treaty.72 This waiver does not constitute a breach of any norm having the rank of jus cogens. At the time when the expropriations took place, there was no opinio juris pursuant to which the protection of the right to property, also of nationals of the expropriating State, constituted a peremptory norm of international law.73 Moreover, no such norm has come into existence since then: There is no rule of current general international law extending the protection granted to aliens against expropriation also to nationals of the expropriating State.74 Finally, the Second Senate notes that neither the provisions of the 1969 Vienna Convention on the Law of Treaties75 nor the International Law Commission Articles on the Law of State Responsibility76 result in an obligation of the Federal Republic of Germany to treat the 1945 expropriations as null and void since such a consequence is only required with respect to acts by a third State which constitute breaches of jus cogens norms. In other situations – such as the present

70

Id., para. 110. Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and Customs of War on Land, 18 October 1907, reprinted in: Dietrich Schindler/Jirí Toman, The Laws of Armed Conflicts, 3rd ed. 1988, 69. 72 Order of 26 October 2004 (note 7), paras. 112–113; Treaty on the Final Regulation concerning Germany, 12 September 1990, reprinted in: ILM, vol. 29, 1990, 1186. 73 Order of 26 October 2004 (note 7), para. 117. 74 Id., para. 119. 75 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, 331. 76 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), 43. 71

28

Rainer Hofmann

one –, States are only under an obligation to cooperate with a view to bringing about a solution which seeks to balance the mutual interests.77 The Second Senate then holds that Germany has respected this obligation by bringing about the unification of Germany by means of peaceful negotiations, in the context of which the Federal Government was entitled to assume that to bring about unification in this way would have been impossible if it had treated the expropriations in question as null and void.78 Moreover, Germany did not breach the international law obligation that States must not be enriched by violations of international law attributable to another State since such an obligation does not imply that the enriched State – here Germany – must restitute to the original owners expropriated property which, by operation of the rules of State succession, is now owned by that State. Only an adequate compensation is required.79 Such an adequate compensation has been effected by means of the pertinent statute law, the Ausgleichsleistungsgesetz.80 Its provisions are not only compatible with the conditions resulting from the principles of the rule of law and the social State (Rechts- und Sozialstaatsprinzip) as enshrined in the Grundgesetz, but also with the pertinent rules of international law.81 In this context, it must also be taken into account that the unification of Germany constitutes a process in which the Federal Republic of Germany is entitled to include the measures aimed at overcoming the consequences of the post-war expropriations in a larger concept aimed at bringing about a general balance of interests. The Second Senate explicitly states that “the consequences of World War II, the occupation of Germany and a post-war dictatorship have to be jointly borne by all Germans who have to accept, to a limited extent, individual injustice without the right to obtain, in each and every individual case, adequate compensation or even full restitution.”82

77

Order of 26 October 2004 (note 7), para. 123. Id., para. 125. 79 Id., para. 126. 80 BGBl., vol. 1994-I, 2624, as amended by BGBl., vol. 1995-I, 110. 81 Order of 26 October 2004 (note 7), para. 129. 82 Id., para. 132: “Die Folgen des Zweiten Weltkriegs, einer Besatzungsherrschaft und einer Nachkriegsdiktatur sind von den Deutschen als Schicksalsgemeinschaft zu tragen und als individuelle Unrechtserfahrung in bestimmten Grenzen auch zu ertragen, ohne dass in jedem Fall ein angemessener Ausgleich oder gar Naturalrestitution zu erlangen wäre.” 78

German Constitutional Court and Public International Law

29

Finally, the Second Senate addresses the compatibility of this solution with the requirements of the ECHR and states that it is compatible therewith and with the jurisprudence of the ECtHR. It sets out by stating that Article 1 of the Additional Protocol to the ECHR83 protects, according to the jurisprudence of the ECtHR, not only existing possessions but also legitimate expectations. In contrast thereto an expectation concerning the further validity of previously held property rights which could not be be exercised over a long period of time does not constitute such legitimate expectations.84 More specifically, the ECtHR had ruled that property rights which had been expropriated in the immediate postWorld War II period as a consequence thereof could not be considered as giving rise to such legitimate expectations by their previous owners.85 III. Treaty Obligations to Extradite and the Grundgesetz

The last decision to be reported is a provisional order of the Second Senate of the FCC of 24 November 2004 by which it stopped the extradition of a person of dual (German and Syrian) citizenship to Spain.86 On 16 September 2004, the Audiencia Nacional in Madrid had issued a European arrest warrant against the complainant, who was accused of membership in a criminal association and of acts of terrorism. He had been detained since 15 October 2004 in order to secure his possible extradition. On 23 November 2004, the competent OLG Hamburg had declared his extradition lawful since the complainant is accused of acts which figure in the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States.87 In order to prevent his imminent extradition, the complainant lodged a constitutional complaint alleging violations of, inter alia, his rights guaranteed

83

(First) Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS No. 9. 84 Order of 26 October 2004 (note 7), para. 145, referring to ECtHR, Gratzinger and Gratzingerova v. Czech Republic, Decision of 10 July 2002, Reports of Judgments and Decisions 2002-VII, 399 and ECtHR, Walderode v. Czech Republic, Decision of 4 March 2003, Reports of Judgments and Decisions 2004-V (forthcoming). 85 Id., para. 148, referring to ECtHR, Prinz Hans-Adam II von Liechtenstein v. Germany, Judgment of 12 July 2001, available at: http://hudoc.echr.coe.int/. 86 Provisional Order of 24 November 2004 (note 8). 87 O.J. 2002 L 190, 1.

30

Rainer Hofmann

in Article 16 para. 2 GG and requested, moreover, a provisional order to stop the pending extradition. This request was granted. The Second Senate ruled that it needed to clarify, in an ordinary procedure, whether the German Act on International Legal Assistance as amended by the Act on the European Arrest Warrant of 21 July 2004 was compatible with the fundamental principles of the rule of law as laid down in Article 16 para. 2 GG. Even considering that the reasons given in provisional orders are usually not very extensive, it must be said that in this case, they are extremely short. This is all the more surprising since the order implies that the Second Senate does not exclude the possibility that criminal procedures in Spain, a Member State of both the European Union and the ECHR, might be incompatible with what the Second Senate considers to be fundamental principles of the rule of law. D. Some Comments This set of decisions clearly calls for a thorough assessment as to their potential repercussions on the future relationship between public international law and the German domestic legal order. Such a thorough assessment would, however, exceed the limits of this contribution which will, therefore, be limited to some comments. I. The Order of 14 October 2004

The first set of comments concerns the order of 14 October 2004 on the effects of ECtHR judgments on German judicial organs and on the relevance of the ECHR for German law. One very positive element of this order is that it declares unequivocally that, while constitutional complaints based upon alleged violations of provisions of the ECHR continue to be inadmissible, it now seems possible to lodge such complaints based upon the allegation that the interpretation, by a German court, of the fundamental rights and constitutional principles of the Grundgesetz has not taken into account the pertinent human rights guarantees of the ECHR as interpreted by the ECtHR. This results from the function of the ECHR and the case-law of the ECtHR, namely to serve as a guiding source in determining the content and scope of the fundamental rights provisions of the Grundgesetz. Even more important, however, is the ruling that, pursuant to the principle of the rule of law as enshrined in Article 20 para. 3

German Constitutional Court and Public International Law

31

GG, administrative bodies and courts are bound under constitutional law to take into account the ECHR and the case-law of the ECtHR when interpreting German law, and that a failure to do so may amount to a violation of the pertinent fundamental right of the Grundgesetz in conjunction with the principle of the rule of law. And indeed, that is exactly what the Second Senate did when it held, in this order, the constitutional complaint to be well-founded because the decision of the OLG Naumburg had failed to do so. This means that, for the first time in German legal history, applicants who allege that a German court has handed down a decision which is incompatible with the jurisprudence of the ECtHR may rely on this ground in order to justify their constitutional complaint. This approach clearly and considerably strengthens the relevance of the ECHR and the case-law of the ECtHR within the German domestic legal order, as it means that domestic law must, as far as possible, be interpreted in such a way as to ensure its compatibility with the ECHR as interpreted by the ECtHR. The Second Senate has, however, introduced potentially far-reaching qualifications to this approach. Firstly, as concerns final judgments of the ECtHR, German courts are only obliged to take them into account, but are not bound by them. Secondly, the obligation to interpret German domestic law in such as way as to guarantee its compatibility with the ECHR as applied by the ECtHR is not an absolute one, but qualified in so far as this has to be done “as far as possible.” These qualifications seem to be the result of an understanding of national constitutions in general, and the Grundgesetz in particular, as clearly pronounced in the above-mentioned lecture by Justice Di Fabio and well reflected in this decision of the Second Senate: It explicitly rules that the openness towards international law, which is enshrined in a number of provisions of the Grundgesetz and from which it follows that, if possible, it is to be interpreted in such a way as to avert any conflicts with international law obligations of Germany, is not unlimited; if compliance with such international obligations would result in a violation of the fundamental principles of the Grundgesetz, then the German legislature – and one might wish to add, all German State authorities – is not only entitled but obliged to disregard the international law obligation in order to secure such fundamental constitutional principles. And, indeed, this is a position which, at least from a constitutional lawyer’s point of view, is convincing and should have, even for an international lawyer, some persuasive power. In the – admittedly quite hypothetical – situation that international law should develop in such a way – either by the interpretation of multilateral treaties to which Germany is a party or by

32

Rainer Hofmann

developing customary law rules – as to contain norms binding upon Germany which would be in clear violation of the fundamental principles of the Grundgesetz, then it might indeed be justified – or even required – rather to act in breach of international law, and accept the consequences as they result from the law of State responsibility, than to sacrifice fundamental principles of the German constitutional order.88 Now, if the qualifications to the approach of the Second Senate had been limited to such a statement, one might have agreed, as most German lawyers agree with the conditions applicable to Germany’s participation in the European integration process as laid down in Article 23 para. 1 GG, which have clearly been influenced by the pertinent jurisprudence of the FCC. The problem here is, however, that the qualifications concerning the effects of the ECHR and the jurisprudence of the ECtHR are not limited to such extreme scenarios, but are much more sweeping. German courts are not obliged to “respect” or to “follow,” let alone to “implement” such judgments, but only to “take them into account.” As the Second Senate itself explains, this “taking into account” implies an obligation to consider the effects of applying a judgment of the ECtHR on the branch of German law concerned. This is particularly important if that judgment relates to a part of the German legal order which the Second Senate describes as “a partial system of domestic law whose legal consequences are balanced and that is intended to achieve an equilibrium between differing fundamental rights.”89 Such “partial systems” are further identified as being characterized by “conflicting fundamental rights which are balanced by the creation of groups of cases and graduated legal consequences.”90 Insofar, courts are obliged to “carefully integrate a decision of the ECtHR into the affected partial area of the law,”91 which might be understood as allowing courts – if such a careful integration is, in the view of the court, impossible – even to disregard such a decision, which in turn would clearly entail the international law responsibility of Germany. Such an approach is indeed incompatible with Germany’s obligations under international treaty law and, moreover, cannot be justified by 88

It must be admitted that it seems quite difficult to think of examples for such a potential development; a case in point would be, however, if international law would exclude certain categories of persons, such as e.g. terrorists, from the protection of the rule of law, such as the guarantee of a fair trial. 89 Order of 14 October 2004 (note 2), para. 57. 90 Id., para. 58. 91 Id., para. 59.

German Constitutional Court and Public International Law

33

the previous considerations on the function of the Grundgesetz – and the German judiciary – as ultimate guardian of the fundamental principles of the Grundgesetz. In other words, it is hardly convincing to consider the previous jurisprudence of the First Senate of the FCC on the balancing of conflicting fundamental rights, such as the right to privacy and the freedom of the press, which are at the bottom of the jurisprudential conflict between the FCC and the ECtHR in the Caroline of Monaco Case, as involving fundamental principles of the Grundgesetz – and even less so in the Görgülü Case where conflicting aspects of the right to family life have to be brought into equilibrium. To be very clear, the criteria developed in the jurisprudence of the First Senate of the FCC to balance conflicting fundamental rights in cases involving the right to privacy, on the one hand, and the freedom of the press, on the other hand, are finely tuned and indeed result in such equilibrium; but it must also be stressed that these criteria are not the only ones which achieve such equilibrium, which is also obtained by the criteria developed by the ECtHR in its judgment in the Caroline of Monaco Case. So, in a situation where the judgment of the ECtHR results in equilibrium, to leave it to the courts whether and to what extent they are prepared to accept the binding effect of an ECtHR judgment, and to open the risk of a clear violation of Germany’s treaty obligations, is not acceptable. Now, it is true that one should not exaggerate, and it might indeed be that the situation will not develop in such a way. Insofar, very much will depend upon the future jurisprudence of the FCC concerning the yardstick to be used in order to determine whether a German court has “sufficiently taken into account” a relevant judgment of the ECtHR In this context, the attitude shown by the First Senate in its above-reported order of 28 December 2004 might justify some optimism. However, in this case, the OLG Naumburg had completely disregarded the Görgülu judgment, apparently without even attempting to justify its approach. The decisive test will come in a case in which a court has made some efforts to give reasons for its decision to disregard a judgment of the ECtHR; it is to be hoped that the FCC will, then, establish a very high threshold and only in very exceptional cases accept such a decision. A final comment: National constitutional courts such as the FCC do not operate in an international vacuum; in particular, the jurisprudence of the FCC has – and it has all reasons to be proud thereof – quite a considerable persuasive power on other European constitutional courts. Now, in view of the situation in some Member States of the Council of Europe where the position of the respective constitutional courts is not – yet – as consolidated as in Germany, and

34

Rainer Hofmann

where the respect for the human rights guarantees of the ECHR, in particular, and the rule of law, in general, appear to be less unchallenged, one must ask the question why the FCC apparently did not take such considerations into account. Even the ruling that judgments of the ECtHR which, in the view of the respective national constitutional courts, do encroach upon fundamental principles of the national constitution concerned may be completely disregarded might prompt some constitutional courts to invoke this approach – in what one might call an arbitrary manner – in order to justify their non-respect of such judgments; obviously, if that were to happen on a larger scale, this would seriously challenge the existence of a pan-European human rights order and considerably undermine the effectiveness of the Strasbourg system. However, in such cases it should be possible to determine what are the fundamental principles of national constitutions which have to be accepted within that European human rights order. In contrast thereto, allowing courts – admittedly upon a reasoned assessment – to also disregard final judgments of the ECtHR in other situations has the potential to open up a Pandora’s box of increasing disrespect among national courts with regard to the ECHR as interpreted by the ECtHR, which might result in a most unwelcome erosion of the system of human rights protection in Europe. II. The Order of 26 October 2004

The assessment of the order of 26 October 2004 is far less critical. Indeed, it must be stressed that the Second Senate of the FCC based its approach concerning the effects of general principles of international law on the domestic legal order of Germany on the pertinent previous jurisprudence.92 This applies in particular as regards the identification of the three elements of the obligation to respect international law. As concerns the first element, i.e. that German State organs are obliged to respect international law norms binding upon Germany, one is tempted to call it a truism, but in light of some of the wording of the previously discussed order of 14 October 2004, it comes as a most welcome strengthening of the obvious. The same assessment applies to the second element, i.e. 92

The major points of this approach have been formulated in BVerfGE, vol. 75, 1, 18, to which the Second Senate explicitly refers, see Order of 26 October 2004 (note 7), para. 95; on this judgment see Rainer Hofmann, Zur Bedeutung von Art. 25 GG für die Praxis deutscher Behörden und Gerichte, in: Walther Fürst/Roman Herzog/Dieter Umbach (eds.), Festschrift für Wolfgang Zeidler, 1987, 1885.

German Constitutional Court and Public International Law

35

that the German legislature is under an obligation to guarantee that, within the framework of the German legal order, violations of international law norms attributable to German State organs can be reversed. The third element, however, is a more complex one: By virtue of it, German State organs may be – not are – obliged to give effect, within the ambit of their competences, to international norms which have been violated by other States.93 In particular, they are obliged to refrain from any measure which would give effect, in Germany, to acts of other States violating general principles of international law; moreover, they must also refrain from any measure which would contribute – in a decisive way – to violations of such general principles by acts of other States.94 In order to illustrate the third element, two examples can be given. Under the first alternative, German authorities would be prevented from recognizing foreign expropriation measures which violate the applicable international law with respect to properties situated in Germany,95 or from enforcing foreign judicial decisions rendered in violation of internationally accepted fundamental norms both as regards procedural and substantive human rights.96 Under the second alternative, they are prevented from expelling or extraditing any person to a country in which such a person would be subject to torture or inhuman or degrading treatment or punishment.97 It is clear that this obligation might result in situations in which it conflicts with other international law obligations. It is, therefore, to be welcomed that the Second Senate explicitly recognizes this potential conflict and states that, in such situations, a solution must be found which is based upon a fair balance between these obligations. This qualification is indeed justified and should allow for solutions which adequately respect Germany’s obligation, resulting from the Grundgesetz as well as from her status as a member of the international community, to cooperate with other States and subjects of international law. This qualification does not apply, however, as is rightly underlined by the Second Senate, with respect to international law norms having the rank of jus cogens. These have to be respected under any circumstances: Acts of foreign 93

Order of 26 October 2004 (note 7), para. 93. Id., para. 95. 95 For a further discussion see Rainer Hofmann, Grundrechte und grenzüberschreitende Sachverhalte, 1994, 142. 96 Id., 179. 97 Id., 259. 94

36

Rainer Hofmann

States which violate such norms must not be recognized as legal and German authorities must not contribute to such acts. Finally, it must be stressed that, again, the Second Senate has introduced a general qualification in so far as the above considerations apply only with respect to such norms which correspond to the basic concepts – one could also say fundamental principles – upon which the Grundgesetz is based. To that extent the same critical assessment is called for as concerning the above-discussed order of 14 October 2004. III. The Provisional Order of 24 November 2004

At first sight, the Provisional Order of 24 November 200498 does come as a surprise. Indeed, there seems to have been a widespread conviction that the legal order of all Member States of the European Union corresponds with what Article 16 para. 2 GG calls fundamental principles of the rule of law.99 However, as the recent landmark-decision of the House of Lords of 16 December 2004 in the Terrorist Detention Case100 shows, this must not necessarily be so. Based upon a truly impressive assessment of the international obligations of the United Kingdom, in particular the ECHR and the vast case-law of the ECtHR,101 the Law Lords concluded that the temporally unlimited detention of the applicants, under the provisions of the Anti-Terrorism, Crime and Security Act 2001, constitutes a violation of their rights resulting from the ECHR as applied by the ECtHR. In view of this judgment and the relevant British legislation and practice, it might indeed be justified to decide, in an ordinary procedure, whether the pertinent Spanish legislation is compatible with such fundamental principles of the rule of law. This is so notwithstanding the fact that Spanish law does not allow for temporally unlimited detention without criminal charges; the main reason 98

Provisional Order of 24 November 2004 (note 8). For a further discussion see Johannes Masing, Art. 16, mn. 96 et seq., in: Horst Dreier, Grundgesetz-Kommentar, vol. 1, 2nd ed. 2004. 100 House of Lords, A & Others v. Secretary of State for the Home Department, available at: http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/ a&oth-1.htm. 101 It is comforting to see to what a huge extent the House of Lords, truly a judicial body with a most rich tradition, relies in its reasons on international law, an example, one might add, which should be followed by courts in other countries! 99

German Constitutional Court and Public International Law

37

why such a decision of the FCC is indeed called for is that it should be used to precisely define the contents and scope of the term “fundamental principles of the rule of law” as used in Article 16 para. 2 GG. In this context, it might be worth stressing that in doing so, the FCC will have to base itself upon the applicable European standard102 and not on the Grundgesetz103 – notwithstanding that there might be no major differences. E. Concluding Remarks In the end, this set of decisions might not reflect an essentially new approach of the Second Senate of the FCC to the relationship between international law and the German domestic legal order. Apart from the – in this author’s opinion, unwarranted and potentially dangerous – sweeping qualifications as to the binding effects of judgments of the ECtHR on German courts, they may be considered as still in line with Germany’s obligations under international law. In any case, they continue to reflect the basic and fundamental reluctance of the FCC to truly open its jurisprudence and the German domestic legal order to international law norms. Maybe this attitude, which to a certain extent seems to reflect a kind of suspicion towards international law, might be explained by the fact that since 1987 no member of the bench has been, or is, an international lawyer. And with all due respect, the approach to international law of a constitutional lawyer who has been trained in national law will, notwithstanding that such a person might have acquired an excellent command of the rules of international law, always remain fundamentally different from that of a person who has been trained as an international lawyer. With this in mind, it is tempting indeed to return to that part of Justice Di Fabio’s lecture in which he deals with the relationship between the European Union, in particular the ECJ, and the FCC. With respect to the present development of the process of the European integration, in particular the Treaty Establishing a Constitution for Europe,104 Di Fabio expresses his expectation that the ECJ will grow into the status of a constitutional court and will do what

102

See, e.g., the articles in Rainer Hofmann/Joseph Marko/Franz Merli/Ewald Wiederin (eds.), Rechtsstaatlichkeit in Europa, 1996. 103 See Masing (note 99), mn. 106. 104 Treaty Establishing a Constitution for Europe, 29 October 2004, O.J. C 310/1.

38

Rainer Hofmann

is expected from such a court: to limit the political power of the organs of the Union and engage in a dialog with national (constitutional) courts.105 This is clearly an offer to be welcomed by all those who are interested in the progress of the process of European integration. On the other hand, also in this part of his lecture, Di Fabio refers to the task of the FCC to ultimately guarantee that the fundamental principles upon which the Grundgesetz is based will not be sacrificed for the sake of European integration.106 Germany will soon start the actual process of bringing about the constitutional conditions for being able to ratify the Treaty Establishing a Constitution for Europe. One does not need to have the gifts of a prophet to foresee that the parliamentary act consenting to that ratification will be challenged before the FCC, as was the case with the Maastricht Treaty. It will then be interesting to see whether and to what extent the Second Senate will use that opportunity to further identify the conditions, and limits, of Germany’s participation in the process of European integration as they result from the Grundgesetz as interpreted by the FCC. And – to conclude – it would be no surprise if the pertinent rulings would reflect the main thrust of what Justice Di Fabio stated in his Kiel lecture.

105 106

Di Fabio (note 1), 117. Id., 115.

Cosi Fan Tutti [sic] – Tales of Trade and Development, Development and Trade By Petros C. Mavroidis* A. Presentation of the Paper This paper aims to show that absent a total re-orientation of the agenda (which is highly unlikely), the ongoing Doha round of international negotiations will have done little to honor its name (the ‘Development Round’). The reasons, to my mind, are manifold and will be laid out in Section B, where I will discuss what has happened so far. In this section, I will also revert to a discussion of the literature on special and differential treatment, the key element in the ongoing discussions of the Doha round. The point I try to make here is that the existing regime has probably created more problems than it has solved. In Section C, I will discuss the – in my mind always – priority areas for legislative change in the WTO agreement, focusing not on developing countries but instead on issues of interest to all Members. Section D reflects the conclusions of the paper. B. Geneva, August 2004 In mid-summer 2004, the negotiators managed to come up with an agreement within the self-imposed deadline.1 The agreement was heralded in the superlative as always happens in the context of the WTO. Before passing any val*

Edwin B. Parker Professor of Law at Columbia Law School, New York and Professor of Law at the University of Neuchâtel, Switzerland, Center for Economic and Policy Research. Kevin Stemp read the paper and made, as always, very useful comments. For helpful discussions on the issue, I would also like to thank Bill Ethier, Bernard Hoekman, and Alan Sykes. 1 Doha Work Programme – Decision Adopted by the General Council on 1 August 2004, WTO Doc. WT/L/579 of 2 August 2004 (1 August Decision).

40

Petros C. Mavroidis

ue judgment on the agreement as such however, it makes sense to roll back the carpet to the beginning of the Doha round and examine the aspirations associated with it. I. The ‘Development Round’

The Doha round was launched shortly after the September 11 events which some, not unreasonably, feared might lead to a new “great divide” among nations. In a way, launching the Doha round in Doha, Qatar, was a powerful signal that cooperation and trade among nations will persist – this is the happy side of the story. However, a series of poor decisions complicated life immensely and, against the odds, brought the round to a near collapse. One of the less fortunate initiatives was in the choice of the name of the round: “Development.” First of all, as a matter of economic logic, trade can only contribute so much to a country’s development – recourse to other instruments is essential in this perspective. The importance of trade in terms of contribution to development will depend on a series of factors and will vary from case to case. It is quite likely that for some developing countries, trade will not be that important. Consequently, even assuming that the Doha round is crowned with success, the eventual outcome will be a self-inflicted defeat on the WTO since, at least for some, the limits of successful development will soon be obvious. On the other hand, if the round were to fail, the WTO would also suffer: Failure would add to the critics who have, for some time now, suggested that the WTO is not a development friendly institution.2 Hence, tails you lose, heads you lose. So one can legitimately ask the question “why the rush into such a dramatic setting?” There are of course competing explanations for responses to this question: The developed WTO members might have felt that developing countries had already paid a high price with their acceptance of the agreement on intellectual property rights (TRIPs), and that now, something should be done to re-balance the situation; it was felt there was a need post-Seattle to provide the WTO with 2 In oral comments, T. N. Srinivasan has time and again made this point, adding that such criticism is probably often misguided since it obfuscates the objective function of the WTO, which is that of a trade institution and not a development agency.

Tales of Trade and Development, Development and Trade

41

a more “human” face and hopefully reduce, if not avoid altogether, the exorcism by civic society – bolstered even more by the events of September 11; and some WTO Members have bought (or conceived) the argument that the WTO should mutate into a “constitutional” dimension, a permanent interface among different regulatory interventions with an increasing “harmonization” perspective. It lies beyond the scope of this paper to go through the merits of each and every element justifying the intrinsic character of the new round. Instead I will focus on the last grounds mentioned in what immediately follows, for a development-perspective, by definition, should encompass a discussion on instruments other than trade. Such a perspective, almost per construction, leads to a discussion of the optimal WTO mandate. As to the TRIPs-related arguments, I note that already in August 2003, some of the concerns of the developing countries were taken care of with the decision on TRIPs and pharmaceutical products.3 This is not to say that all of their concerns in this respect have been taken care of by virtue of the August 2003 decision, but it was a decisive step towards meeting their concerns. II. Development while Trading: The Pre-Doha Situation

At the start of the development round, the institutional players shape the agenda. With the focus on development, the underlying hypothesis must be that the multilateral trading system has not enhanced development at all, or that development has not been served to a satisfactory degree. At any rate, some change is desired. To discuss change of course, one has to first understand the ex ante situation. The answers to two inter-related questions will provide much of what we seek. First, what does the multilateral system do, at the eve of the Doha round, to help developing countries develop further? Second, what is wrong with the development efforts of the multilateral trading system? I assume, of course, that if nothing was wrong with the pre-Doha situation, there would be no reason to change anything.

3 See on this issue Jayashree Watal, Developing Countries and the Protection of Intellectual Property Rights – Current Issues in the WTO, 2004 (unpublished manuscript on file with the author).

42

Petros C. Mavroidis

1. Special and Differential, Yes; Development-Oriented Also? Standard economic theory would support the view that trade liberalization is not a zero sum game. This, however, should not be equated with the proposition that unilateral trade disarmament is always a first-best policy. As Bagwell and Staiger4 have shown, from a single country-perspective it is in the interest of countries that can affect terms of trade to do so by using their trade instruments. The resulting externalities will be internalized through mutually beneficial negotiations. The most favored nation clause (MFN) is an appropriate instrument in this perspective in that it avoids concession erosion 5 and bilateral opportunism. During the late Fifties and early Sixties, however, the prevailing view was that MFN was not an appropriate instrument to conduct multilateral trade relations among partners with divergent development needs. Following a host of best endeavors to address this issue, the trading partners felt that a deviation from MFN in favor of developing countries was probably called for. The Generalized Systems of Preferences (GSP) came into place and, through the Enabling Clause, became a permanent feature of the world trading system.6 In a nutshell, GSP schemes rest on the idea that trading at MFN rates is not contributing enough to the development of the needy, and that tariff rates even more favorable than the MFN rate should be reserved for products originating in developing countries. The idea was noble, but its practice proved to be worrisome at best, and simply a disaster at worst. First the question was raised “What is a developing country?” The WTO follows a self-election principle whereby a Member can claim developing status by merely declaring itself to be a developing country – but this is not an intellectually coherent methodology. Are not all Members developing in one way or another? And in fact, more or less all but the OECD members of the WTO appear in the various national GSP schemes. Then came 4 Kyle Bagwell/Robert W. Staiger, The Economics of the World Trading System, 2003, 13–35. 5 See Warren Schwarz/Alan O. Sykes, The Economic Structure of Renegotiation and Dispute Resolution in the WTO/GATT System, Journal of Legal Studies, vol. 31, 2002, 179–229. 6 Gene M. Grossman/Alan O. Sykes, A Preference for Development: The Law and Economics of GSP, University of California at Berkeley International Law Workshop Fall 2004, available at: http://repositories.cdlib.org/berkeley_ilw/fall2004/6/, provide a comprehensive narrative in this respect.

Tales of Trade and Development, Development and Trade

43

the thorny issue of making each and every component of the GSP acronym operational. We can now say that a GSP is almost never generalized, the preferences do not necessarily flow to the intended recipients, and – at least in a mathematical sense – the program appears to have failed to live up to its drafters’ intentions. Let me explain. Generalized: A look into any GSP scheme would persuade the reader that the word “generalized” has now found a whole new meaning in trade practice. Many developing countries are excluded on political grounds, and additional preferences are given according to a set of criteria established by the donors. The EU, for example, provides preferences to many developing countries, in addition to its African, Caribbean and Pacific (ACP) partners, and also to those conforming to its own policy options: Pakistan benefited from extra perks and qualified under the drug enforcement program of the EU while other developing countries did not. When contested, one of the EU responses was that all similarly situated countries (i.e., those that were actively pursuing policies against drugs production and trafficking) were featured among the list of beneficiaries. But the EU policy makers did not address the possibility that some developing countries did not face this problem (and were therefore ineligible for the preference) because of their prior successful efforts in interdiction – should not these countries also be eligible?7 As a result, not all similarly situated countries end up receiving the same perks. Preference-setting: The dispute between India and the EU8 is quite telling in this respect. India complained to the WTO because the EU was favoring a subset of developing countries that were receiving GSP-plus preferences, as compensation for their efforts to combat drugs production and trafficking, while India (without a large drug problem) did not qualify for the enhanced drugfighting preferences and therefore could only receive the less preferential “regular” GSP benefit. The Appellate Body held for the proposition that, although the EU’s actions were GATT-inconsistent, in principle nothing stopped the EU from conditioning the enjoyment of GSP-plus preferences to the prior adoption of a

7

See Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WTO Doc. WT/DS246/AB/R of 7 April 2004, para. 157 et seq. 8 Id.

44

Petros C. Mavroidis

certain policy.9 One may legitimately ask the question, if GSP is an instrument to promote development, should it be the EU that is best placed to define the hierarchy of policies that recipients should follow? Is it in the donor country’s incentive structure to do so? Any look into a national GSP scheme answers the question in the negative: Products of export interest to developing countries (farm, textiles) are totally absent from the EU and the United States GSP schemes. Grossman and Sykes report that by distinguishing between various levels of “sensitivity,” the EU GSP, for example, leaves outside its coverage practically each and every farm and textile import-competing product.10 The authors report similar findings in the US GSP. On the other hand, development is a question of opportunity cost: By doing this, I do not do that. Prioritizing options is a delicate, highly controversial exercise. Should not developing countries have some say in this discussion? What reassures the Appellate Body that the donors will do the right thing or promote the right priorities, and from whose perspective? A system: By setting aside any logical benchmark as to the prioritization of policies which if pursued lead to compensation, GSP schemes can hardly be accepted to be systems of preferences; inherent in the notion of a “system” is the notion of hierarchy. So what have GSP schemes accomplished so far? There is by now substantial evidence suggesting not much. Limao and Olarreaga have quantified the benefits from GSP schemes and conclude on a rather pessimistic note.11 But this is not the end of the story. As Grossman and Sykes point out, GSP-plus preferences might lead to substantial trade diversion and turn one developing country against another.12 Although they stop short of making case-specific allegations, one cannot exclude that by diverting its import trade from India to Pakistan, the EU was paying for Pakistan’s drug enforcement program with India’s money. Through its legal challenge, India was, in a way, aiming at rebuilding a coalition among developing countries which was at disarray.13 9

Id., para. 190. Grossman/Sykes (note 6), 6 et seq. 11 Nuno Limao, The strategic use of trade policy for non-trade purposes in multilateral and regional agreements, 2001; Nuno Limao/Marcello Olarreaga, David vs. Goliath: Can Trade Preferences to Small Countries Stop Multilateral Liberalization?, 2004 (unpublished manuscript on file with the author). 12 Grossman/Sykes (note 6), 12 et seq. 13 This point was first made by Patrick Messerlin. 10

Tales of Trade and Development, Development and Trade

45

More importantly, GSP schemes have actually operated as an instrument that insulated developing countries from the WTO: The WTO regime is, for all practical purposes, policy-irrelevant for most developing countries. 14 Developing countries have hardly participated in reciprocal tariff negotiations over the years, have not opened their markets to import competition, and as a result, have not gone through the (necessary) adjustment process. Because of the (almost always) minimal trade impact of their WTO-inconsistent policies, they have also avoided legal challenges that would put an end to all this. Preferences have also acted as a deterrent to global trade liberalization. The value of preferences is eroded as a result of the reduction of MFN rates: the lower the MFN rate, the lower the preference-margin. Limao has empirically tested this hypothesis and demonstrated that there is an inverse relation between the reductions of MFN-rates and trade in goods where preferences have been granted.15 In other words, in a two stage-game where preferences are granted first, they act as deterrent to cut down MFN rates. As a result, in the name of a few preferences here and there, global welfare suffers. In a nutshell, the record is far from being positive when evaluating the effects of GSP schemes: The gains for developing countries are not as substantial as some might have thought in the first place, and GSP schemes have acted as deterrent towards further reduction of the MFN rates. Crucially, except for GSP, the developing country provisions in the WTO agreement are either best endeavors-clauses or binding obligations of very limited value to them.16 GSP is the quintessential development-instrument reflected in the WTO, and it has not performed so well. GSP has also retarded multilateral trade liberalization. So, what should we do in light of this evidence? Academics suggest that a lot can still be done. Among the many worthy proposals in the literature, I single out that by Limao and Olarreaga, who argue in

14 See Bernard M. Hoekman/Petros C. Mavroidis, WTO Dispute Settlement, Transparency and Surveillance, World Economy, vol. 23, 2000, 527–542. 15 Limao (note 11), 19 et seq. 16 E.g., the obligation imposed on WTO Members in the context of the Agreement on Antidumping, to first examine the possibility of accepting price undertakings (constructive remedies) before imposing duties on imports of goods originating in a developing country. For a detailed discussion of all special and differential treatmentrelated provisions, see Dani Rodrik, The Global Governance of Trade as if Development Really Mattered, 2001.

46

Petros C. Mavroidis

favor of direct payments to developing countries so that the erosion of preferences will not act as a deterrent to a further reduction of MFN rates.17 But this view appears to not be shared by the negotiators. During the Doha round, no proposal to re-think the special and differential treatment was tabled. Nor is there any thought of abolishing the GSP programs either: If at all, following its (partial) condemnation by the WTO Appellate Body, the EU seems willing to boost even further its GSP plus provisions, by conditioning benefits to the prior adoption of a host of International Labour Organization (ILO) sponsored conventions. It is hence unlikely that GSP schemes will be modified in the near future. In fact, the 1 August 2004 decision, to which we will return later, reflects an explicit encouragement to continue and strengthen the existing regime. GSP-plus obligations are likely to dominate the preferences scene over the next years: The Appellate Body ruling mentioned above18 has opened the door to this perspective. All problems associated with the functioning of GSP schemes signaled in the preceding analysis are also likely to persist. The “gifts”19 of developed countries to recipients during the Doha round are not exhausted in the granting of GSP schemes. To address overall development concerns, they went ahead and proposed the introduction of new issues in the WTO agreement that would meet the concerns of developing countries. These are the so-called ‘Singapore issues’, which were discussed for some time by all trading partners and eventually, with one exception, dropped. 2. Expanding the WTO Mandate: The More the Merrier? The coverage of the WTO is a rather recent event. Following the collapse of the International Trade Organization (ITO), the GATT emerged as the only viable solution to organizing world trade relations, but with a narrow, tradespecific mandate. The GATT did not elevate trade liberalization to the hierarchically supreme value of all nations per se. Indeed, the combined reading of GATT Articles III and XX leads to the exactly opposite conclusion: The 17

Limao/Olarreaga (note 11), 22 et seq. See, supra, note 7. 19 This is probably a very appropriate setting for the Roman saying timeo Danaos et dona ferentes (I fear the Greek, even when they bring gifts). 18

Tales of Trade and Development, Development and Trade

47

GATT is an incomplete contract where social preferences of trading partners expressed through domestic instruments (such as environmental and health protection) will be unilaterally defined and stay immune from potential legal challenges, provided that they do not discriminate among affected domestic and foreign products (GATT Article III). If at all, GATT Article XX ensures that at least certain social preferences take precedence over commitments on trade instruments. Some clumsy case-law, such as Tuna – Dolphin,20 essentially deprived trading nations of the ability to pursue unilateral policies that had incidental transaction costs, and undid the institutional balance among contracting parties. This unbalancing fanned the flames of criticism and provided fuel for public interest groups to start equating the GATT to a world governance that makes environmental protection an impossibility and bulldozes over cultural divergence at the behest of corporate interests.21 Public choice arguments explain why such misconceived criticism of the GATT was transformed into official public speech. The sea of change that came in this respect with the Appellate Body decision on Shrimp – Turtle22 reduced the tone of criticism. Importantly however, few critics have noticed that if, based on the same text, the same court can reach two drastically different decisions within such a short span of time on such similar subject-matters, we should be casting our doubt not upon the environmentalfriendliness of the contract as such, but rather upon its interpretation. Where Tuna – Dolphin failed, Shrimp – Turtle succeeded by essentially explaining that environmental protection is not designed in Geneva, but rather by the Member states themselves, through their own political processes in Washington D.C., Brussels, Tokyo, New Delhi, Buenos Aires, Beijing, etc. However, in the meantime a pattern developed in the literature – the self-proclaimed ‘constitutionalists.’ In a nutshell, the argument behind this trend is that the WTO institutional balance suffers as a result of the absence of any commitments on policies that affect trade. Typically, this literature overlooks that there is indeed a commitment reflected in GATT Article III: the commitment to non-discrimination. Some of this literature is simply unsatisfied 20 GATT Panel Reports, United States – Restrictions on Import of Tuna, WTO Docs. BISD/39S/155/DS21/R of 3 September 1991 and DS29/R of 16 June 1994. 21 José E. Alvarez, How Not to Link: Institutional Conundrums of an Expanded Trade Regime, Widener Law Symposium Journal, vol. 7, 2001, 1–19. 22 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R of 12 October 1998.

48

Petros C. Mavroidis

with the current state of affairs and fears an (empirically unproven) race to the bottom. The argument is that absent a common minimum, nations will neglect environmental protection, health, and human rights as they compete with each other to attract more investment. The common denominator among such fears is their inability to address two crucial questions: First, what are the actual (and not impressionistic or imaginary) gains from regulatory cooperation in the fields they seek to harmonize?23 Second, is it reasonable to impose the same regulations on all nations, independent of their individual development needs?24 Despite the shortcomings of the literature’s analysis, some WTO Members insisted in adding to the current WTO mandate. Four issues (labeled ‘Singapore issues,’ because it is at the 1996 Singapore Ministerial Conference that they were first discussed) appeared on the agenda: competition, investment, government procurement and trade facilitation. The last two are not new issues: Government procurement has been regulated at the international level since the Tokyo round, with the advent of the Agreement on Government Procurement. Since participation in this agreement still remains an option for WTO Members (it is, in WTO parlance, a ‘pluri-lateral’ agreement), negotiations during the Doha round would lead to its ‘multi-lateralization.’ Trade facilitation, on the other hand, as indeed the 1 August 2004 decision itself acknowledges in its Annex D,25 is about the clarification of existing provisions, namely GATT Articles V, VIII and X. Competition and investment were the two genuinely new issues. Developing countries were lukewarm at the prospect of disciplines on these two fields being introduced at the multilateral level. There are of course sound arguments in favor of introducing antitrust policies since, for a number of good reasons that 23

To avoid any misunderstandings on this issue, I have not put all papers in the same basket. Joseph Francois/Ian Wooton, Trade in International Transport Services: The Role of Competition, Review of International Economics, vol. 9, 2001, 249–261, show the negative externalities for African countries stemming from the absence of anticartel enforcement in transport services. By the same token, Simon Evenett/Margaret C. Levenstein/Valerie Y. Suslow, International Cartel enforcement: Lessons from the 1990s, World Economy, vol. 24, 2001, 1220–1245, measure the welfare implications of US export cartels. These papers, however, stop short of recommending a common international antitrust regime. And even though they see the argument for cooperation in this field, they do not at all suggest the adoption of common antitrust policies, let alone in the other areas typically mentioned in a ‘constitutional’ agenda. 24 On this issue, see the various contributions in the Symposium organized by Jose Alvarez in the American Journal of International Law, vol. 96, 2002, 1–158. 25 1 August Decision (note 1), Annex D.

Tales of Trade and Development, Development and Trade

49

have been explained time and again in the literature, trade and competition policies are not perfect surrogates.26 The arguments are less than convincing that the 148 WTO Members should have a common institutional framework in antitrust, and there is even weaker support in favor of the WTO being the appropriate forum for this discussion. On the other hand, developing countries are typically capital-importing countries and, hence, the ones with the incentive to attract investment in the first place. However, views as to the regulatory regime which foreign investment should be subjected to, as well as the level of compensation to be paid in case of expropriation, differ across countries. The developing country members of the WTO opposed an eventual introduction of the MAI (multilateral agreement on investment negotiated at the OECD) into the WTO: They had not participated in its negotiations and felt that their concerns had not been adequately taken into account. But in Doha, the WTO Membership agreed on the establishment of two working groups to negotiate the links between trade and competition on the one hand, and trade and investment on the other. Participants in the two working groups met an impressive amount of times, and although they could not conclude on the negotiating package before them, they at least agreed to continue negotiating, until the meeting in Cancun put an end to all discussions. III. Cancun, Not Far from the Tropic of Failure

Cancun will be remembered for a number of reasons: Developing countries raised their voice to a decisive (i.e. round-stopping) level; the Cancun-round fell apart on disagreements about a small fraction of international trade (cotton); people left the room without knowing why the round was ended so prematurely; the Director General of the WTO “burned” important negotiating capital; developed countries felt that they had already done enough by accepting dents on the TRIPs agreement, and felt that developing countries were not doing their part. In short, a combination of poor administration of the agenda and unwillingness

26

MarcBacchetta/Henrik Horn/Petros C. Mavroidis, Do Negative Spillovers from National Pursued Competition Policies Provide a Case for Multilateral Competition Rules?, in: Claus-Dieter Ehlermann/Laraine L. Laudati (eds.), European Competition Law Annual 1997: Objectives of Competition Policy, 1998, 271–309.

50

Petros C. Mavroidis

to compromise (where compromise was feasible, as the summer 2004 events have shown) led the Cancun meeting to unexpected failure.27 From a developing country’s perspective, Cancun has been reported as a major breakthrough: They raised their voice and refused to be “bullied” into signing a deal they were unsatisfied with. One may question whether they picked the right choices, however their ability to stop the clock is beyond question. The Cancun meeting marked, provisionally, the end of talks on competition, investment and government procurement, whereby three out of the four ‘Singapore issues’ were removed from the table. Assuming that negotiating resources are constant, one would expect more focused discussions postCancun. The next stop was Geneva. IV. Resurrecting the Whole Enterprise: Geneva, August 2004

After weeks and months of stalemates and waiting games, the trading partners resumed talks and ambitiously concluded a self-imposed deadline to come up with an “agreement” – 31 July 2004. An “agreement” had been reached. But, as always, the devil lies in the details. It is probably appropriate to start with some (hopefully reasonable) speculation concerning the counterfactual: Had there been no agreement on 31 July 2004, another blow would have been inflicted on the WTO. Taking into account that this is the ‘Development Round’ and that the 31 July agreement was supposed to reflect the resolve of developed nations to address the concerns of developing nations as expressed during Cancun, a failure to agree by the selfimposed deadline would amount to an admission that developed nations cannot deliver on their promise. So, independently of its content, the “agreement” was an affirmative response to the persisting question “Do we want to do something about developing countries?”

27

A series of press releases compared Cancun to Seattle. Whereas delegates went to the Seattle meeting without an agreed negotiating text, they went to Cancun with something tangible in their hands. The failure was over-stated in the press. Cancun was just a mid-term review. A series of failed mid-term reviews (Brussels and Seattle being the most recent) preceded successful conclusions of a round.

Tales of Trade and Development, Development and Trade

51

The content of the “agreement” is, in short, an open-ended commitment to continue talking: Beyond adding to the never-ending list of acronyms,28 the mid-summer decision is quite far from reflecting a consensus among WTO Members as to what should be done. Its structure is questionable as well: Development issues are a separate item from agriculture, and under development one sees features such as principles, special and differential treatment, technical assistance, implementation, least developed countries and other issues (where agriculture re-appears). Almost by definition, in WTO negotiations, development issues can only be trade-related. If we continue to believe (as economic theory continues to suggest) that trade liberalization is a win-win situation, the remaining question is whether trade liberalization under MFN is the first best solution for developing countries. MFN however, is in name only – a series of MFN-plus layers (usually justified through recourse to preferential trading arrangements) has reduced MFN to what Bhagwati has inimitably termed LFN, or least favored nation treatment.29 Thus a proper quantification of the margin of preferences granted to developing countries has to control not only for MFN rates, but also for any other preferential rates granted by donors. Likewise it merits repetition that sectors of export interest to the majority of developing countries continue to remain largely unaffected by the ongoing trade liberalization: This is definitely the case for farm products and it still remains to be seen to what extent the post- Multi-Fibre Agreement (MFA) world will yield in gains to developing world textile producers. Agriculture and textiles trade liberalization hold substantial promise in terms of export income (and hence development) for developing countries. These are areas where, for many developing countries, no recourse to special and differential treatment-type provisions is strictly necessary for market access purposes: They already hold a comparative advantage – hence the recourse to protectionist measures by the preference-granting countries. Were one to view the mid-summer decision in this light, one would have to feel disappointed: There are almost no specific agreements in agriculture, except for very general guidelines as to what should be done. Regrettably, we do 28

NAMA (non-agricultural market access), TRTA (trade related technical assistance), IF (integrated framework), JITAP (joint integrated technical assistance program) are all vintage Doha round. 29 Jagdish Bhagwati, In Defense of Globalization, 2004.

52

Petros C. Mavroidis

not know the amount by which subsidies will be reduced; all we know is that the reductions are supposed to be substantial,30 but without any numbers, it is difficult to conjecture how substantial the reductions will be. We do know that a tiered formula will be employed to calculate reductions at the aggregate support level,31 but do not know exactly what it will look like. We also know that WTO Members can designate some goods as “sensitive” and avoid entering into any meaningful commitments in those areas.32 Furthermore, we are still in the dark as to how the proposed decoupled income payments will work. In short, the negotiation is not behind us, but in front of us. Taking into account the very high import barriers in the developed world that we are starting from, this negotiation uncertainty probably cuts against those Members having an export interest in these areas. The situation is pretty much the same with respect to the sectoral cotton initiative.33 There is also an agreement that negotiations should continue between interested parties, and there is also an agreement that the overall (potential) agreement on agriculture is relevant for the cotton initiative. There is, however, a lot to be done with respect to the modalities, and we are once again left in the dark as to what exactly will be done. The state of affairs regarding non-agricultural market access (NAMA) looks slightly more promising – some specific targets (in terms of tariff reductions) have, in principle, been set.34 Once again however the bulk of negotiation still lies ahead. On services, the issue of prime interest to developing countries – migration – continues to lie outside the current coverage of GATS. Mode 4 in GATS only addresses temporary movement, and so far there is no indication at all that an extension of the existing coverage is in the cards. In a nutshell, the overall conclusion seems to be that the agreement of last summer is simply an agreement to agree on an eventual negotiated outcome, the precise scope of which remains to be seen. If at all, the picture so far is that the basic conception of the special and differential treatment for developing 30 31 32 33 34

1 August Decision (note 1), Annex A, para. 6 et seq. Id. Id., Annex A, para. 33 et seq. Id., para. 1; Annex A, para. 4–5. Id., Annex B.

Tales of Trade and Development, Development and Trade

53

countries will not be modified. Recall that the round was called the ‘Development Round,’ precisely because there was dissatisfaction with the existing mechanism. Is the no change-scenario then reason enough for optimism? Hardly so. C. The Remaining Features of the Doha Round The development-linked issues have so far monopolized the focus of this paper. This is not surprising in light of the fact that the remaining agenda is hardly a cause célèbre. The mid-summer decision made it clear that any further negotiations on investment, competition and government procurement are discontinued. So what is left on the table? Negotiations on trade facilitation, the Dispute Settlement Understanding (DSU), contingent protection instruments, the environment and TRIPs still remain. As noted above, the August 2003 decision addressed a number of concerns raised by developing countries, so we should not expect much more from now on. As to the remaining issues, two observations seem to hold true for all of them, namely that not much has been accomplished so far, and that one should expect incremental, if any, changes to the existing situation. Dispute settlement has attracted a lot of attention, partly because the WTO is considered the only genuine multilateral compulsory third party adjudication system, and partly because of the quantity and the impact its decisions have had. There is an increasing feeling among developing countries that the existing regime favors those with substantial bargaining power, since they have more of a possibility to resist (politically) costly compliance when their policies are found to be inconsistent with their obligations. This in turn entails that complainants with little bargaining power cannot (by way of countermeasures) ensure enforcement.35 Many of the proposals tabled during the DSU review have to do with the function of remedies, however so far no decision has been taken. This is more or less the current state of affairs at this stage of the Doha round. The positive negotiating agenda, however, falls short of addressing the many other problematic issues in the WTO arena. Some of the problems are of a legislative nature, in the sense that the agreement as it stands simply does not 35 On the role and the function of countermeasures in the WTO context, see Michael J. Hahn, Gegenseitige Maßnahmen, 1994 and Robert Z. Lawrence, Crimes and Punishment in the WTO, 2004.

54

Petros C. Mavroidis

make sense – these might be called “legislative distortions.” Some of the problems are the result of awkward adjudication – I call these issues “jurisprudential distortions.” In my view, legislative change can address both sets of issues since it can remove the original distortion (as far as legislative distortions are concerned), and reduce, if not eliminate altogether, the scope for future errors (as far as jurisprudential distortions are concerned). However legislative action is not a cure-all tonic. Indeed, sometimes, faute de mieux, all one can hope to do is not to repeat old mistakes. The classification proposed here is not an exact science: There are some instances where, in light of the ambiguity of the terms used, a particular transaction could be classified either way. This category could be called the “gray area.” I. Legislative Distortions

Sykes was the first to point out that, as a matter of economic logic, it is simply impossible to prove that imports cause injury.36 At given prices, imports represent the difference between total consumption and domestic products purchased by consumers. This is not a mere trivial error. It contributes (along with other shortcomings in the safeguards text) towards making it impossible (a real “mess” in Sykes’ parlance) to use this agreement. A re-drafting of this provision to the effect that what needs to be addressed are the causes that lead to an increase in imports (and not the imports in and of themselves) is very much warranted. Otherwise, an important instrument in the institutional balance (safeguards) will become de facto unavailable. Worse, it will stay a possibility only in the hands of those who can resist countermeasures (since violations of the safeguards provisions are routinely established in case-law). The calculation of “benefit” in Article 14 of the agreement on subsidies and countervailing measures is another candidate for re-drafting. As it now stands, in part it requires that WTO Members, when calculating benefits resulting from subsidies, take into account the prevailing market prices in the export market. In the Softwood Lumber dispute,37 the panel realized the extent of the problem: 36

Alan O. Sykes, The Safeguards Mess: A Critique of WTO Jurisprudence, World Trade Review, vol. 2, 2003, 261–293. 37 See Panel Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WTO Doc. WT/DS257/R of 29 Au-

Tales of Trade and Development, Development and Trade

55

Canada has a largely subsidized market, yet some transactions do take place at arm’s length. Still, because of the extent of the subsidized market, the market prices are suppressed, that is, un-representative. The panel recognized the problem, arguing that it could not agree to the US’s demands, even though it agreed with them, because of its institutional role: Panels are agents called to interpret an agreement, and not principals competent to make law. The Appellate Body, in an unusual (for its overly textual approach) decision, interpreted the text in a way not covered by the unambiguous wording, and thus opened the door to calculation of benefits under more reasonable benchmarks. Still, this decision is not optimal because (a) it is not up to the Appellate Body to correct legislative distortions; and (b) there is uncertainty as to what standards can be used. Legislative action is called for here. The treatment of preferential trade agreements (PTAs) is increasingly becoming an issue of concern. Undoubtedly, PTAs are the major reason why MFN has been slowly relegated to LFN. A number of contributing factors helps to explain this evolution. The role of the reviewing authority is probably the single greatest reason for LFN: The Committee on Regional Trade Agreements (CRTA) and its predecessors were probably conceived as some sort of a “clearing house:” Unless they blessed an agreement, no agreement would lawfully enter into effect. In that, one could find similarities between the objective function of the CRTA and that of a typical antitrust authority when reviewing a notified merger. However practice has evolved in exactly the opposite manner: Agreements not only enter into force before the CRTA has finished its job, they are also increasingly notified after their entry into force.38 As a result, the whole multilateral review is relegated to some sort of discussion club, with no bite. The important negative externality is the constant undermining of the MFN (rise of LFN), with all the ensuing welfare implications that this perspective can lead to. This issue can of course be addressed in another way: by introducing specific language, in lieu of the existing open-endedness, to “measure” consistency of any given PTA notified with the multilateral rules. However gust 2003, and Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WTO Doc. WT/ DS257/AB/R of 19 January 2004. 38 For a discussion of the empirical evidence on this issue, see Petros C. Mavroidis/ Robert Howse/George Bermann, The Law of the WTO: Text, Cases and Materials, 2005, Chapter 19. It is probably worth noting that other factors, such as the consensusrequirement, make it impossible to reach an agreement on the final text concerning the consistency of a notified PTA with the multilateral rules.

56

Petros C. Mavroidis

every such initiative has so far failed.39 Either way, something needs to be done in this context as well. Then there are some GATT provisions (most of them institutional in nature) which need to be deleted: They have already been superseded by provisions in the agreement establishing the WTO (Marakesh Agreement), and their survival can only lead to confusion (in light of the sometimes conflicting language used in the two agreements). I would classify into this area provisions relating to accession and non-application, as well as GATT Article XXIX. This latter provision, aimed at keeping the link between the ITO and the GATT alive, is outdated and unlikely to be given effect in the post-Marakesh WTO. GATT Article XXIX includes reference to Chapter V of the ITO: In a best-endeavors type of provision, WTO members are called to pay attention to the treatment of restrictive business practices. The continued presence of Article XXIX GATT amounts ipso facto to continued legal relevance (albeit of a non-binding nature) of this provision. One might doubt whether this is really something the WTO Members had intended when they established the WTO and, more recently, when they adopted the mid-summer decision that explicitly decided to discontinue the discussions on trade and competition. II. Jurisprudential Distortions

The benchmark for establishing a distortion here is even more controversial than when one addresses legislative distortions. It is at any rate linked to the objective function of dispute settlement – an issue still under discussion both in the academic literature and at the institutional players level. For example, were one to adopt some sort of ex bono et aequo benchmark, and hold for the view that what matters at the end of the day is the satisfaction of the client, independent of legal rationale, there are only a few cases where clients have been demonstrably dissatisfied.40 The benchmark by which I classify some 39

The only recorded success is with respect to the so-called “external” requirement (GATT Art. XXIV.5), as embedded in the Uruguay Round Understanding on GATT Art. XXIV. 40 This is notably the case of Mexico in the Telmex dispute. Contrary to the express wording of Mexico’s concession, and the wording of the Reference Paper on telecommunications, Mexico’s practices were found to be inconsistent with its obligations (WTO Doc. WT/DSB/M/170 of 6 July 2004). Sometimes, the Membership reacted vehemently, but irrationally so. During the Asbestos litigation, the overwhelming majority of the membership condemned the initiative of the Appellate Body to invite amicus

Tales of Trade and Development, Development and Trade

57

decisions as jurisprudential distortions is the response to the question “Did the WTO adjudicating body respect the balance of rights and obligations as struck by the founding fathers?” Admittedly, my benchmark is open to discussion and criticism. In essence however, I am interested in exploring the question of whether any given interpretative outcome respects the words in light of the objective function of the instrument where they belong (context); a contextual interpretation risks neglecting the role of the judge as an agent. In what follows, I do not aim to provide an exhaustive list. Indeed, in light of the scarcity of negotiating resources, it is probably more efficient to attract the interest of negotiators in some priority areas. One such area should be the provisions on national treatment: The case-law of the Appellate Body in this area is simply a mess. Typically, the Appellate Body decisions in this respect are neither “bottom up” nor “top down:” The drafting of the reports is not factspecific, but we have no clue as to the underlying theory. Ten years of case-law has proved insufficient for the Appellate Body to lay out, in intelligible terms, its standard of review: We know that effects do not matter, and we also know that “objective” [sic] intent does, but such an intent test has not so far been used, and of course effects are a good proxy to detect intent in an information asymmetry context. Most importantly, some false positives are the by-product of this case-law.41 False positives can of course have serious systemic repercussions, especially in an international context where agency costs are (usually) higher in comparison to a domestic context. It is difficult to come up with a straightforward recommendation to address this issue: The WTO is an obligationally incomplete contract, and writing contingencies42 in order to avoid the incompleteness might, from a negotiating perspective, prove to be an awkward (indeed impracticable) exercise. It is highly recommended that the Appellate Body clarifies what it means by an intent test and what proxies it intends to use when performing this exercise.

curiae briefs, on shaky grounds, see Petros C. Mavroidis, Amicus Curiae Briefs before the WTO: Much Ado about Nothing, in: Armin von Bogdandy/Petros C. Mavroidis/Yves Meny (eds.), European Integration and International Coordination – Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann, 2002, 317–329. 41 See on this issue Henrik Horn/Petros C. Mavroidis, Still Hazy after All These Years: The Interpretation of National Treatment in the GATT/WTO Case-law on Tax Discrimination, European Journal of International Law, vol. 15, 2004, 439–469. 42 On this issue, see Eric Maskin/Jean Tirole, Unforeseen Contingencies and Incomplete Contracts, Review of Economic Studies, vol. 66, 1999, 83–114.

58

Petros C. Mavroidis

The safeguards mess has been already highlighted above. It is probably worth adding here that the Appellate Body has contributed to this mess through its sloppy case-law on causation: The non-attribution language has been placed in the context of Article 4.2, whereas its natural one, one would think, would be in Article 5 of the safeguards agreement. Moreover, WTO Members are still in the dark as to what is needed to be done to satisfy the non-attribution requirement. Finally, Article 2 of the safeguards agreement (entitled “Conditions”) nowhere mentions that the imposition of safeguards can legitimately be placed only if imports have increased as a result of unforeseen developments. The Appellate Body re-introduced this requirement through the back door, neglecting its very purpose in the original GATT treaty and forty–plus years of practice in this respect. A re-drafting of the safeguards agreement can help remove a lot of the confusion that has been the by-product of the Appellate Body case-law in this respect. Similar observations can be raised with other aspects of the case-law as well. Because of their importance, I will quickly mention national treatment and safeguards. National treatment covers all domestic policies affecting trade; safeguards provide an incentive ex ante to commit to additional liberalization because the Member retains the possibility to adjust to shocks ex post (and thus be in a position to compensate losers from trade liberalization, embedding thus the belief in a society that trade liberalization should and can be viewed through the lens of Kaldor-Hicks efficiency). The case-law could have avoided some issues that occupied time and space in the negotiating agenda, among them sequencing. The point here is whether a WTO Member which is not happy with the implementation efforts of a defendant (whose actions have been found to be WTO-inconsistent) should have the right to request countermeasures before it has gone through a compliance panel under DSU Article 21.5. A contextual reading of DSU Article 22 would answer this question in the negative – however the Bananas arbitration did not.43 Subsequent practice strongly supports sequencing (in defiance of the Bananas ruling), and a proposal has been tabled in favor of a legislative amendment of the DSU to this effect, to avoid confusion in future disputes.44 43

See Decision by the Arbitrators, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/ARB of 9 April 1999. 44 Cf. Petros C. Mavroidis, Proposals for Reform of Article 22 of the DSU: Reconsidering the ‘Sequencing’ Issue and Suspension of Concessions, in: Federico Orti-

Tales of Trade and Development, Development and Trade

59

III. Gray Areas

The GATS agreement is not a model of clear drafting. Crucial to its understanding is the relationship between Articles XVI and XVII. The first reflects the measures to which recourse may not be had unless a WTO Member has explicitly stated in its schedule of concessions that it will do so. The second reflects the national treatment principle. The first sentence of GATS Article XVI leaves the reader with the unambiguous impression that it covers measures applicable to foreign services and suppliers of services only. A reading of GATS Article XX.2 might lead to the opposite conclusion. The worst fears were confirmed when a WTO panel held that this was indeed the case.45 Following this interpretation, an instrument which was thought to provide WTO Members with the opportunity to limit access for foreign services and suppliers of services was metamorphosed into a sort of constitutional constraint that blocks market access for foreigners and nationals alike. That is, say Germany, by entering into a contractual arrangement under the GATS whereby it opens up its market to foreign attorneys (and of course, gets something in return), ends up, by virtue of this interpretation, limiting the overall number of Germans who want to practice law in Germany. This is definitely not the intended use of GATS Article XVI. An end should be put to this practice before the institutional harm becomes irreversible. Finally, there are some areas where the institutional players’ concerns have fallen on deaf ears. As two prominent members of the Mexican delegation in Geneva note, “if the DSU is working reasonably well, why does everybody want to change it?”46 The issue of remedies is gaining in prominence, as developing countries realize that not all winners stand the same chance of persuading no/Ernst-Ulrich Petersmann (eds.), The WTO Dispute Settlement System 1995–2003, 2004, 61–74. Similar arguments can be made with respect to the “carousel” practice, whereby the question is whether a WTO Member imposing countermeasures can legitimately change the list of imported products, the duties of which will be (periodically) increased. Assuming that the requesting state has tabled a series of lists to the Arbitrators, and the latter have established equivalence of each and every list with Art. 22.4 DSU, there seems to be no issue at all. 45 This is the Betting and Gambling Report: Panel Report, United States – Measures Affecting the Cross-border Supply of Gambling and Betting Services, WTO Doc. WT/ DS285/R of 10 November 2004. 46 See Eduardo Perez Motta/Mateo Diego-Fernandez, If the DSU is Working Reasonably Well, Why does Everybody Want to Change It?, 2004 (unpublished manuscript on file with the author).

60

Petros C. Mavroidis

recalcitrant WTO members to implement the adjudicating bodies’ recommendations. The credibility of a threat of countermeasures depends on a series of variables, and more often than not, it is countries that can affect terms of trade that can offer a credible threat.47 So far there has been no case where a developing country facing a recalcitrant WTO Member has had recourse to countermeasures in an effort to ensure compliance. The opposite, of course, has taken place in several well documented cases. The discussion on remedies has occupied the minds of negotiators during the Doha round, and at the moment of writing, this continues to be debated. During the round, the EU tabled a very sensible proposal: To avoid problems related to both administrative delays and adverse selection in the panelist selection process, panelists should be chosen from a narrow and selective roster.48 Currently, panelists are chosen from a very wide roster, and recourse to panelists outside the roster is permitted – resulting (sometimes) in delay and bickering over panelists selection. Although the proposal seems quite sensible, paradoxically it did not manage to gather sufficient support. It is impossible to overstate the importance of comprehensive quality control with regard to agents in a setting like the WTO, where agents are called to repeatedly interpret a largely incomplete contract. Technically the issue still remains on the table, so one can only hope that it will eventually resurface and gather sufficient momentum. D. Conclusions This paper has aimed to show two things: That nothing much has changed in terms of specific action in favor of developing countries inside the WTO, and that a lot of issues where action should have been undertaken remain low priorities for (some) negotiators. The latter observation is not surprising. It is not necessarily in the incentive structure of all negotiators, for example, to opt for the introduction of an institutionally credible threat inside the WTO legal system that will ensure compliance under all circumstances. For reasons having to do

47

The credibility of the threat can of course, also depend on extra-trade concerns. See Lawrence (note 35) for a very comprehensive discussion of this issue. 48 Cf. Thomas Cottier, Proposals for Moving from Ad hoc Panels to Permanent WTO Panelists, in: Ortino/Petersmann (note 44), 31–39.

Tales of Trade and Development, Development and Trade

61

with the main focus of the round, I have concentrated on the former set of issues and only touched on the latter. The special and differential treatment reserved to developing countries inside the world trading system essentially boils down to two key aspects: the institutional possibility that developed countries treat imports from developing countries at better than MFN rates, and the institutional possibility that developing countries enjoy longer transitional periods when it comes to the implementation of various commitments, and that they make fewer (or no) commitments in return for preferences. These two are to some extent the two sides of the same coin, that coin being the policy-irrelevance of the WTO regime for most developing countries. Of course, treating an import better than the MFN rate is no guarantee for the best import treatment at all. The reality is that there is not a two-tier system, where imports are either MFN or GSP. Instead, there is a multi-tier system, and it could be the case that GSP is simply one grade of better treatment than MFN, but just that. Over the years, developing countries have realized that various other layers of preferential rates (associated in one way or another with a free trade area) reflect a better-than-GSP treatment for particular commodities. So far this round seems to take the view that this regime (let us call it here the ancien régime) needs to be streamlined, but nothing dramatic is required. Empirical evidence suggests the exact opposite: That, increasingly, the system does not work. There is empirical evidence to the effect that, if at all, promoting the classic trade agenda might work wonders for developing countries, which would be the case were developed countries to open up their farm and textiles markets (those sectors most critical to developing countries’ growth). GSP preferences have been a surrogate for opening up – on an MFN basis – these two markets in Europe and the United States. A series of recent phenomena paint an even darker picture: With the blessings of the Appellate Body, donors are now allowed to condition perks on the prior adoption of unilaterally defined (by the donors) sets of policies (which might or might not be development-friendly). If followed, such practices might lead to considerable trade diversion and result in developing countries financing other developing countries’ policies. Worse still, the bargaining power of developing countries as a group might suffer. What do to reverse this tide? There is no fast solution here. And it would be premature to proclaim a victory for developing counties so far in the Doha

62

Petros C. Mavroidis

round, simply because the cotton initiative seems to yield some advantages for a few of them which are interested in this one particular commodity. There is an opportunity cost associated with every such “victory” that developing countries as a group might be called to upon to pay for later in the round. There is no fast way to development either. Moreover, one should not overestimate the contribution that trade might make in this perspective. Development is an individual, country-specific issue and should be designed in Lagos, Buenos Aires and New Delhi, instead of Geneva. This is where the development options and the associated opportunity cost should be debated and designed – with the help of institutions, when appropriate. Geneva might be in a position to contribute in different ways to each member’s development: not as policy maker, but rather by helping to facilitate the multilateral cooperation among Lagos, Buenos Aires, New Delhi, etc., to the extent the member states themselves so desire, and deem fruitful. There is no sight of a nouveau régime yet, and yet one is badly needed. Developing countries can win a lot from the WTO – there is still so much in the trade agenda (agriculture, textiles, etc.) that they have not yet used. Instead of mimicking each other’s past practices and hiding behind a cosi fan tutti syndrome, this is probably the time to come up with a daring proposal. There is much inspiration to draw from in the academic literature: direct payments instead of tariff preferences (assuming corruption can be adequately dealt with), opening up farm and textiles trade in exchange for GSP schemes. This latter point, if followed, will bring back trade relations within the four corners of MFN. Tariff reductions will take place in fields of export interest for developing countries, where probably no need for special and differential treatment exists. Whatever the future holds, it is bound to bring us new and exciting developments – after all, this is the ‘Development Round.’

FOCUS SECTION AFRICA AND INTERNATIONAL LAW La contribution en demi-teinte de l’Afrique au développement du droit international Par Mohammed Bedjaoui* S’il est une évidence aujourd’hui largement admise par la doctrine internationaliste c’est bien celle de l’origine occidentale du droit international contemporain et de sa construction. Européenne d’abord, son élaboration se réalisa durant quatre siècles par et pour l’Europe et son inspiration se fit par une civilisation et des valeurs européennes. Car, historiquement, la société internationale contemporaine se confond avec l’émergence de la société inter-étatique européenne. Celle-ci, au plan temporel, se recoupe avec la conclusion du traité de Westphalie de 1648. Ainsi, jusqu’à la naissance de la Société des Nations, ce droit, dit “international” ou “universel,” n’était en fait qu’un droit européen, né du mariage d’un fait régional et d’une puissance matérielle, et transposé comme droit dominant sur l’ensemble des relations internationales. Les Etats européens projetaient ainsi sur le plan mondial leur puissance et leur droit. On touche ici à la vraie nature du droit dit “international,” à sa substance et même à la réalité de son existence. Américaine ensuite, la promotion de ce droit s’effectua avec la fin du premier conflit mondial et la montée en puissance des Etats-Unis à l’aube de la Seconde Guerre mondiale. Ces derniers exercent une hégémonie sans partage depuis la fin du bipolarisme au début des années 90.

*

Membre de l’Institut de droit International, ancien Président de la Cour internationale de Justice.

64

Mohammed Bedjaoui

S’étant formé historiquement à partir de “faits de puissance régionaux,” il ne pouvait être un droit de “participation,” mais seulement un droit international octroyé à la planète toute entière par un ou deux groupes dominants. C’est de cette manière qu’il a pu servir de support juridique aux différentes facettes politiques et économiques de la domination. L’Occident a donc façonné le droit international. Il ne pouvait le faire qu’avec le souci d’une part d’équilibrer les intérêts des différentes nations européennes, et d’autre part de projeter sa domination sur le reste du monde, particulièrement sur l’Afrique et l’Asie. Il s’agissait d’un équilibre dynamique, sans cesse remis en cause au rythme de facteurs exogènes qui assurent son développement. C’est sur la base de cette dynamique nourrie par des intérêts antagonistes qui convergent parfois et créent un équilibre momentané que la société internationale a évolué et que les règles qui la régissent se sont progressivement cristallisées. Mais, conçu de façon unilatérale, le droit international ne pouvait provoquer et entretenir une éternelle allégeance de tous ceux qui avaient à le subir. C’est ainsi qu’il ne tarda pas à susciter des contestations de la part de certains ensembles qui n’ont pas participé à son élaboration. Historiquement ces contestations ont connu trois étapes. La première fut celle de l’Amérique, tant du Nord avec la doctrine Monroë, que du Sud avec l’élaboration d’un droit latino-américain; ce fut la mise en cause “géographique” d’un droit “européen.” La deuxième fut celle de la Révolution bolchevique d’octobre 1917 qui a marqué le monde pendant 74 ans; ce fut la dénonciation “idéologique” d’un droit “bourgeois.” La troisième fut celle des pays colonisés dans les décennies 50–70 et d’une manière plus générale du Tiers-monde. La présente contribution se limitera à cette dernière étape et plus particulièrement à l’Afrique. Dire que le droit international est d’inspiration essentiellement occidentale, c’est affirmer que la part des pays non occidentaux dans le processus de formation de ce droit n’était que marginale. Ces pays étaient soit exclus de ce droit et se trouvaient dans une condition inférieure, soit poussés, à leur indépendance, à appliquer ce droit occidental, donné comme expression de valeurs universelles non susceptibles de contestation. Berceau de l’humanité, l’Afrique, à l’instar du Tiers-monde, n’a pas été, pour des raisons historiques d’abord et politiques ensuite, un acteur actif dans le processus de création de la norme internationale. A la faveur du processus de

Contribution de l’Afrique au développement du droit international

65

décolonisation, les Etats africains, forts de leur nombre et du contexte international qui leur était favorable, engagèrent une offensive visant à remettre en cause les domaines qu’ils estimaient préjudiciables à leurs intérêts. Il ne s’agit pas là de procéder à une rétrospective exhaustive du processus de remise en cause du droit international classique par l’Afrique, mais plus modestement de restituer les aspects les plus saillants de cette démarche. Par ailleurs, une appréciation d’ensemble de cette démarche permettra d’observer que les résultats de celle-ci se sont avérés précaires, voire éphémères. Ce repli continental s’explique aisément à la fois par des facteurs endogènes tels que l’indigence des moyens, humains, matériels et financiers dont dispose à l’Afrique et exogènes tels que les politiques néo-colonialistes exercées par les anciennes métropoles en vue de maintenir le statu quo ante. Aujourd’hui, face à la mondialisation qui ressemble aussi bien dans sa conception que dans son expression à une forme nouvelle d’hégémonie du plus fort et d’exclusion du plus faible, les dirigeants africains ont entrepris une politique de rénovation de la Maison Afrique tant au plan institutionnel que normatif. Mais, malgré ces initiatives louables comme celle du NEPAD, l’éclaircie semble encore incertaine. A. Une offensive précaire La contestation politique, parfois violente, qui a entraîné les décolonisations en chaîne des pays d’Afrique a été suivie, aussitôt l’indépendance acquise, par la contestation du droit qui a permis la perpétuation de la domination de la puissance coloniale. Mais, ce nouveau combat visant à remettre en cause la logique interne du droit international classique qui ne reflétait pas la réalité de la société internationale des décennies 60–70, s’avéra plus dur, voire plus insidieux, que celui engagé pour la libération nationale. Le contexte international de l’époque était certes plus favorable aux Etats du Tiers-monde qui étaient courtisés par les deux super-grands autour desquels reposait l’équilibre mondial depuis 1945. Dans ce cadre, l’Afrique aura constitué l’élément moteur de la mise en place des instruments institutionnels visant à contester l’ordre international établi, mais également un foyer de propositions en vue de la rénovation de cet ordre

66

Mohammed Bedjaoui

sur des bases reflétant effectivement la diversité de la société internationale nouvelle. C’est ainsi que l’Afrique a été l’initiatrice de la création du mouvement des non-alignés; groupement à connotation politique à la recherche d’une troisième voie entre les deux blocs et, un peu plus tard, du Groupe des 77 qui avait pour objectif ultime la remise en cause de l’ordre économique international existant, symbolisé par les institutions de Bretton Woods, remise en cause visant l’instauration de rapports moins inégalitaires entre le Nord, peu peuplé et très riche, et le Sud constitué de l’essentiel de l’espèce humaine, mais pauvre et peu développé. Cette ambition africaine pour un renouveau apparaîtra certainement mieux à l’examen des points suivants, parmi d’autres: – La promotion du principe de la tabula rasa dans la succession d’Etats; – La consécration du principe de l’uti possidetis juris; – La revendication d’un nouvel ordre économique international; – L’invention du concept de zone économique exclusive. I. La tabula rasa

Au lendemain du recouvrement de leur souveraineté, les Etats africains étaient partagés entre la nécessité de remettre en cause globalement les traités internationaux, ou de prendre d’autres attitudes qui reconduisent partiellement ou totalement les instruments internationaux hérités de la puissance coloniale. Le professeur yougoslave Milan Bartos avait systématisé les diverses positions des Etats nouveaux en ce domaine.1 Il a distingué le système de la tabula rasa; le droit d’option portant sur la validité des traités; la continuité assortie d’un droit à dénonciation; le droit au délai de réflexion; ainsi que d’autres cas de figure. Un rejet de toute continuité entraînant à faire table rase de tous les traités antérieurs a été notamment décidé par l’Algérie et cela bien qu’il eût existé des accords de dévolution proposant une solution contraire. Un autre groupe d’Etats a opté pour la reconduction des instruments conventionnels pour une durée 1 Document de travail pour la Commission du droit international, présenté à la sous commission sur la succession d’Etats et de Gouvernements, doc. A/CN.4/160 (1963), Annuaire de la Commission, 1963-II, 303–308.

Contribution de l’Afrique au développement du droit international

67

déterminée à l’issue de laquelle ceux-ci étaient considérés comme caducs, sauf confirmation expresse contraire; cette démarche avait été adoptée par un certain nombre de pays d’Afrique de l’Est comme la Tanzanie, ou le Kenya. D’autres Etats encore, tout en reconduisant provisoirement les traités antérieurs, se sont réservé le droit de les examiner par la suite; entrent dans cette catégorie le Congo-Brazzaville et la Côte d’Ivoire; d’autres Etats enfin, tels que la Zambie ou la Guyane, ont reconduit les accords en attendant la mise au point d’une liste définitive qui lierait l’Etat nouveau. Comme on le constate, il y eut une grande diversité d’attitudes des Etats nouveaux: non-transmissibilité, continuité ou rupture moyennant des choix entre les traités, continuité de fait mais sans engagement de principe, attitude réservée accompagnée d’un temps de réflexion, enfin reconduction provisoire limitée dans le temps en attendant la mise au point de nouveaux rapports conventionnels. Il y a lieu d’observer que certains types d’accords comme les traités politiques considérés comme non transmissibles, font l’objet d’attitudes assez variées de la part des Etats. Il apparaît clairement qu’il n’existe pas de règles uniformes de rejet quoique l’étude des Nations Unies ait montré que l’extinction des traités d’extradition a constitué la solution la plus fréquente.2 Ces comportements variables en fonction des pays et selon les matières successorales dans le même moment, font des Etats nouveaux, le plus souvent contre leur gré, un mélange d’ “Etats stagiaires” et d’ “Etats majeurs.” Ainsi, un même Etat peut manifester plus d’indépendance à l’égard de l’héritage colonial dans un secteur et plus de timidité dans un autre. D’où la vanité de toute systématisation. Les prétendues règles classiques de continuité, tout autant que certaines politiques métropolitaines imposant une transmissibilité de la loi et du traité, sont en contradiction avec de nouveaux principes apparus en droit international à la suite des décolonisations. Mais toutes ces observations sont impuissantes à rendre compte de la réalité et des limites de la contribution africaine car, en vérité, contrairement à 2 Une étude réalisée par le Secrétariat pour la Commission pour le droit international révèle une diversité de comportements de 26 pays nouvellement indépendants. “La succession d’Etats en matière de traités bilatéraux,” doc. A/CN.4/229 (1970).

68

Mohammed Bedjaoui

l’énergie déployée dans les années 60 et 70 en vue de changer l’ordre international, les deux dernières décennies ont révélé l’inaptitude des Etats neufs, particulièrement africains, à rénover ce droit international. Cette inaptitude est due à une diversité de situations résultant plus particulièrement de la faiblesse des structures et de l’encadrement africains, à l’importation du modèle du partenaire dominant, à l’ambiguïté des politiques de coopération, en un mot à la perpétuation sous des formes aseptisées des rapports de domination dans de nombreux cas entre ex-Métropoles et anciennes colonies. Ainsi beaucoup de pays en développement se sont vus obligés de maintenir l’ordre juridique interne ancien qui garantit à l’Etat dominateur des positions économiques privilégiées, et ont “importé” de surcroît des institutions juridicopolitiques qui véhiculent ces facteurs de domination. II. L’uti possidetis juris

Le principe de l’uti possidetis juris est apparu en Amérique latine au 19e siècle et a été appliqué avec succès à l’indépendance des anciennes possessions espagnoles. Il a permis une stabilisation des frontières entre les Etats latinoaméricains. L’Afrique a adopté à son tour ce principe et lui a donné une seconde jeunesse en l’appliquant aux Etats nouvellement indépendants du continent. Ce principe permet le maintien et la préservation du statu quo territorial des frontières coloniales héritées par les nouveaux Etats. Il s’agit d’une “remarquable construction juridique,” selon l’expression de Romain Yakemtchouk.3 Les dirigeants africains, à l’exception notable de ceux du Maroc et de la Somalie, ont considéré l’uti possidetis comme une norme impérative qui s’impose à l’ensemble du continent. Lors de la conférence constitutive de l’OUA de mai 1963, la quasi-totalité des dirigeants africains ont appelé au strict respect du statu quo territorial. Ce principe a été ainsi consacré solennellement par la Charte de l’OUA4 en son article 3, paragraphe 3, comme suit: “Le respect de la souveraineté et de l’intégrité territoriale de chaque Etat et de son droit inaliénable à une existence indépendante.”

3 4

Romain Yakemtchouk, L’Afrique en droit international, 1971, 65. Charte de l’OUA, 25 mai 1963, RTNU, t. 479, 39.

Contribution de l’Afrique au développement du droit international

69

C’est à la suite du conflit algéro-marocain de 1963 et à l’initiative du président tanzanien que les Chefs d’Etat et de Gouvernement, lors de la première conférence qui s’est tenue au Caire en juillet 1964, ont déclaré solennellement que “tous les Etats membres s’engagent à respecter les frontières existant au moment où ils ont accédé à l’indépendance.”5 C’est également à l’initiative des Etats africains que la deuxième conférence des Chefs d’Etat et de Gouvernement des pays non-engagés (devenus non“alignés” plus tard), qui s’est tenue au Caire en 1964, a consacré solennellement le principe de l’intangibilité des frontières. Ainsi les frontières héritées de la colonisation devaient servir d’assiette stable pour la formation des nations, tout en continuant par ailleurs de servir d’aires spatiales pour l’exercice exclusif des compétences étatiques. Il s’agissait pour les dirigeants africains à la tête d’Etats neufs d’apaiser les tensions et les crises qui commençaient à poindre au lendemain de l’indépendance. Il convenait, par conséquent, d’assurer la stabilité politique et la paix à l’échelon du continent africain libéré. Pour les Etats africains “le droit international est interprété en fonction de l’ordre politique interne; il est mis en quelque sorte à son service: en stabilisant ce qui est acquis, il empêche l’atomisation des souverainetés étatiques minées par les divergences ethniques et tribales; en même temps, il contribue au dépassement de ces divergences, et, en les transcendant, à la formation de nouvelles nationalités.”6 L’uti possidetis postule l’intangibilité des frontières, entendue comme “l’impossibilité de remettre en cause, par la force, les frontières existantes, que cette existence résulte d’une situation de fait bien établie ou d’un accord international.”7 Ce principe a permis à l’Afrique de ne pas soulever la question de la séparation opérée par les colonisateurs de groupes ethniques ou de populations entre plusieurs Etats; l’acceptation de frontières, fussent-elles artificielles à l’origine, a permis d’éviter d’innombrables conflits territoriaux . C’est ainsi que ce principe a été perçu comme interdisant toute éventualité de remise en cause des 5

Resolution AHG/Res. 16 (I) du 21 juillet 1964. Romain Yakemtchouk, Les frontières africaines, Revue générale de droit international public, vol. 74, 1970, 27, 61. 7 Jean-François Lachaume, La frontière-séparation, dans: Société française pour le droit international, La frontière: Colloque de Poitiers, 1980, 77, 83. 6

70

Mohammed Bedjaoui

frontières héritées aux indépendances par des groupes de populations qui entendent s’ériger en Etats autonomes. Cela s’apparenterait à une sécession. L’histoire récente de l’Afrique montre d’ailleurs que le seul cas qu’a connu ce continent est celui de la rébellion biafraise qui n’a pas bénéficié de soutien au niveau du continent. Cette attitude est dictée par le risque de voir d’autres régions se soulever contre le pouvoir central. D’autre part, aucune revendication territoriale d’un Etat africain sur un autre visant à remettre en cause les frontières existantes n’a également reçu de soutien ni des Etats africains pris isolément ni de l’organisation continentale. A ce titre, l’exemple le plus illustratif est celui de l’agression marocaine de l’Algérie en 1963, soit peu de temps après l’accession de ce pays à l’indépendance. En figeant pour la durée les frontières des Etats, ce principe participe de façon effective à la cristallisation de la nation dans les Etats neufs. C’est ainsi que des populations d’ethnies diverses connaissant un nombre important de langues, de religions, de cultures, toutes différentes sont appelées, à l’intérieur de frontières sûres et reconnues à vivre ensemble, à dégager progressivement des valeurs communes, bref à donner naissance à de nouvelles nations. Il s’agit là d’un processus inverse de celui suivi par les pays européens. Certains auteurs soutiennent que le principe de l’uti possidetis juris s’oppose au principe cardinal du droit des peuples à disposer d’eux-mêmes. Ils estiment que, pour résoudre les innombrables conflits ethniques que connaît l’Afrique aujourd’hui, il conviendrait de permettre à certaines minorités de s’autodéterminer. Ils relèvent que, 40 ans après leur indépendance, les Etats africains n’ont pas sécrété de nations suffisamment homogènes sur le modèle européen. Mais n’est-ce pas là une mauvaise querelle, dans la mesure où la résolution 1514, adoptée en 1960 par l’Assemblée générale des Nations Unies,8 visait uniquement les peuples africains et asiatiques sous domination étrangère? Cette résolution, qui a acquis valeur de principe de droit international public, ne saurait, par conséquent, servir de fondement juridique à n’importe quelle forme de sécession dans les Etats du Tiers-monde, particulièrement africain. Le principe de l’uti possidetis juris a permis à l’Afrique d’éviter une remise en cause généralisée des frontières héritées de l’époque coloniale et d’épargner, en conséquence, au continent une multitude de conflits inter-étatiques.

8

Resolution 1514 (XV) du 14 décembre 1960.

Contribution de l’Afrique au développement du droit international

71

Ce principe, repris d’ailleurs à l’article 4 alinéa (b) de l’Acte constitutif de l’Union africaine,9 réitère de façon claire et non équivoque “le respect des frontières existant au moment de l’accession à l’indépendance.” Les solutions aux règlements des conflits inter-ethniques, culturels, linguistiques et religieux récurrents sont à rechercher plutôt dans les régimes politiques de ces Etats. Ceux-ci doivent accepter et respecter ces diversités sans qu’il y ait remise en cause ni de l’existence de ces Etats, ni de leurs frontières. III. L’instauration d’un nouvel ordre économique international

Le phénomène de décolonisation a tenté d’apporter des données neuves dans l’évolution du droit international. Il s’agit alors d’une contestation “économique” d’un droit des “puissances nanties.” Le professeur Louis Henkin10 a bien résumé la position des Etats neufs: “Le droit international,” écrit-il, “ne peut survivre au déclin de la domination européenne et ne peut gouverner une communauté des nations dont la majorité des membres ne sont pas européens, ne sont pas impérialistes, ne sont pas capitalistes, ne participent pas au développement du droit et dont les intérêts sont différents de ceux des autres nations.” C’est cette nouvelle “communauté des pauvres” qui a tenté de s’attaquer au droit international établi. La décolonisation devait, par un rapport de nécessité, entraîner une interpellation du monde riche en vue de l’instauration d’un nouvel ordre économique international, de même qu’elle devait chercher à obtenir une expression juridique de ce dernier dans un nouveau droit international. Aussi, la décolonisation apparaissait-elle d’emblée comme une grande donnée pour la transformation de l’ordre économique et juridique international. Mais une analyse spectrale de la décolonisation a pu révéler les teintes et les demi-teintes de celle-ci, où l’on découvre alors des éléments de fragilité capables à tout moment de la marginaliser dans l’élaboration du nouveau discours juridique et économique international. C’est qu’en effet la donnée de la décolonisation se heurte à une autre donnée plus puissante encore, qui est la persistance de faits de domination, qui perpétuent l’ordre économique actuel et 9

Acte constitutif de l’Union Africaine, 11 juillet 2000, doc. CAB/LEG/23.15. Louis Henkin, How Nations Behave. Law and Foreign Policy, 1968, 117 (traduction par l’auteur). 10

72

Mohammed Bedjaoui

stérilisent les efforts d’élaboration d’un nouveau droit international. Il conviendrait donc d’évaluer les effets respectifs de ces “invariants” décolonisation et domination en faveur de la transformation ou de la consolidation de l’ordre international actuel. Mais, celui-ci n’est pas lui-même dépourvu d’action en retour sur ces invariants. La revendication d’un nouvel ordre économique international a été exprimée avec force lors de la IVeme Conférence des pays non-alignés qui s’était tenue à Alger en septembre 1973. Cette revendication s’est exprimée par la suite au sein des Nations Unies qui ont conduit leur Assemblée générale à adopter en 1974 et en 1975 les textes fondateurs du nouvel ordre économique international. Dans le cadre de la présente contribution, on esquissera brièvement les lignes directrices de ce nouvel ordre.11 L’Assemblée générale de l’ONU s’est réunie en session extraordinaire, à l’initiative de l’Algérie, du 9 avril au 1er mai 1974 à l’effet de dégager les principes visant l’instauration d’un nouvel ordre économique international fondé sur l’équité, l’égalité souveraine et l’interdépendance entre les Etats, quel que soit leur niveau de développement économique et social. La Déclaration et le Programme d’action concernant l’instauration d’un nouvel ordre ont été adoptés par les résolutions 3201 (S-VI) et 3202 (S-VI) du premier mai 1974. Tandis que la Déclaration énonce les principes fondateurs du nouvel ordre, le Programme d’action détaille l’ensemble des mesures concrètes visant à traduire, dans les faits, ce nouveau concept. Un autre texte est considéré également comme fondateur et se situe dans le prolongement du précédent. Il s’agit de la Charte des droits et devoirs économiques des Etats, adoptée lors de la XXIXe session de l’Assemblée générale du 12 décembre 1974 par la résolution 3281. Ce document a été préparé par la Conférence des Nations Unies sur le commerce et le développement (CNUCED) suite à une proposition du Président du Mexique, M. Luis Echeverria. Cette Charte a soulevé une forte opposition des pays développés; elle formule et synthétise toutes les questions juridiques relatives à l’action internationale pour le développement.

11

Pour de plus amples développements, consulter Mohammed Bedjaoui, Pour un nouvel ordre économique international, 1978.

Contribution de l’Afrique au développement du droit international

73

A un degré moindre, il convient de signaler également la résolution “développement et coopération internationale,” que l’Assemblée générale a adoptée, par consensus, par sa résolution 3362 lors de sa VIIe session extraordinaire qui s’est tenue le 16 septembre 1975. Il s’agit en réalité d’un texte de référence pour le système multilatéral de coopération internationale. En d’autres termes, ce texte propose une démarche globale et cohérente des différentes institutions du système des Nations Unies pour la mise en œuvre et la promotion de ce qui a été appelé le “droit international du développement.” C’est ainsi qu’il contient des propositions relatives, entre autres, au commerce international, ainsi qu’à la restructuration des secteurs économique et social du système des Nations Unies. Cette initiative, à l’origine africaine, a malheureusement rencontré de fortes résistances de la part de pays développés totalement hostiles non seulement à la réduction des inégalités existantes entre le Nord et le Sud, mais surtout à la mise en place des instruments devant permettre graduellement le remplacement de l’ordre ancien considéré par les pays du Sud manifestement injuste et dépassé, par un ordre nouveau reflétant la réalité complexe de la société internationale actuelle. A titre illustratif, toutes les réunions de la CNUCED qui se sont tenues durant cette période ont connu des échecs. La raison essentielle tient au fait que des pays du Nord refusaient l’instauration d’un dialogue sur les principales questions de développement avec les pays du Sud. Le refus des pays développés d’appliquer la résolution 35/56 du 5 décembre 1980 par laquelle l’Assemblée générale a adopté une stratégie pour la troisième décennie, est à considérer comme la date marquant la fin de l’offensive des pays africains et des autres pays du Tiers-monde en vue de la rénovation du droit international public et des mécanismes et procédures en faveur du développement.12

12

En 1978–1981, les pays du Tiers-monde ont livré sans succès leur dernière bataille dans le cadre de ce que l’on avait appelé, aux Nations Unies et au Sommet de Cancun d’octobre 1980, le lancement des “Négociations globales” (voir Mohammed Bedjaoui, Les négociations globales, dans: Droits et libertés à la fin du XXe siècle: Influence des données économiques et technologiques. Etudes offertes à Claude-Albert Colliard, 1984, 45–62).

74

Mohammed Bedjaoui

Depuis lors, on a assisté au déclin de l’approche globale, à une sorte de désuétude du discours universaliste. Les Etats-Unis ont remis en cause le système multilatéral de coopération internationale. Les pays développés ont revivifié les pratiques néo-colonialistes que l’on croyait révolues et ont privilégié la coopération bilatérale, rendant plus fragile encore la souveraineté des pays africains. IV. Le concept de zone économique exclusive: Une idée généreuse qui a davantage tourné au profit des pays développés

L’environnement international depuis le début de la décennie 60 a été marqué par l’émergence au sein du Tiers-monde d’un mouvement de contestation des relations économiques internationales et par la place de plus en plus grande occupée par les questions de développement. Le droit de la mer classique n’a pas été oublié dans cette contestation. Les pays africains ont, dans ce cadre, entendu utiliser les ressources notamment vivantes du milieu marin en tant que levier de développement. Le concept de zone économique exclusive devait constituer le cadre juridique approprié de cette démarche. Les ressources halieutiques devaient assumer une double fonction. D’une part, contribuer à l’équilibre de la ration alimentaire des populations en favorisant l’émergence d’industries de pêche au plan interne et d’autre part, constituer une monnaie d’échange dans les rapports économiques des pays africains avec les pays développés. C’est ce qu’a soutenu le représentant du Kenya au Comité juridique afro-asiatique lors de la session de Colombo en 1971 à l’occasion de la soumission du projet relatif à la zone économique exclusive désignée également sous la dénomination de “zone d’intérêt économique.”13 Partant de cette idée et dans le cadre de la révision du droit de la mer classique, dans la perspective de la tenue de la troisième Conférence des Nations Unies sur le droit de la mer, les Etats africains ont organisé des rencontres, des séminaires, des colloques, en vue de réfléchir en commun sur les différentes questions ayant trait à ce domaine particulier du droit international. Parmi ceuxci, il y a lieu de mentionner les conclusions du séminaire de Yaoundé de 13

Voir la déclaration du représentant du Kenya au Comité des fonds marins, Donald Kaniaru, doc. A/AC.138/SC.II/SR.8 (1971), 64.

Contribution de l’Afrique au développement du droit international

75

juin 1972 sur le droit de la mer.14 Celui-ci se situe dans le prolongement des propositions de l’OUA de 1971 sur les pêcheries.15 En substance, les conclusions qui en ont résulté se prononcent clairement pour l’extension, par les Etats du continent africain, de la souveraineté permanente sur les ressources biologiques au large de leurs côtes. Il faut souligner que ce séminaire a joué un rôle important dans l’émergence d’un consensus africain autour du concept de zone économique exclusive d’une part et de la théorisation de ses fondements juridiques d’autre part. Les propositions relatives à la zone économique exclusive ont été traduites en termes juridiques par deux projets d’articles soumis au Comité des fonds marins en 1972 et 1973. Le premier a été soumis par le Kenya,16 le second par 15 pays africains.17 Enfin la Déclaration adoptée par l’OUA lors du Sommet de 197318 constitue, en quelque sorte, l’aboutissement de l’évolution dense et rapide du continent africain sur les questions relatives au droit de la mer. En effet, dans la partie “C” de cette Déclaration, il est reconnu le droit de tous les Etats riverains d’instaurer une zone économique exclusive au-delà de leur mer territoriale et dont l’étendue est limitée à 200 milles marins à partir des lignes de base qui servent à délimiter cette mer territoriale. Le concept de zone économique exclusive, ses principes et fondements dégagés au niveau africain se sont concrétisés dans la Partie 5 (articles 55 à 75) de la Convention des Nations Unies sur le droit de la mer.19 Celle-ci, adoptée le 10 décembre 1982, est devenue, après son entrée en vigueur le 16 novembre 1996, la loi fondamentale des océans.

14

Declaration de Yaoundé, juin 1972, doc. A/AC.138/79 (1972), dont le texte, en anglais, est aussi disponible sur Internet: http://www.imli.org/docs/A50.DOC. 15 Doc. CM/Res. 250 (XVII) (1971), disponible dans: Shigeru Oda, The International Law of the Ocean Development: Basic Documents, vol. I, 1972, 362 et seq. 16 Doc. A/AC.138/SC.II/L.10 (1972). 17 Doc. A/AC.138/SC.II/L.40 (1973), disponible dans: Oda (note 15), vol. II, 1975, 295 et seq. 18 Doc. CM/Res. 289 (XIX) (1973), disponible dans: Oda (note 17), 26 et seq. 19 Convention des Nations Unies sur le droit de la mer, 10 décembre 1982, RTNU, t. 1834, 3.

76

Mohammed Bedjaoui

La Cour internationale de justice, bien avant l’entrée en vigueur de cette convention, a considéré dans l’affaire du plateau continental Tunisie-Libye que la zone économique exclusive est une institution “faisant partie du droit international moderne.”20 Par ailleurs, la Cour a considéré dans l’affaire du plateau continental opposant cette fois-ci la Libye à Malte dans son arrêt du 3 juin 1985, que la zone économique exclusive résulte d’un mouvement convergeant de la pratique des Etats pouvant servir de fondement à une coutume internationale. Comme on le constate, le concept de zone économique exclusive est consacré au double plan coutumier et conventionnel; a-t-il pour autant, plus de trois décennies après sa création, réalisé les objectifs généreux qui ont sous-tendu le vaste mouvement dont il était porteur? En réalité de l’enthousiasme soulevé à l’époque de la naissance de ce concept, il ne reste que peu de choses à l’heure actuelle pour les raisons suivantes: En premier lieu, l’hypothèse de la récupération des ressources vivantes de la zone économique exclusive et de leur utilisation comme levier de développement ne semble pas s’être pleinement réalisée, mises à part quelques exceptions. Celles-ci se rapportent essentiellement à la conclusion d’accords de pêche entre l’Union européenne et quelques pays africains tels que la Mauritanie, le Maroc ou le Sénégal. Les autres pays riverains n’ont pas bénéficié de tels accords. En deuxième lieu, l’idée généreuse et consensuelle consistant à permettre aux Etats enclavés et géographiquement désavantagés l’accès à une partie du surplus des ressources halieutiques exploitables figure bien aux articles 69 et 70 de la Convention sur le droit de la mer. Mais il s’agit, selon la forte expression de Laurent Lucchini et Michel Voelckel, “d’un droit, sans doute inédit mais peu consistant,”21 dans la mesure où les conditions d’application de ce “droit” sont laissées à l’appréciation de l’Etat côtier. D’ailleurs, la liste des accords internationaux publiée par les Nations Unies récemment confirme cette appréciation puisqu’il n’existe que quelques cas d’accords de pêche de ce type entre pays en développement. 20

Voir Cour international de justice, Affaire du plateau continental (Tunisie c. Jamahiriya arabe libyenne), arrêt du 24 février 1982, CIJ Recueil 1982, 74. 21 Laurent Lucchini/Michel Voelckel, Droit de la mer, t. 2, vol. 2, Navigation et pêche, 1996, 494.

Contribution de l’Afrique au développement du droit international

77

En troisième lieu, les grands bénéficiaires de l’institution de la zone économique exclusive sont principalement les pays développés tels que les Etats-Unis, la Russie, le Canada et la France (grâce notamment à ses possessions d’Outremer). Ces mêmes pays développés, bénéficiant du laxisme de quelques pays en développement riverains des océans, ont imposé des critères de délimitation du plateau continental qui réduisent à une peau de chagrin la zone internationale qui devait concrétiser la noble idée de patrimoine commun de l’humanité. Comme on le constate, les pays africains ont finalement perdu sur les deux tableaux. Ils perdent d’une part en termes d’appropriation des extensions des souverainetés étatiques sur les espaces maritimes qui ont profité très largement aux pays développés. Ils perdent d’autre part, en termes d’exploitation des ressources minérales de la zone internationale qui devaient profiter aux plus pauvres d’entre eux et dont le plus grand nombre est situé en Afrique. A l’inverse, les pays développés qui ont combattu avec succès la notion de patrimoine commun de l’humanité gagnent sur ces deux tableaux. Si l’on ajoute à cela l’échec de la tentative d’instauration d’un nouvel ordre économique international, ainsi que les manières dont ont été appliqués les principes de la tabula rasa ou de l’uti possidetis, on ne pourra que conclure à la précarité de l’offensive. B. Un effacement durable Consciente qu’elle n’avait pas les moyens de sa politique pour peser sensiblement sur le devenir du droit international, l’Afrique a cherché du moins à se doter d’un droit régional. Elle s’est efforcée, dans une sorte de repli continental, à élaborer de diverses façons (conventions, résolutions, coutumes) un droit international régional. Formellement, il s’agit d’un ensemble de règles destinées à régir les relations inter-africaines. Ce droit continental possède une certaine originalité dans la mesure où il formule soit des règles complémentaires au droit universel, soit des normes particulières au continent africain. La Charte africaine des droits de l’homme et des peuples de 1981,22 la Convention de Libreville de 1977 sur l’élimination du

22

27 juin 1981, doc. CAB/LEG/67/3 Rev. 5.

78

Mohammed Bedjaoui

mercenariat23 et la Convention de 1969 sur les réfugiés,24 sont des exemples de ce droit régional. On verra plus loin qu’en substituant à l’Organisation de l’unité africaine créée en 1963 une Union africaine dotée d’un Acte constitutif, le continent a réformé radicalement ces institutions régionales et renforcé son droit africain. Mais le grand souci était de rejoindre le train à grande vitesse de la mondialisation libérale. “Quel ordre pour la mondialisation?,” s’interroge Philippe Moreau Desfarges dans son livre “L’ordre mondial.”25 En schématisant on se trouve en présence de deux tendances contradictoires. D’une part, il y a ceux qui considèrent que la fin du monde bipolaire marque également la fin de l’histoire selon la formule de Fukuyama. La mondialisation favorise l’universalisation des valeurs et du modèle occidentaux constitués autour du diptyque “démocratie pluraliste” et “économie de marché.” Cependant, l’ordre par la démocratie est confronté à des résistances au nom de la diversité culturelle et civilisationnelle. Le monde arabe et la Chine en sont, à l’heure actuelle, les régions les plus rétives; d’autre part, le principe démocratique suppose l’égalité des Etats, nonobstant leur puissance ou le niveau de développement économique; ce principe se heurte aux fortes tendances hégémoniques des Etats-Unis, seule puissance planétaire. Dans ce cas de figure, la puissance impériale ne s’accommode que d’une société internationale hiérarchisée, fondée sur des rapports de force. L’invasion de l’Irak en 2003 par les forces anglo-américaines, en dehors de toute légalité internationale, incline à penser que le droit international public est aujourd’hui un instrument au service de la puissance qui demeure, plus que jamais auparavant, un ressort essentiel des relations internationales. Dans ces conditions, la participation de l’ensemble des composantes de la société internationale à la codification et au développement du droit international parait bien aléatoire, d’autant que le phénomène de la mondialisation semble accentuer cette tendance. 23

3 juillet 1977, doc. OUA CM/433/Rev. L., Annex 1. Convention de l' OUA regissant les aspects propres aux problèmes de réfugiés en Afrique, 10 September 1969, RTNU, t. 1001, 45. 25 Philippe Moreau Desfarges, L’ordre mondial, 3ème édition 2003, 51 et seq. 24

Contribution de l’Afrique au développement du droit international

79

En effet, la mondialisation est définie par le Bureau international du travail (BIT) comme un phénomène “de libéralisation des échanges, des investissements et des flux de capitaux ainsi que de l’importance croissante de tous les flux et de la concurrence internationale dans l’économie mondiale.”26 Comme le relève fort justement Pierre de Senarclens, la mondialisation “produit surtout une intensification des échanges économiques entre les principaux pôles de croissance que sont l’Amérique du Nord, le Japon, l’Europe occidentale, les nouveaux pays industrialisés d’Asie […].”27 Ces mutations positives qui ont des implications profondes sur les rapports des individus et des sociétés au temps et à l’espace, maintiennent jusqu’à présent le continent africain totalement en dehors. Il apparaît par conséquent clairement que les Etats africains sont, dans le contexte international mondialisé, doublement marginalisés; tout d’abord, par le fait qu’ils ne participent pas aux différents cadres de concertation producteurs de normes, notamment juridiques, qui régulent les différents domaines d’activité de la société internationale à l’exemple du G7 ou encore de l’Uruguay Round; en second lieu, ils ne bénéficient pas des bienfaits de l’ordre néo-libéral dans les domaines de la croissance économique, des échanges, etc. Pour répondre, d’une certaine façon, aux multiples défis de la mondialisation, les Etats africains ont cependant adopté une démarche novatrice. Au plan continental, ils ont remplacé l’organisation continentale de coopération, l’OUA, par une nouvelle organisation plus adaptée pour faire face aux mutations induites par la mondialisation; c’est l’Union africaine comportant de nouveaux espaces politiques et économiques. Par ailleurs, pour ne pas être marginalisés par rapport à la dimension économique du processus, ces Etats ont initié un nouveau partenariat pour le développement de l’Afrique, le NEPAD. L’Union africaine est une organisation internationale de coopération. La paternité de ce nouveau cadre institutionnel revient à la Libye qui en a soumis l’idée lors du Sommet des Chefs d’Etat et de Gouvernement de Syrte en septembre 1999. Lors de la réunion qui a eu lieu en juillet 2000 à Lomé, le Conseil des ministres a adopté le projet d’acte constitutif de l’Union africaine, élaboré par 26

BIT, L’emploi dans le monde de 1996/97. La politique nationale à l’heure de la mondialisation, 1996, 1, cité par Pierre de Senarclens, Mondialisation, souveraineté et théories des relations internationales, 1998, 71. 27 Id.

80

Mohammed Bedjaoui

les experts, qui fut entériné par la Conférence des Chefs d’Etat et de Gouvernement qui a eu lieu en décembre de la même année. L’Acte constitutif de l’Union28 est entré en vigueur le 26 mai 2001, conformément aux dispositions de l’article 28 du traité constitutif qui exige le dépôt des instruments de ratification par les deux tiers des Etats membres. La création de l’Union africaine a pour objectif fondamental l’adaptation du cadre institutionnel de coopération aux profondes mutations de la société internationale. Pour s’adapter à ces dernières, l’Union africaine a intégré quatre grands principes qui sont: – le maintien de la paix et de la sécurité africaines – l’instauration progressive de l’Etat de droit – la promotion et la protection des droits de l’homme – a bonne gouvernance et le nouveau partenariat pour le développement en Afrique (NEPAD). I. Le maintien de la paix et de la sécurité africaines: le droit d’ingérence africain

En ce qui concerne les questions relatives au maintien de la paix et de la sécurité sur le continent africain, l’Acte constitutif présente une avancée considérable par rapport à la Charte de l’OUA tant au plan structurel que normatif. D’une part, il prévoit la création d’un “Conseil de paix et de sécurité” composé de 15 Etats représentant à la fois les grandes régions et les pays qui ont un poids important et chargé principalement du maintien de la paix et de la sécurité sur le continent.29 Les initiateurs du traité se sont inspirés dans une large mesure du Conseil de sécurité des Nations Unies. D’autre part, au plan normatif, le sacro-saint principe de souveraineté étatique devient relatif dès lors que l’article 4, par exemple, prévoit la possibilité d’une intervention multilatérale africaine, “d’un droit d’intervention dans un Etat membre.” Dans un certain nombre de situations, notamment en cas de crime grave (crime de 28

Acte constitutif (note 9). Protocole relatif à la création du Conseil de paix et de sécurité de l' Union africaine, 9 juillet 2002, doc. CAB/LEG/23.22; Acte constitutif (note 9), Art. 5 lit. f, 20bis, comme amandé par le Protocole sur les amendements à l’Acte constitutif de l’Union Africaine, 3 février et 11 juillet 2003, doc. CAB/LEG/23.18. 29

Contribution de l’Afrique au développement du droit international

81

guerre, crime de génocide et crime contre l’humanité), le principe de noningérence dans les affaires intérieures de l’Etat devient inopérant.30 Le Conseil de paix et de sécurité peut ordonner une intervention armée dans les situations sus-énumérées. Par ailleurs, ce Conseil peut être saisi par un Etat membre de l’Union pour restaurer la paix et la sécurité en cas de troubles graves dans ce pays.31 II. L’instauration de l’Etat de droit

Le concept d’Etat de droit, bien que ses contours soient imprécis, peut être considéré aujourd’hui comme constituant un principe de droit international, comme le souligne Jacques-Yvan Morin.32 Ce principe suppose tout d’abord, une séparation des pouvoirs telle qu’elle résulte des principaux systèmes juridiques actuels, c’est-à-dire un pouvoir législatif, un pouvoir exécutif et un pouvoir judiciaire indépendant. L’examen de l’Acte constitutif de l’Union montre clairement que les Chefs d’Etat et de Gouvernement disposent de larges prérogatives par rapport aux deux autres pouvoirs. Mais, cette situation ne doit pas être considérée comme anachronique, dès lors que d’une part nous nous trouvons dans un cadre organisant la coopération entre les Etats membres et non dans une fédération, et d’autre part qu’il s’agit d’un processus évolutif qui ambitionne d’introduire une nouvelle culture commune à tous les Etats du continent. Par conséquent, en attendant ce rééquilibrage au profit des deux autres pouvoirs, il n’y a rien d’étonnant à ce que le traité constitutif de l’Union prévoit que la conférence des Chefs d’Etat et de Gouvernement est: “l’organe suprême de l’Union” (Art. 6 du traité), que cette instance définit “les politiques communes de l’Union” (art. 9) et enfin qu’elle nomme “aux fonctions des juges de la Cour de justice” (art. 9). Le texte fondateur de l’Union comporte une évolution qui est en même temps une rupture par rapport à la Charte de l’OUA puisque dans son article 4, il est prévu la condamnation des changements anticonstitutionnels de Gouvernements. Il s’agit incontestablement d’une évolution notable sur la scène pol30

Acte constitutif (note 29), Art. 4 lit. h. Id., Art. 4 lit. j; Protocol relatif à la création du Conseil de paix et de sécurité (note 29), Art. 4 lit. k, 13 para. 3 lit. c. 32 Jacques-Yvan Morin, L’Etat de droit: Emergence d’un principe du droit international, Académie de droit international, Recueil des Cours, t. 254, 1995, 9–462. 31

82

Mohammed Bedjaoui

itique africaine où les coups d’Etat, qu’ils soient militaires ou non, ont constitué pendant longtemps un mode d’alternance au pouvoir. En clair, les Etats africains s’engagent à ne pas reconnaître les dirigeants non issus du suffrage universel. III. La promotion et la protection des droits de l’homme

Corollaire de l’Etat de droit, les droits de l’homme occupent une place de choix dans l’Acte constitutif de l’Union qui y consacre de nombreuses références et que l’on peut qualifier de “Constitution africaine.” Ce texte confère une compétence générale à la future juridiction continentale chargée des droits de l’homme pour appliquer à la fois les principes prévus par le texte constitutif lui-même, ainsi d’ailleurs que les instruments régionaux et universels relatifs aux droits de l’homme. IV. La bonne gouvernance et le nouveau partenariat pour le développement en Afrique (NEPAD)

Face à la mondialisation, qui a créé une pression continue sur les pays en voie de développement et qui a d’une certaine façon marginalisé les pays africains, tout le continent représente moins de 5 % du PIB mondial et autour de 3 % du commerce international. Les faiblesses économiques et sociales du continent, qui ne sont pas nouvelles, ont été en fait accentuées par la mondialisation. Ce constat alarmant a incité les Chefs d’Etat de l’Algérie, de l’Afrique du Sud, du Nigeria et du Sénégal à lancer, peu de temps après la création de l’Union africaine, le concept de nouveau partenariat pour le développement de l’Afrique.33 Cette initiative, qui se veut ambitieuse, vise deux objectifs. D’une part,34 elle met de l’ordre dans la “Maison Afrique,” c’est-à-dire qu’elle introduit davantage de transparence dans la gestion des affaires publiques, lutte plus efficacement contre la corruption et toutes les autres 33 Voir Le Nouveau Partenariat pour le Développement de l' Afrique, disponsible sur internet: http://www.nepadsn.org/french_version/nepad_french_version.pdf. 34 Voir id., 13 et seq.

Contribution de l’Afrique au développement du droit international

83

formes de dilapidation de deniers publics, recentre les missions de l’Etat sur ses fonctions pérennes, en d’autres termes, se dégage de la sphère économique au profit de l’initiative privée, et en résumé, instaure un véritable Etat de droit permettant la participation effective des citoyens et du mouvement associatif à la gestion des affaires publiques. D’autre part,35 dans le prolongement de ces mesures, cette initiative rend plus attractif un processus de coopération multiforme avec les pays du Nord. Pour schématiser, il s’agit d’attirer, mieux que par le passé, les investissements directs étrangers en Afrique. Il est particulièrement hasardeux de tenter une évaluation d’un processus à peine entamé, d’autant plus qu’il s’inscrit dans le très long terme. Néanmoins, le NEPAD est fondé sur une démarche de coopération profondément inégalitaire, dès lors qu’il s’agit d’une tentative d’insertion dans la division internationale du travail sans conditions, dans un contexte international mondialisé. C. Conclusion L’Afrique, forte de son enthousiasme et de la loi du nombre, a cru pouvoir tenter de modifier l’ordre mondial tel qu’il a été conçu après 1945 par les deux super-puissances et les normes juridiques qui le régulent. Sans procéder à un inventaire exhaustif de l’action de l’Afrique, on observe que le résultat est nuancé, pour ne pas dire négatif, dans la mesure où, mise à part la consécration irréversible du principe de l’uti possidetis juris, les autres contributions, notamment en matière d’instauration d’un nouvel ordre économique international, ont connu un reflux et un effacement durable. L’expression de René Dumont “l’Afrique est mal partie,” prononcée il y a de cela cinquante ans,36 demeure d’une très grande actualité. Le contient africain semble avoir pris conscience aujourd’hui, dans un contexte international mondialisé, qu’il n’a pas les moyens de se projeter et d’influer sur les évolutions de l’ordre mondial.

35 36

Voir id., 54 et seq. René Dumont, L' Afrique noire est mal partie, 1962.

84

Mohammed Bedjaoui

La génération actuelle des dirigeants africains, tenant compte de ces données objectives, a pris conscience de la nécessité d’engager des réformes profondes des systèmes politiques de leurs pays, ce qui devrait faciliter grandement leur insertion dans l’économie mondiale. Il faut espérer que cette remise en ordre de la “Maison Afrique,” qui s’apparente à un repli continental, ne signifiera pas un effacement durable et permettra un sursaut qualitatif du continent.

Refugee Protection under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa By Bahame Tom Mukirya Nyanduga* A. Introduction A declaration by a joint symposium of the Organization of African Unity (OAU) and the United Nations High Commissioner for Refugees (UNHCR), held in September 1994 to commemorate the twenty fifth anniversary of the adoption of the 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa1 (OAU Convention), stated the following: The participants in the symposium have noted with satisfaction the important contribution that the 1969 OAU Convention has made to refugee protection and solutions in Africa. It has also inspired other regions of the world. While acknowledging the challenges facing the Convention, the Symposium reaffirmed its belief in the continued validity of the Convention as the regional foundation for providing protection and finding solutions for refugees in Africa. The symposium also believed that the Convention provided a good basis for developing the legal tools and mechanisms for solving the problems of refugees and forced population displacement as a whole.2

* LL.B. (Hons) (Dar es Salaam); LL.M. (LSE). Member of the African Commission on Human and Peoples’ Rights, Special Rapporteur on Refugees and Internally Displaced Persons in Africa. President of the East African Law Society (EALS), the regional Bar of the three East African States of Kenya, Uganda and Tanzania. The views, opinion, errors if any and conclusions expressed in this article are the author’s own and do not represent the views of the African Union, the African Commission on Human and Peoples’ Rights or the EALS. 1 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, UNTS, vol. 1001, 45. 2 Addis Ababa Document on Refugees and Forced Population Displacements in Africa, September 1994, para. 3, reprinted in: Christof Heyns (ed.), Human Rights Law in Africa, vol. 1, 2004, 813–818.

86

Bahame Tom Mukirya Nyanduga

The 1969 OAU Convention was adopted by African States at a time in history when the continent was gripped by the struggle for liberation, following the independence of many African States in the late 1950s and the 1960s. A considerable number of African States continued to be under colonial and foreign domination. Most of southern Africa was ruled by white racist regimes. The OAU was established in 1963.3 According to Article II para. 1 of its founding Charter, the OAU’s purposes include, inter alia, d. To eradicate all forms of colonialism from Africa; and e. To promote international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights.

The struggle for independence and liberation in Africa prior to and after the creation of the OAU had forced the outflow of people from their territories escaping colonial oppression and foreign domination. While in exile, many of these people organized movements for the freedom and liberation of their countries. Freedom was won peacefully in many cases, while several African States won their independence through armed struggle. It is thus inevitable that historically, refugee outflow in Africa cannot be divorced from the struggle against oppression, both foreign and internal. When Ghana became independent in 1958, Dr. Kwame Nkrumah, the first Ghanaian President and Pan Africanist statesman, declared that the independence of Ghana was meaningless as long as other African countries were under colonial and foreign domination. The emergence of independent African States did not stop or reduce the number of refugees. In certain situations, the problems grew even bigger as a result of conflicts which engulfed independent States soon after their independence. The Congo (now known as the Democratic Republic of the Congo) descended into a political crisis which, during the early 1960s, led to threats of secession by the Katanga province; and after the three and a half decades of the Mobutu dictatorship a civil war broke out in 1998, threatening to balkanize the country and causing a major refugee and humanitarian catastrophe. The States of Rwan-

3 Charter of the Organization of African Unity, 25 May 1963, UNTS, vol. 479, 39. The OAU has been replaced by the African Union (AU), which was established under Arts. 2, 33 of the Constitutive Act of the African Union on 11 July 2000, OAU Doc. CAB/ LEG/23.15, reprinted in: ILM, vol. 41, 2002, 1029. Art. 3 lit. e–h highlight human rights objectives of the AU, while Art. 4 lit. e, f, h–j, l, m, o and p detail the principles which shall guide the AU to promote good governance and respect for human rights in Africa.

Refugee Protection under the 1969 OAU Convention

87

da and Burundi were engulfed by ethnic conflicts as early as the late 1950s and early 1960s, the former suffering genocide of about 1 million people in 1994, while peace is just about to be restored in Burundi with the adoption of a new constitution at the end of 2004, following years of protracted peace negotiations. The refugee consequences of conflicts in the three named countries prevail in the countries of the African Great Lakes States even now. The armed struggle by liberation movements in Angola, Namibia, Zimbabwe and South Africa led to further repression by the racist minority regimes, forcing massive refugee outflows from the said countries. Civil wars in several countries across the continent in Ethiopia, Nigeria, Sudan, Mozambique, Tchad and Somalia, at different times during the 1960s, 1970s, and 1980s, as well as the dispute over the Western Sahara territory, accounted for many refugees. Civil wars in Angola, Sierra Leone, Liberia, Cote d’Ivoire, Congo-Brazzaville and Somalia erupted during the 1990s until the early 2000s. Cote d’Ivoire and Sudan (Darfur) are still under conflict; a comprehensive peace agreement was signed by the parties to the Southern Sudan conflict at the end of 2004, but peace still eludes Cote d’Ivoire and Darfur, which remain some of the refugee eyesores on the continent. The political situation as described above forms the realities behind much of the causes of the refugee problems in Africa. Africa’s response to the refugee problem can be found in both the political sphere and in the adoption of legal mechanisms to address the plight affecting refugees, refugees’ countries of origin and host States. Democratization, the adoption of peace agreements, and the sheer ouster of dictatorships and racist regimes helped bring peace to a number of African countries, hence enabling repatriation of many refugees to their countries of origin. An assessment of the response by the OAU itself was made by the OAU Commission of Fifteen on Refugees (as it then was), which made the following observation in their meeting in Khartoum, Sudan in 1990: Evidently, Africa has tried at the national, sub-regional and regional levels to find durable and lasting solutions to the refugee problem on the continent. At the national level, African governments have continued to demonstrate willingness to work towards greater and genuine democratization of governance and decision making processes, within the framework of African values and existing socio-economic conditions allowing for popular participation. African governments continue to demonstrate greater sensitivity to ethnic issues which otherwise were the major source of internal conflict and civil strife. Additionally, African governments have shown greater awareness and concern to socio-economic conditions facing the African

88

Bahame Tom Mukirya Nyanduga

people. To this end they have accepted structural adjustment programmes of the IMF and the World bank, at great social cost, in the name of improving the living conditions of the people.4

B. The 1969 OAU Convention I. Historical Background

The philosophical history and political background relating to the problem of refugees prior to and after the adoption of the OAU Convention has been briefly outlined above. It is pertinent to observe that at the time of adoption, a number of African States had acceded to the 1951 United Nations Convention on the Status of Refugees5 (the 1951 UN Convention). This Convention is universally recognized as the primary international law instrument for the protection of refugees. Many African States acceded to it at independence by virtue of the law of treaties’ principle of State succession, due to the fact that many of these States were colonies at the time of its entry into force, and the colonial powers, namely the United Kingdom, France, Portugal and Spain, who had become parties to the 1951 Convention, were responsible for the treaty affairs of their colonies. To these African States, the 1951 Convention had a theoretical and practical limitation, resulting from the restrictive definitions in Articles 1 A para. 2 and 1 B para. 1, whereby the refugee definition was constructed in terms of temporal and geographical limitations, respectively. Article 1 A para. 2 of the 1951 UN Convention defines a refugee as someone who [a]s a result of events occurring before 1 January 1951, and owing to the well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside that country of his former habitual residence as a result of such events, is unable to or owing to such fear is unwilling to return to it.

4

OAU Seventeenth Extraordinary Session of the Commission of Fifteen on Refugees, Khartoum Declaration on Africa’s Refugee Crisis, 24 September 1990, OAU Doc. BR/ COM/XV/55.90 (1990), para. 7. 5 Convention Relating to the Status of Refugees, 28 July 1951, UNTS, vol. 189, 137.

Refugee Protection under the 1969 OAU Convention

89

Article 1 B para. 1 states that [f]or the purpose of this Convention, the words ‘events occurring before 1 January 1951’ in article 1, section A, shall be understood to mean either (a) ‘events occurring in Europe before 1 January 1951;’ or (b) ‘events occurring in Europe or elsewhere before 1 January 1951;’ and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purposes of its obligation under the Convention.

These limitations were cured by the 1967 Protocol to the United Nations Convention of the Status of Refugees,6 which in its Article 1 paras. 2 and 3 states: 2. For the purposes of the present Protocol, the term ‘refugee’ shall, except as regards the application of para. 3 of this article, mean any person within the definition of Article 1 of the Convention as if the words ‘as a result of events occurring before 1 January 1951 and …’ and the words ‘… as a result of such events,’ in Article 1 A (2) were omitted. 3. The present Protocol shall be applied by the States Parties hereto without any geographical limitation […].

The 1951 UN Convention was premised on the need of addressing the humanitarian needs of the World War II refugee problem, basically in Europe. The 1967 Protocol cured the Euro-centricity of the 1951 Convention, thereby making it a universal and primary refugee law instrument in real terms. The 1951 UN Convention laid down broad principles defining the obligation of State parties in ensuring protection of refugees. Besides the definition of a refugee and conditions of enjoyment of refugee status, the 1951 Convention laid down other principles, inter alia, on non-discrimination of refugees, the duties of refugees to respect laws, regulations and measures for the maintenance of public order in the host State, property rights and right to transfer assets, freedom of association, freedom of movement and issuance of identity and travel documents, equal treatment before the law, employment, labor, and social security rights, and expulsion and the non refoulement principle. Notwithstanding the elaborate provisions of the 1951 Convention, the independent African States, who had constituted themselves in the OAU in 1963, felt that refugee problems in Africa required greater attention at the regional level. In a resolution marking the beginning of a search for an African solution to its refugee problems, the Second Ordinary Session of the OAU Council of Ministers established a Commission on the Problem of Refugees in Africa. The Commission submitted its report to the Third Ordinary Session of the OAU 6

Protocol Relating to the Status of Refugees, 31 January 1967, UNTS, vol. 606, 267.

90

Bahame Tom Mukirya Nyanduga

Council of Ministers. The Council took note of the report, and of an invitation to the Commission by States which were already grappling with the refugee problem, and from which refugees had departed or had been granted asylum, for a fact finding mission, and to discuss the problem of refugees. Among these countries were Burundi, Uganda, Tanganyika and Zanzibar.7 The Council recommended to the OAU that the African Group at the United Nations, with the help of the Asian states and interested groups, submit a resolution to the 19th Session of the General Assembly, requesting United Nations High Commissioner for Refugees to increase assistance to African refugees, and invited “the Commission to draw up a Draft Convention covering all aspects of the problem of refugees in Africa.” The Council decided to consider the final text of the Draft Convention during its 5th ordinary session.8 From the outset, while advocating for the adoption of a regional instrument, the OAU expressed its appreciation for the efforts of the UNHCR to ensure the universality and adaptation of the UN Refugees Convention to present realities, especially in Africa. The OAU still took into consideration the complex and purely humanitarian nature of the African refugee problem and desired that the African instrument “should govern the specific African aspects of the refugee problem.” By so doing, it would be an effective complement to the 1951 United Nations Convention on the Status of refugees.9 II. Analysis of the 1969 OAU Convention

The 1969 OAU Convention is inspired by many international legal instruments, such as the Charter of the United Nations,10 the OAU Charter, the Universal Declaration of Human Rights11 and the 1967 Declaration on Territorial Asylum.12 It draws significantly from the international refugee law principles

7 Commission on the Problem of Refugees in Africa, OAU Council of Ministers (CM) Res. 36 (III) (1964), preamble and paras. 1, 3. 8 Id., paras. 4, 6, 8. 9 Resolution on the Adoption of a Draft Convention on the Status of Refugees in Africa, CM Res. 88 (VII) (1966). 10 26 June 1945, UNCIO, vol. 15, 335. 11 GA Res. 217 A (III) of 10 December 1948. 12 GA Res. 2312 (XXII) of 14 December 1967.

Refugee Protection under the 1969 OAU Convention

91

enshrined in the 1951 Convention on the Status of Refugees, the 1967 Protocol and the aforesaid instruments. The preamble to the 1969 Convention highlights some of the OAU’s concerns as being “the increasing number of refugees” and the need to find “ways and means of alleviating their misery and suffering as well as providing them with a better life and future.” The OAU recognized that the refugee problem had caused friction among member States, and that it was thus imperative to adopt a humanitarian approach towards solving the refugee problem and “eliminating the source of discord.” The OAU made a distinction between the peaceful refugee and the subversive refugee, reflecting the fears and concerns of countries of origin and host States. Thus, the fear or apprehension about subversion continued to occupy the minds of the framers of the 1969 Convention. The preamble further reiterates the determination to discourage subversive activities, “in accordance with the Declaration on the Problems of Subversion and the resolution on the Problem of Refugees adopted at Accra in 1965.” In anticipation of disputes arising as a result of refugee situations, the OAU expressed the conviction that these would be solved “in the spirit of the Charter of the Organization of African Unity and in the African context.” It is noteworthy that subversion was considered one of the major problems relating to the refugee problem in Africa and became one of the aspects relating to the consequences of hosting refugees. Attendant legal provisions were adopted to deal with the said problem within the Convention. Without seeking to create a parallel refugee protection system, the OAU recognized the pre-eminent role of the 1951 UN Convention, as modified by its 1967 Protocol, and the fact that it “constitute[d] the basic and universal instrument relating to the status of refugee and reflect[ed] the deep concern of States for refugees and their desire to establish common standards for their treatment.”13 It urged the member States to accede to these instruments, an appeal the OAU made continuously during its many years of existence.14 In adopting the 1969 Convention, the OAU was aware that the success of the Convention in solving the problem of refugees in Africa necessitated “close and continuous

13

OAU Convention (note 1), preambular para. 9. Cf. CM Res. 88 (VII) (1966), which calls upon “States that have not adhered to the [1951 Convention] to apply its humanitarian principles,” and CM Res. 104 (IX) (1967). 14

92

Bahame Tom Mukirya Nyanduga

collaboration between the OAU and the Office of the United Nations High Commissioner for Refugees.”15 It was imperative that the OAU Convention highlight various principles arising out of the history and developments relating to refugee problems in Africa. Article I of the Convention defined a refugee in terms similar to that of the 1951 Convention, but made a significant addition to the universally recognized “well founded fear of persecution principle” with a definition based on characteristics obtaining in Africa. Thus, while Article I para. 1 defines a refugee, in terms similar to the 1951 Convention, as every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having the nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it,

para. 2 of the same Article stipulates an Africa-specific definition of a ‘refugee’ by stating that [t]he term ‘refugee’ shall also apply to every person who, owing to external aggression, foreign domination or events seriously disturbing public order in either part or whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

This definition was very appropriate in the light of an organization opposed to colonialism and dedicated to the total liberation of African countries, in that it addressed the immediate concerns of people fleeing from the colonial territories such as the Portuguese colonies and from the racist regimes in Southern Africa. Article I para. 3 of the 1969 OAU Convention makes stipulations on the multiple nationality issue, while paras. 4, 5 and 6 relate to conditions under which a refugee cannot enjoy protection of the Convention and are very much similar in many respects to Article 1 paras. C, D, and F of the 1951 UN Convention. Thus, e.g., Article I para. 5 lit. c of the OAU Convention states that [t]he provisions of this Convention shall not apply to any person with respect to whom the country of asylum has serious reasons for considering that [...] he has been guilty of acts contrary to the principles of the Organization of the African Unity. 15

OAU Convention (note 1), preambular para. 12.

Refugee Protection under the 1969 OAU Convention

93

A similar provision concerning acts contrary to United Nations principles, as contained in the 1951 Convention, was also included in Art. I para. 5 lit. d of the OAU Convention. Article I para. 6 specifically mentions the role of the host State to determine refugee status. A number of provisions of the OAU Convention are founded on universal principles of international refugee law, such as the principle of nondiscrimination,16 issuance of travel documents,17 and cooperation between the member States and the OAU, and the United Nations.18 International cooperation is a key cornerstone in the framework of the realization of the objectives of refugee protection in Africa and Article VIII para. 1 specifically requires member States to cooperate with UNHCR. On the other hand, the OAU Convention also introduces new principles into international refugee law and refugee protection. The fact that it is a regional instrument to complement the 1951 United Nations Convention was a novelty in itself.19 The 1994 joint OAU/UNHCR Symposium to mark the twenty-fifth anniversary of the 1969 OAU Convention stated the following: As a regional complement of the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, the 1969 OAU Convention has been a strong pillar for refugee protection and solutions in Africa. It has enabled the provisions of asylum to refugees and the implementation of voluntary repatriation in a way that has consolidated brotherhood and comity among African States. It has also inspired the developments of favourable refugee laws, policies and practices in Africa and indeed in other regions of the world, most notably in the Latin American region. The Convention remains the only international legal instrument which contains elaborate principles on the voluntary repatriation of refugees.20

16

OAU Convention (note 1), Art. IV; 1951 UN Convention (note 5), Art. 3. OAU Convention (note 1), Art. VI; 1951 UN Convention (note 5), Art. 28. 18 OAU Convention (note 1), Art. VII; 1951 UN Convention (note 5), Art. 35; 1967 Protocol (note 6), Art. II which invariably require member States to “undertake to provide the Secretariat in appropriate form with information and statistical data requested concerning: (a) the condition of refugees, (b) the implementation of this Convention, (c) laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.” 19 OAU Convention (note 1), Art. VIII para. 2 states that “[t]he present Convention shall be the effective regional complement of the 1951 United Nations Convention on the Status of Refugees.” 20 Addis Ababa Document (note 2), para. 11. 17

94

Bahame Tom Mukirya Nyanduga

The OAU Assembly of Heads of State and Government meeting in Tunis, Tunisia in 1994 made similar observations. The Tunis Declaration on the twentyfifth anniversary of the 1969 OAU Convention states the following:21 [We] consider that these anniversaries should provide an opportunity for us to highlight the contribution [that] the Convention has made to refugee protection and the promotion of solution for refugees in Africa. […] Today, the wisdom of having taken this decision continues to demonstrate itself. The Convention has ensured the very survival of the institution of asylum itself and its humanitarian character where the character of refugee flows has sometimes threatened the very fabric of brotherhood and peaceful coexistence between States. [… I]t continues to provide a solid cornerstone for refugee policy and State practice in the reception of, grant of asylum to, and treatment of, asylum seekers and refugees, as well as for the implementation of voluntary repatriation. We also take pride in the fact that the Convention has provided positive inspiration for legal developments elsewhere, such as the Cartagena Declaration on Refugees in Latin America.

The OAU Convention has thus established a refugee protection mechanism which remains as relevant today as it was when the Convention was conceived. The voluntary repatriation principles under Article V22 complementing the principles of asylum, the provisions on prohibition of subversion, and the location of refugees at reasonable distance from borders were a set of novel provisions within the Convention. The Convention underlined the principles of nondiscrimination and non-refoulement traced from the 1951 Convention. The asylum principle as embodied in the 1967 UN GA Declaration on Territorial Asylum was adopted without changes in the later 1969 OAU Convention. The Declaration recognizes in its preamble, as does the OAU Convention in Article II para. 2, that “the grant of asylum to a refugee is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any member State.”23 Article II para. 1 of the OAU Convention requires member States “to use all their best endeavours consistent with their respective legislation to receive refu-

21

Tunis Declaration on the 1969 Convention Governing the Specific Aspects of Refugees Problem, OAU Doc. AHG/Decl. 216 (1994), reprinted in: Heyns (note 2), 248–249. 22 See infra. 23 Declaration on Territorial Asylum (note 12). The declaration draws inspiration from Arts. 13 and 14 of the Universal Declaration of Human Rights (note 11), which recognize the right of every person to leave any country, and return to his own, and the right to seek and enjoy asylum in other countries from persecution.

Refugee Protection under the 1969 OAU Convention

95

gees and to secure the settlement of those refuges who, for well founded reasons, are unable or unwilling to return to their countries of origin or nationality.” Thus, Article II para. 3 prohibits refoulement in similar terms to Article 33 of the 1951 Convention, while para. 4 encourages a member State which finds it difficult to continue granting asylum to a refugee to “appeal directly to other member States and through the OAU, and such other member States shall in the spirit of African solidarity and international cooperation take appropriate measures to lighten the burden of the member State granting asylum.” Para. 5 of Article II encourages resettlement in other member States, as well as temporary asylum in the country of asylum, when a member State does not grant a refugee the right to reside in a country of asylum. Article II para. 6 is yet another principle introduced into international refugee law by the OAU Convention, arising out of the OAU concern with subversion. It stated that “[f]or reasons of security, countries of asylum shall, as far as possible, settle refugees at reasonable distance from the frontiers of their country of origin.” Article III is the most categorical expression by the OAU Convention on the subversion issue. It prohibits a refugee’s involvement in subversive activities. Para. 1 of Article III is similar to Article 2 of the 1951 Convention, which requires conformity with laws, regulations and measures for the maintenance of public order. The 1969 Convention makes a significant addition of a new principle which requires a refugee “to abstain from any subversive activities against any member State of the OAU.” Article V para. 1 establishes the important principle of voluntary repatriation, which has acquired broad international application, and emphasizes the essentially voluntary aspect of repatriation. Article V requires collaboration between the country of origin and the host country during repatriation in making “adequate arrangement for the safe return of refugees who request it,” and prohibits the punishment of refugees who return to their countries. It requires the country of origin to make special appeals through national media and through the African Union, “inviting refugees to return home and giving assurances that the new circumstances prevailing in their country of origin will enable them to return without risk and to take up normal and peaceful life without fear of being disturbed or punished […].”24

24

OAU Convention (note 1), Art. V para. 4.

96

Bahame Tom Mukirya Nyanduga

C. Challenges to Refugee Protection in Africa The 1969 OAU Convention did not establish a self-sustaining institutional framework for its implementation akin to the UNHCR. The implementation of the Convention at the regional level is overseen by the political organs of the African Union, namely the Assembly of African Heads of State and Government and its subsidiary organs, the Executive Council of Ministers, the Commission of the African Union, and the Commission on Refugees and Humanitarian Affairs, which was formerly the Commission of Ten (then Fifteen, then Twenty), and is currently composed of Permanent Representatives of member States accredited to the African Union.25 While at the time the OAU Convention was conceived and adopted, the major cause for refugees was the problem related to colonial occupation, as the years went by, civil wars and ethnic conflict in many member States became a major cause of refugee outflow, thus making the Convention even more relevant. The poor state of African countries’ economies and the increasing number of refugees in Africa necessitated that the implementation of the protection mandate deriving from the OAU Convention be predicated on the principles of African solidarity and international cooperation. The need for external financing remained a major challenge to refugee protection in Africa, which suffered as a result of major shifts in international political and economic trends. Enormous sacrifices by African States in hosting refugee populations in Africa as a result of the various conflicts were an affirmation of the basic premise of the political realities and humanitarian burden sharing philosophy underlying the OAU Convention. The OAU Commission of Fifteen on Refugees meeting in Khartoum, Sudan in 1990, at a time when Africa hosted 5 million refugees out of 15 million world wide, made a statement that is still very much relevant today: This alarming refugee population is rapidly increasing at a time when the continent is faced with serious problems of economic recovery and transformation compounded by a reduction in external resources, the excruciating debt and debt servicing burden, 25 Cf. Constitutive Act of the AU (note 3), Art. 6 on the Assembly of Heads of States and Governments, Art. 10 on the Executive Council of Foreign Ministers. The Commission of the AU, which is the African Union’s Secretariat, is established under Art. 20 of the Constitutive Act, while the Commission on Refugees was created pursuant to a Resolution under Art. 14 para. 2 of the Act, which provides for the establishment, by the Assembly, of Specialized Technical Committees. Its predecessor was originally established as the “Commission of 10” in 1964 (CM Res. 19 (II)).

Refugee Protection under the 1969 OAU Convention

97

deteriorating terms of trade, collapse of commodity prices as well as the vagaries of climate. […] Despite all the limitations, African Governments and people have continued to make considerable efforts in providing both material and financial assistance to refugees in Africa, especially in the form of social services including education, health, transportation, water, as well as infrastructure development. But while such services involving provision of basic refugee needs require medium to long term planning, the emergence of what may be described as donor fatigue syndrome coupled with declining political will on the part of some of the traditional donors has resulted in the tendency of funding life saving and life sustaining activities to the detriment of medium and long term development projects.26

By 1994, economic and political conditions had not changed much on the continent – in spite of major gains such as the end of apartheid, which led to repatriation of South African refugees, overall the refugee figure had grown from 5 million in 1990 to 7 million in 1994. New massive refugee outflows were associated with the growth of political intolerance, massive violation and abuses of human rights, social and economic strife and bad governance, which led to more conflicts, increasingly along ethnic lines.27 The 1994 OAU/UNHCR Symposium observed that the institution of asylum in Africa was under tremendous stress. It stated thus: The large number of refugees seeking asylum in countries already themselves experiencing tremendous social and economic hardships, has brought into question the very capacity of nations to cope with refugees. In a number of countries, the basic principles of refugee protection are not being upheld. Refugees have been arrested and detained without charge. Others have been returned against their will to places where their lives may be in danger. Yet others have been restricted to refugee camps or to remote, inaccessible locations where they are sometimes exposed to banditry, rape and other forms of criminality. Many have not been able to enjoy social, economic and civil rights.28

The situation in the decade after 1994 was very much characterized by both new refugee outflows and voluntary repatriation, which also reflected the incidence of new conflicts and the peace agreements to old conflicts. The OAU/AU con26

Khartoum Declaration (note 4), paras. 1, 3 and 4; the Addis Ababa Document (note 2), para. 15, underscores the principles of international cooperation and burden sharing in addressing refugee problems and recognizes the material contribution of African countries at a time of international “donor fatigue.” 27 The Addis Ababa Document emphasizes in detail the various factors which constitute root causes of the refugee problem in Africa. They include social, economic and political factors, internal as well as external factors: Id., para. 8–9. 28 Id., para. 13.

98

Bahame Tom Mukirya Nyanduga

tinued to be seized of the problems at various fora and through different mechanisms. Cooperation with the UNHCR remained a key aspect of implementation of the objectives of the OAU Convention. The establishment of the UNHCR Regional Liaison Office in Addis Ababa, Ethiopia and of country offices in many African countries helps provide the physical protection mechanism for refugees in Africa. A UNHCR analysis of refugee trends between 1993 and 2002 in Africa is very illustrative: During the period 1993–2002, an estimated 8.1 million refugees returned to their country of origin in Africa, more than half (56%) of the 14.3 million refugees who repatriated world-wide. […] In Africa, most of the refugees returned to countries located in Central Africa and [the] Great Lakes (3.6 million) as well as in southern Africa (1.6 million) during the period 1993–1997. During 1998–2002, however, Western Africa was the main focus of voluntary repatriation in Africa with twice as many refugees returning compared to the previous five year period. In 1987–2002, Western Africa accounted for almost half (47%) of all African refugee returns. […] During the period under review, durable solutions exceeded new refugee situations in Africa. Whereas 8.1 million refugees returned home, an estimated 6.0 million refugees became newly displaced. In seven of the 10 years under review, voluntary repatriation movements exceeded the number of refugees who became displaced. The number of African refugees who fled their countries fell from 4.2 million during the period 1993–1997 to 1.8 million refugees in 1988–2002. […] The effects of the above developments on refugee population in Africa have largely been positive. In 2001 and 2002, the region hosted an estimated 3.1 million refugees, less than half the number it hosted in 1993–1994 (over 6 million). However, the stagnation of implementing further durable solutions for refugees in African recent years is evidenced by the stabilization of the refugee population at around 3.0 million since 1997 [...].29

The UNHCR, within its overall framework of refugee protection, adopted the 2002 Agenda for Protection, otherwise known as the “Convention Plus” approach, under which a “Programme of Action” has been adopted to strengthen international cooperation. The Agenda for Protection recognizes the role of countries of origin, host countries, civil society organizations and refugees themselves in sustainable refugee protection. In the Declaration of State Parties on the occasion of the 50th anniversary of the 1951 UN Convention, the State Parties

29 UNHCR, Voluntary Repatriation in Africa: Levels and Trends 1993–2002, 4 March 2004, paras. 1, 2, 6 and 8, available at: http://www.unhcr.ch/cgi-bin/texis/vtx/home/ opendoc.pdf?tbl=SPECIAL&page=events&id=404886df4.

Refugee Protection under the 1969 OAU Convention

99

[r]ecognize that prevention is the best way to avoid refugee situations and emphasize that the ultimate goal of international protection is to achieve a durable solution for refugees, consistent with the principles of non-refoulement, and notably voluntary repatriation and, where appropriate and feasible, local integration and resettlement, while recognizing that voluntary repatriation in conditions of safety and dignity remains the preferred solution for refugees.30

The OAU/AU recognized that the violation of refugee rights was a major human rights problem. The refugee problem was increasingly seen not merely as a destabilization and subversion concern, but also recognized to constitute a major drain of scarce resources and an impediment to development. The first OAU Ministerial Conference on Human Rights in Africa, held in Grand Bay, Mauritius in 1999, stated in a wide-ranging declaration on human rights issues that there was a need to adopt a multifaceted approach to the task of eliminating the causes of humans rights violations in Africa. While welcoming the improvements which have taken place in addressing the refugee problem, the conference believes that the high number of refugees, displaced persons and returnees in Africa constitutes an impediment to development. It recognizes the link between human rights violations and population displacement and calls for redoubled and concerted efforts by States and the OAU to address the problem.31

A similar meeting in May 2003 in Kigali, Rwanda under the newly established AU reiterated the Grand Bay Declaration and Plan of Action. The Kigali Declaration stated further the AU ministers’ satisfaction with the on-going efforts to address the plight of refugee, asylum seekers, and displaced persons, and called upon member States to recognize forced displacement as a grave violation of human rights to peace, security, and dignity, and to take necessary measures to address the problem. The Kigali Declaration goes on further to call upon “all Member States to implement all the relevant international and African instruments relating to the protection of refugees, internally displaced persons and returnees, and in particular to discharge their obligation under the AU Convention Governing the Specific Aspects of Refugee Problems in Africa.”32 30

UNHCR, Agenda for Protection, UN Doc. A/AC.96/965/Add.1 (2002). Grand Bay (Mauritius) Declaration and Plan of Action, OAU Doc. CONF/HRA/ Dec.1 (1999), para. 8–9, reprinted in: Heyns (note 2), 377–380. 32 First AU Ministerial Meeting on Human Rights, Kigali Declaration, 8 May 2003, AU Doc. MIN/CONF/HRA/Decl. 1(II), paras. 11–12, available at: http://www.achpr. org/english/_info/index_declarations_en.html. This meeting was a sequel to the Grand Bay meeting, after the AU had replaced the OAU as the continental political organization. 31

100

Bahame Tom Mukirya Nyanduga

A major deficit in Africa’s achievements with regard to refugee protection is in the scope of development of national legislation incorporating international principles. This observation was recently glaringly made at a Conference marking “Ten Years After the Rwanda Exodus” held in Kampala, Uganda, in April 2004. The conferences notes the following: In examining the state of refugee protection in the region over the last decade it was clear that there had been a disconnect between the human rights and refugee rights obligations assumed by states and the experiences of refugees on the ground. On the one hand states in the region had agreed to uphold a very strong framework of human rights and refugee protection via a plethora of international and regional treaties. On the other hand, the content of many of these protections had […] been left unincorporated in national laws. Compliance with international standards in practice varied enormously. […] In some cases divergence from the requirements of the African refugee law had been exacerbated by active attempts by states and others to dilute standards. Reference was made, for example, to proposals promoted by states in the region to create ‘safe zones’ in countries of origin designed to facilitate imposed return to countries where safety had not been secured. Such concepts threatened to undermine the basic principles of both refugee and humanitarian law […].33

D. Other Mechanisms of Legal Protection of Refugee Rights in Africa Other refugee protection mechanisms to complement the OAU Convention have been put in place and continue to evolve. Within the African human rights system, the African Charter on Human and Peoples’ Rights34 (African Charter) complements the legal principles concerning the right to asylum and has established an institutional mechanism, the African Commission on Human and Peoples’ Rights, for the promotion and protection of human rights generally, and refugee rights as well. Article 12 of the African Charter accords every individual in a member State the right to freedom of movement and residence, and, “the right to leave any country including his own, and to return to his country.” This right may only be restricted by laws for the protection of national security, law and order, public health, or morality. 33

Human Rights First, Ten Years After the Rwanda Exodus, Assessing Refugee Protection in the Great Lakes, 8–9, available at: http://www.humanrightsfirst.org/refugees/ reports/Ten-Yrs-After-Exodus%20(2).pdf. 34 African Charter on Human and Peoples’ Rights, 27 June 1981, OAU Doc. CAB/ LEG/67/3/Rev. 5, reprinted in: Heyns (note 2), 134–143.

Refugee Protection under the 1969 OAU Convention

101

Article 12 para. 3 of the African Charter states that “[e]very individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions.” The importance of this Article to the protection of refugee rights in Africa is that a refugee whose rights are violated by a member State, either country of origin and host State, can have recourse to the African Commission on Human and Peoples’ Rights under the individual communications procedure, subject to the satisfaction of the Commissions’ rules of procedure.35 In the exercise of its promotional mandate, the African Commission, through its various mechanisms, has the power to investigate any human rights situation in Africa, including refugee situations, and to make recommendations to the Assembly of Heads of State and Government of the African Union.36 The African Commission has also appointed a special rapporteur on refugees, internally displaced and asylum seekers in Africa, whose terms of reference include studying and investigating refugee related problems, making recommendations, and reporting to the Commission for its further action.37 The African Commission also requires member States, when submitting State reports under Article 62 of the Charter, be it as host country or a country of origin, to indicate how they have adhered to Article 12 of the African Charter as well as other relevant international conventions on refugee law. The African Commission on Human and Peoples’ Rights and the UNHCR concluded a Memorandum of Understanding38 which provides a framework for cooperation between the two organizations for the enhancement of the promotion and protection of refugee rights in Africa. The Memorandum identifies several areas of cooperation on, inter alia, the exchange of information relating to the human rights of refugees, asylum seekers, returnees, and other persons of concern; the promotion of dissemination and awareness of international refugee and humanitarian law; conducting joint research and publications, including 35

Id., Arts. 55 and 56. See id., Arts. 46 and 58 para. 1. 37 African Commission on Human and Peoples’ Rights, Resolution on the Terms of Reference of the Special Rapporteur on Refugees, Internally Displaced Persons and Asylum Seekers in Africa, in: Eighteenth Activity Report of the African Commission on Human and Peoples’ Rights (forthcoming). 38 Memorandum of Understanding between the African Commission on Human and Peoples’ Rights and the United Nations High Commissioner for Refugees, 26 May 2003, available at: http://www.africa-union.org/Structure_of_the_Commission/Political %20Affairs/x/achpr-unhcr%20agreement,%20english.pdf. 36

102

Bahame Tom Mukirya Nyanduga

comparative studies on human rights monitoring bodies in order to identify and promote best practices aimed at enhancing refugee protection in Africa. The parties also agree to support and promote the different mechanisms of the African Commission, such as the State reporting and special rapporteur mechanism, relative to refugee protection. The Memorandum encourages closer cooperation between the African Commission, the UNHCR, and the relevant organs of the AU dealing with refugee policy and matters with a view to fostering the complementarity of their respective mandates. The conclusion of the memorandum was a concrete implementation of one of the actions under the Comprehensive Implementation Plan39 adopted by a joint special OAU/UNHCR meeting of government and NGO technical experts, which met in Conakry, Guinea, in March 2000 to commemorate the 30th Anniversary of the 1969 OAU Convention. This Plan calls on African States to improve refugee protection by adopting various measures for strengthening the Convention. The benefits accruing to refugees under the 1969 OAU Convention, while appreciated at the political level, have not been widely translated into legal terms. We have seen the political realities and the challenges to protection posed by conflicts and the dearth of resources for durable solutions. The development of legal instruments and the adoption of various resolutions have been important in the sustenance of political consciousness about the refugee problem, yet accountability for violation of refugee rights is lacking. Unenforceability of resolutions and decisions of regional political and quasi- judicial bodies remains a major handicap for the legal protection mechanism. The African Commission, as the only quasi-judicial continental body (until such time that the African Court on Human and Peoples’ Rights is established) has been able to entertain complaints concerning violation of refugee rights under its individual communications procedure. The African Commission has, in 1996, rendered its decision in the matter Organisation Mondiale Contre La Torture et al. v. Rwanda, where allegations included the massive expulsion of Burundi refugees by Rwanda, citing violations of, inter alia, Article 12 para. 3. The Commission stated that [t]his provision should be read as including a general protection of all who are subjected to persecution, that they may seek refugee in another State. Article 12.4 pro39

OAU/UNHCR, Comprehensive Implementation Plan, March 2000 (unpublished document on file with the author).

Refugee Protection under the 1969 OAU Convention

103

hibits the arbitrary expulsion of such persons from the country of asylum. The Burundian refugees in this situation were expelled in violation of Article 2 [non-discrimination principle] and 12 of the African Charter.40

The above decision and the continued use of the African Commission as a forum for discussing refugee rights issues is an important protection mechanism for refugees. Various African and international NGOs have used the African Commission as a platform for the expression of refugee rights under its communication procedure and during its interactive public sessions, at which State representatives participate in what the African Commission has described as the ‘constructive dialogue’ approach. There will be an even broader scope for enhanced legal protection of refugee rights with the expected establishment of the African Court on Human and Peoples’ Rights once the merger with the Court of Justice of the AU becomes a reality. The Protocol to the African Charter on the Establishment of an African Court of Human and Peoples’ Rights41 states, in its Article 27 para. 1, the remedies for a violation of a human or peoples’ right, including monetary compensation and reparation. Article 30 states that “the State parties to the present Protocol undertake to comply with the judgement in any case to which they are parties within the time stipulated by the court and to guarantee its execution.” It is hoped that since the Court’s decision will be enforceable, victims of human rights violations in Africa, including refugees, will eventually be able to seek better protection than hitherto offered by the OAU (AU) Convention and other legal instruments. E. Conclusion The adoption of the OAU Convention, while hailed as an important regional human rights protection mechanism, is on the other hand a major indictment 40

Communications 27/89, 46/91, 49/91 and 99/93 (1996), para. 30, available at: http://www1.umn.edu/humanrts/africa/comcases/27-89_46-91_49-91_99-93.html. 41 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, AU Doc. CAB/LEG/ 66.5, reprinted in: Heyns (note 1), 170–174. The Court is a complementary body to the African Commission (Art. 2 of the Protocol). For the Court’s jurisdiction, see Art. 3. According to Arts. 5 para. 3, 34 para. 6 individual communications filed by NGOs can be entertained by the Court if the State concerned has accepted the Court’s jurisdiction for such communications.

104

Bahame Tom Mukirya Nyanduga

against African States in their human rights record. Notwithstanding the progress described above, the scourge of conflicts in Africa remains the major cause of refugee outflow and forced population displacement. We have seen that the OAU Convention recognized the need for refugee protection within a legal framework reflecting the special needs and environment obtaining in Africa. It is acknowledged that while the Convention has provided a legal framework for better protection of refugee rights, its benefits have continuously been eroded by the conflicts which have ravaged many parts of Africa for most of the last fifty years of independence and thirty five years since the adoption of the Convention. The Convention has advanced the progressive development of international law by codifying major principles of refugee law. International cooperation remains the key principle of the Convention and has been a cornerstone in the protection of refugee rights in Africa. The remaining challenges to the protection of refugee rights concern the need to ensure that long-term solutions to the refugee and population displacements problems are addressed urgently, since they constitute violations of fundamental rights of the refugees and the displaced. This requires enhanced cooperation at the national, regional and international level by making resources available and addressing the concerns of the countries of origin, particularly during repatriation and resettlement, and those of host States, particularly on security issues and the sustainability of asylum.

How Many Is Too Many? African and European Legal Responses to Mass Influxes of Refugees By Jean-Francois Durieux* and Agnès Hurwitz** A. Introduction In the history of refugee movements since the inception of the United Nations, large-scale influxes have been the rule rather than the exception. Though emblematic of the cold war era, the trickle of dissidents across the Iron Curtain never represented more than a tiny fraction of the world’s refugee phenomenon. In Africa, independence wars and the fight against apartheid regimes triggered mass displacement that claimed its toll of human suffering.1 Throughout the 1970s and 1980s, the Cold War was fought by proxy, causing mass outflows of populations across porous and at times contested borders.2 More recently, vio*

Head, Convention Plus Unit, United Nations High Commissioner for Refugees (UNHCR) Geneva. ** Associate, International Peace Academy, New York. The views expressed in this article are solely those of the authors and do not represent the official positions of their organizations. We would like to thank Anna Kjaer for her invaluable research assistance in the drafting process. 1 At the beginning of the 1960s, the outbreak of violence that followed the independence of Congo, Rwanda and Burundi led to widespread slaughter and massive displacement. Similarly, refugees fled from Portuguese-administered Angola, Mozambique and Guinea-Bissau to escape the impact of armed struggles for independence; lesser numbers fled the minority-controlled Republic of South Africa, South West Africa (now Namibia) and Rhodesia (now Zimbabwe). UNHCR, The State of the World’s Refugees, Fifty Years of Humanitarian Action, 2000, 44. 2 The war between pro-Soviet Ethiopia and pro-American Somalia resulted in largescale displacement from Ethiopia to Somalia at the end of the 1970s. At the same time, a mass exodus of refugees from Eritrea and other parts of Ethiopia to Sudan took place, partly as a result of the Eritrean armed struggle for self-determination which was forced back by the Ethiopian government, and partly due to the prolonged and bloody revolution following the overthrow of Emperor Haile Selassie, id., 106–107, 110–112.

106

Jean-Francois Durieux and Agnès Hurwitz

lent intra-State confrontations have caused the exodus of millions of refugees from Liberia, Sierra Leone, Sudan, Rwanda, Burundi, the Democratic Republic of Congo and many other African countries. Out of 3,344,000 refugees on the African continent at the end of 2002, one can estimate that over 3,000,000 arrived in their country of asylum – typically, a country neighboring the country of origin – as part of a mass influx.3 Yet, the legal core of the international refugee regime, the 1951 Convention Relating to the Status of Refugees as amended by its 1967 Protocol,4 is an instrument reputed to be essentially individualistic.5 The relevance of this cornerstone of the international regime of refugee protection6 may be questioned if it fails to provide adequate responses to the challenges posed by mass influxes, which are the most common manifestation of contemporary refugee situations in Africa and elsewhere.7 Mass influx is not a term of art, and there is no universally agreed definition of this concept. For the purposes of this discussion, and in accordance with United Nations documents, the essential elements of a mass influx of refugees may be identified as follows: large numbers of people arriving at an international border; rapid rate of arrival; and inadequate absorption or response capacity in host States, in particular the inability of individual asylum procedures to deal with large numbers of claims.8 This last element adds an important qualitative dimension to the definition, making it impossible – and indeed undesirable 3

UNHCR, Statistical Yearbook 2002, 2004, 84–96. Convention Relating to the Status of Refugees, 28 July 1951, UNTS, vol. 189, 137 (1951 Convention or the Convention). Any reference to the 1951 Convention covers the Convention as modified by the Protocol Relating to the Status of Refugees, 31 January 1967, UNTS, vol. 606, 267 (1967 Protocol). 5 “The 1951 Convention was drawn up very much with the individual asylum seeker in mind.” Guy S. Goodwin-Gill, The Refugee in International Law, 2nd ed. 1996, 196. 6 “Delegations affirmed their continuing and strong support for the 1951 Convention as the cornerstone and foundation of international refugee protection.” Report of the Ministerial meeting of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN Doc. HCR/MMSP/2001/10, para. 11. 7 This article focuses on Africa and Europe. However, mass influxes have taken place also in Asia and in Latin America; see UNHCR (note 1). 8 UNHCR, Executive Committee, Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations, Conclusion No. 100 (LV), 2004, para. (a). See also UNHCR Global Consultations, Protection of Refugees in Mass Influx Situations: Overall Protection Framework, UN Doc. EC/GC/01/4 (2001), reprinted in: Refugee Survey Quarterly (RSQ), vol. 22, 2003, 55. 4

African and European Legal Responses to Mass Influxes of Refugees

107

– to establish in precise quantitative terms how large, or sudden, a refugee flow must be in order to be characterized as a ‘mass influx.’ What is certain is that this working definition conveys the unwelcome pressure on the policy and material resources that States devote to the fulfillment of their international obligations towards refugees. Regional organizations have adopted legal arrangements to address these challenges. This article will review and compare two of these legal instruments. The first one is a body of law and practice centered on a remarkable piece of African regional law, namely the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa,9 to which all but seven African States are parties.10 The second one is a much more recent instrument of European Communities (EC) law, namely the 2001 Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, which was adopted after a decade of European State practice on temporary protection.11 Refugee law scholarship has not focused thus far on a systematic comparison of European and African law and practice. Regional initiatives are meant to respond to regional problems, and refugee policy-makers in Africa are as keen as their European counterparts to stress the specificity – i.e., implicitly, the uniquely burdensome character – of their own refugee problem. Yet comparison and cross-fertilization should be encouraged for two reasons. Firstly, an examination of the compatibility of regional approaches with the universal regime is relevant to the affirmation or re-affirmation of the latter.12 Secondly, the notion 9

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the Assembly of Heads of State and Government at Addis Ababa on 10 September 1969, UNTS, vol. 1001, 45 (OAU Convention). 10 Djibouti, Eritrea, Madagascar, Mauritius, Namibia, São Tomé and Príncipe and Somalia are not parties to the OAU Convention. 11 Council Directive on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member State in Receiving Such Persons and Bearing the Consequences Thereof, EC Directive 2001/55 of 20 July 2001, O.J. 2001 L 212/12 (Temporary Protection Directive or 2001 Directive). 12 Declaration of States Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 12–13 December 2001, UN Doc. HCR/MMSP/2001/09.

108

Jean-Francois Durieux and Agnès Hurwitz

that African refugees are different must be resisted because it is not factually correct. Mass refugee movements are neither new nor exclusive to specific regions. Instead, they have been “an enduring and global issue throughout the twentieth century.”13 There are, according to the same source, “remarkable similarities between the refugee movements of inter-war Europe and those taking place in the developing world since 1945 and in former Communist countries since the collapse of the Soviet Union.”14 As noted by Chimni, the causes of displacement in Africa are no different than in other parts of the world, and “treating the broader definition of refugee contained in the OAU Convention as proof that refugee flows in the Third World are different is absurd.”15 The paper’s main findings will highlight the significance of regional approaches to refugee protection in mass influx situations and their contribution to the emergence and enhancement of universal standards, in particular with regard to the scope of international protection, and the principle of voluntary repatriation. After examining the tensions and gaps existing in the international refugee law regime as it relates to mass influx situations, the article will proceed with an analysis of legal responses to mass influxes in Africa and in Europe. The problems that characterize mass influx situations will be analyzed through three distinct sets of issues: I.

Qualification: Who is a refugee? Who is excluded from protection? What are the procedural standards applicable in situations of mass influx?

II. Standards of treatment: What are the rights and duties of refugees? What are the basic standards of treatment that are applicable in situations of mass influx? III. Termination and durable solutions: How and when does protection end? What are the available durable solutions to refugee problems in cases of mass influx?

13

Claudena Skran, Refugees in Inter-War Europe, 1995, 4–5, cited by Bhupinder S. Chimni, The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies (JRS), vol. 11, 1998, 350, 357. 14 Id. 15 Id., 359.

African and European Legal Responses to Mass Influxes of Refugees

109

B. Tensions in the Universal Regime I. Qualification

Article 1 A para. 2 of the 1951 Convention defines a refugee as a person who as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.16

In contrast with the definitions provided by the instruments adopted under the auspices of the League of Nations,17 the refugee under the United Nations system is defined by the combination of a number of factors, which are of general application. The existence of this combination of factors must, on the other hand, “normally be determined on an individual basis,”18 as “an applicant for 16

1951 Convention, Art. 1 A para. 2. See the Arrangement with regard to the issue of Certificates of Identity to Russian Refugees of 5 July 1922, LNTS, vol. 13, No. 355, 237; Plan for the Issue of a Certificate of Identity to Armenian Refugees of 31 May 1924, LN Doc. C.L.72(a) (1924); Arrangement Relating to the Issue of Identity Certificates to Russian and Armenian Refugees of 12 May 1926, LNTS, vol. 89, No. 2004, 47; Arrangement concerning the Extension to Other Categories of Refugees of Certain Measures Taken in Favor of Russian and Armenian Refugees of 30 June 1928, LNTS, vol. 89, no. 2006, 63, which extended international legal protection to Assyrians, Assyro-Chaldeans, and Turks ‘Friends of the Allies;’ Plan for the Issue of a Certificate of Identity to Refugees from the Saar of 24 May 1935, LN Official Journal 1935, No. 5393, 633; Provisional Arrangement concerning the Status of Refugees Coming from Germany of 4 July 1936, LNTS, vol. 175, no. 3952, 75; Convention concerning the Status of Refugees Coming from Germany of 10 February 1938, LNTS, vol. 138, no. 4461, 59; Council Resolution on Refugees from Sudetenland of 17 January 1939, LN Official Journal, vol. 20, 73; Additional Protocol to the Provisional Arrangement and to the Convention concerning the Status of Refugees Coming from Germany of 14 September 1939, LNTS, vol. 198, no. 4634, 141; for an overview of these historical developments see James Hathaway, The Evolution of Refugee Status in International Law: 1920–1950, International and Comparative Law Quarterly, vol. 33, 1984, 348, 350–357; for a description of the specific rights granted see Atle Grahl-Madsen, The Emergent International Law Relating to Refugees, in: Institute of Public International Law and International Relations of Thessaloniki (ed.), The Refugee Problem on Universal, Regional and National Level, 1987, 163, 178. 18 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, re-edited ver. 1992, 13, para. 44 (UNHCR Handbook). 17

110

Jean-Francois Durieux and Agnès Hurwitz

refugee status must normally show good reason why he individually fears persecution.”19 It is established doctrine that an individual is a refugee as soon as he crosses the frontier of his country of origin, provided that he meets the other criteria laid down in Article 1 A of the 1951 Convention. The process whereby a person is determined to be a refugee is thus regarded as declarative, rather than constitutive.20 In practice, however, a qualification process is required,21 and given the complex combination of factors in the definition, it is never a simple one. Over five decades since its adoption, by far the largest body of case law and specialized literature on the Convention has revolved around its first article. The Convention provides no guidance regarding procedural or evidentiary standards applicable to refugee status determination procedures. As a result, these procedures vary greatly among States Parties to the Convention, as standards of due process and rules of evidence are chiefly governed by domestic law. Since the process is about determining an ‘individualized’ fear of persecution, refugee status determination procedures normally involve individual interviews and/or non-adversarial hearings, and much weight is attached to the personal credibility of the claimant.22 The 1951 Convention does not only provide the necessary elements to qualify a person positively as a refugee. It also stipulates who is not to benefit from its provisions, through the so-called exclusion clauses of Article 1 D, E and F. We will cite only the last, which is the most relevant to our discussion: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

19

Id., 13, para. 45. Id., 9, para. 28. 21 During the course of this process the claimant is generally called an asylum seeker – a term which does not prejudge the outcome of the qualification process but nonetheless entails some form of protection, notably against forced return to the country of origin – since the asylum seeker may well be a refugee. 22 UNHCR Handbook (note 18), 12, paras. 41, 47–49, paras. 195–205. 20

African and European Legal Responses to Mass Influxes of Refugees

111

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.23

Provisions of this type must be applied restrictively, and their application obviously requires an in-depth examination of the individual case at hand. Large-scale influxes of persons seeking asylum present an obvious challenge to qualification procedures that are geared towards a detailed examination of the merits of each and every individual claim. As the regional examples that are the subject of this article will show, this pressure on asylum procedures may result in questioning the nature of mass outflows. The question of whether all members of a large group of people arriving suddenly at the border are refugees, has indeed both an important practical dimension and a deeper conceptual significance. II. Standards of Protection

As its title suggests, the bulk of 1951 Convention provisions deal with the ‘status’ of refugees, i.e. the range of rights and obligations that flow from refugee recognition. In this respect, the Convention is undoubtedly a human rights treaty. Two types of protection are stipulated therein. Some are very specific to refugees and take account of their peculiar circumstances: This is clearly the case of Article 33, which posits the principle of non-refoulement,24 but also of Article 31, pursuant to which refugees shall not be penalized for their illegal entry or presence, provided that they show good cause to the authorities of the receiving State in a timely manner. The second type of protections apply to a wide range of civil, social and economic rights, not because they are unique or specific to refugees, but because refugees, as a category of lawfully admitted aliens, must be guaranteed within their host society freedom, security and dignity. The logic of the Convention is to provide refugees with rights and obligations as close as possible to that available to citizens of the host State, with naturalization as a recommended outcome. The Convention’s language is, however, not entirely straightforward. It lays down an incremental approach to the enjoyment of rights, with non-derogable rights granted to all refugees, while 23

1951 Convention (note 4), Art. 1 F. 1951 Convention (note 4), Art. 33 para. 1: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 24

112

Jean-Francois Durieux and Agnès Hurwitz

other provisions only apply to refugees within the country, then to those “lawfully in” the country, and finally to refugees “lawfully staying” in the country.25 These phrases can be interpreted as describing different levels of attachment between the refugee and the host country; however, it is not immediately clear how refugees’ attachment to the host society grows, in particular, whether the passing of time is a necessary and/or sufficient factor. It seems therefore that States retain a measure of discretion in the granting of social and economic rights. For the purposes of the present analysis, it will be assumed that the fundamental protection against refoulement fully applies in situations of mass influx.26 What then of the ‘status’ of refugees arriving in large numbers, once admission to territory is granted? The logic of the Convention provides a standard theoretical answer: since refugees cannot be returned, they must be given a chance to start a new life and to be integrated into a new community. Not surprisingly, though, experience has shown that numbers erode this welcoming attitude. Suddenly, the basic standards of the Convention appear terribly expansive and generous. “More refugees, less asylum”27 is increasingly presented as an inescapable equation. “How many is too many?” is an elusive question. In practice, there seem to be many complex factors at play: Public sympathy for Bosnian refugees in Western Europe, for instance, was high, yet the almost immediate reaction of Western governments was to protect their societies against potentially “overwhelming” numbers. What is truly worrying and potentially threatening is that the question of standards of treatment increasingly contaminates the refugee definition itself. Knowing or fearing that it will not be possible to treat so many people according to Convention standards, States are tempted to question the refugee nature of the influx, in order not to be bound by an instrument which does not seem to be adapted to situations of mass influx.

25

Arts. 18 (self-employment), 32 (expulsion) and 26 (freedom of movement) apply to refugees whose presence is lawful. Lawful residence, described by the term “lawfully staying,” gives rise to the enjoyment of such rights as association, gainful employment, social security and labor protection and the right to apply for travel documents. 26 See, however, United Nations Declaration on Territorial Asylum, GA Res. 2312 (XXII) of 14 December 1967, Art. 3 para. 2. 27 Adam Roberts, More Refugees, Less Asylum: A Regime in Transformation, JRS, vol. 11, 1998, 375.

African and European Legal Responses to Mass Influxes of Refugees

113

III. Termination

The 1951 Convention also provides for the circumstances in which refugee status shall terminate. The rationale of the six ‘cessation clauses’ in the Convention is that international protection should cease whenever it is no longer necessary or justified. These clauses, contained in Article 1 C, are divided into two sets of provisions: those reflecting a change in the situation of refugees brought about by themselves; and those pertaining to changed circumstances in the country of origin. Two of the cessation clauses – one in each of the above mentioned sets – are particularly relevant. According to Article 1 C para. 4, the Convention shall cease to apply to any refugee who “has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution.” As noted by Kourula, “re-establishment in the country of origin and re-availment of national protection are the most relevant cessation clauses in the post-Cold War refugee situations.”28 They form an essential element of contemporary refugee policy, which tends to regard voluntary repatriation as the preferred durable solution to such problems.29 While voluntary repatriation is not mentioned as such in the 1951 Convention, UNHCR has a special responsibility under its Statute to seek “permanent solutions for the problem of refugees,” inter alia by facilitating “the voluntary repatriation of such refugees.”30 Article 1 C para. 5 of the 1951 Convention, on the other hand, shifts the emphasis from the voluntary decision of the refugee towards an objective assessment of changed circumstances in the country of origin: C. This Convention shall cease to apply to any person falling under the terms of section A if: […]

28

Pirkko Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited, 1997, 119. 29 See, inter alia, the Report of the Fifty-fifth Session of the Executive Committee of the High Commissioner’s Programme, UN Doc. A/AC.96/1003 (2004), 11, 18; GA Res. 57/187 of 6 February 2003, 3; and the OAU statement quoted in: Michael Barutciski, Involuntary Repatriation When Refugee Protection is no Longer Necessary: Moving Forwards After the 48th Session of the Executive Committee, International Journal of Refugee Law (IJRL), vol. 10, 1998, 249, fn. 53. 30 Statute of the Office of the United Nations High Commissioner for Refugees, GA Res. 428 (V) of 14 December 1950, Art. 1.

114

Jean-Francois Durieux and Agnès Hurwitz

(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.31

In practice, States rarely invoke cessation on account of changed circumstances individually, and prefer to act collectively, generally following UNHCR’s advice, in declaring an entire refugee situation terminated. Such instances of group cessation are themselves few and far apart,32 as UNHCR insists that the changes in the country of origin must be fundamental, stable and durable.33 These strict requirements are a source of frustration for States. As a result, they tend to take the legal and policy battle to a seemingly more open field, namely the doctrine of voluntary repatriation. It is the latter which has come under increasing scrutiny, particularly where States are faced with large refugee populations whom they are unable and/or unwilling to integrate.34 The dilemmas that exist with regard to standards of treatment in mass influx situations are even more apparent at the level of termination or solutions. Faced with large-scale influxes, States seek to restrict not only the contents of protec31

1951 Convention (note 4), Art. 1 C para. 5. In 1997, a UNHCR list counted fifteen instances of formal cessation in the last twenty years. Note on the Cessation Clauses, UN Doc. EC/47/SC/CRP.30 (1997). Since then, four new instances have ben recorded, namely with respect to Bulgaria, Romania 1997 (UNHCR/IOM/71/97, UNHCR/FOM/78/97), Ethiopia 1999 (UNHCR/IOM/91/99, UNHCR/FOM/91/99), and Eritrea 2002 (UNHCR/IOM/17/2002, UNHCR/FOM/16/2002). 33 Guidelines on International Protection No. 3: Cessation of Refugee Status Under Art. 1 C paras. 5 and 6 of the 1951 Convention Relating to the Status of Refugees, UN Doc. HCR/GIP/03/03 (2003), 25, para. 8 (the “Ceased Circumstances” Clauses). UNHCR’s Executive Committee had already advised in 1992 that “States must carefully assess the fundamental character of the changes in the country of nationality or origin, including the general human rights situation, as well as the particular cause of fear of persecution, in order to make sure in an objective and verifiable way that the situation which justified the granting of refugee status had ceased to exist,” Conclusion on Cessation of Status, Conclusion No. 69 (XLIII), 1992, para. (a). 34 The dilemma created by refugees’ reluctance to return home even when conditions in the home country are conducive to return has been presented as “pos[ing] a threat to the support for the institution of asylum.” US Statement to the 48th session of UNHCR’s Executive Committee, 13 October 1997, UN Doc. A.AC.96/SR.516 (1997), para. 48, cited by Barutciski (note 29), 248, footnote 48. 32

African and European Legal Responses to Mass Influxes of Refugees

115

tion, but also its duration. They may make questionable assumptions about the expected duration of the need for international protection, when they are actually concerned about their capacity to provide sufficient levels of protection over protracted periods. C. African Refugee Law and Practice The elaboration of the 1969 OAU Convention began in 1964, under the auspices of the OAU. The need for an African Refugee Convention was felt because of the very large number of refugees present in Africa and because these refugees were not covered under the 1951 Convention due to the temporal limitation contained therein, which was repelled by the 1967 Protocol.35 The attitude of African governments regarding the proposed African Refugee Convention changed after the adoption of the 1967 Protocol, the new prevailing view being that this convention should be a complement to the universal normative framework and deal with the specificity of the refugee problem in Africa, which was not adequately covered by the 1951 Convention.36 These specific aspects of the African refugee problem were, on the one hand, connected to the struggle against colonialism and apartheid, and, on the other, to the potentially devastating effect of subversive activities by refugees on relations between newly independent African States. According to Jackson, “the legislative history of the OAU Convention indicates that the question of the refugee definition as such was apparently not considered to be a matter of major concern,”37 even though it is for its broadening of the refugee definition that the OAU Convention is most often quoted. The OAU Convention also introduced a number of significant additions to he existing body of international refugee law, including an unqualified nonrefoulement provision (Article 2 para. 3), an affirmation of the principle of voluntary repatriation (Article 5), an explicit burden-sharing principle in cases of 35

The original wording of Art. 1 A para. 2 of the 1951 Convention, defining the term ‘refugee,’ starts with the phrase “As a result of events occurring before 1 January 1951.” Pursuant to Art. 1 para. 2 of the Protocol, “the term ‘refugee’ shall […] mean any person within the definition of Art. 1 of the Convention as if the words ‘as a result of events occurring before 1 January 1951’ […] were omitted.” 36 Ivor C. Jackson, The Refugee Concept in Group Situations, 1999, 180. 37 Id., 191.

116

Jean-Francois Durieux and Agnès Hurwitz

mass influx (Article 2 para. 4), and several provisions attending to the security concerns of both countries of asylum and of origin.38 I. Qualification

Article 1 of the OAU Convention reproduces the refugee definition contained in the 1951 Convention, but also adds a new set of criteria: The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.39

It is often argued that the OAU Convention was specifically designed to address situations of mass influxes. Arboleda contends that “the OAU Convention marked the beginning of a refugee protection system which directly addressed the causes of mass refugee influxes, by emphasizing objective conditions in the country of origin.”40 This statement deserves further scrutiny. There is no question that “objective conditions in the country of origin” are at the heart of the OAU Convention definition of a refugee. Such conditions include external aggression, occupation, foreign domination or events seriously disturbing public order. However, this does not mean that such objective circumstances necessarily entail large-scale displacement, or that persecution on 1951 Convention grounds, such as religious or ethnic persecution, does not trigger equally large movements of refugees.41 While it is true that the second part of the OAU definition includes elements that “could arguably be easier” to ap-

38

UNHCR (note 1), 57. OAU Convention (note 9), Art. 1 para. 2. 40 Eduardo Arboleda, Refugee Definition in Africa and Latin America: The Lessons of Pragmatism, IJRL, vol. 3, 1991, 185, 189. Long before Arboleda, Paul Weis had written: “Most of the refugee movements in Africa have been mass movements and in such cases it would be difficult to apply the subjective test [of fear of persecution] requiring individual screening.” Paul Weis, The Convention of the Organization of African Unity Governing the Specific Aspects of Refugee Problems in Africa, Human Rights Journal, 1970, cited by Jackson (note 36), 177. 41 On the latter, see in general Jackson (note 36). 39

African and European Legal Responses to Mass Influxes of Refugees

117

ply in large-scale influx situations42 than those imported from the 1951 Convention, it would be inappropriate to infer from this practical reality any sort of legal intent. Aside from the legislative history, a strict reading of the OAU Convention makes such intent wholly unlikely, since Article 1 defines “a refugee” – in the singular – as “every person who” either has a well-founded fear of persecution on account of specific characteristics, or is compelled to leave her country as a result of specified circumstances. It has also been noted that the common misperception that the OAU Convention covers essentially mass influx situations may be deliberate. It is closely linked to the argument in favor of a narrowly individualistic application of the 1951 Convention definition, which has left many victims of man-made disasters unprotected outside the African continent.43 Jackson has convincingly argued that either ‘limb’ of the OAU Convention definition can be applied to refugees arriving en masse.44 Besides, the two limbs should be read in conjunction, not in opposition: Whenever masses of people cross an international frontier in search of protection, it is likely that some in the group will be refugees within the meaning of the first limb – i.e. they will have a well-founded fear of being persecuted –, while others will be fleeing a general state of violence. The OAU Convention acknowledges that both categories are in equal need of international protection, and it is in this respect that its broad definition is most helpful to the objective of refugee protection in mass influx situations, the causes of which are often complex. The question of how to apply this definition – in other words, how to determine refugee status where protection seekers cross an international border in large numbers – is more complicated. There is nothing in the OAU Convention to warrant the statement that a “preferable practice of group eligibility [is] provided for under” this instrument.45 At the same time, the expanded refugee defi42

George Okoth-Obbo, Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of the Refugee Problems in Africa, RSQ, vol. 20, 2001, 79, 120. 43 Jean-François Durieux/Jane McAdam, Non-Refoulement Through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies, IJRL, vol. 16, 2004, 4, 10. 44 Jackson (note 36), 193. 45 Lawyers Committee for Human Rights, African Exodus: Refugee Crisis, Human Rights and the 1969 OAU Convention, 1995, 22. Like the 1951 Convention, the OAU Convention is silent on qualification procedures, but it provides that “the Contracting State of asylum shall determine whether an applicant is a refugee” (Art. 1 para. 6). Jackson

118

Jean-Francois Durieux and Agnès Hurwitz

nition contained in Article 1 of the OAU Convention has been applied to large groups of refugees since the Convention’s entry into force. This was done through “one of the main mechanisms that has been devised for responding to large-scale influxes,”46 namely, group determination of status on a prima facie basis. This is a matter of fact, which does not in any way invalidate OkothObbo’s critical observation that the OAU Convention itself is “neither the source nor the authority for either ‘prima facie’ or ‘group determination’ of refugee status.”47 The same author emphasizes that, although they are often used interchangeably, group determination of status and prima facie recognition are actually two distinct and different concepts.48 UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees reads: While refugee status must normally be determined on an individual basis, situations have also arisen in which entire groups have been under circumstances indicating that members of the group could be considered individually as refugees. In such situations, the need to provide assistance is extremely urgent and it may not be possible for purely practical reasons to carry out an individual determination of refugee status for each member of the group. Recourse has therefore been had to the so-called ‘group determination’ of refugee status, whereby each member of the group is regarded prima facie (i.e. in the absence of evidence to the contrary) as a refugee.49

According to this statement, which is largely regarded as authoritative on the matter, while the circumstances which lead to mass displacement indicate that an entire group is at risk, it is not the refugee quality of refugees of the entire group that is determined, but that of each individual in the group. Groups do not accrue refugee status, be it prima facie or by other means. Only individuals do. Where States are faced with a large-scale influx, the notion of group intervenes at two levels: First, the “group” is the asylum seeking caseload, the size refers to a 1966 draft of the OAU Convention, which indeed contained an explicit reference to the possibility of applying the Convention prima facie to persons belonging to specific groups. This provision was omitted in subsequent drafts, Jackson (note 36), 184. 46 Bonaventure Rutinwa, Prima Facie Status and Refugee Protection, UNHCR New Issues in Refugee Research, Working Paper No. 69, 2002, 1. 47 Okoth-Obbo (note 42), 120. 48 Id., 118–120. “It is in the historical origins of the prima [sic] concept and the circumstances of its use in that context that its equation to group refugee status resides. However […] this similation is incorrect.” 49 UNHCR Handbook (note 18), 13, para. 44.

African and European Legal Responses to Mass Influxes of Refugees

119

of which makes it impractical to resort to individual refugee status determination. Secondly, some characteristics of the group may be retained to trigger the operation of a special rule of evidence, within a procedure which is called prima facie determination. Okoth-Obbo is right to observe that group and prima facie determination are not legally coterminous with each other.50 The legally correct interpretation in UNHCR’s Handbook is that prima facie is not a specific procedure, but a specific rule of evidence within a procedure of refugee status determination. In view of the circumstances prevailing in the country of origin of the asylum seekers, and of some recognizable common attributes of the same, all members of the group are presumed to be in need of international protection. Thus, some characteristics of “the group” are an integral part of the operation of this presumption. If it is well-known, for instance, that a particular ethnic group is being persecuted, or severely discriminated in the country from which the asylum seekers proceed, a presumption of refugeehood may be applied to the entire caseload if this caseload is composed entirely and exclusively of members of that particular ethnic group. In the analysis above, the emphasis is placed on objective circumstances that are sufficiently well-known to rule out any attempt at verifying them through individual interviews and status determination. UNHCR’s Handbook, however, places equal emphasis on the fact that “it may not be possible for purely practical reasons” for the country of refuge to carry out an individual determination. Theoretically, recourse to a presumption could be had either because there is no need, or because it is impossible to apply the regular procedure and its rules of evidence. There is, however, a serious risk of mistaken qualification where the test of ‘practical impossibility’ takes precedence over the test related to the characteristics of the group. Okoth-Obbo uses the tragic precedent of the Great Lakes refugee crisis51 to highlight this point: 50

Okoth-Obbo (note 42), 120. Reference is made to the influx of asylum seekers from Rwanda into [then] Zaire and Tanzania in the aftermath of the 1994 genocide. On the qualification and protection dilemmas involved, see UNHCR, The State of the World’s Refugees: A Humanitarian Agenda, 1997, 20; Jeff Crisp/Elizabeth Tan, The Refugee Crisis in the Great Lakes region of Africa, RSQ, vol. 17, 1998, vi–xii; Bonaventure Rutinwa, The Tanzanian Government’s Response to the Rwandan Emergency, JRS, vol. 9, 1996, 295 et seq.; UN Economic and Social Council, Report of the UN High Commissioner for Refugees, UN Doc. E/1997/17; Amnesty International, Democratic Republic of the Congo – Great Lakes Region: Still in Need of Protection: Repatriation, Refoulement and the Safety of Refugees and the Internally Displaced, AI Index AFR/02/07/97, available at: http://web. amnesty.org/library/pdf/AFR020071997ENGLISH/. 51

120

Jean-Francois Durieux and Agnès Hurwitz

It has been argued that conditions for carrying out any kind of status determination procedure did not exist in that crisis. Indeed, the operational difficulties and challenges of this crisis are impossible to diminish. However, the legal aspect of this question […] is different from the empirical constraint. […] While, clearly, there were refugee elements in the exodus, […] there was also clear evidence that not all the group was made up of refugees, in fact it included persons who were excludable.52

In sum, the presumption of refugeehood based on membership in a group works best – and possibly only – where there is both a compelling set of circumstances in the country of refuge and a conducive set of prima facie refugee characteristics, related to objective circumstances in the country of origin, that are shared by all members of the group. Okoth-Obbo’s analysis is, however, problematic where, after admitting that “the prima facie mechanism was unavoidably reached for,” he argues that “the task of essentially and conclusively determining refugee status as such […] still remained outstanding, as indeed it is in every case, individual or group, where this approach is employed.”53 As noted above, it is not always wise to resort to the prima facie rule of evidence, and surely the size of the influx is not per se a sufficient justification to invoke it. However, once it is resorted to, its legal consequences cannot be simply wished away. To say that “refugee status granted on a prima facie basis remains presumptive” – meaning, in Okoth-Obbo’s mind, non-conclusive and provisional54 – is to actually ignore the meaning and scope of the presumption as a means of evidence. Rutinwa notes that the principal use of the concept of prima facie in the law of evidence is for the allocation of burden of proof, and that this allocation does not affect the outcome of the evidentiary process, which is “to establish a fact unless rebutted by acceptable evidence to the contrary.”55 Prima facie recognition is “presumptive but conclusive”56 – in other words, the operation of the presumption provides full and sufficient evidence. In addition to being consistent with the general law of evidence, this interpretation is clearly borne out by UNHCR’s Handbook: Each member of the group is regarded prima facie, i.e. in the absence of evidence to the contrary, as a 52 53 54 55 56

Okoth-Obbo (note 42), 121. Id. (emphasis added). Id., 119–120. Rutinwa (note 46), 5. Id., 6. See also Jackson (note 36); Durieux/McAdam (note 43).

African and European Legal Responses to Mass Influxes of Refugees

121

refugee. Not as a person “still await[ing] the conclusive determination of [her] refugee status no less than an asylum-seeker awaiting adjudication before a tribunal,”57 but indeed as a refugee in full – in the absence of evidence to the contrary. There is general agreement in doctrine that “in the absence of evidence” also means “until there is evidence” to the contrary – i.e., the presumption of refugeehood is rebuttable in the individual case. This is also implicit in Jackson’s assertion that “the prima facie determination of group refugee character [is] not the sum of the eligibilities of the members of the group if their refugee character were to be individually determined.”58 What is less clear is how the presumption operates, and on what grounds, under which circumstances, and through which process it may be rebutted. This process must be capable of both extending protection in an inclusive manner to persons in a group, and of isolating, in this group, those who are actually not refugees, or not deserving of international protection. This process is the exact opposite of ‘regular,’ i.e. individual, qualification procedures, which start from a premise of non-inclusion and aim at including only those who need and deserve international protection. Since neither the 1951 nor the OAU Convention describes this procedure, one must turn to the domestic law and practice of African States for guidance. Under Tanzanian law, for instance, refugee status may be granted on a group basis by the Minister through a notice in the Government Gazette. A similar provision can be found in refugee legislation enacted in other African countries having faced and/or facing mass influxes of refugees, such as Ghana, Malawi, Uganda, Zambia, Swaziland, Lesotho, Zimbabwe, and, most recently, South Africa.59 In this procedure of ministerial declaration, the Minister is not required to carry out an inquiry in relation to a class of persons before he declares them to be refugees. In practice, however, one would normally declare a class of persons to be refugees only where evidence exists to suggest that, as a result of the situation in the country of origin, these persons would qualify as refugees within definitions recognized in the given jurisdiction. “A glance at the Declarations made between the 1960s and 1980s indicates that persons declared to be refugees were coming from countries in Southern Africa experiencing external aggression and racial domination and those in Central Africa which were expe57

Okoth-Obbo (note 42), 122. Jackson (note 36), 627. 59 More detailed descriptions of these legal provisions can be found in Jackson (note 36) and Rutinwa (note 46). 58

122

Jean-Francois Durieux and Agnès Hurwitz

riencing civil wars.”60 In Liberia, the written concurrence of the UNHCR Representative with the national authority’s declaration is required by law, as it is where the authority seeks to amend or revoke such declaration. In Guinea, in contrast, there is no legal basis for group determination, but a simplified procedure was implemented for the influx of Sierra Leone refugees in 1998. The registration of new arrivals by the Bureau National de Coordination pour les Refugiés was considered sufficient to establish refugee status and to refer them to UNHCR for assistance. A similar ad hoc procedure was followed in respect of the admission of Sierra Leonans into Liberia. Whether a legal basis for group recognition exists or not, and even though the law does not always make it clear, it is normally through a simple process of registration that the qualification procedure is dispensed with. While registration usually entails the issuance of personal documentation confirming the refugee status of the holder, there are many exceptions to this rule in African practice. As for the possibility of rebutting the presumption in individual cases, legal mechanisms are conspicuously absent even in municipal law. The only example that was found concerns Zambia, where, in border districts, Joint Operations Committees have been established to screen prima facie refugees, primarily on national security grounds. The committees identify those persons who should be separated from the mainstream refugee population, e.g., because they are combatants, or persons benefitting from past amnesties.61 Individual screening procedures are generally perceived as time-consuming, cumbersome and complicated – a perception borne out by the tremendous backlogs and multiple appeals plaguing asylum procedures in many industrialized countries.62 This is why ‘group’ determination is resorted to in situations of large-scale influx. In these situations, such is the resistance of ill-equipped developing States to any kind of screening that in fact, the rebuttal of the presumption never takes place in an individual case. In other words, no member of the prima facie refugee group is ever brought into a procedure in which his refugee status may be questioned. 60

Rutinwa (note 46), 9. UNHCR Protection Report 2004 (internal document on file with the authors). 62 For example, from 1998–2002 the number of undecided asylum cases in first instance in Germany was between 36,000 and 56,000, in the United Kingdom between 41,000 and 125,000, and in the United States between 303,000 and 358,000. Statistical Yearbook 2002 (note 3), 127. 61

African and European Legal Responses to Mass Influxes of Refugees

123

Does it matter? Harsh experience on the ground indicates that it does, for a number of reasons. The first one is that, like the 1951 Convention, the OAU Convention contains exclusion clauses, pursuant to which those with respect to whom the country of asylum has serious reasons for considering that they have committed serious crimes or other acts contrary to the purposes and principles of the OAU and/or the United Nations cannot claim the benefits of the treaty’s provisions.63 Within individual procedures, inclusion and exclusion grounds are assessed in the same process, almost simultaneously,64 even though late-appearing exclusion grounds may justify a re-opening of the procedure. For obvious reasons, a prima facie inclusion process makes no room for the simultaneous assessment of possible exclusion grounds. These must be introduced at a later stage – indeed, as soon as conditions permit – through an individual screening process. Okoth-Obbo’s criticism of group-based determination in the 1994 Rwandan exodus65 is a reminder that the presence of ‘excludable persons’ – including perpetrators of war crimes and crimes against humanity – within large refugee movements in Africa is a reality to be taken seriously. Many of the innovative features of the OAU Convention seek to address the legitimate concerns of African States for national and international security. Undoubtedly, the difficulty of excluding serious criminals from refugee protection in mass influx situations poses a direct challenge to these essential components of the normative framework.66 A more pervasive security threat has been observed within prima facie refugee caseloads, through the presence of armed elements whose objective is the pursuit of belligerence, and often the violent subversion of the political establishment in the refugees’ country of origin. Such combatants do not necessarily fall under the Conventions’ exclusion clauses, since they cannot be assumed to have committed war crimes or other excludable acts in the course of 63

OAU Convention (note 9), Art. 1 para. 5. “The exceptional nature of Art. 1 F suggests that inclusion should generally be considered before exclusion, but there is no rigid formula,” UNHCR Guidelines on International Protection, Application of the Exclusion Clauses: Art. 1 F of the 1951 Convention Relating to the Status of Refugees, UN Doc. HCR/GIP/03/05 (2003), para. 31. 65 See, supra, notes 51 and 52. 66 Rutinwa (note 46), 11. See also William O’Neill/Bonaventure Rutinwa/Guglielmo Verdirame, The Great Lakes: A Survey of the Application of the Exclusion Clauses in the Central African Republic, Kenya and Tanzania, IJRL, vol. 12, 2000, 135. 64

124

Jean-Francois Durieux and Agnès Hurwitz

their armed struggle. Yet, they are not refugees67 and they should be separated from the refugee population so as to preserve the civilian and humanitarian character of asylum.68 Needless to say, a process of separation also requires some sort of individual screening, through which the presumptive refugeehood of combatants can be rebutted. A third, albeit less compelling, reason why there must be room for rebuttal in the individual case becomes apparent in those situations in which individual screening is introduced, usually years after the influx, not as a requisite for refugee protection, but as a prelude to the realization of a durable solution. Traditional resettlement States have long insisted on a strictly individualized application of refugee criteria in their third country resettlement procedures.69 If many refugees who received protection on a prima facie basis are being rejected in the resettlement process, because they are found to be excludable, combatants or opportunists with no need for international protection, this runs the risk of undermining the commitment of countries of first asylum. For all these reasons, the governments of African States facing a large-scale influx would probably agree that there must be a mechanism to screen the nonrefugees out of prima facie refugee caseloads, without waiting for a large-scale repatriation movement to make such screening possible. UNHCR has acknowl-

67 Stéphane Jaquemet, Under What Circumstances Can a Person Who Has Taken an Active Part in the Hostilities of an International or a Non-International Armed Conflict Become an Asylum Seeker?, UNHCR Legal and Protection Policy Research Series, No. 6, 2004, 35; Rosa da Costa, Maintaining the Civilian and Humanitarian Character of Asylum, UNHCR Legal and Protection Policy Research Series, No. 7, 2004; Kourula (note 28), 57. 68 OAU Convention (note 9), preambular paras. 4 and 5; UNHCR, Executive Committee, Conclusion on Military or Armed Attacks on Refugee Camps and Settlements, Conclusion No. 48 (XXXVIII), 1987, para. 4 subpara. (b); Id., Conclusion on the Civilian and Humanitarian Character of Asylum, Conclusion No. 94 (LIII), 2002, paras. (b) and (c); see also Jaquemet (note 67); Jean-Francois Durieux, Preserving the Civilian Character of Refugee Camps. Lessons from the Kigoma Refugee Programme in Tanzania, Track Two, vol. 9 No. 3, 2000, available at: http://ccrweb.ccr.uct.ac.za/archive/two/ 9_3/p25_preserving_civilian.html. 69 However, UNHCR’s efforts to make this durable solution more readily available have included “the expansion of resettlement opportunities through the establishment of a methodology for the resettlement of refugee groups, which complements the work done by the Working Group on Resettlement on the strategic use of resettlement,” Standing Committee of the UNHCR’s Executive Committee, Progress Report on Resettlement, UN Doc. EC/54/SC/CRP.10 (2004), paras. 13–15.

African and European Legal Responses to Mass Influxes of Refugees

125

edged the need to develop further procedural standards in this area.70 In fact, the only possible solution seems to reside in a targeting of individuals suspected of belonging to a non-refugee category, i.e., a preliminary identification, followed by a fully-fledged procedure of a special kind. In a de novo refugee status determination procedure, the onus of proving a claim to refugee status would lie with the asylum seeker even though refugee doctrine holds that, due to the peculiar circumstances in which asylum seekers find themselves, the duty to ascertain and evaluate the relevant facts is shared between the claimant and the examiner.71 However, the procedure envisaged here is not a de novo application; it is the authority who “recalls” an individual presumed (as a member of a refugee group) to be a refugee, in order to attempt to rebut this presumption in an individual case. It would seem logical, therefore, that the onus of establishing facts militating against refugee status should lie with the competent authority. II. Standards of Protection

The sub-standard conditions under which many of the larger groups of refugees in the world, in particular on the African continent, continue to live are amply documented. Crisp’s analysis of protracted refugee situations in Africa has revealed common restrictive conditions placed on refugees, including limited physical security, limited freedom of movement, limited civil and political rights, limited legal rights and lack of status, limited freedom of choice, and limited or no ability to engage in any income-generating opportunities.72 As noted by the same author, the refugees’ “right to life has been bought at the cost of almost every other right.”73 According to the US Committee for Refugees, as of 31 December 2003, over eight million refugees in the world had been “restricted to camps or segregated settlements or otherwise deprived of basic

70

UNHCR, Protection of Refugees in Mass Influx Situations: Overall Protection Framework, UN Doc. EC/GC/01/4 (2001), para. 9; see also Okoth-Obbo’s call for a reform of the OAU Convention on this point (note 42), 122. 71 UNHCR Handbook (note 18), para. 196; see also Goodwin-Gill (note 5), 349, 34–36. 72 Jeff Crisp, No Solutions in Sight: The Problem of Protracted Refugee Situations in Africa, UNHCR New Issues in Refugee Research, Working Paper No. 75, 2003, 11–12. 73 Id., 11.

126

Jean-Francois Durieux and Agnès Hurwitz

Convention rights” for five years or more. This number included some 2,5 million refugees in Africa.74 Some have attempted to give a semblance of legality to this sad state of affairs by arguing that refugees recognized under the OAU Convention are not entitled to the benefits of the 1951 Convention, because the OAU Convention “does not include a corresponding guarantee to accord socio-economic rights.”75 However, this claim is contradicted by the very wording of the OAU Convention. Article 8 para. 2 describes the OAU Convention as a regional complement to the Convention. On its face, the only possible interpretation of this provision is that a person recognized as a refugee under either branch of the definition in the complementary OAU Convention is entitled to the rights contained in the primary 1951 Convention. And, for the reasons outlined in the preceding section, it makes no difference whether such recognition was granted on an individual or on a group basis. This was reaffirmed during the Global Consultations on International Protection, where States recognized that “refugees recognized on a prima facie basis are entitled to the same rights as refugees recognized under an individual refugee status determination scheme.”76 There is, therefore, no legal excuse for not granting refugees in large groups the benefit of all the provisions of the 1951 Convention, except where express and lawful reservations have been made.77 Thus, it appears that the real argument against the full applicability of the Convention regime to refugees in mass influx situations is a political one. While States generally respect the peremptory norm of non-refoulement by allowing large-scale influxes admission to the territory, the application of other rights is far more problematic. In an individual case, non-refoulement may raise a reasonable expectation that a local durable 74

US Committee for Refugees, World Refugee Survey 2004, Warehousing Issue, available at: http://www.refugees.org/wrs04/pdf/warehoused_refugees.pdf. 75 Michael Barutciski, The Development of Refugee Law and Policy in South Africa: A Commentary on the 1997 Green Paper and 1998 White Paper/Draft Bill, IJRL, vol. 10, 1998, 700, 714. 76 Ministerial Meeting of States Parties to the 1951 Convention and/or its Protocol Relating to the Status of Refugees, 13 December 2001, Chairperson’s Report on Roundtable 2: International Cooperation to Protect Masses in Flight, 2, available at: http:// www.unhcr.ch/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=PROTECTION&page=PROT ECT&id=3c1f1aab4. 77 See Durieux/McAdam (note 43). There are so far no instances of reservations made explicitly on account of size of the influx. Reservations on grounds of national security and public order are, on the other hand, frequent.

African and European Legal Responses to Mass Influxes of Refugees

127

solution will be forthcoming in accordance with the Convention, but in the case of large-scale movements no such presumption or expectation is raised.78 Thus, instead of a gradual improvement of conditions and rights over time until a durable solution is found, non-refoulement extends through time, so that although persons are not returned to persecution and other situations of harm, they are in essence left in a legal limbo.79 According to Goodwin-Gill, this is the trade-off for States’ acceptance of the obligation to allow large numbers of refugees and asylum seekers entry onto their territories.80 Non-refoulement through time “stands paradoxically as both the link and the line between the peremptory, normative aspects of non-refoulement and the continuing discretionary aspect of a State’s right in the matter of asylum as a permanent or lasting solution, and in the treatment to be accorded to those in fact admitted.”81 Is there truly a “continuing discretionary aspect?” On this question, the Convention is ambiguous more than it is flexible. As seen above, gradual enhancement of rights is foreseen in the Convention – however, the terms used are not entirely clear. According to Hathaway and Neve, the drafters of the Convention had in mind that rights “be granted incrementally, and as a function of the increasing depth of the relationship between the refugee and the asylum state, presumed to result from the passage of time.”82 Nonetheless, many States, in Africa and elsewhere, would contend that time alone will not make it easier for them to absorb large numbers of uninvited guests. It is undoubtedly a challenge to try and capture the dynamic nature of refugee situations within a legal framework. Durieux and McAdam argue that the emergency situation triggered by mass influx should be acknowledged through a derogation mechanism, on the ground that a time-bound, internationally supervised derogation, followed by a gradual acquisition or re-acquisition of rights, is preferable to an ad hoc emergency response followed by a lengthy state of legal limbo.83 A study commissioned by

78

Goodwin-Gill (note 5), 202. Id., 196. 80 Id. 81 Id., 202. 82 James C. Hathaway/Alexander Neve, Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection, Harvard Human Rights Journal, vol. 10, 1997, 158. 83 Durieux/McAdam (note 43). 79

128

Jean-Francois Durieux and Agnès Hurwitz

UNHCR states a preference for a Protocol, which could inter alia clarify the existing gradation of rights in the 1951 Convention.84 In any case, as Goodwin-Gill observes, the obligations of asylum States cannot be separated in practice from “that other complex duty which recognizes the responsibility of the community of States in finding durable solutions.”85 Rights-sensitive responses to mass influx situations clearly depend upon significant international co-operation for their success. Unfortunately, attempts at regulating burden-sharing have thus far failed: “[T]he present, loosely constructed system of international cooperation in refugee protection is characterized by vague promises of solidarity among governments, accompanied by often undependable funding.”86 It is interesting, therefore, that a duty to share refugee burdens should be explicitly mentioned in the OAU Convention: Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU, and such other Member States shall in the spirit of African solidarity and international co-operation take appropriate measures to lighten the burden of the Member State granting asylum.87

There are indeed several ways in which African solidarity and the cooperation mechanisms of the African Union could be applied to “lighten the burden” of front-line countries of asylum. Unfortunately, all such “appropriate measures” are severely constrained by the limited resources of African nations. Physical burden-sharing, i.e. the offer of resettlement places for refugees, in effect spreads the refugee problem – and the attendant costs – over a larger area, including the territories of States that are not contiguous to the source country. At the regional level, this has not happened in practice to any significant extent.88 Financial support for refugee programs in African countries has remained the 84 UNHCR, Ensuring International Protection and Enhancing International Cooperation in Mass Influx Situations, 2004, 58–60. 85 Goodwin-Gill (note 5), 204. 86 Hathaway/Neve (note 82), 187. 87 OAU Convention (note 9), Art. 2 para. 4. 88 In 1998, thanks to a Trust Fund for Enhancing Resettlement Activities, established within UNHCR with mainly Nordic funds, Benin and Burkina Faso became ‘pilot’ countries of destination for intra-regional refugee resettlement. The experiment was, however, not very successful. See Stefan Sperl/Irinel Bradisteanu, Refugee Resettlement in Developing Countries: The Experience of Benin and Burkina Faso (1997–2003), An Independent Evaluation, UNHCR Evaluation and Policy Analysis Unit, 2003.

African and European Legal Responses to Mass Influxes of Refugees

129

prerogative of extra-regional donors, both through UNHCR and under bilateral arrangements. Still, an important modality of regional burden-sharing may be political,89 in the sense of jointly addressing root causes and making timely solutions possible. After all, the concept of burden-sharing in relation to refugee flows is intimately connected to the commitment of States to cooperate in order to maintain regional peace and security, given the potentially destabilizing effects of large-scale refugee movements. Nowadays, therefore, Article 2 para. 4 of the OAU Convention must be read in the light of such developments as the establishment, in 1993, of a regional Mechanism for Conflict Prevention, Management and Resolution under the auspices of the OAU.90 III. Termination and Solutions

On the African continent, the prevalence of mass influx situations, and the prima facie mechanism used to determine refugee status in such situations, creates a particularly interesting context for the interaction between cessation of refugee status and the “durable solution” of voluntary repatriation. There is a logic according to which large-scale repatriation should match large-scale influxes, and group cessation should be the counterpart to group determination of refugee status. In practice, however, there have been many more large-scale repatriation operations in Africa than instances of recourse to group cessation; and the latter have invariably followed – sometimes by many years – successful operations of voluntary repatriation. Thus, while UNHCR organized large-scale voluntary repatriation to Namibia in 1989–1990, and to South Africa between 1991 and 1993, it was only in May 1995 that the organization pronounced itself

89 See Gregor Noll, Negotiating Asylum. The EU Acquis, Extraterritorial Protection and the Common Market of Deflection, 2000, Chapter 8. 90 See Declaration of the Assembly of Heads of State and Government on the Establishment within the OAU of a Mechanism for Conflict Prevention, Management and Resolution, 1993, OAU Doc. AHG/Decl.3 (XXIX), Provision 15, available at: http:// www.africanreview.org/docs/conflict/cairodec93.pdf; see also Protocol Relating to the Establishment of the Peace and Security Council of the African Union, 9 July 2002, AU Doc. CAB/LEG/23.22, preambular para. 10, Art. 14 para. 3, subpara. (d), Art. 16, available at: http://www.au2002.gov.za/docs/summit_council/secprot.htm; for an analysis of the Mechanism’s impact on the prevention of forced displacement, see Jeremy Levitt, Conflict Prevention, Management and Resolution: Africa-Regional Strategies for the Prevention of Displacement and Protection of Displaced Persons: The Cases of the OAU, ECOWAS, SADC, and IGAD, RSQ, vol. 20, 2001, 156–190.

130

Jean-Francois Durieux and Agnès Hurwitz

on the applicability of the Conventions’ cessation clauses to these two refugee populations.91 Likewise, cessation on account of changed circumstances was declared in relation to Mozambican refugees in December 1996,92 whereas the vast majority of refugees had returned to the country well before the elections which were held in October 1994. The OAU Convention contains two provisions relevant to this debate. The cessation clauses in Article 1 para. 4 are almost identical to those in the 1951 Convention, including the reference to changed circumstances.93 Then, in a notable addition to the provisions of the 1951 Convention, the OAU Convention contains a detailed Article on voluntary repatriation, which begins with a powerful statement of principle: “The essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will.”94 The legal standard in this provision seems clear, yet Barutciski has argued that it is incoherent, and represents a failed attempt at raising voluntary repatriation to a legally binding standard.95 The rest of the text of Article 5 is based on the assumption that the conditions for safe return are met, and primarily focuses on the legal requirements for implementing return.96 These provisions have been developed considerably, notably through written agreements reached between UNHCR and States on organized repatriation operations. These arrangements, known in UNHCR parlance as “tripartite agreements,” as they normally involve the State of origin, one State of asylum and UNHCR, have been instrumental in the affirmation of binding principles in the repatriation context, such as the requirement of amnesties or assurances for

91 UNHCR Inter-Office Memorandum 29/1995, Applicability of the Cessation Clauses to Refugees From the Republics of Namibia and South Africa, 18 May 1995. 92 UNHCR Inter-Office Memorandum 88/1996, Applicability of the Cessation Clauses to Refugees From the Republics of Malawi and Mozambique, 31 December 1996. 93 It must be noted, however, that the OAU Convention introduced an additional ground for cessation of refugee status, namely the commission by a refugee of a serious non-political crime outside his country of refuge after having been admitted and granted refugee status into the latter. OAU Convention (note 9), Art. 1 para. 4 lit. f. 94 OAU Convention (note 9), Art. 5 para. 1. 95 Barutciski (note 29), 250. 96 Okoth-Obbo (note 42), 126.

African and European Legal Responses to Mass Influxes of Refugees

131

return and reintegration in safety,97 or UNHCR’s right of access to returnees in order to monitor the consequences of return. Where refugees of the same nationality were spread over many different countries of asylum, “webs” of tripartite agreements provided comprehensive legal frameworks for large-scale regional repatriation operations, as in Namibia (1989–1990), South Africa (1991–1993) or Mozambique (1992–1994). All tripartite agreements refer to the voluntary nature of repatriation, but this does not necessarily mean that repatriation will take place at the refugees’ own initiative. To the contrary, it has been argued that the OAU Convention envisages mainly organized repatriations, i.e. when refugees “return under the terms of a plan worked out well in advance and that has the support of both the home and asylum governments as well as that of UNHCR and the refugees themselves.”98 As Zieck observed, when UNHCR gets into a mode of promoting voluntary repatriation, “UNHCR seems to take over the initiative from the refugees.” At the same time, she had to acknowledge that “UNHCR’s ‘right of initiative’ in this area has been recognized and endorsed by the Executive Committee and the General Assembly since the mid-eighties.”99 A recent illustration of the extent to which tripartite arrangements, under the impulse of UNHCR, deal with voluntariness more as a principle of inter-State relations than as an expression of refugees’ agency, can be found in a near-realtime analysis of the Angola repatriation programme which was launched in the aftermath of the 2002 Luena Peace Agreement.100 The detailed report explains how UNHCR “re-launched” the mass voluntary repatriation process, after “having established that most of the essential preconditions for UNHCR to promote voluntary repatriation to Angola were indeed in place,”101 the expressed wish of Angolan refugees to return ostensibly not being one such precondition. Like the OAU Convention itself, the repatriation strategy proposed by UNHCR considered a full array of operational imperatives, but took the will of refugees, 97

Building upon Art. 5 para. 4 of the OAU Convention (note 9), pursuant to which “refugees who voluntarily return to their country shall in no way be penalized for having left it for any of the reasons giving rise to refugee situations.” 98 UNHCR, The State of the World’s Refugees: The Challenge of Protection, 1993, 106. 99 Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis, 1997, 119, fn. 57. 100 Kallu Kalumiya, Angola: A Model Repatriation Programme?, RSQ, vol. 23, 2004, 205–234. 101 Id., 209.

132

Jean-Francois Durieux and Agnès Hurwitz

by and large, for granted. As part of its ‘overall approach’ to repatriation to Angola, UNHCR even decided to discourage spontaneous returns,102 even though spontaneous movements would naturally appear to be the most obvious expression of voluntariness. Then again, it may be imprudent to assume that refugees will always know better what situation prevails in their countries and/or areas of intended return, and clearly “UNHCR’s protection responsibilities require it to obtain the best available information regarding conditions in the country of origin,” and “such information must in turn be shared with refugees.”103 While the initiative may not lie with the refugees themselves, the efforts of UNHCR will normally aim at securing their informed consent to a process of repatriation, which UNHCR and the States most directly concerned regard as both desirable and safe – though probably not as safe as to warrant the invocation of a cessation clause. In the case of Angola, UNHCR undertook a wide range of activities specifically designed “to ensure the exercise of a free and informed choice,” including surveys of areas of potential return, ‘go-and-see’ visits and an information campaign “in all the refugee camps hosting Angolan refugees.”104 At what point, and to what extent, States and UNHCR may be justified in proactively seeking voluntariness is undoubtedly “one of the most central and intractable questions”105 in the complex nexus between the two “sides” of the international refugee regime, namely international protection and durable solutions. This nexus includes an important dimension which cannot be explored in greater detail here, i.e. the continuing protection responsibility of UNHCR on behalf of former refugees, or returnees, following repatriation, and the continuing interest of the international community at large in the consequences of return.106 In a similar vein, Okoth-Obbo asserts that in some instances “repatria102

Id., 213. “[S]pontaneous returns should be discouraged because of the relatively long distances entailed, with many attendant security and protection hazards, as well as the extremely low absorption capacity in many areas of potential return.” 103 Goodwin-Gill (note 5), 273. Compare with Barry Stein/Fred Cuny, Repatriation in a Civil War/Conflict Situation, Paper Presented at the Round Table Consultation on Voluntary Repatriation and UNHCR, Geneva, 2–3 June 1992, 3: “The refugees are the main actors in the contemporary practice of voluntary repatriation. They are the main decision-makers and participate in determining the modalities of movement and the conditions of reception. Refugee-induced repatriation is a self-regulating process on the refugees’ own terms.” 104 Kalumiya (note 100), 214–216. 105 Okoth-Obbo (note 42), 126. 106 UNHCR, Handbook on Voluntary Repatriation: International Protection, 1996, 60–65 (Voluntary Repatriation Handbook).

African and European Legal Responses to Mass Influxes of Refugees

133

tion […] has to be promoted not because there has been a fundamental change, but because opportunities exist, advantage of which must be taken to engineer a solution under acceptable standards. The repatriations in which UNHCR is obliged [sic] to become involved following an overall political settlement bear mention,” where “the repatriation itself is conceived and planned as part of the process of creating” conditions “of total and irreversible safety.”107 Thus, the tension between cessation of refugee status and repatriation standards in large-scale refugee situations can be summarized as follows: – Fully voluntary, i.e., spontaneous and un-coerced, repatriation is logistically and psychologically the best way of effecting return. Politically, it will normally be less problematic than either local integration or thirdcountry resettlement. It has, over these other durable solutions, the distinct advantage of vesting the key responsibility upon the State of origin/ nationality. – Return to the country of origin regardless of the refugees’ will – or squarely against it – is only possible following the invocation of a cessation clause (Article 1 C para. 5 of the 1951 Convention or Article 1 para. 4 lit. e of the OAU Convention). – Between these two clear-cut scenarios, various shades of voluntariness (or, conversely, of coercion) are manifestations of the policy preference given to the return solution, in the face of a real or perceived risk of large-scale refugee situations entrenching themselves at unacceptable cost to the host State(s). One practical but nonetheless critical aspect of voluntary repatriation in a largescale refugee situation must also be examined. The informed consent of the individual refugee may be difficult to ascertain, where the durable solution pursued is the repatriation of large groups of refugees. Under the terms of most tripartite agreements in Africa, this verification of voluntariness in the individual case has been carried out by UNHCR, which has been responsible for getting refugees to sign voluntary repatriation declarations.108 Significantly, this procedure usually takes place within the context of a “promoted” and organized re107

Okoth-Obbo (note 42), 127. Zieck (note 99), 108; this declaration of freewill is often subsumed under a comprehensive Voluntary Repatriation Form, which also serves other purposes, such as oneway travel document, temporary identity document in the country of return, and ‘eligibility card’ for assistance upon return; see Kalumiya (note 100), 218. 108

134

Jean-Francois Durieux and Agnès Hurwitz

turn, i.e. under a process which favors repatriation over the continuation of international protection for the majority of the refugees concerned. In other words, voluntary repatriation plans and agreements must also address the situation of those who do not, “for the time being,”109 wish to repatriate. Those refugees who decline to return are of course legally entitled to international protection until conditions exist for the cessation of their refugee status. Yet, they tend to be seen as a residual caseload, i.e. some sort of anomaly within the context of large-scale repatriation, and their continuing need for international protection is no longer taken for granted. UNHCR’s Handbook on Voluntary Repatriation suggests that this continuing need for international protection “should be determined on a case by case basis through interviews” with all individuals “not wishing to return.”110 Zieck, in particular, has voiced strong reservations against what she describes as a “status re-determination of the residual case-load.”111 However, where refugee status has been originally granted on a group basis, “re-determination” of status may not be the most accurate term. Rather, it is the circumstance that the larger segment of the refugee group has opted to return which provides both the justification for, and the practical possibility of, abandoning the presumption and reverting to regular rules of evidence in a number of individual cases. One must emphasize again that this is a return to a normal procedure, in which there is no presumption. It is not that the presumption has been reversed – which is the case where the individual has to prove why the cessation clause does not apply to him. In other words, there exists an intermediate step between prima facie recognition and cessation of refugee status, and it is often the fact of large-scale voluntary repatriation which determines this step. It is often difficult to be certain whether circumstances have changed to such a degree as to warrant formal termination of refugee status for an entire group. Yet, in every refugee situation there comes a point at which one shifts to the voluntary repatriation mode, and therefore to a focus on the country of origin. Voluntary repatriation then becomes a “reasonable recommendation.”112 Assuming that the residual caseload is not too large, every individual can be given a chance to present his case, not

109 110 111 112

Kalumiya (note 100), 228–229. Voluntary Repatriation Handbook (note 106), 39. Zieck (note 99), 457. Barutciski (note 29), 249.

African and European Legal Responses to Mass Influxes of Refugees

135

as a refugee ‘resisting repatriation’ but as someone no longer protected by an automatic presumption.113 D. European Refugee Law and Practice In spite of the multiple international normative developments that have sought to address protection in cases of mass displacement, and the efforts of UNHCR to provide guidelines on the interpretation of the Convention,114 European approaches to refugee protection have remained centered on the concept of the individualization of persecution, that is, on the notion that a person needed to be individually singled out to be protected under the Convention. This has obviously led to the exclusion of large numbers of people, a category loosely defined by Cels in 1989 as “persons who are refugees in a broader sense than that allowed for in the Convention, but who cannot be returned to their countries of origin for humanitarian reasons.”115 Complementary regimes, which became known as ‘de facto’ or provisional asylum, ‘B status,’ ‘humanitarian status,’ ‘exceptional leave to remain’ or Duldung (tolerance status) were developed by European States through legislative, judicial or administrative means in order to address the protection needs of this broader category of refugees.116 Developments at the global and regional levels in the 1970s and 1980s contributed to the emergence of complementary regimes. At the global normative level, there was growing recognition that the victims of civil conflict or generalized violence, who did not suffer persecution on the grounds enumerated in Article 1 of the 1951 Convention, deserved to receive protection. This extension of the 113

The UNHCR Handbook on Repatriation points in the same direction, although the wording could be clearer, where it states: “In particular where refugee status has been granted on the basis of prima facie (group) determination […], the individual determination of status following a mass voluntary repatriation should be explicitly negotiated with the government of the country of asylum.” Voluntary Repatriation Handbook (note 106), 39. 114 See UNHCR Handbook (note 18), para. 44. 115 Johan Cels, Responses of European States to de facto Refugees, in: Gil Loescher/ Laila Monahan (eds.), Refugees and International Relations, 1989, 187. 116 Strictly speaking, international protection is the exclusive task of UNHCR, as opposed to ‘national protection.’ However, in European Union (EU) language, international protection has come to encapsulate the various statuses available to aliens who are not able or willing to return to their country of origin, including refugee status under the 1951 Convention and subsidiary protection.

136

Jean-Francois Durieux and Agnès Hurwitz

scope of protection had already been accepted since the late 1950s through General Assembly Resolutions extending UNHCR’s mandate.117 At the regional level, three different issues underlie the emergence of temporary protection regimes. First, the late 1970s and early 1980s saw an increase of arrivals from developing countries118 coinciding with mounting restrictions on legal immigration, which resulted in part from the post-1973 global recession.119 This increase was also attributed to improvements in international transportation, and growing internal strife in the developing world. Asylum applications reached their peak in the early 1990s: from 13,000 applications per year in 1970, to 170,000 in 1985 and 690,000 by 1992.120 1992 was also the year when the conflict in Yugoslavia began, leading to large-scale displacement in Europe, as will be analyzed below.121 The second and related issue relates to the scope of refugee protection. The contention was that persons fleeing armed conflict did not experience persecution, since they were not individually targeted, potentially leading to the rejection of refugee status for large numbers of people who were persecuted for their membership of religious or ethnic groups in the context of a civil war.122 The problem, in fact, was that two distinct issues, the size of the influx and the personal scope of protection, were merged into one. On the one hand, UNHCR had 117

UNHCR’s mandate was progressively extended through the concept of good offices, supported in consecutive UN GA Resolutions, see UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (1994), para. 31. 118 Pieter Dankert/Raymund Forni, Situation of de facto Refugees, Report to the Parliamentary Assembly of the Council of Europe, CoE Doc. 3642 of 5 August 1975, 4; Aristide Zohlberg/Astri Suhrke/Sergio Aguayo, Escape From Violence, Conflict and the Refugee Crisis in the Developing World, 1989, 229; Gil Loescher, Beyond Charity, International Cooperation and the Global Refugee Crisis, 1993, 93; Joan Fitzpatrick, Flight From Asylum: Trends Toward Temporary “Refuge” and Local Responses to Forced Migration, Virginia Journal of International Law (VJIL), vol. 35, 1994, 13, 29. 119 UNHCR (note 1), annex 3, 310; Matthew Gibney, Between Control and Humanitarianism: Temporary Protection in Contemporary Europe, Georgetown Immigration Law Journal (Geo. Imm. LJ), vol. 14, 2000, 689, 693; see also Jean-Claude Chesnais, People on the Move, New Migration Flows in Europe, 1992, 59; Sarah Collinson, European and International Migration, 1993, 53; US Committee for Refugees, The Asylum Challenge to Western Nations, December 1984, 3; Zohlberg/Suhrke/Aguayo (note 118), 229. 120 Matthew Gibney (note 119), 693; UNHCR (note 1), 185. 121 UNHCR (note 1), 693. 122 UN Note on International Protection, UN Doc. A/AC.96/830 (2004), para. 22; Durieux/McAdam (note 43), 6.

African and European Legal Responses to Mass Influxes of Refugees

137

consistently stressed that positive group determination or prima facie determination was never ruled out in the Convention.123 However, the application of the Convention to mass influxes only provided a partial answer, inasmuch as it was acknowledged that there were circumstances of flight that were not covered by the Convention but nevertheless deserved to be addressed by the international community. In Europe, the extension of the scope of international protection to persons “facing a threat to their life, safety or freedom as a result of indiscriminate violence arising in situations of armed conflict, or as a result of systematic or generalized violations of their human rights”124 was carried out by States at the national level, and also pursued at the regional level originally through the normative work of the Council of Europe.125 The jurisprudence of the European Court of Human Rights on Article 3 of the Convention also had a significant impact on the scope of international protection.126 This early confusion in the scope of protection was reinforced during the Balkan crises, and was only partially resolved with the adoption of the so-called “Qualification Directive,” which harmonized the interpretation of the provisions of the Convention, and created a ‘subsidiary protection’ status which extends 123

UN Note on International Protection (note 122), para. 27. Kay Hailbronner, Principles of International Law Regarding the Concept of Subsidiary Protection, in: Daphné Bouteillet-Paquet (ed.), Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention?, 2002, 3–4. 125 See Council of Europe, Parliamentary Assembly, Recommendation 773 (1976) Regarding the Situation of de facto Refugees; Cels (note 115), 200–201; see also Deborah Perluss/Joan Hartmann, Temporary Refuge: Emergence of a Customary Norm, VJIL, vol. 26, 1986, 551, 593. 126 The Court established that individuals could not be returned to a country where there were serious grounds to believe that they would be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. This broadening of international protection was counterbalanced by the Court’s high evidentiary test, which requires the existence of “serious grounds to believe that there is a substantial risk that an individual will be subjected to torture, or inhuman, cruel or degrading treatment of punishment upon return.” See Terje Einarsen, The European Convention on Human Rights and the Notion of an Implied Rights to De Facto Asylum, IJRL, vol. 2, 1990, 361; Felix Ermacora, Problems About the Application of the European Convention on Human Rights in Asylum Cases, in: Rick Lawson/Matthijs de Blois (eds.), The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of H.G. Schermers, vol. III, 1994, 155, 163; Richard Plender/Nuala Mole, Beyond the Geneva Convention: Constructing a de facto Right of Asylum From International Human Rights Instruments, in: Frances Nicholson/ Patrick Twomey (eds.), Refugee Rights and Realities: Evolving International Concepts and Regimes, 1999, 81; Pieter van Dijk/Godefridus J. H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed. 1998, 325. 124

138

Jean-Francois Durieux and Agnès Hurwitz

the scope of international protection to persons who would face a real risk of suffering serious harm.127 Finally, it is the duration of protection that evidently stood at the heart of these new approaches. Refugee law tended to be seen as biased in favor of local integration rather than repatriation.128 Even if the status of refugee itself was not originally conceived as permanent, as is made clear by the cessation clauses analyzed above,129 European States’ practice ensured in the vast majority of cases permanent stay, due for the most part to the evolution in the legal status of aliens.130 As is often the case in international refugee law, State practice effectively trumped a strict reading of the Convention. It should also be added that wider post-cold war developments were particularly significant in permitting a shift towards return. The end of the paralysis of the Security Council, the growing support for a right to humanitarian intervention and the creation of safety zones contributed to making repatriation more relevant than ever.131 The Balkan wars, which led to the largest influx of displaced persons on the European continent since World War II,132 constituted a watershed in the formalization of temporary protection. The application of temporary protection to refugees coming from the former Yugoslavia was primarily advocated by 127 See Arts. 1 para. e and 15 of the Council Directive on Minimum Standards for the Qualification and Status of Third Country National or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted, EC Directive 2004/83 of 29 April 2004, O.J. 2004 L 304/12 (Qualification Directive). 128 See Gervase Coles, Approaching the Refugee Problem Today, in: Gil Loescher/ Laila Monahan (eds.), Refugees and International Relations, 1989, 373. 129 Note, however, that Art. 34 of the Refugee Convention also required States to facilitate naturalization processes for recognized refugee status. Many other provisions under Chapter III, IV and V of the Convention on welfare and employment also seem to favor refugees’ local integration. 130 Joan Fitzpatrick, The End of Protection: Legal Standards for Cessation of Refugee Status and Withdrawal of Temporary Protection, Geo. Imm. LJ, vol. 13, 1999, 343, 346–347. 131 Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law, 2001; Karin Landgren, Safety Zones and International Protection: A Dark Grey Area, IJRL, vol. 7, 1995, 436; Fitzpatrick (note 118), 59; see also UNHCR’s mention of ‘in-country protection’, UNHCR Note on International Protection, UN Doc. A/AC.96/799 (1992), para. 21. 132 For a description of the refugee situation at the end of the war, see Elizabeth M. Cousens/Charles K. Cater, Toward Peace in Bosnia, Implementing the Dayton Accords, 2001, 72.

African and European Legal Responses to Mass Influxes of Refugees

139

UNHCR as a mean to avoid overburdening asylum procedures in Western Europe.133 According to the refugee agency, temporary protection “was proposed as a flexible and pragmatic means of affording needed protection to large numbers of people fleeing human rights abuses and armed conflict in their country of origin, who might otherwise have overwhelmed asylum procedures.”134 Commentators were nonetheless concerned that temporary protection had become a tool to restrict refugee protection and deter further arrivals.135 UNHCR eventually followed suit, expressing distress at States’ tendency to apply temporary protection outside the realm of mass displacement,136 and as a substitute to formal refugee status.137 European States’ approaches to temporary protection with regard to Bosnian refugees, while based on basic principles of international protection,138 varied significantly. State practices differed with regard to the duration of temporary protection (from six months to five years), and on the rights and benefits granted to displaced persons, e.g. on employment and family reunification.139 Most importantly, the ability to lodge an asylum claim was severely curtailed if not excluded in some countries,140 in spite of UNHCR’s criticisms.141 The Balkan crises also coincided with the first attempts at harmonizing asylum policies between the Member States of the EU.142 As early as 1992, the 133

See International Meeting on Humanitarian Aid for Victims of the Conflict in Former Yugoslavia, 29 July 1992, UN Doc. HCR/IMFY/1992/2. 134 UNHCR Note on International Protection, UN Doc. A/AC.96/815 (1993), para. 25; UNHCR Note on International Protection, UN Doc. A/AC.96.930 (2000), para. 36. 135 Fitzpatrick (note 118), 19; Morten Kjaerum, Temporary Protection in Europe in the 1990s, IJRL, vol. 6, 1994, 444, 455–456. 136 UNHCR Note on International Protection, UN Doc. A/AC.96/914 (1999), para. 43. 137 UNHCR Note on International Protection, UN Doc. A/AC.96/898 (1998), para. 18. 138 Fitzpatrick (note 118), 20–21. 139 Kjaerum (note 135), 450–453; Karoline Kerber, Temporary Protection in the European Union: A Chronology, Geo. Imm. LJ, vol. 14, 1999, 35, 37. 140 Fitzpatrick (note 118), 54; Kerber (note 139), 38. 141 UNHCR Note on International Protection 1999 (note 136), para. 43; UNHCR Note on International Protection 1998 (note 137). 142 On the EU harmonization process, Sharon Stanton Russell/Charles B. Keely/ Bryan P. Christian, Multilateral Diplomacy to Harmonize Asylum Policy in Europe:

140

Jean-Francois Durieux and Agnès Hurwitz

ministers with responsibility for immigration adopted a Conclusion on People Displaced by the Conflict in the Former Yugoslavia,143 followed in 1993 by a resolution on “certain common guidelines as regard the admission of particularly vulnerable persons from the Former Yugoslavia.”144 The entry into force of the 1992 Maastricht Treaty145 led to the integration of asylum and immigration into the so-called ‘third pillar,’ recognizing the role of EU institutions in this area, while maintaining the intergovernmental nature of the procedures and normative instruments to be adopted.146 Two non-binding instruments relevant to our discussion were adopted during this period: the 1995 Resolution on Burden-Sharing with regard to the Admission and Residence of Displaced Persons on a Temporary Basis,147 and the 1996 Decision on an Alert and Emergency Procedure for Burden-Sharing with regard to the Admission and Residence of Displaced Persons on a Temporary Basis.148 These first attempts at harmonizing temporary protection were not particularly successful and left out significant elements of temporary protection regimes.149 Following previous practice, the scope of application of these instruments was not limited to mass influx situations, but covered protection to individuals fleeing civil conflict and generalized violence, in particular, those with serious illness, interned or sexually victimized, or who could not be returned to their region of origin due to the security situation.150 The Resolution also included pro1984–1993, 2000, 8; David O’Keeffe, The Emergence of a European Immigration Policy, European Law Review (ELR), vol. 20, 1995, 20, 22–23. 143 Adopted on 30 November 1992, reprinted in: Tony Bunyan (ed.), Key Texts on Justice and Home Affairs in the European Union (1976–1992), vol. I, 1998, 74. 144 Adopted on 1 June 1993, reprinted in: Elspelth Guild (ed.), The Developing Immigration and Asylum Policies of the European Union, 1996, 293; for a discussion of the 1993 Resolution, see Kay Hailbronner, Temporary and Local Responses to Forced Migration, VJIL, vol. 35, 1994, 81, 88. 145 Treaty on European Union, 7 February 1992, Consolidated Version, O.J. 2002, C 325/5. 146 O’Keeffe (note 142), 22–23; Kerber (note 139), 41–44. 147 O.J. 1995 C262/1 (1995 Resolution). 148 O.J. 1996 L63/10. 149 Karoline Kerber, Temporary Protection: An Assessement of the Harmonisation Policies of European Union Member States, IJRL, vol. 9, 1997, 453, 455; Khalid Koser/Martha Walsh/Richard Black, Temporary Protection and the Assisted Return of Refugees From the European Union, IJRL, vol. 10, 1998–1999, 444, 449–451. 150 1995 Resolution (note 147), para. 1 lit. a. Note that the wording is similar to the 1993 Resolution.

African and European Legal Responses to Mass Influxes of Refugees

141

visions excluding protection for persons suspected of having committed an international crime, or a serious non-political crime.151 Beyond this rather imperfect effort to define the beneficiaries of temporary protection, the two instruments overlooked the crucial question of the rights to be granted to these beneficiaries by Member States. The 1995 Resolution is otherwise remembered for its bold attempt at expanding the understanding of refugee burden-sharing by taking into consideration the contribution which each Member State is making to prevention or resolution of the crisis, in particular by the supply of military resources in operations and missions ordered by the United Nations Security Council or the Organization of Security and Cooperation in Europe and by the measures taken by each Member State to afford local protection to people under threat or to provide humanitarian assistance.152

Further instruments were adopted to address the financial implications of temporary protection,153 while an ambitious attempt at proper harmonization failed for a variety of reasons, not least the weakness and inadequacy of ‘third pillar’ instruments.154 The Bosnian refugee crisis also offered important insights into the outcomes of repatriation policies.155 UNHCR’s Repatriation Plan of March 1996 provided for repatriation to take place in three phases, starting with the return of about one million displaced persons that were still inside Bosnia and Herzegovina.156 UNHCR had adopted three ‘benchmarks’ to determine whether safe return was 151

See 1995 Resolution (note 147), para. 1 lit. b. 1995 Resolution (note 147), para. 4. 153 Joint Action of 22 July 1997 concerning the Financing of Specific Projects in Favor of Asylum Seekers and Refugees, O.J. 1997 L205/2; Joint Action of 22 July 1997 concerning the Financing of Specific Projects in Favor of Displaced Persons Who Have Found Temporary Protection in the Member States and Asylum-Seekers, O.J. 1997 L205/3; Joint Action of 27 April 1998 concerning the Financing of Specific Projects in Favor of Asylum Seekers and Refugees, O.J. 1998 L138/8; Joint Action of 27 April 1998 concerning the Financing of Specific Projects in Favor of Displaced Persons Who Have Found Temporary Protection in the Member States and Asylum-Seekers, O.J. 1998 L138/6. 154 Proposal for a Joint Action concerning Solidarity in the Admission and Residence of Beneficiaries of the Temporary Protection of Displaced Persons, COM (98) 372 final, 26 June 1998, O.J. 1998 C 268/22, this was the latest of three attempts by the Commission to address this question; see Kerber (note 149), 463; see also Kerber (note 139), 43. 155 Elizabeth M. Cousens/Charles K. Cater (note 132), 74. 156 Joanne Van Selm Thorburn, Refugee Protection in Europe: Lessons of the Yugoslav Crisis, 1998, 152. 152

142

Jean-Francois Durieux and Agnès Hurwitz

possible: the implementation of the military provisions of the Framework Agreement, the amnesty for crimes except international crimes as defined in the statute of the ICTY, and finally, the establishment of functioning mechanisms for the protection of human rights.157 While the first two were not too problematic, it is the latter benchmark that seemed least likely to be fulfilled in due time,158 NGOs reporting widespread cases of “assault and threats to physical security, restrictions on free movement, property destruction and obstructionist property laws.”159 Most Bosnians who had originally received temporary protection were eventually able to stay permanently in almost half of EU Member States.160 Germany, on the other hand, started enforcing returns as early as October 1996, disregarding UNHCR’s advice.161 The 1999 Kosovo conflict confirmed the relevance of temporary protection to address influxes created by sudden and grave humanitarian crises. The NATO campaign in Serbia and Kosovo led to an unprecedented movement of refugees – around 900,000 across the borders to Macedonia and Albania and Montenegro.162 While UNHCR had at first supported the reception of refugees in the neighboring countries, the situation in Macedonia led to increasing pressure to undertake evacuations out of the region.163 The instruments previously adopted by the EU were not even used by Member States,164 even though one might 157

Simon Bagshaw, Benchmark or Deutschmarks? Determining the Criteria for the Repatriation of Refugees to Bosnia and Herzegovina, IJRL, vol. 9, 1997, 566, 572–573. 158 Id., 578–579. 159 Fitzpatrick (note 130), 369. 160 Koser/Walsh/Black (note 149), 448. 161 See UNHCR High Level Meeting on Implementation of Annex 7 of the General Framework Agreement in Force in Bosnia and Herzegovina, Operational Plan for Durable Solutions Within the Framework of Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina and Related Regional Return and Repatriation Movements, Oslo, 8 March 1996, HLWM/1996/1; Bagshaw (note 157), 579–581; Fitzpatrick (note 130), 369. 162 Astri Suhrke/Michael Barutciski/Peta Sandison/Rick Garlock, The Kosovo Refugee Crisis, An Independent Evaluation of UNHCR’s Emergency Preparadeness and Response, UNHCR’s Evaluation and Policy Analysis Unit, 2000, 6, para. 31. 163 Id., 92, para. 455. 164 Proposal for a Council Directive on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member State in Receiving Such Persons and Bearing the Consequences Thereof, COM (2000) 0303 final, 31 October 2000, 5, para. 3.1, O.J. 2000 C311 (Commission Proposal 2000).

African and European Legal Responses to Mass Influxes of Refugees

143

argue that they were indirectly influential in the policies adopted by the Member States and in the Council conclusions on displaced persons from Kosovo adopted on 27 May 1999. Unlike the ad hoc approach to temporary protection in the Bosnian crisis, UNHCR rapidly established precise refugee rights and obligations in the host countries of destination.165 Also, the most notable difference when compared to the Bosnian case lay in the fact that repatriation occurred less than three months after the mass outflow. This encouraging precedent undoubtedly played a role in the political consensus for the adoption of an EU binding instrument on temporary protection.166 The Amsterdam Treaty, which entered into force in 1999, marked a crucial stage in the development of EU asylum and immigration law, as it formally triggered the harmonization of these policies at the supranational level.167 The harmonization agenda was then laid out by the Tampere European Council Conclusions of October 1999. In its conclusions, the European Council urged “the Council to step up its efforts to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States.”168 The 2001 Temporary Protection Directive169 was the first normative asylum instrument to be adopted, and was widely regarded as having achieved a fair balance between ‘control’ and ‘humanitarianism,’170 an objective which has remained elusive in the upcoming European harmonization efforts. While 165

Suhrke/Barutciski/Sandison/Garlock (note 162), 93, para. 462. The Commission explicitly recognized that its Proposal was based on the experience gained during the Kosovo crisis and that it should form the basis for common rules in this area, Council Doc. 6709/01, 1. 167 Treaty of Amsterdam Amending the Treaty on European Union, the Treaty Establishing the European Community and Certain Related Acts, 2 June 1997, O.J. 1997 C 340/1 and Consolidated Version of the Treaty Establishing the European Community Incorporating the Changes Made by the Treaty of Amsterdam, O.J. 1997 C 340/173 (ECT); Sally Langrish, The Treaty of Amsterdam: Selected Highlights, ELR, vol. 23, 1998, 3; Jean-Marc Favret, Le Traité d’Amsterdam: Une révision a minima de la “charte constitutionnelle” de l’Union européenne, Cahiers de droit européen, 1997, 555; Christian W. A. Timmermans, Het Verdrag van Amsterdam, Tijdschrift voor Europees and economisch recht, vol. 45, 1997, 344; Henri Labayle, La libre circulation des personnes dans l’Union européenne, de Schengen à Amsterdam, L’actualité juridique – Droit administrative, 1997, 923; Koen Lenaerts/Eddy De Smijter, Le Traité d’Amsterdam, Journal des Tribunaux 1998, 25. 168 Conclusions of the Tampere European Council, 15 and 16 October 1999, para 16, available at: http://www.europarl.eu.int/summits/tam_en.htm. 169 See, supra, note 11. 170 These two concepts are borrowed from Gibney (note 119), 690. 166

144

Jean-Francois Durieux and Agnès Hurwitz

the Directive provided clarification on some of the crucial elements of temporary protection, hesitations about the international legal bases of the instrument and the level of harmonization required were still manifest during the negotiation process.171 Discussions also revealed that fundamental questions, namely the definition of mass influx and the nature of temporary protection, were still marred by confusion and uncertainty.172 I. Qualification

In European practice, temporary protection was often perceived as an alternative to Convention status.173 In this respect, the Directive provides at least welcome clarifications. From the outset of the negotiations, Member States endorsed the Commission’s statement that “temporary protection is not a third form of protection” but “a component of the system, and more specifically a tool enabling the system to operate smoothly and not collapse under a mass influx.”174 Paradoxically, Member States also agreed that the granting of temporary protection would not create a presumption of ‘refugeehood,’ as expressed in Article 3.1 of the Directive, which provides that “temporary protection shall not prejudge recognition of refugee status under the Geneva Convention.” The first statement would seem to exclude the characterization of temporary protection as an autonomous regime that would completely preclude the application of refugee status or subsidiary status determination. Yet, if temporary protection, according to the Commission, is an emergency procedure,175 then the substantial (as opposed to procedural) rights, or the reception standards granted to displaced persons would have to be based on a substantial status. In that case then, one ought to acknowledge a broader linkage than the one created by the possibility to claim asylum between temporary protection and ‘international protection status,’ that is, refugee status and subsidiary protection. While insistence on the fact that temporary protection is not a prima facie determination of

171

See General Comments from Delegations, Asylum Working Party, Council Doc. 10290/00, 2–3 (General Comments). 172 Id. 173 Gibney (note 119), 695. 174 Commission Proposal 2000 (note 164), para. 1.4. 175 General Comments (note 171), 2.

African and European Legal Responses to Mass Influxes of Refugees

145

refugee status176 is no doubt driven by political concerns about pull factors, one can realistically speculate that the granting of temporary protection would definitely be regarded by adjudicating authorities as an important, if not crucial element in determining the existence of ‘international protection status,’ in particular for individuals who “fled areas of armed conflict or endemic violence” or “have been the victims of systematic or generalized violations of their human rights.”177 The Commission in fact recognized that “the persons concerned may well include many refugees within the meaning of the Geneva Convention.”178 In that respect, while the link between temporary protection, on the one hand, and the Convention and subsidiary protection, on the other, may to some extent have been clarified, the determination of the nature of temporary protection, which was one of the stated objectives of the Commission,179 is still rather obscure. Another important discussion during the negotiations revolved around the notion of “overwhelmed asylum system.” In its explanatory memorandum, the Commission stated that “the consequences of a mass influx of displaced persons in the Union impose such pressures on the asylum system that special arrangements are necessary to give immediate protection to the persons who need it and avoid blocking up the asylum system […] .”180 It then reiterated that “the gradual arrival of asylum-seekers, refugees or displaced persons from a single country or region of origin cannot in itself justify the introduction of such temporary protection. However a point may come at which the movement of people, gradual at the outset, intensifies in such a way that it becomes massive and the normal asylum system is unable to absorb the flow.”181 Some delegations however, namely, Germany, France, Italy, Austria and the United Kingdom, considered that the inability of national asylum systems to deal with an influx of displaced persons should not be a prerequisite for implementing temporary protection.182 176 UNHCR actually noted that “in many respects, [temporary protection] is a variation of the admission and temporary refuge based on prima facie or group determination of the need for international protection that have been used frequently to deal with mass flows of refugees in other parts of the world.” UNHCR Note on International Protection 1994 (note 117), para. 46. 177 2001 Directive (note 11), Art. 2 para. c subparas. i and ii. 178 Commission Proposal 2000 (note 164), para. 5.6. 179 Id., para. 5.1. 180 Id., para. 1.4, see also para. 5.1. 181 Id., comments on Art. 1 lit. d. 182 Council Doc. 6128/01, 3; Council Doc. 6709/01, 3.

146

Jean-Francois Durieux and Agnès Hurwitz

A final compromise was found, reflected in the final wording of the instrument which indicates that temporary protection will apply “in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation.”183 This is a significant difference from UNHCR’s approach, which, as was analyzed above, considered the inability of the asylum system to deal with the flux as a qualitative and defining element indicating the existence of a mass influx.184 From the early days of temporary protection, the precise personal scope of the concept has been relatively vague and subject to variation, as was shown above. In 1994, UNHCR acknowledged that “beneficiaries of temporary protection have in fact included both persons who clearly qualified as refugees under the Convention and others who might not.”185 The ambiguity in the scope of application of temporary protection is still prevalent in the provisions of the Directive. Article 2 stipulates that (i) ‘displaced persons’ means third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organizations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1 A of the Geneva Convention or other international or national instruments giving international protection, in particular: persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk, or who have been the victims of systematic or generalized violations of their human rights.

While this relatively broad definition was welcomed by most commentators, posterior legislative developments have led to serious discrepancies with one of the major EU harmonization instruments, namely, the Directive on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted.186 The recently adopted Qualification Directive provides that

183

Emphasis added. UNHCR Global Consultations, Protection of Refugees in Mass Influx Situations: Overall Protection Framework, UN Doc. EC/GC/01/4 (2001), para. 14; see also UNHCR Commentary on the Draft European Directive on Temporary Protection in the Event of a Mass Influx, Council Doc. 11620/00, 13. 185 UNHCR Note on International Protection 1994 (note 117), para. 47. 186 See, supra, note 127. 184

African and European Legal Responses to Mass Influxes of Refugees

147

‘persons eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country.187

The Directive then goes on to define serious harm as (a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.188

It is clear from the reading of these provisions that the scope of protection provided under the Temporary Protection Directive is broader than the one adopted in the Qualification Directive. The former instrument covers the cases where persons have been the victims of generalized and systematic violations of their human rights, which does not seem to be included in the latter instrument. The main reason for this peculiar state of play is relatively straightforward: while the temporary protection proposal was adopted swiftly, the negotiation of the Qualification Directive proved extremely arduous, and the original draft presented by the Commission was amended in a manner that reflected the increasingly restrictionist approaches of Member States. Far less straightforward are the eventual consequences of such discrepancy. Would it be lawful for Member States to restrict the application of the Council Decision, so as to mirror the scope of the Qualification Directive? If temporary protection were to be granted to persons who are not covered by the Qualification Directive, would it be up to Member States to decide on the discretionary extension of long-term protection to these individuals? Lastly, Article 7 allows Member States to extend temporary protection to additional categories of persons. The French and Dutch delegations considered, however, that this would affect the provisions on solidarity, and trigger unintended

187 188

Id., Art. 2 lit. e. Id., Art. 15.

148

Jean-Francois Durieux and Agnès Hurwitz

secondary movements.189 A solution of compromise was found, by providing that burden-sharing clauses will not be applicable to this additional caseload.190 In procedural terms, the Directive provides that the Council will adopt a decision with qualified majority voting regarding the existence of a mass influx that will activate the application of the regime.191 The voting procedure was strongly resisted by the French, Spanish and Portuguese delegations,192 who wanted the decisions to be adopted by unanimity “given their exceptional character, their consequences and the fact that they may concern foreign policy aspects.”193 The Commission had indicated that the Council decision would in any case be made on the basis on an examination of specific questions, including those related to the solidarity issue.194 The European Parliament also insisted that the Council Decision “not be based solely on a discretionary assessment of advisability, but also on specific facts that can determine the real need to establish temporary protection.”195 This discussion highlighted what may actually be the fundamental weakness of the Temporary Protection Directive. It leaves open the possibility that no agreement might be found to activate temporary protection even if an actual mass influx of refugees were to occur. A hypothetical question then arises as to the justiciability of potential inaction by the Council on such a matter.196 189

Council Doc. 6128/01, 11; see also German and Dutch position in Council Doc. 13958/00, 11. 190 2001 Directive (note 11), Art. 7 para. 3. 191 Id., Art. 5 para. 1. 192 Note from the French Delegation, Council Doc. 8510/00, 3; this proposal was maintained by France with the support of Portugal and Spain, Council Doc. 6128/01, 9. 193 Council Doc. 7964/01, 3. 194 Commission Proposal 2000 (note 164), para. 5.5. 195 European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Report on the Proposal for a Council Directive on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member States in Receiving Such Persons and Bearing the Consequences Thereof, Doc. A5-0077/2001 (Report on the 2000 Proposal). 196 In accordance with Art. 232 ECT, Member States, Community institutions and natural or legal persons may lodge a claim before the European Court of Justice in case a Community institution fails to take action and infringes the Treaty or any other rule of Community law, see Paolo Mengozzi, European Community Law from the Treaty of Rome to the Treaty of Amsterdam, 2nd ed. 1999, 171. However, the claimants must prove that the Community institution was under an obligation to act, and the wording of Art. 5.1 does not clearly indicate that the Council is under an obligation to act if a mass influx occurs.

African and European Legal Responses to Mass Influxes of Refugees

149

II. Standards of Treatment

Under international refugee law, the basic standards of temporary protection include admission to the country of refuge, protection against refoulement, compliance with basic human rights, and treatment in accordance with internationally recognized humanitarian standards such as those outlined in UNHCR’s Executive Committee Conclusion No. 22, and repatriation when conditions in the country of origin change. It should be recalled, however, that Conclusion No. 22 addressed the specific Indo-Chinese crisis, in particular the fact that most first asylum countries in the region were not parties to the Convention.197 Its relevance in the African, European and American contexts is therefore limited. UNHCR also noted that standards of treatment would vary based on the reception capacity, the system of social benefits and the economic situation of the asylum country.198 The standards of reception provided under the Directive constitute a middle ground between the status of asylum seeker and the rights accorded to refugees. Once again, this reflects the unresolved nature of temporary protection, which results from the refusal to recognize the granting of temporary protection as positive presumption of refugeehood, combined with Member States’ implicit objective of restricting the number of asylum seekers. While access to education, social welfare, or housing did not raise major difficulties during the drafting process,199 two issues, family reunion and access to the labor market, crystallized the tension between integration and exclusion, conforming to past trends in European immigration and asylum policies. With regard to labor market access, the original formulation of Article 10 by the Commission stated that “Member States must provide persons enjoying temporary protection with access to employment on equal terms with refugees.”200 One of the rationales put forward by the Commission was that access to the labor market would be important in order to “make it more attractive” than the asylum procedure.201 While the Swedish Delegation expressed its support for integration, the Commission’s argument did not convince other Member States 197

Durieux/McAdam (note 43), 16. UNHCR Note on International Protection 1994 (note 117), para. 49. 199 See 2001 Directive (note 11), Arts. 13 and 14. Other rights include the provision of residence permits (Art. 8), and the protection of unaccompanied minors (Art. 16). 200 Commission Proposal 2000 (note 164), Comments on Art. 10. 201 Commission Proposal 2000 (note 164), para. 5.6. 198

150

Jean-Francois Durieux and Agnès Hurwitz

and the provision was strongly opposed by the Austrian delegation.202 Access to the labor market was eventually made subject to Member States “right to reserve priority for other legally resident third country nationals.”203 The second issue, family reunion, has been the subject of great dissensions amongst Member States, reflecting, to a large extent, widespread fear about creeping immigration through family reunification channels. Most delegations (Austria, Ireland, Belgium, Germany, Spain, France, Holland and the United Kingdom) favored a narrower definition of family, or at least less detailed provisions,204 while Sweden, once again, advocated a more liberal approach.205 It is no coincidence that the Family Reunion Directive was adopted after the most difficult negotiations and is now the first post-Amsterdam instrument to be examined by the European Court of Justice.206 This analysis would be incomplete without a determination of the nature of the standards laid down in the Directive. Some have questioned whether the Directive creates subjective rights that are judicially enforceable against the Member States.207 Article 29 provides for a right to legal challenge “in the Member State concerned” against a decision to exclude an individual “from the benefit of temporary protection or family reunification,” but it is not clear whether this could include a challenge against a Member State’s decision to restrict access to the labor market. Before the recognition of EC competence in the realm of justice and home affairs, most instruments adopted by the European Union were 202 General Comments (note 171), 3; the Austrian delegation then required a written opinion by the Council Legal Service on the question of access to the labor market, in particular on “whether a comparison could be established with asylum seekers but not with refugees and whether it would be more appropriate to examine the possibility of granting the right to work on a case by case basis,” Council Doc. 6128/01, 14. 203 2001 Directive (note 11), Art. 12. 204 Council Doc. 6128/01, 17. 205 General Comments (note 171), 4. 206 See Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, O.J. 2003 L 251/12; the European Parliament brought before the European Court of Justice an action against the Council on 22 December 2003, requesting the Court to annul some of the provisions of the family reunification Directive, on the grounds that the Directive violates the fundamental rights of minors, as well as the right to family life and the right not to be discriminated against, Case C-540/03, O.J. 2004 C 47/21. 207 Kerber (note 149), 201; Helen Toner/Agnès Hurwitz, The EU Asylum Acquis in the UK, Tolley’s Journal of Immigration Asylum and Nationality Law, vol. 18, 2004, 32, 34.

African and European Legal Responses to Mass Influxes of Refugees

151

not directly applicable in the Member States’ legal order, and therefore, did not create subjective rights for individuals.208 However, the longstanding jurisprudence of the European Court of Justice regarding the direct effect of directives would suggest that individuals could request the application of the provisions of the Directive of the rights therein,209 provided – and this is an important caveat – the Council decision referred to in Article 5 has been adopted. Similarly, the non-enforcement of the provisions of the Directive after the adoption of the Council decision ought to be challengeable by individuals before national courts.210 Finally, the question of the reception of large numbers of refugees cannot be isolated from the vexing issue of burden-sharing, one of the more controversial topics of the asylum debate at the European and global levels. The Directive is not the first instrument that attempts to regulate burden-sharing; in fact, initiatives in this area have started as early as the harmonization process itself. Financial solidarity has been tackled, albeit in a limited fashion, through the establishment of the European Refugee Fund.211 But it is the question of ‘physical’ burden-sharing that really demonstrated the limits of European solidarity in the asylum realm. The Commission recognized from the outset that it had low expectations, and that agreement would only be possible on the basis of the lowest common denominator.212 Thus, the Council decision that will “activate” temporary protection shall in principle include “offers” of reception by each Member State. This flimsy principle is further softened by the indication that Member States are not bound to indicate precisely how many displaced persons they are able to host.213 The ongoing controversy surrounding the question of burden-sharing is apparent in the documents annexed to the Directive. In a statement included in the minutes of the Council Meeting, Austria voiced its 208

Kerber (note 139), 43. Paul Craig/Grainne de Burca, EU Law, Text Cases and Materials, 2nd ed. 1998; Jolande M. Prinssen/Annette Schrauwen (eds.), Direct Effect: Rethinking a Classic of EC Legal Doctrine, 2002. 210 Steve Peers, Who’s Judging the Watchmen? The Judicial System of the ‘Area of Freedom Security and Justice’, Yearbook of European Law, vol. 18, 1998, 337. 211 Agnès Hurwitz, Commentaires sur la determination de l’Etat responsable de l’examen d’une demande d’asile et la repartition des charges entre Etats Membres, in: Constança Dias Urbano de Sousa/Phillipe De Bruycker (eds.), The Emergence of European Asylum Policy, 2004, 71, 77–80. 212 Commission Proposal 2000 (note 164), para. 6.1. 213 Id., Dias Urbano de Sousa/De Bruycker (note 211) 80. 209

152

Jean-Francois Durieux and Agnès Hurwitz

preference for an equitable burden-sharing scheme, and declared that it would determine the number of persons it can receive, on the basis of a comparison between the respective populations of each Member State. Opponents to the system, primarily the United Kingdom and France, estimated on the other hand that such rigid repartition key would contradict the principle of ‘double voluntariness,’ in accordance with which transfer to a Member State requires the consent of both the host State and the displaced person.214 III. Termination and Durable Solutions

The Directive provides that temporary protection should last one year, with the possibility for an automatic extension of six months. A second extension of six months may be decided by the Council. Finally, a third year extension can be decided by the Council at qualified majority, where reasons for temporary protection persist.215 On this question, delegations were also divided on whether the duration should be of one year or 18 months maximum or should exceed two years.216 The debate over the duration of temporary protection reflected fundamental differences between Member States’ positions on the actual purpose of temporary protection. The States that advocated a longer duration of temporary protection were also those who challenged the concept of overwhelmed asylum system as an essential element of a mass influx, favoring therefore the use of temporary protection as an alternative to refugee or subsidiary protection status. On the other hand, those States who were concerned about such use of temporary protection tended to support a shorter duration of temporary protection. Beneficiaries of temporary protection may have their protection terminated in two main different ways. First, they may be granted refugee or subsidiary protection status during or at the end of the period during which temporary protection applies. Article 17, which allows individuals benefitting from temporary protection to claim asylum at any time, is perhaps the single most significant provision brought about by the Directive. It signaled an important policy shift, 214

Karoline Kerber, The Temporary Protection Directive, European Journal of Law and Migration, vol. 4, 2002, 193, 211. 215 2001 Directive (note 11), Art. 4. 216 This was the position of Germany and Italy, Council Doc. 6128/01, 8; see also Council Doc. 7964/01, 3.

African and European Legal Responses to Mass Influxes of Refugees

153

breaking away from the practice of many European States, who had suspended the right to claim asylum, or even excluded it for beneficiaries of temporary protection.217 The question was raised from the early stages of the negotiation by the Spanish and French Delegation, who indicated that it would be unlawful to suspend the rights granted under the 1951 Convention.218 Other delegations considered, along with the Commission, that the procedure could be suspended for the duration of temporary protection.219 UNHCR’s view was that temporary protection effectively suspended access to the asylum procedure for a limited period of time.220 After lengthy negotiations,221 the orthodox legal approach prevailed, and the final provision provides for the rights of persons who have been granted temporary protection to be able to apply for asylum at any time.222 However, Member States will be able to evade this principle with relative ease, since they are under no obligation to adjudicate asylum claims within a prescribed time limit. Furthermore, Article 19 allows Member States to decide that temporary protection may not be enjoyed concurrently with the status of asylum seeker.223 The European Parliament considered that persons enjoying temporary protection should not lose their rights if they apply for asylum, on the ground that this would act as a disincentive to apply for asylum, and the text of the original proposal could be open to abuse by Member States.224 Yet, one can reasonably expect that most Member States will effectively discourage individuals from claiming asylum, leading to a de facto suspension of the right to lodge an asylum claim.

217

Kerber (note 139), 38. General Comments (note 171), 2; Council Doc. 6128/01, 21. The French were supported by Belgium, Portugal, whereas Germany, the Netherlands, Austria, Finland, Sweden considered that the arrangement suspending consideration of asylum application and the introduction of a system of temporary protection were closely linked since the mass influx of persons was likely to hinder the smooth functioning of the asylum system; on this question see also Walter Kälin, Temporary Protection in the EC: Refugee Law, Human Rights and the Temptations of Pragmatism, German Yearbook of International Law, vol. 44, 2001, 202, 220. 219 General Comments (note 171), 2; Council Doc. 6128/01, 21. 220 Council Doc. 6303/01, 3. 221 Delegations Observations, Council Doc. 11650/00, 9. 222 2001 Directive (note 11), Art. 17. 223 Id., Art. 19. 224 Report on the 2000 Proposal (note 195), 17. 218

154

Jean-Francois Durieux and Agnès Hurwitz

The second likely scenario is return. With its short duration and ‘repatriation bias,’ temporary protection regimes have generally encompassed specific arrangements for repatriation, reintegration and rehabilitation in the country of origin, where permitted.225 While individual admission raises expectations of local integration, such presumption is not present in cases of mass influx.226 In the 1994 Note on International Protection, UNHCR explained that temporary protection would come to an end if conditions in the country of origin have changed sufficiently to allow for return in safety and dignity, ideally through voluntary repatriation.227 For policy-makers, temporary protection is particularly advantageous in that it altogether avoids the cessation conundrum and allows States much wider discretion in the determination of the existence of conditions for safe return. The notion of ‘safe and dignified return’ has acquired increased legitimacy over the years and, as shown above, seems to have been progressively used to trump a strict understanding of voluntariness.228 As long as repatriation was voluntary, a thorough and objective assessment of conditions in the country of origin was not crucial. Goodwin-Gill observed that while States implementing repatriation are obviously bound by fundamental obligations such as non-return to a country where an individuals would face a substantial risk of being tortured or of suffering cruel, inhuman or degrading treatment or punishment, there are no other binding standards that would help determine whether return is indeed safe, such as the absence of conflict, de-mining processes, and a working police force and justice system.229 Now that safe return is increasingly becoming the norm, however, there is a need to develop clearer standards and benchmarks to assess physical, material and legal safety in countries of origin. UNHCR’s Repatriation Plan adopted to implement the Dayton agreement was one of the first attempts in an interna-

225

UNHCR Note on International Protection 1994 (note 117), para. 50. Goodwin-Gill (note 5), 202. 227 UNHCR Note on International Protection 1994 (note 117), para. 50; see also UNHCR Note on International Protection 1992 (note 131), para. 24, which uses stronger language, “well-defined, objective criteria would have to be set for determining that danger no longer exists before obligatory return could be implemented.” 228 Jens Vevsted-Hansen, An Analysis of the Requirements for Voluntary Repatriation, IJRL, vol. 9, 1997, 559, 560. 229 Cited in Bagshaw (note 157), 571; see also Fitzpatrick (note 130), 345. 226

African and European Legal Responses to Mass Influxes of Refugees

155

tional instrument – albeit non-binding – to identify with greater precision the conditions that should be fulfilled for return to occur in safety.230 As was made clear from the discussions during the negotiation of the Directive, two sets of policy debates that emerged during the Bosnian crisis have not been fully resolved: integration versus exclusion, which was also examined above in the discussion on standards of protection, and voluntary versus enforced return.231 The Directive is particularly disappointing with regard to the latter issue, and did not improve upon the emerging international standards currently applicable to repatriation, for they seem to leave considerable political discretion to State authorities. Article 21 deals with voluntary return, while enforced return is addressed in Article 22, providing nevertheless for a caveat in cases of ‘compelling humanitarian reasons’ that are elaborated upon in Article 23. Discussions on this question were dominated by the insistent German and Dutch request to introduce the concept of enforced return,232 which was not originally provided in the Commission’s Proposal.233 The 1997 Commission Explanatory Memorandum to the Proposal for a Joint Action concerning Temporary Protection of Displaced Persons in fact provided more detailed criteria than those contained in the 2001 Directive, such as right to return to the home of origin, physical and legal safety, non-discrimination, basic assistance and shelter, and human rights monitoring.234 Similarly, UNHCR insisted that safe and dignified return would entail “the prevalence of calm and security in the area concerned, the presence of a functioning governing authority, the existence of basic structures of administration including a functioning system of law and justice and the existence of adequate infrastructures to enable residents to exercise their right to a basic livelihood.”235 Fitzpatrick finally recommended that the causes of a refugee flow be identified in each case, and be 230

While Germany, France and the United Kingdom “sponsored” the Dayton agreement, and signed the document as “witnesses,” the legal value of this signature is nonetheless limited, Bagshaw (note 157), 586–591. 231 Id., 458. 232 Council Doc. 6128/01, 25. 233 The Commission referred to “facilitated” and “assisted” return, Commission Proposal 2000 (note 164), 22, 36. 234 Proposal to the Council for a Joint Action Based on Art. K.3 para. 2 lit. b of the Treaty on European Union concerning Temporary Protection of Displaced Persons, COM (1997) 93 final, 5 March 1997; Fitzpatrick (note 130), 364. 235 See Note on the Cessation Clauses, Executive Committee of the High Commissioner’s Programme, 8th Meeting, UN Doc. EC/47/SC/CRP.30 (1997).

156

Jean-Francois Durieux and Agnès Hurwitz

compared with actual conditions of physical, material and legal safety before repatriation is envisaged.236 The lack of clarity in the relationship between voluntary and enforced return demonstrates a fundamental ambivalence about the nature of repatriation, and could create difficulties at the implementation stage. For instance, the success of ‘go and see’ policies may be jeopardized if people fear the enforcement of “safe” return.237 As Fitzpatrick observed, “formal standards for withdrawal of temporary protection should strike a principled but realistic balance between the host state’s interest in controlling irregular immigration and the TP beneficiaries’ need for security.”238 As has often been the case in the EU integration process, the determination of precise criteria demonstrating the existence of conditions for safe and dignified return might have to be carried out by the courts at national and supranational level. E. Conclusions While at the universal level normative advances in international refugee law have been increasingly difficult to achieve, regional processes have been more effective in devising legal responses to large-scale displacement of refugees. Yet, it is important to underline that African and European regional arrangements are grounded in the universal protection regime, which goes to demonstrate the relative adaptability of the latter to situations of mass influxes. In other words, it is a combination of global and regional approaches that might most effectively address these crises. The Temporary Protection Directive establishes a true regime of exception tailored to exceptional circumstances of mass influx, and avoids the suspension of the 1951 Convention by guaranteeing access to normal procedures at any time. The unintended consequence of this approach, however, may be to encourage States to maintain long waiting periods, undermining thereby the conventional framework and causing injustice to refugees.

236 237 238

Fitzpatrick (note 130), 367. Vevsted-Hansen (note 228), 562. Fitzpatrick (note 130), 363.

African and European Legal Responses to Mass Influxes of Refugees

157

Because mass influxes are seen as the rule rather than the exception in Africa, the OAU Convention does not contain such an emergency mechanism, except perhaps through its call for burden sharing, which has limited effectiveness at the regional level. These limitations make it particularly difficult to ensure full implementation of the Convention, both in the emergency phase and throughout the entire duration of protection. With respect to qualification, the Temporary Protection Directive dispels some of the ambiguity between the personal and material scopes of protection, and the qualitative (the causes of flight) and the quantitative (the scale) dimensions of mass influxes. Yet, it stops short of prima facie recognition of refugee status by creating an ‘interim’ status the nature of which is not fully clarified. Since refugee and subsidiary protection statuses have become increasingly intertwined through the adoption of the Qualification Directive, one wonders whether prima facie recognition of a need for international protection, as a conclusive but rebuttable presumption, is not the way forward for the EU. The advantages would be significant in situations where return cannot be effected in a short timeframe. The OAU Convention, on the other hand, both has a comprehensive refugee definition and allows prima facie recognition. The interpretation of the definition has unfortunately not been subjected to longstanding jurisprudential scrutiny as in Europe, and there is only minimal regulation of group determination procedures in African practice. The analysis carried out in the present study highlighted in particular the need for clearer and more specific standards to screen out individuals who have been recognized prima facie but who are not in need of, or not deserving, international protection. On standards of treatment, there is without doubt a gulf between European and African realities, and the comparison between the two regions is therefore of more limited significance. The OAU Convention looks generous, but it is in fact impractical. The granting of durable asylum is linked to burden-sharing, which would be acceptable if it were not so loosely formulated. The quid pro quo that exists in practice cannot easily be accommodated within the 1951 Refugee Convention’s strict legal structure. The Directive, on the other hand, creates a status presented as a prelude to either return or a decision ex nunc on refugee/subsidiary protection status. This allows for the use of the lower standards, mostly similar to reception conditions for asylum seekers, whereas prima facie recognition would have triggered the full array of Convention rights.

158

Jean-Francois Durieux and Agnès Hurwitz

Effective burden-sharing mechanisms could help avoid undermining reception standards, and would eliminate or at least attenuate the extent to which asylum systems may be affected by large scale refugee influxes. European practice provides perhaps the most glaring evidence that States, even those that have engaged in unprecedented integration processes, are fundamentally reluctant to commit to burden-sharing in the realm of asylum policy, and prefer to use leverage in other areas of supranational competencies. African burden-sharing, has, on the other hand, remained elusive due to the tragic lack of resources of African States, requiring therefore global commitment for further assistance, which, in spite of UNHCR’s best efforts, remains fragile and inconsistent. It is the regional practice on the question of termination and durable solutions that is perhaps of greatest relevance to the global debate. The OAU Convention takes a principled approach on voluntary repatriation. In practice, however, other solutions are difficult to implement pending the trigger of mass voluntary return. African practice also shows that the concept of voluntariness is a matter of degree between spontaneous return, at one extreme, and formal cessation of protection, at the other. This fundamental ambiguity is also apparent in the Temporary Protection Directive, even if there definitely is much greater clarity than ever before on the duration of temporary protection, which is now properly regulated. In sum, regional approaches highlight the need for an “intermediate step” between the legal standard of cessation on account of changed circumstances – which appears excessively legalistic and rigid – and the policy recommendation that States take into account the refugees’ desire to return home – which appears to make States’ interests subservient to refugees’ whim. Goodwin-Gill has nicely captured the essence of the ‘safe return’ discussion: “From having been a description of the preferred consequence or effect of repatriation, the notion of ‘safe return’ has come to occupy an interim position between the refugee deciding voluntarily to go back home and any other non-national who, having no claim to international protection, faces deportation or is otherwise required to leave.”239 In situations of mass influx, dealing with the causes of the flow and supporting return processes becomes the priority and tends to distort the discussion on

239

Goodwin-Gill (note 5), 275.

African and European Legal Responses to Mass Influxes of Refugees

159

the reception and standards of treatment of refugees, particularly where shortterm return is not possible. While it is understandable that States feel pressured to return refugees in these circumstances, this logic cannot be allowed to supersede the fundamental principles that underpin the conventional regime. Regardless of their numbers, and through the operation of international solidarity, refugees must be treated in a manner that preserves their safety, freedom and dignity until durable solutions can be found.

South Africa and International Law – From Confrontation to Cooperation By Hennie Strydom* A. Introduction Today, the principles underlying South Africa’s foreign policy reflect a conscious attempt to give recognition to the legal and moral framework which the international community of states has put in place after the Second World War. This recognition finds expression in a number of strategic objectives the new democratic State has undertaken to pursue and which include a commitment to enhance respect for international law, comply with obligations in terms of the United Nations Charter,1 promote human rights, good governance and multilateralism, especially as a member of the African Union, participate in peacemaking and conflict prevention efforts on the African continent, support initiatives for the reform of the UN system and the Bretton Woods Institutions, and work for a rules-based and fair international trading regime through the World Trade Organization.2 However, the above commitments also serve as a reminder that there was a time when South Africa’s relationship with the world looked rather different. Forced to take a defensive stance because of its racial policies under apartheid, the legal and political disputes on the status of South West Africa (Namibia) and its subsequent military antics against the liberation movements in neighboring countries, the country was drawn into a widening gulf of attitudes and eventually met with a collective opposition not seen before in international relations short of war and spanning half a century. Not even the most undemocratic regime of the time could marshal a similar unifying effect on a world deeply di*

Professor in Public International Law, University of Johannesburg, South Africa. Charter of the United Nations, 26 June 1945, UNCIO, vol. 15, 335 (UN Charter). 2 See Department of Foreign Affairs, Foreign Policy Principles, available at: http:// www.dfa.gov.za/department/stratplan03-05.htm. 1

South Africa and International Law

161

vided along ideological lines or involve such a large number of UN organs and agencies joining the chorus of condemnation. If one has to search for a redeeming feature in this most unfortunate period in the republic’s early history,3 it is the lesson of how national political histories can be shaped by changes in international affairs and how the former, in turn, can become wholly internationalized. In the South African episode of this process, international law and the way in which it was applied and interpreted on both sides of the gulf of attitudes could not remain impervious to the ‘winds of change’4 that were sculpting the contours of international relations theories and emerging state practices, especially in a geo-political context. In this article only some salient aspects of this period will be used for prefacing the developments that have taken place subsequent to the first democratic elections of April 1994, a miraculous event that brought the country back from the edges of a bloody civil war and profoundly changed its role in the international community of States. B. At Loggerheads with the International Community I. The World of J.C. Smuts

Between 1945 and 1988 the overriding aim of successive South African governments was the preservation of a white-controlled state in a part of the world where the majority population was black African. One of the great ironies of the first cycle of this period was the international role played by General J.C. Smuts – a major contributor to the establishment of the League of Nations – in giving shape, especially during his second term as Prime Minister of South Africa 3

South Africa’s Union status ended on 31 May 1961 when it gained independence from the United Kingdom as a Republic. 4 In 1960 the British Prime Minister, Harold Macmillan, gave his famous ‘wind of change’ speech in the South African Parliament in which he made the following pertinent observation, embarrassing to the ruling party of H. F. Verwoerd, the architect of apartheid: “It is a basic principle of our modern Commonwealth that we respect each other’s sovereignty in matters of internal policy. At the same time we must recognize in this shrinking world in which we live today the internal policies of one nation may have effects outside it. We may sometimes be tempted to say to each other, ‘Mind your own business,’ but in these days I would myself expand the old saying so that it runs: ‘Mind your own business, but mind how it affects my business too.’” See Harold Macmillan, Pointing the Way, 1972, 473 et seq.

162

Hennie Strydom

(1939–1945), to the principles and objectives of the United Nations Organization. In his endeavors to prevent a third world war, Smuts also supported two other interlocking developments: the restoration of Europe and the reinforcement of the British Commonwealth. As President of the Commission on the General Assembly he drafted the Preamble to the Charter of the United Nations, with its re-affirmation of faith in fundamental human rights and the dignity of the human person, and it was said that “his ideas and policies had a grand, panoramic sweep which his successors never emulated, or perhaps never had the opportunity to emulate.”5 What Smuts failed to anticipate was that his own work would translate into post-war values for the judging of state conduct even in the domestic sphere, a domain which all thought was hidden behind Article 2 para. 7 of the UN Charter. In this context the respected international statesman could not escape the consequence of his position as the leader of a government that had legally entrenched racial discrimination. As the attacks on South Africa’s racial policies increased, the UN became unrecognizable for Smuts, even a great disappointment, as he once remarked, and he could not hide his indignation that the main attacks came from governments that ignored their own sins, such as India where the caste system was firmly entrenched.6 However, what motivated the international response at the time was not good governance or democratic rule in the substantive sense of the word, or an unease with discrimination in general. Had this been the case, the General Assembly, for instance, which was never a club of democrats, would have faced the same dilemma as Smuts, especially at the time when the newly independent African States started to take up their seats in the Assembly. What drew the unprecedented response was the racial element of the discrimination7 and the recalcitrance of successive governments to understand the raw nerve left by colonial exploitation in the Third World and the Second World War atrocities committed against the Jews in the name of preserving racial superiority, a delusion some nationalist government leaders in South Africa also succumbed to in their own defense, at least initially, of the need for segregation of the races by means of legislative and other measures. 5

James Barber/John Barrat, South Africa’s Foreign Policy: The Search for Status and Security 1945–1988, 1990, 17. See also Deon Geldenhuys, The Diplomacy of Isolation: South African Foreign Policy Making, 1984, 6–7; id., Foreign Political Engagement, 1998, 73 et seq. 6 Barber/Barret (note 5), 21–22. 7 Cf. also Dalvan Moe Coger, The International Politics of Apartheid: South Africa and the United Nations 1945–1962, 1970, 23.

South Africa and International Law

163

II. A Lesson about Sanctions

Initially the General Assembly of the United Nations opted for persuasion, a response that commenced with resolutions on the treatment of Indians in South Africa, requesting the governments involved to enter into discussions with a view to settling the matter, taking into consideration the purposes and principle of the UN Charter.8 This proposal, like the subsequent establishment of a Good Offices Commission9 to arrange and assist in negotiations on solving the matter, met with intransigence on the part of the South African government, whose reliance on Article 2 para. 7 of the UN Charter, like the General Assembly’s subsequent condemnation of government policies on a wider front,10 became routine over time and locked the international debate into a symbiotic straightjacket with its own jargon and rhetoric. A watershed development was the adoption in 1960 of the Declaration on the Granting of Independence to Colonial Countries and Peoples by a resolution of the General Assembly11 supported by eighty-nine votes to none, with nine abstentions, including South Africa. This Declaration, which gave new legal impetus and form to the concept of self-determination, was followed in 1963 by the Declaration on the Elimination of All Forms of Racial Discrimination,12 the precursor to the Convention on the Elimination of All Forms of Racial Discrimination,13 which entered into force on 4 January 1969. The significance of these developments, and especially the opportunity they provided for a tougher stance against South Africa, was further enhanced by international as well as domestic events at the time. The transformation of colonial territories into independent States set in motion a rapid increase in the number of African delegations in the General Assembly pressing for more severe penalties, such as the revocation of South Africa’s South West Africa mandate, mandatory boycotts, severance of diplomatic relations and even the expulsion of South Africa from the United 8

GA Res. 44 (I) of 8 December 1946; GA Res. 265 (III) of 14 May 1949. GA Res. 615 (VII) of 5 December 1952. 10 See GA Res. 719 (VIII) of 11 November 1953; GA Res. 816 (IX) of 4 November 1954; GA Res. 919 (X) of 14 December 1955; GA Res. 1015 (XI) of 30 January 1957; GA Res. 1179 (XII) of 26 November 1957; GA Res. 1302 (XIII) of 10 December 1958; GA Res. 1460 (XIV) of 10 December 1959. 11 GA Res. 1514 (XV) of 14 December 1960. 12 GA Res. 1904 (XVIII) of 20 November 1963. 13 International Convention on the Elimination of All Forms of Racial Discrimination, GA Res. 2106 (XX) of 21 December 1965. 9

164

Hennie Strydom

Nations.14 Inside South Africa the dust had hardly settled on Macmillan’s ‘wind of change’ speech when the bloody confrontation in Sharpeville between the South African police and demonstrators against the black pass laws made international headlines, causing a turning point in the treatment of South Africa with condemnation in the General Assembly starting to hint at repercussions for the maintenance of international peace and security. The new mood found expression in resolutions warning that the government’s policies “have led to international friction and that their continuance endangers international peace and security.”15 There then followed calls for a severance of diplomatic and economic relations,16 and even a recommendation to the Security Council to consider “the question of apartheid with a view to adopting, under Chapter VII of the Charter of the United Nations, effective measures to ensure the full implementation of comprehensive mandatory sanctions against South Africa.”17 The initiative of the General Assembly to bring the South African situation closer to an assessment in terms of Chapter VII of the UN Charter could not be ignored indefinitely by the Security Council, and in the 60s the Assembly’s efforts started to pay off. Naturally, the Sharpeville incident was of great help in setting the stage for greater involvement by the Council. Without making a determination in terms of Article 39 of the UN Charter, the Security Council in 1960 considered the “situation arising out of the large-scale killings of unarmed and peaceful demonstrators against racial discrimination” and described it as “one that has led to international friction and if continued might endanger international peace and security.”18 Here, as in the case of the General Assembly’s ranting on South Africa, the South African government’s default argument was that the Security Council, by virtue of Article 2 para. 7 of the UN Charter, was not competent to interfere in the country’s domestic affairs. By now it should have been clear that this reading of the UN Charter was overtaken by historical and political events to which the Security Council was also destined to give shape. A 1963 resolution referred to the South African situation as one that is “seriously disturbing international peace and security,”19 and in 1970 the Council held that the “policies of apartheid and the constant build-up of the South 14 15 16 17 18 19

Coger (note 7), 26. GA Res. 1598 (XV) of 13 April 1961. GA Res. 1761 (XVII) of 6 November 1962. GA Res. 2396 (XXIII) of 2 December 1968. SC Res. 134 of 1 April 1960. SC Res. 181 of 7 August 1963.

South Africa and International Law

165

African military and police forces” constitute “a potential threat to international peace and security.”20 Again domestic and regional events in the 70s affected the hitherto cautious approach and wording of Security Council resolutions. On 25 April 1974 a military coup in Portugal set in motion a chain of events that had a profound effect on regional stability and security matters in Southern Africa. Portugal’s new Junta of National Salvation aroused widespread expectations of reform which included abandoning military control over two strategically important countries, Mozambique and Angola, where increased insurgency by the then liberation movements made colonial control a very costly and politically unwise option. When Portugal abandoned these colonial possessions, the race started for taking control of the vacuum. In Angola, the Movement for the Liberation of Angola (MPLA) was involved in a bitter struggle with two rival movements, the National Union for the Total Independence of Angola (UNITA) and the National Front for the Liberation of Angola (FNLA). In Mozambique, the Front for the Liberation of Mozambique (FRELIMO) faced less resistance and could count on a less problematic seizure of power. But it was Soviet backing of both the MPLA and FRELIMO and the landing of large numbers of Cuban soldiers in Angola to assist the MPLA that caused not only South Africa but a number of Western powers, especially the United States,21 to rethink their stance towards the region as well as their security policies.22 In October 1975 South Africa’s full-blown military offensive against the MPLA commenced, leading to a very costly and protracted military engagement in Angola with dire regional and international repercussions, which also brought about a hardening of attitudes on the long-unsettled dispute over South West Africa (Namibia). Domestically, revolutionary activities and repressive government responses took a drastic turn for the worse with the Soweto uprising of 16 June 1976 capturing even greater international attention and leaving the South African government further exposed to what it regarded as a ‘total onslaught’ which, according to government perception, could only be countered with a total military and security strategy.23 The consequences of the combined effects of 20

SC Res. 282 of 23 July 1970. On the United States’ involvement see Chester Crocker, Highnoon in Southern Africa: Making Peace in a Rough Neighborhood, 1992. 22 For a detailed analysis of these events see Barber/Barret (note 5), 186 et seq. 23 For a detailed account of these events and government reaction to them see id., 204 et seq. 21

166

Hennie Strydom

regional and domestic events in the middle of the 70s were decisive for the changes in international opinion at the UN, and especially that of the West in subsequent years. Two developments stand out. The first was the imposition of economic, financial and other sanctions in different forms by South Africa’s main trade partners, which over time undermined business confidence and caused the withdrawal of foreign capital and a decline in reinvestment.24 The second was the changing mood in the Security Council. Hitherto, attempts to make the voluntary arms embargo against South Africa25 mandatory or to have it extended to economic sanctions failed through a series of superpower vetoes in the 60s. In 1970 the Council gave indication of the need to strengthen the arms embargo and called for additional measures to be taken by States in the economic and military fields.26 But it was the Soweto uprising, the torture and death in detention of a prominent black consciousness leader, Steve Biko, and the security clampdown of the government in the latter half of the 70s that finally led to the adoption by the Security Council, for the first time in its history, of mandatory sanctions against a UN member in the form of a mandatory arms embargo. The motivation for this step was captured in the preamble to Resolution 418 (1977), which expressed concern about the military build-up in South Africa, the country’s acts of aggression against neighboring States and the potential threat posed by the country’s nuclear capabilities. Clearly stating that it was acting under Chapter VII of the UN Charter, the Council determined that the “acquisition by South Africa of arms and related material constitute[d] a threat to the maintenance of international peace and security.”27 Consequently, it was decided that: All States shall cease forthwith any provision to South Africa of arms and related material of all types, including the sale or transfer of weapons and ammunition, military vehicles and equipment, paramilitary police equipment, and spare parts for the aforementioned, and shall cease as well the provision of all types of equipment and supplies, and grants for licensing arrangements, for the manufacture or maintenance of the aforementioned.28

24

See also John Dugard, Sanctions Against South Africa, in: Mark Orkin (ed.), Sanctions Against Apartheid, 1989, 113 et seq. 25 SC Res. 181 of 7 August 1963; SC Res. 183 of 11 December 1963; SC Res. 191 of 18 June 1964. 26 SC Res. 282 of 23 July 1970. 27 SC Res. 418 of 4 November 1977, para. 1. 28 Id., para. 2.

South Africa and International Law

167

This tough stance could not be replicated for mandatory economic sanctions. Such attempts ran aground on the veto or threat of a veto by the United States, France and the United Kingdom, and the feeling against such sanctions was probably best summed up by the US representative in 1987, who also illustrated the dilemmas that faced the international community at the time: [My] government is convinced that mandatory sanctions would fail to bring an end to apartheid in a peaceful manner and would make it difficult, if not impossible, to achieve internal reconciliation and regional economic development. [… M]andatory sanctions imposed by the international community at this time would result in the progressive destruction of the South African economy and the heightening of repression in that country as those now in power attempt to consolidate their hold. Who doubts the capacity of the current South African government to inflict much of the cost of mandatory sanctions on its own black citizens as well as on its immediate neighbors? It is highly unrealistic to believe that aid from the industrialized democracies will be able to cover the costs which mandatory sanctions would inevitably impose upon South Africa’s immediate neighbors […].29

Where individual States had voluntarily imposed economic and financial sanctions, the question of the effectiveness of the different measures taken became a controversial issue and the subject-matter of a number of studies over the years by economists, legal scholars and political scientists. For the pro-sanctions lobby, especially inside South Africa, it was easy to argue the case for sanctions both ways: If there was an improvement in the government’s behavior, it was proof that sanctions were working; if the government remained intransigent, it signaled the occasion for more stringent measures and their improved enforcement. In reality the argument for the effectiveness of sanctions hinged on their psychological impact, i.e. the extent to which the country was isolated in the international community, and nothing more.30 When trade sanctions reached their apex in the years 1985 to 1987, exports increased from $ 20 billion in 1984 to $ 26 billion in 1988. This happened at a time when there was a significant fall in the dollar price of gold, which accounted for between 40–50 per cent of total export earnings.31 The departure of a large number of foreign 29 UN Doc. S/PV.2738 (1987), 62–67 (Statement of Herbert Okun). For literature on the pros and cons of economic sanctions against South Africa see, inter alia, Joseph Hanlon/Roger Omond, The Sanctions Handbook, 1987; Orkin (note 24); Joseph Hanlon, South Africa: The Sanctions Report: Documents and Statistics, 1990; Tony Koenderman, Sanctions: The Threat to South Africa, 1982. 30 Cf. Philip Levy, Sanctions on South Africa; What Did They Do?, American Economic Review, vol. 89, 1999, 415 et seq. 31 Mike Lipton, The Challenge of Sanctions, South African Journal of Economics, vol. 57, 1989, 336, 346–347.

168

Hennie Strydom

companies from South Africa elated the sanctions lobby, but since plants could not be removed from South Africa, the majority were simply taken over by white owned South African companies at bargain prices, concentrating ownership even more in a handful of leading companies that, in many cases, retained relationships with the former foreign owners in the form of equity, licensing, franchising and trademark agreements.32 The South African debt crisis of 1985, precipitated by Chase Manhattan Bank’s restructuring of South Africa’s credit facilities, led some to believe that the country was on its knees and sanctions were indeed paying off. However, short-term borrowing was part of a world wide trend at the time, and in the case of South Africa the restructuring of debt repayments was not related to sanctions, but to the fact that the political unrest and economic instability in the country became too high for investors who entrusted their money to private lending banks. It was therefore investment risk and not a moral commitment to make sanctions work that caused the debt crisis.33 Several reasons made the effective enforcement of the arms embargo problematic. From the perspective of the African countries, especially those which, as frontline States, grouped themselves together under the umbrella of the Southern African Development Coordinating Conference (SADCC),34 the arms embargo was of little use as an enforcement instrument. These countries neither sold arms nor oil to South Africa and did not invest there. The sanctions they did impose were limited to unilateral action involving sports and culture, trade and transport. Moreover, trade with these States was much less important to South Africa than trade with Europe, Japan and the United States. If one adds to this the decisions by the Organization of African Unity (OAU) and the Commonwealth to exempt the countries neighboring South Africa from the obligation to impose sanctions35 in view of their economic vulnerability, it must be clear that numerous opportunities for evasion existed.

32

Id., 340–341. Id., 343–345; Levy (note 30), 416–417. See also Carsten Hefeker/Karl Menck, Report of the Hamburg Institute of International Economics, Wie wirkungsvoll sind Sanktionen? Das Beispiel Südafrika, 2002. 34 This was later transformed into the Southern African Development Community (SADC). 35 Cf. Joseph Hanlon, Destabilisation, the SADCC States and Sanctions, in: Orkin (note 24), 173, 185–187. 33

South Africa and International Law

169

In a report of the Security Council Committee36 on the effectiveness of the arms embargo, the existence of loopholes and difficulties with interpretation were cited as reasons undermining the effectiveness of the embargo. Means of circumvention included the delivery of embargoed equipment and components through third parties, the subcontracting of third parties for the manufacturing of component parts of embargoed aircraft, and the transshipment of small arms through neighboring African countries. As regards national enforcement measures, responses by 118 countries showed that state action was far from uniform. While some countries had enacted new legislation, others had resorted to existing administrative and regulatory measures, with the majority satisfied with the expression of an intent to comply fully with the provisions of Resolution 418. Concerns were also raised that penalties were inadequate to act as a deterrent and that existing lists of embargoed goods were, for lack of appropriate criteria specific to South Africa, unsuitable.37 Statutory frameworks used by foreign governments to enforce the embargo also caused problems related to interpretation or changes in government policy. In the case of the United States, for instance, the embargo was enforced through the International Security Assistance and Arms Export Control Act of 1987 (AECA).38 In terms of this Act, the President was empowered to determine that a government to government arms sale was not in the national interest. The regulation of commercial sales by private companies was subject to the granting of licences by the State Department and the Department of Defense without a prior presidential determination. Mehlman and others have shown that between 1960 and 1977, the State Department “approved more commercial exports of items on the Munition List to South Africa than to any other African country.”39 Moreover, the Department of Commerce, which was responsible for the licensing of all other commercial exports to both governmental and civilian users under the Export Administration Act of 1969, granted the exportation to South Africa or other clients of, inter alia, dual-use equipment such as non-combat aircraft, computers and electronic equipment and US-licenced manufacturing technology, or US parts or material which could be used for the production of 36

Report of the Security Council Committee, UN Doc. S/14179 (1980). Id., 11. 38 US Code, Title 22, Sect. 2751–2794 (1976). 39 Maxwell Mehlman/Thomas Milch/Michael Toumanoff, United States Restrictions on Exports to South Africa, American Journal of International Law (AJIL), vol. 73, 1979, 581, 586. 37

170

Hennie Strydom

or use in military-related items.40 As regards changes in policy relating to the licensing system in this regard, the observation has been made that [t]he structure of the Commerce Department’s regulatory scheme for the control of commercial exports reveals relatively little about the actual implementation of restrictions on trade with South Africa. Prior to February 22, 1978, the requirements did not expressly forbid the export to South Africa of military-related equipment on the Commodity Control List, but merely called for a validated license for these exports. In practice, the implementation of this requirement varied from the Johnson administration’s policy to the more lenient post-1970 practices of the Nixon administration.41

This regulatory scheme was amended in 1978 through the promulgation of more stringent regulations. Henceforth, not only military-related commodities, but all commodities, including technical data exported or re-exported to South Africa and Namibia were prohibited “where the exporter or re-exporter [knew] or had reason to know that the commodity will be sold to or used by or for military or police entities […] or used to service equipment owned, controlled or used by or for such military or police entities.”42 Despite the more stringent measures, enforcement problems still remained. The broad and unreviewable licensing discretion of the Commerce Department with regard to dual-use equipment remained intact, prohibition of sales was only possible in instances where the exporter or re-exporter knew or had reason to believe that the items would end up in the wrong hands, and the regulations did not apply to the activities of foreign subsidiaries of US corporations, either in South Africa or elsewhere.43 The US position was not exceptional. Enforcement problems resulting from defaulting legislation or other reasons were widespread. The Chairman of the Special Committee against apartheid, for instance, has noted that [w]here national legislation had been reported to the Security Council, there had been a tendency to regard Security Council resolution 418 (1977) merely as confirmation of the discredited voluntary arms embargo and to define arms in the most restricted way. Thus, these legislation contain[ed] many omissions and [did] not provide for sufficiently severe penalties in cases of violation.44

40 41 42 43 44

Id., 587. Id., 588–589. Id., 589–590. Id., 592–596. Report (note 36), 15.

South Africa and International Law

171

The phraseology of Resolution 418 also facilitated evasion. The terms “arms and related material” in operative paragraph 2 were subjected to differing interpretations by States, with the result that a uniform practice became impossible. While some States prohibited all supplies to the South African military establishment regardless of their nature, other States distinguished between military and non-military equipment.45 A more precise definition of what was covered by the phrase “arms and related material” or a checklist of prohibited items could have remedied the situation. One of the main loopholes in the attempt to hurt the South African arms production industry was the question of existing agreements and licenses. Operative paragraph 3, which called on States to review existing contractual relationships with a view to terminating them, was understood to mean that termination was (a) conditional upon and subsequent in time to a review; or that (b) termination was optional subsequent to a review, and therefore that (c) a particular government may not deem it an obligation to terminate certain types of existing contractual obligations.46 The obligation to “refrain from any cooperation with South Africa in the manufacture and development of nuclear weapons” in operative paragraph 4 was also considered deficient. The Special Committee against apartheid stated that the formulation of paragraph 4 of resolution 418 (1977) was totally inadequate in preventing the apartheid regime from acquiring nuclear capability since, as interpreted by South Africa’s nuclear collaborators, namely, France, the Federal Republic of Germany, the United Kingdom and the United States, it allowed the transfer of technology, capital equipment and fissionable material to South Africa.47

In some instances, States have taken special care to ensure that sold items were not passed on to or used by the military establishment. United States regulations, for instance, required the purchaser to certify that the merchandise would not be used for military or police purposes and that US government approval would be obtained prior to a resale of the merchandise by the purchaser.48 However, South African law existing at the time made these restrictions pointless. Section 100 of the Defense Act, Act 44 of 1957, authorized the State President to obtain from any person or any public or other body, and without the consent of such person or body, buildings and other premises, vehicles, aircraft, vessels, 45 46 47 48

Id., 16–17. Id., 19. Id., 22. Id., 18.

172

Hennie Strydom

machinery, equipment, materials, articles or things necessary for the mobilization or the maintenance of the South African Defense Force or of other forces acting in co-operation therewith. The purposes for which this power could be exercised ranged from the prevention or suppression of terrorism or internal disorder to operations in defense of the Republic. In 1970 Parliament passed the National Supplies Procurement Act, Act 89 of 1970. In terms of Section 3 of the Act, the Minister of Economic Affairs, whenever he “deemed it necessary or expedient for the security of the Republic,” could order any person capable of supplying, manufacturing or producing goods or services to supply, deliver or sell such goods or services to the Minister. In case of a wilful refusal to comply with such an order, Section 4 allowed for the seizure of the goods or the use of any service provision facility by the State. Through these measures the South African government could undo any foreign attempt to prevent the military and police from benefitting from the sale of commodities to private users. Inter-governmental transfers were further facilitated by the Procurement Act in that the powers and functions conferred on the Minister of Economic Affairs could be exercised or performed by any other Minister in accordance with inter-ministerial arrangements.49 III. The Credentials Issue

In 1974 the rejection of South Africa’s credentials by the Credentials Committee was approved by the General Assembly50 by a vote of ninety-eight to twenty-three, with fourteen abstentions. The States that had lobbied since 1963 for the rejection of South Africa’s credentials had put forward the argument that since the South African government was not representative of the peoples of South Africa, it was only logical that the government, composed as it was at the time, could not legitimately represent the people in the United Nations.51 The new thrust to have the South African delegation unseated started to pay off with the adoption of a second resolution in 1974, supported by 125 States, calling on the Security Council to review the relationship between the United Nations and South Africa.52 In the Security Council, the expulsion of South Africa was de49 50 51 52

Act 89 of 1970, Section 1A. GA Res. 3206 (XXIX) of 30 September 1974. See UN Doc. A/6208 (1965), 4. GA Res. 3207 (XXIX) of 30 September 1974.

South Africa and International Law

173

feated by vetoes of France, the United Kingdom and the United States. However, on 12 November 1974 the General Assembly ruled that South Africa was not permitted to participate in the Assembly’s proceedings of that year.53 This event, widely criticized,54 caused a lively debate on whether such a decision was indeed within the powers and functions of the Assembly and whether or not the ensuing suspension of South Africa’s rights and privileges in the Assembly was consistent with the UN Charter. Ironically, this occurred only a few years after the opinion of the UN Legal Council that the suspension of a State’s rights and privileges by the rejection of credentials was contrary to the UN Charter.55 What made the Assembly’s decision controversial in particular, was that it was not a case of bringing clarity to a situation involving rival claims by contesting governments for the purpose of seating in the General Assembly, as was the practice in the past (China in 1950, the Congo in 1960 and Yemen in 1962),56 but the condemnation of a State’s internal policies by the Credentials Committee, a decision that seemed to confuse representation of a government in the UN with the question of a government’s recognition as a Member State. In the case of the former, the question was simply whether the government in question was in effective control and whether the credentials were correctly issued by that government. But there was also the issue of the respective powers of the General Assembly and the Security Council with regard to the admission or expulsion of members or the suspension of membership.57 In an advisory opinion of 1950, the International Court of Justice (ICJ) had made clear that a recommendation by the Security Council is a prerequisite for the General Assembly’s decision to admit a new State for membership, and that to hold that it can be effected by a decision of the Assembly in the absence of a Council recommendation is a violation of the clear meaning of the UN Charter text and 53

UN Doc. A/PV.2281 (1974), 72–79. See John Dugard, Public International Law, Annual Survey of South African Law, 1974, 53; Gerhard Erasmus, The Rejection of Credentials: A Proper Exercise of General Assembly Powers or Suspension by Stealth?, South African Yearbook of International Law (SAYIL), vol. 6, 1981, 40; Eckhart Klein, Zur Beschränkung von Mitgliedsrechten in den Vereinten Nationen, Vereinte Nationen, vol. 23, 1975, 51; Dan Ciobanu, Credentials of Delegations and Representation of Members at the United Nations, International and Comparative Law Quarterly, vol. 33, 1984, 279. 55 UN Doc. A/8160 (1970). 56 See Leland Goodrich/Edvard Hambro/Patricia Simons, Charter of the United Nations: Commentary and Documents, 1969, 109–111. 57 UN Charter (note 1), Arts. 4–6. 54

174

Hennie Strydom

amounts to depriving the Council of an important power entrusted to it by the UN Charter.58 It stands to reason that, given the comparable wording of Articles 5 and 6 of the UN Charter, the same argument would apply in the case of suspension of membership or the expulsion of a member from the Organization. Ostensibly, McWhinney59 has found a way around these obstacles by arguing that the General Assembly can, ex proprio motu, decide to determine the representative quality of a government responsible for the issuing of credentials. However, as Erasmus60 has pointed out, such an interpretation is supported neither by the relevant UN Charter provisions or the Rules of Procedure,61 nor by state practice. Dugard has also pointed out that the decision of the General Assembly to suspend South Africa’s participation “is of highly suspect legality as it usurps the powers of the Security Council which, under the UN Charter, is required to approve any expulsion or suspension from membership in the Organization.”62 Some States have also registered their indignation with the outcome of the credentials episode. The representative of the Federal Republic of Germany, Baron von Wechmar, had the following to say about the matter: What was at issue was not simply a question of our rules of procedure: it was a legal matter of the utmost importance, namely the question of whether a Member can be suspended from the exercise of its rights and privileges of membership by procedures other than those set forth in Articles 5 and 6 of the UN Charter. That strictly legal question has to be answered in the negative. […] My government therefore deplores the decision which has been taken. It may have consequences which none of us may wish to see. If the United Nations wishes to maintain the moral authority of the Organization, it must first and foremost respect the rules under which the Organization works.63 58 ICJ, Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950, ICJ Reports 1950, 4, reprinted in: International Law Reports (ILR), vol. 17, 1950, 326. 59 Edward McWhinney, The World Court and the Contemporary International LawMaking Process, 1979, 142–146. 60 Erasmus (note 54), 47 et seq. 61 Rule 29 of the Rules of Procedure merely states that: “Any representative to whose admission a Member has made objection shall be seated provisionally with the same rights as other representatives until the Credentials Committee has reported and the General Assembly has given its decision.” In 1970 the President of the Assembly ruled that, although the rejection of South Africa’s credentials was a strong condemnation of the government’s internal policies, it did not have the effect of unseating the South African delegation. UN Doc. A/PV.1901 (1970), 24. 62 Dugard (note 54), 53. 63 UN Doc. A/PV.2281 (1974), 95–96.

South Africa and International Law

175

The United Kingdom’s representative was equally denunciatory of the General Assembly’s stance in warning that the UN cannot disregard its own constitution. If the UN Charter “is put aside whenever its provisions may seem to a majority of us […] to be inconvenient, then we lose all claim to authority and to credence.”64 How unreliable and exposed to changing political whims General Assembly practice can be is illustrated by the Kampuchean incident in the late 70s. In 1980 Democratic [sic] Kampuchea, controlled by the Khmer Rouge, still retained its seat in the United Nations despite the regime’s involvement in the horrific massacre of an estimated 1,5 million Cambodians since 1975 and the installation by force of a Vietnam-controlled opposition government in 1979. This “sad development,” one commentator explained, “resulted from an effective anti-Vietnam coalition led by China and ASEAN, and supported by the United States (due to the Cold War) as well as many Third World nations who placed a premium on the need to condemn aggression against small States.”65 Despite the unimaginable horror, the “international community exercised virtually no scrutiny of the Khmer Rouge during its reign,”66 and when the issue of the credentials of the two rival governments came to a head in 1980, States on both sides of the divide had conveniently forgotten the arguments on the unseating of the South African delegation. What prompted the issue of credentials to arise was the General Assembly’s rejection, in October 1980 of a Credential Committee’s proposal to amend a resolution which would have provided for an exception to be made with regard to the credentials of the representatives of Democratic Kampuchea.67 Countries supporting the proposed amendment argued that the newly installed Peoples’ Revolutionary Council was the true and effective government and had the right to represent Kampuchea. The great irony, however, was the position taken on the meaning that should be attached to the acceptance of credentials. Such an act, these States claimed, “did not imply any judgement concerning the legitimacy of a particular Government,” with the result that “there was no reason for preventing the representatives of the People’s Republic of 64

Id. Steven Ratner/Jason Abrams, Accountability for Human Rights Atrocities in International Law, 2001, 278. 66 Id., 276. 67 UN Monthly Chronical, December 1980, 15. 65

176

Hennie Strydom

Kampuchea from taking their rightful place in the United Nations.”68 Those opposing the amendment argued that the “competence of the Committee was limited to ascertaining whether the credentials submitted complied with the relevant rule of the Assembly’s rules of procedure” and further that “the endorsement of the credentials of Democratic Kampuchea did not imply approval of the policies followed by that Government.”69 For these States, the only relevant fact was that the credentials were issued by a (so-called) legitimate government, and not by one imposed from outside by military force. So easily can the horrific death of millions lose its meaning. IV. The Armed Struggle and Humanitarian Law

The year before South Africa’s credentials were rejected, the General Assembly gave recognition to the liberation movements, the African National Congress (ANC) and the Pan African Congress (PAC), as the authentic representatives of the overwhelming majority of the South African people.70 In 1980, this political sentiment developed into a legitimation of the said movements’ struggle “by all available means, including armed struggle, for the seizure of power by the people […].”71 The Assembly also demanded that the South African government treat captured ‘freedom fighters’ as prisoners of war under the Geneva Conventions (1949)72 and Additional Protocol I (1977)73 thereto,74 which extended the traditional meaning of armed conflict to conflicts in which

68

Id. Id. 70 GA Res. 3151 G (XXVIII) of 14 December 1973, para. 11. 71 GA Res. 35/206A of 16 December 1980, para. 1. 72 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, UNTS, vol. 75, 31; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, UNTS, vol. 75, 85; Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS, vol. 75, 135; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 287. 73 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, vol. 1125, 3 (Protocol I). 74 GA Res. 36/172 of 17 December 1981, para. 14. 69

South Africa and International Law

177

“peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination […].”75 The issue of prisoner of war status became the subject-matter of legal scrutiny in 1988 with the capture and subsequent trial76 of a member of the ANC’s military wing, Umkhonto We Sizwe (the Spear of the Nation). The accused, charged under the Internal Security Act, Act 74 of 1982, refused to plead and claimed that, in terms of Article 45 para. 1 and para. 2 of Protocol I, he was entitled to be treated as a prisoner of war and that, consequently, the court had no jurisdiction to try him. Thus, the main issue to be decided was whether Protocol I was part of South African law. Since at the time South Africa was not a signatory to the Protocol for obvious reasons, the customary law nature of the Protocol had to be determined. In argument it was submitted on behalf of the accused that the customary law nature of the Protocol could be inferred from the almost universal and frequent condemnation of South Africa’s internal policies in international forums. Rejecting this argument, the court expressed itself as follows on the issue of state practice and the role of United Nations resolutions:77 It is, I believe, correct to say that the practice of condemnation of South Africa is evidence only of a general dislike of its internal policies. There is nothing in the condemnation from which the content of a rule of customary international law may be derived. I fail completely to appreciate how the condemnation of South Africa, or even the labeling of apartheid as a crime against humanity, leads to the inference that protocol I has been accepted as part of customary international law by those states uttering those condemnations. I suppose that, since ratification of Protocol I is open to every state, very little short of that could be construed as an acceptance of its provisions.78 In particular, United Nations resolutions cannot be said to be evidence of State practice if they relate, not to what the resolving States take it upon themselves to do, but to what they prescribe for other. Customary international law is founded on practice, not on preaching. […] One must, as the writers which I have quoted above […], look for State practice at what States have done on the ground in the harsh climate of a tempestuous world, and not at what their representatives profess in the ideologically overheated environment of the United Nations where indignation appears frequently to be a surrogate for action.

Of further importance to the issues raised in the case was the position of the ANC with regard to Protocol I. In 1980, Oliver Tambo, the then President of the 75

Protocol I (note 73), Art. 1 para. 4. Cape Provincial Division, S v. Petane, South African Law Reports (SA), vol. 1988 (3), 51. 77 Id., 59, 61. 78 At the time of the judgement, only 66 States had ratified Protocol I. 76

178

Hennie Strydom

ANC, handed a declaration to the President of the Red Cross in which it was declared that the ANC intended to respect the rules of the four Geneva Conventions of 1949 and of Protocol I of 1977.79 This act was not in conformity with the requirements of Article 96 para. 3 of the Protocol, which requires a declaration of acceptance to be made to the depository, namely the Swiss Federal Council.80 In Petane, Conradie J took note of this development, but was quick to point out that no evidence was put before the court from which it could be deduced that the ANC had agreed to abide by the terms of Protocol I. On the contrary, for Conradie J the reluctance of the ANC to formally accede to the Protocol as was required arose “from the embarrassment of subscribing to the principle of attacking none but military targets, and at the same time pursuing a strategy of urban terror.”81 Ironically, another opportunity to clarify some of the international humanitarian law issues arose in 2001, almost ten years after the first democratic elections, in the unreported and wholly disappointing case of Lombo v. The African National Congress and Another.82 Lombo joined the armed wing of the ANC in 1986 in Botswana, but never participated in the armed struggle. Suspected of being a spy for the South African Defense Force, Lombo ended up in one or more of the ANC’s notorious detention camps in Northern Angola, where he was detained for five years before being duly repatriated by the International Committee of the Red Cross (ICRC) in 1990 following the unbanning of the ANC. Lombo’s case before the High Court arose from his alleged torture and maltreatment by the ANC during his detention. Instead of judging the matter with reference to the relevant humanitarian law principles, the court resorted to domestic law principles on the legality of a detention of this nature. The power of liberation movements to detain in foreign countries, the status of detainees in terms of the Geneva Conventions, and the humanitarian law standards of detainee treatment, were all questions on which the court could have brought some clarity, but it chose not to do so. 79

See Andrew Borrowdale, The Law of War in Southern Africa: the growing debate, Comparative and International Law Journal of Southern Africa (CILSA), vol. 15, 1982, 41. 80 Protocol I (note 73), Art. 93. 81 S v. Petane (note 76), 63. 82 Durban & Coast Local Division, Case No. 9006/93, 20 April 2001. See the discussion of this case by Mike Cowling, International Humanitarian Law and the Armed Struggle in South Africa, SAYIL, vol. 26, 2001, 221 et seq.

South Africa and International Law

179

A better picture is provided by the five-volume Report of the Truth and Reconciliation Commission of South Africa established in 1995 to investigate the nature, causes and extent of gross human rights violations committed by all parties involved in the apartheid-era conflict.83 The Commission endorsed the international law position that apartheid was a crime against humanity and recognized that the liberation movements conducted a legitimate armed struggle against the former South African government. Without going into the status of the ANC’s 1980 declaration, the Commission noted that “only the ANC committed itself to observing the tenets of the Geneva Protocols and, in the main, conducting the armed struggle in accordance with international humanitarian law.”84 However, the Commission made a distinction between a ‘just war’ and the question of ‘just means,’ and concluded that in the course of the conflict, the ANC contravened the Geneva Protocols and was responsible for gross human rights violations for which it was morally and politically accountable.85 With regard to the treatment of persons held in the detention camps, the Commission found confirmation that the security department of the ANC “routinely used torture and assault as a means to extract information from those it suspected of being enemy agents or dissidents” and that “due process was given perfunctory observance” in trials that could not be conceived as “remotely resembling fair trials or hearings.”86 On the eve of the Commission’s Final Report being handed over to President Nelson Mandela, the ANC sought to interdict the Commission from doing so. At the heart of the ANC’s discontent was the Commission’s findings on gross human rights violations and that it was not given the opportunity first to discuss the findings with the Commission before they were made public. It was clear that because of the so-called legitimacy of the armed struggle, the ANC wanted to be measured by a different yardstick when its conduct in the course of the struggle was assessed against the relevant humanitarian law principles. In the Cape High Court87 where the ANC’s application was lodged, the main bone of contention was whether the Commission was under an obligation to grant the 83

See Promotion of National Unity and Reconciliation Act, Act 34 of 1995, and the post-amble to the Constitution of the Republic of South Africa, Act 200 of 1993. 84 Truth and Reconciliation Commission of South Africa Report, vol. 6, 2003, 642. 85 Id., 642–643. 86 Id., 659–660. 87 Cape Provincial Division, African National Congress v. Truth and Reconciliation Commission, Case No. 1480/98.

180

Hennie Strydom

ANC a hearing before the report was released, a matter the Court ruled against in view of the prior opportunities the ANC, like the other parties under investigation, had had to present its case to the Commission. V. The South West Africa (Namibia) Dispute

When the Allied Powers agreed in Article 22 of the Versailles Peace Treaty88 of 1919 to confer the mandate over South West Africa upon the United Kingdom to be exercised by the Union of South Africa, it was perhaps not foreseen that this historical step would set in motion an unprecedented political-legal dispute, boasting several appearances before the ICJ and generating volumes of UN resolutions and scholarly writings over almost half a century. Commendable and well-documented studies on the subject exist,89 and all this section can attempt to do is to highlight some of the dispute’s salient aspects that formed the subject-matter of significant international law developments. At the heart of the dispute was the nature of South Africa’s legal title over the territory. Since the legal documents in terms of which mandated territories had to be administered provided no clarity on this issue, legal theories were not in short supply.90 In terms of Article 2 of the Mandate for South West Africa, the Union of South Africa was given full power of administration and legislation over the territory as an integral portion of the Union and could apply Union laws to the territory, subject to modifications necessitated by local circumstances. The question as to with whom sovereignty was ultimately to reside became complicated as a result of the different roles assigned to various institutions in respect of the mandated territories. The Allied and Associated powers allocated the territories to the Mandatory Powers; the League of Nations was assigned supervisory functions over the administration of the territories, and the Mandatory Powers were responsible for the actual administration of the territories.

88 The Versailles Treaty, 28 June 1919, reprinted in: Fred L. Israel, Major Peace Treaties of Modern History 1648–1967, vol. II, 1967, 1265. 89 See, inter alia, John Dugard, The South West Africa/Namibia Dispute, 1973; Solomon Slonim, South West Africa and the United Nations: An International Mandate in Dispute, 1973; Gail-Maryse Cockram, South West African Mandate, 1976. 90 For the different interpretations see Dugard (note 89), 75 et seq.

South Africa and International Law

181

What raised anxiety in the Mandates Commission in 1926 was the emergence of claims that South Africa possessed sovereignty over South West Africa in terms of Article 22 of the Treaty of Versailles.91 This position, on which the Commission wanted an explanation from South Africa, was strongly influenced by the Appellate Division’s judgement in the case of R v. Christian,92 which involved the question whether high treason could be committed against a State that possessed internal sovereignty over a territory, while its external powers in respect to that territory were limited. Following Roman Dutch authorities, Chief Justice Innes ruled that treason could only be committed against an authority with internal majestas, i.e. the power of making and enforcing laws. In the case of South West Africa, this power, which was formerly vested in the German Government, was transferred to the Union of South Africa in terms of the mandate agreement.93 In agreeing with this approach, Wessels JA summed up the position as follows: There is no German sovereignty any longer in [South West Africa]. What has replaced the German sovereignty? It can only be either the associated powers of the Treaty of Versailles or the League of Nations or the Union of South Africa. The associated powers do not constitute a State or a sovereign power [… but are] only certain sovereign States which have mutually agreed to recognize certain political conditions created by the Treaty of Versailles. They have no combined sovereign power or majestas and a resident of South West Africa owes them no allegiance and cannot be indicted as having committed treason against them […]. Whatever the League of Nations may be it is not a State. It has none of the attributes of a sovereign power. It does not govern and it makes no laws. […] As it exercises no sovereign power it has no majestas and therefore the crimen laesae majestatis cannot be committed against the League of Nations or its Council.94

Years later, the General Assembly of the United Nations would also learn that de facto control is the first law of governmental sovereignty. This episode started with the replacement of the mandate system by the trusteeship system in terms of Chapter XII of the UN Charter and the resulting uncertainty about the legal powers of the League to give transfer to mandated territories, and of the United Nations to administer those territories under the new UN Charter arrangements, which provided for terms and conditions to be agreed with by the powers responsible for the administration of the mandated territories.95 In these 91 92 93 94 95

Dugard (note 89), 78; Cockram (note 89), 77 et seq. 1924 AD 101. Id., 105–114. Id., 136. UN Charter (note 1), Arts. 79–81.

182

Hennie Strydom

confusing years the South African government also made known its unpopular intention to incorporate South West Africa into the Union as a fifth province, citing in support the positive results of a consultation on the matter with the inhabitants of the territory.96 While most members reacted with hostility towards the South African proposal, which they saw as undermining the political selfdetermination idea, there was greater division amongst UN members on whether the UN Charter contained a legal obligation for mandated powers to negotiate a trusteeship agreement. South Africa’s view that there was no such obligation seemed to be borne out by the wording of Article 77 of the UN Charter, which clearly has a permissive quality.97 In any event, it was clear that another clash was unfolding, and in 1946 the General Assembly made its first stance by rejecting South Africa’s incorporation proposal and recommending that the territory be placed under trusteeship.98 This also set the stage for the first round of proceedings before the ICJ, in which the General Assembly sought an advisory opinion from the Court on the international status of the territory and on the international obligations arising from this status for South Africa.99 The opinion100 vindicated South Africa’s position that the conclusion of a trusteeship agreement was a voluntary matter. However, the Court made clear that the mandate system as an international institution created in the interest of the inhabitants had not lapsed with the demise of the League and that South Africa could not relinquish its obligations to manage the territory in accordance with the mandate’s terms and conditions. Especially significant was the ruling that the General Assembly of the United Nations had assumed the supervisory functions of the League Council, a power, which, according to the Court, can be derived from Article 10 of the UN Charter, which authorizes the Assembly to discuss any questions or matters within the scope of the UN Charter and to make recommendations thereon. Consequently, South Africa, which had stopped reporting on its administration of the territory after the demise of the League, was still under an obligation to submit to the supervision and control of the Assembly and to render annual reports. It 96

See Dugard (note 89), 96 et seq.; Cockram (note 89), 201 et seq.; Slonim (note 89), 78 et seq. 97 See also Slonim (note 89), 87. 98 GA Res. 65 (I) of 14 December 1946. 99 GA Res. 338 (IV) of 6 December 1949. 100 ICJ, International Status of South West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, 128.

South Africa and International Law

183

also meant that South Africa could not amend the status of the territory without the consent of the United Nations. On this, there followed prolonged and unsuccessful negotiations between an ad hoc Committee101 of the United Nations and South Africa on the implementation of the ICJ’s advisory opinion. While initially the pressure on South Africa was to enter into a trusteeship agreement, the growing Afro-Asian membership in the United Nations since the 60s caused the focus to shift to the nature of South Africa’s administration of the territory, followed by attempts to show that South Africa was unfit to administer the area as required by the terms and conditions of the mandate. Part of this new strategy was to bring contentious proceedings before the ICJ under the expectation that a binding judgement would persuade UN members to take more effective action against South Africa.102 In 1960 Ethiopia and Liberia took the initiative to petition the ICJ for an order confirming basically the findings of the 1950 advisory opinion, but also adjudging and declaring that South Africa’s apartheid policies in South West Africa violated the terms of the mandate, which imposed a duty on South Africa to promote the material and moral well-being and the social progress of the territory’s inhabitants. South Africa’s preliminary objections to the Court’s jurisdiction were overruled103 by the narrowest of margins, i.e. eight to seven. But this event was overshadowed by the highly controversial 1966 ruling104 on what should have been the merits. By the casting vote of the President, the Court found that the applicants had no locus standi to bring an application and that consequently, the Court could not make any of the orders applied for. As Dugard105 has pointed out, “the decision constituted a reversal of the finding of 101

Established by GA Res. 449 A (V) of 13 December 1950. The Committee of five States was to confer with South Africa on the procedures for the implementation of the advisory opinion and was mandated to examine reports and petitions in respect of South West Africa as an interim measure to comply with the mandate. 102 Cf. Cockram (note 89), 274 et seq. 103 ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgement of 21 December 1962, ICJ Reports 1962, 319, reprinted in: ILR, vol. 37, 1968, 3. 104 ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgement of 18 July 1966, ICJ Reports 1966, 3, reprinted in: ILR, vol. 37, 1968, 243. 105 Dugard (note 89), 293. For a summary of academic and political reactions to the judgement see id., 332 et seq. See also Rosalyn Higgins, The International Court and

184

Hennie Strydom

the Court in 1962 on the third preliminary objection106 and was the consequence of changes in the composition of the Court which had resulted in the minority of 1962 becoming the majority.” The many crucial issues “that were arrayed before the Court in extraordinary detail,”107 especially in the counter-memorials of South Africa,108 never came to be decided by the Court, the finality the world wanted on the momentous issues with so much anxiety was lost, and so was the reputation of the Court for many years to come. Obviously frustrated by the ruling, the South West Africa Peoples Organization (SWAPO), created in 1960 with the aim to realize the territory’s political independence, gave notice that they felt betrayed by the Court and that their only option was to start preparing for an armed struggle.109 Reverting back to a political strategy, the General Assembly also reacted by terminating South Africa’s mandate and established an ad hoc Committee for South West Africa to make recommendations on the administration of the territory by the United Nations.110 In the Assembly’s assessment, this step was justified by South Africa’s failure to fulfill its obligations in respect of the administration of the territory. The legality of this unilateral termination, in the absence of a prior ruling by the Court on whether the terms of the mandate were violated, was questioned by France, the United Kingdom and Portugal. But any conclusion on a possible irregularity had to reckon with at least two crucial matters.111 The first was that the ICJ already in the 1950 opinion ruled that the General Assembly as successor to the League Council could decide whether South Africa’s administration of the area was commensurate with the terms and conditions of the mandate. But even this understanding of the matter failed to bring clarity on how the General Assembly overcame its incapacity under the UN Charter to adopt binding resolutions. Secondly, six of the fourteen judges in the 1966 ruling found South West Africa: The Implications of the Judgement, International Affairs, vol. 42, 1966, 573. 106 This objection by South Africa entailed that the disagreement between the parties before the Court was not a dispute to be settled by the Court as envisaged by Art. 7 of the Mandate for South West Africa and that, more particularly, no material interests of the applicants or their nationals were involved in the matter or affected thereby. 107 Slonim (note 89), 278. 108 Id., 213. See also material in Dugard (note 89), 281 et seq. 109 Dugard (note 89), 379–380. 110 GA Res. 2145 (XXI) of 27 October 1966. 111 For a more comprehensive analysis see John Dugard, The Revocation of the Mandate for South West Africa, AJIL, vol. 62, 1968, 78 et seq.

South Africa and International Law

185

against South Africa on this issue.112 Whatever meaning could be attached to these facts, the real anomaly that faced the General Assembly was the legal effect of the revocation in the sense that the resolution in question, being of a non-binding nature, was dependent on the cooperation of South Africa to hand over the territory for administration by the United Nations, but such an expectation was somewhat unrealistic. The Assembly also overplayed its hand with the establishment, in 1967, of the United Nations Council for South West Africa with the mandate to administer the territory until independence, to promulgate the necessary laws, decrees and administrative regulations necessary for compliance with this mandate, and to take the measures necessary for the maintenance of law and order.113 But the Council was to remain a paper government and as the Assembly soon discovered, governmental functions of the nature foreseen in the resolution can only be discharged if there is de facto control over a territory, which in this case was not a realistic possibility for the Council. Eventually the Assembly had to concede that the Council was unable to discharge its functions in view of South Africa’s lack of cooperation and refusal to allow the Council to enter the territory.114 The plane carrying the Council members was refused landing rights and a subsequent attempt to charter a plane from Zambia to South West Africa in defiance of the government’s order also failed.115 The Security Council entered the fray at this point116 with a number of resolutions that confirmed the General Assembly’s revocation of the mandate and called on Member States to exert their influence on South Africa and to consider measures to end South Africa’s illegal occupation of the territory.117 In a 112 See South West Africa Cases (note 104), Dissenting Opinions of Judge Koo, ICJ Reports 1996, 214, 233; Judge Tanaka, 248, 279–280, 285 et seq.; Judge Nervo, 441, 454, 464 et seq.; Judge Forster, 472 et seq.; Judge ad hoc Mbanefo, 482 et seq. 113 GA Res. 2248 (SV) of 19 May 1967. 114 See GA Res. 2325 (XXII) of 16 December 1967 and GA Res. 2372 of 12 June 1968. 115 Dugard (note 89), 436. 116 What angered the international community was the arrest and subsequent trial of SWAPO and other military trainees involved in outbreaks of violence after the 1966 ICJ ruling. The trial was conducted in terms of the Terrorism Act, Act 83 of 1967, which was made to apply retrospectively to the conduct of the trainees, and in terms of which they were detained without trail for a lengthy period of time. See Appellate Division, S v. Tuhadeleni, SA, vol. 1969 (1), 153. 117 See SC Res. 264 of 20 March 1969; SC Res. 269 of 4 October 1969; SC Res. 276 of 30 January 1970; SC Res. 283 of 29 July 1970.

186

Hennie Strydom

similar mood, the Security Council decided to request an advisory opinion from the ICJ on the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970).118 Despite the attempt to shift the focus in this request to the obligations of other members of the United Nations, it was clear that the eventual ruling119 that South Africa’s continued presence in the territory was illegal and that other UN members were under an obligation to give recognition to this illegality, did not solve the long-standing deadlock and was little more than an uninspiring strengthening of already existing convictions and resolutions. The request for an opinion itself was seen by some members as an illusion concerning the possibility of a solution by legal means and by others as an attempt to rehabilitate the prestige of the Court and to bring about a harmonization between the Court’s views and those of the political organs of the UN.120 The lack of new perspectives in the Court’s reasoning has caused one commentator to conclude that the opinion “is not a bridge over troubled waters, it is the freezing of a sea of protracted agitation presented in the form of judicial abstraction.”121 It was only with the adoption in 1978 of the famous Resolution 435 that the Security Council paved the way for a political settlement of the dispute, which ended in independence for Namibia on 21 March 1990. C. International Law and International Relations in the Democratic Era The process of democratic State formation in the late twentieth century has been directed mainly by two ideas which exerted a powerful influence in giving shape to the post-war community of States. The first idea suggests that the model of the constitutional state provides the best framework for the reconstruction 118

SC Res. 284 of 29 July 1970. The change of the territory’s name to Namibia was effected by GA Res. 2372 of 12 June 1968, and the territory was referred to as Namibia in all subsequent resolutions including those of the Security Council. 119 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16. 120 Marinus Wiechers, South West Africa: The Background, Content, and Significance of the Opinion of the World Court of 21 June 1971, CILSA, vol. 5, 1972, 123, 127–128. 121 Id., 124.

South Africa and International Law

187

of government in societies with a history of undemocratic rule and human rights abuses, while the second requires constitutional recognition by the newly constructed States that the legal and philosophical framework of the international community will be an integral point of reference for conducting the future business of the nation. Both these ideas were fundamental to the process that ended in the first democratic elections on 27 April 1994 and the subsequent adoption of the new constitutional dispensation in 1996.122 Apart from the obvious changes the new constitutional dispensation has effected in domestic governance and the protection of fundamental freedoms after 1994, the international law ‘openness’ of the South African constitution has brought about an entirely new role for international law, both with regard to the domestic application of international standards and the country’s engagement in foreign relations at the international and regional levels. What follows is a selection of areas where this new orientation has either informed new developments or exemplified problems. I. International Law as an Interpretation Aid

Following common law canons of interpretation, South African jurists were trained in the application of the so-called golden rule of statutory interpretation: If the words of a statute were ambiguous, clarity should be sought in the intention of the legislature. That this approach is ill-suited for the interpretation of statutory measures under a system of constitutionalism or for the interpretation of the constitution itself is widely accepted.123 The traditional precedence of the golden rule tradition is further weakened in that the constitution itself widens the scope of sources from which inspiration must be drawn for applying and interpreting constitutional rights or parliamentary legislation. Thus we find that the Bill of Rights, contained in Chapter 2 of 122

Constitution of the Republic of South Africa, Act 108 of 1996. This constitution was predicated on the interim constitution of 1993, which was drafted by a multiparty Congress for a Democratic South Africa and adopted by Parliament in 1993 as the Constitution of the Republic of South Africa, Act 200 of 1993. 123 See Lourens du Plessis/Hugh Corder, Understanding South Africa’s Transitional Bill of Rights, 1993, Chapter 3; Lourens du Plessis, Re-Interpretation of Statutes, 2002; Jacques de Ville, Constitutional and Statutory Interpretation, 2000. South Eastern Coast and Local Division of the High Court, Matiso v. Commanding Officer, Port Elizabeth Prison, SA, vol. 1994 (4), 592, 597.

188

Hennie Strydom

the constitution, falls to be interpreted in a way that must be commensurate with the “values that underlie an open and democratic society based on human dignity, equality and freedom.”124 In doing so courts, must consider international law and may draw on the precedents of foreign law.125 Further to this courts are obliged to prefer any reasonable interpretation of legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.126 The effect of the reference, in Section 39 (1), to international law as an interpretation aid alongside other sources is that it fails to indicate whether individuals may directly avail themselves of international law rights and obligations. The constitutional references to international law have been the subject of consideration in a number of important judgements by either the High Courts or the Constitutional Court. In the famous case of S v. Makwanyane,127 in which the death penalty was found to be unconstitutional, the Constitutional Court ruled that the term ‘international law’ as found in the Bill of Rights includes binding as well as non-binding international law and that both could be used as tools of interpretation. Under non-binding sources, the Court included decisions of tribunals dealing with comparable human rights instruments, such as the UN Committee on Human Rights, the Inter-American Commission and Court on Human Rights, the European Commission and Court on Human Rights, and, in appropriate cases, reports of specialized agencies that could provide guidance on the correct interpretation of provisions of the Bill of Rights. In general, the South African courts have shown a willingness to make use of binding as well as non-binding international law standards. An analysis of the first ten years of constitutional jurisprudence has shown that most of the major international and regional human rights conventions have been made use of. It is also clear that the International Covenant on Civil and Political Rights128 (ICCPR) and the European Convention on Human Rights129 have featured more 124

Section 39 (1) (a) of the 1996 Constitution (note 122). Id., Section 39 (1) (b) and (c). 126 Id., Section 233. 127 Constitutional Court (CC), S v. Makwanyane, SA, vol. 1995 (3), 391, 413–414. 128 International Covenant on Civil and Political Rights, 19 December 1966, UNTS, vol. 999, 171 (Covenant) (ratified by South Africa in 1998). 129 European Convention for the Protection of Human Rights and Fundamental Freedom, 4 November 1950, ETS No. 5. 125

South Africa and International Law

189

frequently.130 On the other hand, the African Charter on Human and Peoples’ Rights131 has received scant attention.132 This can be explained by the absence of a well-developed jurisprudence on the African Charter, a matter that could change once the African Court on Human and Peoples’ Rights starts functioning.133 It has also become clear that the future development of a South African human rights jurisprudence can hardly do without a methodological approach of some sort with regard to the application of international law standards. There are mainly two reasons for considering this point. The first is that the ratification of international human rights instruments by South Africa and their domestic implementation by means of legislation will create a body of law with significant meaning as a tool of interpretation, which at least requires that a distinction be made between primary and secondary sources. Secondly, the constitutional obligation to promote the values that underlie an open and democratic society based on human dignity, equality and freedom134 requires a closer scrutiny of textual and historical differences or commonalities, and of the usefulness of the source material. That all sorts of problems can arise in the early stages of coming to terms with a different approach to human rights adjudication is clearly illustrated by the Constitutional Court’s judgement in the AZAPO case135 decided under the Interim Constitution of 1993. At issue was the granting of amnesty in terms of the Promotion of National Unity and Reconciliation Act, Act 34 of 1995 to 130

See for instance S v. Makwanyane (note 127); CC, S v. Williams, SA, vol. 1995 (3), 632, 640, 641; CC, Bernstein v. Bester, SA, vol. 1996 (2), 751, 791; Cape Provincial Division, Dabelstein and Others v. Hildebrandt and Others, SA, vol. 1996 (3), 42, 61; CC, Coetzee v. Government of the Republic of South Africa, SA, vol. 1995 (4), 631, 660; CC, Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995, SA, vol. 1996 (3), 165, 192; CC, Brink v. Kitshoff NO, SA, vol. 1996 (4), 197, 215; CC, Dawood, Shalabi and Thomas v. Minister of Home Affairs, SA, vol. 2000 (3), 936, 959. 131 African (Banjul) Charter on Human and Peoples’ Rights, 27 June 1981, reprinted in: ILM, vol. 21, 1981, 58 (ratified by South Africa in 1996). 132 In Dawood’s case (note 130) the African Charter was referred to in relation to family rights, a matter not specifically dealt with by the South African Constitution. 133 The Court is established in terms of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 10 June 1998, AU Doc. Assembly/AU/Dec.25 (II), which entered into force in 2004. 134 Section 39 (1) of the 1996 Constitution (note 122). 135 CC, Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa, SA, vol. 1996 (4), 671.

190

Hennie Strydom

agents of the former government implicated in serious human rights violations. The applicants in the case sought to set aside certain provisions of this Act on the ground that it was inconsistent with Section 22 of the Interim Constitution, which provided for a right to have justiciable disputes settled by a court of law or another independent and impartial forum. In support of this challenge, the applicants relied in part on the international law obligation of States to prosecute persons responsible for gross human rights violations. In ruling against the applicants, the Court held that the Interim Constitution’s postamble, in which the amnesty process was given its first form and substance, provided the arguments for a justifiable limitation of the Section 22 right of access to court.136 This part of the ruling was unproblematic. What raised concerns, though, was the fact that the Court failed to adequately address whether conventional and customary international law oblige a successor government to prosecute and punish officials of the previous authorities for gross human rights violations. In the first instance the Court argued that the only matter to be investigated was whether the impugned provisions of the Act was consistent with the Constitution. If so, the enquiry as to whether or not international law prescribes a different duty was immaterial, since international law was relevant only in the interpretation of the Constitution itself.137 The canon of interpretation according to which it is presumed that Parliament will not legislate in conflict with the State’s international obligations, well-known in South African law, and reenacted in Section 233 of the 1996 constitution, was hereby, without any proper explanation, limited to the Constitution itself. Secondly, the Court had misgivings about the applicability of the Geneva Conventions and Protocols, on which the applicants relied. In the case of the former, the Court ruled out applicability in view of the nature of the conflict in South Africa, and in the case of the Protocols the absence of ratification by the previous South African government presented the Court with an obstacle.138 But as Dugard139 has correctly pointed out, what is missing in the judgement is an enquiry into the compatibility of the amnesty provisions with international customary law. Crimes against humanity, which include systematic murder, torture, persecution on political, racial, reli136

Id., 682–686. Id., 688, para. 26. 138 Id., 689. 139 John Dugard, Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question, South African Journal on Human Rights (SAJHR), vol. 13, 1997, 258, 263. 137

South Africa and International Law

191

gious or ethnic grounds and forced disappearances of persons. What has also been lost, Dugard argues, was the opportunity for one of the most important judgements in the early days of the new dispensation to illustrate the harmony between international and national law both the interim and final constitutions have set out to achieve. II. Treaty-Making Powers and the Status of Customary International Law

In terms of the pre-1994 position in South Africa, treaties had to be enacted into law by parliamentary legislation to become part of domestic law.140 This was so because the conclusion of a treaty was considered to be an executive act, and therefore not embodied in the law except by legislative process. The 1993 Interim Constitution tried to do away with this procedure by giving Parliament the power to ratify treaties concluded by the Executive, with the effect that such treaties would form part of domestic law. The method of ratification, though, was not specified. Parliament was simply authorized to “provide expressly” for the ratification of such a treaty.141 However, there is general agreement that what the provision intended was not the adoption of a legislative measures but a form of endorsement to be effected simultaneously with the act of ratification.142 This was undone by the 1996 Constitution. The negotiation and signing of a treaty by the Executive143 is now followed by ratification in Parliament by means of a resolution,144 an act which binds the Republic only in its international relations with the other signatories. For domestic validity, the treaty must

140

Appellate Division, Pan American World Airways Incorporated v. SA Fire and Accident Insurance Co Ltd, SA, vol. 1965 (3), 150. 141 Section 231 of the 1993 Interim Constitution (note 122). 142 Neville Botha, International Law and the South African Interim Constitution, South African Public Law, vol. 9, No. 1, 1994, 244, 255; John Dugard, International Law: A South African Perspective, 2000, 55, 56; Rayleen Keightley, Public International Law and the Final Constitution, SAJHR, vol. 12, No. 4, 1996, 405, 409. See also Derry Devine, Some Problems Relating to Treaties in the Interim South Africa Constitution, SAYIL, vol. 20, 1995, 1, 16 et seq. 143 Section 231 (1) of the 1996 Constitution (note 122). 144 Id., Section 231 (2).

192

Hennie Strydom

be enacted into law by a legislative measure.145 Two categories of treaties are excluded from this procedure. The first entails treaties of a technical, administrative or executive nature and those not requiring either ratification or accession and entered into by the Executive. Treaties falling into this category bind the Republic without ratification by Parliament, but must be tabled in Parliament within a reasonable time.146 What Parliament must do with such treaties is not specified. If the idea is that Parliament retains an oversight function, short of ratification, over such treaties, then parliamentary practice, which is still inconclusive, will have to provide guidance over time on the nature and extent of the oversight. The second category refers to treaties with self-executing provisions. Such treaties must pass Parliamentary approval, but assume domestic legal force without parliamentary legislation and rank below the Constitution and parliamentary legislation.147 Generally, the introduction of the concept of selfexecution into South African law has been met with disapproval, citing either the concept’s meaninglessness or its unsuitability in the South African context.148 What must be noted is that the concept of self-execution is somewhat of a misnomer. In practice, the anomalous position exists that the direct applicability of treaty provisions is usually determined by constitutional law. In such instances, the provisions of an international agreement which pretends to be self-executing are not self-executing at all, since their internal validity and application still depend on a national law rule, i.e. the relevant constitutional provision. Customary international law seems to conjure up less controversy under the 1996 Constitution. In terms of the common law, customary international law was treated as part of domestic law. This position is given constitutional endorsement by Section 232, which states that customary international law “is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” In terms of the section’s ranking of customary international law, the common law and precedents are now subject to it. What significance customary international law will play in shaping South Africa’s jurisprudence is certainly 145

Id., Section 231 (4). Id., Section 231 (3). 147 Id., Section 231 (4). 148 Dugard (note 142), 58; Neville Botha, Treaty-Making in South Africa: A Reassessment, SAYIL, vol. 25, 2000, 91. For a positive appraisal see Michele Olivier, Exploring the Doctrine of Self-Execution as Enforcement Mechanism of International Obligations, SAYIL, vol. 27, 2002, 99 et seq. 146

South Africa and International Law

193

open to debate. In the human rights field, for instance, there are at least two factors that will have a limiting effect on such a role. The first is that South Africa now has a codified Bill of Rights with a case law jurisprudence on which customary international law had virtually no influence and is unlikely to have in the future. The second is that, since South Africa has ratified most of the major human rights conventions, it is reasonable to assume that this body of law and the case law it has engendered will be the main sources from which inspiration will be drawn, if need be. III. Human Rights Related Matters

1. To What Extent Is International Law Really Used as an Interpretation Aid? The inclusion of international law as a source reference in the constitution provided much hope that the harmonization between national and international law would enrich the South African jurisprudence and augment progressive approaches to interpretation of legal norms and rules. This was especially so in the case of international law as an interpretation aid in the context of human rights protection alluded to earlier on. In practice, the results were disappointing. With the possible exception of the AZAPO case149 cursory reference to international law stands out in the judgements where individual judges have made reference to international law. Of true analysis and interpretation, as opposed to mere reference, there is precious little evidence.150 In essence it seems that the influence of international law is more through osmosis than anything else, simply because the constitutional provisions came about, in part at least, through soliciting provisions in international human rights instruments or other materials influenced by the former. The significance of the Makwanyane judgement is that clarity was at least brought with regard to the applicability of both binding and non-binding international law. However, whether there is clarity as to the Court’s own understanding of what should qualify as non-binding international law, is by no means certain. One finds, for instance, no reference to non-binding standards, 149

AZAPO case (note 135). See analysis of case law by Michele Olivier, South Africa and International Human Rights Agreements, Policy and Practice (part 1), Journal of South African Law, No. 2, 2003, 293 et seq. 150

194

Hennie Strydom

also known as ‘soft law,’ and no explanation on whether multilateral treaties not ratified by South Africa would qualify as non-binding international law or not, or to what use such instruments could be put. With regard to the latter Yacoob J, in the more recent Constitutional Court case of Grootboom,151 took the matter a step forward. Since the respondent (applicant in the court a quo) made considerable use of international law in advancing a certain interpretation and application of the right to housing in Section 26 of the Constitution, the Makwanyane reference to binding and non-binding international law became relevant as a matter of course. It was in this context that Yacoob J made the following statement: The relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary. However, where the relevant principle of international law binds South Africa, it may be directly applicable.152

In a footnote appended to the phrase “binds South Africa,” Yacoob J referred to the whole of Section 231 of the Constitution, which can only mean that a binding international law norm can be inferred from a treaty ratified by Parliament, but not enacted into domestic law, from a treaty ratified and enacted into domestic law, or from a treaty concluded by the previous government, which in terms of Section 231 (5) of the constitution is still binding on the Republic. It seems reasonable to conclude that the above understanding of the relevance of international law aims at a distinction between international law as an interpretation aid and international law which is directly applicable in domestic law. In terms of this understanding, the role of non-binding international law will be limited to providing guidance on what interpretation to follow in a particular matter. But the Grootboom case has also illustrated how courts are likely to react when non-binding international standards are invoked to give specific meaning to a constitutional provision. In issue was the argument that Section 26 of the Constitution must be interpreted in a way that will ensure compliance with the minimum core obligations which socio-economic rights contain according to General Comment No. 3 (1990) of the Committee on Economic, Social and Cultural Rights. The Court accepted that what the Committee intended was to set a minimum essential level below which state conduct must not drop in ensuring satisfaction with socio-economic rights, and determined 151 CC, Government of the Republic of South Africa and Others v. Grootboom, SA, vol. 2001 (1), 46. 152 Id., 63, para. 26.

South Africa and International Law

195

that, in international law, it means that regard must be had to the needs of the most vulnerable groups in society.153 However, the Court was quick to point out how problematic it was to determine what a minimum core obligation is in a context where the needs in relation to adequate housing were diverse and where the Court was not apprised of sufficient information to determine what would constitute a minimum core obligation in the circumstances of the case.154 In no uncertain terms, the Court also held that it was not necessary to decide whether a Court should in the first instance determine the minimum core content of a right, since in terms of Section 26 of the Constitution the question to be determined was whether the measures taken by the State were reasonable within the State’s available resources to achieve the progressive realization of the right to housing. This approach was confirmed by the Constitutional Court in the Treatment Action Campaign case,155 in which the government’s policy on making available an antiretroviral drug to prevent mother-to-child transmission of HIV was challenged as being deficient. The relevant constitutional provision was Section 27, which created a right to have access to health care services and for the progressive realization of which the State was required to take reasonable measures within its available resources. With reference to the Grootboom case, the Court concluded that the Constitution should not be interpreted to provide for minimum core obligations in relation to socio-economic rights, and that such a benchmark should be treated as possibly relevant only to the question whether the State’s measures were reasonable or not. Thus, there is no selfstanding right to the fulfillment of such a core obligation. This understanding of the core obligation requirement was further explained by arguing that the courts are ill-suited to make wide-ranging factual and political enquiries necessary for determining what would constitute minimum core obligations in a given situation, and that the Constitution contemplates a restrained and focused role for the courts, namely to determine the reasonableness of the measures taken.156 The Court’s reluctance to venture beyond the wording of the constitution in interpreting fundamental rights has certain implications for the role of international law as an interpretation aid. While directly applicable convention law still 153 154 155

721. 156

Id., 65, para. 31. Id., 66, para. 33. CC, Minister of Health v. Treatment Action Campaign (No. 2), SA, vol. 2002 (5), Id., 739–740, paras. 34–38.

196

Hennie Strydom

has a chance of receiving some consideration as opposed to a mere reference thereto, non-binding norms of whatever kind are likely to meet with growing indifference from the courts. One must also not lose sight of the fact that in general, the South African courts have always favored case law when applying comparative source material in other jurisdictions, and the fact that they now may do so while international law must be considered is not going to change the sentiment, which is perhaps also the reason why there is no real consideration and analysis of international law in the few cases where reference was made to international law. It is also interesting to note that the preference for staying as close as possible to the Constitution has been entrenched in the Promotion of Equality and Prevention of Unfair Discrimination Act, Act 4 of 2000. Section 3 of this Act determines that any person interpreting the Act must do so with a view to giving effect to the Constitution, and in doing so may be mindful of international convention law or customary law and comparable foreign case law. Here international law is put on the same footing as foreign case law, a position that differs from that assigned to international law in terms of Section 39 of the Constitution. Against the background of these developments, there is much to be said for the comment that the distinction between foreign and international law has not been fully realized [by the South African courts]; that reference has often been passing, cursory and largely ‘ceremonial;’ and that the number and nature of international sources used, has, by and large, been uncreative to say the least.157

2. Human Rights Agreements and Their Implementation In December 1995 the General Assembly of the United Nations adopted a resolution, supported by the newly elected South African government, on the effective implementation of international human rights instruments, including reporting obligations under such instruments.158 At that time, South Africa had ratified the Convention of the Rights of the Child159 and the Convention on the

157

Neville Botha, The Role of International Law in the Development of South African Common Law, SAYIL, vol. 26, 2001, 253, 255. 158 GA Res. 50/170 of 22 December 1995. 159 Convention on the Rights of the Child, GA Res. 44/25 of 20 November 1989 (ratified by South Africa on 16 June 1995).

South Africa and International Law

197

Elimination of Discrimination Against Women.160 It was not until 1998 that South Africa became party to the other major human rights instruments such as the ICCPR, the International Convention on the Elimination of All Forms of Racial Discrimination,161 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,162 and the Convention on the Prevention and Punishment of the Crime of Genocide.163 The International Covenant on Economic, Social and Cultural Rights164 was signed on 3 October 1994, but has not been ratified yet. In February 2002, Parliament approved accession to the Optional and Second Optional Protocol of the ICCPR.165 In 1996, South Africa also ratified the African Charter on Human and Peoples’ Rights. It soon became clear that signing or ratifying international human rights instruments is one thing, while complying with obligations in terms thereof is quite another. A number of problems obstructed efficient and synchronized implementation. Olivier166 has singled out the following: – Restructuring of the public service in terms of the new constitutional dispensation with a concomitant unequal distribution of skills and resources in the different departments of state; – Inter-departmental competition and bickering; – A general absence of cooperation by government departments in responding to enquiries about the domestic impact of international instruments; 160

Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. 34/180 of 18 December 1979 (ratified by South Africa on 15 December 1995). 161 International Convention on the Elimination of All Forms of Racial Discrimination, GA Res. 2106 (XX) of 21 December 1965 (ratified by South Africa on 10 December 1998). 162 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 of 10 December 1984, (ratified by South Africa on 10 December 1998). 163 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS, vol. 78, 277 (ratified by South Africa on 10 December 1998). 164 International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A (XXI) of 16 December 1966. 165 Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 2200A (XXI) of 16 December 1966; Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, GA Res. 44/128 of 15 December 1989. 166 Olivier (note 150), 309.

198

Hennie Strydom

– Inconsistent implementation strategies and inconsistent approaches to reporting; – Absence of a policy on reservations and implementation; – Untimely reporting to treaty monitoring bodies. It has also become evident that South Africa’s implementation and compliance practices or results are not transparent. Information is hard to come by and reports to treaty monitoring bodies, in the few cases where an attempt was made to prepare a report, are not published or easily accessible via electronic or other means. One would have thought that a constitutional body such as the Human Rights Commission167 would be the ideal depository for such reports, but this is unfortunately not the case. 3. Extradition Issues It stands to reason that South African extradition law could not escape the influence of human rights principles168 which are often said to override extradition treaty obligations. Two such principles stand out: the prohibition of the death penalty and the non-discrimination principle. With regard to the first, States face difficulties in complying with extradition requests from countries where the death penalty can be imposed on a fugitive sought for an extraditable offence, and in terms of the latter extradition can be refused when the requested State has grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality or political opinion. When South Africa walked out of the Commonwealth in 1961, the country’s extradition agreements with commonwealth countries ceased to exist and special arrangements had to be made for facilitating the extradition of fugitives to countries with which South Africa had no extradition agreement. To provide for this, Section 3 (2) of the Extradition Act, Act 67 of 1962 empowered the State President to consent to the surrender of a person on an ad hoc basis. When South Africa joined the Commonwealth Scheme for the Rendition of Fugitive Offenders of 1990, the non-discrimination provision in the Scheme prompted an 167

Section 184 of the 1996 Constitution (note 122). See also John Dugard/Christine Van den Wyngaert, Reconciling Extradition with Human Rights, AJIL, vol. 92, 1998, 187 et seq. 168

South Africa and International Law

199

amendment to the Extradition Act providing for a refusal to extradite on the basis of the non-discrimination rule.169 A further development was when, on 13 May 2003, the Minister of Justice, acting in terms of Section 2 (3) ter of the Extradition Act of 1962, gave notice that South Africa had acceded to the European Convention on Extradition and its Additional Protocols.170 Apart from the legislative developments three Constitutional Court judgments are of note. In Harksen a German fugitive, Jürgen Harksen, started a litigious trail in reaction to an extradition request by the German government in 1994. Harksen, who had fled serious fraud charges in Germany, had set up home in Cape Town, and in a series of court proceedings he attempted to delay or terminate extradition proceedings against him. At the time of the extradition request, there was no extradition treaty between South Africa and Germany, with the result that the extradition had to be effected on the basis of Section 3 (2) of the Extradition Act of 1962, which was referred to earlier on. Consequently, on 24 May 1995 the President of South Africa consented in writing to Harksen’s extradition in terms of Section 3 (2) of the Extradition Act. In response, Harksen brought a series of proceedings in the Cape High Court challenging different aspects of the extradition proceedings. In 2000 a constitutional issue raised by Harksen ended in proceedings before the Constitutional Court.171 The constitutional issue was whether Section 3 (2) of the Extradition Act and the consent given by the President in terms thereof were commensurate with Sections 231 (2) and (4) of the Constitution. It will be recalled that Section 231 (2) requires parliamentary ratification of an international agreement for the agreement to bind South Africa, while Section 231 (4) requires national implementation legislation for the agreement to have domestic effect. Harksen’s submission was that the presidential consent was an agreement in the sense of Section 231 and therefore had to comply with the requirements of Section 231 (2) and (4) for it to be valid. The Constitutional Court rejected this proposition and ruled that the consent procedure was an integral part of a domestic 169

Section 11 (b) (iv) and 12 (2) (c) (ii) of Act 67 of 1962. European Convention on Extradition, 13 December 1957, ETS No. 24; Additional Protocol to the European Convention on Extradition, 15 October 1975, ETS No. 86; Second Additional Protocol to the European Convention on Extradition, 17 March 1978, ETS No. 98; Government Gazette, No. 24872 of 13 May 2003. 171 CC, Harksen v. President of the Republic of South Africa, Butterworths Constitutional Law Reports (BCLR), vol. 2000 (5), 478. See also Neville Botha, Lessons from Harksen: A Closer Look at the Constitutionality of Extradition in South African Law, CILSA, vol. 33, 2000, 274 et seq. 170

200

Hennie Strydom

regulation of domestic extradition proceedings and never intended to create international legal rights and obligations between States, in fact it was not an agreement at all, neither an international agreement nor an informal internal agreement.172 The important aspect of the Harksen ruling in the Constitutional Court is that it has brought clarity to the meaning of ‘international agreement’ in Section 231 of the Constitution, in that for the purposes of this section the term can now only refer to those agreements which create legally enforceable rights and obligations between States, an interpretation which is commensurate with the definition of a treaty in Article 2 para. 1 lit. a of the Vienna Convention on the Law of Treaties.173 However, what the Court failed to properly consider was Harksen’s contention that the term ‘international agreement’ as used in Section 231 was broad enough to include informal, non-binding agreements. But this failure was probably predetermined by the ruling that the consent procedure was nothing more than a domestic act. It is nevertheless important to note that in the Cape High Court ruling,174 the Court accepted that a distinction could be made between binding agreements with enforceable rights and obligations and informal, non-binding agreements, a distinction that is often to be determined by reference to the intention of the parties.175 With its obiter remarks, the Court joined the debate amongst many scholars on the existence, status and nature of informal agreements between States. The Cape High Court was not prepared to interpret the diplomatic notes exchanged between South Africa and Germany, containing assurances and undertakings in respect of the extradition, as akin to contractual terms binding on the two governments. These notes, the Court concluded, “reflect no more than they purport to do, namely to request, on the basis of international comity, the co-operation of the South African Government in extraditing Harksen.”176 In a somewhat confusing twist the Court, almost in the same breath, then made the following obiter remark: It may indeed, in loose terminology, also be termed an informal agreement, subject thereto, however, that it was not internationally enforceable and did not create reci172 173

331. 174

Harksen case (note 171), 484–487. Vienna Convention on the Law of the Treaties, 23 May 1969, UNTS, vol. 1155,

Cape Provincial Division, Harksen v. President of the Republic of South Africa, SA, vol. 2000 (1), 1185. 175 Id., 1201 et seq. 176 Id., 1203.

South Africa and International Law

201

procal rights and duties. If that had been the intention, the parties would have expressed it clearly. No such intention can be inferred from any of the relevant documentation.177

This last remark at least vindicates the position that States may resort to concluding informal agreements, and that the status and enforceability of such agreements could depend on the intention of the parties. What the Court has not clarified though, is how an informal agreement, which might become enforceable by the intention of the parties, will be distinguishable from a formal enforceable international agreement.178 The second case of importance is Mohamed v. President of the Republic of South Africa,179 which is a classic example of disguised extradition. Mohamed, a Tanzanian national, was one of four men indicted in the United States on various charges carrying the death penalty, with charges related to the bombings of the US embassies in Nairobi and Dar es Salaam in August 1998. After the bombings, Mohamed clandestinely entered South Africa through Mozambique, settled in Cape Town and later applied for asylum on spurious grounds and under a false name. Pending his application, he received a temporary residence permit subject to periodic renewal. While going through Home Affairs records with the concurrence of the South African authorities, an FBI agent identified Mohamed from a photo in one of the files and alerted the law enforcement agencies. Mohamed was subsequently arrested, and during questioning he admitted to illegal entry and the use of a false name. While this was occurring, the South African authorities were negotiating a new extradition treaty with the US in Washington. Within a day180 of his arrest Mohamed was on a plane to the US, accompanied by FBI agents who were in possession of a full confession by Mohamed detailing his involvement in the embassy bombings. In proceedings which ended in the Constitutional Court, Mohamed’s lawyers contended that his handing over to the US authorities was not a deportation but an extradition in disguise and that there was a clear breach of the Aliens Control Act, Act 96 of 1991. They 177

Id., 1204. See also Johnn Schneeberger, A Labyrinth of Tautology: The Meaning of the Terms ‘International Agreement’ and its Significance for South African Law and Treaty Making Practice, SAYIL, vol. 26, 2001, 1, 14 et seq. 179 CC, BCLR, vol. 2001 (7), 685. 180 In terms of Section 52 of the Aliens Control Act, Act 96 of 1991, no one may be removed from South Africa within 72 hours of his arrest. 178

202

Hennie Strydom

also sought an order directing the South African government to submit a written request to the US authorities that the death penalty not be sought, imposed or carried out upon Mohamed’s conviction. On the validity of the deportation, the Constitutional Court firstly pointed out the need to distinguish between extradition and deportation. While extradition involves co-operation between States for the delivery of an alleged criminal for the purpose of trial or sentence in the requesting State, deportation is a unilateral act by a State to get rid of an undesired alien. In law it was clear that the State’s power to deport was regulated by the Alien Controls Act of 1991. Neither this Act nor the Constitution contains any prerogative power to deport or to determine the destination of the deportation. Thus, since the United States was not a destination in terms of the legal confines of the Act, the South African authorities acted unlawfully in deporting Mohamed to the US.181 In ruling on the death penalty issue, the Court dealt with a number of authorities in which extradition was barred because the suspect could receive the death penalty. Pertinent to the Mohamed case was the case of another embassy bombing suspect, Mahmoud Salim, who was only extradited from Germany to the United States after the German authorities had sought and secured an assurance from the US government that Salim would not be sentenced to death.182 What also weighed heavily with the Court was the abolishment in South Africa itself of the death penalty as an unconstitutional form of punishment. Since the South African authorities were actively involved in the deportation of Mohamed, there was a duty on them, the Court concluded, to secure a prior undertaking from the US government that the death sentence would not be imposed, or if imposed, would not be carried out upon conviction. Failure to have done so constituted a violation of Mohamed’s constitutional rights. Although the unlawful deportation was irreversible and the proceedings against Mohamed at an advanced stage, the Court nevertheless found it appropriate to order the South African authorities to do whatever might still be possible to ameliorate the consequential prejudices done to Mohamed. The State’s attempt to stigmatize such an intervention as a breach of the separation of power between the executive and the judiciary was rejected out of hand as a negation of the meaning of constitutional supremacy and the rule of law, which bring constitutional principles and values to bear on the conduct of all organs of State, including the executive.183 181 182 183

Mohamed case (note 179), 696–698, 701. Id., 701. Id., 711.

South Africa and International Law

203

A careful reading of the judgement makes clear that the Court was cautious not to encroach too much on the executive’s discretion and to leave the nature and scope of the measures to be taken in the hands of the executive power. The issue of determining the boundaries of judicial review of executive action has received new life under the new constitutional dispensation, especially since the prerogative powers of the executive are now part and parcel of the Constitution,184 and are therefore justiciable in terms of the Constitution.185 Of special significance is Section 8 (1) of the Bill of Rights, stating in unambiguous terms that the “Bill of Rights applies to all law, and binds the legislature, the executive and all organs of state.”186 However, although the courts have been given wider powers of judicial review under the new constitutional dispensation, it is generally accepted that the executive has retained its discretionary non-statutory powers for conducting foreign affairs.187 These issues were recently the subject-matter of proceedings before the Constitutional Court in a matter that received considerable publicity in local and foreign media. The applicants in the case188 were 69 South African citizens arrested and detained in Zimbabwe on the 7 March 2004 for their alleged involvement in the planning of a military coup in Equatorial Guinea. Coincidentally, on 9 March 2004, 15 men were arrested in Equatorial Guinea and accused of being mercenaries and plotting a coup against the President of Equatorial Guinea, and rumors were rife that the Zimbabwe group was part of the military contingent involved in the planning of the coup. However, the South African applicants, all ex-military operatives, maintained throughout that they were destined for the Democratic Republic of the Congo where they would act as security guards for a company involved in mining operations, and that their landing in Harare, the capital of Zimbabwe, was for the purpose of refueling and picking up cargo, which incidentally included a large military consignment. 184

Section 84 of the 1996 Constitution (note 122). Id., Section 2. 186 See also CC, President of the Republic of South Africa v. Hugo, SA, vol. 1997 (4), 1 and CC, President of the Republic of South Africa v. South African Rugby Football Union, SA, vol. 2000 (1), 1. 187 Dugard (note 142), 67; Gretchen Carpenter, Prerogative Powers in South Africa – Dead and Gone At Last?, SAYIL, vol. 22, 1997, 104; Ignus Rautenbach/Rassie Malherbe, Constitutional Law, 2004, 49–52. 188 CC, Kaunda and Others v. President of the Republic of South Africa and Others, BCLR, vol. 2004 (10), 1009. 185

204

Hennie Strydom

On 18 May, the applicants petitioned the High Court in Pretoria for relief, seeking an order directing the South African government to take all reasonable and necessary steps to secure their release and/or extradition to South Africa and to secure an assurance from Zimbabwe that they would not be extradited to Equatorial Guinea by the Zimbabwean authorities, or in the case of an extradition, that an assurance be sought from Equatorial Guinea not to impose the death penalty in the case of a conviction. In support of their claims the applicants relied on their constitutional rights to dignity, freedom and security of the person, fair trial proceedings, decent conditions of detention and not to be subjected to torture, or other cruel, inhuman or degrading forms of treatment or punishment, all or some of which would be in jeopardy should they stand trial in either Zimbabwe or Equatorial Guinea. The High Court rejected the application, and on 19 July they argued for leave to appeal to the Constitutional Court as a matter of urgency, and to be pardoned for non-compliance with the procedural duty to first seek relief from a full bench of the High Court or the Supreme Court of Appeal. This was granted and, in a highly significant judgement, the Constitutional Court ruled on a number of international and constitutional law as well as foreign affairs matters. For current purposes two inter-related matters stand out: the rights and interests attached to citizenship, and the courts’ oversight role in respect of the government’s protection and promotion of the right to diplomatic protection. With regard to the first issue, the Court, citing the Barcelona Traction case189 and the work of the International Law Commission on diplomatic protection,190 pointed out that the prevailing view in international law – borne out by state practice – is that States have a right to protect their nationals beyond their borders, but are under no obligation to do so.191 But the main part of the Court’s analysis on this issue related to the applicant’s argument that the Bill of Rights provisions have transformed the discretionary nature of diplomatic protection into a positive obligation on the State to come to the rescue of its citizens on foreign land when their fundamental rights are threatened. This argument centered around two provisions in the Bill of Rights. One is Section 7 (2), which 189 ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgement of 5 February 1970, ICJ Reports 1970, 3. 190 Report of the International Law Commission on the Work of its Fifty-Second Session, UN Doc. A/CN.4/506 (2000). 191 Kaunda case (note 188), para. 23 et seq.

South Africa and International Law

205

obliges the State to “respect, protect, promote and fulfil” the rights in the Bill of Rights, and the other Section 3, which determines in part that “all citizens are equally entitled to the rights, privileges and benefits of citizenship.” The Court had no difficulty in accepting that Section 7 (2) of the Constitution places a positive obligation on the State, but was not prepared to understand that to mean that citizens can claim the rights in question when they were beyond the borders of South Africa, i.e. that the South African Constitution had extraterritorial reach, a position the Court found support for in the territorial restrictiveness of the Constitution and in the international law rule that a State cannot apply its national laws in the territory of another State.192 Hence, the Court’s conclusion was that [f]or South Africa to assume an obligation that entitles its nationals to demand, and obliges it to take action to ensure, that laws and conduct of a foreign State and its officials meet not only the requirements of the foreign State’s own laws, but also the rights that our nationals have under our Constitution, would be inconsistent with the principle of state sovereignty. Section 7 (2) should not be construed as imposing a positive obligation on government to do this.193

Although one would take this understanding of a constitution’s reach as fairly obvious, it is the Court’s subsequent linking of Section 7 (2) with Section 3 that outlines the important part of the judgment in this instance. Included in the rights, privileges and benefits of citizenship, according to the Court, is the entitlement to seek protection through one’s State and to have the request considered and responded to appropriately.194 This entitlement must be read within the context of Section 7 (2), which has as a goal the advancement of human rights. Consequently, the entitlement to request diplomatic protection has a corresponding obligation in terms of which government must consider the request and deal with it in accordance with the Constitution.195 The Court also pointed out that in an extreme case, such as when a citizen is not in a position to request assistance, there may even be a duty on the government to act on its own initiative to take appropriate action on becoming aware of an egregious breach of human rights.196 Whether the obligation or duty has been complied with is a matter the Court was still competent to adjudicate. However, what the Court could not do was to 192 193 194 195 196

Id., para. 32 et seq. Id., para. 44. Id., paras. 58–63. Id., para. 67. Id., para. 70.

206

Hennie Strydom

tell government how to diplomatically intervene and provide assistance to a national in need. In this regard, the Court relied, inter alia, on the ruling of Germany’s Bundesverfassungsgericht in the famous Hess case,197 in which the constitutional review of the exercise of the government’s discretion in foreign affairs was acknowledged, subject to a wide margin of appreciation by the foreign affairs department in the assessment and consideration of possible courses of action.198 However, discretions of this nature are still subject to the rationality test, which is the minimum threshold requirement applicable to the exercise of all public power in terms of the South African Constitution. Accordingly, the Court will always enquire whether the purpose thought to be achieved by the exercise of the power was within the authority of the functionary and whether there was a rational connection between the factual basis for the decision and the decision itself and between the decision and the purpose for which the decision was taken.199 What eventually frustrated the applicants’ case was the timing of the intervention which they sought from the South African government. At the time of their application, there was no convincing evidence before the Court that the infringements they raised were imminent or real. As the Court pointed out, the obligation to intervene will only arise when the risk of the consequences the applicants fear will happen becomes a reality. The claim for protection was therefore premature.200 One significant matter concerning the fair trial issue in Equatorial Guinea remains. The failures of the criminal justice system in that country were brought to the attention of the Court by means of reports by Amnesty International, the International Bar Association and the UN Commission on Human Rights, all telling a tale of serious human rights violations and procedural irregularities.201 For the South African government, it was argued that these reports were not admissible in evidence and that the Court could not rely on them to make a finding 197

Decisions of the Federal Constitutional Court (BVerfGE), vol. 55, 349; Kaunda case (note 188), para. 73 et seq. 198 See also United Kingdom, Court of Appeals (Civil Division), Abbasi v. Foreign Secretary, reprinted in: ILM, vol. 42, 2003, 359. 199 Kaunda case (note 188), 80 et seq. See also CC, Pharmaceutical Manufacturers Association of SA and Another; In re Ex parte President of the Republic of South Africa and Others, SA, vol. 2000 (2), 674. 200 Kaunda case (note 188), para. 127. 201 Id., para. 117 et seq.

South Africa and International Law

207

on the efficacy and fairness of Equatorial Guinea’s judicial system. It was also the stated position of the South African government that its policy was not to comment on the criminal justice systems of other countries. Although the Court accepted that it was not in a position to make a finding on the functioning of another country’s judicial system, it nevertheless considered the reports of sufficient significance to raise serious concern about the prospects of a fair trial should the applicants be extradited to Equatorial Guinea, and should their rights in this regard not be honored it would amount to a grave breach of international law, which would be harmful to the government’s foreign policy and its aspirations for a democratic Africa.202 The way in which the Court dealt with these matters creates the impression that a subtle warning was sent out to government to take the contents of the reports seriously and to be alert to the consequences if timely and appropriate action was not taken. Even more important, though, is the complementary judgement of O’Regan J on this point, in ruling that the demands of comity and sensitivity in foreign affairs should not blind the government to the risk of egregious violations of the human rights of its nationals in other countries. Consequently, it is not only [government’s] constitutional obligation to take appropriate steps to provide diplomatic protection to its nationals that requires government to consider this matter, but the developing global and regional commitment to the protection of human rights also requires government to be responsive to these issues. It is not satisfactory therefore for government merely to say that it is not its policy to comment on the criminal justice system of other countries.203

O’Regan J was also not convinced that the application was premature. Since Equatorial Guinea had already sought the extradition of the applicants from Zimbabwe, the extradition application gave rise to an appreciable risk that the extradition would take place, and therefore government had an obligation to preempt the consequences. In the circumstances, the appropriate relief O’Regan J granted was a declaratory order spelling out that government was under a constitutional obligation to take the appropriate steps to provide diplomatic protection to the applicants.204

202 203 204

Id., paras. 122–126. Id., para. 267. Id., paras. 268–271.

208

Hennie Strydom

D. Jus in Bello and Jus ad Bellum Prior to the new constitutional dispensation, the domestic status of conventional humanitarian law was inconclusive, especially in view of the fact that the South African Parliament never passed legislation for the incorporation into South African law of the four 1949 Geneva Conventions, which had been ratified by South Africa as early as 1952. As indicated earlier on, attempts to invoke the 1977 Protocols as customary international law during the armed struggle against South Africa also failed. Although South Africa has lately become party to the Protocols,205 neither these Protocols nor the Geneva Conventions have been incorporated into domestic law yet. A more positive fate has befallen the Rome Statute of the International Criminal Court (1998),206 ratified by South Africa on 27 November 2000. In 2002, South Africa also adopted the Implementation of the Rome Statute of the International Criminal Court Act, Act 27 of 2002, giving the South African courts jurisdiction to adjudicate in cases involving the Statute’s core crimes in accordance with the principle of complementarity in Article 17 of the Rome Statute. The Act also directs the courts to consider and apply, in addition to the Constitution and the law in South Africa, conventional international law, customary international law and comparable foreign law.207 However, to obtain a broader picture of the new legal framework for armed activities involving the South African security forces, it is necessary to take note of the new constitution-inspired changes that have taken place since 1996. In regulating the powers, functions and accountability of the security services, the Constitution itself holds up a new mirror, comprising not only the Constitution but also international law, for appraising the conduct of the security forces. Both in terms of the Constitution208 and the new Defense Act, Act 42 of 2002,209 the South African Defense Force primarily has a defensive duty and orientation, to be fulfilled in accordance with the Constitution and international law regulating the use of force. The latter part of the provision is obviously a reference to the UN Charter law on the use of force. In fact, in a 1996 Government White Paper 205

The Protocols were ratified on 11 November 1995. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), reprinted in: ILM, vol. 37, 1998, 999. 207 Act 27 of 2002, Section 2. 208 Id., Section 200 (2). 209 Id., Section 2 (c) and (d). 206

South Africa and International Law

209

on National Defense, the reference to international law regulating the use of force was understood to incorporate four principles of the UN Charter: the prohibition on the use of force in Article 2 para. 4; the collective use of force to restore international peace and security in terms of Article 42; regional enforcement action in terms of Article 53, and individual and collective self-defense in terms of Article 51.210 With regard to the conduct of the security forces two constitutional provisions stand out. One is that the security services must act, and must teach their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.211 The other one is that no member of the security forces may obey a manifestly illegal order.212 “Manifestly illegal order” is not defined, but it can be assumed that orders to commit any of the grave breaches in the law of war will be manifestly illegal.213 The reference to international agreements binding on the Republic in this context is apparently a reference to the Hague Conventions (1907),214 the Geneva Conventions (1949) and Protocols (1977), as well as “all other international conventions and treaties which pertain to armed conflict and to which South Africa is a party.”215 210 See Minister of Defence, Defence in a Democracy: White Paper on National Defense for the Republic of South Africa, May 1996, Chapter 2, paras. 13–22, available at: http://www.mil.za/Articles&Papers/Papers/WhitePaperonDef/white.htm. 211 Section 199 (5) of the 1996 Constitution (note 122). 212 Id., Section 199 (6). 213 See also Art. 33 para. 2 of the Rome Statute (note 206), which defines orders to commit genocide or crimes against humanity as manifestly unlawful. 214 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 18 October 1907, reprinted in: Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and 1907, 1915. 215 Defence White Paper (note 210), Chapter 2, para. 19, 21. The latter category of treaties would include the Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, 5 August 1963, UNTS, vol. 480, 43; the Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, UNTS, vol. 729, 161; the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, GA Res. 47/39 of 30 November 1992; the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof of 11 February 1971, UNTS, vol. 955, 115; the Comprehensive Test Ban Treaty, UN Doc. A/50/1027 (1996); the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction, 18 September 1997, reprinted in: ILM,

210

Hennie Strydom

Apart from the duty to defend the Republic, the Constitution also empowers the Minister of Defense to employ the Defense Force in fulfillment of an international obligation.216 It stands to reason that operations in terms of Chapter VII of the UN Charter form part of this obligation. However, what has featured strongly since the advent of the new constitutional dispensation in this context is South Africa’s role in peace-keeping missions. Illustrative of this is the adoption by Parliament in February 1999 of a government White Paper on South African Participation in International Peace Missions. This document affirms the broadening of traditional concepts of security – hitherto limited to the military dimension of security – to include political, economic, social, cultural and personal security. Hence, the evolution of UN peace operations from classical peacekeeping involving the monitoring of cease-fire agreements to multidimensional and complex interventions where the military component is just one of several involved in the process. In coming to grips with this new security environment, the document sought to bring some definitions to bear on concepts such as peacemaking, peace support operations, peacekeeping operations, peace enforcement, post-conflict peace-building and humanitarian intervention; but it acknowledged that preventive diplomacy, peace-building and peace-making must be the essential pillars of any peace mission.217 Complying with an international obligation in any of the peace mission type engagements under a UN mandate will involve the review powers of Parliament over the deployment of forces.218 Accordingly, before Parliament can ratify the deployment, the President will have to inform Parliament about the details of the deployment and to provide information to the Parliamentary Committees on Defense, Foreign Affairs, Intelligence and Finance about entry and exit criteria, risks, command and control arrangements and about whether the deployment will accord with South Africa’s national interests and foreign policy objectives. Under the guidance of Foreign Affairs, Status of Forces Agreements must be concluded and Rules of Engagement determined, clearly outlining the applica-

vol. 36, 1997, 1507; and the African Nuclear-Weapon-Free Zone Treaty, UN Doc. A/50/426 (1996). 216 Section 201 (2) (c) of the 1996 Constitution (note 122). 217 White Paper on South African Participation in International Peace Missions, 24 February 1999, 5 et seq., available at: http://www.info.gov.za/documents/whitepapers/ index.htm. 218 Section 201 (3) of the 1996 Constitution (note 122).

South Africa and International Law

211

bility of international conventions and international law in general to the forces and the Rules of Engagement.219 Since 2000, approximately 3000 South African troops have served in the UN Mission in Ethiopia and Eritrea (UNMET), the UN Mission in the Democratic Republic of the Congo (MONIC), the OAU/African Union (AU) Observer Mission in the Comores (OHMIC), and in Burundi to protect political leaders participating in that country’s transitional government.220 However, the real challenge for South Africa is how, as a leading member and architect of the new African Union, the country is going to deal with conflicts on the African continent. The OAU never instilled confidence as an organization capable of and determined to deal with regional wars and internal strife. On paper at least, the African Union wants to bring about significant changes in the way collective responses to conflict must be conducted in the future under the initiatives of the African Union’s Peace and Security Council (PSC).221 The PSC is envisaged as a collective security and early-warning arrangement to facilitate timely and efficient responses to conflict and crisis situations in Africa. One of the most remarkable duties assigned to the PSC, which could also turn out to be one of the most controversial duties to perform, is to militarily intervene in Member States in the case of war crimes, crimes against humanity and genocide, pursuant to a decision of the Assembly of Heads of States and Government or on request by a Member State to restore internal peace and security.222 These provisions on intervention were somewhat expanded by the Protocol on Amendments in that the reference to grave breaches as a ground for intervention was supplemented by including, as a further ground for intervention, a “serious threat to legitimate order, in order to restore peace and stability to the Member State of the Union upon the Recommendation of the Peace and

219

Defence White Paper (note 210), 27–28. Theo Nestling, The Defense Force and Peacekeeping: Linking Policy and Capacity, in: Elizabeth Sidiropoulos (ed.), South Africa’s Foreign Policy 1994–2004: Apartheid Past, Renaissance Future, 2004, 135, 136 et seq. 221 This Council was established by a Protocol adopted on the 9 July 2002 by the Assembly of Heads of State. See also Hennie Strydom, Peace and Security under the African Union, SAYIL, vol. 28, 2003, 59 et seq. 222 Constitutive Act of the African Union, Art. 4 para. h and para. j. The Constitutive Act was adopted by the 36th ordinary session of the Assembly of Heads of State and Government on 11 July 2000, Lomé, Togo, available at: http://www.africa-union.org/About_AU/ constitutive_act.htm. 220

212

Hennie Strydom

Security Council.”223 These grounds for intervention have also been included amongst the principles and values underlying the Common African Defence and Security Policy.224 There should not be any doubt that decisions for or against collective action on the basis of these grounds, will depend on which of the two key contesting principles in this new peace and security arrangement, justice or stability, gains the upper hand. Past experience with the reactions of African governments in the face of political and humanitarian disasters leaves little doubt that the default disposition is usually a response that will have the least effect on internal stability or the status quo. E. Conclusion On the occasion of the 59th session of the United Nations General Assembly, the President of South Africa had some hard words for the world body. The representatives of States were reminded of their promises made in the Millennium Declaration and of how the promises had not produced the grand results States had committed themselves to. On the issue of threats to peace and security, attention was drawn to the divide between the rich and impoverished nations: While the former point to terrorism and war, the latter feel threatened by abject poverty, which brings death and despair to millions of people on a daily basis while those affected are powerless to do something about it. These matters then also provided the platform for the President to bring into the debate the unequal distribution of decision-making power in the world body, especially in the Security Council, and the need for reform. No doubt these matters are of great import. However, when reform is to be debated, there comes to mind the specter of the reform that is needed to bring about true democratic governance in African States and to turn a regional organization such as the African Union into an effective instrument delivering on its own promises. Apart from this, the crucible on which South Africa’s post-apart223

Protocol on Amendments to the Constitutive Act of the African Union, adopted by the 1st extraordinary session of the Assembly of the Union, Addis Ababa, 3 February 2003, available at: http://www.iss.co.za/AF/RegOrg/unity_to_union/oautr.html. 224 Solemn Declaration on a Common African Defence and Security Policy, adopted by the Assembly of Heads of State and Government at a 2nd extraordinary session, Sirte, Libya, 28 February 2004, OAU Doc. Ext/Assembly/AU/Res.1 (II), para. 11, available at: http://www.africa-union.org/Official_documents/Decisions_Declarations/Sirte/ Declaration on a Comm.Af Def Sec.pdf.

South Africa and International Law

213

heid foreign policy will be judged is in the Southern African region, where recourse to the Southern African Development Community (SADC) has tended to circumscribe substantive action in support of a number of issues. Thus far, South African diplomacy to reconstruct and develop a new institutional architecture to address issues of democratic governance, human rights abuses, resource wastage, corruption and many others has not been inspiring, as for instance, the ‘quiet diplomacy’ towards the oppressive regime in Zimbabwe has shown. Further afield, the Darfur disaster in Sudan has illustrated the vulnerability of the African Union in dealing with crises of this nature. With fifty thousand people dead and more than a million displaced, one would expect the paralysis amongst the States of the world to change into support for the African Union, which tries to monitor a cease-fire with fifty-four monitors protected by only 310 AU forces. But the African Union seems to be equally paralyzed by the Sudanese government’s refusal to expand the AU’s mandate or its forces. Against the background of a country in transition and facing many problems, the question whether South Africa can provide a more assertive leadership in the long run in strengthening regional and sub-regional institutions is difficult to answer.

State Responsibility for International Humanitarian Law Violations and the Work of the Eritrea Ethiopia Claims Commission So Far By Natalie Klein* A. Introduction On 18 June 2000, Eritrea and Ethiopia signed an Agreement on Cessation of Hostilities, thereby terminating a two-year boundary war.1 Six months later, on 12 December 2000, a further agreement (the “December Agreement”) was signed between the countries in order to establish three different international bodies to address different aspects of the conflict.2 Article 3 of the latter agreement called for an investigation into the origins of the armed conflict by an independent, impartial body appointed by the Secretary-General of the Organisation of African Unity. In accordance with Article 4, a Boundary Commission was established with a mandate to delimit and demarcate the colonial treaty border between the two countries. Finally, Article 5 of the same agreement created a Claims Commission to decide claims for loss, damage or injury that related to the border conflict and that resulted from violations of international humanitarian law or other international law.

*

B.A. (Juris) LL.B. (Hons) (Adelaide), LL.M. J.S.D. (Yale). Lecturer, Macquarie University, Sydney, Australia. The author was previously counsel to Eritrea before the Eritrea Ethiopia Boundary Commission, but has not served as counsel before the Eritrea Ethiopia Claims Commission. The views expressed in this article are her own. The author thanks Gregory H. Fox for presenting the opportunity to write this article. 1 Agreement on Cessation of Hostilities, 18 June 2000, Eritrea-Ethiopia, reprinted in: UN Doc. S/2000/601. 2 Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, 12 December 2000, Eritrea-Ethiopia, reprinted in: ILM, vol. 40, 2001, 260 (December Agreement).

State Responsibility for Humanitarian Law Violations

215

In the course of the conflict, approximately 100,000 people were killed or wounded, 500,000 troops were involved and 600,000 civilians were displaced.3 In addition to civilians killed, injured or otherwise harmed during the fighting, civilians also suffered loss and injury through the deportation programs undertaken by each country. Ethiopia deported an estimated total of 75,000 Eritreans and Ethiopians of Eritrean national origin, whereas Eritrea returned approximately 70,000 Ethiopians to Ethiopia.4 The human toll of the conflict was clearly severe, as were the economic ramifications. Further reports indicate that both countries spent hundreds of millions of dollars on their respective military efforts.5 It remains to be determined what dollar figure will attach to the economic losses of civilians and other victims of the conflict. It is the task of the Eritrea Ethiopia Claims Commission (EECC or Commission) to determine what violations of international humanitarian law and other international law were committed by each country during the conflict and what reparations are payable as a consequence of those violations. The purpose of this article is to describe the current contribution of the EECC to determining state responsibility for violations of international humanitarian law. This analysis permits an interim assessment of whether this sort of forum enhances the implementation of international humanitarian law and of what role this type of forum may play in inter-state conflict resolution. As the Commission is at the start of its work, its initial decisions are critical in shaping how issues are resolved throughout the entire process, and they also provide some indication of the likely success of these proceedings. Defining what constitutes a successful resolution of the dispute is of course problematic – strict compliance with the Commission’s final awards is not necessarily the critical and sole determinant. The parties may instead decide to reach a negotiated settlement rather than complete the claims proceedings as currently envisaged. For successful resolution, not only should the parties accept the authority of the Commission and adhere to its decisions, but it should also be considered whether the process of 3 Franklin Steves, Regime Change and War: Domestic Politics and the Escalation of the Ethiopia-Eritrea Conflict, Cambridge Review of International Affairs, vol. 16, 2003, 119, fn. 2 (noting, however, that reliable figures are difficult to obtain). 4 Human Rights Watch, The Horn of Africa War: Mass Expulsions and the Nationality Issue (June 1998–April 2002), 2003, 5, available at: http://www.hrw.org/reports/ 2003/ethioerit0103/. 5 In 2000, Ethiopia’s military budget for the previous year was $ 467M, while Eritrea’s stood at $ 236M. Eritrea and Ethiopia at Doubtful Peace, The Economist, vol. 355, 24 June 2000, 50.

216

Natalie Klein

attributing responsibility for international humanitarian law violations serves to promote a peaceful relationship between them. A further important benchmark involves asking whether the implementation of international humanitarian law has been well-served through this process. In addressing these questions, this article first sets out the background of the border conflict between Eritrea and Ethiopia, the basic position on the applicability of state responsibility for international humanitarian law violations, and the establishment of the EECC. The discussion then turns to the jurisdiction of the Commission, its initial decisions on applicable law, evidentiary issues and legal standards, and some of the substantive law aspects of the first two awards on liability. The first arrangements for dealing with reparations are also considered. These studies give some guide as to the likely success of the Claims Commission process, and the concluding section of the article provides an interim assessment of the EECC as a form of dispute settlement. I. Background to the Border Conflict

Eritrea was established as an Italian colony in 1890.6 Italy proceeded to enter into three treaties with Emperor Menelik II of Ethiopia to delimit the length of the southern boundary of Eritrea. The third of these treaties, signed in 1908, delimited the eastern part of the boundary and had the effect of cutting off Ethiopia’s access to the Red Sea and rendering it land-locked. Relations between the colonial power and Ethiopia were tense, and, in 1935, Italy invaded Ethiopia and was in control of both territories until the end of World War II. While Ethiopia regained its independence with Italy’s defeat in World War II, the fate of Eritrea was left to be determined by the United Nations. By Resolution 390 (V), the General Assembly decided that Eritrea was to be federated with Ethiopia and to have its own constitution.7 Ethiopia abrogated the federation in 1962 and Eritrea became a province of Ethiopia. This action had the effect of sparking a struggle for independence that was to last for thirty years. The Eritrean liberation forces eventually joined with resistance fighters in Tigray, the Ethiopian province immediately south of Eritrea. With the collapse of the Soviet Union and the concomitant end of Soviet support in the region, the resistance forces 6 The Treaty of Uccialli was signed between Italy and the Emperor of Ethiopia in 1889, and Italy then formally proclaimed Eritrea to be an Italian colony in 1890. 7 GA Res. 390 (V) of 2 December 1950.

State Responsibility for Humanitarian Law Violations

217

succeeded in their goals and the central government of Ethiopia was overthrown in 1991. While the Tigrayans went on to take control of the central government of Ethiopia, 99.8 % of Eritreans voted in favor of Eritrea’s independence from Ethiopia in a 1993 referendum.8 Both countries lived in relative harmony until 1997, when tensions along their shared boundary increased. Eritrea and Ethiopia have each claimed that the other was responsible for starting the war due to a difference of opinion over the precise location of the boundary and ensuing efforts undertaken to defend their respective territorial sovereignty.9 A range of other problems have been cited as possible causes or contributing factors to the conflict that erupted in May 1998, including economic rivalry, Eritrea’s introduction of its own currency, Ethiopia’s desire to regain an outlet to the sea, Ethiopia’s failure to remove all of its forces from Eritrean territory following Eritrea’s independence, and nationalistic chauvinism of each country.10 The fighting between Eritrea and Ethiopia initially focused around the village of Badme, in the west of Eritrea, but gradually spread to locations in the central area of the boundary as well as in the east, where Ethiopia sought to reach the Eritrean port of Assab. The war between Eritrea and Ethiopia lasted two years and was fought with varying degrees of intensity during that time. After the Agreement of Cessation of Hostilities was signed, the two states began the laborious and delicate process of re-establishing peace in the region. A Temporary Security Zone was established along the length of the shared border and has been monitored by a United Nations peacekeeping force, the United Nations Mission in Eritrea and Ethiopia. On 13 April 2001, the Eritrea Ethiopia Boundary Commission issued its award and produced a map delimiting the boundary.11 Although Ethiopia initially accepted this decision and declared it a victory for Ethiopia,12 it has now rejected 8

United Nations, The United Nations and the Independence of Eritrea, 1996, 29. See, e.g., Border a Geographer’s Nightmare, BBC News, 12 May 2000, available at: http://news.bbc.co.uk/1/hi/world/africa/396571.stm. 10 See, e.g., Steves (note 3); Was this War Necessary?, Newsweek International, 8 March 1999, 66. 11 See Ethiopia Eritrea Boundary Commission, Decision Regarding the Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia (Eritrea v. Ethiopia), Judgment of 13 April 2001, reprinted in: ILM, vol. 41, 2002, 1057 (Boundary Award). 12 See New Ethiopia-Eritrea Border Revealed, BBC News, 13 April 2002, available at: http://news.bbc.co.uk/1/hi/world/africa/1927986.stm (citing the Ethiopian Foreign 9

218

Natalie Klein

significant parts of the judgment and hampered efforts at demarcation.13 Most recently, the United Nations Secretary-General has reported on an ongoing stalemate in the demarcation process and consequent mistrust between the parties.14 It is in this political context that Eritrea and Ethiopia currently seek to resolve their claims of liability for international humanitarian law and other international law violations before the EECC. II. The Bases for State Responsibility for Violations of International Humanitarian Law

While international courts and tribunals have had occasion to address alleged violations of the laws of war,15 and tribunals determining individual responsibility for breaches of international humanitarian law have become more common,16 a forum for permitting determinations of state responsibility for international humanitarian law violations, as well as concomitant duties of reparations for those violations, has been a rare occurrence in the international system. International humanitarian law initially focused on the obligation of states to compensate individuals directly, rather than considering state-to-state responsibility. Article 3 of Hague Convention IV therefore provided: “A belligerent party which violates the provisions [of the annexed Regulations] shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”17 Though not stated specifically in Article 3, the travaux préparatoires demonstrate that the intention Minister as saying “Ethiopia accepts the ruling – Ethiopia is satisfied” and that Eritrea had lost the case). 13 See Progress Report of the Secretary-General on Ethiopia and Eritrea, UN Doc. S/2003/1186, 10–17 (annexing the eleventh report of the Eritrea Ethiopia Boundary Commission and accompanying documentation describing Ethiopia’s new position on the boundary ruling). 14 See Progress Report of the Secretary-General on Ethiopia and Eritrea, UN Doc. S/2004/708. 15 See Leslie C. Green, Essays on the Modern Law of War, 2nd ed. 1999, 163 et seq. 16 The establishment of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and, most recently, the creation of the International Criminal Court are exemplary in this regard. 17 Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, Art. 3, reprinted in: Dietrich Schindler/Jirí Toman, The Laws of Armed Conflicts, 3rd ed. 1988, 69 (Hague Convention IV).

State Responsibility for Humanitarian Law Violations

219

behind this provision was to set forth a state’s liability for the losses of individuals rather than a state’s responsibility vis-à-vis another state.18 This emphasis on reparations being owed to individuals was consistent with the general approach of Hague Convention IV and its annexed Regulations in that the intention was to have states adjust their national regulations or military codes to ensure implementation through their respective armed forces, rather than setting out obligations that one state owed to another.19 This position shifted slightly in the drafting of the four Geneva Conventions,20 and then more so in the two Additional Protocols,21 whereby the obligation was aligned with traditional principles of state responsibility.22 Under Geneva Conventions III and IV, states are responsible for the treatment of POWs and protected persons, regardless of any individual responsibility.23 More striking in the Geneva Conventions, beyond acknowledging state responsibility, is the affirmation of individual responsibility for grave breaches of those trea18

See Fritz Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, International and Comparative Law Quarterly (ICLQ), vol. 40, 1991, 827, 830 and 838 (referring to the records of the conference that drafted Hague Convention IV). But see Theodor Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, 224 (considering that “the language also applies to interstate claims, whether brought by a state on its own behalf or on behalf of individual victims”). 19 Kalshoven (note 18), 833. 20 Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 12 August 1949, UNTS, vol. 75, 31 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, UNTS, vol. 75, 85 (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS, vol. 75, 135 (Geneva Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 287 (Geneva Convention IV). 21 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, UNTS, vol. 1125, 3 (Additional Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, UNTS, vol. 1125, 609. 22 Namely that where a state is liable for a violation of international law, it has the duty to make reparations to the injured state. See International Law Commission, Responsibility of States for Internationally Wrongful Acts, Art. 31, Report of the International Law Commission on the Work of its Fifty-third session, UN Doc. A/56/10 (2001), 43, 51 (ILC Articles on State Responsibility). 23 Geneva Convention III (note 20), Art. 57; Geneva Convention IV (note 20), Art. 29. See, infra, notes 181–182 and accompanying text.

220

Natalie Klein

ties.24 This individual responsibility is reinforced by provisions requiring a range of actions from governments, including the enactment of legislation necessary to provide effective penal sanctions for persons committing or ordering the commission of any grave breaches.25 The Geneva Conventions further provide that states are liable if individuals commit grave breaches of those conventions.26 Additional Protocol I elucidated state responsibility for violations of international humanitarian law in the reformulation of the obligation under Article 3 of Hague Convention IV. Article 91 of Additional Protocol I reads: A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.

With regard to Article 91, the drafters now had in mind that “the object […] was compensation due to a State (or the collectivity of ‘a people’) for the ‘destruction and ravages’ of war it had suffered, notably as a result of (alleged) criminal breaches of the law of armed conflict by a brutal invader or occupant.”27 By looking at Article 91 and Article 3 together, the result is that compensation is to be paid both to the state and to individual victims.28 While the state-to-state obligation under the key international humanitarian law treaties has been brought into line with the general principles of state responsibility, an outstanding issue has always been the mechanism by which a state is to make reparations for its international humanitarian law violations. Payment by lump sum or the inclusion of an “indemnity” in a treaty of peace are ways that states have sought to remedy violations of international humanitarian law or otherwise settle claims arising after an armed conflict.29 A recent example of state practice for state responsibility for violations of international humanitarian law can be drawn from the establishment of the United Nations 24

Geneva Convention I (note 20), Art. 50; Geneva Convention II (note 20), Art. 51; Geneva Convention III (note 20), Art. 130; Geneva Convention IV (note 20), Art. 147. 25 Geneva Convention I (note 20), Art. 49, Geneva Convention II (note 20), Art. 50, Geneva Convention III (note 20), Art. 129, Geneva Convention IV (note 20), Art. 146. 26 Geneva Convention I (note 20), Art. 51, Geneva Convention II (note 20), Art. 52, Geneva Convention III (note 20), Art. 131, Geneva Convention IV (note 20), Art. 148. 27 Kalshoven (note 18), 846. 28 Id., 847. 29 See, e.g., Sir Hersch Lauterpacht (ed.), Oppenheim’s International Law, vol. II, 7th ed. 1952, 594–595.

State Responsibility for Humanitarian Law Violations

221

Compensation Commission (UNCC) under Security Council Resolution 687 of 3 April 1991.30 In accordance with that resolution, the Security Council “reaffirm[ed] that Iraq […] is liable under international law for any direct loss, damage – including environmental damage and depletion of natural resources – or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait.”31 Iraq’s liability is essentially a foregone conclusion under this resolution. Moreover: The processing of claims [by the UNCC] will entail the verification of claims and evaluation of losses and the resolution of any disputed claims. The major part of this task is not of a judicial nature; the resolution of disputed claims would, however, be quasi-judicial.32

In this context, the work of the EECC is quite exceptional as it is an international tribunal that is to adjudicate on questions of liability for international humanitarian law violations following an armed conflict and to fix the specific amount of reparations that is to be paid by each state. III. Establishment of the EECC

Article 5 para. 1 of the December Agreement describes the mandate of the EECC as follows: The mandate of the Commission is to decide through binding arbitration all claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party or entities owned or controlled by the other party that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law. 30

“The decision to institutionalize the mechanism of compensation after what would at that time have been called an international crime has to be viewed not as a politically charged and punitive measure against a pariah state, but rather as a way to enhance the enforcement of the international legal order.” Andrea Gattini, The UN Compensation Commission: Old Rules, New Procedures on War Reparations, European Journal of International Law (EJIL), vol. 13, 2002, no. 1, 161, 166. 31 SC Res. 687 of 3 April 1991, para. 16. The work of the UNCC has been primarily directed at reparations for violations of the jus ad bellum, but some claims that address injuries suffered by individuals fall more under the jus in bello. 32 Report of the Secretary-General pursuant to para. 19 of Res. 687 of 3 April 1991, UN Doc. S/22559 (1991), para. 25. See also Kalshoven (note 18), 856–858.

222

Natalie Klein

The December Agreement further sets out the modalities for the selection of five arbitrators, each party appointing two arbitrators and those four then selecting the president of the Commission.33 Eritrea appointed Lucy Reed and John Crook, and Ethiopia appointed James Paul and George Aldrich; Professor Hans van Houtte was appointed as president of the Commission.34 The Commission has its seat in The Hague,35 and the Permanent Court of Arbitration is serving as Registrar.36 In accordance with Article 5 para. 7 of the December Agreement, the Commission adopted its own rules of procedure based on the 1992 Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States. The Commission is further mandated “to adopt such methods of efficient case management and mass claims processing as it deems appropriate.”37 The Commission decided that in relation to government-to-government claims, it would conduct bifurcated proceedings whereby questions of liability would be decided in a first phase and, if liability was found, reparations would

33

December Agreement (note 2), Art. 5 paras. 2–3. A report of the Commission’s President to the UN Secretary-General notes that one of the Commissioners originally appointed by Ethiopia resigned. Progress Report of the Secretary-General on Ethiopia and Eritrea, UN Doc. S/2001/608, Annex II, 13, para. 2. (Progress Report) George Aldrich was appointed as the replacement. 35 December Agreement (note 2), Art. 5 para. 5. 36 Progress Report (note 34), Annex II, 13, para. 2. 37 December Agreement (note 2), Art. 5 para. 10. To this end, in its Decision Number 2, the Commission decided that all claims were to be divided into six specified categories (with the parties allowed to create their own subcategories), and that the first five categories of claims would be subject to a mass claims process. The six categories of claims identified by the Commission are: 1. Claims of natural persons for unlawful expulsion from the country of their residence; 2. Claims of natural persons for unlawful displacement from their residence; 3. Claims of prisoners of war for injuries suffered from unlawful treatment; 4. Claims of civilians for unlawful detention and for injuries suffered from unlawful treatment during detention; 5. Claims of persons for loss, damage or injury other than those covered by other categories; 6. Claims of Governments for loss, damage or injury. EECC Decision Number 2: Claims Categories, Forms and Procedures, available at: http://www.pca-cpa.org/ENGLISH/RPC/EECC/Decision%202.pdf. 34

State Responsibility for Humanitarian Law Violations

223

be determined in a second phase of proceedings.38 It has so far issued two awards on the liability of the parties arising out of claims regarding the treatment of prisoners of war (POWs) and claims relating to military operations on the Central Front.39 The December Agreement provides that the Commission is to endeavor to complete its work within three years of Statements of Claim being filed, which took place on 12 December 2001.40 The Commission will probably not keep to this timeframe given the current stage of the proceedings and the decision to bifurcate liability and reparations. If the reparations phase has similar duration to the liability phase, it is more likely that the work of the Commission will not be completed until 2007. B. Jurisdiction of the EECC The jurisdiction of the EECC is based on the December Agreement, which defines the subject matter, temporal and personal jurisdiction of the Commission. The Commission has also had cause further to articulate the limits of its jurisdiction in response to the parties’ submissions. I. Subject Matter Jurisdiction

Article 5 para. 1 of the December Agreement grants the EECC authority to decide claims “for loss, damage or injury […] that are (a) related to the conflict […] and, (b) result from violations of international humanitarian law […] or other violations of international law.” Explicitly excluded are “claims arising from the cost of military operations, preparing for military operations, or the use 38

See EECC, Prisoners of War – Eritrea’s Claim 17 (Eritrea v. Ethiopia), Partial Award, 1 July 2003, para. 13 (Eritrea POW Partial Award), available at: http://www. pca-cpa.org/ENGLISH/RPC/#Partial%20Awards (referring to a decision of 29 August 2001). 39 The EECC issued awards addressing the liability of the parties for “Civilians Claims,” which primarily dealt with the deportation programs of each state, on 17 December 2004. See EECC, Civilians Claims – Eritrea' s Claims 15, 16, 23 & 27–32 (Eritrea v. Ethiopia), Partial Award, 17 December 2004, and Civilians Claims – Ethiopia' s Claim 5 (Eritrea v. Ethiopia), Partial Award, 17 December 2004, both available at: http://www.pca-cpa.org/ENGLISH/RPC/#Partial%20Awards. Due to publication timing, these awards could not be considered in the present article. 40 December Agreement (note 2), Art. 5 para. 12.

224

Natalie Klein

of force, except to the extent that such claims involve violations of international humanitarian law.” The scope of the Commission’s jurisdiction is consistent with the commitment of Eritrea and Ethiopia to address the negative socioeconomic impact of the crisis on civilians.41 In accordance with this mandate, the claims of both parties are to focus on loss, damage or injury that arose during the course of the conflict between them, potentially extending beyond claims based on international humanitarian law to economic claims as well as claims for violations of diplomatic immunity.42 Ethiopia has also sought to argue that Eritrea should be found liable for its alleged act of aggression in initiating the conflict in May 1998.43 Such an invocation of the jus ad bellum would appear to fall outside of the jurisdiction of the Commission, as it is within the excluded category of “use of force.” The Commission has limited its subject matter jurisdiction to those claims arising under Article 5, and thereby decided that it does not have authority to exercise supervisory jurisdiction over the interpretation or application of the De-

41

December Agreement (note 2), Art. 5 para. 1. With respect to violations of diplomatic immunity, Eritrea had filed a case before the International Court of Justice alleging violations of the Vienna Convention on Diplomatic Relations on the basis of forum prorogatum, inviting Ethiopia to consent to the Court’s exercise of jurisdiction. See ICJ Press Release 99/04, 16 February 1999, available at: http://www.icj-cij.org/icjwww/ipresscom/iPress1999/ipresscom9904_1999 0216.htm. See also Letter dated 23 February 2000 from the Permanent Representative of Eritrea to the United Nations addressed to the Secretary-General, UN Doc. A/54/ 770-S/2000/161 (attaching Eritrea’s application instituting proceedings as well as a factual submission supplemental to the application). Ethiopia never proffered such consent. Ethiopia may seek reparations from Eritrea for economic loss in relation to Ethiopian property allegedly destroyed or confiscated at the Eritrean ports of Massawa and Assab. This claim had originally been submitted to the Court of Justice of the Common Market of Eastern and Southern Africa but was subsequently withdrawn upon the conclusion of the December Agreement with Eritrea. See COMESA, Eritrea v. Ethiopia (Interlocutory Application 1.A. 1A/99) and Ethiopia v. Eritrea (Application I.A. No. 1 of 2001), Judgment of 21 March 2001, available at: http://www.comesa.int/ institutions/court_of_justice/precedents/Judgements/Ethiopia%20vs%20Eritrea.%20 %20/en. Both of these claims would fall within the subject-matter jurisdiction of the Commission. 43 EECC, Central Front – Ethiopia’s Claim 2 (Ethiopia v. Eritrea), Partial Award, 28 April 2004, para. 4 (Ethiopia Central Front Partial Award), available at: http://www. pca-cpa.org/ENGLISH/RPC/#Partial%20Awards (deferring Ethiopia’s claims of breaches of the jus ad bellum by Eritrea to a subsequent proceeding). 42

State Responsibility for Humanitarian Law Violations

225

cember Agreement.44 “Such an important grant of jurisdiction cannot be implied.”45 This decision was presumably made at the initial stages of the Commission’s proceedings because of Ethiopia’s delayed release and repatriation of Eritrean POWs and other detained persons despite an obligation to do so under Article 2 of the December Agreement.46 The Commission excluded the possibility that it could judge whether Ethiopia was in violation of the terms of Article 2 of the December Agreement, but Eritrea could still raise a claim that Ethiopia’s failure to release and repatriate prisoners of war without delay was a violation of international humanitarian law.47 II. Temporal Jurisdiction

The timeframe of the claims that may be presented to the Commission is simply described in the December Agreement as relating to the conflict that was subject to several earlier agreements between the parties.48 The parties were required to submit all of their claims to the Commission one year after the signing of the December Agreement. Ethiopia challenged several of Eritrea’s claims in both the prisoner of war and Central Front proceedings as being untimely on the basis that the claims had not been sufficiently identified in the initial Statement of Claim.49 The Commission anticipated that the parties would refine their legal 44

EECC Decision Number 1: The Commission’s Mandate/ Temporal Scope of Jurisdiction, available at: http://www.pca-cpa.org/ENGLISH/RPC/EECC/Decision%201.pdf. 45 Id. (the Commission contrasted its jurisdiction with that of the Iran-US Claims Tribunal, which was expressly granted jurisdiction to decide disputes concerning the interpretation and application of the Claims Settlement Declaration). 46 The decisions of the EECC are not dated, but it was the first issue addressed and remained contentious until Ethiopia released the last of the Eritrean POWs on the eve of the hearing addressing prisoner of war claims. See, infra, notes 205–210 and accompanying text. 47 Eritrea POW Partial Award (note 38), para. 22. 48 December Agreement (note 2), Art. 5 para. 1 (referring explicitly to the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement). 49 Eritrea POW Partial Award (note 38), paras. 23 and 24 (referring to Eritrea’s claims concerning subjection of prisoners to insults and public curiosity, providing inappropriate housing and sanitation conditions to female prisoners, and mistreating prisoners during transfers between camps); EECC, Central Front – Eritrea’s Claims 2, 4, 6, 7, 8 & 22 (Eritrea v. Ethiopia), Partial Award, 28 April 2004, para. 13 (Eritrea Central Front Partial Award), available at: http://www.pca-cpa.org/ENGLISH/RPC/#Partial%20

226

Natalie Klein

theories or present more detailed or accurate portrayals of the facts as their cases developed.50 Furthermore, not every treaty claim that might be relevant to an alleged illegal act had to be articulated in the Statement of Claim.51 However, the requirement that the claims be sufficiently articulated in the Statement of Claim could not be regarded as an empty formality as the respondent had to be put on notice of the case to answer in order to present an adequate defense.52 Various Eritrean claims with respect to prisoners of war and the Central Front were extinguished as a result.53 Nonetheless, evidence supporting these rejected claims could still be taken into account in respect of claims that were within the jurisdiction of the Commission.54 In its first Decision, the EECC considered the relevant time period to be from when the conflict began in May 1998 through to its formal conclusion by the signing of the December Agreement in 2000.55 The significance of this starting date is that it accords with Ethiopia’s view that the conflict began when Eritrean troops forced Ethiopia’s soldiers out of Badme and its environs, rather than taking into account certain events in July and August of 1997 involving what could be perceived as Ethiopian incursions into Eritrean territory.56 While there was no controversy in considering that the conflict was over when the December Agreement came into force, the Commission still considered the possibility of whether claims could arise subsequent to that date but ‘relate to’ the conflict. Examples of claims in this regard included those arising from the disengagement of forces or withdrawal of forces from places of occuAwards (referring to Eritrea’s claims of violations after March 2001, unlawful landmine use, unlawful re-education classes, and unlawful continued occupation after March 2001). 50 Eritrea POW Partial Award (note 38), para. 27. 51 Eritrea Central Front Partial Award (note 48), para. 17. 52 Eritrea POW Partial Award (note 38), para. 25. See also Eritrea Central Front Partial Award (note 49), para. 17. 53 Eritrea POW Partial Award (note 38), para. 25; Eritrea Central Front Partial Award (note 49), para. 14. 54 Eritrea POW Partial Award (note 38), para. 27. 55 EECC Decision Number 1 (note 44). 56 A Chronology of the Crisis Between Eritrea and Ethiopia, available at: http:// www.dehai.org/conflict/events.htm (describing three “truckloads” of Ethiopian troops entering the Badme area and undertaking patrols; Ethiopian administrators instructing Eritrean administrators to “disband – they were taking over,” and Eritrean protests of these actions to Ethiopian officials in Addis Ababa).

State Responsibility for Humanitarian Law Violations

227

pation. The EECC took the view that “certain claims associated with events after 12 December 2000 may also ‘relate to’ the conflict, if a party can demonstrate that those claims arose as a result of the armed conflict between the parties, or occurred in the course of measures to disengage contending forces or otherwise to end the military confrontation between the two sides.”57 From one perspective, the effect of this decision is to extend the temporal jurisdiction of the EECC to 12 December 2001 only. Such a limitation is imposed because of the requirement that the parties file all their claims by that date and that “any such claims which could have been and were not submitted by that deadline shall be extinguished, in accordance with international law.”58 Alternatively, it could possibly be argued that certain claims relating to the conflict could not have been submitted by the 12 December 2001 deadline as they had not fully crystallized at that time, or were not known and could not have been known to one of the parties by then. The EECC examined the issue of claims arising after December 2000 in its first partial award in response to Eritrea’s claims that Ethiopia’s treatment of POWs subsequent to 12 December 2000 failed to conform with international law requirements, and that the failure to repatriate remaining prisoners without delay further constituted an international law violation.59 In addition to arguing that these claims were outside the subject matter jurisdiction of the Commission,60 Ethiopia relied on the temporal limitations of the Commission’s jurisdiction and argued that the claims were based upon conduct that occurred subsequent to the entry into force of the December Agreement.61 Given that the persons subject to the claims became POWs during the course of the conflict, there was no difficulty in the Commission concluding that their timely release and repatriation constituted claims arising as a result of the armed conflict and relating to that conflict, as required by Article 5 of the December Agreement and in accordance with EECC Decision No 1.62

57 58 59 60 61 62

Id. December Agreement (note 2), Art. 5 para. 8. Eritrea POW Partial Award (note 38), para. 16. Id., para. 18. Id., para. 16. Id., paras. 20–21.

228

Natalie Klein

III. Personal Jurisdiction

Consistent with the nature of the EECC as a state-to-state tribunal, Eritrea and Ethiopia are each entitled to raise claims against the other in their own right and in the exercise of diplomatic protection for their nationals.63 Less usual under international law is the provision in Article 5 para. 9 that each party may submit claims “[i]n appropriate cases” on behalf of persons who are not nationals but are Eritrean or Ethiopian in origin.64 Such an extension of the principle of diplomatic protection would have been required in light of the mass deportation of Ethiopians of Eritrean national origin to Eritrea during the course of the conflict. Eritrea is now entitled to espouse claims on behalf of these individuals for the losses and injuries suffered at the hands of their own government through the inclusion of Article 5 para. 9 of the December Agreement. Similarly, this provision also permits claims that arise from individuals located in disputed territory. A boundary conflict by its nature renders it uncertain as to which party is acting as an occupying power in certain areas or whether there is simply an issue of a party’s treatment of its own nationals during a time of armed conflict. The resolution of this issue depends on the ultimate placement of the boundary. If a party takes control of territory of the other party then it constitutes an occupying force and triggers the laws of occupation.65 The necessary implication from this principle is that a state is not an occupying power over its own territory, as understood in international humanitarian law.66 For these rules to make sense, there needs to be a clear demarcation of territory between the parties. This issue was at the fore of the Commission’s consideration of Ethiopia’s claims in relation to Irob Wereda, an area in which large parts of territory were disputed between the parties. The award of the Boundary Commission recog63

December Agreement (note 2), Art. 5 paras. 1 and 8 (the December Agreement further clarifies that “nationals” is to include both juridical as well as natural persons). The Commission has separated individual claims from the government to government claims. See, supra, note 37. 64 Id., Art. 5 para. 9. 65 See Hague Convention IV (note 17), Regulations, Section 3; Geneva Convention IV (note 20), Arts. 51–70; Additional Protocol I (note 21), Arts. 75–77. 66 A state may re-conquer its own territory in the course of a conflict and constitute a military occupier until civil authority is restored. See Leslie C. Green, The Contemporary Law of Armed Conflict, 1995, 247.

State Responsibility for Humanitarian Law Violations

229

nized that these disputed parts of Irob were in Eritrean territory.67 This decision placed Eritrea in the position to argue that it was not an occupying power in the area, and that interactions between Eritrean armed forces and Eritrean nationals were outside the Commission’s jurisdiction.68 In addressing this point, the EECC noted that while the Hague Regulations and Geneva Convention IV referred to territory being occupied or placed under the authority of the hostile army,69 there was no distinction between disputed and undisputed territory in either instrument.70 The provisions do, however, presuppose that the territory does not belong to the party that ‘occupies’ it, given that there is a reference to a ‘hostile’ army. The Commission also considered the provision in Additional Protocol I whereby the occupation of territory or the application of the Geneva Conventions and Additional Protocol I do not prejudice the legal status of that territory.71 The difficulty here is that this provision only states that a military occupation would not enable a state to claim territorial rights to the area under occupation, and does not speak to the initial point of whether the area is under occupation for the purposes of the application of occupation law in the first instance. The Commission decided that it would focus on the protections of international humanitarian law regardless of issues of territorial sovereignty and that it would judge occupation based on what territory the parties administered prior to May 1998 (and as determined through the withdrawal of forces upon the cessation of hostilities).72 It was considered sufficient for the Commission to apply the basic position of a state’s responsibility “for all acts contrary to international humanitarian law committed by members of its armed forces […] wherever those acts take place.”73 With this sole focus, the Commission was able to assert 67

Boundary Award (note 11), para. 8.1. Ethiopia Central Front Partial Award (note 43), para. 77. 69 Hague Convention IV (note 17), Regulations, Art. 42; Geneva Convention IV (note 20), Art. 2. 70 Ethiopia Central Front Partial Award (note 43), para. 29. 71 Id., para. 28. 72 Id., para. 78 (cross-referencing also to the discussion in paragraphs 27–31). The Commission considered that resting its decision on the effective administration of territory prior to May 1998 was a distinct task to the role of the Boundary Commission, which delimited the border based on its interpretation of three colonial treaties and admissions of the parties as to administration at the time of Eritrea’s formal independence. Id., para. 30. 73 Id., para. 29. 68

230

Natalie Klein

jurisdiction over what would have been claims of Eritrean nationals against Eritrea. It also meant that questions of occupation law could mostly be put to the side. The EECC did not ultimately detail what specific provisions of treaty law codifying customary law were being relied on in relation to the treatment of civilians, and only occasionally referred to Eritrea as an occupying power.74 C. Applicable Law Article 5 para. 13 of the December Agreement provides that the EECC is to apply “relevant rules of international law” and that it may not make decisions ex aequo et bono.75 An obvious source of law for the EECC in determining violations of international humanitarian law is the four Geneva Conventions, as well as Additional Protocol I to these Conventions.76 The four Geneva Conventions were in force in Ethiopia in 1993 when Eritrea gained its formal independence.77 The question therefore arose as to whether Eritrea automatically succeeded to these treaties at that time. The Commission was unable to find evidence of an automatic succession, particularly in light of various statements by Eritrean officials that Eritrea did not consider itself bound by the Geneva Conventions and that it formally acceded (rather than succeeded) to the Geneva Conventions in August 2000.78 As a consequence of this determination, the Commission considered that Eritrea was bound by customary international law applicable during armed conflict

74

See, e.g., id., para. 74 et seq. (discussing Irob Wereda, where the issues of disputed territory and concomitant obligations as an occupying power were the most relevant). 75 In determining the “relevant rules of international law,” the Commission drew on the sources of international law as articulated in Art. 38 of the Statute of the International Court of Justice, which was the model for Art. 19 of the Commission’s Rules of Procedure. 76 See, supra, notes 20 and 21. 77 EECC, Prisoners of War – Ethiopia’s Claim 4 (Ethiopia v. Eritrea), Partial Award, 1 July 2003, para. 24 (Ethiopia POW Partial Award), available at: http://www.pca-cpa. org/ENGLISH/RPC/#Partial%20Awards; Eritrea POW Partial Award (note 38), para. 33. 78 Ethiopia POW Partial Award (note 77), paras. 24 and 26; Eritrea POW Partial Award (note 38), paras. 33 and 35. The Commission also noted that neither Ethiopia nor the International Committee of the Red Cross considered Eritrea bound prior to its accession. Id., para. 25 and para. 34, respectively.

State Responsibility for Humanitarian Law Violations

231

prior to its accession.79 In terms of the content of that law, the Commission found that “the Geneva Conventions of 1949 have largely become expressions of customary international law,” as evidenced by the near universal acceptance of these treaties as well as the general importance of humanitarian obligations to the international community.80 This holding comports with the statement of the International Court of Justice in the North Sea Continental Shelf Cases, where the Court allowed for the possibility that “a very widespread and representative participation in the convention might suffice of itself” to show that a convention rule has become a customary rule of international law.81 Meron further supports the view that to uphold the customary law status of international humanitarian law reflects the “strength of moral claims” about the application and observance of these norms to maintain international public order.82 Although not relying on the traditional criteria for establishing whether certain principles reflect customary international law,83 the holding of the EECC in this regard makes sense. In the North Sea Continental Shelf Cases, the International Court explicitly excluded from its determination of the customary law nature of a norm conduct consistent with treaty obligations precisely because the conduct was pursuant to those obligations and represented the application of the 79

Ethiopia POW Partial Award (note 77), para. 29; Eritrea POW Partial Award (note 38), para. 38. Even though Eritrea was not formally bound by the Geneva Conventions prior to August, 2000, Ethiopia was still required to respect these obligations. See Geneva Convention III (note 20), Art. 1 (“the High Contracting Parties undertake to respect […] the Convention in all circumstances” (emphasis added)). See also Green (note 66), 188. 80 Ethiopia POW Partial Award (note 77), para. 31; Eritrea POW Partial Award, (note 38), para. 40. This holding applies to all of the claims submitted to the Commission. Eritrea Central Front Partial Award (note 49), para. 21; Ethiopia Central Front Partial Award (note 43), para. 15. 81 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Merits, Judgment of 20 February 1969, ICJ Reports 1969, 3, 42. 82 Meron (note 18), 57–58. 83 Art. 38 of the Statute of the ICJ refers to “international custom, as evidence of a general practice accepted as law.” The failure of the EECC to explain in terms of the traditional requirements of state practice and opinio juris is consistent with the practice of earlier tribunals that have considered the customary law status of Hague Convention IV, the Hague Regulations and the Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, LNTS, vol. 118, 343 (1929 Geneva Convention). See Meron (note 18), 38–40 (citing the cases of Trial of German Major War Criminals and United States v. von Leeb as examples of tribunals concluding on the customary law status of the relevant treaties without explaining how such conclusion was reached).

232

Natalie Klein

particular treaty.84 However, these constrictions render any assessment of the customary law status of the Geneva Conventions especially problematic because of the near-universal participation in those treaties.85 The position of the Commission does represent an advance over the view espoused by the International Court of Justice in the Nicaragua Case, where it described the status of the Geneva Conventions as “in some respects a development, and in other respects no more than the expression” of fundamental principles of humanitarian law.86 However, in light of the twenty year passage since that judgment, the particular importance of the Geneva Conventions in the recent development of international criminal law, and all but one state being party to these treaties,87 the Commission’s position seems warranted. In its first decisions on liability, the Commission confirmed the customary law status of various obligations in the Geneva Conventions. For example, in assessing the treatment of prisoners captured on the battlefield, particularly those who were wounded or sick upon capture, the Commission referred to the requirements of Geneva Conventions I and III as absolutely prohibiting the killing of POWs, requiring the sick and wounded to be collected and cared for, the dead to be collected and demanding prompt and humane evacuation of prisoners.88

84 The traditional position articulated in the North Sea Continental Shelf Cases is that the customary law nature of a norm may not usually be found in the conduct of parties that are “acting actually or potentially in the application of [a] Convention.” North Sea Continental Shelf Cases (note 81), 43. 85 Meron (note 18), 30. See also Richard Baxter, Treaties and Custom, Recueil des Cours, vol. 129, 1970-I, 27, 96 (commenting that it is “virtually impossible” to determine if the Geneva Conventions represent customary international law given the extremely large number of parties to these treaties). 86 ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, 113, para. 218. 87 Only Niue is not party to the Geneva Conventions. See the ICRC’s list of State Parties to International Humanitarian Law and Other Related Treaties, available at: http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/party_main_treaties/. Although its status as a state remains uncertain, the Executive Committee of the Palestine Liberation Organisation has informed the Swiss Federal Council of its intention to adhere to the Geneva Conventions and the Additional Protocols. Id. 88 Ethiopia POW Partial Award (note 77), para. 64; Eritrea POW Partial Award (note 38), para. 58.

State Responsibility for Humanitarian Law Violations

233

The core obligations relating to the treatment of POWs were generally considered to be part of customary international law.89 In some instances, the Commission did not specifically indicate whether or not a Geneva Convention obligation was customary but assessed liability solely in terms of the treaty requirement. For example, Ethiopia claimed that Eritrea had violated a number of provisions of Geneva Convention III in relation to the conditions of labor under which Ethiopian POWs were forced to work.90 While Detaining Powers are permitted to compel POWs who are physically fit to work,91 there are limitations on the type and conditions of work that may be undertaken.92 Eritrea’s liability was solely judged in relation to the particular provisions of Geneva Convention III.93 Given that the conduct in question occurred prior to Eritrea’s accession to this Geneva Convention,94 it must be assumed that the Commission found these obligations to reflect customary international law. As another source of applicable law, the Commission decided that Hague Convention IV and its annexed Regulations were also part of customary international law, and had been recognized as such for over fifty years.95 With respect to Additional Protocol I, the EECC was imprecise as to what aspects of that agreement constituted custom and what aspects still involved progressive development of the law.96 Eritrea and Ethiopia had taken the approach in the Cen89

Ethiopia POW Partial Award (note 77), para. 53; Eritrea POW Partial Award (note 38), para. 55. See also Green (note 66), 188; Horst Fischer, Protection of Prisoners of War, in: Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995, 321, 325 (both confirming that the fundamental provisions of Geneva Convention III are customary international law). 90 Ethiopia POW Partial Award (note 77), para. 126. 91 Geneva Convention III (note 20), Art. 49. 92 See id., Arts. 49–57. 93 Ethiopia POW Partial Award (note 77), para. 134. 94 The Commission refers to the treatment of Ethiopian POWs in camps located in Afabet, Digdigta and Nakfa. Id., paras. 128–130. Digdigta and Afabet were campsites between September 1998 and May 2000, which was prior to Eritrea’s accession to the Geneva Conventions in August 2000. See id., paras. 9–10. 95 Eritrea Central Front Partial Award (note 49), para. 22; Ethiopia Central Front Partial Award (note 43), para. 16. See also International Military Tribunal (Nuremburg), Nuremburg Judgment, 1 October 1946, reprinted in: American Journal of International Law (AJIL), vol. 41, 1946, 172, 249. 96 Eritrea Central Front Partial Award (note 49), para. 23; Ethiopia Central Front Partial Award (note 43), para. 17 (commenting that “portions of Protocol I involve ele-

234

Natalie Klein

tral Front cases that “key provisions governing the conduct of attacks and other relevant matters” were customary law, and the Commission agreed generally with this view.97 The EECC subsequently relied on specific provisions in Additional Protocol I in respect of only a few claims.98 In addressing claims concerning the Central Front, the EECC had to consider what law would apply to arguments concerning the improper use of anti-personnel landmines and booby traps.99 The instruments of possible relevance here were the Certain Conventional Weapons Convention,100 the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II),101 and the Landmines Convention.102 None of these international agreements were in force between the parties during the armed conflict and the Commission therefore had to determine whether the provisions of these treaties constituted customary international law. The EECC concluded that the three instruments were all of such recent genesis, and that the practice of states had been so “varied and episodic,” that it was “impossible” to hold that they reprements of progressive development of law,” but that “most of the provisions of Protocol I were expressions of customary international humanitarian law”). This position can be compared to the United States’ precise articulation of what rules of Additional Protocol I embodied customary law, which could develop into customary international law, and which rules were viewed as undesirable. See Meron (note 18), 64–67 (referring to a study prepared for the US Joint Chiefs of Staff). 97 Eritrea Central Front Partial Award (note 49), para. 23; Ethiopia Central Front Partial Award (note 43), para. 17. 98 The Commission expressly referred to Arts. 52 and 53 in addressing Eritrea’s claims relating to the Stela of Matara, Art. 76 in relation to the treatment of women civilians, Art. 4 in its discussion on the applicability of the laws of occupation, Art. 51 addressing the terrorizing of civilians, Art. 57 concerning the need to take feasible precautions to protect civilians, and the general obligation in Art. 91 whereby states are responsible for the acts of its armed forces wherever those acts take place. 99 Eritrea Central Front Partial Award (note 49), para. 24; Ethiopia Central Front Partial Award (note 43), para. 18 (noting also that the parties had only provided the Commission with limited discussion on this point). 100 Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which may be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, UNTS, vol. 1342, 137. 101 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 10 October 1980, as amended at Geneva, 3 May 1996, reprinted in: ILM, vol. 35, 1996, 1209. 102 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 18 September 1997, reprinted in: ILM, vol. 36, 1997, 1507 (Landmines Convention).

State Responsibility for Humanitarian Law Violations

235

sented customary international law.103 Only some “elements” of Protocol II that reflected “fundamental humanitarian law obligations of discrimination and protection of civilians” were held to be customary international law.104 Given the general conclusion that the Geneva Conventions, Hague Convention IV and its Regulations, as well as “most of” Additional Protocol I had customary law status, the EECC decided it was up to the party asserting that a particular provision was not customary international law to prove this to the Commission.105 This distribution of the burden of proof for the establishment of a legal principle is unusual. As an evidentiary matter, it is the party relying on a rule of law that must generally prove its existence. Rosenne describes the practice of the International Court of Justice as follows: “Generally, in application of the principle actori incumbit probatio the Court will formally require the party putting forward a claim to establish the elements of facts and of law on which the decision in its favour might be given.”106 Earlier authority of the Court has supported the view that when a state bases a claim on customary international law, it is for the party invoking such custom to prove its existence.107 Faced with the Commission’s burden of proof, Eritrea argued that certain of the more technical and detailed provisions of Geneva Convention III were not part of customary international law.108 Eritrea justified its refusal to allow the In103

Eritrea Central Front Partial Award (note 49), para. 24; Ethiopia Central Front Partial Award (note 43), para. 18. 104 Eritrea Central Front Partial Award (note 49), para. 24; Ethiopia Central Front Partial Award (note 43), para. 18 (the Commission referred to “recording of mine fields and prohibition of indiscriminate use” of mines in this regard). 105 Ethiopia POW Partial Award (note 77), para. 32; Eritrea POW Partial Award (note 38), para. 41; Eritrea Central Front Partial Award (note 49), paras. 22 and 23; Ethiopia Central Front Partial Award (note 43), paras. 16 and 17. 106 Shabtai Rosenne, The Law and Practice of the International Court, vol. 2, 1965, 580 (emphasis added). 107 ICJ, Asylum Case (Colombia v. Peru), Merits, Judgment of 20 November 1950, ICJ Reports 1950, 266, 276 (“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party.”). See also ICJ, Rights of Nationals of the United States of America in Morocco (France v. United States), Merits, Judgment of 27 August 1952, ICJ Reports 1952, 176, 200 (“In the present case there has not been sufficient evidence to enable the Court to reach a conclusion that a right to exercise consular jurisdiction founded upon custom or usage has been established in such a manner that it has become binding upon Morocco.”). 108 Ethiopia POW Partial Award (note 77), para. 29; Eritrea POW Partial Award (note 38), para. 38.

236

Natalie Klein

ternational Committee for the Red Cross (ICRC) to visit its prisoner of war camps prior to acceding to the Geneva Conventions on the basis that this right was treaty-based given its more procedural or technical nature, and that in the absence of such a treaty obligation, Eritrea was not compelled to permit the ICRC entry.109 The EECC disagreed and stated that the right of visitation was part of customary international law as “an essential part of the regime for protecting POWs.”110 Part of the rationale for this holding was that in known instances of ICRC exclusion, the treatment of POWs was far worse than that required by the standards of applicable law.111 Ethiopia also had the advantage of the Commission’s burden of proof decision in submitting that Eritrea had violated the detailed regime under Geneva Convention III in failing to post camp regulations and in failing to have complaint procedures.112 The Commission did not consider that the requirement to post Geneva Convention III itself was part of customary international law, but that customary law did require the camp regulations to be posted in a clear and accessible location to enable POWs to be aware of their rights and obligations.113 Ethiopia was unable to present sufficient evidence to support this claim and this submission was rejected.114 Ethiopia was, however, able to establish that Eritrea did not provide effective complaint procedures, which the Commission considered to be a customary international law requirement.115 The Commission’s prior conclusion on the customary international law status of the Geneva Conventions and related burden of proof issue meant that it did not have to provide any further explanation as to how this specific rule had achieved customary international law status.116

109

Ethiopia POW Partial Award (note 77), para. 56. Id., para. 61. 111 Id., para. 60 (relying on a 1978 study that referred to the Soviet Union, North Korea, the People’s Republic of China, and North Vietnam refusing access to the ICRC). 112 Id., para. 143. 113 Id., para. 145. 114 Id. 115 Id., para. 148. 116 The Commission makes no reference to any argument presented by Eritrea on this particular point. See id., para. 150. 110

State Responsibility for Humanitarian Law Violations

237

The Commission’s decisions on applicable law in these two partial awards are now definitive for its future proceedings.117 These holdings on which treaties represent customary international law, and which do not, could well influence future legal proceedings or political processes that address comparable questions on the status and applicability of various principles of international humanitarian law. The authority of the Commission is slightly undercut by its unorthodox allocation of the burden of proof in establishing the existence of customary international law. Moreover, the ambiguity on what precise provisions of Additional Protocol I are customary international law did not elucidate or resolve what has been an ongoing controversy generally in the development and implementation of international humanitarian law. This failure cannot, however, be viewed as critical in respect of the resolution of Eritrea and Ethiopia’s particular claims (that is, the EECC did not refuse to rule on a specific claim that relied solely on a term of Additional Protocol I of questionable status in customary international law). The Commission may not be able to shy away from the need to articulate the status of particular principles in its future awards. D. Evidentiary Issues In the Central Front claims, the Commission was confronted with allegations and supporting evidence that often demonstrated diametrically opposed views of the facts at issue.118 The EECC described the limitations on its ability to assess the evidence as follows: Considerations of time and expense usually prevent more than a handful of witnesses being brought to The Hague to testify before the Commission, so the Commission is then compelled to judge the credibility of any particular declaration, not by observing and questioning the declarant, but rather on the basis of all the relevant evidence be-

117

Eritrea Central Front Partial Award (note 49), para. 21; Ethiopia Central Front Partial Award (note 43), para. 15 (“Those holdings apply as well to the Central Front Claims addressed in the present Partial Award and, indeed, to all the claims submitted to the Commission.”) Although the Commission was referring specifically to the Geneva Conventions, it seems unlikely that a deviation from this decision would be warranted in respect of the other sources of applicable law. 118 Eritrea Central Front Partial Award (note 49), para. 5; Ethiopia Central Front Partial Award (note 43), para. 6.

238

Natalie Klein

fore it, which may or may not include evidence from persons or parties not directly involved in the conflict.119

The EECC was clearly frustrated with the constraints imposed in this situation and felt compelled to explain its limitations in reaching conclusions on liability. Similarly, in the POW Partial Awards, the Commission rationalized its approach to evidentiary issues as follows: “These parameters are dictated by the limit of what is feasible for the two Parties to brief and argue and for the Commission to determine in light of the time and resources made available by the Parties.”120 From the outset then, the EECC has acknowledged the extent of its ability to address the parties’ allegations of international humanitarian law and other international law violations, signaling the logistical difficulty of this entire process but potentially undermining the authority of its conclusions for the same reason. While the Commission’s Rules of Procedures reflected international practice in terms of placing the burden of proof on the party seeking to rely on a fact,121 the standard, or quantum or degree of proof, had not been similarly articulated. In their submissions in the first hearing on liability, both parties subscribed to the view that the seriousness of the allegations required a high degree of cer119

Eritrea Central Front Partial Award (note 49), para. 6; Ethiopia Central Front Partial Award (note 43), para. 7. 120 Ethiopia POW Partial Award (note 77), para. 54. In Decision Number 4, the EECC reminded the parties that the Commission would be applying rules of evidence to prove or disprove disputed facts and called on the parties to pay particular attention to matters related to evidence in the collection and preparation of claims. The Commission further advised the parties to provide guidance to their personnel of the importance of the collection of evidence in preparing claims. EECC Decision Number 4: Evidence, available at: http://www.pca-cpa.org/ENGLISH/RPC/EECC/Decision%204.pdf. 121 EECC Rules of Procedure, Art. 14 para. 1, available at: http://www.pca-cpa.org/ ENGLISH/RPC/EECC/Rules%20of%20Procedure.PDF (“Each party shall have the burden of proving the facts it relies on to prove its claim or defense.”); Ethiopia POW Partial Award (note 77), para. 34; Eritrea POW Partial Award (note 38), para. 43. See also ICJ, Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962, 6, 15–16 (“Both Cambodia and Thailand base their respective claims on a series of facts and contentions which are asserted or put forward by one party or the other. The burden of proof in respect of these will of course lie on the party asserting or putting them forward.”); Durward V. Sandifer, Evidence before International Tribunals, revised ed. 1975, 127–131 (noting that placing the initial burden of proof on the claimant state is consistent with both civil and common law, and has been applied in the decisions of earlier claims commissions); Dinah Shelton, Remedies in International Human Rights Law, 1999, 231 (“The burden of proof is generally on the claimant who is assumed to be in the best position to know and marshal evidence of the consequences of the wrong.”).

State Responsibility for Humanitarian Law Violations

239

tainty in establishing the veracity of any fact.122 The Commission agreed with this position and articulated a standard of “clear and convincing evidence” to support its findings.123 In assessing the evidence presented by the parties, the EECC took the position that if the totality of evidence provided clear and convincing evidence of a violation (a prima facie case), then it was up to the respondent party to rebut effectively the claimant’s proof.124 The International Court of Justice, along with its predecessor institution, the Permanent Court of International Justice, has rarely articulated precise rules on where the burden of proof might lie and whether it shifts to the other party in a comparable manner as proposed by the EECC. The International Court has maintained a certain lack of clarity in this regard in order to retain some flexibility in its decision-making process.125 The use of a shifting burden of proof is, however, consistent with the practice of earlier international claims commissions, which in turn has been based on civil law rules in this regard.126 The Commission did not articulate whether the rebuttal evidence needed to attain the same level of clear and convincing evidence, but it would seem that the respondent state should also be held to this standard. The use of the same standard is consistent with the practice in international courts and tribunals whereby a defendant state must equally prove any claim in answer to any allegations submitted by the claimant. “This burden may rest on the defendant, […], 122

Ethiopia POW Partial Award (note 77), para. 36; Eritrea POW Partial Award (note 38), para. 45. 123 Ethiopia POW Partial Award (note 77), para. 37; Eritrea POW Partial Award (note 38), para. 46. 124 Ethiopia POW Partial Award (note 77), para. 43; Eritrea POW Partial Award (note 38), para. 49. 125 This position is consistent with the earlier position observed by Sandifer: “As with matters of evidence generally, the Court’s preoccupation was to retain freedom of action to receive and evaluate freely evidence of information of any kind that might assist it in getting at the merits and the truth of matters at issue before it.” Sandifer (note 121), 132. See also Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, 367; Keith Highet, Evidence, the Court and the Nicaragua Case, AJIL, vol. 81, 1987, 1, 8 (both commenting that flexibility is the guiding principle rather than strict adherence to a technical rule on the burden of proof). 126 See Sandifer (note 121), 127 (“The broad basic rule of burden of proof adopted, in general, by international tribunals resembles the civil law rule and may be simply stated: that the burden of proof rests upon him who asserts the affirmative of a proposition that is not substantiated will result in a decision adverse to his contention.”) See also Highet (note 125), 9 (“Indeed, the Court has long operated with a careful respect for the onus probandi of the Roman and civil law systems.”).

240

Natalie Klein

equally with the plaintiff, as the former may incur the burden of substantiating any proposition he asserts in answer to the allegations of the plaintiff.”127 There is some indication that the EECC adopted this approach in addressing evacuation conditions of POWs from battle zones. The Commission did not refer to what evidence Ethiopia had submitted to support its claim that Eritrea had failed to evacuate prisoners “as soon as possible from combat zones,” as required under Geneva Convention III (and presumably customary international law).128 Instead, the EECC noted that Eritrea had provided “clear and convincing evidence” that it had evacuated the majority of prisoners in as timely a manner as possible given the conditions of battle, and therefore was not liable for a failure to evacuate prisoners promptly.129 With respect to Ethiopia’s claims of physical and mental abuse of prisoners in Eritrean camps, the Commission found a prima facie case established on the basis of the witness testimony of a former prisoner of war, as well as forty signed declarations submitted with Ethiopia’s memorial.130 Eritrea’s demonstration of discrepancies in Ethiopia’s evidence or lack of specificity in that evidence did not prevent the Commission from finding the prima facie case in the first instance, nor was such a showing considered sufficient to rebut the prima facie case. Instead, Eritrea did not meet its rebuttal burden because it was said to have produced “little, if any, evidence” to counter Ethiopia’s claims, and its decision not to introduce a witness from among its camp commanders or to deny unequivocally specific abuses resulted in a finding of liability against it.131 In the specific context of international humanitarian law, the Commission made clear that proof of training of armed forces would not in itself be adequate to rebut a prima facie case of violation. The Commission determined that Ethiopia had established by clear and convincing evidence that Eritrean forces regu127

Sandifer (note 121), 127 (emphasis added). See also Georges Scelle, Report on Arbitral Procedure, Yearbook of the International Law Commission, vol. 2, 1958, 133; UN Doc. A/CN.4/18 (1950), 51 (“The adage actori incumbit probatio means that the burden of proof rests not only on the claimant but also on the party adducing a fact of any kind. The burden is distributed between the two parties.”). 128 Ethiopia POW Partial Award (note 77), para. 71. 129 Id., para. 72. 130 Id., para. 81. Of less probative value were unsigned statements and claims forms of former prisoners of war as well as data compiled by Ethiopia from claims forms from other former prisoners. Id. 131 Id., paras. 85 and 86.

State Responsibility for Humanitarian Law Violations

241

larly beat and frequently killed Ethiopian prisoners upon capture and in the immediate aftermath of capture.132 While Eritrea offered “detailed and persuasive” evidence in rebuttal as to the extent of training Eritrean troops received on the treatment of prisoners, “[w]hat is lacking in the record […] is evidence of what steps Eritrea took, if any, to ensure that its forces actually put this extensive training to use in the field.”133 As such, the Commission found that Eritrea had not rebutted the prima facie case established by Ethiopia and was held to be liable for the killing and abuse of prisoners upon capture or in the immediate aftermath of capture.134 With regard to comparable claims by Eritrea against Ethiopia, although some Eritrean witnesses testified to a few incidents of unlawful killing, others referred to Ethiopian soldiers threatening to kill POWs but restraining themselves or being restrained by their comrades.135 The Commission considered that the training in international humanitarian law that Ethiopia asserted it provided was therefore effective in preventing unlawful killing.136 However, such training was seemingly insufficient to rebut Eritrea’s clear and convincing evidence of frequent physical abuse of Eritrean POWs by their captors both at the front and during evacuation, and Ethiopia was found liable for this international humanitarian law violation.137 In the POW Partial Awards, the Commission further specified that the clear and convincing evidence needed to be of a cumulative nature, as findings of liability were to be made based on a pattern of conduct or pervasive behavior rather than examining individual incidents of illegality.138 The obligations of states in relation to the implementation of international humanitarian law are predominantly dependent on supervision and training, as well as prosecution and punishment of violators in the national system. The approach of the EECC for findings of state responsibility is therefore consistent with the view of Sandoz, 132

Id., para. 65. This finding was based on ten declarations describing accounts of deliberate killing and more than fifteen declarations describing repeated and brutal beatings. Id., para. 66. 133 Id., para. 67. 134 Id., para. 68. 135 Eritrea POW Partial Award (note 38), paras. 59 and 60. 136 Id., para. 60. 137 Id., paras. 62–63. 138 Ethiopia POW Partial Award (note 77), para. 54; Eritrea POW Partial Award (note 38), para. 56.

242

Natalie Klein

who has noted that “no one can be expected to do the impossible; the chance of individual violations can never be ruled out, however efficient the training and dissemination.”139 In accordance with this approach, Ethiopia was not found liable for physical abuse of POWs in the Ethiopian camps, as the Commission acknowledged that there were “some incidents of beating” and that the disciplinary punishments were “sometimes” contrary to Article 96 of Geneva Convention III,140 but Eritrea’s evidence failed to demonstrate a “high level” of “frequent or widespread” abuse.141 Though the Commission generally applied these standards of proof for claims and rebuttals of international humanitarian law violations, for certain specific obligations, the EECC had cause to vary its approach. With respect to liability for endangering the health of POWs, the Commission articulated both evidentiary and legal standards that had to be met by the parties. In particular, the Commission looked to evidence that: a) portrays a serious violation; b) is cumulative and is reinforced by the similarity of the critical allegations; c) is detailed enough to portray the specific nature of the violation; and d) shows that the violation existed over a period of time long enough to justify the conclusion that it seriously endangered the health of at least some of the POWs in the camp.142

The Commission further observed that the fundamental legal principle of not endangering the health of prisoners of war was implemented by a series of more detailed rules bearing on the provision of adequate shelter, sanitary facilities, food and water.143 The approach of the parties in arguing this claim, as well as

139

Yves Sandoz, Implementing International Humanitarian Law, in: UNESCO (ed.), International Dimensions of Humanitarian Law, 1988, 259, 265 (referring to Arts. 49 para. 3, 50 para. 3, 129 para. 3 and 146 para 3 of Geneva Conventions I, II, III and IV, respectively, and Art. 85 para. 1 of Additional Protocol I, which address the obligation to repress grave breaches of the Conventions). 140 Eritrea POW Partial Award (note 38), para. 81. 141 Id., paras. 81 and 83. 142 Ethiopia POW Partial Award (note 77), para. 90; Eritrea POW Partial Award (note 38), para. 90. 143 Ethiopia POW Partial Award (note 77), para. 87; Eritrea POW Partial Award (note 38), para. 87.

State Responsibility for Humanitarian Law Violations

243

the Commission in responding to each of the claims, was to focus on the fundamental principle rather than considering minor or transitory violations.144 The Commission was also willing to alter its quantum of proof in assessing allegations of rape of civilians. Unlike other recent armed conflicts, such as in the former Yugoslavia, the conflict between Eritrea and Ethiopia was not marked by war policies of systematic rape, forced pregnancy or other sexual violence.145 However, in the Central Front cases, each party alleged that soldiers belonging to the armed forces of the other had committed frequent rape of female civilians.146 In proving these claims, the parties explained the cultural sensitivities that existed in discussing sexual conduct and that the evidence was necessarily less detailed or explicit than that for non-sexual offenses, which the Commission accepted.147 The EECC considered that evidence of a pattern of frequent or pervasive rapes was not an invariable requirement for establishing liability.148 Instead, “[w]hat the Commission has done is look for clear and convincing evidence of several rapes in specific geographic areas under specific circumstances.”149 These conditions were most commonly met at times when opposing troops were in closest proximity to civilian populations for the longest periods of time. Eritrea established such a case in respect of the treatment of women civilians in Senafe Town through eyewitness and victim testimony, as well as medical testimony from doctors who treated rape victims.150 Ethiopia was unable to rebut this evidence either in alleging that reports of rape were investigated and soldiers arrested, or through its training programs in international 144

Ethiopia POW Partial Award (note 77), para. 88; Eritrea POW Partial Award (note 38), para. 88. 145 Eritrea Central Front Partial Award (note 49), para. 36; Ethiopia Central Front Partial Award (note 43), para. 34. 146 Eritrea Central Front Partial Award (note 49), para. 36; Ethiopia Central Front Partial Award (note 43), para. 34. 147 Eritrea Central Front Partial Award (note 49), para. 39; Ethiopia Central Front Partial Award (note 43), para. 36. 148 Eritrea Central Front Partial Award (note 49), para. 40; Ethiopia Central Front Partial Award (note 43), para. 37. Unlike other offenses, rape was viewed as “an illegal act that need not be frequent to support State responsibility.” See Eritrea Central Front Partial Award (note 49), para. 41; Ethiopia Central Front Partial Award (note 43), para. 38. 149 Eritrea Central Front Partial Award (note 49), para. 41; Ethiopia Central Front Partial Award (note 43), para. 38. 150 Eritrea Central Front Partial Award (note 49), para. 80.

244

Natalie Klein

humanitarian law.151 Equally, Ethiopia presented an unrebutted case of rapes by Eritrean soldiers in Irob Wereda, relying on second-hand testimony (including from clergy and the Tigray Women’s Association).152 The decision on claims of sexual offences against civilians can then be contrasted with the Commission’s decision on claims of sexual offences against female POWs. Eritrea submitted a discrete claim to the EECC that Ethiopia was liable for unlawful sexual assaults on female POWs in violation of Article 14 of Geneva Convention III.153 Article 76 of Additional Protocol I further provides that all women in the hands of a Detaining Power must be specially protected against rape and other sexual assault. Eritrea sought to support this claim through declarations from three female prisoners, as well as declarations of male POWs addressing the treatment of the women prisoners, the declaration of an Eritrean colonel who debriefed returning prisoners, and documentary medical evidence.154 Eritrea was, however, limited in its ability to provide further evidence given the nature of the offence. An express representation was made to the Commission by Eritrea that “[t]he female former POWs declined to discuss this topic and a decision was made to respect their wishes.”155 Despite these circumstances, the EECC considered that the evidence presented by Eritrea was not explicit or detailed enough to warrant a finding of liability against Ethiopia,156 and refused to lower the burden of proof, stating that it would be unfair to do so.157 Such unwillingness of the EECC highlights the inadequacy of the law on both a procedural and substantive level in relation to the protection of women during armed conflict.158 A final observation on the assessment of evidence in establishing international humanitarian law violations before an international tribunal requires examination of the possible role of the ICRC. In dealing with the prisoners of war claims, the Commission referred to the role of the ICRC in visiting and assess151

Id., para. 81. Ethiopia Central Front Partial Award (note 43), para. 83. 153 Eritrea POW Partial Award (note 38), para. 139. 154 Id., para. 140. 155 Id. (citing the Eritrean Memorial). 156 Id., paras. 141 and 142. 157 Id. 158 See further Judith Gardam, Women and the Law of Armed Conflict: Why the Silence?, ICLQ, vol. 46, 1997, 55, 67–77 (discussing a range of shortcomings of the rules of armed conflict in relation to the protection of women). 152

State Responsibility for Humanitarian Law Violations

245

ing the conditions of camps in both Eritrea and Ethiopia.159 In undertaking these visits, the ICRC compiled reports and engaged in other communications that had bearing on the standards adhered to in the different camps. The Commission considered that the evidence held by the ICRC may well have confirmed or rebutted assertions by each of the parties. For example, Ethiopia sought to discredit and rebut Eritrea’s evidence concerning the health conditions in Mai Kenetal, one of Ethiopia’s prison camps, and further stated that the ICRC had regularly visited the camp and made no complaint.160 In this instance, the Commission would have benefited from access to the relevant ICRC reports,161 but the ICRC refused to provide the EECC access to these materials. Although both Eritrea and Ethiopia consented to the release of these reports, the ICRC insisted on its position that maintaining confidentiality was vital to its mission and could never be compromised even where the governments permitted the divulgence of the relevant documentation.162 Under these circumstances, the application and implementation of international humanitarian law might have been enhanced, along with the Commission’s authority, if the ICRC had at least permitted limited disclosure. In sum, in addressing claims of state responsibility for violations of international humanitarian law, the EECC has significantly contributed to the evidentiary standards to be applied by third parties in assessing these claims. While international criminal tribunals have addressed the burden of proof for findings of individual responsibility, little attention has been focused on this question for state responsibility for international humanitarian law violations. The Commission’s decision to look for “clear and convincing evidence” of a cumulative nature, along with some willingness to vary this standard in respect of specific claims, is appropriate and feasible for the process being undertaken. Notable in the international humanitarian law context has been the Commission’s decision to require more than proof of training to rebut a prima facie case – evidence of that training being put into practice was required. Although this decision increases the burden on the defending party, it reinforces the importance of the

159

Ethiopia POW Partial Award (note 77), para. 45 et seq.; Eritrea POW Partial Award (note 38), para. 50 et seq. 160 Eritrea POW Partial Award (note 38), para. 100. 161 Id. 162 Ethiopia POW Partial Award (note 77), para. 48; Eritrea POW Partial Award (note 38), para. 53.

246

Natalie Klein

concrete implementation of international humanitarian law beyond the training and dissemination obligations imposed on states. The decisions of the EECC in this regard may provide an important benchmark if states resort to third-party settlement of international humanitarian law claims in the future. More critical for the process between Eritrea and Ethiopia is the need for the Commission to be completely diligent and thorough in its study and assessment of the factual evidence in reaching its conclusions on liability. A failure to do so may render its holdings illegitimate in the eyes of one of the parties, and jeopardize compliance with the Commission’s final awards.163 E. Legal Standards for Establishing a Violation of International Humanitarian Law In addition to evidentiary standards for determining whether a state has made out a claim of breach of international humanitarian law, questions have arisen as to what legal standard the parties should be held in this assessment. To what extent do a state’s economic resources dictate an appropriate standard for adherence to international humanitarian law obligations? The EECC considered this question in respect of a few specific issues in both the Prisoner of War and Central Front Partial Awards. A number of provisions of Geneva Convention III provide unconditional protections relating to medical assistance to be afforded to POWs that are part of customary international law.164 The Commission faced some difficulties in assessing whether the parties had met their obligations in this regard given the broad phrasing of the treaty provisions and imprecise articulation of the quality or extent of medical care necessary.165 The Commission therefore opted to focus 163

The importance of factual determinations in international litigation was evident in the reactions to the International Court of Justice’s decision in the Nicaragua case. See generally Highet (note 125); Jonathan I. Charney, Disputes Implicating the Institutional Credibility of the Court: Problems of Non-Appearance, Non-Participation, and Non-Performance, in: Lori Fisler Damrosch (ed.), The International Court of Justice at a Crossroads, 1987, 288. 164 Ethiopia POW Partial Award (note 77), para. 104; Eritrea POW Partial Award (note 38), para. 115 (both referring to similar provisions in the 1929 Geneva Convention). 165 Ethiopia POW Partial Award (note 77), para. 106; Eritrea POW Partial Award (note 38), para. 117.

State Responsibility for Humanitarian Law Violations

247

on requirements to prevent significant deterioration of prisoners’ health as well as on more specific duties, such as requirements for segregation of prisoners with infectious diseases and for regular physical examinations.166 Neither party sought to defend itself by reference to their limited resources or to the difficult environmental and logistical conditions in their camps.167 The Commission did, however, seem to be willing to accept a lower standard of medical treatment of POWs from Eritrea and Ethiopia as developing countries, but maintained that “scarcity of finances and infrastructure cannot excuse a failure to grant the minimum standard of medical care required by international humanitarian law.”168 The EECC’s approach in ensuring that the parties adhered to an international minimum standard was consistent with earlier case law that deals with the treatment of aliens more generally.169 A subjective standard is then anticipated in respect of obligations of provision of medical care to POWs at the front and during evacuation. The Commission concluded that each side had satisfied these obligations in taking into account the harsh conditions of the battlefield, the limited training of troops in first aid, as well as the logistical and resource limitations of both the parties.170 Similarly, the conditions of transfer between camps were again set at a subjective standard that reflects on the specific situation of the countries concerned. As with evacuation from the front, the minimum standard for conditions of transferring prisoners had to be the same as the conditions of soldiers moving between camps.171 To this end, in response to Ethiopia’s claims on this issue, Eritrea submitted rebuttal evidence that the POWs had endured the same difficult transport conditions as its own forces.172

166

Ethiopia POW Partial Award (note 77), para. 107; Eritrea POW Partial Award (note 38), para. 118. 167 Ethiopia POW Partial Award (note 77), para. 89. 168 Ethiopia POW Partial Award (note 77), para. 125; Eritrea POW Partial Award (note 38), para. 138. 169 See, e.g., U.S.-Mexico General Claims Commission, Neer Claim (U.S. v. Mexico), Opinion of the Commission, 1926, Reports of International Arbitral Awards, vol. 4, 60, 61–62. 170 Ethiopia POW Partial Award (note 77), para. 70; Eritrea POW Partial Award (note 38), para. 65. 171 Ethiopia POW Partial Award (note 77), para. 135. See Geneva Convention III (note 20), Arts. 19 and 20. 172 Ethiopia POW Partial Award (note 77), para. 136.

248

Natalie Klein

In the Central Front Partial Awards, the EECC only had cause to assess a subjective standard when it addressed Ethiopia’s allegations relating to Eritrea’s aerial bombardment of Mekele. The armed conflict between Eritrea and Ethiopia was virtually all conducted between ground forces using a system of trench warfare.173 Two exceptional incidents in this regard were Ethiopia’s bombing of Asmara airport, and Eritrea’s retaliation bombing of Mekele airport.174 The EECC did not address the airport bombings of either party on the basis that military aircraft were housed at both, making each airport a legitimate military target.175 More specifically at issue before the Commission as a violation of international humanitarian law was the bombing of a school and its surrounding area in Mekele, Ethiopia.176 Eritrea denied Ethiopia’s allegations that it had deliberately targeted a civilian neighborhood and contended that the bombing was “an accident incidental to legitimate military operations, not a deliberate attack, and consequently not a basis for liability.”177 However, the EECC took the view that the question of liability did not rest solely with the determination as to whether Eritrea had deliberately targeted civilians or not, but whether Eritrea had taken “all feasible precautions to prevent unintended injury to protected persons […] in choosing targets, in the choice of means and methods of attack and in the actual conduct of operations.”178 It was on this basis that Eritrea was found to be responsible under international humanitarian law. The Commission referred to “the evidence that Eritrea had little experience with these weapons and that the individual programmers and pilots were utterly inexperienced, and [the EECC] recognize[d] the possibility that, in the confusion and excitement […], both 173 Eritrea and Ethiopia Fight in WWI-Like Trench Battles, International Journal on World Peace, vol. XVI, No. 3, September 1999, 76; The Children Are Dying, Newsweek International, 17 April 2000, 84 (describing Ethiopia’s “very medieval tactics”). 174 The Commission noted that each party accused the other of striking first, but did not believe it had to resolve this question. Ethiopia Central Front Partial Award (note 43), para. 101. 175 Id., para. 101. Ethiopia had also alleged that Eritrea bombed the Aksum airport, as well as Adigrat. Id., paras. 114 and 115. Eritrea disputed the bombing of Aksum completely, and one of the alleged bombings of Adigrat. Id. The Commission did not address these claims in any depth and thereby determine the veracity of the factual situation on the basis that both places were legitimate military targets and there would be no finding of liability even if the facts were proven. Id. 176 Id., para. 101. 177 Id., para. 102. 178 Id., para. 110 (referring to the standard set out in Art. 57 of Additional Protocol I).

State Responsibility for Humanitarian Law Violations

249

computers could have been loaded with the same inaccurate targeting data.”179 The Commission concluded that there had been a lack of essential care in conducting the bombings, which was compounded by Eritrea’s failure to take appropriate actions after the event to prevent further recurrence.180 F. Prisoners of War: Substantive Law Aspects Eritrea interned a total of approximately 1,100 Ethiopian POWs in five different camps (used consecutively) whereas Ethiopia interned a total of approximately 2,600 Eritrean POWs in six permanent camps, which were also used consecutively, as well as in transit camps following evacuation of prisoners from the front. State responsibility for the treatment of POWs is clearly established under Article 12 of Geneva Convention III.181 To fulfill specific duties vis-à-vis POWs, states have an obligation to instruct their agents in their rights and duties, and if a state’s agent has been guilty of an act in violation, the state is required to make reparations.182 The EECC addressed claims from both parties relating to mistreatment of POWs at capture and its immediate aftermath,183 physical and mental abuse of POWs,184 unhealthy conditions in camps,185 and inadequate medical care in camps.186 Ethiopia also submitted claims concerning Eritrea’s refusal to permit the ICRC to visit POWs,187 unlawful conditions of labor,188 conditions of trans179

Id., para. 109. Id., para. 110. 181 Geneva Convention III (note 20), Art. 12 (which provides that detaining powers are responsible for the treatment of POWs from the moment of their capture irrespective of any individual responsibility that may exist for the individual captor). Art. 29 of Geneva Convention IV (note 20) similarly provides that the party in whose hands protected persons may be is responsible for the treatment accorded to them by its agents, regardless of any individual responsibilities. 182 Kalshoven (note 18), 839. 183 See, supra, notes 170–172 and accompanying text. 184 See, supra, notes 132–137 and accompanying text. 185 See, supra, notes 164–169 and accompanying text. 186 See, infra, notes 195–204 and accompanying text. 187 See, supra, notes 108–111 and accompanying text. 188 See, supra, notes 90–94 and accompanying text. 180

250

Natalie Klein

fer between camps,189 treatment of the dead, and failure to post camp rules and allow complaints.190 Eritrea submitted claims against Ethiopia with regard to the taking of personal property of POWs,191 unlawful assault on female POWs,192 and delayed repatriation of POWs.193 Before assessing the liability of each of the parties for the asserted violations of international law in respect of the treatment of POWs, the Commission prefaced its determinations by a general comment that referred to the positive steps taken by each of the parties toward fulfilling their fundamental obligations. In this regard, the Commission referred to the efforts undertaken in training their respective troops on the relevant rules for the treatment of prisoners of war, the mutual practice of moving enemy personnel who were hors de combat away from the battlefield to conditions of greater safety, and the efforts to provide sustenance and care to the prisoners despite the economic constraints of each side.194 It was in this context that the Commission assessed the specific allegations against each government. Both parties were found liable for failing to take effective measures to prevent beatings and other abuse of POWs at capture or its immediate aftermath, depriving POWs of footwear during long walks to the first place of detention, confiscating or not protecting personal property, failing to provide the required standard of medical care, and endangering the health of POWs in different camps. The EECC further found that Ethiopia was liable for subjecting Eritrean POWs to enforced indoctrination and for delaying the repatriation of 1,287 Eritrean POWs. Eritrea was found liable for not permitting the ICRC to visit prison camps, failing to protect POWs from being killed at capture or its immediate aftermath, permitting threats and beatings during interrogations, permitting pervasive and continuous physical and mental abuse of POWs in camps, subjecting POWs to unlawful conditions of labor, permitting unnecessary suffering of 189

See, supra, notes 171–172 and accompanying text. See, supra, notes 112–116 and accompanying text. The EECC reorganized the Ethiopian claims into eleven categories as otherwise there would have been “a matrix of over fifty issues, many with several subsidiary elements, for assessment and decision.” Ethiopia POW Partial Award (note 77), para. 50. 191 See, infra, notes 268–272 and accompanying text. 192 See, supra, notes 153–157 and accompanying text. 193 See, infra, notes 205–221 and accompanying text. 194 Ethiopia POW Partial Award (note 77), para. 12; Eritrea POW Partial Award (note 38), para. 11. 190

State Responsibility for Humanitarian Law Violations

251

POWs during transfers between camps, and failing to have complaint procedures in place. The vast majority of the Commission’s holdings on these separate claims did not turn on questions of substantive law, but on the proof presented by the parties and the Commission’s assessment of that evidence. A clear example of this emphasis is the EECC decisions relating to inadequate medical care in camps. Ethiopia’s evidence on medical assistance in Eritrean camps was said to vary considerably in the specifics and was sometimes mutually contradictory.195 However, the frequent complaints of inadequate treatment, along with the death rates in the camps,196 still enabled the Commission to find that Ethiopia had established a prima facie case. The Commission further stated that it did not solely look to the evidence provided by Ethiopia but also to Eritrea as the administrator of the camps and as such having the best knowledge of its own practices.197 Eritrea was unable to rebut Ethiopia’s prima facie case and its medical evidence was criticized for being “illegible, disorganized, out of chronological order, sometimes overlapping and apparently incomplete.”198 Eritrea did establish that numerous POWs went to clinics, that dental care was provided, that some drugs and vitamins were distributed, and that some prisoners were sent to specialized hospitals or had multiple surgical interventions.199 However, the EECC was of the view that the records could not demonstrate the extent or quality of health care over the full course of time that the POWs were captive.200 On this basis, it would seem that Eritrea’s failure to present its evidence more clearly or fully, or the lack of evidence being indicative of the lack of medical treatment duly accorded to the Ethiopian prisoners, was critical to the Commission’s determination of liability. Eritrea’s claims of inadequate medical care in Ethiopian camps were supported by 48 declarations of POWs, as well as by three doctors who examined over 350 prisoners upon their repatriation.201 Ethiopia’s rebuttal evidence sought 195

Ethiopia POW Partial Award (note 77), para. 108. Id., para. 110. In Eritrea camps, there was a death rate of 4.36 %, based on 48 deaths (as alleged in Ethiopian declarations) out of 1100 prisoners of war. Id. 197 Id., para. 121. 198 Id., para. 114. 199 Id., paras. 115 and 119. 200 See id., para. 118 (noting that more extensive documentation was provided for the time period after which the ICRC was allowed access to the camps). 201 Eritrea POW Partial Award (note 38), paras. 120–126. 196

252

Natalie Klein

to counter Eritrea’s allegations concerning the availability and quality of medical care, but the Commission found the Eritrean doctors’ testimonies particularly persuasive.202 Furthermore, Ethiopia failed to show that regular medical examinations were conducted, nor did it seek to justify this failure; nor did Ethiopia provide evidence that it segregated certain infected prisoners.203 The Commission therefore determined that Ethiopia was liable for failing to provide the required standard of medical care prior to December 2000.204 In respect of each party, the Commission’s assessment of the evidence was the critical aspect in determining liability, rather than a legal analysis of the relevant substantive principles. Of particular interest for the development and application of the substantive law in the treatment of POWs are the Commission’s decisions on delays in release and repatriation as well as coercive interrogation of POWs. I. Delays in Release and Repatriation

Both parties claimed that the other had failed to release and repatriate POWs without delay following the cessation of hostilities.205 Eritrea completed its repatriation of prisoners of war in August 2002.206 Ethiopia only repatriated the last of the Eritrean prisoners on 29 November 2002,207 immediately prior to the hearings of the EECC on the prisoners of war claims.208 Eritrea had sought relief from the EECC in the form of an order that Ethiopia cooperate with the ICRC in effecting an immediate release of the remaining Eritrean prisoners.209 In light 202

Id., para. 131. Id., paras. 134–135. 204 Id., para. 136. Eritrea was unable to establish that the medical care provided after December 2000 violated international law standards. Id., para. 137. 205 Ethiopia asserted a similar claim against Eritrea in the event that the Commission considered that it had jurisdiction over this argument. Ethiopia’s claim could not be considered by the Commission, however, because it failed to make this submission in its Statement of Claim of December 12, 2001. Ethiopia’s claim was therefore extinguished in accordance with Art. 5 para. 8 of the December Agreement. Ethiopia POW Partial Award (note 77), paras. 19 and 20. 206 Id., para. 11. 207 Eritrea POW Partial Award (note 38), para. 10. 208 Id., para. 13 (stating that the hearings were held in December 2002). 209 Id., para. 1. 203

State Responsibility for Humanitarian Law Violations

253

of the release on the eve of the hearing, the Commission considered that the request for this order was rendered moot.210 With respect to Eritrea’s claim under Article 118 of Geneva Convention III that Ethiopia’s delayed repatriation violated international law, the Commission found that the obligation to release arose upon the signing of the December Agreement.211 In assessing the meaning of “without delay,” the Commission decided that the Geneva Convention III obligation required repatriation to “occur at an early time and without unreasonable or unjustifiable restrictions or delays.”212 Phrased this way, the obligation set forth by the EECC is less absolute than has been assumed by some commentators.213 A further question was “whether and to what extent each Party’s obligation to repatriate depends upon the other’s compliance with its repatriation obligations.”214 This question arose because Ethiopia conditioned the return of the remaining 1,287 prisoners on receipt of information concerning the capture of an Ethiopian pilot in 1998.215 The EECC agreed with Eritrea’s legal submissions that there was no basis in international law to justify delaying the release and repatriation of such a large number of prisoners because of concerns about the fate of relatively few missing persons.216

210

Id., para. 144. Id., para. 146. The EECC stated that it had no evidence as to whether the June 2000 Agreement on the Cessation of Hostilities constituted an end to active hostilities for the purposes of Art. 118 of Geneva Convention III. Id., para. 145. 212 Id., para. 147. 213 See, e.g., Green (note 66), 205 (“All prisoners of war are to be released and repatriated immediately upon cessation of active hostilities, and […] this is obligatory.” (emphasis added)); Marco Sassòli/Antoine A. Bouvier, How Does Law Protect in War, 1999, 128 (“of course as soon as active hostilities have ended”). But see Hilaire McCoubrey, International Humanitarian Law, 2nd ed. 1998, 168 (writing that POWs should be repatriated “as soon as possible” after the end of hostilities); Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, vol. 3, 1960, 546 and 550 (recognizing that “captivity is a painful situation which must be ended as soon as possible,” but this requirement was not to impinge on time to ensure that humanitarian conditions are in place during repatriation). 214 Eritrea POW Partial Award (note 38), para. 148. 215 Id., paras. 153–156. 216 Id., paras. 159 and 160 (Eritrea arguing that it could not be legally justified as a non-forcible counter-measure under the law of state responsibility, nor as a reprisal under the law of armed conflict). 211

254

Natalie Klein

The more complicated question was at what point in time Ethiopia was to be regarded as in breach of its repatriation obligation.217 In making this determination, the Commission relied on statements issued by the ICRC as well as the date that all remaining Ethiopian prisoners were repatriated.218 The ICRC had issued a statement in May 2002 that Ethiopia was not at that time in violation of its obligations under Geneva Convention III,219 but effectively was from August 2002 when Ethiopia did not promptly carry out its commitment to the ICRC to release and repatriate the remaining POWs.220 The opinion of the ICRC was viewed as determinative by the EECC in this matter because the ICRC was in communication with both Parties and apparently had been the channel for communications between them on POW matters. Consequently, the ICRC had presumably had a much fuller appreciation of the reasons for the delay in repatriations than is provided by the limited record before the Commission.

While arguably an abdication of responsibility on behalf of the Commission, it was on this basis that Ethiopia was found liable for failing to repatriate 1,287 prisoners by September 13, 2002, and was responsible to Eritrea for the resulting delay of 77 days.221 II. Coercive Interrogation of POWs

Both parties alleged that the other was liable for coercive interrogation of POWs in violation of Article 17 of Geneva Convention III. The Commission found that Ethiopia had presented clear and convincing evidence that Eritrea had violated this standard in threatening or beating prisoners during interrogation, and did not refer to any rebuttal evidence submitted by Eritrea.222 From the evidence presented by Ethiopia,223 the Commission concluded that Eritrea had either failed to train its interrogators as necessary or to make clear that the legal

217

Id., para. 158. Id., paras. 161–163. 219 Id., para. 154. 220 Id., paras. 156–157. 221 Id., para. 163. 222 Ethiopia POW Partial Award (note 77), para. 76. 223 The Commission did not state what evidence had been presented by Ethiopia in establishing this claim, however. See id., paras. 75–76. 218

State Responsibility for Humanitarian Law Violations

255

constraints in interrogation were imperative.224 The Commission determined that Ethiopia was not liable on a similar claim by Eritrea as Eritrea’s evidence was insufficient to establish “a pattern” of coercive interrogation.225 The EECC applied the standard of Article 17 of Geneva Convention III to determine whether the requirements for the lawful interrogation of POWs were adhered to by each party. The requirements under Article 17 are very broad, as coercion as well as physical and mental torture are prohibited in relation to obtaining “information of any kind whatever.”226 While international law permits the interrogation of prisoners, the Commission stated, “it does restrict the information they are obliged to reveal and prohibits torture or other measures of coercion, including threats and ‘unpleasant or disadvantageous treatment of any kind.’”227 On this view, the EECC has merged the prohibited methods for interrogation with the consequences of refusing to respond to questions. The threshold for what constitutes “coercive” interrogation is therefore set quite low. Indeed, the commentary to Geneva Convention III states that “[t]he Detaining Power may not therefore exert any pressure on prisoners.”228 The reminder of this legal standard is quite timely in light of the recent controversy over the questioning of prisoners in Iraq.229 G. Central Front: Substantive Law Aspects The armed conflict between Ethiopia and Eritrea began in the area designated as the Central Front in mid-May 1998 when Eritrean armed forces attacked and 224

Id., para. 76. Eritrea POW Partial Award (note 38), para. 71. 226 Pictet (note 213), 163. 227 Ethiopia POW Partial Award (note 77), para. 75; Eritrea POW Partial Award (note 38), para. 70 (citing Art. 17 of Geneva Convention III). See also Oppenheim (note 29), 378 (“But no physical or mental torture or any other form of coercion may be inflicted on prisoners to compel them to give information.”). 228 Pictet (note 213), 163 (emphasis added). 229 See, e.g., Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation, February 2004, para. 1, available at: http://www.cbsnews.com/htdocs/pdf/redcrossabuse.pdf; Sean D. Murphy (ed.), Contemporary Practice of the United States Related to International Law: U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison, AJIL, vol. 98, 2004, 591. 225

256

Natalie Klein

gained control of a number of towns, villages, and districts (referred to as subzobas in Eritrea and as weredas in Ethiopia) that had been previously administered by Ethiopia. Ethiopia subsequently introduced large numbers of armed forces into this area and a static front was created and remained largely the same until the beginning of May 2000, when Ethiopian armed forces drove the Eritrean troops back from the border and occupied parts of Eritrean territory. The claims of both parties primarily related to looting and destruction of public and private property, destruction of infrastructure, personal injury to and unlawful treatment of civilians, including rape. In addition, Eritrea claimed that Ethiopia was liable for the desecration of places of worship and graves as well as for the destruction of the Stela of Matara. Ethiopia also claimed that Eritrea was liable for indiscriminate shelling and indiscriminate placement of landmines, and unlawful damage to environmental resources. The Commission made several determinations that Eritrea’s evidence failed to meet the evidentiary standard for a finding of liability, often because the conduct was not shown to be sufficiently frequent or pervasive,230 or because evidence came from residents who had fled and returned to find their property was taken or destroyed without witnessing who did it,231 or because Ethiopian armed forces had only occupied an area for a short period of time.232 Nor did the Commission permit any assumption that conduct in one part of a sub-zoba exemplified conduct in the entire sub-zoba, considering such a conclusion to be unreasonable in light of the rapid movement of events and the brief presence of the Ethiopian forces.233 Ethiopia often sought to rebut Eritrean evidence by arguing that local Eritrean civilians had taken or destroyed the property,234 or that the Eritrean military had done so as part of a military strategy.235 Ethiopia further argued that any destruc230

See, e.g., Eritrea Central Front Partial Award (note 49), para. 54. See, e.g., id., para. 46 (referring to a doctor claiming that Ethiopians had looted an eye clinic without witnessing the event). 232 See, e.g., id., para. 45 (Ethiopian armed forces were in the area “for only a few days”); para. 56 (referring to periods ranging from a week or ten days to six weeks). 233 Id., para. 49 (referring to the Mai Mene sub-zoba in this regard). 234 See, e.g., id., para. 46; para. 55; para. 83. 235 See, e.g., id., para. 61 (alleging the buildings in Tserona were destroyed in denial operations); para. 66 (claiming that Eritrea had taken roofs off buildings to use in the construction of trenches); para. 86 (alleging destruction of buildings in denial operations upon retreat). 231

State Responsibility for Humanitarian Law Violations

257

tion of property by Ethiopian forces would have been lawful on the basis of military necessity.236 Moreover, there was a lapse in time between the Ethiopian armed forces withdrawing and Eritrea sending in police and local administrative personnel,237 which, according to Ethiopia, allowed for a window of profiteering amongst the Eritrean civilians in the area238 (as it would have also done for Ethiopian civilians living in the vicinity). The Commission also had to take into account that all of the areas along the Central Front had been part of the war zone and fighting between Ethiopian and Eritrean armed forces had therefore taken place and caused injury to civilians and destruction of property as well. Ethiopia sought to rebut Eritrea’s claims by alleging that the fighting between the forces was responsible for damage to property and it was consequently not liable under international law for this loss.239 Eritrea’s primary defense to Ethiopia’s allegations was that “Ethiopia’s numerous witness declarations were characteristically vague and general […], many narratives did not involve events or injuries showing any violation of international law and that much of Ethiopia’s evidence failed to relate the events described to the armed conflict itself.”240 Given the state of Ethiopia’s evidence, Eritrea argued that it had no case to answer.241 Consistent with this position, the Ethiopian claims rejected by the EECC were nearly all those where Ethiopia had failed to show clear and convincing evidence of unlawful conduct, rather than Eritrea successfully rebutting or defending against a prima facie case.242 For 236 Id., para. 87 (relying on Art. 53 of Geneva Convention IV, which permits destruction of property if rendered “absolutely necessary by military operations”). The Commission did not consider this defense to be established where the necessity solely related to denial of potential future use of property that was not directly usable for military operations (as would be the case for bridges or railways). Id., para. 88. 237 A report of the UN Secretary-General referred to this time as a “potentially dangerous vacuum of authority.” See Report of the Secretary General on Ethiopia and Eritrea, U.N. Doc. S/2001/2002, 2, para. 11. See also Eritrea Central Front Partial Award (note 49), para. 60. 238 See, e.g., Eritrea Central Front Partial Award (note 49), para. 83. 239 See, e.g., id., para. 50. 240 Ethiopia Central Front Partial Award (note 43), para. 42. See also id., para. 55. 241 Id., para. 42. See also id., para. 55; para. 79 (in relation to Irob Wereda). 242 See, e.g., id., para. 53 (commenting that Ethiopia’s evidence in relation to claims of damage to objects indispensable to the survival of the civilian population and to environmental resources “fell far short of that required to establish liability”). See also id., para. 100 (summarizing the Ethiopian claims in relation to Irob Wereda that were not sustained because of Ethiopia’s insufficient evidence).

258

Natalie Klein

example, the EECC rejected Ethiopia’s claim that Eritrea violated international humanitarian law in forcing civilians to undertake labor that involved them taking part in military operations because the labor in question only took place during the early days of occupation and was neither frequent nor pervasive.243 Given the nature of claims of looting and destruction of property that arise in the context of a battle zone, the question of what damage is caused by lawful combat and what is caused by unlawful property destruction necessarily arises. In respect of the Eritrean town of Tserona, for example, the Commission took into account combat operations that had occurred in the town and that the civilian population had been absent during the relevant period, including after Ethiopian forces withdrew.244 The Commission could not conclude under these circumstances that Ethiopia was solely responsible for all damage caused by looting and stripping in Tserona.245 While the evidence would not allow exact apportionment, the Commission took the general approach whereby it would “indicate […] the percentage of the loss, damage or injury concerned for which it believes the Respondent is legally responsible, based upon its best assessment of the evidence presented by both Parties.”246 Consequently, in respect of Tserona, the Commission determined that Eritrea was liable for 25 % of the damage and Ethiopia was liable for 75 %.247 The Commission found that Ethiopia was liable to Eritrea for conduct committed by its military personnel or other state officials in relation to the looting and stripping of Tserona and Senafe towns and the Tserona Patriots Cemetery; the destruction of or severe damage to specific buildings in Tserona and Senafe; damage to the infrastructure of Serha; for failure to take effective measures to prevent rape of women by Ethiopian soldiers during its occupation of Senafe; and the deliberate damage by explosion to the Stela of Matara.

243

Id., para. 66. See also id., para. 90 (a comparable finding in respect of Irob Wereda). Eritrea did, however, successfully rebut Ethiopia’s claim for deportation in violation of Art. 49 of Geneva Convention IV, by arguing that the civilians had to be taken to camps to avoid harm from Ethiopian artillery fire and that those camps had to be in Eritrea for material reasons. Id., para. 68. 244 Eritrea Central Front Partial Award (note 49), para. 69. 245 Id., para. 69. 246 Eritrea Central Front Partial Award (note 49), para. 29; Ethiopia Central Front Partial Award (note 43), para. 23. 247 Eritrea Central Front Partial Award (note 49), para. 69.

State Responsibility for Humanitarian Law Violations

259

The Commission determined that Eritrea was liable for frequent physical abuse of civilians as well as looting and unlawful property destruction by Eritrean armed forces in all four Ethiopian weredas; permitting the looting and stripping of the town of Zalambessa, and for 75 % of unlawful deliberate destruction of its structures; for failing to take effective measures to prevent rape of women by its soldiers in Irob Wereda; failing to release civilians taken into custody in Irob Wereda or to provide information about them; and for failing to take all feasible precautions to prevent two bombings of civilian areas in Mekele. The substantive law aspects of the Commission’s partial awards relating to the Central Front to be highlighted concern its holdings on indiscriminate placement of landmines, the destruction of the Stela of Matara, and the displacement of civilians as a violation of international humanitarian law. In addition, the Commission’s finding of state responsibility for the rape of civilian women by armed forces, discussed earlier,248 is of note because the holding marks one of the first occasions that a state has been found internationally liable for such conduct.249 I. Indiscriminate Placement of Landmines

Ethiopia claimed that Eritrea should be held liable for indiscriminate placement of landmines. In this regard, the EECC only addressed claims relating to injuries caused by landmines that were left behind upon the withdrawal of Eritrean forces, rather than any failure in the reasonable precautions required for the protection of civilians from landmines while the Eritrean forces remained in position.250 Ethiopia’s claims were dismissed, as the evidence did not support a finding that the placement of landmines targeted civilians or was indiscriminate.251 Moreover, Ethiopia did not present evidence to show that Eritrea had failed to take reasonable precautions to protect civilians in the placement of landmines, but the Commission instead found that Eritrea had used the mines consistent with defensive measures, as permitted under customary international 248

See, supra, notes 145–152 and accompanying text. See Christine Chinkin, Rape and Sexual Abuse of Women in International Law, EJIL, vol. 5, 1994, 326, 337–338. 250 Ethiopia Central Front Partial Award (note 43), para. 50. 251 Id., para. 47. 249

260

Natalie Klein

law.252 It is notable in this regard that the Commission did not endorse the view that even defensive use of landmines was prohibited under customary international law,253 despite the proscription of this conduct under recent conventional law.254 II. Stela of Matara

Eritrea submitted a claim for Ethiopia’s destruction of a historically and culturally important monument, the Stela of Matara. This obelisk was estimated to be 2,500 years old and stood alone on a plain almost five meters high, with another meter of stone below ground.255 Eritrea proved to the Commission that the Stela was damaged and toppled through the use of explosives during Ethiopian occupation.256 The EECC considered that the destruction of the Stela constituted a violation of customary international humanitarian law, particularly in light of Article 56 of the Hague Regulations, Article 53 of Geneva Convention IV and Article 52 of Additional Protocol I.257 The latter two provisions concern the protection of civilian property in occupied territory. In relying on these provisions as well as the Hague Regulations, the Commission did not need to consider whether Article 53 of Additional Protocol I, which prohibits “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples,” was part of customary international law. The EECC noted that the drafting history of Article 53 indicated that it was intended to apply only to a small number of the most famous monuments, including the Acropolis in Athens and St. Peter’s Basilica in Rome. In referring to the more general obligations concerning the protection of civilian property, the EECC was able to avoid entering into any debate on the comparative cultural significance of the Stela to these other monuments. In so doing, the Commission not only shied away from stating whether Article 53 was custom-

252 253 254 255 256 257

Id., para. 50. Id., para. 51. See, supra, notes 99–104 and accompanying text. Eritrea Central Front Partial Award (note 49), para. 107. Id., paras. 108–112. Id., para. 113.

State Responsibility for Humanitarian Law Violations

261

ary international law, but also from explaining or expanding its possible scope of application. III. Displacement of Civilians as a Violation of International Humanitarian Law

Ethiopia argued that Eritrea was liable for the displacement of civilians that resulted from Eritrea’s occupation of areas previously administered by Ethiopia.258 The Commission decided that this claim failed as the displacement of civilians, although a common and tragic occurrence in war, was not a breach of international humanitarian law.259 Ethiopia did not allege, let alone prove, that Eritrea had deliberately tried to cause the civilian population to flee by terrorizing them, or that terrorizing the civilian population was a primary purpose of Eritrea’s occupation.260 This conduct would have been a violation of Article 51 of Additional Protocol I, but mere displacement due to the armed conflict was not an international law violation.261 H. Reparations As described above, the Commission has decided to conduct the proceedings in two phases, with liability to be decided in a first round of pleadings and hearings, and reparations to be determined in a separate phase based on the findings on liability.262 A third-party determination of specific sums for reparations for 258

Ethiopia Central Front Partial Award (note 43), para. 41. Id., para. 53. 260 Id. 261 On a procedural level, the conclusion of the Commission appears to be a departure from its initial decision that one of the categories of claims it would address was “claims of natural persons for unlawful displacement from their residence.” EECC Decision Number 2 (note 37). This category of claim is distinct to another category of claims of unlawful expulsion from the person’s country of residence. Id. If unlawful displacement cannot be established as a violation of international humanitarian law in state-to-state claims, it begs the question as to what international law violation a natural person could establish in this category, assuming claims are still to be presented in accordance with the early framework set out in the Commission’s Decision Number 2, and reproduced in the Rules of Procedure. Rules of Procedure (note 121), Art. 30. 262 See, supra, note 38 and accompanying text. 259

262

Natalie Klein

international humanitarian law violations is an uncommon event after an armed conflict. Rather than Article 3 of the Hague Regulations having any precise practical operation, more common has been the practice of lump sum settlements after the war. As Kalshoven notes: The agreements usually lay an obligation on the vanquished State to pay a more or less random amount, determined more by its perceived financial capabilities than by any serious attempt to assess the damage caused by the unlawful acts of either party’s armed forces; and the victor State may or may not distribute (part of) the money to individual claimants.263

As both parties claim the other to be the aggressor and both initially claimed victory following the ruling of the Eritrea Ethiopia Boundary Commission, the labels of “victor” and “vanquished” are not apposite to the Eritrean-Ethiopian armed conflict. The Commission has already indicated that “in principle, the appropriate remedy for valid claims submitted to it should be monetary compensation.”264 In preparation for the reparations phase, the Commission has decided on the fixed-amount sums for certain individual claims (as opposed to government-togovernment claims).265 The award of compensation is consistent with Article 91 of Additional Protocol I, whereby states are expressly obliged to pay compensation for international humanitarian law violations. However, the EECC has not completely eliminated the possibility that other forms of reparations may be awarded, but will consider granting other types of remedies, provided the remedy is consistent with international practice and the Commission considers

263

Kalshoven (note 18), 836. EECC Decision Number 3: Remedies, available at: http://www.pca-cpa.org/ ENGLISH/RPC/EECC/Decision%203.pdf. Art. 5 para. 14 of the December Agreement also anticipates that the Commission may award interest, costs and fees. 265 See EECC Decision Number 2 (note 37) and EECC Decision Number 5: Multiple Claims in the Mass Claims Process, Fixed-Sum Compensation at the $ 500 and $ 1500 Levels, Multiplier for Household Claims, available at: http://www.pcacpa.org/ENGLISH/RPC/EECC/Decision%205.pdf. The fixed amount of compensation is divided into two tiers and is dependent on the type of evidence available. EECC Decision Number 2 (note 37). The first tier of compensation is set at $ 500 per individual and the second tier is set at $ 1500 per individual. EECC Decision Number 5. The Commission allows a multiplier of three of the fixed-sum compensation in respect of household claims arising under Categories 1 and 2. Each party is allowed to submit claims of an individual in different claims categories. 264

State Responsibility for Humanitarian Law Violations

263

it to be reasonable and appropriate in the circumstances.266 According to Meron, reparations for international humanitarian law violations do not need to be limited to the payment of monetary compensation, but could include other remedies under general international law, such as apology or punishment of the offenders.267 In respect of several of its claims thus far, Eritrea has already sought orders from the Commission for reparations other than compensation. Both parties alleged widespread and systematic confiscation of prisoners’ personal property by the other side’s soldiers, contrary to the customary law standard reflected in Articles 17 and 18 of Geneva Convention III.268 In connection with its claim, Eritrea sought an order from the EECC for the return of property unlawfully seized and held.269 The Commission considered that it would not be appropriate and was unlikely to be effective if ordered at this stage of the proceedings.270 This conclusion is consistent with the view that restitutio in integrum will not be awarded where the restitution involves a disproportionate burden, or is materially impossible.271 The Commission also noted that Eritrea had not attempted to show that such a remedy would accord with international practice.272 It can hardly be doubted that the return of property taken in violation of international law is consistent with the remedy of restitution in kind, and is well-established as an international law remedy.273 Presumably, the impracticality of the request was the predominant consideration in the Commission’s decision on this issue. Eritrea also requested an apology from Ethiopia as part of its claims in relation to the unlawful damage inflicted on the Stela of Matara.274 The Commission refused this form of reparations on the basis that Eritrea had not shown that an apology was in accordance with international practice, and was reasonable and

266

Id. Meron (note 18), 224. 268 Ethiopia POW Partial Award (note 77), paras. 77 and 78; Eritrea POW Partial Award (note 38), paras. 72 and 73. 269 Eritrea POW Partial Award (note 38), para. 1. 270 Eritrea POW Partial Award (note 38), para. 78. 271 See ILC Articles on State Responsibility (note 22), Art. 35. 272 Eritrea POW Partial Award (note 38), para. 78. 273 See, e.g., ILC Articles on State Responsibility (note 22), Commentary to Art. 35. 274 Eritrea Central Front Partial Award (note 49), para. 114. 267

264

Natalie Klein

appropriate in the circumstances.275 This conclusion is surprising as apologies are well-accepted as a form of satisfaction in international law,276 and would probably be more reasonable and appropriate than trying to ascribe a dollar figure to an ancient and irreplaceable monument. The decision of the EECC may be regarded as premature. If the Commission only refused such a form of reparation because Eritrea had not made any submissions on the status and appropriateness of the remedy under international law in the liability stage of the proceedings, it seems that such a showing would or should be made at the second, reparations, phase of the proceedings. I. Assessment of the EECC as a Form of Dispute Settlement for International Humanitarian Law Violations

An interim assessment of the EECC as a form of dispute settlement for international humanitarian law violations must not only consider what the Commission has already achieved and what contribution it has made to the interpretation and application of international humanitarian law thus far, but also whether the EECC is an appropriate process for creating an enduring peaceful relationship between the parties. With respect to the first aspect of this assessment, the Commission has only begun its work in deciding on state responsibility for violations of international law arising from the Eritrean-Ethiopian armed conflict. It has already laid the groundwork for its subsequent liability awards in reaching decisions on jurisdiction, applicable law, and various evidentiary issues. The broad subject matter jurisdiction accorded to the Commission under Article 5 of the December Agreement, the acceptance of the Geneva Conventions as customary international law and a feasible standard of proof all provide the Commission with a sure grounding for resolving the variety of claims arising from the boundary conflict. Beyond these decisions, which have effectively defined the contours of the Commission’s work, the awards issued thus far have demonstrated that any determination of state responsibility for international humanitarian law violations is highly fact-dependent. The holdings of the Commission on the merits of the parties’ claims have largely rested on the Commission’s assessment of the evidence presented, as measured against what 275 276

Id. See, e.g., ILC Articles on State Responsibility (note 22), Art. 37.

State Responsibility for Humanitarian Law Violations

265

are generally well-accepted principles of international humanitarian law. As noted earlier, the legitimacy and authority of the Commission’s awards may depend on whether the parties consider that the Commission has properly undertaken this fact analysis. With respect to the question of the appropriateness of the EECC as a mechanism for establishing peace between Eritrea and Ethiopia, the interim nature of this assessment means that there is no basis on which to judge the compliance of the parties with the Commission’s decisions.277 Their ongoing participation in the proceedings must indicate some willingness to pursue these issues peacefully. The risk that one of the parties will reject the Commission’s determinations clearly exists, as Ethiopia has now done with respect to the Boundary Commission. The desire to ensure compliance to resolve these important humanitarian issues means that the EECC will want to be as fair as possible in its decision-making in order to increase the likelihood that the parties will continue to accept its authority and to be bound by its decisions. The Commission must therefore perform a difficult balance as to the extent that the EECC may seek to placate one party, it is at the risk of alienating the other. International adjudication rarely has a zero-sum character and so it remains to be seen whether the EECC reaches win-win compromises in order to promote compliance with its final awards.278 The possibility of course exists that the Commission will not reach the ultimate conclusion of the proceedings, with decisions on reparations in respect of all the liability findings. The parties themselves may negotiate a settlement between them. To this end, Article 5 para. 16 of the December Agreement reads: “The parties may agree at any time to settle outstanding claims, individually or by categories, through direct negotiation or by reference to another mutually agreed settlement mechanism.” Moreover, the Commission itself has the power to terminate the proceedings, or any portion of them, under Article 20 of its Rules of Procedure if it “becomes unnecessary or impossible for any reason […] 277

The December Agreement provides that the decisions of the EECC are final and binding, and that the parties agree to honor all decisions and pay any monetary awards rendered against them promptly. See December Agreement (note 2), Art. 5 para. 17. It is unclear on the face of Article 5 para. 17 whether the parties will have to pay each other along the way, or whether they will wait until all the final awards have been rendered to see which state owes compensation to the other at that point. 278 Given that the EECC “shall endeavor to decide questions unanimously,” compromise is inherent in reaching consensus. See EECC Rules of Procedure (note 121), Art. 18 para. 2.

266

Natalie Klein

unless a party establishes justifiable grounds not to do so.”279 This provision of the Rules of Procedure anticipates that the EECC could terminate its work if one of the parties refuses to cooperate any further and no longer participates in the proceedings. There is no provision in the December Agreement or the Rules of Procedure to allow the Commission to issue any sort of default judgment if one of the parties fails to appear or otherwise participate. The Commission faces a difficult task in reaching decisions on liability and reparations with which both parties will comply in light of the ongoing tension between Eritrea and Ethiopia due to the stalled boundary demarcation. The task is nonetheless an important one. Beyond resolving certain outstanding issues between these two states, the very creation of the EECC is a significant harbinger for other third-party fora resolving claims of state responsibility for international humanitarian law violations. The EECC can be seen as part of a wider trend of utilizing a range of avenues to ascribe accountability for international humanitarian law violations. The potential clearly exists for the work of the EECC to serve as a precedent. The Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories found that Israel was responsible for violations of the laws of occupation and must make reparations for those violations.280 Perhaps the resolution of the Israeli-Palestine conflict will ultimately entail a special commission with responsibility to resolve claims of this nature. A state whose national is detained in Guantánamo Bay may seek to challenge the United States’ actions as violations of international humanitarian law. A third-party mechanism could potentially be established for such claims. The likelihood of such fora may seem as dim now as the establishment of the EECC would have seemed for Eritrea and Ethiopia at the end of 1998.

279

Id., Art. 20. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, available at: http:// www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm. 280

Spain and Its Former African Territories: A General Survey of Current Cooperation By Mariano J. Aznar-Gómez* and Juan M. Ortega Terol** A. Introduction Spanish colonial presence in America from 1492 onwards is a well known (although sometimes distorted) chapter of universal history that ended by the end of the 19th century, as also happened with its Asian territories. Spain had a limited presence in Africa in Morocco, Equatorial Guinea, and other territories such as Western Sahara. Like many other colonial powers, Spain did not end its presence without a conflict. It is noteworthy that very recently Spain has had different and serious controversies with both African States that could be included in a dangereux liaisons portfolio that have characterized diplomatic relations between both countries and Spain.1 However, Spain has not had only conflictual relations with its former territories. On the contrary, relations among these States have been historically friendly and peaceful, influenced by the populations’ mutual connections through a common and shared history. When governments have clashed, peoples have built links of comprehension and mutual coexistence.2 This article will not explore the conflicts but, rather, the continuous efforts between Spain on the one hand and *

Associate Professor of Public International Law, University of València. This article has been partly written within the R+D Project BJU 2003-00346. ** Associate Professor of Public International Law, University of Castilla-La Mancha. Special thanks must be given to Francesco Sindico for revision of the English text. 1 As will be referred to later, during July 2002, limited use of force was used by both Morocco and Spain in the dispute on Perejil Island; and concerning Equatorial Guinea, accusations of Spanish participation in a recent coup d’État in Malabo have obscured bilateral relations. 2 We cannot forget that both Morocco and Equatorial Guinea still are not fully democratic societies, notwithstanding different efforts of their populations, and that Spain suffered a dictatorship until 1975.

268

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

Morocco and Equatorial Guinea on the other to establish a stable canvas of cooperation and friendly relations. Therefore, we will try to carry out a tour d’horizon over questions relating to cooperation on personal affairs, commerce and other shared interests. It is obvious that these lines will be written from the Spanish point of view. B. Some Preliminary Data In order to better assess the current situation between Spain on the one hand and Morocco and Equatorial Guinea on the other, we will provide a summary layout of historical and statistical data. I. Historical

1. Morocco Through a Joint Declaration of 7 April 1956, Spain ended the protectorate over its territories (as France did on 12 March 1956) in northern Africa, which had originally been established by the 1912 Treaty of Fez.3 At that moment, the Kingdom of Morocco became a new international subject with its own foreign policy. 2. Equatorial Guinea In 1778, Portugal ceded to Spain the territories of Equatorial Guinea – Rio Muni and Fernando Poo – in exchange for two Spanish islands in South America

3

In another Treaty signed in Fez on 4 January 1969, in force since 13 May 1969, Spain agreed to hand back to Morocco its last possession in the old protectorate territories: the Sidi Ifni territory. The text of the Treaty is reprinted in: Boletin Oficial del Estado (B.O.E.) of 5 June 1969. The only and last as yet unresolved territorial controversy relates to the Western Sahara. A list of the most important treaties in force between Spain and Morocco and Spain and Equatorial Guinea is available at: http://www.uv.es/~mjaznar/Investigacion/GYbIL. htm.

Spain and Its Former African Territories

269

(Sta. Catalina and Sacramento). Equatorial Guinea was a colonial possession until 1959, when its territory was divided into two provinces and considered an integral part of Spanish territory. In 1964, the territories obtained some autonomy and nominally became Equatorial Guinea, which finally became independent from Spain on 12 October 1968. II. Statistics

1. Migration On 31 December 2003, there were officially 1,647,011 foreign citizens in Spain, 26.29 % of them originally from Africa.4 Among the latter, 333,770 persons came from Morocco and 6,032 persons from Equatorial Guinea. Their average age is 28 and 29 years respectively and they are predominantly single (approx. 60 %).5 The number of persons coming from both countries increased, between 2002 and 2003, by 18.18 % in the case of Morocco and by 9.89 % in the case of Equatorial Guinea. But these are official data that cannot show the increasing number of illegal foreign immigrants in Spain, currently estimated to be approximately 100,000 persons per year. Some stay in the peninsula but others try to establish themselves in other European Union (EU) countries (mainly France and Germany). From 1990, the highest migratory pressure on Spanish borders came from Moroccan citizens: about 95 % of potential immigrants whose applications were rejected by the Spanish government came from that country; and along with Algeria, Morocco was the country with the largest number of persons ‘legally ex-

4

Statistics taken from the website of the Ministry of Employment and Social Affairs (Secretaría de Estado de inmigración y emigración), available at: http://dgei.mir.es/es/ general/DatosEstadisticos_index.html. 5 Id. This shows the importance of the Moroccan population in Spain in comparison with the other main countries of origin like Great Britain (76,402 residents), Germany (60,828 residents), Portugal (44,038 residents), France (43,265 residents), Italy (29,871 residents), Peru (27,263 residents), the Dominican Republic (26,854 residents), China (24,693 residents), the Netherlands (17,243 residents), Cuba (16,556 residents), the United States (15,649 residents), and the Philippines (13,765 residents).

270

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

pelled’ from Spain.6 Contrary to this, most persons coming from Equatorial Guinea are normally official residents of Spain. 2. Commerce Some basic data on commerce will also show the close links between Spain and its two former colonies. Regarding Morocco, and using 2002 data,7 Spain was the main importer of Moroccan products (14.4 %) after France (with 26.7 % Moroccan imports); and, again following France (21 %), Spain was the second main exporter to Morocco (12.7 %). In 2003, Spanish imports from Morocco were valued at 1,592.82 million Euros while exports were valued at 1,882.09 million Euros.8 Direct gross investments by Spain in Morocco in 2002 amounted to 92.31 million Euros (about 0.25 % of total Spanish investments abroad); and Morocco invested about 0.57 million Euros in Spain (almost 0.01 % of its total investments abroad). Regarding Equatorial Guinea, and using 2001 data,9 Spain was the main importer of Guinean products (31.9 %), followed by China (27.5 %) and the USA (25.8 %); and after the USA (with 27.6 %), Spain was the second main exporter to Guinea (15.4 %). In 2003 (January to October data), Spanish imports from Guinea were worth 709.48 million Euros; and exports were at 36.83 million Euros,10 showing a positive balance favoring Equatorial Guinea. Direct gross in6

There has been a significant increase in the number of immigrants coming from the sub-Saharan region (mostly from Cameroon, Gambia, Liberia, Mauritania, Nigeria, Mali and Senegal). It must be underlined that most of them are victims of ‘mafias’ and gangs established in Morocco when organizing their illegal and dangerous trip to Spain by crossing the Gibraltar Strait. Special difficulties arise when women and children – a growing part of the total – are involved, as they suffer prostitution, slavery and other forms of criminal injustice. 7 See Spanish Ministry of Foreign Affairs and Cooperation, Report on Morocco, June 2004, available at: http://www.maec.es/documento\0\000\000\621\Marruecos.pdf. 8 Imports from Morocco were mainly clothing, fish and some other non-manufactured products, exports to Morocco mainly manufactured products for light industry, cotton, oil-refined products, vehicles and some other agricultural tools. 9 See Spanish Ministry of Foreign Affairs and Cooperation, Report on Equatorial Guinea, April 2004, available at: http://www.maec.es/documento/0/000/000/622/Guinaa Ecuatorial.pdf. 10 Imports from Equatorial Guinea were mainly oil products, exports to Equatorial Guinea mainly drinks (alcoholic and non-alcoholic), vehicles and some other agricultural tools and some other manufactured products for light industry.

Spain and Its Former African Territories

271

vestments of Spain in Guinea in 2002 were irrelevant, as were gross Guinean investments in Spain (0.007 million Euros). III. Current Legal Status of Spanish Possessions in Africa

Together with some minor and scarcely populated rocks and islands, the cities of Melilla and Ceuta are the only Spanish territories in Africa now. Ignoring Moroccan claims of sovereignty, Spain has – from time immemorial and up to today – enacted its legislation including these territories. However, we will only explore their current legal canvas avoiding visitation, once again, of old and new territorial claims, which have been exhaustively analyzed in the doctrine.11 1. Ceuta and Melilla The cities of Ceuta and Melilla have been part of the Spanish Crown since the sixteenth and the fifteenth centuries, respectively. Since then, quite different legal regimes have been uninterruptedly enacted by the Spanish authorities upon both cities, showing an effective legal title in international law.12 Today, both cities have a particular legal status within the constitutional Spanish structure. Under Article 144 lit. b of the Spanish Constitution, and after a long drafting period (1981–1995) partly motivated by the complicated relations with Morocco,13 both cities finally received their respective Statutes (Estatutos de Autonomía): Ceuta by Organic Law 1/1995 of 13 March 1995, and Melilla by Organic 11

See the most recent and complete appraisal in Julio D. González Campos, Las pretensiones de Marruecos sobre los territorios españoles en el norte de África (1956– 2002), Boletín del Real Instituto Elcano, DT No. 15/2004, available at: http://www.real institutoelcano.org/documentos/98/GonzalezCamposPDF.pdf. 12 See generally Isabel García Rodríguez (ed.), Las ciudades de soberanía española: Respuestas para una sociedad multicultural, 1999; Gerry O’Reilly, Ceuta and the Spanish Sovereign Territories. Spanish and Moroccan Claims, in: Martin Pratt/Clive Schofield (eds.), International Boundaries Research Unit, Boundary and Territory Briefings, vol. I, 1994, 36 et seq.; Santiago C. Cardenas, The Contested Territories of Ceuta and Melilla, Mediterranean Quarterly, vol. 7, 1996, 120 et seq. 13 The 1986 draft of Ceuta’s Statute in its Art. 2 included Perejil Island and Peñón de Vélez de la Gomera within the municipal territory. This produced a Note verbale of 5 January 1987 with a protest from Morocco. Any mention of both possessions was erased thereafter in order to avoid any conflict with Rabat.

272

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

Law 2/1995 of 13 March 1995.14 Both cities have developed their own legal competencies under the general framework of their respective Statutes and the general Royal Decrees of Transfer of Competencies.15 The particular competencies transferred are stated in a series of Royal Decrees of 1996,16 199717 and 1999,18 and they include, amongst other issues, environment, culture, architectural heritage, health, urbanism, roads and local transportation, tourism, agriculture, industry, culture, education, etc. It must be further underlined that quite recently, in September 2004, the Government announced a proposal to transform those cities into Autonomous Communities (Comunidades Autónomas). They would be added to the other 17 Spanish communities, although by means of a special constitutional procedure, and with limited competencies in comparison to the other regions.19 Finally, it must be recalled that both cities received a particular regime when Spain joined the European Community (EC) in 1986. Under the Act of Accession of Spain and Portugal, of 12 June 1985,20 several EC policies and regimes, such as the free movement of goods, the acts of the institutions of the Community concerning customs legislation and commercial policy, as defined in Protocol No. 2 annexed to the Act of Accession,21 and the common policies on agriculture and fisheries,22 do not apply to Ceuta and Melilla. However, the Act of Accession did foresee the future extension to Ceuta and Melilla of the provisions of Community law in force and, meanwhile, “[o]n a proposal from the 14

Both laws in B.O.E. of 24 March 1995. Royal Decree 1411/1995 of 4 August 1995, B.O.E. of 6 September 1995 (for Ceuta); and Royal Decree 1412/1995 of 4 August 1995, B.O.E. of 6 September 1995 (for Melilla). 16 B.O.E. of 21 March 1996 (for Melilla); B.O.E. of 15 January 1997 (for Ceuta). 17 B.O.E. of 24 September 1997 (for Melilla). 18 B.O.E. of 4 February 1999 (for Ceuta). See the list (in Spanish) of all the Royal Decrees of 1996, 1997 and 1999 on the website of the Ministry of Public Administration (Ministerio de Administración Pública), available at: http://www.map.es/servicios_ al_ciudadano/politica_autonomica/cooperacion_autonomica/index-ides-idweb.html. 19 See El País, 7 September 2004, 28. 20 Act of Accession of Spain and Portugal of 12 June 1985, O.J. 1985 L 302/23. 21 Id., Art. 25 para. 2. As expressed in para. 4 of the same Article, at the request of the Kingdom of Spain, the Council, acting unanimously on a proposal from the Commission and after consulting the Parliament, may decide to include Ceuta and Melilla in the customs territory of the Community. 22 Id., Art. 25 para. 3. On fisheries, see also Art. 155. 15

Spain and Its Former African Territories

273

Commission acting on its own initiative or at the request of a Member State, the Council, acting unanimously and after consulting the [Parliament], may decide to make such adjustments to the arrangements applicable […] to Ceuta and Melilla as may prove necessary.”23 Protocol No. 2 further regulates different aspects related to the application of EU Law to Ceuta and Melilla. As for participation of Ceuta and Melilla in EU affairs, the general framework of the Conference for Matters Related to the European Communities created in 1988 and currently regulated by the Law 2/1997 of 13 March24 provides that each city shall have a representative in that Conference.25 2. Other Possessions The other Spanish possessions in Northern Africa are two rocks (Peñón de Vélez de la Gomera and Peñón de Alhucemas) and several islands (Perejil and Chafarinas).26

23

Id., Art. 25 para. 4 in fine. B.O.E. of 15 March 1997. 25 Id., Additional Disposition No. 2. 26 For our purposes, the most interesting analysis relies on the legal regime enacted for the last possession – the Chafarinas Island. Some basic data will be therefore given in respect of the other possessions. It must be said at the outset that Spain possesses another island (Alborán) never claimed by Morocco. Initially used as a military guardian of the east entrance to the Gibraltar Strait, Alborán has now mainly attracted environmental concerns as a pelagic reserve, given its particular position between the Mediterranean and Atlantic streams. Alborán belongs to the province of Almería. The marine reserve occupies about 429 hectares, and the fisheries reserve occupies 425,645 hectares around the island. The Spanish authorities legally declared it a reserve by Order of 31 July 1997, B.O.E. of 26 August 1997. Fisheries and further rules for the zone were regulated by the central State by an Order of 8 September 1998, B.O.E. of 29 September 1998, modified and updated by an Order of 6 June 2001, B.O.E. of 19 June 2001. On its part, the regional Government of Andalusia (with exclusive constitutional competency on environmental issues) declared the island and its surroundings a Natural Landscape (Paraje Natural) in 2003 (Boletín Oficial de la Junta de Andalucía, No. 133 of 14 July 2003, and No. 142 of 25 July 2003). The reserve is currently included within the Red Iberoamericana de Reservas Marinas, a network created by Costa Rica, Ecuador, Mexico, Panama, Spain and Venezuela (see the information on this network available at: http://www.mapya.es/ rmarinas/index_rirm.htm). 24

274

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

Peñón de Vélez de la Gomera is located 117 km southeast of Ceuta. It once was an island which is now permanently connected to the North-African coast by an 85 m long sand strip (thus being one of the world’s shortest land borders). First occupied by Spain in 1508, and permanently under Spanish control since 1564, the island is today inhabited only by a tiny military garrison of roughly 60 men. The Peñón de Alhucemas and the islets of Isla de Mar and Isla de Tierra are slightly west of the Alhucemas Islands. They are located 300 m off the coast of the Moroccan village of Sanjurjo, 155 km east of Ceuta and 100 km west of Melilla. The rock of Peñón de Alhucemas is a tiny island, 70 m by 50 m wide and 27 m high. On the rock, there is a fort, several houses and a church. Isla de Mar is a flat, 4 m high islet. Isla de Tierra is a steep, 11 m high rocky platform. The islands’ history dates back to 1559, when several parts of what is now Morocco were given to Spain in order to help in its defence against Turkish armies. In 1673, Spain sent a garrison to the island of Peñón de Alhucemas, and since then, the place has been permanently occupied. Nowadays there is a fort that hosts a 60-man Spanish military garrison. The islands are also located near the landing place used by the Spanish and the French expeditionary forces in 1925 during the War of the Riff. Finally, Isla Perejil is a small, rocky island in the Mediterranean Sea, 200 m off the coast of Morocco and 4 km from Ceuta. It has been under Spanish control since 1668, but quite recently the almost forgotten little island raised new political interest.27 In fact, it was occupied on 11 July 2002 by Moroccan police and troops, who were evicted without bloodshed by Spanish naval forces. On July 20, Spain agreed to withdraw its troops from the island. Isla Perejil has no permanent human population. Goats are pastured there, and the Moroccan government has expressed worries that smugglers and terrorists were using the island. Differing from those rocks and islands – which owe their particular status and interest to the military presence –, the Chafarinas islands have a particular normative layout.28 In this case, environmental matters have been the object of leg27 See Christian J. Tams, A Sprig of Parsley That Leaves a Bitter Taste – The Spanish-Moroccan Dispute about Perejil/Leila, German Yearbook of International Law, vol. 45, 2002, 268; Jaume Saura Estapa, A propósito de la soberanía sobre el islote de perejil, Revista Electrónica de Estudios Internacionales (REEI), vol. 5, 2002, available at: http://www.reei.org/reei5/J.Saura.pdf. See also José Manuel Lacleta, Las aguas españolas en la costa africana, REEI, vol. 7, 2003, 9, available at: http://www.reei.org/reei7/ JM.Lacleta.pdf. 28 The Chafarinas have belonged to Spain since 6 January 1848, when the three islands (Isabel II, Congreso and Rey Francisco) were effectively occupied by Spanish authorities. Although well known from antiquity, no State had exerted sovereignty over

Spain and Its Former African Territories

275

islative action from Spain under EC and international laws.29 The islands were declared as Refugio Nacional de Caza (National Hunting Reserve) in June 1982;30 and under EC Directive 79/409 of 2 April 1979 on the Conservation of Wild Birds,31 they were declared as a special zone for the protection of birds in 1989, and later included in the EC Nature Net 2000. In 2003, it was proposed to include the Chafarinas among the ‘sites of Community importance’ under EC Directive 92/43 of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora.32 Finally, within the legal framework created by the 1995 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean,33 Spain is planning to include the Chafarinas Islands within the List of Specially Protected Areas of Mediterranean Interest (SPAMI List) as a site “of importance for conserving the components of biological diversity in the Mediterranean” and “contain[ing] ecosystems specific to the Mediterranean area or the habitats of endangered species.”34 C. The Current Legal Cooperation Between Spain and Morocco and Equatorial Guinea Having highlighted some general data on the current possessions of Spain in Northern Africa, with a general tour d’horizon of their legal status under Spanish domestic law, we will now address the current conventional cooperation between Spain, on the one side, and Morocco and Equatorial Guinea, on the other.

their territories. During the Spanish War of the Riff during the 1920s, the islands were used as military hospitals. 29 Up to the 1960s, the islands only attracted a military interest and a Spanish garrison was continuously present there. From that decade on, an increased interest in ornithology turned the main legislative and political approach on the islands to an environmental path. 30 Royal Decree 1115/1982, B.O.E. of 1 June 1982. 31 EC Directive 79/409 of 2 April 1979, O.J. 1979 L 103/1. 32 EC Directive 92/43 of 21 May 1992, O.J. 1992 L 206/7. 33 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, 10 June 1995, O.J. 1999 L 322/3. 34 Id., Art. 8 para. 2. Information given to the authors by the Ministry of the Environment.

276

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

I. The Evolution of Moroccan-Spanish Cooperation through Treaties

Cooperation between Morocco and Spain is a self-evident necessity.35 Proximity and decades of immigration, deep cultural links and mutual interests have made it difficult to establish a gap just where the Atlantic Ocean and the Mediterranean Sea meet. However, cooperation has evolved since Morocco became independent. During the first years of Moroccan independence, relations with Spain were characterized by the very fact of decolonization. Thus, leaving aside several agreements on technical and administrative assistance,36 treaties signed until the end of the 70s dealt with questions relating to the decolonization, such as devolution of territories, succession of properties, etc.37 The first two decades of conventional relations between the two States were not very significant, mainly because of the Spanish political regime under General Franco’s dictatorship. On 35

Morocco is the main object of Spanish attention both in Mediterranean Sea and African areas, together with European countries of course. For a full perspective of conventional engagement of Spanish cooperation on a bilateral basis, see Antonio Fernández Tomás, La celebración de tratados bilaterales de cooperación por España, 1994. A general approach to foreign policy and cooperation in the Spanish case can be found in Irene Rodríguez Manzano/José Antonio Sotillo Lorenzo, Relaciones internacionales, política exterior y cooperación para el desarrollo: reflexiones para un debate en el caso español, Revista Española de Derecho Internacional (REDI), vol. 55, 2003, 149. For relations between Morocco, the European Union and Spain, see Jaume Ferrer Lloret, Cooperación al desarrollo y derechos humanos en la cuenca mediterránea: Estudio de las relaciones entre Marruecos, la Unión Europea y España, in: Luis Garau Juaneda/ Rosario Huesa Vinaixa (eds.), Derecho internacional y relaciones internacionales en el mundo mediterráneo, 1997, 43. 36 Convention on Administrative and Technical Assistance and attached rules,7 July 1957, B.O.E. of 5 February 1958; Postal Agreement, Telegraphic Agreement and related treaties, 1 February 1958 (not published); Agreement on Information Matters, 12 March 1964 (not published). A diplomatic convention was also signed subsequent to the Spanish-Moroccan Joint Declaration by which Spain recognized Moroccan Independence, B.O.E. of 4 March 1957. 37 Treaty on Ifni Territory Retrocession and annexes, 4 January 1969, B.O.E. of 5 June 1969 (four exchanges of notes); Agreement on Pesetas Withdrawal from the Sahara and on the Use of Pesetas Accounts Opened in Spanish Banks by Residents of the Sahara, 22 May 1976 (not published); Agreement on Transfer of Goods of the Spanish State in the Former Northern Area of the Protectorate, 10 July 1978, B.O.E. of 6 December 1978. Some other conventions consider some aspects of that matter, such as the Convention on Compensation for Recovered Lands by Morocco in the Framework of Dahir, 2 March 1973, B.O.E. of 11 October 1985, and Exchange of Notes on Fos-Bucraa, 1 September of 1983 (not published).

Spain and Its Former African Territories

277

the one hand, the Spanish economy was practically isolated during the 1960s, and it was not prepared to offer any cooperation since Spain itself was a developing country. On the other hand, Franco’s military officers were trained mostly in African dependencies, and the loss of Spanish protectorates entailed a hard shock in the heart of that regime. Thus, it is not surprising that the democratic transition became a turning point in those relations, increasing communication and treaties on both sides of the Gibraltar Strait. An analysis of the legal and political elements of the cooperation between Spain and Morocco enables us to distinguish three stages. Firstly, during the 1980s there was a progression of conventional activity, which dealt with multiple aspects, especially economics and financial ones, but without any defined structure. Secondly, the 1990s brought a more global approach and cooperation was constructed on an integrated basis, following some umbrella treaties which allowed a flexible answer to each other country’s necessities. Current treaties in force stem mostly from that time. Thirdly, in recent times, during the conservative government in Spain, relations have been relatively cold because of territorial incidents and the increasing number of immigrants crossing the Strait. The Perejil Island incident,38 licenses given by the Spanish government for oil exploitation near the Canary Islands,39 as well as the immigrant question provoked the withdrawal of ambassadors of each party over several months. Treaties from this period are mainly devoted to legal and judicial assistance and to immigration matters. 1. General Framework Initially, cooperation between Spain and Morocco was achieved through an unconnected network of bilateral treaties. Nowadays, the web of treaties between both countries must be interpreted under a general cooperation agreement. The most important agreement of this type between Spain and Morocco is the Treaty of Friendship, Good Neighborhood and Cooperation (TFGNC) of 4 July 1991.40 This umbrella agreement purports to cover a wide spectrum of 38

See, supra, Section B.III. and note 27. M. Requena Casanova, España concede a la empresa Repsol YPF permisos de investigación de hidrocarburos en aguas situadas, en aplicación del método de la equidistancia, más allá del mar territorial de las islas Canarias frente al litoral marroquí, REDI, vol. 54, 2002, 501. 40 B.O.E. of 26 February 1993 (in force since 26 January 1993). 39

278

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

questions on which governments can operate. On a political level, they offer an opportunity to show their mutual interest in several aspects, and they establish a framework for periodic meetings. From an international law point of view, they include references to basic principles of law (settlement of disputes, renunciation of the use of force, non-intervention, cooperation, etc.), but they usually do not provide for self-executing rules. However, it is from an internal perspective that they find a more elaborated juridical significance. At least from the Spanish point of view, several scholars have seen recourse to these kinds of conventions as a way of overcoming parliamentary control of foreign activity by the executive branch. Taking into account that many agreements require parliamentary approval,41 some authors identify them as a way which would not require new approval of the treaties that further the umbrella.42 The TFGNC contains three parts following the characteristics mentioned above. The first part makes broad reference to general international law principles. The second part is an intent to create a framework for institutional bilateral contacts: a meeting of Prime Ministers every year; a meeting of Foreign Affairs Ministers every six months; regular contacts between government officials in general policy, security, consular, cultural, economic and cooperation matters. Thus the TFGNC also intends to promote dialogue between parliaments, professional organizations, universities, cultural and scientific institutions, as well as enterprises. In its third part, the Treaty contains a broad list of areas of cooperation in which both countries are interested to work. 2. Particular Areas of Cooperation a) Economic and Financial Relations Four issues have been dealt with through treaties between Morocco and Spain regarding economic and financial relations. In the first place, Spain has given

41 The Spanish Constitution requires parliamentary approval for treaties relating to cession of sovereign competencies to an international organization (e.g., EU), those of political character, military agreements, those affecting territorial integrity or human rights, treaties implying financial obligations to treasure and those that need legislative intervention. Arts. 93 and 94 of the Spanish Constitution. 42 Fernández Tomás (note 35), 107.

Spain and Its Former African Territories

279

direct financial assistance with credit operations for more than 1.1 billion43 during the past twenty years. These credits were given under the condition that the money be spent on the purchase of Spanish goods or services, or for projects of common interest. These credits have been granted through the Spanish Fund for Development Assistance (FAD according to the Spanish abbreviation).44 Taking into account that the use of FAD credits is frequently criticized because of its use for reasons other than development cooperation,45 it could be said that there are many doubts about certain Moroccan acquisitions, particularly whether there has been purchase of military material from Spain. Regardless of such criticism, the volume of this assistance shows Spanish interest in contributing to Morocco development. It has also contributed to an increase of Spanish enterprises in Morocco. Maybe this could explain why other treaties signed in this context deal with the promotion and the protection of reciprocal investments and establish recourse to arbitration if any dispute arises. In the last years, many Spanish enterprises have moved to Morocco. This phenomenon is sometimes due to specific demands of Morocco in some areas, e.g. in fisheries.46 Other times it is due to lower labor costs. For example, many communications services are handled by Moroccan citizens. In the second place, the growing presence of enterprises, as well as individuals, on both sides of the Gibraltar Strait has led the Moroccan and Spanish governments to sign a treaty to avoid double taxation. A long list of rules intends to facilitate economic flow between the two countries.

43

This quantity is approximated by converting to a current Euro value. It includes 150 billion Pesetas under the Agreement on economical and financial cooperation, 6 February 1996, B.O.E. of 4 May 1999 (for the 1996–2001 period; in force since 5 June 1997); US$ 40 million under the Protocol on Financial Assistance, 1 April 1981, B.O.E. of 7 October 1981 (in force since 1 April 1981); and US$ 150 million under an Exchange of Notes, B.O.E. of 1 August 1983. 44 The Fund for Development Assistance (Fondo de Ayuda al Desarrollo) is one of the main instruments for development cooperation. 45 The way in which assistance is conditioned is also subject to criticism. See Ignacio Forcada Barona, El condicionamiento político y económico de la ayuda oficial al desarrollo, 1996. 46 Nonetheless, the agreement signed in August 1983 (note 43) signifies the development of an Agreement for Cooperation in Fisheries Matters.

280

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

Finally, the end of the Spanish presence in the Sahara territory has received some attention particularly in certain aspects such as the withdrawal of the use of Pesetas,47 public debt and phosphate deposits in Fos-Bucraa.48 However, these agreements have not been published in Spain. b) Cultural, Scientific and Technical Cooperation While economic relations are always problematic, cooperation in cultural matters has been easier. The Agreement on Cultural Cooperation of 14 October 198049 allows students from the other country to access education institutions under the same conditions as nationals. It also gives most favorable treatment to researchers, teachers and professors. Finally, this agreement intends to promote a wide range of relations in matters such as cinema, historical archives, monuments, sports50 and others. In relation to scientific and technical cooperation, the main instrument is the Agreement on Scientific and Technical Cooperation of 8 November 1979.51 This agreement has been in force since 1981, but many of its administrative regulations were not developed until 1990.52 This agreement establishes a flexible framework in order to exchange specialists and materials, and it fosters the development of joint projects. Nonetheless, it is difficult to assess its success because of the mechanism chosen for its implementation. A Mixed Commission was created to apply its regulations, but its work is not published. In addition to that, the Protocol for Implementation creates a Mixed Committee for controlling

47 Signed on 22 May 1976. Access to treaties regarding the status of Western Sahara is not easy. Many of them are not published officially in Spain, given the way Spain ended its administration over the Western Sahara. See Juan Soroeta Liceras, El conflicto del Sahara Occidental, reflejo de las contradicciones y carencias del Derecho Internacional, 2001. 48 Exchange of Notes on Fos-Bucraa, 1 September 1983 (not published). 49 B.O.E. of 10 October 1985 (in force since 12 September 1985). 50 As an anecdote, it could be mentioned that the Prince of Asturias Award 2004 has been granted to the Moroccan Athlete Hicham El Guerrouj. 51 B.O.E. of 1 December 1979 (in force since 13 January 1981). 52 Protocol for Implementation, 2 July 1990, B.O.E. of 20 September 1990.

Spain and Its Former African Territories

281

and evaluating the Mixed Commission’s decisions, which adds even more complexity to the issue. On the other hand, although these kinds of mechanisms could provide for a flexible structure to mutual relations, they are seen as a way to overcome parliamentary control, taking into account that the decisions of the Mixed Commission do not have to be published. Despite these problems, a Spanish educational center has finally been built under these agreements in Rabat.53 Taking into account its particular sensitivity, special attention should be given to the efforts of building a framework for mutual cooperation for emergency or catastrophic situations. Thus an Agreement on Technical Cooperation and Mutual Assistance in Civil Protection Matters was signed by both countries on 21 January 1987.54 It describes the facilities to be used for measures that will be taken in emergency situations, which can be deployed over all of the territories of Spain and Morocco. However, specific agreements shall be concluded to cover emergency situations arising from nuclear disasters or marine contamination. Events like the earthquake in the Riff Zone in February 2004 prove the usefulness of this agreement. c) Legal and Judicial Assistance There are many treaties on this issue dealing with multiple aspects. The first agreement, at the beginning of the relations between Morocco and Spain,55 underlined the importance of these issues. Today, this agreement has been replaced by agreements in three main areas: criminal justice assistance,56 judicial as-

53 Agreement by which the Government of the Kingdom of Morocco puts at the Government of the Kingdom of Spain’s disposal a building for an education centre, 6 February 1996, B.O.E. of 7 October 1996 (provisionally applied since 6 February 1996, in force since 2 April 1997). 54 B.O.E. of 22 February 1993 (in force since 22 February 1993). 55 Judicial Agreement, 11 February 1957, B.O.E. of 4 March 1957 (in force since the same date). 56 Agreement on Judicial Assistance in Criminal Matters, 30 May 1997, B.O.E. of 24 June 1997 (provisionally applied since 30 May 1997, in force since 1 August 2000). It is completed with an Extradition Treaty, 30 May 1997, B.O.E. of 25 June 1997, and an Agreement for Assistance to Arrested Persons and to Transfer Convicted Persons, 13 May 1997, B.O.E. of 18 June 1997 (in force since 1 July 1999).

282

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

sistance for child-related decisions57 and judicial assistance in civil, commercial and administrative matters.58 Regarding their customs laws, both countries have decided to conclude an agreement to prevent, investigate and sanction customs infringements.59 Spain is probably the party most interested in the implementation of this agreement, which remarkably does not establish any restriction to sensitive areas like Ceuta and Melilla. However, the possibility to begin an investigation because of mere suspects, linked to the obligation to communicate, can cause problems under certain conditions. Furthermore, the creation of a Mixed Commission could provoke repetition of the above-mentioned problems. Although its scope is wider than judicial and legal questions, the Agreement for Cooperation in the Fight against Drugs of 21 January 198760 includes several requirements that affect exchange of information on that matter. In addition, the agreement allows its implementation through so-called administrative agreements, which are agreements concluded between competent government officials in the areas related to it. They are not international agreements strictu sensu, but they create some doubts as to how they are to become part of internal legislation. In the Spanish case, official government policy is that they must be published. d) Labor and Immigration Cooperation These two sides of one coin are probably the main concern today in SpanishMoroccan relations. Nonetheless, the EU policy in this context must be taken into account. Both questions have generated several treaties. Firstly, Morocco

57

Agreement on Judicial Assistance, Recognition and Implementation of Judicial Decisions in Matters of Custody, Visits and Devolution of Children, 30 May 1997, B.O.E. of 24 June 1997 (provisionally applied since 30 May 1997, in force since 1 July 1999). 58 Agreement on Judicial Cooperation in Civil, Commercial and Administrative Matters, 30 May 1997, B.O.E. of 25 June 1997 (provisionally applied since 30 May 1997, in force since 1 July 1999). 59 Agreement on Mutual Administrative Assistance to Prevent, Investigate and Sanction Customs Infringements, 18 March 1985, B.O.E. of 8 February 1991 (in force since 26 December 1990). 60 B.O.E. of 4 September 1987 (provisionally applied since 21 January 1987, in force since 24 February 1991).

Spain and Its Former African Territories

283

and Spain agreed on social security services for workers in the other country.61 Secondly, they established conditions under which work and residence permits should be granted, as well as their duration.62 The European Union’s restrictive immigration policy led to a new Spanish law on these issues, and relations with Morocco suffered a change then. As a consequence, treaties reflect a double approach. On the one hand, the Agreement on Manpower between Spain and Morocco establishes a mechanism for regulating work offers with an attempt to organize immigration.63 This agreement is devoted to so-called legal immigrants, and its provisions apply mainly to Spain. On the other hand, both countries have agreed on the conditions of the free movement of persons, the transit and the readmission of foreigners who have entered their borders unlawfully,64 that is to say, so-called illegal immigrants. Although this treaty includes references to both countries, it is mainly directed at Morocco, taking into account the massive immigration of persons from there to Spain. e) Other Spheres of Cooperation One of the other areas of cooperation between Spain and Morocco is the communications sector. Thus, the two countries have signed several treaties on maritime transport,65 terrestrial transport of goods66 and persons,67 aerial trans-

61

Agreement on Social Security, 8 November 1979, B.O.E. of 13 October 1982 (in force since 10 October 1982). Implemented by an Administrative Agreement, 8 February 1984, B.O.E. of 10 June 1985. 62 Agreement in Matters of Labor and Residence Permits between the Kingdom of Spain and the Kingdom of Morocco, 6 February 1996, B.O.E. of 28 May 1996 (provisionally applied since 6 February 1996). 63 Agreement on Manpower between the Kingdom of Spain and the Kingdom of Morocco, 25 July 2001, B.O.E. of 20 September 2001 (provisionally applied since 24 August 2001). 64 Agreement on Movement of Persons, Transit and Readmission of Illegal Foreigners, 13 February 1992, B.O.E. of 25 April 1992 (provisionally applied since 13 February 1992). 65 Treaty on Maritime Transport, 20 December 1979, B.O.E. of 16 December 1980. 66 Treaty on Transport of Goods by Road, 31 March 1988, B.O.E. of 16 April 1988 (in force since 26 December 1990). 67 Treaty on International Carriage of Passengers by Road, 3 December 1976, B.O.E. of 2 June 1977 (in force since 24 July 1978).

284

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

port,68 and postal and telegraphic relations. The project to build a permanent link between Europa and Africa through the Gibraltar Strait is particularly interesting. Notwithstanding the agreement to study its viability, this project seems to have been currently suspended.69 Both countries have also concluded an agreement on defense matters.70 This treaty calls for the realization of common programs to investigate, to develop and to produce weapons and defense materials, as well as for mutual assistance through information exchange. The Agreement also created a Mixed Commission to define and to implement its provisions. Spain and Morocco have also ratified treaties in relation to fisheries. However, that competence now lies with the European Union authorities.71 II. The Evolution of Equatorial Guinea-Spanish Cooperation through Treaties

Cooperation with Equatorial Guinea has been a landmark in recent Spanish foreign policy. Even though the relationship has sometimes been difficult,72 the

68

Treaty on Aerial Transport, 7 July 1970, B.O.E. of 22 July 1974 (in force since 23 February 1971; with annexed Exchange of Notes). 69 Agreement on the Establishment of a Permanent Link between Europe and Africa through the Gibraltar Strait, 24 October 1980, B.O.E. of 9 January 1981 (provisionally applied since that date, in force since 23 January 1991). Additional Agreement, 27 September 1989, B.O.E. of 13 December 1989 (provisionally applied since that date, in force since 26 December 1990). 70 Signed on 27 September 1989, B.O.E. of 19 January 1991. 71 There is a treaty in force since 1 March 2000, the Euro Mediterranean Agreement Establishing an Association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, O.J. 2000 L 70/2. 72 The last of a saga occurred during the inauguration of the 59th UN General Assembly, when the Prime Minister of Equatorial Guinea formally and publicly accused Spain of supporting a coup d’État on 7 March 2004 against President Obiang’s Government (UN Doc. A/59/PV.6 (2004), 40–42). In fact an obscure affair occurred when two Spanish battleships were initially sent to the Gulf of Guinea in early 2004 to (allegedly) show a Spanish presence around the disputed waters surrounding the Mbañe, Cocoteros and Conga islands and its oil reserves against its illicit occupation by Gabon with (alleged) French support (see Carlos Ruiz Miguel, El difícil acercamiento de España a Guinea Ecuatorial, Análisis del Real Instituto Elcano, No. 8, 2004, 9).

Spain and Its Former African Territories

285

two countries have, since the independence of Equatorial Guinea in 1968, cooperated through an array of treaties on diverse matters . However, it must be underlined that since 1985, the dictatorial government73 of President Obiang seems to have neglected Spanish cooperation74 in favor of the French-speaking areas; in fact, political agreements were concluded with France along with the adoption of the Franc CFA in January 1985 as the official currency in Equatorial Guinea.75 This position apparently changed in 1995,76 when the United States strengthened its cooperation with Equatorial Guinea, in part forced by the new interests in oil exploration and exploitation by US companies in the Gulf of Guinea.77 This happened against French interests in the zone,78 and apparently favoring Spanish interests.79

73

This qualification can be confirmed by several objective data: As an example, the EU has suspended any kind of economic cooperation with Equatorial Guinea (except humanitarian aid) since 1991 due to the absence of respect for basic human rights; the UN avoided the supervision of the November 1993 general elections once the unfair political process was exposed; and the UN Commission of Human Rights (e.g. in its reports UN Doc. A/52/36 (1997) and UN Doc. A/55/36 (2000)) and several reputed NGOs have assessed the continued violation of human rights in the country (cf., e.g., the 1999 Amnesty International Report, extract available at: http://www.amnesty.org/ailib/aireport/ ar99/afr24.htm/). For a particular assessment of human rights and democracy in Equatorial Guinea and its political evaluation by the EU (EC), see the Communiqués of the Presidency of 16 March 1996 and 14 April 1999, available at: http://ue.eu.int/ueDocs/cms_Data/docs/ pressdata/en/cfsp/026a0127.htm and http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/ cfsp/p-037.en.htm, respectively. 74 A diplomatic crisis in 1993 (when the Spanish consul was declared persona non grata) further eroded bilateral relations between Madrid and Malabo. 75 It must also be underlined that Equatorial Guinea supports the Moroccan position towards Western Sahara against the Spanish traditional policy which favors self-determination of the old colony of Sahara. 76 Since July 1993 the US diplomatic mission in Malabo has been reduced as an official protest to the political situation in Equatorial Guinea. However, in October 2003, the US Embassy was officially reopened. 77 In October 1996, Mobil Oil began the exploitation of oil reserves at the Zafiro Camp. The Gulf of Guinea allegedly contains about 5 %–10 % of the world oil reserves. It is further estimated that Equatorial Guinea owns about 563.5 million barrels of oil. 78 Particularly through the company Elf, ‘owner’ of most of the Gabon oil reserves. 79 In June 2003, a Spanish oil company – Repsol YPF – was assigned the exploitation of oil reserves in the Gulf of Guinea, sometimes in a joint-venture with other US oil

286

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

1. General Framework The Treaty of Friendship and Cooperation between Spain and Equatorial Guinea80 was signed in Madrid on 23 October 1980. It creates a Mixed Committee whose task is to decide the annual priorities on cooperation according to Articles 4, 5 and 9. The treaty was completed by several complementary agreements, most of them adopted in 1979 and 1980, which established an array of cooperative tools in several matters.81 Previously, Spain and Equatorial Guinea had signed some other agreements on general cooperation: the Convention on Cultural Cooperation of 12 October 1969, the Convention on Technical Cooperation of 12 October 1969, the Consular Convention between the two States of 24 July 1971, and the Convention on Air Transport of 24 July 1971. These conventions will be analyzed in connection with the relevant areas of cooperation in the following paragraphs.82 2. Particular Areas of Cooperation a) Economic and Financial Relations Economic and financial relations between the two countries have been mainly based on a general system of cooperation for Equatorial Guinea’s development through a credit system funded by Spain. Also, initially, some regular and/or particular agreements of financial assistance to the former by the latter

companies. The Mbañé Island incident could be read as part of this “dirty business.” See Ruiz Miguel (note 72). 80 B.O.E. of 27 July 1981, 24 April 1982 (in force since 14 April 1982). This Treaty was accompanied by two additional agreements through an exchange of notes of 23 October 1980 regarding some previous obligations accepted by Spain. In theory, this Treaty ended the application of the previous Convention, 12 October 1968, B.O.E. of 28 February 1968, which had been in force for the interim period after the independence of Equatorial Guinea, and of a secret protocol of the same date. 81 See infra. 82 On these conventions, see also Juan Aznar Sánchez, Los acuerdos internacionales entre España y Guinea Ecuatorial, a partir de su independencia, REDI, vol. 28, 1975, 57.

Spain and Its Former African Territories

287

were signed.83 Hence, several agreements were initially adopted starting with Equa-torial Guinea’s independence: the Agreements on Economic Cooperation of 19 May 196984 and of 24 July 1971;85 as well as the Agreements on Commercial Assistance and Payments of 19 May 1969,86 24 July 197187 and 12 May 1973.88 Once the Treaty of Friendship and Cooperation of 1980 was drafted and signed, two more Agreements on Financial Assistance were adopted on 5 December 197989 and on 12 October 1980,90 along with a Protocol on Complementary Spanish Measures to Help the Liberalization of the Guinean Economy of 18 June 1980.91 Economic and financial funds from Spain were henceforth provided on an ad hoc basis and channeled through Spanish and since 1986 through EU cooperation to development programs.92 Recently, as a renewal of their economic relations, the Agreement on the Reciprocal Promotion and Protection of Investments was adopted on 22 November 2003. It foresees a general framework to promote investments (Article 2) and their protection (Article 3), supplemented by the inclusion of the most favored clause (Article 4) and the ban of nationalization or expropriation (Article 5).

83

Several agreements were adopted after Equatorial Guinea’s independence: the Agreements on Economic Cooperation of 19 May 1969 (B.O.E. of 1 August 1969) and 24 July 1971 (B.O.E. of 21 December 1971); the Agreements on Commercial Assistance and Payments of 19 May 1969 (B.O.E. of 6 August 1969), 24 July 1971 (B.O.E. of 25 December 1971), and 12 May 1973 (B.O.E. of 19 December 1973); as well as the Agreements on Financial Assistance of 5 December 1979 (B.O.E. of 18 November 1980) and 12 Oct 1980 (B.O.E. of 24 April 1982). 84 B.O.E. of 1 August 1969. 85 B.O.E. of 21 December 1971. 86 B.O.E. of 6 August 1969. 87 B.O.E. of 25 December 1971. 88 B.O.E. of 19 December 1973. 89 B.O.E. of 18 November 1980. 90 B.O.E. of 24 April 1982. 91 B.O.E. of 24 April 1982. 92 After the Lomé Conventions system expired on 26 February 2000, this is now achieved through the Cotonou Agreement: Partnership Agreement between the members of the African, Caribbean and Pacific Group of States (ACP) and the European Community and its Member States, 23 June 2000, O.J. 2000 L 317 (in force since 1 April 2003). Equatorial Guinea is included among the least-developed ACP States as listed in Annex 6 of the Cotonou Agreement.

288

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

b) Education, Cultural, Scientific and Technical Cooperation93 The general layout of cultural cooperation between the two countries is established by the Convention on Cultural Cooperation of 12 October 1969.94 However, the main cooperation framework was set up on 17 October 1980 by a Complementary Agreement on Education95 to the 1980 Treaty of Friendship and Cooperation. This Complementary Agreement generally opens the Spanish educational system to Equatorial Guinea’s citizens (Article 1), it establishes a scholarship system for these citizens (Article 2), and it creates a program of researcher and professor mobility and of exchange of materials between both countries (Articles 3 and 4). Under Article 8, each country recognizes the official education titles of the other and consequently the agreement also foresees the possibility of exercising professional activities legally permitted by those official academic titles (Article 9).96 Both countries also signed another agreement on educational matters: the Agreement among Spain, Equatorial Guinea and the Ibero-American Agency of Education (Oficina de Educación Iberoamericana) regarding the Installation of a Permanent Educational System by Radio for Adults in Equatorial Guinea of 12 August 1982.97 Several agreements were concluded on technical cooperation before and after the 1980 Treaty of Friendship and Cooperation. The Basic Convention of Scientific and Technical Cooperation on the Statute of Experts in Technical Cooperation, accompanied by an Annexed Protocol, was signed on 5 December 1979.98 It was followed by an Addendum to this Protocol, signed on 16 June 1982.99

93

ters. 94

See, infra, Section B.II.2.c. regarding cooperation on training on agricultural mat-

Provisionally applied since the date of its signature, this Convention has never formally entered into force and has not been officially published in the B.O.E. for this reason (although it has been published for its provisional application). 95 B.O.E. of 14 October 1981 (in force since 14 April 1982). 96 As in other complementary agreements to the 1980 Treaty of Friendship and Cooperation, this Agreement also creates a Mixed Committee to foster and verify the application of the reciprocal obligations (Art. 11). 97 B.O.E. of 23 August 1982. 98 B.O.E. of 20 March 1980. 99 B.O.E. of 26 August 1982.

Spain and Its Former African Territories

289

c) Agriculture and Fisheries Along with some other agreements on the training of technical experts on agricultural matters,100 the Agreement on Technical Cooperation in Agriculture101 was signed on 17 October 1980 (again as a Complementary Agreement to the 1980 Treaty of Friendship and Cooperation). This Agreement fosters the assistance by Spanish experts to agricultural development in Equatorial Guinea, both through Spanish presence in its former province, and through the training of Guinean persons in academic and scientific institutions in Spain (Article 2). The Agreement foresees further cooperative tools between both signatories, essentially through continuous help through Spanish expertise in the planning and evaluation of agriculture, cattle and forest exploitation, including the surveillance and control of plagues, animal diseases and other minor natural disasters related to agriculture. Fisheries cooperation is regulated by the Convention on Cooperation on Maritime Fisheries of 31 October 1979,102 which establishes a regime quite similar to those established in the rest of the complementary agreements. Under the Convention, Spain will help in the development of Equatorial Guinea’s fishery industry, cooperate in the training and expertise of Guinean personnel on fisheries techniques and grant Equatorial Guinea some financial credits and funds for cooperation; in return, Spanish boats have the right to fish in Equatorial Guinea’s waters under a license agreement for each vessel and under the rules annexed to the Convention. The countries set up a mixed commission to manage the cooperation system. d) Labor and Social Matters Again as a Complementary Agreement to the 1980 Treaty of Friendship and Cooperation, the Agreement on Technical Cooperation for the Development of a Program of Social and Labor Matters and Employment in Equatorial Guinea

100

Particularly, the Agreement on Technical Cooperation on Agricultural Training, 31 October 1979, B.O.E. of 18 February 1981. 101 B.O.E. of 24 April 1982 (in force since 14 April 1982). 102 B.O.E. of 13 March 1980 (provisionally applied since 31 October 1979).

290

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

was signed on 17 October 1980.103 The main purpose of this Agreement is to oblige Spain to send labor and social matters experts to Equatorial Guinea in order to advise authorities on professional training, employment, legislative and management tasks on social security, etc. (Articles 1 and 5). Spain further agrees to fund 30 scholarships for Guinean persons to be trained in Spain, and to give Equatorial Guinea publications and other didactic material on social and labor matters (Article 1 in fine). e) Communications Two main agreements dominate the basic air and maritime transport between Spain and Equatorial Guinea: the Convention on Air Transport of 24 July 1971,104 and the Agreement on Maritime Transport of 5 December 1979.105 With the former, both countries agreed to apply between them the general principles laid down by the 1944 Chicago Convention.106 With the latter, both States try to facilitate in a general way maritime transport between both parties, giving to each other the most favorable treatment in some cases (Article 5). Along with these two general agreements, Spain and Equatorial Guinea have also concluded some other arrangements, in particular the Agreement on Technical Cooperation in Television of 24 July 1971107 and the Convention for the

103

B.O.E. of 8 January 1981 (provisional application) and of 13 August 1981. This Agreement was modified by an Exchange of Notes, 22 May and 25 September 1986, B.O.E. of 8 and 21 November 1986 and of 5 April 1988. 104 B.O.E. of 27 December 1971 (in force since 23 October 1971). This Convention was completed by a Protocol on Technical Assistance, 5 December 1979, B.O.E of 19 March 1981 and of 6 April 1981 (in force since 14 April 1982). According to this Protocol, Spain and Equatorial Guinea create a mixed company with equal participation of a Spanish specialized enterprise and the Guinean Government and with financial aid and expertise from the Spanish Government (Art. 1). Spain further agrees to help Equatorial Guinea with the planning, construction and maintenance of an air system based on Guinea’s territory (Art. 4) although the costs of the services should be progressively shared by both Governments. Technical assistance is also initially provided by Spanish experts. 105 B.O.E. of 30 May 1980 (in force since 20 February 1980). 106 Convention on International Civil Aviation, 7 December 1944, UNTS, vol. 15, 295. 107 B.O.E. of 27 December 1971.

Spain and Its Former African Territories

291

Manufacture of Postal Stamps of the Republic of Equatorial Guinea of 9 February 1980.108 f) Defense The only agreement concluded was the Protocol on Technical Assistance on Security and Defense Matters of 17 October 1980,109 again as a complement to the 1980 Treaty of Friendship and Cooperation. It essentially states that Spain must send military experts, as determined by a newly created Mixed Committee, to cooperate in the establishment of the Guinean army’s headquarters and staff, and to help in the training of army troops and police forces (Article 1). Spain also offers some scholarships and grants to facilitate their access to military and police academies in Spain (Article 2). g) Other Matters Finally, two main agreements have been adopted regarding the exploration and exploitation of mineral resources, both of 31 October 1979: the Protocol on Cooperation Regarding Hydrocarbons;110 and the Complementary Agreement on Technical Assistance in Geographic Sciences.111 According to the first agreement, Spain, through what was once a 100 % public company – Hispanoil – is to assist the Guinean Government in enacting legislation to begin the exploitation of oil resources within one year (Article 1). In the meantime, Hispanoil is to assist the Guinean Government in the exploration of territorial waters and of the continental shelf of Equatorial Guinea. The data acquired shall be analyzed by a mixed group consisting of members of both countries (Article 2). Hispanoil shall also have preferential rights of exploration (Article 4).112

108

B.O.E. of 24 April 1982 (in force since 9 February 1980). B.O.E. of 24 April 1982 (in force since 14 April 1982). 110 B.O.E. of 24 April 1982 (in force since 31 October 1979). 111 B.O.E. of 18 November 1980 (in force since 31 October 1979). 112 It should be said that these initial efforts on oil exploration and exploitation were a minimal expression of current oil related activities underway in Equatorial Guinea. It was only at the end of the nineties, when Mobil Oil began to exploit the Zafiro Plant, that potential Guinean oil production was assessed. Now, with other companies 109

292

Mariano J. Aznar-Gómez and Juan M. Ortega Terol

The second agreement attempts to remedy the obsolete and outdated cartography of Equatorial Guinea: The countries agree that the Spanish National Institute of Geography shall draw a completely new map of the entire Guinean territory (Article 1). Guinean personnel trained by Spanish authorities (Articles 2 and 3) shall participate in this effort. D. Some Conclusions The legacy of colonial rule is the reason why relations between Spain, on the one hand, and Morocco and Equatorial Guinea, on the other hand, are sometimes tense. We could ask ourselves to what extent those frictions are caused only by internal politics factors, taking into account the authoritarian regimes ruling in the former Spanish colonies and the way in which the ‘enemy from outside’ is employed in such political environments. The Spanish people are well aware of such manipulative instruments. Nonetheless, relations with Morocco and Equatorial Guinea are essential to Spain because of historical, cultural and social links. There are many bonds between Spanish and Moroccan or Guinean citizens that are not influenced by those controversies. But also for democratic governments in Spain, it is of utmost importance to maintain friendly ties with both countries. As an example, it is common knowledge that one of the first visits made by a newly-elected government will be to Morocco, and the personal relationship between the Spanish and the Moroccan Crowns is well known. The geographical proximity and the new challenges in these relations – such as migration, security or development – suggest that cooperation must be further strengthened. The vast number of agreements, as well as their extended fields of cooperation, highlight an environment of friendly relations that overrides mutual differences. Spain can be considered a bridge to Europe, not only for migration purposes. And Morocco and Equatorial Guinea are perfect gangways to build a friendly environment and to promote development in Africa: an obvious interdependence, to use the term included in the Preamble of the Agreement of Association between the European Communities and their Member States and Morocco. acting there (Exxon, Chevron Texaco, Shell, Elf Total Fina and Repsol, among others), Equatorial Guinea’s oil production is 200,000 barrels per day.

GENERAL ARTICLES

International Humanitarian Law in the Iraq Conflict By Knut Dörmann and Laurent Colassis* The armed hostilities in Iraq throughout the last almost two years have raised numerous questions from the perspective of international humanitarian law (IHL) or, as it is also sometimes called, the law of armed conflict. This article aims at addressing some of them. The focus will be on identifying the applicable law throughout the various stages of the hostilities and various problems that entail its practical application. It is not the aim of the authors to identify and attribute specific violations that may have been committed by the parties to the conflict. All issues pertaining to ius ad bellum, i.e. related to the lawfulness of the use of force, are not subject of this article. Given the fact that there is often some confusion as to the relationship between the ius ad bellum and IHL (ius in bello), it should be stressed at the outset that IHL applies equally to all parties to an armed conflict, and that this is independent of whether the use of force has been lawful or not under the ius ad bellum.1

*

Dr. Knut Dörmann is Deputy Head of the Legal Division of the International Committee of the Red Cross (ICRC), Geneva; Laurent Colassis is Head of Unit of the Legal Advisers to the Operations, Legal Division of the ICRC, Geneva. The article reflects the views of the authors and not necessarily those of the ICRC. 1 See Yoram Dinstein, Jus in Bello Issues Arising in the Hostilities in Iraq in 2003, Israel Yearbook on Human Rights (Isr. Y.B. Hum. Rts.), vol. 33, 2003, 2; Wolff Heintschel von Heinegg, Irak-Krieg und ius in bello, Archiv des Völkerrechts, vol. 41, 2003, 274 et seq.

294

Knut Dörmann and Laurent Colassis

A. The Law Applicable to the Conflict in Iraq IHL only applies in situations of armed conflict. Treaty law has traditionally distinguished between international armed conflicts, including situations of military occupation, and non-international armed conflicts, the former being regulated in far more detail than the latter as can be seen in the core IHL treaties, i.e. the 1949 Geneva Conventions2 and its two 1977 Additional Protocols.3 The last years have however shown a growing tendency to regulate international and non-international armed conflicts in the same way in treaty law,4 and customary international law has developed in a way as to apply the same rules to a large extent in both types of situations.5 However, there are still important differences 2

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, UNTS, vol. 75, 31; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, UNTS, vol. 75, 85; Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS, vol. 75, 135 (Third Geneva Convention or GC III); Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 287 (Fourth Geneva Convention or GC IV). 3 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, vol. 1125, 3 (Additional Protocol I or AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, UNTS, vol. 1125, 609 (AP II). 4 E.g. the Protocols to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW), 10 October 1980, UNTS, vol. 1342, 137 (Protocol on Non-Detectable Fragments (Protocol I), UNTS, vol. 1342, 168; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II), UNTS, vol. 1342, 168, as amended on 3 May 1996, UN Doc. CCW/ CONF.I/16 (Part I), Annex B; Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), UNTS, vol. 1342, 171; Protocol on Blinding Laser Weapons (Protocol IV), 13 October 1995, UN Doc. CCW/CONF.I/16 (Part I), Annex A; Protocol on Explosive Remnants of War (Protocol V), 28 November 2003, UN Doc. CCW/MSP/2003/3, Appendix II), in connection with the Amendment to the Convention’s Art. 1 on 21 December 2001, UN Doc. CCW/CONF.II/2. 5 Jean-Marie Henckaerts, Binding Armed Groups Through Humanitarian Treaty Law and Customary Law, in: Relevance of International Humanitarian Law to NonState Actors, Proceedings of the Bruges Colloquium, 2002, 132, available at: http:// www.coleurop.be/content/publications/pdf/Collegium27.pdf; Jean-Marie Henckaerts, The Conduct of Hostilities: Target Selection, Proportionality, and Precautionary Measures under International Humanitarian Law, in: Netherlands Red Cross (ed.), Protecting Civilians in 21st Century Warfare – Target Selection, Proportionality and Precautionary

International Humanitarian Law in the Iraq Conflict

295

between the two situations concerning the applicable law. To give just a few examples, the concept of combatant status, which entails inter alia the privilege of exclusion from criminal prosecution for lawful acts of war, and prisoner of war status only exist in international armed conflicts. The law of occupation also is unique to international armed conflicts. Based on this reality it is important to qualify the situation in Iraq as it has developed throughout the last almost two years.6 I. Beginning of the Air Attacks on 20 March 2003

The air strikes by the US and UK-led coalition that started on 20 March 2003 clearly constituted an international armed conflict between the coalition States and Iraq. An international armed conflict is generally defined as “any difference arising between two States and leading to the intervention of members of the armed forces”7 or, as the International Criminal Tribunal for the former Yugoslavia (ICTY) has put it, as a situation where “there is a resort to armed force between States.”8 As for the core of existing IHL, the four Geneva Conventions of 1949 were applicable to this conflict, but not Additional Protocol I, to which neither the US nor Iraq are State Parties. While the Geneva Conventions focus almost entirely on the protection of persons in the hands of the enemy, Additional Protocol I in particular contains detailed rules on the conduct of hostilities, including air-to-ground operations. Consequently the air strikes, which were the predominant feature in the beginning of the military operations, were essentially subject to the rules of customary international law. However these rules of cus-

Measures in Law and Practice, Speeches and Proceedings of the Red Cross Symposium, 2000, 11–12. 6 While not of interest for this article, it should not be forgotten that the repeated US and UK air strikes since September 1996, after three years of interruption, in the air exclusion zone of southern Iraq constituted an international armed conflict and were thus subject to the rules of IHL. 7 Jean S. Pictet (ed.), Commentary: Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1958, 20 et seq. 8 ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70, reprinted in: ILM, vol. 25, 1996, 35.

296

Knut Dörmann and Laurent Colassis

tomary international law now correspond largely to those of Additional Protocol I. These include: – the principle of distinction9 and the fundamental rules derived from it, such as – the prohibition of direct attacks at civilians or civilian objects;10 – the prohibition of indiscriminate attacks,11 including those that may be expected to cause excessive incidental civilian casualties or damages (principle of proportionality);12 – the prohibition to attack objects indispensable for the survival of the civilian population;13 – the prohibition to attack cultural property;14 – the obligation to take precautions in attacks;15 – the obligation to take precautions against attacks;16 – the prohibition of the use of human shields.17 In addition, the rules contained in the 1907 Hague Regulations,18 which are considered as reflecting customary international law,19 have also been of primary importance to the international armed conflict in Iraq. 9

Art. 48 AP I. Arts. 51 para. 2, 52 para. 1 AP I. 11 Art. 51 para. 4 AP I. 12 Art. 51 para. 5 AP I. 13 Art. 54 AP I. 14 Art. 53 AP I; Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, UNTS, vol. 249, 240, Art. 4. 15 Art. 57 AP I. 16 Art. 58 AP I. 17 Art. 51 para. 7 AP I. 18 Regulations Annexed to the IV Hague Convention of 1907 Concerning the Law and Customs of War on Land, 18 October 1907, reprinted in: Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and 1907, 1915, 100. 19 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para. 89; International Military Tribunal at Nuremberg, Case of the Major War Criminals, Judgment of 1 October 1946, Official Documents, vol. I, 253–254. 10

International Humanitarian Law in the Iraq Conflict

297

II. Control over Iraqi Territory

With the deployment of allied ground forces to Iraq, their gaining of control over territory and the subsequent establishment of the Coalition Provisional Authority (CPA), the question arose if and when the situation constituted a military occupation. Despite the fact that the law of occupation is quite well developed – the main sources of the law of occupation are to be found in the 1907 Hague Regulations and in the Fourth Geneva Convention of 1949, as supplemented by the 1977 Additional Protocol I – there has always been legal dispute about specific aspects. Some of these will be addressed in the ensuing sections. 1. What Factual Situations Amount to an Occupation? It is a not uncommon feature of armed conflicts that States which deploy armed forces in another country quite frequently deny the formal applicability of the law of occupation.20 Also in the case of Iraq, the US and UK initially spoke rather of ‘liberation’ of Iraq than of ‘occupation’ of Iraq. This begs the question what exactly constitutes a military occupation and when does it begin. A definition of occupation is provided in Article 42 of the 1907 Hague Regulations, which stipulates that [t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The idea that the occupant must be in a position to exercise authority is also inherent in a number of other provisions of the Hague Regulations such as Article 43, which starts by stating “The authority of the legitimate power having in fact passed into the hands of the occupant […].” Many national military manuals have adopted the Hague definition.21 20

This seems to be the consequence of negative connotations the term often has, see Adam Roberts, The End of Occupation in Iraq, available at: http://www.ihlresearch.org/ iraq/feature.php?a=51. David J. Scheffer claims that a reason could be a “belief, whether justified or not justified, that the situation differs significantly from the typical case of occupation,” see David J. Scheffer, Beyond Occupation Law, American Journal of International Law (AJIL), vol. 97, 2003, 843. 21 E.g. Australia: Australian Defence Force, Law of Armed Conflict Commander’ s Guide, 1994, para. 1202; Canada: Office of the Judge Advocate General, Laws of

298

Knut Dörmann and Laurent Colassis

Despite the fact that the Fourth Geneva Convention of 1949 contains a large number of rules applicable in situations of occupation, it does not include a definition of occupation. However, the four Conventions contain an important clarification in common Article 2 para. 2. This stresses that the Conventions apply to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the occupation meets with no armed resistance.” This clarification indicates that occupation is not limited to situations where a belligerent gains control over the adversary’s territory as a consequence of armed hostilities in the course of an armed conflict. Based on these provisions, there are three elements relevant for determining the existence of a military occupation: – an exercise of authority over the whole or part of the territory of another State – by a hostile force – regardless of whether this was met by armed opposition. The identification of a territory or part of it as ‘occupied’ is a factual matter based on these criteria. Thus, recognition of an occupation by the invading State or States is not constitutive, but merely declaratory.22 The second and third elements were rather unproblematic in the case of Iraq. The second element linked to the hostile nature of the foreign armed forces has created controversy in past practice when States procured themselves invitations to assist the host government and then took over essential leadership functions.23 In Iraq, however, when the coalition forces started their military operations and Armed Conflict at the Operational and Tactical Levels, 2001, para. 1203 (1); Germany: Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict, 1995, 241, para. 526; United Kingdom: UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, 275, para. 11.2 (UK Field Manual); United States: US, Department of the Army, The Law of Land Warfare – Field Manual FM 27-10, 1956, 138, para. 351 (US Field Manual). 22 Eyal Benvenisti, Water Conflicts During the Occupation of Iraq, AJIL, vol. 97, 2003, 861; Adam Roberts, What is Military Occupation?, British Yearbook of International Law, vol. 55, 1984, 256; Michael N. Schmitt, The Law of Belligerent Occupation, 15 April 2003, available at: http://www.crimesofwar.org/special/Iraq/news-iraq5.html. See also Gerhard von Glahn, The Occupation of Enemy Territory – Commentary on the Law and Practice of Belligerent Occupation, 1957, 28. 23 Michael Bothe, Occupation, Pacific, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (EPIL), vol. III, 1997, 767.

International Humanitarian Law in the Iraq Conflict

299

gained control over Iraqi territory, this happened without Iraqi consent, thus the coalition forces were clearly hostile forces in the sense of IHL. The first element – exercise of authority – clarifies first of all that occupation need not be a matter of controlling the whole of another State’s territory, but arises when authority is established over any portion of its territory.24 As to the concrete exercise of authority at least two different interpretations are conceivable. It could be read to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control over territory belonging to the enemy.25 As a consequence, for example advancing troops could be considered as occupying forces, and thus bound by the law of occupation, during the invasion phase of hostilities. This is the approach suggested by Jean Pictet in the ICRC Commentary to the Fourth Geneva Convention. In his view: So far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of the Article 42 [of the 1907 Hague Regulations]. The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the [fourth Geneva] Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory 24

19. 25

House of Commons, Iraq: Law of Occupation, Research Paper 03/51, 2 June 2003,

See, however, the interesting distinctions made by W. Hays Parks in the Questions and Answers on 7 April 2004, quoted by Benvenisti (note 22), 861, fn. 4: Q: Is it your judgment or is it the military’s judgement that the United States is now an occupying authority in those portions of Iraq where U.S. forces have moved through? […] Parks: The term ‘military occupation’ is one of those that’s very, very misunderstood. When you are an infantry company commander, and you’re told to take the hill, you physically occupy it. That’s military occupation with a smaller – lower-case ‘m’ and a lower-case ‘o.’ It certainly does not mean that you have taken over it with the intent to run the government in that area. That’s the very clear-cut distinction, that until the – usually, until the fighting has concluded and is very conclusive, do you reach the point where technically there might be Military Occupation – capital ‘M,’ capital ‘O’ – and a declaration of occupation is issued. That’s a factual determination; it’s a determination by a combatant commander in coordination with other, as well. Obviously, we occupy a great deal of Iraq at this time. But we are not, in the technical sense of the law of war, a military occupier or occupation force. Q: Until hostilities cease? Parks: That’s going to be a factual determination by the combatant commander in consultation with others.

300

Knut Dörmann and Laurent Colassis

without any intention of staying there must respect the Conventions in its dealings with the civilians it meets.26

An alternative and more restrictive approach would be to say that a situation of occupation only exists once a party to a conflict is in a position to exercise the level of authority over enemy territory necessary to enable it to discharge the obligations imposed by the law of occupation, i.e. by substituting its own authority for that of the government of the territory. Thus, the invasion phase would be excluded. This is an approach that is suggested in many military manuals.27 For example the new British Military Manual proposes a two-part test: First, that the former government has been rendered incapable of publicly exercising its authority in that area; and, secondly, that the occupying power is in a position to substitute its own authority for that of the former government.28

On the basis of this approach the rules on occupation would not cover the invasion phase and battle areas. Identifying the moment in which the rules of occupation start to apply is crucial as it determines which specific provisions of IHL regulate a situation. Once an occupation begins, in addition to some general provisions of IHL – for example, those contained in the chapter on “Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories,” Articles 27–34 of GC IV –, specific provisions relating to Occupied Territories29 must also be respected. Unlike the specific rules on occupation and on the treatment of aliens in enemy territory, the general provisions of Articles 27 to 34 do not address for example the possibility of internment of persons posing a security risk or the transfer or displacement of protected persons.

26

Pictet (note 7), 60 (emphasis added). US Field Manual (note 21), 138, paras. 352 lit. a, 355–356; UK Field Manual (note 21), 276, para. 11.3.2; Fleck (note 21), 241 et seq., paras. 526–528. See also Roberts (note 22), 256; Lassa F. L. Oppenheim/Hersch Lauterpacht (ed.), International Law – A Treatise, Vol. II (War). 7th ed. 1952, 434. 28 UK Field Manual (note 21), 275, para. 11.3. 29 Arts. 47–78 GC IV. 27

International Humanitarian Law in the Iraq Conflict

301

Interestingly, the US Field Manual 27-1030 and the old British Manual – The Law of War on Land31 – adopted in the 1950s stated that as a matter of policy the entire range of obligations attached to occupied territory should, as far as possible, apply during invasion phases. This may be an indicator that both identified a situation in which civilians may be affected by parties to a conflict or hostilities and where their consequent protection needs were not adequately addressed by law. Based on these protection needs, it seems to be a sensible approach to apply those provisions of the law of occupation which factually can be applied also in an invasion phase, to persons falling in the hands of a hostile party at that moment. 2. The Lawfulness of Occupation Is Not Regulated by IHL and Does Not Affect the Application of the Law of Occupation It is essential to bear another point in mind. As has been stressed in the beginning, for IHL in general, the lawfulness or unlawfulness of an occupation does not affect the application of this body of law. The lawfulness of a particular occupation is regulated by the UN Charter32 and other rules of ius ad bellum. Once a situation exists which factually amounts to an occupation, the law of occupation applies, regardless of its lawfulness. This was expressly recognized by an US Military Tribunal in the war crimes trials after the Second World War. In the case of List, the US Military Tribunal held that [i]nternational Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. […] Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.33

The motives for the foreign forces’ presence in the country and/or the intentions of the occupying power are also irrelevant for the application of IHL to the situation. 30

US Field Manual (note 21), 138, para. 132 lit. b. UK, The War Office, The Law of War on Land Being Part III of Manual of Military Law, 1958, 141, para. 501. 32 Charter of the United Nations, 26 June 1945, UNCIO, vol. 15, 335 (UN Charter). 33 US Military Tribunal, In re List and others, Annual Digest and Reports of Public International Law Cases, vol. 15, 1948, 632, 647. 31

302

Knut Dörmann and Laurent Colassis

In this respect it makes thus no difference whether an occupation has received Security Council approval, or whether it is a consequence of an exercise of selfdefense; or indeed whether it is labeled an “invasion,” “liberation,” “administration” or “occupation.”34 What matters are the facts on the ground. The application of the rules on military occupation is then not left to the discretion of the occupying powers. This is fully in line with the objectives of IHL, i.e. to protect in times of armed conflict without adverse distinction those not or no longer taking a direct part in hostilities, and to regulate permissible means and methods of warfare. It deals with humanitarian issues caused by armed conflict. Once there is armed conflict, IHL applies equally to all parties to an armed conflict regardless of the lawfulness of the resort to force. 3. Which States Are the Occupying Powers? Another question that arose during that period of the conflict was what States could be considered occupying powers in Iraq. Although this question had very important practical consequences, it did not generate much public debate. In addition to the US and the UK, a number of other States have or had troops on the ground in Iraq. Were they all occupying powers, with obligations under the Hague Regulations and the Fourth Geneva Convention? The position of the US and UK was clear. These two States had established the Coalition Provisional Authority which exercised powers of government temporarily in order to provide for the effective administration of Iraq.35 With the deployment of their ground forces, the US and the UK had established and were exercising authority over the territory of Iraq – even before the CPA was created.36

34

Benvenisti (note 22), 861. See also Dinstein (note 1), 12; Schmitt (note 22). CPA, Regulation 1 of 16 May 2003, Sect. 1 para 1. The letter from the Permanent Representatives of the UK and the US to the UN, addressed to the President of the Security Council, 8 May 2003, UN Doc. S/2003/538, contains similar terms. This letter is referred to in SC Res. 1483 of 22 May 2003. Although it is implicit from the responsibilities of the CPA outlined in the letter that the US and UK are occupying powers, the words “occupation,” “occupiers” or “occupying power” do not appear therein. 36 Roberts (note 20) sees the beginning of occupation in April 2003. See also Heintschel von Heinegg (note 1), 291. 35

International Humanitarian Law in the Iraq Conflict

303

In the preamble to Security Council Resolution 1483 of 22 May 2003, the Security Council also expressly recognized the specific authorities, responsibilities and obligations under applicable international law of these States [the UK and the US] as occupying powers under unified command (the “Authority”).

The position of other members of the Coalition that had provided troops was more complicated. To the author’s knowledge, none of the States claimed publicly that they were occupying powers.37 The preamble of the same Security Council Resolution notes that other States that are not occupying powers are working now or in the future may work under the Authority.

While this could be interpreted as excluding other States as occupying powers, operative paragraph 5 of the resolution, which is the first provision in Resolution 1483 to specifically refer to the law of occupation, [c]alls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.

This reference to “all concerned”(empasis added) is wider than the language of other provisions in the resolution, which are addressed only to the Authority. This could indicate that in the Security Council’s view not just the US and the UK could be occupying powers.38 The reference in the preamble to “other States that are not occupying powers” working now or in the future under the Authority could just be referring to States which provide support to the Coalition Provisional Authority, but whose engagement does not amount to exercising authority over any part of the territory of Iraq. When assessing which States should be considered occupying powers, the ICRC considered the following:39 The language of Security Council Resolu37

Scheffer (note 20), 844; see also Roberts (note 20), who attributes this to the perceived “odium that comes with being labeled an occupier” and to “domestic political reasons.” 38 See also Scheffer (note 20), 844: “This strongly suggests that the observance of occupation law for any state deploying military forces on Iraqi territory can be independent of whether that state is designated as an occupying power.” 39 See remarks by Jean-Philippe Lavoyer, Jus in bello: Occupation Law and the War in Iraq, Proceedings of the American Society of International Law, vol. 98, 2004, 122.

304

Knut Dörmann and Laurent Colassis

tion 1483 was an indicator, but it was neither seen as conclusive nor as the only one. As always when “qualifying” a situation, the ICRC looked at the factual situation on the ground. What were the different contingents actually doing? The focus was only on States that had actually provided combat personnel, to the exclusion of those that had provided experts such as engineers or medical staff – even if military. Then, the ICRC examined whether the national contingents in question had been assigned responsibility for and were exercising effective control over a portion of Iraqi territory. The ICRC considered all such States as occupying powers. The fact that certain States had only been assigned very small sections of territory and had very few troops on the ground did not, in the ICRC’s view, make a difference. Within this territory, troops may be carrying out functions for which respect for the law of occupation could be relevant.40 Examples would include troops carrying out patrols, mobile checkpoints, or arrests and detention of persons protected by the law of occupation. (The title given to these troops by their own States – “peacekeeping” or “stabilizing” forces – did not affect the ICRC’s determination, which focused instead on the actual functions they were carrying out.) The ICRC approach was thus rather functional. While strictly speaking, the armed forces of some of these States were probably not exercising authority over territory within the meaning of Article 42 of the Hague Regulations, they could find themselves in a situation where they exercised control over protected persons and, in interacting with these persons, would have to respect the laws of occupation. Therefore, in order to maximize the protection of individuals, a memorandum was also issued to these States recalling their obligations under the law of occupation. To avoid any doubt, it must be stressed that if and whenever the armed forces of any State became involved in hostilities, they had to respect IHL regardless of whether they had been considered an occupying power or not.

40

See also Roberts (note 20): “Since any such contributors and their armed forces are still clearly urged to comply with the relevant Hague and Geneva rules, it is hard to see what practical problems might arise from the curious status of participating in an occupation but not being an occupying power.”

International Humanitarian Law in the Iraq Conflict

305

4. The “Rights” and Duties of Occupying Powers This article is not the place to go into the details of the “rights”41 and duties of occupying powers. As has been said those are clearly laid out in the 1907 Hague Regulations and in the Fourth Geneva Convention of 1949, as supplemented by the 1977 Additional Protocol I. In essence, they stress that the occupying power must not exercise authority in order to further its own interests, or to meet the interests of its own population. In no case may it exploit the inhabitants, the resources or other assets of the territory under its control for the benefit of its own territory or population. Any military occupation is considered temporary in nature;42 the sovereign title does not pass to the occupant43 and therefore the occupying powers essentially have to maintain the status quo.44 Thus, they should respect the existing laws and institutions and make changes only where necessary to uphold their duties under the law of occupation, to maintain public order and safety, to ensure an orderly government and to maintain their own security.45 In the case of Iraq, however, one of the aims of the coalition States was to engage in a transformational process leading to a regime change, creating democratic institutions.46 Under its present form, the law of occupation precludes to a large extent such transformations. The law does, however, contain room for change in the following areas: Article 43 of the 1907 Hague Regulations, dealing with legislating powers of the occupant, states: 41

Michael Bothe asserts that international law does not grant rights to the occupying power, but limits the occupant’s exercise of its de facto powers, Michael Bothe, Occupation, Belligerent, in: Rudolf Bernhardt (ed.), EPIL, vol. III, 1997, 764. 42 House of Commons Research Paper (note 24), 18. 43 Benvenisti (note 22), 862. 44 Rüdiger Wolfrum, The Attack of September 11, 2001, the War Against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?, Max Planck Yearbook of United Nations Law, vol. 7, 2003, 56, available at: http://www.forum.mpg.de/archiv/20031022/docs/911.pdf. 45 This would also include the need to prepare for and take the necessary steps to prevent or control the widespread looting which has been witnessed in Iraq. See also Scheffer (note 20), 855; Wolfrum (note 44), 58. 46 For a more detailed analysis see Roberts (note 20), especially Sect. D. (The Transformative Purpose of the Occupation of Iraq).

306

Knut Dörmann and Laurent Colassis

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.47

Article 64 GC IV provides in the same context (emphasis added): The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. […] The Occupying Power may […] subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

These are examples that attribute to the occupant the power to legislate or bring about specific changes. Other exceptions are found in Articles 54 and 66 GC IV, to a certain extent also in Article 47 GC IV. An extensive debate as to what these provisions allow has been conducted elsewhere48 and is therefore not repeated here. It is worth asking whether occupation law should be changed to be more permissive. Some commentators are inclined to say yes, when the law of occupation is perceived as being in conflict with certain applicable provisions of human rights and with certain policy considerations – e.g. overthrowing an oppressive regime – which may be claimed to be in the interest of the international community more generally.49 However, a change of the law of occupation should not be 47

Emphasis added. “Public safety” is the non-authoritative translation of the authoritative French term “la vie publique,” which is much broader, Marco Sassòli, Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century, Background Paper Prepared for Informal High-Level Expert Meeting on Current Challenges to International Humanitarian Law, June 25–27, 2004, Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR), 3–4, available at: http://www. ihlresearch.org/ihl/pdfs/sassoli.pdf. 48 Sassòli (note 47); Yoram Dinstein, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, HPCR Occasional Paper Series No. 1, 2004, available at: http://www.hsph.harvard.edu/hpcr/OccasionalPaper1.pdf; Wolfrum (note 44), 59. 49 E.g. Wolfrum (note 44), 56; Roberts (note 20); Scheffer (note 20), 849; Robert Kolb, Étude sur l’occupation et sur l’Article 47 de la IVème Convention de Genève du 12 août 1949 relative à la protection des personnes civiles en temps de guerre: le degré

International Humanitarian Law in the Iraq Conflict

307

suggested too lightly. One should not neglect the risks such change may entail. Opening the door too lightly could lead to abuse by aggressive armies.50 The idea of the law of occupation was to prevent the occupying power from modelling the governmental structure of that territory according to its own needs disregarding the cultural, religious or ethnic background of the society of the occupied territory. As has been pointed out rightly, an occupying power cannot, by its very nature, be considered a neutral entity acting only in the interest of the occupied territory and its society.51 This should be borne in mind when suggesting changes to the law. The most acceptable scenario would clearly be if the UN Security Council determined explicitly, in a resolution based on Chapter VII of the UN Charter, what kind of transformation should be possible. This would provide the necessary legitimacy for the subsequent steps and could override the rules of IHL based on Article 103 of the Charter.52 However, IHL rules of a ius cogens nature cannot be overridden. Interestingly, the New Statesman of 26 May 2003 quoted from advice that it attributed to the Attorney General, Lord Goldsmith, to Tony Blair that “in short, my view is that a further Security Council resolution is needed to authorise imposing reform and restructuring of Iraq and its Government.”53 III. The Situation after 28 June 2004 – End of Occupation?

As to the applicable law no major change occurred until 28 June 2004. After President George W. Bush declared the end of major combat operations on 1 May 2003, the law of international armed conflict continued to apply, including the law of occupation in its entirety. Taking into account the intensity of the d’intangibilité des droits en territoire occupé, African Yearbook of International Law, vol. 10, 2002, 299, 300, 308. 50 This is also recognized by Scheffer (note 20), 851. 51 Wolfrum (note 44), 65. 52 Scheffer (note 20), 850. This is based on the assumption made by the ICJ in Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States), Preliminary Objections, Judgment of 27 February 1998, ICJ Reports 1998, 9, that under Art. 103, not only the UN Charter but also binding UN Security Council resolutions prevail over any other international obligation, see Sassòli (note 47), 16. Sassòli also provides interesting limiting elements to Security Council action, id., 16–17. 53 House of Commons Research Paper (note 24), 19. See also Wolfrum (note 44), 59.

308

Knut Dörmann and Laurent Colassis

fighting after 1 May 2003, the threshold of Article 6 paras. 2 and 3 GC IV – “general close of military operations” – was not reached.54 The general close of military operations would have lead to an end of application of the Fourth Geneva Convention, with the exception of a number of provisions if occupation continues.55 Following a specific timetable agreed upon between the CPA and the Iraqi Governing Council in November 2003, later on accompanied by UN Security Council Resolution 1546 of 8 June 2004 on the political transition of Iraq, steps were taken for the establishment of a sovereign Iraqi government. On 28 June 2004 – two days earlier than foreseen in the UN Security Council Resolution – authority was formally transferred from the CPA to the newly established Iraqi Interim Government. The question thus arose as to the legal qualification of the situation after 28 June. This was very important for practical purposes as the answer determined the applicable law, for example with regard to persons deprived of their liberty. The normal way for an occupation to end is for the occupying power to withdraw from a territory or to be driven out of it.56 Occasional successes of resistance within occupied territories are, however, not sufficient to end an occupation.57 The law of occupation also continues to apply after the general close of military operations to the extent that an occupying power exercises the functions of government in a territory.58

54

Pictet (note 7), 62: “What should be understood by the words ‘general close of military operations?’ In the opinion of the Rapporteur of Committee III, the general close of military operations was ‘when the last shot has been fired.’ There are, however, a certain number of other factors to be taken into account. When the struggle takes place between two States the date of the close of hostilities is fairly easy to decide: it will depend either on an armistice, a capitulation or simply on ‘debellatio.’ On the other hand, when there are several States on one or both of the sides, the question is harder to settle. It must be agreed that in most cases the general close of military operations will be the final end of all fighting between all those concerned.” 55 See, however, Art. 3 lit. b AP I, which developed the temporal application of the law for situations of occupation. 56 Oppenheim/Lauterpacht (note 27), 436; Roberts (note 22), 257. 57 UK Field Manual (note 21), 277, para. 11.7.1. See also Roberts (note 20): “[T]he status of occupation has not been viewed as being negated by the existence of violent opposition, especially when that opposition has not had full control of a portion of the State’s territory.” 58 Art. 6 para. 3 GC IV; Art. 3 lit. b AP I; Roberts (note 22), 259.

International Humanitarian Law in the Iraq Conflict

309

In the case of Iraq, foreign troops remained in the territory. Does this mean that the law of occupation was still applicable? What was the impact of UN Security Council Resolution 1546 adopted on 8 June 2004? The continued presence of foreign troops per se does not necessarily mean that occupation continues. As has been pointed out by Adam Roberts, there are instances where an occupation is declared or widely presumed to have ended, despite the continued presence of occupant’s forces.59 This can happen, for example, if a treaty ending an occupation is accompanied by another one permitting the presence of foreign forces. He mentions in this regard the situations in Japan in 1952, East Germany in 1954 and West Germany in 1955. 1. Transfer of Effective Control to Another Authority and Consent for Continued Presence As of 30 June 2004 – in the words of Security Council Resolution 1546 – the assumption of full responsibility and authority for Iraq lies in the hands of the Interim Government of Iraq. The Coalition Provisional Authority ceases to exist. Thus a transfer of authority from the Coalition Provisional Authority to the Interim Government will take place. Not every transfer of authority to a local government and an ensuing consent to the presence of troops necessarily leads to an end of occupation. The devolution of governmental authority to a national government must be sufficiently effective. As pointed out in the new British Military Manual, if occupying powers operate indirectly through an existing or newly appointed indigenous government, the law relative to military occupation is likely to be applicable.60 The reason for this is evident. Situations must be avoided where the protections to be granted to persons and property under the law of occupation can be circumvented. The occupying power cannot discard its obligations by installing a puppet government or by pressuring an existing one to act on its behalf. In all these cases, the occupying power maintains de facto – albeit indirectly – full control over the territory. A similar rationale underlies in fact Article 47 GC IV, which states that [p]rotected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change in59 60

Roberts (note 22), 258. UK Field Manual (note 21), 276, para. 11.3.1.

310

Knut Dörmann and Laurent Colassis

troduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territory and the Occupying Power […].

The provision is intended to prevent local authorities, under pressure from the occupying power, from making concessions to the detriment of the inhabitants of the territory impairing their protections and rights.61 The validity of an agreement allowing the continued presence of troops by a new national government with the effect of ending occupation could depend on the government’s legitimacy, for example if the local people had elected that government in an exercise of their right to self-determination. As is well known, in practice the legitimacy of new governments is often controversial. Express international recognition of such legitimacy could offer clearer guidance. In the case of Iraq, the Security Council has endorsed the formation of the Interim Government – albeit limited in its competence.62 This is a recognition by the Members of the UN Security Council of its legitimacy to act for Iraq and its independence. To the knowledge of the authors, this approach was not challenged by other States later on and thus is at least tacitly accepted. As such the Interim Government can consent to the continued presence of the Multinational Forces and thereby bring occupation to an end – as stated in the Security Council Resolution and in the letter annexed to it, in which the Prime Minister of the Interim Government requested the coalition forces’ continued presence. The Multinational Forces would turn from a hostile force in the sense of the Hague Regulations into a friendly force. The arrangements in relation to decision-making power between the Interim Government and the Multinational Forces as described in the resolution seem to support this conclusion. This is shown not just by the abolition of the Coalition Provisional Authority but, in particular, by the fact that in operative paragraph 12, the Security Council decided that it would terminate the mandate for the Multinational Forces if requested by the Government of Iraq.

61

Hans-Peter Gasser, Protection of the Civilian Population, in: Fleck (note 21), 252, para. 541; Kolb (note 49), 299. 62 See SC Res. 1546 of 8 June 2004: “Endorses the formation of a sovereign Interim Government of Iraq […] which will assume full responsibility and authority […] for governing Iraq while refraining from taking any actions affecting Iraq’s destiny beyond the limited interim period until as elected Transitional Government of Iraq assumes office […].”

International Humanitarian Law in the Iraq Conflict

311

From a political point of view, it is difficult to argue otherwise in the face of a Security Council Resolution that clearly states the end of occupation.63 However, as advocated by Adam Roberts and others, it is the reality, and not the label, that counts. The formal proclamation of the end of occupation would be of limited importance.64 The test remains whether, despite any labeling in the Security Council Resolution, a territory or part of it is “actually placed under the authority of the hostile army” as required by Article 42 Hague Regulations. In this regard a decisive factor are the powers of the Iraqi Interim Government, such as whether it has political control over military operations of the Multinational Forces and whether it has the authority to overrule prior regulations of the Coalition Provisional Authority. It is obvious that the old occupying powers maintain a powerful military, economic and political presence. However, if the Iraqi authorities have the power to demand that the Multinational Forces leave and also have the power to overrule the legislation set up by the Coalition Provisional Authority, whether they exercise this power or not, the foreign army should not be considered hostile and can be seen as remaining in Iraq at the invitation of a fully sovereign government. It would then be difficult to continue to speak of an occupation. If the Iraqi authorities request the foreign troops to leave – a possibility foreseen in Security Council Resolution 1546 – and these do not comply with that request, or if the Iraqi government is not able to enact new legislation or overturn laws imposed during the occupation, then it cannot be considered as exercising effective authority and as fully sovereign. The facts on the ground would go then in the direction that the Multinational Forces are exercising actual authority over Iraq. This would be a clear sign that the law of occupation continues or has again started to apply.65

63

One could also argue, based on Art. 103 of the UN Charter, that a determination by the UN Security Council invoking Chapter VII would be binding. While this may have some merits, such a conclusion would be doubtful if it lead to ending obligations under the Fourth Geneva Convention which are of a ius cogens nature when factually there is still a situation of occupation. 64 Adam Roberts, The Day of Reckoning, The Guardian, 25 May 2004; Roberts (note 20). 65 See also Roberts (note 20).

312

Knut Dörmann and Laurent Colassis

2. Application of IHL Post 28 June 2004 In the face of continuing hostilities after 28 June 2004, the question arose as to which rules would apply to the new situation. The “commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including international humanitarian law,” as mentioned in the Security Council Resolution, was an indicator that the Security Council envisaged and accepted its continued application. Also in his letter Colin Powell stressed the commitment of the Multinational Forces “at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions.” Assuming that occupation ended because foreign troops are and remained in Iraq with the consent of the Interim Government, does this mean that the conflict remains an international armed conflict, or should it be re-qualified as a noninternational one? Given that the Multinational Forces were fighting with and in cooperation with Iraqi armed and security forces, reporting to the Interim Government, against armed opposition groups or armed actors, there were good reasons to requalify the conflict as an internationalized internal armed conflict regulated by common Article 3 GC and customary rules (applicable in non-international armed conflicts). The plain wording of common Article 2 to the four GCs, as confirmed by the ICTY case law, the ICRC commentary and legal literature precludes at first sight the existence of an international armed conflict. Common to these sources is the requirement of an armed conflict between at least two States. Given that the Members of the Security Council – without objection from other States since – have identified the Interim Government as representing Iraq, it can hardly be argued that an international armed conflict continues between the coalition forces and armed forces of the State of Iraq. It is also excluded to qualify the armed groups, against which the Multinational Forces are fighting together with the Iraqi armed and security forces, as armed forces of a government or an authority, which is not recognized, in the sense of Article 4 A para. 3 GC III. There are also views in the literature that the international element represented by the presence of the Multinational Forces is so marked that the more fully developed body of norms regulating international armed conflicts and occupations should remain applicable.66 66

E.g. Roberts (note 22), 278; Roberts (note 20).

International Humanitarian Law in the Iraq Conflict

313

The reference, in Colin Powell’s letter annexed to the Security Council Resolution, to the Geneva Conventions, and the announcement that persons would be interned where necessary for imperative reasons of security – a terminology used in instruments applicable in international armed conflicts only67 – could in fact indicate an understanding that the law of international armed conflict continues to apply. But what would this mean in practice? For example, could members of the armed groups that fight the Multinational Forces be eligible for prisoner of war status? And conversely could members of the Multinational Forces in the hands of the armed groups be considered prisoners of war, with the consequence that they may be legitimately detained until the end of the armed conflict? Taking into account the specific situation in Iraq, a more functional68 approach towards the law of occupation could also be defended. Such an approach would mean that whenever and in so far as the Multinational Forces are exercising authority over persons or property in Iraq and is carrying out certain functions instead of the Iraqi Interim Government in specific fields, such as ensuring public order, it would be bound to apply the rules on occupation relevant to these activities. In the authors’ view, if one agrees that the new Iraqi Interim Government could give valid consent to the presence of the Multinational Forces and the occupation thus ended on 28 June 2004, the most straightforward legal approach would be to re-qualify the conflict as one or possibly several69 internationalized internal armed conflicts regulated by common Article 3 GC and customary rules (applicable in non-international armed conflicts), since the international presence is on the government side against insurgents. Taking into account the rather rudimentary nature of treaty rules applicable in non-international armed conflicts, the substance of the law of occupation may in practical terms provide a more appropriate framework for activities such as fighting of insurgents and taking of prisoners if it goes beyond customary international law applicable to noninternational armed conflicts and applicable human rights standards.

67

Art. 78 GC IV. Kolb (note 49), 284. 69 It is quite likely that not all armed opposition groups fight for one sole party to the conflict but that there are several non-state parties to the conflict. It is also possible that armed violence in certain regions does not constitute an armed conflict since it is not attributable to a party to an armed conflict. 68

314

Knut Dörmann and Laurent Colassis

Under the circumstances in Iraq at the time of writing, the rules on occupation, such as the right of the local population to continue life as normally as possible, the right of the Multinational Forces to protect their security, the obligation to restore and maintain public order and civil life, and the standards and procedures allowing internment for security reasons to the extent compatible with applicable human rights law, seem to be well suited to serve at least as guidance or minimum standards. B. Some Selected Problems in the Application of IHL in Iraq I. Status of Persons in the Power of the Enemy – Before 28 June 2004

In an occupied territory such as Iraq between April 2003 and the end of June 2004, there are two main categories of persons deprived of liberty, which depend on the status granted to them under IHL.70 Persons deprived of liberty are either captured combatants entitled to prisoner of war status71 and protected by the Third Geneva Convention, or they are civilians interned or detained and protected by the Fourth Geneva Convention.72

70

Between March 2003 and December 2004, the ICRC visited and registered 13.611 persons held by coalition forces, of which 2.668 were still held by the Multinational Forces at the time of writing. These numbers do not represent the total number of persons held by the Multinational Forces but rather those registered by the ICRC. There are currently estimated to be more than 5.000 others held by the Multinational Forces who have not been visited by the ICRC, because the ICRC considered that the route used to access their location was not sufficiently safe. 71 There are, however, some exceptions, like Art. 46 AP I which foresees that combatants who engage in espionage do not have the right to the status of prisoner of war. Art. 46 AP I reflects customary international law and was adopted by consensus during the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict, 1974–1977, CDDH Official Records, vol. 6, 25 May 1977, CDDH/SR.39, 111. Spies will nevertheless be protected by the Fourth Geneva Convention, insofar as the nationality criteria set forth by Art. 4 of this Convention is fulfilled. 72 There are also some exceptions, as certain categories of persons who are not combatants are granted prisoner of war status; this is the case, for instance, concerning war correspondents as provided in Art. 4 A para. 4 GC III.

International Humanitarian Law in the Iraq Conflict

315

1. Prisoners of War a) General Observations Prisoners of war are members of regular and irregular government armed forces73 or members of militias or other volunteer corps, including those of organized resistance movements, who are fighting for those government forces, without being formally incorporated in them. Those belonging to this second category (i.e. members of militias or other volunteer corps, including those of organized resistance movements) will only be granted prisoner of war status if they fulfill the following four conditions:74 1) that of being commanded by a person responsible for his subordinates;75 2) that of having a fixed distinctive sign recognizable at a distance;76 3) that of carrying arms openly;77 4) that of conducting their operations in compliance with international humanitarian law.

73 Except medical personnel and chaplains who are not combatants despite being members of the governmental armed forces but are, however, granted as a minimum the benefits and protection of prisoners of war when they are “retained;” see on this issue Arts. 4 C and 33 GC III as well as Art. 43 para. 2 AP I. 74 Art. 4 A para. 2 GC III. 75 “[T]he leader may be either civilian or military. He is responsible for action taken on his orders as well as for action which he was unable to prevent. His competence must be considered in the same way as that of a military commander. Respect for this rule is moreover in itself a guarantee of the discipline which must prevail in volunteer corps and should therefore provide reasonable assurance that the other conditions referred to below will be observed.” Jean S. Pictet (ed.), Commentary: Third Geneva Convention Relative to the Treatment of Prisoners of War, 1960, 59. 76 “‘[T]he distinctive sign should be recognizable by a person at a distance not too great to permit a uniform to be recognized.’ Such a sign need not necessarily be an arm-band. It may be a cap (although this may frequently be taken off and does not seem fully adequate), a coat, a shirt, an emblem or a coloured sign worn on the chest.” Id., 60. 77 “[T]here must be no confusion between carrying arms ‘openly’ and carrying them ‘visibly’ or ‘ostensibly.’ Surprise is a factor in any war situation, whether or not involving regular troops. This provision is intended to guarantee the loyalty of the fighting, it is not an attempt to prescribe that a hand-grenade or a revolver must be carried at belt or shoulder rather than in a pocket or under a coat.” Id., 61.

316

Knut Dörmann and Laurent Colassis

Whether these four criteria must also be met by a State’s regular armed forces has generated some controversy in literature.78 Contrary to textual logic – the conditions are only mentioned in Article 4 A para. 2 and not in Article 4 A paras. 1 and 3 GC III –, that assertion has occasionally been made.79 It is outside the scope of this article to address this controversy. b) Members of Organized Resistance Movements During the occupation of Iraq, various armed groups fighting against the coalition claimed they were resisting the occupying powers. The question arose whether the members of these armed groups could qualify as combatants, benefiting from prisoner of war status in case of capture, or whether they were directly participating in hostilities without being entitled to do so, and would therefore not be protected by the Third but by the Fourth Geneva Convention when falling into the hands of the coalition forces.80 It seems that the resistance in Iraq was mainly conducted by Iraqi civilians81 and not by remnants of the armed forces of the former regime. It seemed that the various units of the governmental armed forces disintegrated after the collapse of Saddam Hussein’s regime. To the knowledge of the authors, no member of the former armed forces claimed to continue the fight in the name of the former regime, albeit fighting clandestinely. It does appear, however, that after the collapse of the former regime, some members of its armed forces joined the resistance. After “‘leaving” the collapsed army of the former regime, they lost their combatant status as members of the regular armed forces and became civilians before joining one of the resistance movements. Members of “organized resistance movements” are entitled to prisoner of war status if they “belong to a Party to the conflict” and fulfill the additional cumula-

78

George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, AJIL, vol. 96, 2002, 895. 79 Id., fn. 17. See also Yoram Dinstein, Unlawful Combatancy, Isr. Y.B. Hum. Rts., vol. 32, 2002, 255. 80 See, infra, Sect. B. I. 3. 81 See Patrick Cockburn, When you have an occupation, you have resistance, Green Left Weekly, No. 610, 15 December 2004, available at: http://www.greenleft.org.au/ back/2004/610/610p16.htm.

International Humanitarian Law in the Iraq Conflict

317

tive criteria set forth in Article 4 A para. 2 GC III.82 At the outset, before considering whether these additional criteria are met, one would first have to examine how the term “organized resistance movements belonging to a party to the conflict” may be interpreted. aa) ‘Resistance Movement’ In Iraq, the resistance was clearly composed of various armed groups.83 There is no reason to exclude the possibility of several organized resistance movements fighting an occupying power which are not necessarily under a unified command or coordinated.84 However, only members of those groups who fulfill all the cumulative criteria laid down in Art. 4 A para. 2 GC III must be granted the status of prisoner of war in case of capture. It seems that most armed groups operating during the occupation of Iraq shared the common goal of ousting the occupying powers. The fact that the hostilities amounted to a concerted armed struggle against this occupation is an important factor differentiating such military operations governed by IHL from mere acts of civil unrest. bb) ‘Organized’ Armed Groups The requirement of being ‘organized’ means, inter alia, that the members of resistance movements must not only be isolated groups of individuals fighting under a commander, but must also form a military organization incorporating fighting units and having a chain of command, however rudimentary, and an

82

See, supra, Sect. B. I. 1. a). The main groups mentioned in the media are the Sunni fighters in the “Sunni Triangle” North and West of Baghdad and the Shia fighters of the Mehdi Army in the South, see Twelve U.S. Marines Killed in Worsening Iraq Violence, Reuters, 7 April 2004; U.S. Forces Renew Strikes in Falluja, Reuters, 28 April 2004; see also Patrick Cockburn, US Military Death Toll on Iraqi Soil Tops 1,000, The Independent, 8 September 2004. 84 According to the journalist Cockburn (note 81), “the resistance [in Iraq] has always been fragmented. […] There isn’t a national leadership, although there seems to be more contact between different groups.” 83

318

Knut Dörmann and Laurent Colassis

overall structure unifying the members of the movement.85 In spite of the massive preventive measures taken by the coalition, the armed groups operating in Iraq were obviously sufficiently coordinated, organized and equipped to successfully carry out regular armed attacks and thus to pose a permanent threat to the coalition forces and the civilian population. It can thus safely be assumed that most of these groups represented, each for themselves, organized paramilitary forces under responsible command and not just disorganized groups of individuals. cc) ‘Belonging to a Party to the Conflict’ The Commentary to the Third Geneva Convention in analyzing the term ‘belonging to a Party to the conflict’ provides that international law has advanced considerably concerning the manner in which this relationship shall be established. The drafters of earlier instruments were unanimous in including the requirement of express authorization by the sovereign, usually in writing, and this was still the case at the time of the Franco-German war of 1870–1871. Since the Hague Conferences, however, this condition is no longer considered essential. It is essential that there should be a de facto relationship between the resistance organization and the party to international law which is in a state of war, but the existence of this relationship is sufficient. It may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting. […] In our view, the stipulation that organized resistance movements and members of other militias and members of other volunteer corps which are independent of the regular armed forces must belong to a Party to the conflict, refutes the contention of certain authors who have commented on the Convention that this provision amounts to a ius insurrectionis for the inhabitants of an occupied territory.86

Most authors87 also consider that Article 4 A para. 2 GC III requires a link between a party to the conflict and a resistance movement.

85

Antonio Cassese, Resistance Movements, in: Rudolf Bernhardt (ed.), EPIL, vol. IV, 2000, 210; see also Pictet (note 75), 58. 86 Pictet (note 75), 57–58. 87 Roberta Arnold, Training With the Opposition: The Status of the ‘Free Iraqi Forces’ in the US War Against Saddam Hussein, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 63, 2003, 631, 634–635, with further references to Regina Buss, G.I.A.D. Draper and Theodore Meron.

International Humanitarian Law in the Iraq Conflict

319

On the same issue, the ICTY stated that [the] rationale behind Article 4 was that, in the wake of World War II, it was universally agreed that States should be legally responsible for the conduct of irregular forces they sponsor. As the Israeli military court sitting in Ramallah rightly stated in a decision of 13 April 1969 in Kassem et al.: ‘In view, however, of the experience of two World Wars, the nations of the world found it necessary to add the fundamental requirement of the total responsibility of Governments for the operations of irregular corps and thus ensure that there was someone to hold accountable if they did not act in accordance with the laws and customs of war.’ In other words, States have in practice accepted that belligerents may use paramilitary units and other irregulars in the conduct of hostilities only on the condition that those belligerents are prepared to take responsibility for any infringements committed by such forces. In order for irregulars to qualify as lawful combatants, it appears that international rules and State practice therefore require control over them by a Party to an international armed conflict and, by the same token, a relationship of dependence and allegiance of these irregulars visà-vis that Party to the conflict. These then may be regarded as the ingredients of the term ‘belonging to a Party to the conflict.’88

At the start of the conflict in Iraq, the “High Contracting Parties”89 to the Geneva Conventions, parties to the international armed conflict, were the coalition States on the one hand and the State of Iraq on the other. Bearing in mind that a State is normally represented by its government, the question arises whether, following the collapse of the former regime of Saddam Hussein, it is possible to envisage that armed resistance movements fighting “against the occupation” and “for Iraq” belong to a party to the conflict in terms of common Article 2 to the four GCs. In other words, how can the required link between armed resistance movements and a High Contracting Party be established when the government of this party no longer exists? The situations of organized resistance that the drafters of the Geneva Conventions had in mind usually refer to occupations where a force has lost effective control over territory but remains, to some degree, a viable entity, either by continuing organized resistance from the unoccupied parts of its territory or by establishing an exile presence and expressly or tacitly supporting armed resistance movements. The occupation of Iraq presented a case distinct from these cases of occupation, in the sense that there remained no representative of the former regime in Iraq or in exile.90 Therefore, even tacit agreement of the former 88

ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1-A, Judgment of 15 July 1999, paras. 93–94, available at: http://www.un.org/icty/tadic/appeal/judgement/. 89 Art. 2 para. 1 common to the four Geneva Conventions. 90 As there is no indication of such a situation in Iraq, this article does not address the question whether a resistance movement, fighting in favor of a representative of the for-

320

Knut Dörmann and Laurent Colassis

regime could not be expected and a restrictive interpretation of Article 4 A para. 2 GC III precludes the granting of prisoner of war status to captured members of resistance movements. This restrictive interpretation is in line with the jurisprudence of the ICTY,91 which requires that a government is held accountable for the operations of armed groups. It is also in accordance with the rationale of the other provisions of Article 4 A GC III dealing with similar cases, in particular paras. 3 and 6, which both require a link with a government. Indeed, these provisions implicitly demand that armed forces of a government or authority not recognized by the detaining power fight under the orders of a government or authority recognized by third States92 or that the population which resists the invading forces acts in the name of the authority commanding the inhabitants who have taken up arms, or the authority to which they profess allegiance.93 Under a broader interpretation of the term “belonging to a party to the conflict” it could be considered that, following the ousting and disappearance of a former regime, an organized resistance movement could act as de facto agent of the State and that such agent engages the responsibility of the State. Indeed, in the absence of a government, the question remains whether it would be advisable to recognize the possibility for a sufficiently organized and structured movement with a responsible command enabling the respect of international humanitarian law to fight in the name of the liberation of an occupied State. Moreover, no longer linking the fight against an occupant with the defence of a government but rather of an occupied State is not in contradiction with Article 9 of the International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, which provides that conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.94

The commentary of these draft articles stresses that

mer regime, who remains clandestinely in the occupied territory, could ‘belong to a Party to the conflict.’ 91 See, supra, note 88. 92 Pictet (note 75), 63. 93 Id., 67. 94 Draft Articles on Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 28 January 2002.

International Humanitarian Law in the Iraq Conflict

321

[Article] 9 deals with the exceptional case of conduct in the exercise of elements of the governmental authority by a person or group of persons acting in the absence of the official authorities and without any actual authority to do so. The exceptional nature of the circumstances envisaged in the article is indicated by the phrase ‘in circumstances such as to call for.’ Such cases occur only rarely, such as during revolution, armed conflict or foreign occupation, where the regular authorities dissolve, are disintegrating, have been suppressed or are for the time being inoperative.95

Thus, in the absence of a government, the criteria of ‘belonging to a Party to the conflict’ could be met through a sufficiently clear de facto link between the group on one hand and the State and the population on the other hand, suggesting that the group effectively represents the State or exercises the de facto authority of a State party to a conflict. Despite the weakness of this broad interpretation which seems to contradict the jurisprudence of the ICTY and the denial of ius insurrectionis for the inhabitants of an occupied territory, it is nevertheless the only way to provide, on occasion, the protection of the Third Geneva Convention to members of organized resistance movements when the former regime no longer exists. Such a broad interpretation is also shared by Levie when raising the issue of illegal organizations: [Despite] all, let us nevertheless be extremely liberal and endeavour to proceed on the assumption that each member, even of such an illegal body, is entitled upon capture to be treated as a prisoner of war, if that body fulfils the four basic conditions mentioned in the first article of the rules concerning the laws and customs of war on land, which form an annex to the Hague Convention of October 18, 1907.96

This solution also benefits members of the armed forces of the coalition in case they were to fall into the hands of resistance movements, as they would be in the power of de facto representatives of a party to the conflict and should therefore be granted the status of prisoners of war themselves. dd) Additional Requirements of Article 4 A Para. 2 GC III Furthermore, in view of the use of methods like suicide bombing and the deliberate policy of targeting civilians, armed resistance movements would almost 95

Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the Work of its FiftyThird Session, UN Doc. A/56/10 (2001), 109. 96 Howard S. Levie, Documents on Prisoners of War, International Law Studies, vol. 60, 1979, 778. The four special conditions laid down in the Hague Convention to which Levie refers are identical to those contained in subparas. (a) to (d) of Art. 4 A para. 2 GC III.

322

Knut Dörmann and Laurent Colassis

certainly have failed to meet at least one of the cumulative requirements of Article 4 A para. 2 lit. b (having a recognizable distinctive sign), lit. c (carrying their arms openly) and lit. d (respect for IHL). Members of resistance movements in occupied territories will rarely meet all the conditions required for entitlement of prisoner of war status, as in order to accomplish their mission they will wear no uniforms or distinctive signs, hide their weapons and withhold their identity prior to their strike.97 Various commentators have pointed out how difficult, if not impossible, it is for resistance movements to comply with the requirements of Article 4 A para. 2 GC III without departing form the guerrilla warfare to which they usually resort.98 This reality was considered during the negotiations of Additional Protocol I. As a consequence, Article 44 AP I, in particular para. 3, was negotiated which modifies to a certain extent the conditions of Article 4 A para. 2 GC III for States parties to Additional Protocol I. c) Determination of Status in Case of Doubt Should any doubt arise as to the status of a captured person who has taken part in the hostilities, the detaining power must set up a competent tribunal which will rule on whether the person in question is or is not a prisoner of war.99 This competent tribunal may be either a civilian or a military tribunal.100 Until the tribunal has given its ruling, the person deprived of his or her liberty must be treated as a prisoner of war. 2. Persons Protected by the Fourth Geneva Convention All persons deprived of liberty who do not meet the criteria for prisoners of war are protected by the Fourth Geneva Convention101 as detainees or internees, 97

Albert J. Esgain/Waldemar A. Solf, The 1949 Geneva Convention Relative to the Treatment of Prisoners of War, Its Principles, Innovations, and Deficiencies, North Carolina Law Review, vol. 41, 1963, 550. 98 Cassese (note 85), 210. 99 Art. 5 para. 2 GC III. 100 Pictet (note 75), 77. 101 Art. 4 GC IV.

International Humanitarian Law in the Iraq Conflict

323

with the exception of nationals of coalition countries held by the coalition (for example, United States or British citizens in the hands of the United States or the United Kingdom). The latter, however, benefit from the rules of existing customary international law as reflected in Article 3 common to the four GCs102 and Article 75 AP I,103 which lay down minimum guarantees. During the occupation of Iraq, Iraqi citizens and nationals of States which were neutral within the meaning of international humanitarian law, that is, States not participating directly in the war in Iraq104 were protected persons covered by the Fourth Geneva Convention.105 102

The ICJ recognized the customary nature of Art. 3 common to the four Geneva Conventions not only in non-international armed conflict but also in the event of international armed conflict: ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 114 (Nicaragua case). 103 On the customary nature of Art. 75 AP I, see Christopher Greenwood, International Law and the ‘War Against Terrorism’, International Affairs, vol. 78, 2002, 316; Aldrich (note 78), 893. 104 In general international law, neutrality entails the obligation to refrain from participating in the hostilities (a neutral State is prohibited from providing any of the belligerents with help, either directly or indirectly through individuals with its consent), and the obligation of impartiality (strictly equal treatment of all the belligerents). IHL, for its part, has adopted a broader definition whereby neutrality simply means “nonbelligerence.” Any State not taking part in an armed conflict is therefore neutral within the meaning of the GCs. Furthermore, today there is talk of “States which are not involved in the conflict,” but which nevertheless do not wish to be considered as fully neutral. That distinction, however, has little relevance for the application of IHL. See Hans-Peter Gasser, International Humanitarian Law: An Introduction, in: Hans Haug (ed.), Humanity for All: The International Red Cross and Red Crescent Movement, 1993, 25; Bruno Zimmermann, Commentary on Art. 2 of Protocol I, in: Yves Sandoz/ Christophe Swinarski/Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, 61. 105 “Paragraph 2 [of Art. 4 GC IV] also defines the position of nationals of neutral States; in occupied territory they are protected persons and the Convention is applicable to them; its application in this case does not depend on the existence or non-existence of normal diplomatic representation. In such a situation they may therefore be said to enjoy a dual status: their status as nationals of a neutral State, resulting from the relations maintained by their Government with the Government of the Occupying Power, and their status as protected persons. […] In occupied territory […] the diplomatic representatives of neutral States, even assuming that they remain there, are not accredited to the Occupying Power but only to the occupied Power. This makes it more difficult for them to make representations to the Occupying Power. In such cases diplomatic representations are usually made by the neutral State’s diplomatic representatives in the occupying State, and not by those in the occupied territory. It should moreover be noted that the Occupying Power is not bound by the treaties concerning the legal status of aliens

324

Knut Dörmann and Laurent Colassis

To sum up, it can therefore be said that every person deprived of liberty during the occupation of Iraq was either a prisoner of war protected by the Third Geneva Convention or a detainee or internee protected by the Fourth Geneva Convention, with the rare exception of nationals of coalition States held by the coalition forces. 3. ‘Unlawful Combatants’106 While not unique to the Iraq conflict, the issue of the legal situation of ‘unlawful combatants’ or rather ‘unprivileged belligerents’ did arise in this context. In international armed conflicts, the term ‘combatants’ denotes the right to participate directly in hostilities.107 As the Inter-American Commission has stated, “the combatant’s privilege […] is in essence a licence to kill or wound enemy combatants and destroy other enemy military objectives.”108 Consequently (lawful) combatants cannot be prosecuted for lawful acts of war in the course of military operations even if their behavior would constitute a serious crime in peacetime. They can be prosecuted only for violations of IHL, in particular for war crimes. Once captured, combatants are entitled to prisoner of war status and benefit from the protection of the Third Geneva Convention.109 Combatants are lawful military targets. Generally speaking, members of the armed forces (other than medical personnel and chaplains) are combatants. The conditions for combatant/ prisoner of war status can be derived from Article 4 GC III and from Articles 43 and 44 AP I, which developed the said Article 4 for States parties to the Additional Protocol I.110 which may exist. The existence of such situations, often of a complicated nature, gave rise to the idea of granting neutral nationals in occupied territory the status of protected persons within the meaning of the Convention.” Pictet (note 7), 48–49. 106 For a more detailed analysis, see Knut Dörmann, The Legal Situation of “Unlawful/Unprivileged Combatants”, International Review of the Red Cross (IRRC), No. 849, 2003, 45–74. 107 See Art. 43 para. 2 AP I. 108 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, 22 October 2002, OAS Doc. OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr., para. 68 (IACHR Report). 109 See, supra, note 71. 110 Art. 44 AP I sets the standard for parties to the Protocol. Its status under customary international law is more doubtful.

International Humanitarian Law in the Iraq Conflict

325

Whereas the terms ‘combatant,’ ‘prisoner of war’ and ‘civilian’ are generally used and defined in the treaties of IHL, the terms ‘unlawful combatant’ and ‘unprivileged combatant/belligerent’ do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear. The terms ‘unlawful combatant’ and ‘unprivileged belligerent’ describe all persons taking a direct part in hostilities without being entitled to do so and who therefore cannot be classified as prisoners of war when falling into the power of the enemy. This seems to be the most commonly shared understanding.111 It would include, for example, civilians taking a direct part in hostilities, as well as members of militias and of other volunteer corps – including those of organized resistance movements – not integrated in the regular armed forces but belonging to a party to the conflict, provided that they do not comply with the conditions of Article 4 A para. 2 of GC III. Taking into account the wording of Article 4 GC IV, which refers to all persons not covered by the Geneva Conventions I to III, they would be protected persons covered by the Fourth Geneva Convention whenever they are in the hands of the enemy.112 That protection is supplemented by the fundamental guarantees contained in Article 75 AP I,113 which essentially reflect existing customary international law. Those persons who do not fulfill the nationality criteria of Article 4114 would be protected by the fundamental guarantees contained in Article 75 AP I. Thus, any interpretation that ‘unlawful combatants’ or ‘unprivileged belligerents’ are outside the protection of IHL is unfounded. The fact that a person has unlawfully participated in hostilities is 111

See, for example, Aldrich (note 78), 892; IACHR Report (note 108), para. 69. Art. 5 GC IV allows for limited derogations under strict conditions. 113 Art. 75 AP I: “Fundamental guarantees 1. [… P]ersons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons. […].” 114 Art. 4 excludes from the scope of application of the Fourth Geneva Convention nationals of the detaining power and of co-belligerent States as well as of neutral States unless the latter are in occupied territory. For further detail see, supra, note 105. 112

326

Knut Dörmann and Laurent Colassis

neither a criterion for excluding the application of the Fourth Geneva Convention – though it may be a reason for derogating from certain rights in accordance with Article 5 thereof –, nor for excluding the fundamental guarantees contained in Article 75 AP I. While these rules concern ‘unlawful combatants’ in the hands of the enemy, a brief look at their situation under the rules on the conduct of hostilities is warranted as well. Under these rules only the civilian population and individual civilians enjoy general protection against dangers arising from military operations. They are protected against direct attacks, unless and during the time they take a direct part in hostilities. In accordance with Article 50 AP I, a civilian is any person who does not belong to “one of the categories of persons referred to in Article 4 A paras. 1, 2, 3 and 6 of the Third Convention and in Article 43 of this Protocol” (i.e. members of the armed forces). Thus for the purposes of the law on the conduct of hostilities, there is no gap: Either a person is a combatant or a civilian. Given that ‘unlawful combatants’ by definition do not fulfil the criteria of either Article 4 A paras. 1, 2, 3 and 6 of GC III or Article 43 of AP I, this means that they are civilians. For such time as they directly participate in hostilities, they are lawful targets of an attack.115 When they do not directly participate in hostilities, they are protected as civilians and may not be directly targeted. It must be stressed that the fact that civilians have at some time taken direct part in the hostilities does not make them lose their immunity from direct attacks once and for all.116 While the law is rather straightforward in this regard, the concrete interpretation is not fully clarified. There is considerable disagreement over which behavior would constitute direct participation and which would not. Controversy exists also on the temporal loss of immunity. Therefore, the ICRC decided in 2003 to start a process of clarification of that concept through both meetings of experts and independent research by the ICRC and selected experts. The two expert meetings held so far were co-organized with the TMC Asser Institute in The Hague. The primary aim of this process is to try to formulate guidelines for the 115

They only lose the immunity from direct attack to which civilians are entitled, but they do not become combatants. 116 See Art. 51 para. 3 AP I: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities” (emphasis added). Jean Pictet/Claude Pilloud, Commentary on Art. 51 of Protocol I, in: Sandoz/ Swinarski/Zimmermann (note 104), 619, para. 1944; Michael Bothe/Karl Josef Partsch/ Waldemar A. Solf, New Rules for Victims of Armed Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982, 301.

International Humanitarian Law in the Iraq Conflict

327

interpretation or even a generic definition of the notion of ‘direct participation in hostilities.’ As many participants expressed the opinion during the first meeting117 that further clarification of the notion of ‘direct participation’ would be facilitated by a discussion of concrete examples, the ICRC submitted a questionnaire to the participants for the second expert meeting in October 2004. The process of consultation will continue at least in 2005. II. Status of Persons in the Power of the Enemy – After 28 June 2004

As already mentioned,118 the legal situation in Iraq has changed since the handover of power from the Coalition Provisional Authority to the interim Iraqi Government on 28 June 2004. Therefore, the current hostilities between armed fighters, on the one hand, opposing the Multinational Forces and/or the Iraqi authorities, on the other, are no longer governed by the rules of IHL applicable in international armed conflicts, but by those applicable to non-international armed conflicts. This means that all parties, including the Multinational Forces, are bound by common Article 3 GC and by customary rules applicable to noninternational armed conflicts, and this also has legal consequences on the status of persons deprived of their liberty in connection with the continuing hostilities. 1. Persons Captured or Arrested before 28 June 2004 The change in the legal situation has the following implications for persons deprived of their liberty who have been captured during the occupation of Iraq. a) Persons Held by the Multinational Forces With the end of the international armed conflict, the Third and Fourth Geneva Conventions no longer provide a valid legal basis for continuing to hold, without

117

ICRC, Direct Participation in Hostilities under International Humanitarian Law, Meeting Report, available at: http://www.icrc.org/web/eng/siteeng0.nsf/iwpList575/ 459B0FF70176F4E5C1256DDE00572DAA. 118 See, supra, Sect. A. III. 2.

328

Knut Dörmann and Laurent Colassis

charge, persons captured before 28 June. Therefore, those persons currently interned by the Multinational Forces should be released119 unless they are charged and tried.120 Until the moment of their final release by the Multinational Forces, these persons deprived of liberty continue to benefit from the protection of the Third and Fourth Geneva Conventions.121 The detained civilians who have been accused of offences or convicted must be handed over by the Multinational Forces to the Iraqi authorities (Article 77 GC IV). Until this handover, they remain protected by the Fourth Geneva Convention.122 As armed conflicts are ongoing, it would not be realistic, however, to require that every person held by the Multinational Forces who does not face a penal proceeding should be released, as such a person might constitute a security threat to the Multinational Forces in the context of an ongoing non-international armed conflict in Iraq. The Multinational Forces, therefore, could continue to hold these persons for the same reason(s) that they currently arrest and intern or detain persons in connection with a non-international armed conflict. As the Third and Fourth Geneva Conventions no longer provide a legal basis for continuing to hold them,123 these persons should be placed within another legal framework that regulates their current internment or detention. Despite the provisions of Articles 5 para. 1 GC III and 6 para. 4 GC IV, a more appropriate approach would be to consider that these persons are now protected by common Article 3 to the four GCs, customary rules applicable to non-international armed conflicts, relevant rules of human rights law and Iraqi law, as their deprivation of liberty is no longer linked to the former international armed conflict but rather to one of the current non-international ones. The situation is the same as if these persons would have been released after the end of the international armed conflict and simultaneously re-arrested by the Multinational Forces, even if this sequence is more virtual than real, the detainees not recovering their liberty at any stage of this process.

119 120 121 122 123

Art. 118 para. 1 GC III and Art. 133 para. 1 GC IV. Art. 119 para. 5 GC III and Art. 133 para. 2 GC IV. Art. 5 para. 1 GC III and Art. 6 para. 4 GC IV. Art. 6 para. 4 GC IV. See supra.

International Humanitarian Law in the Iraq Conflict

329

b) Persons Held by the Iraqi Authorities Some of those captured by the coalition forces before 28 June 2004 have now been handed over to Iraqi authorities. This handover must not be perceived as a transfer in the sense of Articles 12 para. 2 GC III and 45 para. 3 GC IV,124 as these Articles deal with the transfer of a protected person from a detaining power to another State party to the GC and do not address the ‘repatriation’ of such a person to his State of origin. Once handed over to the Iraqi authorities, they are no longer protected by the Third or Fourth Geneva Convention.125 If the ensuing deprivation of liberty by Iraqi authorities is in connection with a non-international armed conflict, they are protected by common Article 3 of the four GCs, customary rules applicable to non-international armed conflicts, human rights treaties and relevant Iraqi law. If their deprivation of liberty by Iraqi authorities is unrelated to the continuing non-international armed conflicts, they are no longer protected by IHL but benefit nevertheless from the protection of Iraqi and human rights law. This handover can legally be interpreted as a release by the Multinational Forces followed by a “repatriation” (Articles 118 GC III and 133 GC IV) and a simultaneous re-arrest by the Iraqi authorities, once again even if this sequence is more virtual than real. 2. Persons Captured or Arrested after 28 June 2004 Persons captured or arrested after 28 June 2004 and held by Iraqi authorities or by the Multinational Forces in connection with one of the ongoing noninternational armed conflicts underway since then are protected by common Article 3 of the four GCs, customary rules applicable to non-international armed conflicts, relevant rules of human rights law and Iraqi law. Only those whose detention is not connected to an armed conflict are not protected by IHL. UN Security Council Resolution 1546 grants the Multinational Forces a mandate to “take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolu124 Art. 45 para. 3 GC IV would not be applicable de jure, but only by analogy, as this provision is laid down in Section II (of Part III of GC IV), which protects “aliens in the territory of a Party to the conflict.” 125 If, however, they were transferred to another State than Iraq, in the sense of Arts. 12 para. 2 GC III and 45 para. 3 GC IV, they would remain under the protection of these Conventions.

330

Knut Dörmann and Laurent Colassis

tion […].” Although the measure of ‘internment’ is not expressly mentioned in the Resolution itself, it is provided for in the letter signed by Colin Powell annexed to the Resolution. The latter states that the tasks of the Multinational Forces include “internment where this is necessary for imperative reasons of security […].” While UN Security Council Resolution 1546 can be interpreted as giving the Multinational Forces the authority to intern persons, it neither clarifies which provisions of the Geneva Conventions apply nor stipulates which body of law applies to interned persons. CPA Memorandum Number 3 (revised)126 regulates, in its Section 6, the policy of the Multinational Forces regarding “Security Internees” arrested after 28 June 2004. It refers to internment by the Multinational Forces “for imperative reasons of security in accordance with the mandate set out in UNSCR 1546 […]” and stresses that “[t]he operation, condition and standards of any internment facility established by the [Multinational Forces] shall be in accordance with Section IV of the Fourth Geneva Convention.” The rules on internment laid down in the Fourth Geneva Convention are a minimum to be respected in times of international armed conflict. However, given that IHL treaties do not regulate internment or detention in non-international armed conflicts in detail, recourse must be had to customary IHL as well as to international human rights law to clarify the uncertainties or insufficiencies of conventional IHL. Therefore, it is not sufficient to only refer to the Fourth Geneva Convention in order to grant the entire range of protection owed to persons deprived of their liberty in connection with a non-international armed conflict in Iraq. ‘Detaining Powers’ should afford better safeguards by resorting to customary IHL, human rights law and domestic law to supplement the insufficiencies of conventional IHL. III. Interrogation of Persons Deprived of Their Liberty

Sometimes it has been claimed that different standards apply in interrogating different categories of persons deprived of their liberty. This is in fact unfounded under existing law. IHL does not prevent interrogation but imposes limits on the methods to be used. In this regard, the rules are essentially the same. First, one can identify the minimum standard as contained in common Article 3 to the four 126

CPA, Criminal Procedures, Memorandum Number 3 (revised) of 27 June 2004, CPA/MEM/27 June 2004/0.

International Humanitarian Law in the Iraq Conflict

331

GCs, which has been considered by the International Court of Justice in the Nicaragua case as a norm of customary international law applicable in all types of armed conflict.127 The Court even considered it to reflect elementary considerations of humanity, which are “certain general and well-recognized principles, […] even more exacting in peace than in war.”128 Common Article 3 prohibits, at any time and in any place whatsoever – violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; – outrages upon personal dignity, in particular, humiliating and degrading treatment; against all persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. Article 75 AP I which, as has been indicated before, reflects customary international law, follows a similar logic in defining certain minimum fundamental standards for all persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Geneva Conventions or under Additional Protocol I. That provision prohibits, at any time and in any place whatsoever, whether committed by civilian or by military agents: – violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; – outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; – threats to commit any of the foregoing acts.129 127

Nicaragua case (note 102), 114. ICJ, Corfu Channel (United Kingdom v. Albania), Judgment of 9 April 1949, ICJ Report 1949, 22. 129 While this provision applies to international armed conflicts, a similar provision is contained in AP II for non-international armed conflicts (Art. 4) and reflects customary international law as well. 128

332

Knut Dörmann and Laurent Colassis

These standards have been stressed more specifically for certain categories of persons – for example in Articles 27 and 31 GC IV, which protect all persons not covered by the Geneva Conventions I to III, in particular civilians, and also ‘unlawful combatants’ and ‘unprivileged belligerents’ if they fulfil the nationality criteria of Article 4 GC IV. While Article 27 GC IV130 recalls the obligation to treat theses persons humanely under all circumstances, Article 31 GC IV prohibits physical or moral coercion, in particular to obtain information from them or from third parties. Article 32 GC IV further elaborates: The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering […] of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments […], but also to any other measures of brutality whether applied by civilian or military agents.

Articles 13131 and 14132 GC III give more clarification to the situation of prisoners of war. One aspect which is specifically relevant during interrogation is ad130

“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.” It should be recalled that as to the reservation in regard to security measures contained in para. 4 (“However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”), there is some discretion left to the State as to the measures, but the conceivable examples do not in any way reduce the protections in Arts. 27, 31 and 32; see Pictet (note 7), 207: “There are a great many measures, ranging from comparatively mild restrictions such as the duty of registering with and reporting periodically to the police authorities, the carrying of identity cards or special papers, or a ban on the carrying of arms, to harsher provisions such as a prohibition on any change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, or even assigned residence and internment (which, according to Article 41, are the two most severe measures a belligerent may inflict on protected persons). […] A great deal is thus left to the discretion of the Parties to the conflict as regards the choice of means. What is essential is that the measures of constraint they adopt should not affect the fundamental rights of the persons concerned. As has been seen, those rights must be respected even when measures of constraint are justified” (emphasis added). 131 “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. […] Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.” 132 “Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”

International Humanitarian Law in the Iraq Conflict

333

dressed in one provision of the Third Geneva Convention. Article 17 GC III provides that prisoners of war cannot be coerced to answer questions beyond giving their name, rank, date of birth and service number. This was done primarily in order to prevent the detaining power from eliciting information on ongoing military operations from prisoners of war right after capture. There is, however, nothing in the Convention that would, for example, prohibit the interrogation of a prisoner of war suspected of war crimes. In addition, prisoners of war are free to give more information. The bottom line is that “no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” 133 The key issue is therefore not “Can a detainee be interrogated?” but rather “What means may be used in the process?” Neither a prisoner of war nor any other person protected by humanitarian law, including ‘unlawful combatants,’ may be subjected to any form of violence, torture, inhuman treatment or outrages upon personal dignity. These acts are strictly prohibited by IHL. It is the detaining authority that bears full responsibility for ensuring that no interrogation method crosses the line.134 This article is not the place to develop what constitutes torture, inhuman treatment or outrages upon personal dignity. There is some important case-law on this from the ad hoc Tribunals for the former Yugoslavia and Rwanda, as well as guidance from the various human rights courts and treaty bodies.135 Another issue that arose in the context of interrogation and guarding of persons deprived of their liberty was the use of personnel of private contractors for such purposes. The use of such persons raises a multitude of questions that cannot be addressed here (such as their status if captured and whether they may be legitimately targeted). The most important aspect in this context is the question of accountability or responsibility. The responsibility of States relying on private contractors must be established based on the general rules of State responsibility. These rules have found expression also in specific provisions of IHL, such as Article 29 GC IV, which stipulates that a State party is directly responsible for the 133

Art. 17 para. 4 GC III. See Jelena Pejic, Three Misconceptions About the Laws of War, available at: http://www.crimesofwar.org/onnews/news-miscon.html. 135 See for some references Knut Dörmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court, 2003, 44–75, 314–324. 134

334

Knut Dörmann and Laurent Colassis

treatment by its agents of persons protected under that Convention. State agents in the above sense are all persons carrying out functions or tasks on behalf of a State, its administration and armed forces whether on an official or contractual basis.136 Several provisions also emphasize specifically that it does not matter whether the prohibited acts were committed by military or civilian agents,137 thus indicating that civilian contractors may also be held individually responsible. States are obliged to prevent and repress violations of IHL committed by such personnel, in particular acts of torture, inhuman treatment and outrages upon personal dignity.138 IV. Exposure of Prisoners of War to Public Curiosity

Prisoners of war enjoy fundamental guarantees requiring that they be treated in a humane manner at all times (the right to respect for their lives and their physical integrity, protection from insults, etc.). An example that made the headlines in the early days of the war in Iraq was the issue of the photographs of Iraqi prisoners of war published in the media, as well as US prisoners of war being shown on Iraqi television and the re-transmission of these images by various international television channels. Exposure of prisoners of war to public curiosity is prohibited by Article 13 GC III which stipulates that prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.139

When the Geneva Conventions were adopted in 1949, the taking and publishing of photographs of prisoners of war was not a new phenomenon.140 Such publications were not specifically mentioned and clearly the drafters of the Third Geneva Convention did not intend to enumerate examples of what may constitute ‘exposure to public curiosity,’ but undoubtedly intended this expression to be broadly interpreted as it “follows from the obligation to treat prisoners humane136

With regard to prisoners of war see Art. 12 GC III. Art. 32 GC IV and Art. 75 AP I. 138 Art. 129 GC III and Art. 146 GC IV. 139 Art. 13 para. 2 GC III. There is a similar provision in favor of persons protected by the Fourth Geneva Convention in Art. 27 para. 1 of this Convention. 140 For various examples, see Gordon Risius/Michael A. Meyer, The Protection of Prisoners of War Against Insults and Public Curiosity, IRRC, No. 295, 1993, 290–291. 137

International Humanitarian Law in the Iraq Conflict

335

ly. The protection extends to moral values, such as the moral independence of the prisoner [protection against acts of intimidation] and his honour [protection against insults and public curiosity].”141 Thus, it was not unintentional that the provisions relating to humane treatment (Article 13 GC III) and to respect for the person of prisoners (Article 14 GC III) were put in Part II of the Third Geneva Convention (General protection of prisoners of war), before the provisions on life in captivity (Part III). Article 13 GC III does not define what acts would contravene the prohibition of exposure to public curiosity. It has been proposed by some authors142 that this determination could be guided by the following criteria: a) the honor of the prisoner of war; b) the consequences for the prisoner and his family; c) the photographer’s intention and d) if it is routine or a staged event. Whatever criteria are laid down, ultimately the bottom line should be whether the prisoner can be recognized or not, in order to avoid any possible reprisals against the prisoner or his family. Certain commentators143 have argued that the showing of prisoners of war in the media could serve as proof that they are alive. This is, however, a weak argument as the Third Geneva Convention provides for mechanisms to inform their families of their whereabouts.144 Moreover, one has to be cautious with such arguments and measure their consequences given that being exhibited on television145 or in the newspaper may be extremely humiliating for a prisoner of war, put his family in danger and make his return to his country more difficult. Indeed, being captured may be regarded as particularly shameful in some cultures or, even worse, perceived as an act of treason which may subject the family of the “deserter” to reprisals. Given the increasingly intensive coverage of conflicts by the media and the expanding role of the major communications networks, it remains all the more important to uphold safeguards that protect the dignity of prisoners of war. To ensure this respect of human dignity, States parties to the conflict should prevent the publication or broadcast of images of prisoners of war who could be individually recognized. On the contrary, showing prisoners of war at distance, from behind or blurring their faces to prevent them from 141

Pictet (note 75), 141. Risius/Meyer (note 140), 292–293. 143 E.g. Dinstein (note 1), 12. 144 Through capture cards (Art. 70 GC III), letters and cards (Art. 71 GC III) and Red Cross Messages gathered by the ICRC delegates during their visits (Art. 126 GC III). 145 Broadcasts often show prisoners of war making declarations that may be the result of coercion, which would constitute a violation of Art. 17 para. 4 GC III. 142

336

Knut Dörmann and Laurent Colassis

being recognized individually would be acceptable as it neither violates their dignity, nor jeopardizes their families or their return to their country. Prohibiting the transmission of images of prisoners of war as individuals, whilst permitting images of prisoners of war who cannot be individually recognized, seems the best way for a party to the conflict to reconcile protection of the prisoners of war’s dignity with the public’s need to be informed. A further question which arises is that of the retransmission by other television channels or newspapers of prohibited images of prisoners of war. The relevant provision (Article 13 GC III) refers to the obligations of a detaining power. Where the retransmission is broadcast in a State not party to the conflict, it therefore seems difficult to argue that such a retransmission per se violates Article 13 GC III.146 Nevertheless, if a prisoner of war can be recognized indi-vidually, such a retransmission should not only be perceived as reporting a contravention but also as constituting a repeated violation of a prisoner’s dignity. It is even possible that a prisoner of war would be recognized for the first time during such a retransmission. Common Article 1 to the four GCs requires that States “ensure respect” for IHL. This obligation means that States must neither encourage a party to an armed conflict to violate IHL nor take action that would assist in such violations. This negative obligation can be illustrated by referring to the Draft Articles on the Responsibility of States147 (Article 16), which attributes responsibility to a State that knowingly aids or assists another State in the commission of an internationally wrongful act.148 In so far as each retransmission of the same images prolongs the effects of the initial violation of Article 13 GC III (disrespect of the prisoner’s dignity), it may be argued that this is equivalent to assisting in the commission of a violation of IHL by a party to an armed conflict.

146

See, however, Françoise J. Hampson who considers that such a retransmission constitutes a renewed breach of Art. 13 GC III, Françoise J. Hampson, Liability for War Crimes, in: Peter Rowe (ed.), The Gulf War 1990–91 in International and English Law, 1993, 252. 147 See, supra, note 94. 148 See ICRC Report, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 28th International Conference of the Red Cross and Red Crescent, 2–6 December 2003, 23, IRRC, No. 853, 2004, also available at: http://www. icrc.org/Web/eng/siteeng0.nsf/htmlall/5ZBHH7/$File/IRRC_853_FD_IHL_ Challenge.pdf.

International Humanitarian Law in the Iraq Conflict

337

As stipulated by Article 129 para. 3 GC III, [e]ach High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention.

This provision binds not only belligerents involved in an armed conflict but all High Contracting Parties, as it calls on all States to take concrete measures to suppress violations of IHL. According to the ICRC Commentary to the Third Geneva Convention, [t]he expression ‘faire cesser’ used in the French text may be interpreted in different ways. In the opinion of the International Committee, it covers everything which can be done by a State to avoid acts contrary to the Convention being committed or repeated. […T]he authorities of the Contracting Parties should give all those subordinate to them instructions in conformity with the Convention[149] and should institute judicial or disciplinary punishment for breaches of the Convention.150

It seems to be a coherent approach that if the initial transmission of images constitutes a violation of Article 13 GC III, each retransmission of the same images should also be prohibited, as the effects of the violation of Article 13 GC III (disrespect of the prisoner’s dignity) are prolonged by each retransmission. Based on their obligations under common Article 1 to the four GCs and Article 129 para. 3 GC III, the States party to the Geneva Conventions should therefore take concrete measures to put an end to these retransmissions by requesting, for example, their media to be prudent and to show restraint, even if their motives for showing the pictures may in themselves be honorable. It must always be kept in mind that the consequences of these publications could threaten the prisoners and their families. V. The Issue of ‘Ghost Detainees’

It has been reported in various media that certain persons deprived of their liberty have been detained in undisclosed locations for interrogation for extended periods of time without notifying the ICRC or granting access to the ICRC.151 149

At the end of March 2003, the Swiss Minister of Foreign Affairs requested the Swiss television not to broadcast images of prisoners of war, stating that this would be in violation of the Third Geneva Convention. Pierre-André Stauffer, Micheline CalmyRey: “Je comprends les manifestants,” L’Hebdo, 27 March 2003. 150 Pictet (note 75), 624–625 (emphasis added). 151 E.g. Dana Priest, Memo Lets CIA Take Detainees Out of Iraq, Practice Is Called Serious Breach of Geneva Conventions, Washington Post, 24 October 2004.

338

Knut Dörmann and Laurent Colassis

Under the Third and Fourth Geneva Conventions, parties to an international armed conflict are obliged to register and notify to the ICRC any prisoner of war and detained or interned civilian. This obligation is of key importance because it allows their families to be informed of their fate and makes it possible for the ICRC to individually follow persons deprived of their liberty in order to prevent their disappearance. Article 126 GC III and Article 143 GC IV oblige States to give permission to representatives of the ICRC to go to all places where prisoners of war or persons protected under the Fourth Geneva Convention may be, particularly to places of internment, imprisonment, detention and labor. ICRC delegates shall also have access to all premises occupied by prisoners of war or protected persons under the Fourth Geneva Convention. They shall be able to interview the prisoners or persons protected under the Fourth Geneva Convention without witnesses, either personally or through an interpreter. The Geneva Conventions allow for ICRC visits to detainees to be delayed – for example, under Article 143 para. 3 GC IV, ICRC access to a civilian internee may not be prohibited except “for reasons of imperative military necessity, and then only as an exceptional and temporary measure.”152 The reference to “imperative military necessity” most probably indicates that the drafters primarily had in mind particular battlefield constraints due to military operations, for example if ongoing fighting prevents access to detention facilities. This postponement is, however, not foreseen for the notification of a detainee to the ICRC, which should be done “immediately” and “by the most rapid means” (Article 137 GC IV). Parallel articles are Article 126 GC III on access delays to prisoners of war and Article 122 GC III on notification. It should be kept in mind that the Geneva Conventions represent a carefully crafted compromise between the security needs of States and the obligations to protect the lives and dignity of human beings including those held in detention. Clearly, notifying a detainee to the ICRC in no way presents an obstacle to interrogating him. VI. The Situation of Embedded Journalists

During the Iraq war the phenomenon of embedded journalists was very present. Some questions arose as to their legal situation. IHL applicable to international armed conflicts contains references to journalists in two ways. Firstly, the Third Geneva Convention refers to war correspondents (Article 4 A para. 4). 152

For further information see Pictet (note 7), 576–577.

International Humanitarian Law in the Iraq Conflict

339

Secondly, Additional Protocol I contains one provision on journalists engaged in dangerous professional missions in areas of armed conflict (Article 79). Military press personnel is not specially mentioned, but as part of the armed forces, they have the same status as other members of the armed forces and they do not enjoy any special immunity. War correspondents are representatives of the media who, in case of an international armed conflict, are accredited to and accompany the armed forces without being members thereof. Albeit being civilians, they are entitled to the status of and treatment as a prisoner of war in case of capture (with the consequence that they can be detained, independent of whether they pose a security threat, until the end of active hostilities an international armed conflict).153 Under the rules on the conduct of hostilities, they are protected in like manner to non-accredited journalists: they maintain their civilian status despite the special authorization received from military sources and must not be made the object of an attack. Other journalists, including those engaged in areas of armed conflicts, enjoy the same rights and must abide by the same rules of conduct as all civilians. Their situation only differs from war correspondents once they find themselves in the hands of a party to a conflict. If they fulfill the nationality criteria of Article 4 GC IV,154 they are protected by that Convention (deprivation of liberty is only possible if they pose a security threat and for the time of such threat or in case of penal proceedings). Otherwise, the customary protection of Article 75 AP I apply to them. Journalists on a dangerous professional assignment in an operational zone are civilians; they are entitled to all rights granted to civilians per se.155 Thus, journalists do not lose their civilian status by entering an area of armed conflict on a professional mission even if they are accompanying the armed forces or if they take advantage of their logistic support.

153 An identity card as foreseen in the Third Geneva Convention will be proof of this authorization, proof that the enemy can demand before deciding on his status. The war correspondent card plays a similar role to that of a soldier’s uniform: it creates a presumption. If there is any doubt about the status of a person who demands prisoner of war status, that person remains under the protection of the 1949 Convention pending the decision of a competent tribunal, according to the procedure laid down in the second para. of Art. 5 of the Third Convention (see, supra, Sect. B. I. 1. c)). 154 See, supra, note 105. 155 See Art. 79 AP I.

340

Knut Dörmann and Laurent Colassis

Provided that they do not undertake any action which could jeopardize their civilian status, journalists are protected in the same way as all other civilians. The protection granted to civilians is not linked to the nationality of the person concerned. In this respect, any journalist, be he or she a national of a State involved in the conflict or a national of a neutral State, is protected. A civilian must under no circumstances be the object of an attack, and civilians are entitled to respect of their possessions, provided these are not of a military nature. These rules, and many others besides, are equally applicable to journalists on dangerous missions. The question whether embedded journalists fall under the rules of war correspondents or journalists on a dangerous professional assignment is purely factual. Only if they are accredited, as foreseen in Article 4 A para. 4 GC III, are they war correspondents. The wearing of a uniform as such has no legal implications in this regard. Such uniforms may, however, increase the risk that they will be the object of an attack since they are not identifiable as persons protected against attacks. VII. Feigning of Protected Status and Using Protected Objects and Persons to Shield Military Operations

There have been instances reported during the Iraq conflict where fighters feigned civilian or non-combatant status, where surrender was feigned and in doing so adversaries were killed and injured.156 Such behavior is clearly prohibited as perfidious and constitutes a serious violation of IHL.157 Based on the same reasoning, booby-trapping of dead bodies158 is absolutely prohibited.159 While the law is relatively clear in this regard, it seems that in asymmetric warfare situations, the side facing an overwhelming adversary is willing to resort to such clearly prohibited behavior. Thus, the crucial question is how compliance with these essential rules of IHL, which are based on long standing traditions, can be ensured. 156

See, e.g., Rod Nordland, Newsweek, 29 November 2004. Art. 37 AP I, Art. 23 lit. b of the 1907 Hague Regulations; Art. 8 para. 2 lit. b No. vi of the Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), reprinted in: ILM, vol. 37, 1998, 999 (ICC Statute). 158 E.g. Nordland (note 156). 159 Art. 7 para. 1 lit. b of Protocol II to the CCW, as amended (note 4). 157

International Humanitarian Law in the Iraq Conflict

341

In such conflict situations there is also a strong tendency to mix with the civilian population or to find refuge in or next to civilian objects including those under special protection. Such behavior is likely to place the civilian population and civilian objects at great risk. IHL tries to prevent this by obliging the Parties to a conflict to the maximum feasible extent to (a)

[…] endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;

(b)

avoid locating military objectives within or near densely populated areas; […].160

If protected persons are used intentionally for the purpose of shielding military operations, this is also absolutely prohibited under both treaty161 and customary international law, and it constitutes a war crime under the ICC Statute.162 As for specially protected objects, Additional Protocol I prohibits that historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples be used in support of the military effort.163 In accordance with Article 4 of the 1954 Hague Convention, it is prohibited to use cultural property situated within the State’s own territory as well as within the territory of other High Contracting Parties and its immediate surroundings in a way which is likely to expose it to destruction or damage in the event of armed conflict. The obligation may be waived only in cases where military necessity imperatively requires such a waiver. During the Iraq conflict, mosques, for example, have been repeatedly used to store weapons or as a refuge for fighters. The fact that mosques as cultural property are specifically protected does not give them immunity from attack if they are used for such military purposes.164 It is only to the extent that cultural property is civilian that it may not be made the object of attack. It may, however, be 160

Art. 58 AP I. Art. 51 para. 7 AP I. 162 ICC Statute (note 157), Art. 8 para. 2 lit. b No. xxiii. 163 Art. 53 lit. b AP I. 164 See Art. 4 of the 1954 Convention on Cultural Property (note 14) in connection with Art. 6 of its 1999 Second Protocol. The latter provides that a waiver on the basis of imperative military necessity may only be invoked when and for as long as: (1) the cultural property in question has, by its function, been made into a military objective; and (2) there is no feasible alternative to obtain a similar military advantage to that offered by attacking that objective. 161

342

Knut Dörmann and Laurent Colassis

attacked in case it qualifies as a military objective. The Statute of the International Criminal Court therefore stresses that intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime in both international and noninternational armed conflicts, “provided they are not military objectives.”165 C. Conclusions The conflict in Iraq since the air strikes on 20 March 2003 has brought about interesting questions on the application of IHL. In the view of the authors, contrary to what several commentators have claimed after the events of 11 September 2001, existing IHL – treaty and customary international law – has shown its continued relevance and overall adequacy in application to the conflict in Iraq throughout its various phases. This statement does not mean that the law is absolutely perfect – no law could claim that. Plenty of areas remain – this article has shown some of them – where interpretations are not universally shared and where the law is in need of clarification. The discussion to specifically identify those and to find ways for improvement must be conducted and continued in the future. Only if the law is sufficiently clear will those meant to apply it be in a position to do so properly – even in the heat of a battle. On the other hand, one should not lose sight of the fact that perhaps the main challenge remaining is how to ensure greater respect for IHL. The rules are there, but they are often not properly implemented. The conflict in Iraq has shown that even some of the most fundamental rules of IHL which are absolutely clear and where there is no dispute on interpretation, have been violated, such as the prohibition of hostage-taking. Here, more thinking is required on how better compliance can be achieved.

165

ICC Statute (note 157), Art. 8 para. 2 lit. b. No. ix and para. e No. iv.

Dismantling the Wall: The ICJ’s Advisory Opinion and Its Likely Impact on International Law By Andrea Bianchi* A. Introductory Remarks: The Court at the Crossroads of Law and Politics Presumably, the Advisory Opinion rendered on 9 July 2004 by the International Court of Justice (ICJ) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory1 will bear as great an impact on the development of international law as other much-celebrated advisory opinions of the past. With a few exceptions, the Court has often taken advantage of its advisory role under Article 96 of the UN Charter2 to contribute to the progressive development of international law. Besides the well known examples of the Reparations for Injuries and the Reservations to the Genocide Convention opinions,3 which in the very early years of the Court broke new grounds on the implied powers doctrine and the regime of reservations to treaties, respectively, in its subsequent opinions the Court has also often sown important “legal seeds.”4 Even though, in principle, advisory opinions are rendered to UN organs *

Professor of International Law, Graduate Institute of International Studies (GIIS), Geneva; Catholic University, Milan. The author expresses his gratitude to Fouad Zarbiev, Ph.D. candidate and assistant to the International Law Section at the GIIS, for his research assistance and learned comments on earlier drafts. 1 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136 (Legal Consequences). 2 Charter of the United Nations, 26 June 1945, UNCIO, vol. 15, 335. 3 ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174; ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, 15 (Reservations). 4 Rosalyn Higgins, Problems and Process. International Law and How We Use It, 1994, 203.

344

Andrea Bianchi

with a view to helping them to act and discharge their functions in accordance with international law,5 the authoritative interpretations given by the Court on different points of law are likely to deploy their effects well beyond the scope of the request. This is so regardless of both the non-binding nature of the advisory opinion6 and the fact that the opinion may be later endorsed by the requesting organ by way of a resolution.7 What matters most is that what the Court says is likely to have a major influence on the perception by international and national legal actors of what the state of the law in certain areas is.8 One of the most striking features of this Opinion is that the Court was united in most of its findings.9 Even though one judge maintained that the Court 5 “The object of this request for an opinion is to guide the United Nations in respect of its own action.” Reservations (note 3), 19. See also ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, 12, 27, para. 41. 6 “The Court’s reply is only of an advisory character; as such, it has no binding force.” ICJ, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion of 30 March 1950, ICJ Reports 1950, 65, 71 (Peace Treaties). See also Edward Hambro, The Authority of the Advisory Opinions of the International Court of Justice, International and Comparative Law Quarterly, vol. 3, 1954, 2–22. 7 GA Res. 598 (VI) of 12 January 1952 (following the Opinion in Reservations (note 3)); GA Res. 1854 (XVII) of 19 December 1962 (following ICJ, Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151 (Certain Expenses)); GA Res. 51/45 of 10 December 1996 (following ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996-I, 226 (Nuclear Weapons)). 8 In this respect the distinction between the Court’s judgments and its advisory opinions is not an absolute one. It has rightly been observed that “the Court gives to its opinions the same weight as authoritative statements of law as it gives to its judgments,” Kenneth James Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice, 1971, 196. As a former judge on the ICJ stated, “there are no two ways of declaring the law,” André Gros, Concerning the Advisory Role of the International Court of Justice, in: Wolfgang Friedmann/Louis Henkin/Oliver Lissitzyn (eds.), Transnational Law in a Changing Society, Essays in Honor of Philip C. Jessup, 1972, 315. Indeed, “[w]hen the Court replies to a request for an advisory opinion, it does not transform itself into a committee of fifteen legal consultants,” id., 314, it performs a function the judicial character of which has been frequently emphasized, see Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion of 23 October 1956, ICJ Reports 1956, 77, 84; Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion of 8 June 1960, ICJ Reports 1960, 150, 153; Northern Cameroons (Cameroons v. United Kingdom), Judgment on Preliminary Objections of 2 December 1963, ICJ Reports 1963, 15, 30; Western Sahara (note 5), 21, para. 23. 9 One finding of the Court was adopted unanimously, five findings were adopted by fourteen votes to one, and one finding was adopted by thirteen votes to two.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

345

should have declined to exercise jurisdiction in the case at hand for it lacked sufficient information and evidence,10 by his own admission, he agreed with what the Court actually said on many points of law.11 Given the highly politicized character of the case this nearly unanimous stance taken by the judges should not be underestimated. In all likelihood, it attests to their perception of both the importance of the underlying legal issues and, most of all, the need to speak with one voice, thus providing guidance not just to the requesting body but to the international community as a whole. Whether or not the Court succeeded in conveying to the outside world such an impression is open to question, but undoubtedly, this consideration must have played a role at the moment the judges cast their votes. Indeed, contrary to what one might be tempted to think at first sight, the relevance of this advisory opinion lies not so much in its political significance for the situation in the Middle East, but rather in the stances taken by the Court on the many topical issues of general international law, which may also have an impact on other contexts. The Court in numerous occasions has dealt with cases touching on highly sensitive political issues when exercising both its contentious and advisory jurisdiction. It suffices to mention the intervention in Nicaragua12 or the issue of the legality of the use or threat of use of nuclear weapons.13 What the Court had to say always went beyond the contingencies of the particular case and had consequences of a much more general nature for international law and its development.14 The fact that the Court has always refused not to exercise jurisdiction on the ground of the political character of the legal questions submitted to it, in both contentious cases and advisory opinions, is quite telling of the determination by the Court not to dispense itself from taking a stance on heavily-charged issues of international politics.15 Provided that a certain issue can be characterized as 10

Legal Consequences (note 1), Declaration of Judge Buergenthal, para. 10. Id., paras. 1–2. 12 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14 (Nicaragua Case). 13 Nuclear Weapons (note 7). 14 See Sir Hersch Lauterpacht, The Development of International Law by the International Court, rev. ed. 1982, 5. 15 ICJ, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, ICJ Reports 1947–1948, 57; 11

346

Andrea Bianchi

legal, the underlying policy issues have never prevented the Court from discharging its judicial function. This is understandable, as legal questions are often embedded in a complex texture of political considerations. It is indeed misleading to believe that legal issues can be treated in a politically-neutral context.16 To the extent that they emanate from the societal body, they reflect the latter’s political, economic and social realities. This, inevitably, may have an impact on their characterization, without depriving them of their legal nature. The Court unequivocally manifested its intention to be an actor in the process of providing guidance and directing change at this time of uncertainty for the international community.17 The climate of political divisiveness that characterizes the contemporary epoch of international law and that risks undermining its unity demands certainty and predictability of those international organs who are in charge of interpreting and applying the law. Surely, the authoritative power of the Court to interpret the state of the law makes the borderline between lex lata and progressive development a tenuous one. Relying on its authority, the Court seems to have taken full advantage in its recent case law of this power, by taking stances on some issues while keeping silent on others.18 To what extent the Court may also perform the role of fostering the progressive development of ICJ, Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950, ICJ Reports 1950, 4; Certain Expenses (note 7), 151; Nuclear Weapons (note 7). See Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. 1, 1986, 116 who notes that “if the question put [to the Court] is in itself a legal question, […] the fact that it has a political element is irrelevant.” For a different view on the issue, see Nicaragua Case (note 12), Dissenting Opinion of Judge Oda, 212, 219–236, paras. 15–49. 16 As Professor Brownlie put it, political issues do not cease to be such because they are also legal issues, Ian Brownlie, Principles of Public International Law, 6th ed. 2003, 694. See also Legal Consequences (note 1), Separate Opinion of Judge Kooijmans, para. 12. 17 The recent judgment of the Court in the Oil Platforms Case provides a good example. In this case, the Court adheres to the view of one of the parties that the question of the recourse to the use of force raises one of the “matters of the highest importance to all members of the international community” and considers that “to the extent that its jurisdiction […] authorizes it to examine and rule on such issues, it should do so,” ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment of 6 November 2003, ICJ Reports 2003, 161, 181, para. 38. 18 The Court’s non-examination of the question of universal jurisdiction in the Arrest Warrant Case is revealing from this point of view: ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

347

international law or, as one commentator wisely put it,19 to what extent the Court may be overt about it, is an interesting question, which will be partly broached in this essay. What can hardly be denied, however, is that particularly at the international level, the political and legal processes cannot be so easily disjointed, and that the Court’s propensity to take an active role in the international political process may be regarded as being inherent in its judicial function. At this point in time, this also seems to be the Court’s own perception of its role in the international arena. Against this background, the opinion rendered by the ICJ at the request of the Tenth Emergency Special Session of the General Assembly20 can be seen as yet another example of how, at times, the law can be inextricably linked to politics. The fact that the Court for the first time had the occasion of pronouncing on the situation in the Middle East (on which, incidentally, all the other organs of the United Nations have already expressed their views within their respective fields of competence)21 adds further emphasis to the symbolic and practical value of the Court’s opinion. This paper attempts to provide an assessment of some of the legal issues underlying the opinion, paying due heed, in particular, to those aspects which are most likely to bear on the future development of international law. Before venturing into the assessment of some of its most relevant parts, however, a synopsis of the opinion may be apt. B. The Opinion in a Nutshell The opinion originates from a request of the General Assembly submitted on 8 December 2003. By Resolution ES-10/14, adopted at its Tenth Emergency Session, the General Assembly asked the Court to issue an opinion on “the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary General, considering the rules and principles of international law, including the Fourth Ge19

Higgins (note 4), 204. GA Res. ES-10/14 of 8 December 2003, adopted at the 23rd Meeting of the Resumed Tenth Emergency Special Session (90 votes in favor, 8 against, 74 abstentions). 21 For an overview, see the Dossier prepared by the Secretariat of the United Nations on the occasion of the advisory proceeding, available at: http://www.icj-cij.org/icjwww/ idocket/imwp/imwppleadings/imwp_iFullDossier_20040119.pdf. 20

348

Andrea Bianchi

neva Convention of 1949 and relevant Security Council and General Assembly resolutions.” Forty-four States, Palestine, the United Nations, the League of Arab States and the Organization of the Islamic Conference submitted statements in writing, with Israel not entering into the merits of the issue but limiting its observations on jurisdiction and judicial propriety.22 In its opinion, rendered on 9 July 2004, the Court decided by fourteen votes to one to comply with the request for an advisory opinion. By the same majority the Court held that the wall built by Israel and the establishment of its associated regime were contrary to international law and that Israel was under an obligation to cease forthwith its works, to dismantle the structure and to repeal or render ineffective all legislative and regulatory acts relating to it. Furthermore, Israel had an obligation to make reparation for all damage caused, and the United Nations, particularly the Security Council and the General Assembly, should consider what further action is required to bring an end to the illegal situation resulting from the construction of the wall. By a majority of thirteen to two, the Court further held that States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining such situation. Moreover, States parties to the Fourth Geneva Convention23 are under an obligation to ensure compliance by Israel with international humanitarian law as embodied in that Convention, while respecting the United Nations Charter and international law. The General Assembly endorsed the ICJ’s opinion on 20 July 2004 by a 150 to 6 majority.24 As regards, more specifically, the various points of the Court’s opinion, it must be noticed that the Court held unanimously that it had jurisdiction to render the opinion. With the Security Council being unable to discharge its primary responsibility in maintaining international peace and security, the General Assembly did not exceed its competence in asking for the advisory opinion. On the basis of the practice of the organization, with particular regard to GA

22 Written Statement of the Government of Israel on Jurisdiction and Propriety of 30 January 2004, available at: http://www.icj-cij.org/icjwww/idocket/imwp/imwpstate ments/iWrittenStatement_17_Israel.pdf. 23 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 287. 24 See GA Res. ES-10/15 of 20 July 2004. Six States voted against (Israel, United States, Australia, Micronesia, Marshall Islands and Palau), ten abstained (Cameron, Canada, El Salvador, Nauru, Papuasia-New Guinea, Solomon Islands, Tonga, Uganda and Vanuatu).

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

349

Res. 377 (V),25 the so-called “Uniting for Peace”-Resolution, such a request is to be regarded as consistent with Article 12 para. 1 of the Charter.26 Relying on its 1971 advisory opinion on Namibia,27 the Court noted that a presumption of validity applies to resolutions adopted in conformity with the organization’s procedural rules and that no rule of the organization seems to have been violated.28 The Court went on to quickly dismiss the contention that the question submitted to it did not have a “legal character,” within the meaning of Article 96 of the Charter and Article 65 of its Statute. With regard to the submission that the request had to be reasonably specific and that in the case at hand this requirement was not met since the request was imprecise and abstract in nature, the Court replied that the request was “directed to the legal consequences arising from a factual situation” and that it was framed in legal terms, thus raising problems of international law.29 It further pointed out that the alleged lack of clarity of the request may not deprive the Court of jurisdiction.30 The Court finally broached the contention that the “political character” of the question would bar its jurisdiction. Referring to its prior case law,31 the Court observed that particularly when political considerations are prominent, it may be necessary for an international organization to obtain an advisory opinion on the applicable legal principles. On the matter of the propriety of the exercise of its judicial function, the Court held that only compelling reasons could prompt it not to discharge it and that never in the exercise of its discretionary power under Article 96 of the Charter had the Court “declined to respond to a request for an advisory opinion.”32 The Court did not find such compelling reasons in the argument that the 25

GA Res. 377 A (V) of 3 November 1950. Legal Consequences (note 1), para. 28. 27 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16, 22 (Namibia). 28 Legal Consequences (note 1), paras. 34–35. 29 Id., para. 37. 30 Id., para. 38. 31 ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, 87, para. 33. 32 Legal Consequences (note 1), para. 44. As the Court recalls, its refusal to accept the request for an advisory opinion from the WHO was based not on its discretionary power, but on the lack of jurisdiction of the Court, see ICJ, Legality of the Use by a State 26

350

Andrea Bianchi

case at hand was a contentious matter between Israel and Palestine, for which consent of both parties was necessary in order to exercise jurisdiction. While acknowledging the existence of a dispute between the two parties, the Court found the dispute not to be one which had “arisen independently in bilateral relations.”33 Given the responsibility of the United Nations in matters concerning international peace and security, “the construction of the wall must be deemed to be directly of concern to the United Nations.”34 Therefore, the object of the request, according to the Court, was that of assisting the General Assembly in the proper exercise of its functions.35 On the highly controversial question of whether the issuing of an opinion by the Court “could impede a political, negotiated solution to the Israeli-Palestinian conflict,”36 particularly in light of the endorsement by the Security Council in Resolution 151537 of the “Roadmap,” the Court stated that it was not clear to what extent any such opinion could influence political negotiations. Acknowledging that the construction of the wall “is part of a greater whole,” the Court promised to “take this circumstance carefully into account in any opinion it might give.”38 Nor, incidentally, was the alleged lack of requisite facts and evidence, which prompted Judge Buergenthal to dissent from the majority,39 held by the Court to be a compelling reason not to exercise its jurisdiction. Noting that the Court could count on the “voluminous dossier” submitted by the Secretary General as well as the Written Statement by Israel and other documents issued by the Israeli government that are in the public domain, the Court concluded that it had at its disposal “sufficient information and evidence” to render the opinion.40 Having thus disposed of the issues of jurisdiction and judicial propriety the Court set out to broach the merit of the opinion. In doing so, the Court qualified of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996 (I), 66. 33 Legal Consequences (note 1), para. 47. 34 Id., para. 49. 35 Id., para. 50. 36 Id., para. 51. 37 SC Res. 1515 of 19 November 2003. 38 Legal Consequences (note 1), para. 54. 39 Id., Declaration of Judge Buergenthal, para. 1. 40 Legal Consequences (note 1), para. 58.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

351

the status of the territory concerned, namely the territories between the Green Line and the former eastern boundary of Palestine under the Mandate, as occupied territories under customary international law, particularly Article 42 of the Hague Regulations,41 in which Israel had the status of occupying power.42 On the basis of the Secretary General’s report, the Court assessed the works undertaken by Israel and concluded that the wall as completed or under construction “lies within occupied territories for most of its course. The works deviate more than 7.5 kilometres from the Green Line in certain places to encompass settlements, while encircling Palestinian population areas.”43 Establishing the part of the West Bank lying between the Green Line and the wall as a “Closed Area,” Israeli authorities introduced a new administrative regime, whereby residents in the area may not remain in it, and non-residents may not enter, unless they have a permit issued by Israeli authorities. Israeli citizens and residents may remain in and freely move from and to the area, access to which can be made only through access gates. In the determination of the applicable law, the Court highlighted the prohibition of the acquisition of territory by the use of force with its corollary, entailing the illegality of the situation thus created;44 the principle of self-determination of peoples, characterized as a right erga omnes;45 as well as a number of international humanitarian law rules.46 In this respect, it is worth noting that beside the applicability of the 1907 Hague Regulations, annexed to the Fourth Hague Convention, qua customary law, the Court considered as applicable qua treaty law also the Fourth Geneva Convention, irrespective of the status of the territories concerned prior to the 1967 conflict. The Court reached this conclusion by interpreting Article 2 of the Fourth Geneva Convention in light of the object and purpose of the treaty as well as the subsequent practice of the parties.47 The 41

Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, reprinted in: Dietrich Schindler/Jirí Toman, The Laws of Armed Conflicts, 3rd ed. 1988, 69. 42 Legal Consequences (note 1), para. 78. 43 Id., para. 83. 44 Id., para. 87. 45 Id., para. 88. It should be recalled that in East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports 1995, 90, 102, para. 29, the Court had already thus qualified the law of self-determination. 46 Legal Consequences (note 1), paras. 89–101. 47 In his individual opinion, Judge Kooijmans criticizes the Court for not equally basing this finding on the fact that Jordan had claimed sovereignty over the West Bank.

352

Andrea Bianchi

Court also noted in passing that the Israeli Supreme Court had itself recognized the applicability of the Convention to the occupied territories.48 Before considering the applicability of human rights law, the Court took the time to re-state its view, already expounded in its advisory opinion on the Legality of the Use of Nuclear Weapons, of the relationship between human rights and humanitarian law.49 As regards the applicability of the International Covenant on Civil and Political Rights (ICCPR),50 the Court found it to be applicable to individuals under Israeli’s jurisdiction, including individuals in the occupied territories.51 Again, the Court based itself on the object and purpose of the treaty, as well as the practice under the Covenant, to provide the interpretation of Article 2 para. 1 concerning the treaty’s scope of application.52 As far as the International Covenant on Economic, Social and Cultural Rights (ICESCR)53 is concerned, the Court found it applicable in spite of Israel’s objections, stating that Israel had not only the obligation to observe the treaty in territories which had been for such a long time subject to its territorial jurisdiction, but also the obligation not to raise obstacles to the exercise of such rights in those fields where competence had been transferred to the Palestinian authority.54 The court

The fact that Jordan, a party to the conflict and to the Fourth Geneva Convention, had claimed sovereignty over the territory acquired by Israel in the 1967 war, bolsters the argument for the applicability of the Fourth Geneva Convention and for the qualification of the territory as “occupied,” id., Separate Opinion of Judge Kooijmans, para. 9. 48 Legal Consequences (note 1), para. 100 49 In particular, the Court held that whereas some rights may be exclusively matters of international human rights or humanitarian law, others may concern both branches, in which case international humanitarian law would be considered as lex specialis, see, infra, Section E. 50 International Covenant on Civil and Political Rights, GA Res. 2200A (XXI) of 16 December 1966. 51 Legal Consequences (note 1), paras. 108–111. 52 While referring to the 2003 Human Rights Committee’s Concluding Observations on the report by Israel, the Court, quite surprisingly, remains silent on General Comment No. 31, in which the Committee deals with the scope of application of the Covenant, General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/74/ CPR.4/Rev.6 (2004). 53 International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A (XXI) of 16 December 1966. 54 Legal Consequences (note 1), para. 112.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

353

concluded this part by stating that the Convention on the Rights of the Child (CRC)55 was also applicable within the occupied territories.56 Getting to the assessment of whether or not Israel by constructing the wall is in breach of any of the international law rules which it considered as applicable, the Court started by finding a violation of Article 49 para. 6 of the Fourth Geneva Convention, which prevents the occupying Power from transferring part of its own civilian population to the occupied territories. The violation was held to result from the fact that “[t]he wall’s sinuous route has been traced in such a way as to include within that area [i.e. the Closed Area] the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem).”57 Whilst noting the assurances given by Israel about the temporary character of the measure, the Court considered that the construction of the wall and the establishment of the administrative regime associated with it “create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.”58 Furthermore, the construction of the wall “severely impedes the exercise by the Palestinian people of its right to selfdetermination, and is therefore a breach of Israel’s obligation to respect that right.”59 As regards the provisions of international humanitarian law, other than Article 49 para. 6 of the Fourth Geneva Convention, the Court found Israel in breach

55

Convention on the Rights of the Child, GA Res. 44/25 of 20 November 1989. Legal Consequences (note 1), para. 113. It should be recalled that contrary to Art. 2 ICCPR, which refers to both the territorial element and to the concept of jurisdiction, the CRC refers only to jurisdiction. This explains the speed of the Court’s finding in this regard. 57 Id., para. 119. 58 Id., para. 121. 59 Id., para. 122. While accepting that the Palestinian people constitute “a people” in the sense of the right to self-determination, Judge Higgins questions the reasoning of the Court according to which the construction of the wall constitutes an obstacle to the realization of the right to self-determination. According to the judge, “the real impediment is the apparent inability and/or unwillingness of both Israel and Palestine to move in parallel to secure the necessary conditions – that is, at one and the same time, for Israel to withdraw from Arab occupied territory and for Palestine to provide the conditions to allow Israel to feel secure in so doing,” id., Separate Opinion of Judge Higgins, para. 30. 56

354

Andrea Bianchi

of Articles 46 and 52 of the Hague Regulations respectively, protecting private property from confiscation and authorizing, under strict limitations, requisitions in kind and services for the needs of the occupying army, and Article 53 of the Fourth Geneva Convention which prohibits the destruction of property unless it is rendered absolutely necessary by military operations.60 Furthermore, Israel was deemed to be in violation of Articles 17 (respect for private and family life)61 and 12 (liberty of movement and choice of residence)62 of the ICCPR. The Court considered that the Israeli request for derogation under Article 4 of the ICCPR lodged with the Secretary-General of the United Nations only referred to Article 9 (right to liberty and security of person), thus leaving Israel under the obligation to respect all the other provisions of the Covenant.63 With regard to the “clawback” provision of Article 12 para. 3 of the ICCPR, which allows for restrictions to the liberty of movement as prescribed by law and necessary to protect national security and public order, the Court held that it is not sufficient that the restrictions undertaken by Israel be directed to the ends permitted under Article 12 para. 3. They also must be necessary, or, in the words of the Human Rights Committee, “they must conform to the principle of proportionality.”64 According to the Court, on the basis of the information available to it, this condition was not met.65 In addition to the above-mentioned violations, the Court held that Israel had violated the obligation, undertaken by signing the general Armistice

60

Legal Consequences (note 1), para. 132. The Court stated later on in the judgment not to be convinced “on the material before it […] that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations.” Id., para. 135. 61 Id., para. 136. 62 Id. 63 Id. 64 Id. 65 In his individual opinion, Judge Kooijmans criticizes the Court for not expanding upon the criteria of proportionality. According to him, “even if the construction of the wall and its associated regime could be justified as measures necessary to protect the legitimate rights of Israeli citizens, these measures would not pass the proportionality test. The route chosen for the construction of the wall and the ensuing disturbing consequences for the inhabitants of the Occupied Palestinian Territory are manifestly disproportionate to interests which Israel seeks to protect,” id., Separate Opinion of Judge Kooijmans, para. 34.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

355

Agreement66 and later the Peace treaty67 with Jordan, to guarantee free access to the Holy Places.68 Rather cursorily and not too rigorously, the Court, on the basis of the materials and information submitted to it, particularly in the Secretary-General’s report, found that the construction of the wall and its associated regime “impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living” as enshrined in the ICESCR and the CRC.69 The Court concludes this part of the opinion by stating, based on the material available to it, that it “is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives” and that neither military exigencies nor requirements of national security or public order could justify the infringement of a number of rights of Palestinians residing in the occupied territories.70 Following up the contention advanced by Israel and reported to the Court by the Secretary-General, the Court then examined the possibility of exempting Israel from responsibility on grounds of self-defense. In this respect the Court noted that Article 51 of the Charter, and the exercise of the inherent right of self-defense enshrined therein, presupposes an armed attack by one State against another State.71 The Court further noted that the threat to which Israel responds by the construction of the wall originates from within a territory over which Israel has control, thus distinguishing situations contemplated in Security Council Resolutions 1368 and 1373.72 Having found Article 51 of the Charter of no relevance, the Court considered whether the wrongfulness of the acts attributable to Israel could be precluded by the invocation of a state of necessity. Recalling its

66

Israel-Jordan Armistice Agreement, 3 April 1949, UNTS, vol. 42, 303. Treaty of Peace Between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, ILM, vol. 34, 1995, 43, 50 68 Legal Consequences (note 1), para. 129 69 Id., para. 134. According to the Court, restrictions on the enjoyment by the Palestinians living in the occupied territories of their economic, social and cultural rights, as provided in Art. 4 of the ICESCR, would fail to meet the condition that their implementation must be “solely for the purpose of promoting the general welfare in a democratic society.” Id., para. 136. 70 Id., para. 137. 71 Id., para. 139. 72 Id. See SC Res. 1368 of 12 December 2001; SC Res. 1373 of 28 September 2001. 67

356

Andrea Bianchi

prior case law73 and mentioning the definition given by the Articles on State Responsibility,74 the Court quickly dismissed the defense of necessity maintaining that it was not convinced that the construction of the wall was “the only means” to safeguard the interests of Israel.75 According to the Court, even if Israel had the right and even the duty to respond to acts of violence against its civilian population,76 “[t]he measures taken are bound to remain in conformity with international law.”77 The last part of the opinion is taken up by the legal consequences stemming from the violations of international law attributable to Israel. Drawing largely from the Articles on State Responsibility, as elaborated by the International Law Commission and noted by the General Assembly in 2001,78 the Court found Israel to be under an obligation to comply with its international legal obligations, particularly the principle of self-determination, the relevant provisions of international human rights and humanitarian law, as well as its obligation to guarantee free access to the Holy Places.79 Furthermore, the Court stated that Israel was under the obligation to put an end to the violations arising out of the construction of the wall. In particular, Israel had the obligation to cease forthwith the works of construction of the wall in the occupied territories, to dismantle those parts of the wall situated within them and to repeal or render ineffective any le-

73

ICJ, Gabcikovo-Nagymaros (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, 40, para. 51. 74 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), 43, 49, Art. 25 (Draft Articles). 75 Legal Consequences (note 1), para. 140. 76 It should be noted that, in evoking the duty of Israel to respond to terrorist attacks in order to protect its population, the Court espouses the doctrine of positive obligations, elaborated by the monitoring bodies of human rights treaties. This doctrine rests on the idea that the effectiveness of human rights requires the State not only to abstain from committing violations, but also imposes an obligation to take positive measures in view of ensuring effective enjoyment of human rights. For examples in case law in regard to the right to life, see Eur. Court H.R., Osman c. Royaume-Uni, Judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, 3124; Inter-American Court H.R., Velazquez Rodriguez v. Honduras, Judgment of 29 July 1988, Series C, No. 4; Human Rights Committee, General Comment No. 6 on Art. 6 (Right to Life), UN Doc. CCPR/C/21/Rev.1 (1982), para. 4. 77 Legal Consequences (note 1), para. 141. 78 GA Res. 56/83 of 12 December 2001. 79 Legal Consequences (note 1), para. 149.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

357

gislative and regulatory acts adopted in relation to its construction and to the establishment of its associated regime.80 The Court further found that Israel was under an obligation to make reparation for the damage caused. Stressing on the basis of the Chorzow Factory81 principle that the primary form of reparation is restitution in kind, the Court demanded that Israel “return the land, orchards, olive groves and other immovable property seized […] for purposes of construction of the wall in occupied Palestinian territories”82 and that, whenever restitution proved impossible, Israel compensate the persons concerned for the damage suffered. As regards the legal consequences for other States, the Court noted that some of the obligations breached by Israel, notably the principle of self-determination, as well as certain international humanitarian law obligations, have an erga omnes character.83 The consequences the Court drew from this characterization are that States were under an obligation not to recognize the illegal situation created by the construction of the wall and not to render aid or assistance in maintaining such an illegal situation.84 More specifically, as far as the parties to the Fourth Geneva Convention are concerned, the Court held that they were under the obligation to ensure compliance by Israel with its provisions.85 The Court then expresses the view that the legal consequences for the United Nations, especially the Security Council and the General Assembly, should consist of considering “further action” as may be required to bring to an end the illegal situation resulting from the construction of the wall, taking duly into account the opinion rendered by the Court.86 Finally, the Court emphasizes that the construction of the wall must be placed “in a more general context” and that both Israel and Palestine are under an obligation to respect the rules of interna80

Id., para. 151. PCIJ, Case concerning the Factory at Chorzów (Germany v. Poland), Merits, Judgment of 13 September 1928, Series A, No. 17, 4, 47. 82 Legal Consequences (note 1), para. 153. 83 Id., para. 155. 84 Id., para. 159. 85 This argument was based on Art. 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, which provides: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” 86 Legal Consequences (note 1), para. 160. 81

358

Andrea Bianchi

tional humanitarian law.87 Noting that “[i]llegal actions and unilateral decisions have been taken on all sides,” the Court expresses the view that a solution to the problem can only be brought about by implementation of the relevant Security Council resolutions, thus urging the General Assembly, to which the opinion is addressed, to encourage a negotiated solution to the outstanding problems in accordance with international law.88 C. The Indiscernible Contours of Judicial Propriety: The Court and Its Ethos As is known, Article 65 para. 1 of the ICJ’s Statute89 provides that the Court may give an advisory opinion. The adopted verbal mode suggests that the Court enjoys the discretionary power to decide whether or not to render the opinion even once jurisdiction has been established.90 In this respect, the Court has created over time a presumption of exercise of jurisdiction, which can only be rebutted if compelling reasons advise against the propriety and opportunity of rendering the opinion. This doctrine is inspired by the consideration that the Court, as “the principal judicial organ of the United Nations,”91 should participate in the activities of the organization and, in principle, should not refuse to render opinions asked in conformity with the Charter and its Statute.92 Nonetheless, the Court, by creating the “compelling reasons” doctrine, gave itself some measure of discretion to refuse to issue opinions whenever it perceives that the exercise of its jurisdiction would be improper and not compatible with its judicial function.93 Such discretionary power is all the more apparent when one 87

Id., para. 162. Id. 89 Statute of the International Court of Justice, 26 June 1945, UNCIO, vol. 1, 355. 90 See, among others, Nuclear Weapons (note 7), para. 14. For a different view on the discretion of the Court, see Benedetto Conforti, The Law and Practice of the United Nations, 2nd ed. 2000, 270; and Robert Kolb, De la prétendue discretion de la Cour internationale de Justice de refuser de donner un avis consultative, in: Laurence Boisson de Chazournes/Vera Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab, 2001, 609–627. 91 Art. 92 UN Charter. 92 Peace Treaties (note 6), 71. This position has been reaffirmed in subsequent opinions. 93 The famous dictum of the Permanent Court that “the Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding 88

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

359

takes into account the fact that the compelling character of the reasons which could lead the Court to dismiss a request is assessed by the Court itself. It is thus hardly surprising that in such a highly politicized case as this one, the issue of judicial propriety turned out to be a particularly delicate one. This is reflected not only in the fact that the only dissent is grounded precisely on the alleged lack of judicial propriety for the Court to render the opinion, but also in the fairly divided, albeit concurring, opinions attached by some of the judges to the Court’s majority judgment. Indeed, the latter rather quickly disposes of the arguments revolving around judicial propriety. Presumably it did so partly because of the existing disagreement among its members on how the different criteria of the judicial propriety doctrine highlighted in its prior case law should play out in the case at hand, and partly in the attempt not to overly emphasize the policy considerations that prompted it to exercise jurisdiction. This is particularly evident when the Court, faced with the objection that the exercise of its jurisdiction could impede a political, negotiated solution to the Israeli-Palestinian conflict, confined itself to stating that it was not clear what influence the opinion might have on the negotiations and that this factor could not be considered a compelling reason to turn down the request of the General Assembly.94 Among the relevant factors analyzed by the Court, the objection that the opinion concerned a contentious matter between Israel and Palestine, requiring consent of the parties to exercise jurisdiction, stands out. In this respect the Court endorsed the position taken in its 1975 advisory opinion on Western Sahara, where, after distinguishing contentious cases and advisory proceedings, it had nonetheless conceded that lack of consent may indeed lead the Court to refuse to give an opinion “in the circumstances of a given case, on considerations of judicial propriety.”95 In Western Sahara the Court held that even though a legal dispute existed, it had not arisen in bilateral relations but rather during the proceedings of the General Assembly in relation to matters with which the Assembly was dealing.96 By the same token, the Court held that the “radically divergent views” between Israel and Palestine on the legal consequences of the construction of the wall by Israel could not be regarded as a bilateral matter, but as issues “of particularly acute concern to the United Nations, their [sic] activity as a Court,” PCIJ, Status of Eastern Carelia, Advisory Opinion of 23 July 1923, Series B, No. 5, 7, 29 has always guided the Court. 94 Legal Consequences (note 1), para. 53. 95 Western Sahara (note 5), 25, para. 32. 96 Id., 25, para. 34.

360

Andrea Bianchi

and one which is located in a much broader frame of reference than a bilateral dispute.”97 Therefore, in the circumstances the Court did not consider that by giving an opinion it would circumvent the principle of consent to judicial settlement and that, accordingly, it could not exercise its discretion to decline to give the opinion. This part of the Opinion has been heavily criticized by Judges Higgins and Owada for its narrow reading of Western Sahara, which they both considered, in accordance with the Court, the controlling precedent.98 In particular, criticism was raised against the omission by the Court of a passage in which the Court considered the object of the request as being that of obtaining an opinion from the Court which could be of assistance to the General Assembly for the proper exercise of its functions, and not that of submitting a dispute to the Court with a view to exercising its powers and functions over that dispute on the basis of the Court’s opinion. Judge Higgins goes as far as saying that by keeping silent on the matter the Court revises its prior case law on matters of judicial propriety.99 With regard to the object of the General Assembly’s request, particularly compelling is the reasoning developed by Judge Kooijmans. Having acknowledged the impossibility by the Court to eschew the politicization of its opinion once the General Assembly took the decision to address the request to it,100 he then wondered what the purpose of the opinion actually was and to what extent the Court should reconsider its content. The underlying issue is that by this request the General Assembly may obtain a reversal of roles, with the Court being called to exercise political pressure on a State, which, in principle, pertains to the General Assembly itself.101 Eventually, this consideration does not amount to a reason for Judge Kooijmans to dissent from the Court’s decision to render the opinion. In his view the Court’s reconsideration of the legality of Israel’s 97

Legal Consequences (note 1), para. 50. See Id., Separate Opinion of Judge Higgins, para. 12; Separate Opinion of Judge Owada, para. 12. 99 See Id., Separate Opinion of Judge Higgins, para. 13. But one should consider also the dictum of the Court in Nuclear Weapons (note 7), 237, para. 16: “[I]t is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs.” One may doubt the existence of solid and well established doctrine on this point. 100 Legal Consequences (note 1), Separate Opinion of Judge Kooijmans, para. 21. 101 Id., para. 23. 98

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

361

conduct was made necessary not so much by the formulation of the request made by the General Assembly, but rather by the fact that the Court should have done so proprio motu “in order to uphold its judicial dignity.”102 At closer scrutiny it is fair to say that the different factors examined by the Court with a view to judging the propriety of the exercise of its jurisdiction could have led to the opposite conclusion. It all comes down to a matter of appreciation, all the more so when one considers the argument that the Court would not have sufficient information and evidence for its deliberation. As is known, this is the reason Judge Buergenthal set forth as the main reason for his dissent from the Court’s decision to render the opinion.103 The same argument was qualified by Judge Kooijmans as one which does not hold water.104 Not too dissimilar considerations apply to the potential impact of the opinion on ongoing political negotiations to solve the underlying dispute. Here the Court simply said that it was not clear what influence the opinion could have on the negotiations, without giving any further explanation.105 The Court has not been invariably adamant and persuasive in its reasoning, but instead has comfortably floated in the calm waters of its rather vague doctrine of judicial propriety. In fact, the elaboration by the Court of a specific doctrine on judicial propriety, the contours of which can be twisted and turned and which have remained rather indiscernible over time, is not so astounding. In fact, judicial propriety is but one of the instruments that the Court has at its disposal to shape its judicial policy. Overall, after looking at the different stances taken by individual judges as regards matters of judicial propriety, one is left with the impression that the disagreement bore more generally on the judicial policy that the Court ought to follow than on technical issues and the interpretation of its prior case law. It is not the first time, and arguably not the last, that different perceptions emerge among the judges about how the Court should reach the desired outcome in a particular case. Evidence of this attitude can be traced, with regard to the case at hand, to some of the individual opinions attached to the judgment. While not dissenting

102 103 104 105

Id., para. 26. See id., Declaration of Judge Buergenthal, para. 1. Id., Separate Opinion of Judge Kooijmans, para. 28. Legal Consequences (note 1), para. 53

362

Andrea Bianchi

from the Court’s majority findings, Judge Owada emphasized that the Court should have more attentively considered the issue of fairness in the administration of justice and confined itself to answering the specific question posed to it by the General Assembly, “keeping in balance the overall picture which has formed the entire background of the construction of the wall.”106 The hortatory statement that the Court “should approach the subject-matter in a balanced way” hardly hides Judge Owada’s implicit judgment that it did not. What Judge Owada barely dared voice was expressly stated by Judge Higgins in her opinion. While concurring with the majority, albeit “with considerable hesitation,” she emphasized that the Court should have taken more into account the general context of such a multifaceted dispute, in considering whether or not it was proper to exercise jurisdiction. Having looked at just one part of the “greater whole,” the Court could not avoid the “huge imbalance” which characterizes the opinion according to Judge Higgins.107 In particular, she would rather have emphasized and placed the call on both parties, Israelis and Palestinians, to act in accordance with international law within the dispositif of the opinion.108 Overall, one has the impression that the Court did not depart remarkably from its jurisprudence on the issue of judicial propriety. The reason for such a finding is that the Court has left for itself such a wide margin of discretion that it is hard to depart from its doctrine of judicial propriety one way or the other. One may even aptly doubt the possibility of qualifying as a doctrine a series of considerations, spread out in its case law, which are not necessarily cohesive. On balance, the arguments raised could account for acceptance and refusal to give the opinion, depending on the weight that each and every judge was ready to accord to the factors that were considered. What must have prevailed within the Court is the sense that wider considerations of judicial policy, quite regardless of the doctrine it elaborated and refined, particularly in its advisory opinion on Western Sahara, called for the exercise of jurisdiction in the case at hand. This must have been perceived as a desired outcome and the arguments were adjusted accordingly with some dissonances.

106

See id., Separate Opinion of Judge Owada, para. 27. See id., Separate Opinion of Judge Higgins, para. 18. 108 The call on the responsibility of both parties appears in the body of the text, Legal Consequences (note 1), para. 162. 107

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

363

D. Tearing the UN Institutional Equilibrium to Pieces: The Security Council as the Great Loser In determining whether it had jurisdiction to render the opinion, the Court broached some general issues which may have a remarkable impact on the interinstitutional equilibrium among the main organs of the United Nations. Of particular relevance is the determination that the Court made concerning the allegation set forth by Israel that the General Assembly had acted ultra vires under the Charter when it made the request for the advisory opinion. In that respect the Court noted that the General Assembly possesses, under Article 11 para. 2 of the Charter, the competence to discuss questions relating to the maintenance of international peace and security.109 Furthermore the Court underscored that under Article 12 para. 1, the General Assembly may not make any recommendation on any dispute or situation with respect to which the Security Council is exercising the functions assigned to it in the Charter. This provison, which limits the operation of the other articles of the Charter taken up with the general competence of the General Assembly, was interpreted by the Court with reference to the relevant texts and practice of the United Nations. Relying on what it had stated in its advisory opinion in the Certain Expenses of the United Nations Case,110 it observed that under Article 24 of the Charter the responsibility of the Security Council was defined as “primary” and not necessarily exclusive. It went on to add that, although the early practice of the organization had been to the effect of interpreting the wording of Article 12 strictly, over time there had been an increasing tendency for the Security Council and the General Assembly to deal in parallel with the same matters concerning the maintenance of international peace and security.111 In light of this accepted practice, which the Court regarded as consistent with Article 12, the Court concluded that the General Assembly had not exceeded its competence in submitting to it a request for the advisory opinion. As regards the contention that the “essential conditions” set out by Resolution 377 A (V), under which the Tenth Emergency Special Session had been convened and continued to act, were not fulfilled, the Court found that the procedural requirements were met, as the Security Council had failed to exercise its primary responsibility for the maintenance of international peace and security 109 110 111

Legal Consequences (note 1), para. 17. Certain Expenses (note 7), 163. Legal Consequences (note 1), para. 27.

364

Andrea Bianchi

and as the situation was one which appeared to be a threat to the peace, breach to the peace or an act of aggression. In particular, it is of note that the Court considered that the Security Council had failed to act by not discussing the issue of the construction of the wall and by not adopting any resolution in that respect.112 The Court concluded that no rule of the organization had been traced which would have been violated by the fact that the emergency and regular sessions of the General Assembly had been held simultaneously, “so as to render invalid the resolution adopting the present request for an advisory opinion.”113 Furthermore, the Court saw no reason to rebut the presumption formulated by the Court in its 1971 advisory opinion on Namibia, whereby a “resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to be valid.”114 The reasoning of the Court is far-reaching, but it is not flawless. What the Court actually did is to exercise a fairly intrusive judicial review on the validity of the General Assembly resolution by which it had been seized. Such an exercise of judicial review took place under the guise of an examination of its own competence to render an opinion. In other words, while examining its competence, the Court purposely inquired about the formal validity of the resolution. This is not entirely novel in the jurisprudence of the Court, despite the Court’s statement of principle about the absence within the UN of a judicial control system. It might be worth recalling that in its advisory opinion on Namibia, the Court had expressly declared itself not to possess “powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.”115 Having said that, the Court did not hesitate to exercise judicial control on General Assembly Resolution 2145 (XXI)116 and related Security Council resolutions. The same seems to have happened in the case at hand, with the Court upholding the validity of Resolution ES-10/14.

112

A draft resolution intended to condemn the construction of the wall was vetoed by a permanent member of the Security Council, UN Doc. S/PV.4841 and S/PV.4842. 113 Legal Consequences (note 1), para. 34. 114 Namibia Case (note 27), 16, 22, para. 20. 115 Id., 45, para. 89. 116 GA Res. 2145 (XXI) of 27 October 1966.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

365

The ambiguity of its attitude is all the more evident when one realizes that the Court ended this part of its opinion by recalling its doctrine of presumption of validity of the resolutions adopted by properly constituted organs of the United Nations.117 It is odd indeed to resort to the presumption of validity after having thoroughly investigated the validity of the resolution in question in the preceding paragraphs. Be that as it may, it is hard not to concede that the Court, while formally respecting the principle of equality of the main organs of the United Nations, which is well reflected in the presumption of validity doctrine, ended up doing things that are hardly compatible with its stated intention. If one looks at the way Article 12 of the Charter has been interpreted by the Court, further criticism can be raised. In the first place, the weight attributed to the practice of one organ of the organization seems disproportionate with respect to the other interpretive criteria generally accepted in international law. Furthermore, it seems instrumental to achieve the desired outcome by providing an evolutive interpretation of Article 12. By qualifying the practice for the Security Council and the General Assembly to deal in parallel with matters of international practice as “accepted,” the Court may have gone a step too far, as it was precisely on this basis that it found the General Assembly to have acted within the realm of is competence and limits thereto attached by Article 12. The extent to which the unilateral practice of one organ of an international organization can bring about statutory changes may turn out to be more controversial than the Court seems to have indirectly assumed.118 Other international tribunals in a similar context have reached a different conclusion. It may be recalled, for example, that the European Court of Justice held in France v. Commission that “a mere practice cannot override the provisions of the Treaty.”119 Also Sir Percy Spender, in his individual opinion on Certain Expenses, had expressed serious doubts about equating the practice of on organ of the UN with the conduct of parties to an agreement for the purposes of interpretation.120 Moreover, he ex117

Legal Consequences (note 1), para. 35. In the Namibia Case (note 27), 22, para. 22, the Court had recognized such a possibility in regard to Art. 27 para. 3 of the Charter, concerning the practice of abstention of a permanent member in the voting of the Security Council. But the position of the Court is not clear on this point. In effect, the formulation used by the Court substantiates at once the idea of the customary modification of the Charter and the idea that subsequent practice is only a means of interpretation. 119 Case C-327/91, French Republic v. Commission, 1994 ECR I-3641, para. 36. 120 See Certain Expenses (note 7), Separate Opinion of Judge Sir Percy Spender, 182, 189–195. 118

366

Andrea Bianchi

pressed his disagreement with the view that “a common practice pursued by an organ of the United Nations, though ultra vires and in point of fact having the result of amending the Charter, may nonetheless be effective as a criterion for interpretation.”121 Even more importantly, however, the Court’s interpretation of Article 12 heavily relies on the effects of Resolution 377 A (V), the validity of which, under the law of the Charter, has been far from being uncontroversial until now.122 By submitting its evaluation of the validity of Resolution ES-10/14 to the procedural requirements set up by the “Uniting for Peace”-Resolution the Court indirectly upheld its validity. As Judge Kooijmans aptly pointed out in his separate opinion it is not particularly convincing to treat Resolution 377 A (V) “as a separate item and merely in relation to its procedural requirements,”123 for the Court’s finding that Resolution ES-10/14 does not infringe Article 12 para. 1 of the Charter “cannot be dissociated from the effect resolution 377 A (V) had on the interpretation of that provision.”124 The above considerations become even more compelling when one realizes that Article 12 plays a key role in preserving the institutional balance between two of the main organs of the United Nations. Disruption of this balance by the intervention of a third organ, namely the principal judicial organ of the organization, may have important systemic repercussions. Indeed, wondering what consequences may stem from what the Court said may cause one to raise rather intriguing questions. First of all, it is self-evident that this has remarkably expanded the competence of the General Assembly. If it is a fact that over time the General Assembly has increased its political importance,125 the judicial sanction121

Id., 190. See, among others, Michel Virally, L’organisation mondiale, 1972, 116: “[L]a constitutionnalité de la Résolution 377 (V) demeure […] un point extrêmement douteux.” The commentators who support the legitimacy of the resolution also note limitations. See, for instance, Derek Bowett, United Nations Forces, A Legal Study of the United Nations Practice, 1964, 293: “[T]he authority of the Assembly to recommend military operations under […] the Uniting for Peace Resolution does not go beyond the proper limits of its authority as defined in the Charter, certainly if the operations are ‘peace-keeping’ operations and not ‘enforcement action.’” 123 Legal Consequences (note 1), Separate Opinion of Judge Kooijmans, para. 15. 124 Id., para. 16. 125 See Michel Virally (note 122), 115 who notes that “considéré comme politiquement secondaire par les fondateurs de la Charte, le domaine propre de l’Assemblée Générale n’a cessé de s’étendre en volume et importance.” 122

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

367

ing of the extension of its powers under the Charter adds further value to this process. This is all the more so with regard to matters concerning international peace and security on which the Security Council was supposed to have primacy in the original design of the Charter. To hold that, when the Security Council is unable to act and discharge its functions under the Charter, the General Assembly may take over is tantamount to divesting the Council of its main prerogative, remarkably tampering with the institutional balance of the Charter on one of the most sensitive issues of international law and politics. To uphold the legitimacy of the “Uniting for Peace”-Resolution– which was not to be taken for granted despite doctrinal efforts to characterize it as consistent with the Charter126 – was a bold step – particularly in a system such as that of the United Nations, where, at least in principle, all the organs are regarded as specialized, equal and competent to determine their own competence and in which no specific guidance is provided on interpretive issues.127 In the first place this stance makes the doctrine of parallelism of powers and functions, previously elaborated by the Court128 with regard to the relationship between itself and the political organs of the United Nations, a smoke-screen, behind which it feels free to reallocate powers attributed to the various organs of the Charter and to exercise a judicial control on the validity of their acts. Analogous considerations apply to the presumption of validity of resolutions which is used rather instrumentally by the Court to disguise its scrutiny of the acts of other organs. Secondly, who will ascertain whether or not the Security Council has failed to discharge its responsibility under the Charter? Is it necessary that the Council be blocked by the exercise of a veto by one of the perma126

See Juraj Andrassy, Uniting for Peace, American Journal of International Law (AJIL), vol. 50, 1956, 563–582; Francis Aimé Vallat, The Competence of the United Nations General Assembly, Recueil des Cours (RdC), vol. 97, 1959, 206, 261–267; Nigel White, The United Nations and the Maintenance of International Peace and Security, 1990, 129–133. 127 See Mohammed Bedjaoui, The New World Order and the Security Council, Testing the Legality of its Acts, 1994, 12. 128 ICJ, United States Diplomatic and Consular Staff in Tehran (United States v. Iran), ICJ Reports 1980, 3, 21–22, para. 40; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction of the Court and Admissibility of the Application, Judgment of 26 November 1984, ICJ Reports 1984, 392, 434–435, para. 95; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993, ICJ Reports 1993, 3, 18–19, para. 33.

368

Andrea Bianchi

nent members as suggested in the opinion of Judge Kooijmans129 and as the contingencies of the case seem to purport?130 Although this would seem to be the prerequisite for triggering the competence of the General Assembly, at least on the basis of the “Uniting for Peace”-Resolution, it is not unreasonable to speculate that, at a time when the collective security system is seriously called into question, someone may be tempted to argue that “failure to act” is synonymous with “failure to act promptly,” or “failure to act fairly” or “failure to act effectively” and so on, thus paving the way for abuse. Particularly troubling would be the hypothesis in which the Security Council does not act because of a disagreement on whether a certain situation represents a threat to peace and security.131 To substitute the judgment of the General Assembly for that of the Security Council on such a delicate matter which the constitutive treaty specifically entrusted to the Council would hardly be compatible with the letter and the spirit of the Charter. It may very well be that these risks should not be overestimated and it is true that the Court could always reconsider the matter if it were to be seized directly of the issue of the validity of the “Uniting for Peace”-Resolution. Any such revirement would not be unprecedented. It suffices to recall that in its recent judgment on the Legality of Use of Force the Court dismissed the case on jurisdictional grounds, stating that Yugoslavia was not a member of the United Nations at the time of its request and therefore had no standing (ratione personae),132 whereas in its Order on interim measures it had carefully avoided the issue and dismissed the request on other grounds, most notably lack of jurisdiction rationae temporis and ratione materiae.133 In a passage of the judgment the Court explained that “[t]he function of a decision of the Court on its juris129

Legal Consequences (note 1), Separate Opinion of Judge Kooijmans, para. 16. Legal Consequences (note 1), paras. 20, 31. 131 As has been pointed out, the exercise of the veto power “is not necessarily aimed at paralysing the security mechanisms of the UN. It may well be based on the conviction that there is no threat to the peace or that a State is wrongly accused of having committed an act of aggression,” Kay Hailbronner/Eckart Klein, Art. 12, mn. 13, in: Bruno Simma, The Charter of the United Nations, A Commentary, vol. I, 2nd ed. 2002. 132 ICJ, Legality of Use of Force (Serbia and Montenegro v. Belgium), Judgment of 15 December 2004, available at: http://www.icj-cij.org/icjwww/idocket/iybe/iybeframe. htm. 133 Some of the judges criticized the shift: see Id., Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby. 130

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

369

diction in a particular case is solely to determine whether or not the Court may entertain the case on the merits, and not to engage in the clarification of a controverted issue of a general nature.”134 Incidentally, this case could also be seen as one in which the Court ended up encroaching on the competence of the political organs of the United Nations, in so far as the Court did not uphold their ambiguous determinations on the status of former Yugoslavia within the United Nations.135 By the same token, the Court could easily distinguish the case for reviewing the validity of “Uniting for Peace” in a different context and maintain that in the advisory opinion on the Israeli wall it had simply made use of the presumption of validity of resolutions. Be that as it may, the considerations advanced by the Court in respect of Article 12 and the actual exercise of judicial review over the acts of another organ may have serious repercussions on the institutional equilibrium within the United Nations. It is too premature to tell whether these concerns are wellfounded, but there is no doubt that what the Court said is potentially far-reaching. To conclude on a more general note, it is interesting that the message coming from the Court is at odds with on-going political efforts to bring about reform within the United Nations, which seem to be advocating the strengthening of the Security Council’s prerogatives on matters of international peace and security.136 E. The Interplay of Human Rights and International Humanitarian Law in the Jurisprudence of the Court It may very well be that the treatment of international humanitarian law issues by the Court in this opinion was “light,” to use the characterization made of it by Judge Higgins in her concurrent opinion.137 It may also be the case that 134

Legality of Use of Force (note 132), para. 38. Id., Separate Opinion of Judge Higgins, para. 20. 136 See the Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, paras. 244–260. 137 See Legal Consequences (note 1), Separate Opinion of Judge Higgins, para. 25. On the treatment by the Court of the relevant humanitarian law issues see Rosemary Abi-Saab, “Consequences juridiques de l’édification d’un mur dans le territorie palestinien occupé.” quelques réflexions préliminaires sur l’avis consultative de la Cour internationale de Justice, Revue international de la Croix Rouge (RICR), vol. 855, 2004, 633–657. 135

370

Andrea Bianchi

the way in which the Court tackled the issue of the scope of application of particular human rights instruments and the applicability of some of their provisions to the factual matrix of the case was too hasty at times. It should not go unnoticed, however, that the Court, in determining the applicable law, had to face the preliminary issue of the relationship between human rights and humanitarian law.138 This issue did not come as a novelty, for the Court had already pronounced on this very matter in its previous advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. In 1996 the Court had said, in relation to the applicability of Article 6 of the ICCPR, that the protection of the Covenant “does not cease in times of war, except by operation of Article 4.” It then went on to say that what constitutes an arbitrary deprivation of life in hostilities must be determined by the applicable “lex specialis, namely the law applicable in armed conflict.”139 Along similar lines in its advisory opinion on the Israeli wall, the Court, while restating the continuing applicability of human rights treaties in case of armed conflict, held that while “some rights may be exclusively matters of humanitarian law and others may be exclusively matters of human rights law, […] yet others may be matters of both these branches of international law.” The Court concluded by stating that in order to provide an answer to the question put to it, it “will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.”140 The consequences of the latter statement can be far-reaching were one to interpret it in the sense that whenever in times of armed conflict there are rights that are provided for in both human rights and humanitarian law, the latter’s regulation should always prevail as lex specialis. Incidentally, this is precisely what 138 See on the general subject, Robert Quentin-Baxter, Human Rights and Humanitarian Law – Confluence or Conflict?, Australian Yearbook of International Law, vol. 9, 1985, 94–105; Louise Doswald-Beck/Sylvain Vité, Le droit international humanitaire et le droit des droits de l’homme, RICR, vol. 800, 1993, 94–128; Theodor Meron, Convergence of International Humanitarian Law and Human Rights Law, in: Daniel Warner (ed.), Human Rights and Humanitarian Law. The Quest for Universality, 1997, 97–105; Theodor Meron, International Law in the Age of Human Rights, General Course on Public International Law, RdC, vol. 301, 2003, 79–81. 139 Nuclear Weapons (note 7), 240, para. 25. See on this point of the opinion, Vera Gowlland-Debbas, The Right to Life and Genocide: The Court and International Public Policy, in: Laurence Boisson de Chazournes/Philippe Sands (eds.), The International Court of Justice and Nuclear Weapons, 1999, 315, 318–330. 140 Legal Consequences (note 1), para. 106.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

371

the literal interpretation of the Court’s opinion seems to purport. If what the Court meant to say is precisely that international humanitarian law en bloc should systematically and invariably operate as lex specialis with regard to human rights law, it is not difficult to envisage the consequences that may follow. For instance, the right to fair trial is guaranteed in a different way under human rights and humanitarian law. Whereas detailed guarantees exist in human rights treaties which have spelled out the content of the right,141 in a situation of non-international armed conflict, one is left with the rather minimal and indeterminate guarantees enshrined in common Article 3. Along similar lines, the notion of inhumane treatment or the right to protection from arbitrary detention142 under international humanitarian law do not enjoy the same degree of specificity that they have acquired in human rights law, due to more detailed regulation and judicial interpretation. The numerous attempts to have the rules of the two branches converge on a minimum common standard applicable at all times further attests to the widespread perception that the regimes should be complementary and mutually supportive rather than being considered in contradistinction with each other.143 Besides the consequences which may ensue from it, the Court’s framing of the relationship between human rights and humanitarian law lends itself to criticism. First of all, it is useful to remember that there are basically two ways of using the lex specialis criterion. On the one hand, one may speak of speciality rationae personae, when, for example, a treaty stipulated between two States derogates from customary law144 or when a local custom departs from the general custom.145 In other words, the regulation of a certain subject matter adopted 141

See, for instance, ICCPR (note 50), Art. 14. See Susan Marks/Andrew Clapham, Detention, in: Human Rights Lexicon, 2005 (forthcoming, on file with the author). 143 Syracusa Principles, Turku Declaration, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res. 43/173 of 9 December 1988. 144 An example can be drawn from the case-law of the Iran-US Claims Tribunal: “[A]s a lex specialis in the relations between the two countries, the Treaty supersedes the lex generalis, namely customary international law,” Amoco Int. Finance Corp. v. Iran, Award of 14 July 1987, Iran-US Claims Tribunal Records, vol. 15, 1987, 189, para. 112. 145 See the statement of the ICJ on local custom: “Where […] the Court finds a practice clearly established between two States which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that 142

372

Andrea Bianchi

by some States may well be regarded as special in contradistinction with the regulation of the same subject matter provided by general international law. However, lex specialis may also operate ratione materiae, when more detailed and specific rules are provided with respect to more general regulation of the same subject. For instance, in its case law the European Court of Human Rights considers Article 6 on fair trial, including the right to have access to a judge, lex specialis in relation to Article 13 of the European Convention on Human Rights, which enshrines the individual right to an effective remedy.146 In the same way, Article 11 on freedom of association, which includes freedom to express one’s opinions at meetings, is regarded as lex specialis in relation to Article 10, which concerns, generally, freedom of expression.147 Against this background, one may be tempted to share the Court’s view that international humanitarian law could be considered lex specialis in relation to human rights law, its speciality being ratione materiae. However, this interpretation is oblivious of the fact that the situations triggering the applicability of international humanitarian law standards are provided for and regulated in human rights treaties by derogation clauses.148 This is why the approach taken by the Court is inherently flawed. The idea that international humanitarian law can automatically and entirely replace human rights law is inconsistent with derogation clauses. The latter are subject to the respect of the strict conditions therein provided and, in any event, would allow only for a partial substitution of the standards otherwise applicable in peacetime, as non-derogable rights must be respected at all times, regardless of the circumstances or characterization of the state of emergency. Furthermore, as the Human Rights Committee’s General Comment No. 29 on Article 4 suggests, the range of non-derogable provisions has to be expanded by way of an interpretation of Article 4 that takes into ac-

practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules,” ICJ, Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, ICJ Reports 1960, 6, 44. 146 See, among others, Eur. Court H.R., Kadubec v. Slovakia, Judgment of 2 September 1998, Reports of Judgments and Decisions 1998-IV, para. 64. 147 See Eur. Court H.R., Ezelin v. France, Judgment of 26 April 1991, Series A, No. 202, para. 35. 148 See ICCPR (note 50), Art. 4; European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5, Art. 15; American Convention on Human Rights, 22 November 1969, UNTS, vol. 1144, 123, Art. 27.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

373

count the changes in human rights and humanitarian law that have occurred since the adoption of the ICCPR.149 A much more sensible approach to this issue has been adopted by the Human Rights Committee in its General Comment No. 31. The Committee, while restating the applicability of the Covenant in situations of armed conflict and acknowledging that “more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights,” made clear that “both spheres of law are complementary, not mutually exclusive.”150 This stance seems to have inspired the practice of some human rights international supervisory organs that have interpreted somewhat more flexibly the statement of the Court in the Legality of the Threat or Use of Nuclear Weapons. It is of note that the Inter-American Commission on Human Rights, while endorsing the special character of international humanitarian law for the purposes of determining the arbitrary character of detention, nonetheless interpreted its standards in conjunction with and in the framework of the relevant provisions of the American Declaration.151 The Inter-American Court of Human Rights has also taken international humanitarian law standards as a reference when interpreting the Inter-American Convention in the Bámaca Velázquez Case.152 The ICJ clearly departed from this trend when it restated in general and fairly sweeping terms the special character of international humanitarian law en bloc in relation to human rights law. If interpreted in isolation from the subsequent paragraphs, this statement may pave the way for advocating the exclusive application of international humanitarian law in time of armed conflict.153 Should 149

See General Comment No. 29 of the Human Rights Committee on States of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11 (2001). 150 General Comment No. 31 (note 52), para. 11. For a similar approach, see the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, paras. 143–144, available at: http://www.un.org/ News/dh/sudan/com_inq_darfur.pdf. 151 Inter-American Commission on Human Rights, Coard et al. v. United States, Report No. 109/99 of 29 September 1999, reprinted in: International Human Rights Reports, vol. 8, 2001, 68. 152 Inter-American Court of Human Rights, Bámaca Velázquez v. Guatemala, Judgment of 25 November 2000, Series C, No. 70, paras. 208–209. 153 See, in particular, the ending clause of Legal Consequences (note 1), para. 106: “In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis,

374

Andrea Bianchi

such an interpretive stance prevail, the only added value of the Court’s approach would be that human rights law would remain applicable to rights which are not covered by international humanitarian law. The repercussions of such an approach are self-evident. Not only will it make the interplay between these two branches of the law less smooth and more rigid. It will reinforce also the belief that certain regimes can be considered as lex specialis with respect to general international law and other treaty obligations even when the latter provide for non-derogability of some of their provisions.154 F. New Scenarios and Old Paradigms: The Conservative Stance on the Use of Force In a fairly convoluted part of its opinion, the Court broached the issue of the use of force, in relation to Israel’s contention that the construction of the wall “is a measure fully consistent with the right of States to self-defense enshrined in Article 51 of the Charter.” In just one paragraph, the Court rather quickly dismissed this argument, holding that Article 51 is only applicable in the case of an “armed attack by one State against another State” and that the threat which Israel considered as justifying the construction of the wall “originates within, and not outside” the Territory over which Israel has control.155 This was a reason for the Court to rather confusingly distinguish Resolutions 1368 and 1373 adopted by the Security Council in 2001, which, in the view of the Court, Israel “could not in any event invoke” in support of its claim of self-defense.156 The somewhat obscure formulation used by the Court can be interpreted in many different ways. What seems to be clear, however, is that the Court coninternational humanitarian law.” Any such interpretation would run counter to what the Court states later concerning the continuing applicability of human rights obligations not covered by derogations under Art. 4 of the ICCPR, see id., para. 136. 154 It may be recalled that the International Law Commission decided at its fiftysecond session in 2000 to include the topic entitled “Risks Ensuing from Fragmentation of International Law” in its program of work, Report of the International Law Commission to the General Assembly on the Work of its Fifty-Second Session, UN Doc. A/55/10 (2000), Annex (ILC Report 2000). One of the studies to be undertaken in this framework is entitled “The Function and Scope of the lex specialis Rule and the Question of ‘SelfContained regimes,’” Report of the International Law Commission to the General Assembly on the Work of its Fifty-Fourth Session, UN Doc. A/57/10 (2002), para. 512. 155 Legal Consequences (note 1), para. 139. 156 Id.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

375

ceives of self-defense under Article 51 of the Charter as a response to a prior armed attack of one State against another State, thus apparently closing the door to any argument that self-defense can be claimed against non-State actors. The Court privileged a rather conservative approach to the issue of self-defense, reading into Article 51 a requirement of State action which is not expressly contemplated, and declined to shed light on the much more intriguing issue of what may constitute an armed attack. On these grounds, Judge Higgins, although feeling compelled to stand by the majority, expressed strong reservations on such a narrow reading of self-defense,157 which is more the result of the Court’s interpretation in Nicaragua than an accurate interpretation of Article 51 of the Charter.158 Eventually Judge Higgins stood by the majority on the conviction that non-forcible measures such as the construction of a wall are not amenable within self-defense under Article 51 “as that provision is normally understood,” and that even if it were so the requirements of necessity and proportionality would not be met in the circumstances.159 More troubling is the interpretation of the Court’s distinction of Security Council Resolutions 1368 and 1373. Was this meant by the Court to leave the door open for the exercise of self-defense in case of terrorist attacks? Would that mean that no State action is required when the exercise of self-defense is meant to counter a terrorist attack? How should one interpret the fact that the Court concluded its treatment of the subject by merely stating that Article 51 has no relevance in the case at hand?160 Would it entail that Resolutions 1368 and 1373 could have been relevant had the attack come from a territory over which Israel had no control? It is difficult to provide an answer to the above queries. Judge Kooijmans, while regretting that the Court “by-passed” the novelty of the Security Council approach to self-defense as sanctioned in the two above-mentioned resolutions, interprets the distinction drawn by the Court as one relating to the absence of an international element in the terrorist attacks against Israel, which would be a reason to consider the two resolutions and Article 51 irrelevant.161 This contention that no attack coming from a territory over which the victim State has control could be qualified as such for the purposes of self-defense is difficult to reconcile with the stance, taken previously by the 157 158 159 160 161

Id., Separate Opinion of Judge Higgins, para. 33. Nicaragua Case (note 12), 14. Legal Consequences (note 1), Separate Opinion of Judge Higgins, para. 35. Legal Consequences (note 1), para. 139. Id., Separate Opinion of Judge Kooijmans, paras. 35–36.

376

Andrea Bianchi

same Court, that the military activities of irregulars sent by or acting on behalf of a State can amount to an armed attack.162 As Judge Higgins pointed out, the difficulty lies in the determination of “the scale and effects” of the attack, rather than in the issue of whether the attack comes from outside or inside the territory.163 It may very well be that no interpretive sophistication could ever convincingly account for such an obscure statement, simply because the Court opted for a foggy and ambiguous wording in an attempt to conceal the disagreement existing among its ranks. If that was indeed a deliberate choice on the part of the Court, its wisdom could aptly be questioned, as every reader is going to interpret the ambiguity for their own purposes, thriving either on the majority’s opinion or on the separate opinions of Judge Higgins and Judge Kooijmans, or on the declaration by Judge Buergenthal. The Court, therefore, has probably missed a chance to provide reliable guidance to the international community on the matter of the use of force at a time of uncertainty and political divisiveness. It is quite telling that the declaration of the US Permanent Representative at the United Nations, explaining the reasons for the US voting against the resolution endorsing the ICJ’s advisory opinion, is mainly taken up with the issue of selfdefense, stressing the “confusing and troubling interpretation of Article 51” by the Court and the “irrelevance” of the Charter were Article 51 to be interpreted the way in which the Court suggested.164 For reasons elaborated elsewhere,165 this commentator believes that unconditional reliance on a restrictive reading of the UN Charter is unlikely to produce the desired outcome of limiting the instances in which States resort to force. As recent practice demonstrates, a too narrow and formalistic reading of the Charter may bring about such perverted effects as the mischaracterization of uses of 162 Nicaragua Case (note 12), 103–104, para. 195. See also GA Res. 3314 (XXIX) of 14 December 1974 on the Definition of Aggression, Art. 3 lit. g: “The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above or its substantial involvement therein.” 163 See Legal Consequences (note 1), Separate Opinion of Judge Higgins, para. 34. 164 Statement by Ambassador John Danforth, US Representative to the United Nations, on the Situation in the Middle East, to the General Assembly, 16 July 2004, available at: http://usinfo.state.gov/mena/Archive/2004/Jul/19-585878.html. 165 Andrea Bianchi, Enforcing International Law Against Terrorism: Achievements and Prospects, in: Andrea Bianchi (ed.), Enforcing International Law Against Terrorism, 2004, 491, see particularly 504–509.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

377

force to avoid charges of illegality. Particularly illustrative is the tendency to justify on the basis of self-defense acts which should be characterized as armed reprisals.166 By the same token, the intellectual mystifications that have been used to support the theoretical underpinnings of the pre-emptive strike doctrine167 have been presumably prompted by the attempt to stretch well beyond reasonableness the notion of self-defense, traditionally referred to as the only generally admitted exception to the ban on the unilateral use of force. It is undeniable that the current international regulation of the use of force, as traditionally represented, is perceived by some segments of the international community, including the sole superpower and its closest allies, as too restrictive. This is why attempts are regularly made to circumvent it by interpretive means. Nor is it entirely persuasive to argue that acquiescence on certain uses of force can be easily dismissed as a political act deprived of legal significance.168 A much more productive way to broach this issue would be to wonder to what extent international practice gives support to the various claims that have been set forth by States when they have used force outside the framework of the UN collective security system.169 After all, the dynamic character of general international law-making can provide a useful alternative. Particularly at a time when numerous international fora are available for States to assert their claims and 166

For instance, the bombing of Sudan and Afghanistan in 1998, following the terrorist attack against American embassies in Africa, or the 1993 bombing against Baghdad. On the general subject of armed reprisals, see Derek Bowett, Reprisals Involving the Use of Force, AJIL, vol. 66, 1972, 1. 167 See, The National Security Strategy of the United States, September 2002, available at: http://www.whitehouse.gov/nsc/nss.pdf. See also Abraham Sofaer, On the Necessity of Pre-Emption, European Journal of International Law (EJIL), vol. 14, 2003, 209–226; William H. Taft IV, Preemptive Action in Self-Defense, ASIL Proceedings, vol. 98, 2004, 331–333. 168 Marcelo Kohen, The Use of Force by the United States After the End of the Cold War and Its Impact on International Law, in: Michael Byers/Georg Nolte (eds.), United States Hegemony and the Foundations of International Law, 2003, 197, 221–226. 169 In this respect, the fact that the military operation against Afghanistan was largely approved of by States, even though its amenability within Art. 51 was far from being established is particularly relevant (for an overview of the reaction by States to this intervention, see Jack M. Beard, America’s New War on Terror: The Case for SelfDefense Under International Law, Harvard Journal of International Law and Policy, vol. 25, 2002, 559.) At the same time, the condemnation of the military intervention in Iraq by the large majority of States carries with it the sense that States are unwilling to uphold exceptions to the use of force grounded on such justifications as preventive selfdefense or regime change.

378

Andrea Bianchi

react to those advanced by others, it is somewhat easier to establish opinio juris than it might have been the case in the past.170 In no way should the above considerations be interpreted to mean that the prerogatives of the Security Council under Chapter VII should be circumvented and that the ban on the use of force should be seriously called into question. If the Security Council could fairly and effectively discharge its functions under the Charter the problem would not arise. The issue is that when the Security Council finds itself blocked by political contingencies, one cannot leave States free to appreciate unilaterally the legality or illegality of their conduct, taking advantage of the real or alleged indeterminacy of the state of the law on this matter. What seems to matter most is to find common standards and limits to the use of force that are generally accepted by States and that may reflect a general consensus, regardless of the formal legal sources from which one draws them. This approach would assure a much higher degree of predictability of the law than is the case at present. One may only note with some regret that the Court has failed to take a consistent stance on the matter. Its lack of clarity risks adding to the confusion and igniting an even more disruptive debate on the legality of the use of force and the limits attached thereto. G. Assessing the Legal Consequences … of the Legal Consequences Envisaged by the Court After determining the illegality of the construction of the wall by Israel in the occupied territories, the Court set out to draw the legal consequences of such an illegal situation. In answering this question, which was at the core of the General Assembly’s request for its opinion, the Court had to tackle important issues of State responsibility. Without expressly referring to it, the Court seems to have followed rather closely the ILC’s Articles on State Responsibility, noted by the General Assembly in Resolution 56/83.171 This is particularly true for the determination by the Court of the legal consequences for the wrongdoing State. Israel was declared by the Court to be under the continued obligation to comply with its international obligations, to put an end to the violations stemming from the construction of the wall and to provide reparation. The latter duty is broken down into two different obligations. On the one hand Israel is to provide restitu170 171

Jonathan Charney, Universal International Law, AJIL, vol. 87, 1993, 529. See, supra, note 64.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

379

tion whenever possible. On the other, it must compensate all those who have suffered damage.172 In looking at the consequence for Israel of its responsibility, one readily recognizes the structure of the general principles of the content of international responsibility as codified by the ILC. After all, all that has been left out is the obligation to offer appropriate assurances and guarantees of non-repetition.173 A reason for such an omission could be that the Court has not deemed that the circumstances of the case required such an offer.174 What is interesting to note is that the Court proceeded as if it were acting on the basis of general international law. Indirectly, this gives strong support to the codification of the law of State responsibility by the ILC which, at least in this part, seems to reflect the current state of customary international law. Much more intriguing and controversial is the part of the opinion in which the Court determined what the consequences are for States of Israel’s violation of its international legal obligations. Here the Court observed that the right of self-determination and some of the international humanitarian law obligations breached by Israel have an erga omnes character. Hence, States are under an obligation not to recognize the illegal situation created by the internationally wrongful act and also under an obligation not to render any aid or assistance in maintaining such situation.175 Finally, the Court derived from Article 1 of the Fourth Geneva Convention a duty by the parties to ensure respect of the Convention by Israel.176 172

Legal Consequences (note 1), para. 153. It was contended before the Court that Israel has a legal obligation to give appropriate assurances and guarantees of non-repetition, see Oral Pleading of Professor Bothe on behalf of the League of Arab States, CR 2004/5, 32, available at: http://www.icj-cij. org/icjwww/idocket/imwp/imwpcrs/imwp_icr_toc.html. 174 See Draft Articles (note 74), 51, Art. 30: “The State responsible for the internationally wrongful act is under an obligation: […] (b) To offer appropriate assurances and guarantees of non-repetition, if circumstances so require.” 175 Legal Consequences (note 1), para. 159. One may recall that in its opinion on Namibia, the Court also evoked the obligations of non-recognition and of non-assistance. But in this opinion the basis for these obligations is not clear. For example, the duty of non-recognition is sometimes deduced from general international law (Namibia (note 27), 55, para. 121), and other times from Security Council Resolution 276 (id., 55, para. 123). By contrast, in the opinion on the wall, the said obligations are deduced from general international law. 176 Legal Consequences (note 1), para. 159. 173

380

Andrea Bianchi

The few paragraphs in which the Court condensed its findings on what one would have expected to be the most relevant part of its opinion are puzzling at the least.177 Refusing to qualify as erga omnes international human rights obligations, as had been pleaded before it,178 the Court establishes a direct link between the violation of other obligations having an erga omnes character and the consequences that the ILC’s Articles on State Responsibility attach to a serious violation of a peremptory norm of international law under Article 41. It may be worth recalling that until 2000, the ILC had considered the topic under the heading of serious breaches of “obligations to the international community as a whole.”179 Replacement of the latter expression by that of ‘peremptory norms’ occurred at the last stage of the codification process in the context of a more general negotiation within the Commission on whether or not to keep the chapter in question within the draft Articles. The ILC justified the change in its report to the General Assembly, maintaining that while the notion of obligations erga omnes dealt primarily with issues of invocation of responsibility, jus cogens was more properly concerned with the scope of secondary obligations.180 It may be open to speculation whether this change was prompted by such theoretical preoccupations of intellectual consistency or, rather, by the pressure exercised in the Sixth Committee by States, probably driven by the conviction that the category of jus cogens would be narrower in scope than that of obligations erga omnes. Be that as it may, the Court clearly disavowed the option taken by the ILC. It remains to be seen whether the Court’s approach is sound and persuasive. Furthermore, as noted earlier, the Court did not include human rights obligations in the range of obligations the breach of which would trigger the legal consequences envisaged in the opinion. Presumably, the Court considered that the obligation to guarantee the freedom of movement and the relevant economic and social rights was owed by Israel to Palestine, indirectly 177 It is worth noting that the paragraph of the Opinion taken up with this particular issue attracted also the dissent of Judge Kooijmans, see id., Separate Opinion of Judge Kooijmans, paras. 37–51. 178 See Oral Pleading of Professor Crawford on behalf of the Palestine, Doc. CR2004/1, 34–35, available at: http://www.icj-cij.org/icjwww/idocket/imwp/imwpcrs/ imwp_icr_toc.html. 179 ILC Report 2000 (note 154), 109. 180 Report of the International Law Commission to the General Assembly on the Work of its Fifty-Third Session, UN Doc. A/56/10 (2001), para. 49.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

381

recognizing its international personality. It would not be exaggerated, however, to construe the obligations in question, if not as obligations owed to the international community as a whole (obligations erga omnes proper), at least as obligations owed to the parties to the Covenants (obligations erga omnes partes).181 One wonders what the consequences would be of any such framing, particularly in light of the consideration given by the Court to the operation of Article 1 of the Fourth Geneva Convention. Another possible explanation could lie in the unwillingness of the Court to consider the rights in question as one of those “basic rights of the person” that it had provided as an example of norms laying down obligations erga omnes in the Barcelona Traction Case.182 The other major difference existing between the Opinion and the ILC’s Articles on State Responsibility is that the Court makes no reference to the serious character of the breach183 and seems to entail that any breach of an international obligation erga omnes carries with it the envisaged consequences.184 If this is the case, one needs to make clear what is meant by obligations erga omnes. It is undeniable that the obligation of a coastal State to assure transit passage through international straits is also an obligation erga omnes.185 From whatever perspective one takes to analyze the case, the idea that the consequences are determined by the importance to the international community 181

Draft Articles (note 74), 319–324, Commentary on Art. 48. ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Reports 1970, 3, 32, para. 34 (Barcelona Traction Case). This raises the delicate question of the possibility of a hierarchy of human rights according to their importance for the human person, an idea contested by a number of commentators, see Theodor Meron, On a Hierarchy of International Human Rights, AJIL, vol. 80, 1986, 1–23. 183 As is known, Art. 41 Draft Articles (note 74) deals with the consequences of a serious breach of an obligation arising under a peremptory norm of general international law. 184 It should be recalled that in the letter addressed to the President of the Security Council in the name of the League of Arab States and accompanied by a draft resolution, it is a question of the “grave and ongoing Israeli violations of international law, including international humanitarian law,” UN Doc. S/2003/973. 185 It has rightly been recalled that “the use of the notion of obligations erga omnes by the International Court itself cannot be regarded as uniform,” Bruno Simma, From Bilateralism to Community Interest in International Law, RdC, vol. 250, 1994, 221, 299. As the same author notes, in the Nuclear Tests Cases the Court considered “the effect of a unilateral commitment assumed by France to be erga omnes […], without regard to the specific importance of the French undertaking.” Id. 182

382

Andrea Bianchi

of the obligation breached is inescapable.186 The Court, therefore, does not seem concerned with the gravity of the breach. What matters most to the Court is the essential character and the importance of the principle or rule in question to the international community. This begs the question of which principles and rules, other than those enumerated specifically by the Court in its case law, attain that status. In light of the strange distinctions and omissions made by the Court in this respect, one wonders if the task is going to be any easier than highlighting peremptory norms. Or, perhaps, more simply what the Court had in mind was jus cogens and it simply did not dare mention it, preferring to focus on the erga omnes character of the obligations underlying jus cogens norms.187 Evidence of that could be the characterization of some of the international humanitarian norms violated by Israel as intransgressible.188 Surely, having expressly dismissed any consideration concerning the gravity of the breach, the Court has, at least potentially, remarkably expanded the reach of the obligations triggering the duty of non-recognition and the prohibition to render aid and assistance. As to the contention that the Court would have not taken into account the obligation of States to cooperate with a view to bringing to an end the violation, one could read this duty through the Court’s calling on States “to see to it that any impediment […] to the exercise by the Palestinian people of its right to selfdetermination is brought to an end,”189 and most importantly, when it called on the Security Council and the General Assembly to consider further action as may be required to bring to an end the illegal situation.190 Clearly, in this part of the opinion, the Court was moving on the slippery ground of the progressive development of international law. The ILC itself had reached a difficult consensus on Chapter III of Part II of the Articles on the 186

The Court itself emphasizes “the character and the importance of the rights and obligations involved,” Legal Consequences (note 1), para. 159. 187 The stance taken by the Court according to which the erga omnes nature of the rights and obligations enshrined in the Convention on Genocide makes any territorial limitation to the scope of the obligation to prevent and punish genocide irrelevant, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Preliminary Objections, Judgment of 11 July 1996, ICJ Reports 1996-II, 595, 616, para. 31, had led one commentator to state “the Court does not distinguish clearly between the concepts of jus cogens and of obligations erga omnes,” Simma (note 185), 299. 188 Legal Consequences (note 1), para. 157. 189 Id., para. 159. 190 Id., para. 162.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

383

basis of a scant and heterogeneous practice. Judge Higgins, little inclined to follow the Court on this terrain, sharply dissented on the source of the consequences envisaged by the Court, which in her opinion must be traced to the law of the Charter, rather than the general international law of State responsibility.191 While probably well-intentioned in providing guidance in the future development of a delicate subject, the Court failed to use the necessary degree of clarity and consistency that would have made its reasoning more persuasive and as such more apt to direct change in the law. H. “Waiting for Godot:” The ICJ and Jus Cogens It is at the very least curious that the Court, in determining the legal consequences for States of the construction of the wall, conformed strictly to Article 41 of the ILC’s Articles on State Responsibility without mentioning peremptory norms, not least to distinguish its own approach from that of the ILC. It surely would not have been strange for the Court to make reference to jus cogens in other parts of the opinion as well, where an acknowledgment that certain human rights norms are generally regarded as non-derogable192 would have been proper and suitable. Any such statement would have raised little controversy as it is generally accepted that this should be so. 193 The disagreement on which particular rules might be considered as peremptory could have been avoided if the Court had stated generally that respect for jus cogens norms is demanded in all circumstances, including in states of emergency. Had the Court wanted to take advantage of its power to support the notion by way of dicta, it surely had several opportunities in the case at hand.

191

See, id., Separate Opinion of Judge Higgins, para. 38. Legal Consequences (note 1), para. 127. 193 See General Comment No. 29 (note 149), para 11. Eric Suy, Droit des traités et droits de l’homme, in: Rudolf Bernhardt/Wilhelm Karl Geck/Günther Jaenicke/Helmut Steinberger (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte: Festschrift für Hermann Mosler, 1983, 938; Koji Teraya, Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of NonDerogable Rights, EJIL, vol. 12, 2001, 917–941; Ian D. Seiderman, Hierarchy in International Law: The Human Rights Dimension, 2001. 192

384

Andrea Bianchi

The choice by the Court not to mention jus cogens anywhere should hardly come as a surprise. If one looks at the case law of the Court194 it is easy to realize that the omission cannot be fortuitous. Indeed, the title of the muchcelebrated tragicomedy by Samuel Beckett captures the essence of the point we are trying to make. Many times one would have expected the Court to make reference to jus cogens and provide guidance on such a controversial normative category. In spite of the several opportunities that the Court has had to do so, it has almost invariably turned down the option. Even in its most often quoted passage in the Nicaragua Case, in which the Court refers to the prohibition of the use of force as jus cogens, it should not go unnoticed that the Court confined itself to acknowledging the consent of the parties on the qualification of the prohibition of the use force as a peremptory rule, without expressly subscribing to it and simply inferring from it the parties’ recognition that the norm in question was regarded by them as a customary international law rule fit for the Court to be applied.195 It is probably in the unfortunate attempt to avoid express mention of jus cogens that the Court coined in 1996 in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons the rather cacophonic adjective “intransgressible” in relation to customary principles of international humanitarian law which cannot be derogated from.196 The omission has become suspicious as of late, with jus cogens having become part and parcel of the texture of international law as interpreted by other international tribunals and other bodies as well as national courts. It suffices to recall the judgments of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Furundzija197 and that of the European Court of Human Rights in Al-Adsani,198 not to mention the UK House of Lords’ ruling in the 194

See, in particular, Barcelona Traction Case (note 182), 32, para. 33; Nicaragua Case (note 12), 112, para. 215; East Timor Case (note 45), 102, para. 29; Nuclear Weapons (note 7), 257, para. 79. 195 Nicaragua Case (note 12), 100–101, para. 190. ICJ, United States Diplomatic and Consular Staff in Tehran, Order of 15 December 1979, ICJ Reports 1980, 7, 20, para. 41: It should also be recalled that while the French text of the Order rendered by the Court speaks of “obligations imperatives” (the expression used in French as the equivalent of jus cogens), the English text makes reference to “imperative obligations,” but not “peremptory obligations.” 196 Nuclear Weapons (note 7), 257, para. 79. 197 ICTY, Trial Chamber, The Prosecutor v. Anto Furundzija, IT-95-17/1-T, Judgment of 10 December 1998, reprinted in: ILM, vol. 38, 1999, 317. 198 Eur. Court H.R., Al-Adsani v. United Kingdom, Judgment of 21 November 2001, Reports of Judgments and Decisions 2001-XI, 125.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

385

Pinochet Case,199 to make the case for jus cogens having become part of positive international law.200 Of particular interest is the attempt by the ICTY in Furundzija to go as far as to envisage the consequences of the violation of a norm of jus cogens at the inter-State and individual level.201 A striking example of the unwillingness of the Court to address the issue of jus cogens is its ruling in the Arrest Warrant Case,202 where mention of peremptory norms of international law and their impact on the law of jurisdictional immunities was, at the very least, a fair expectation. In a rather convoluted judgment where axiomatic statements and ambiguous findings prevailed over carefully drafted legal arguments, the Court found its way out of the case without feeling the need to give a response to the growing demand, coming from the international societal body, to shed light on the consequences of qualifying certain norms as peremptory. At this point one could perhaps wonder why the Court has so systematically refused to judicially sanction the existence of peremptory norms. The question is all the more compelling in light of a long history of concurring, separate and dissenting opinions in which individual judges have not hesitated to speak out on jus cogens.203 Why then has the Court been so unreceptive and reluctant to take a stance as the principal judicial organ of the United Nations on such an important legal matter? The answer probably lies in considerations of judicial policy of a relatively simple character.

199

House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis, Ex Parte Pinochet, Judgment of 25 November 1998, reprinted in: ILM, vol. 37, 1998, 1302. 200 See also the acknowledgment made by one of its most fervent critics, Prosper Weil, Le droit international en quête de son identité, RdC, vol. 237, 1992, 274. 201 The Prosecutor v. Anto Furundzija (note 197), paras. 155–156, according to the Tribunal, which had previously qualified the prohibition of torture as a peremptory norm, at the inter-State level jus cogens serves to internationally de-legitimize any legislative, administrative or judicial act authorizing torture. At the individual level one of the consequences of jus cogens is that every State is entitled to investigate, prosecute, and punish or extradite individuals accused of torture. 202 Arrest Warrant Case (note 18). 203 See, for instance, Nuclear Weapons (note 7), Declaration of Judge Bedjaoui, 268, 273; id., Dissenting Opinion of Judge Koroma, 556, 574; Arrest Warrant Case (note 18), Dissenting Opinion of Judge Al-Khasawneh, 95, 98, para. 7; Oil Platforms Case (note 17), Dissenting Opinion of Judge Elaraby, 290, 291.

386

Andrea Bianchi

Overall, one has the impression that the circumstances have not really changed since the time when it was noted by a distinguished commentator that the consequences of the acceptance of the concept of jus cogens are such that they cannot be tolerated by the system.204 Indeed, endorsement of jus cogens and the consequences stemming from it in terms of international public order, hierarchical order of norms, responsibility and so on, would necessitate the calling into question of some of the founding elements of the international system as currently perceived. The strain has become apparent in some areas of international law and no agreed upon criteria have been found to solve the normative incongruities that the application of peremptory norms inevitably brings about. 205 Beyond the numerous systemic considerations and doctrinal distinctions that one may draw, at the heart of the matter lies the simple truth that the international community in its current state of development finds it hard to integrate the concept of jus cogens. In particular, its consequences can be highly disruptive of the still primarily State-centered international legal system, and States are not willing to accept them. This is an irony of sort, as the concept is no fancy intellectual construct borne out only by doctrinal elucidations, but a normative category created and accepted by States themselves. Had some of the parties to the Vienna Convention206 clearly foreseen the consequences of letting such a Trojan horse into the international legal system, it is not unreasonable to speculate that the Convention would have had fewer parties than it currently has.207 These last remarks on the judicial policy of the Court on jus cogens pave the way to broach our last point, namely, what the self-perception is by the Court of 204

Jean Combacau, Le droit international, bric-à-brac ou système, Archives de philosophie du droit, vol. 31, 1986, 102. See also Dupuy who notes that “le système juridique international demeure largement sous-équipé pour canaliser l’expression des manifestations nouvelles de l’impératif,” Pierre-Marie Dupuy, L’unité de l’ordre juridique international, RdC, vol. 297, 2002, 9, 312. 205 For the implications of jus cogens in the field of State immunities see Andrea Bianchi, Denying State Immunity to Violators of Human Rights, Austrian Journal of Public and International Law, vol. 46, 1994, 195–229; and more recently id., L’immunité des Etats et les violations graves des droits de l’homme: la function de l’interprète dans la determination du droit international, Revue générale de droit international public, vol. 108, 2004, 59–95. 206 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, 331. 207 See, on the well known opposition of France, Olivier Deleaux, Les positions françaises à la Conférence de Vienne sur le droit des traités, Annuaire français de droit international, vol. 14, 1969, 7–23, particularly 14–20.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

387

its role in international law and whether the stances it has taken lately are consistent with it. J. Conclusion: The Guardians of International Legality The very title of this essay suggests that its focus is more on the impact of what the Court has said in this opinion on international law generally, than on an accurate examination of the factual and legal peculiarities of the underlying case. The chosen approach justifies some conclusive remarks of a general character on the perception by the Court itself of its own role as the principal judicial organ of the United Nations. Indeed, divergent views exist on how the Court should discharge its judicial functions. To some its role consists of settling disputes and rendering opinions, in strict observance of the law of the Charter and of its Statute, possibly by way of concise decisions based on recognizable reasons.208 In the words of Sir Robert Jennings, the exploration of the “nooks and crannies, with the admitted purpose of developing international law quite generally, seems to be an abuse of the process of making a judgment.”209 Yet, to others the opposite would rather seem true. Sir Hersch Lauterpacht upheld the view that exhaustive treatment of international law issues by the Court was mandated by “compelling considerations of international justice and of the development of international law.”210 In his Separate Opinion appended to the Order on provisional measures in the case of Questions of Interpretation and Application of the 1971 Montreal Convention, Judge Lachs referred to the Court as “the guardian of international legality for the international community as a whole, both within and without the United Nations.”211 This may well correspond to the perception by the Court of its own role in the international legal system. As early as 1949, the Court had

208

Robert Jennings, The Role of the International Court of Justice, British Yearbook of International Law, vol. 68, 1997, 1, 35. 209 Id., 34. 210 Lauterpacht (note 14), 61. 211 See ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention, Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Order of 14 April 1992, Separate Opinion of Judge Lachs, ICJ Reports 1992, 26.

388

Andrea Bianchi

already pointed out that its task was “to ensure respect for international law,”212 which is not too dissimilar a concept. There is nothing wrong with such a perception by the Court of its own role. In many ways, it may even be desirable that it be so. With “the dividing line between political and legal disputes [being] blurred, as law becomes ever more frequently an integral element of international controversies […] the Court is called upon to play an even greater role.”213 The opinion on the Israeli wall undoubtedly provides support to this statement. In the exercise of both its contentious and advisory jurisdiction, the Court is increasingly solicited to pass judgment and pronounce on difficult issues which lie at the interface of law and politics and touch upon the very foundations of the international legal system. To rule on the legality of the use of force214 or on the use of certain weapons of mass destruction,215 to determine the consequences of an internationally wrongful act, distinguishing on the basis of the obligation breached,216 or to decide what limits attach to the exercise of jurisdiction by States217 are all issues the relevance of which extends well beyond the particular instances in which they arise. Quite obviously, if the Court is to act as “the guardian of international legality,” both within and outside the United Nations, it must have its own vision of international legality. By this expression, one need not only refer to the characterization by the Court of a certain set of facts as either legal or illegal in relation to particular rules. In its interpretive activity the Court takes sides on systemic issues designing the contours of the international legal system as it is or, when it attempts to foster its progressive development, as it should be. It is indeed not surprising that the Court often indulges in the exercise of fostering the progressive development of international law, particularly at the occasion of the exercise of its advisory jurisdiction. Even Judge Higgins, fairly critical of the judicial policy of the Court of late, suggested that by providing a clearer and 212

ICJ, The Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4, 35. 213 See Lockerbie Case, Separate Opinion of Judge Lachs (note 211), 27. 214 See, for instance, Nicaragua Case (note 12). 215 See Nuclear Weapons Case (note 7). 216 See Namibia Case (note 27) and the case at hand. 217 See Arrest Warrant Case (note 18) and Certain Criminal Proceedings in France (Republic of Congo v. France), case pending before the Court, information available at: http://www.icj-cij.org/icjwww/idocket/icof/icofframe.htm.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

389

more exhaustive treatment of international humanitarian law issues, the Court “would have followed the tradition of using advisory opinions as an opportunity to elaborate and develop international law.”218 The means by which the Court attempts to bring about its vision of how the international legal system should function are numerous, but they can be aptly resumed in what one could term the judicial policy of the Court. The Court’s recent habit to call on the parties to respect their international obligations and to peacefully settle their disputes,219 even when there is clearly no prima facie jurisdiction to grant interim measures,220 is quite telling of the self-perception by the Court of its role in international law. The considerations set forth by the Court at the end of this opinion concerning the need to achieve a negotiated solution of the Israeli-Palestinian conflict221 and those advanced at the end of the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in relation to the importance of negotiations to bring about nuclear disarmament222 can be interpreted along the same lines. Similarly, in the Oil Platform Case the Court reiterated the importance of the international regulation of the use of force and its power to rule on it.223 Even though to some of its members this was too little and therefore “an exercise in inappropriate self-restraint,”224 the message was probably meant to warn the international community against the risks of abusing international rules on the use of force at the verge of the Iraqi crisis. Judge Simma’s remark “that the voice of the law of the Charter rise above the current cacophony”225 and his suggestion that the Court should attain that objective by way of strong, unequivocal obiter dicta is also quite telling of how the Court conceives of its mission.226 218

See Legal Consequences (note 1), Separate Opinion of Judge Higgins, para. 23. ICJ, Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999-I, 124, 140; Case concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment of 21 June 2000, ICJ Reports 2000, 12, 34 (Aerial Incident Case). 220 Legality of Use of Force (note 219); ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Order of 10 July 2002, ICJ Reports 2002, 219, 249–50. 221 Legal Consequences (note 1), para. 162. 222 Nuclear Weapons (note 7), 265, para. 103. 223 See, supra, note 17. 224 See Oil Platforms (note 17), Separate Opinion of Judge Simma, 324, 328, para. 6. 225 Id. 226 Id. See also id., Dissenting Opinion of Judge Elaraby, 290, 294–295. 219

390

Andrea Bianchi

What the Court chooses to say and not to say shapes the contours of its judicial policy and sheds light on its vision of the international legal order.227 How the Court provides legal justifications for its findings is also likely to affect their impact on international law. In this respect, one may note that the Court enjoys some measure of discretion in determining the grounds on which its decisions are taken.228 This latitude of discretion allows the Court to stay away from controversial issues. A striking example is the Court’s decision not to pass judgment on the issue of universal jurisdiction in the Arrest Warrant Case.229 The recent decision on jurisdiction on the Legality of Use of Force is evidence that this “freedom of choice” doctrine may be stretched to its outer limits for reasons of expediency.230 The warning issued in the Joint Declaration appended to the Court’s decision and subscribed to by a considerable number of judges, that the “choice of the Court has to be exercised in a manner which reflects its judicial function,” prompts further consideration.231 In the Joint Declaration the judges expressed the view that, although the Court may freely determine the most appropriate ground for its decision that it lacks jurisdiction, the Court should be guided in its choice by three criteria. First, “it must ensure consistency with its own past case law in order to provide predictability.” Second, the “principle of certitude” should lead the Court to choose the safer ground in law. Third, it must be mindful of the consequences and implications for other pending cases.232 227

See Brigitte Stern, Les dits et les non dits de la Cour internationale de Justice dans l’affaire RDC contre Belgique, International law FORUM du droit international, vol. 4, 2002, 104–116. 228 ICJ, Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), Merits, Judgment of 28 November 1958, ICJ Reports 1958, 55, 62; Oil Platforms (note 17), 180, para. 37. 229 Arrest Warrant Case (note 18). The current status of the General Act for Pacific Settlement of International Disputes of 1928 (see ICJ, Nuclear Tests (Australia v. France), Merits, Judgment of 20 December 1974, ICJ Reports 1974, 253; Aegean Sea Continental Shelf Case (Greece v. Turkey), Jurisdiction of the Court, Judgment of 19 December 1978, ICJ Reports 1978, 3; Aerial Incident Case (note 219)) and the status of acquisitive prescription in international law (see ICJ, Case concerning Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999, ICJ Reports 1999-II, 1045) can be seen as other controversial issues on which the Court remains silent. For Judge Oda, such an attitude is fully justified, see Arrest Warrant Case (note 18), Dissenting Opinion of Judge Oda, 46, 51, para. 12. 230 See Legality of Use of Force (note 132). 231 Id., Joint Declaration (note 133), para. 3. 232 Id.

The ICJ’s Advisory Opinion and Its Likely Impact on International Law

391

If the Court is to act as the guardian of international legality and if it is to provide guidance to the international community, consistency and consideration of the possible systemic implications of its decisions should generally inspire its judicial policy. Particularly, if its task is “to strengthen the cohesion of the international community,” as Judge Eçer wrote in his Dissenting Opinion to the Corfu Channel Case,233 the Court must carefully strike a balance between different factors. To preserve the cohesion of the system does not necessarily entail the preservation of the status quo, as the Court needs, by way of interpretation, to adjust the law to the changing demands of its societal body. In doing so, the Court is further constrained by the consideration of the contingencies of the cases which come under its jurisdiction.234 It may very well be the case that these considerations have inspired the Court as it rendered its opinion. Its unity could well provide evidence that this was so. At closer scrutiny, however, the unity is more apparent than real. Not only have individual judges often departed from the majority. The hasty and convoluted character of some parts of the opinion probably attests to a certain lack of consensus within the majority, which inevitably reflected upon the consistency and persuasiveness of the argument on important points of international law. Whether this will contribute to providing reliable guidance to the international community at this time of uncertainty can be aptly called into question.

233

The Corfu Channel Case (note 212), Dissenting Opinion of Judge Eçer, 115, 130. See the interesting remarks by Mohammed Bedjaoui, L’opportunité dans les décisions de la Cour internationale de Justice, in: Laurence Boisson de Chazournes/ Vera Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab, 2001, 563–589. 234

The Supreme Court of Israel: Judicial Review during Armed Conflict By David Kretzmer* A. Introduction International law has progressed greatly in developing human rights and humanitarian norms that apply in conflict situations, whether we are talking about civil strife, emergency situations or armed conflict. Enforcement of these norms, however, remains a problem. Enforcement of international humanitarian law (IHL) in armed conflicts is especially weak. While the prevailing view is now that the application of IHL does not exclude the application of international human rights norms,1 in times of armed conflict enforcement of the latter becomes difficult too. Thus, the European Court of Human Rights has taken a narrow view of the application of the European Convention of Human Rights and Fundamental Freedoms,2 with the result that violations of rights within the context of an armed conflict are not always covered by the Convention, and may not be within the Court’s jurisdiction.3 It is still too early to know what *

Bruce W. Wayne Professor of International Law, Hebrew University of Jerusalem. See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, reprinted in: ILM, vol. 43, 2004, 1009 (Advisory Opinion). 2 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 3 See Eur. Court H.R., Bankovic v. Belgium, Judgment of 19 December 2001, reprinted in: Butterworth’s Human Rights Cases, vol. 11, 2002, 435, in which the Court held that it lacked jurisdiction to deal with a case against the European members of NATO for violation of the right to life of civilians killed during the NATO bombing of Serbia in the course of the Kosovo campaign. On application of human rights standards to armed conflict situations by the European Court of Human Rights see Hans-Joachim Heintze, The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflict, German Yearbook of International Law, vol. 45, 2002, 60. 1

Judicial Review during Armed Conflict

393

contribution the International Criminal Court4 (ICC) will make to the enforcement deficiency in IHL, but given the number of armed conflicts in the world, and the scope and extent of IHL violations in these conflicts, even the most optimistic assessments do not foresee the ICC dealing with more than a minute proportion of the grave breaches of IHL that take place in troubled areas of the world. Furthermore, the ICC deals with criminal liability of individuals, and not with State responsibility for violations of IHL. Criminal liability may well have a deterrent effect on potential violators of IHL, but it does not provide a mechanism for prevention of pending or ongoing violations. In those cases in which there is a functioning system of international institutions for enforcement of international human rights or humanitarian law, it generally only comes into play when domestic courts fail to provide effective remedies. Thus, the primary responsibility for judicial enforcement lies on domestic courts. The burden placed on such courts is even heavier where no international enforcement system exists. Experience shows, however, that in times of conflict or other crisis, domestic courts are rather timid in their approach and cannot be relied on to provide effective protection against human rights violations by the organs of government.5 It is against this background that the record of the Supreme Court of Israel in matters concerned with the West Bank and Gaza must be gauged. Soon after Israel occupied the West Bank and Gaza during the course of the 1967 War, Palestinian residents of those areas petitioned the Supreme Court of Israel in attempts to challenge the legality of actions of the Israel Defence Forces (IDF) in those areas. In the 37 years that have elapsed since then the Court has dealt with thousands of petitions relating to actions of the military in the Occupied Territories (OT) and has handed down judgments in hundreds of these cases. In previous work I have examined the jurisprudence of the Supreme Court of Israel in cases relating to the OT from the beginning of the occupation in 1967, until violence erupted in September 2000.6 In this article I shall con4 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 of 17 July 1998, reprinted in: ILM, vol. 37, 1998, 999. 5 See, e.g., George J. Alexander, The Illusory Protection Of Human Rights By National Courts During Periods Of Emergency, Human Rights Journal, vol. 5, 1984, 1; William J. Brenann, The Quest To Develop A Jurisprudence Of Civil Liberties in Times of Security Crises, Israel Yearbook on Human Rights (Isr. Y.B. Hum. Rts.), vol. 18, 1988, 11. 6 See David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, 2002.

394

David Kretzmer

centrate on the decisions of the Supreme Court of Israel since the renewal of violence. Before discussing these decisions I shall review some general questions relating to the Court’s jurisdiction in cases relating to the OT. B. Role and Function of the Supreme Court of Israel The Supreme Court, the highest judicial tribunal in Israel, is comprised of fifteen justices who sit in benches of three or more. The Court fulfils two major functions: 1. a court of appeal against decisions of the district courts, and 2. a High Court of Justice. It is mainly in the latter role that the Court has achieved prominence in the Israeli political system, and it is in this role that it exercises review over actions of the authorities in the OT.7 As a High Court of Justice, the Supreme Court of Israel exercises judicial review over the decisions and actions of all governmental bodies. It has the power “to grant orders to State authorities, local authorities, their officials and other bodies and persons fulfilling public functions under law, to do an act or to refrain from doing an act in lawfully performing their duties […].”8 A prominent feature of the Court’s jurisdiction as a High Court of Justice is that petitions can be submitted in real time. These petitions do not generally relate to the responsibility of government authorities for human rights violations that have allegedly already taken place; they are requests for judicial review of planned or ongoing actions or policies. It is standard practice in cases in which irreversible measures are being planned for the Court to issue interim injunc7

The notion of a ‘High Court of Justice’ is a remnant of the British Mandatory period of rule over the country. Under British Mandatory legislation the Supreme Court was given the jurisdiction to issue prerogative writs against government agencies, similar to those issued by the High Court of Justice in England. The High Court of Justice is not the highest court in England. However, the colonial authorities were not prepared to entrust issue of prerogative writs to local Arab and Jewish judges. This jurisdiction was therefore placed in the hands of the Supreme Court in which the majority of judges were British. When the independent State of Israel was founded, most British Mandatory legislation was left intact, including the legislation relating to the composition and jurisdiction of the courts. Thus, it was that the Supreme Court retained its dual function as the final court of appeal and as a court of first, and last, instance in petitions to the ‘High Court of Justice.’ An Israeli statute, the Courts Law, 1957, which replaced the British Mandatory legislation, maintained the existing structure. 8 Section 15 lit. d (2) of Basic Law: The Judiciary, available at: http://www.knesset. gov.il/laws/special/eng/basic8_eng.htm.

Judicial Review during Armed Conflict

395

tions pending its decision in the case. Thus, for example, destruction of property is invariably halted until the petition challenging its legality has been decided. Within Israel itself the Court has a well-earned reputation as a liberal institution with a fair record in protection of human rights. Israel does not have a formal constitution and even before two basic laws on human rights were enacted in 1992, the Court developed a “judicial bill of rights.” Rights recognized in democratic countries were regarded as legal principles that must be considered in interpretation of legislation and exercise of administrative discretion. The Court advanced jurisprudence protecting freedom of expression, equality on the basis of sex, ethnic/national group, religion and sexual orientation, freedom of religion and other basic liberties. Adopting the theory that judicial review is essential for protection of the rule of law, the Court has since the late 1970s abandoned traditional demands for locus standi in applications for judicial review and opened its doors to actio popularis in cases relating to important constitutional questions. It has also showed little sympathy for arguments of nonjusticiability in cases involving political decisions. In recent years the Court has become a controversial player in the political arena. Two basic laws on human rights were adopted in 1992. While these basic laws do not include all the rights one would expect to find in a modern bill of rights, the Court has given the enumerated rights, especially the right to protection of human dignity, a wide interpretation so as to encompass most aspects of the rights, such as freedom of religion and equality, which are not specifically mentioned. Furthermore, although the basic laws do not mention judicial review, or the non-validity of primary legislation that is incompatible with their provisions, the Court followed the approach adopted by the US Supreme Court in Marbury v. Madison9 and held that the courts have the power to declare incompatible legislation to be invalid. The development of a “rights-minded” jurisprudence has certainly not meant that all the Court’s decisions fit into a “rights-minded” pattern. In some areas of judicial decision-making the Court’s decisions have been decidedly “executiveminded,” although even in these areas there has been some change in rhetoric over the years that has tempered the executive-mindedness of decisions. The main area in which the influence of “rights-minded” jurisprudence has been limited is that of security powers. This shall become highly relevant in the discussion of the Court’s approach in matters concerning the OT. 9

US Supreme Court, Marbury v. Madison, 5 U.S. 137 (1803).

396

David Kretzmer

C. Judicial Review over Decisions in the Occupied Territories I. Jurisdiction and Justiciability

When the first petitions relating to the newly occupied territories were submitted to the Court soon after the 1967 War, it was not clear whether the Court had the jurisdiction to deal with petitions that related to acts performed by the military forces outside the territorial jurisdiction of the State. There seemed to be no existing precedent of judicial review by a domestic court over acts of the State’s military forces in occupied territory.10 However, the government’s lawyers made a policy decision not to challenge the Court’s jurisdiction to hear the petitions, and at first the Court relied on the State’s consent as the basis for its jurisdiction. At a later stage the Court explained that this jurisdiction flowed from its statutory power to issue orders to persons “fulfilling public functions under law.” The Court held that all acts of governmental authorities are subject to review, no matter where they are performed and whether the authorities are civil or military. While the government accepted the Court’s jurisdiction, it attempted on a number of occasions to argue that the specific issue placed before the Court was a political or military question that should be regarded as non-justiciable. The Court was not receptive to this argument. It drew a fundamental distinction between cases in which the rights of an individual had been affected and petitions challenging general policies. The Court held that cases of the former type are always justiciable, no matter how politically sensitive the action that affected the individual’s rights is. Thus, to cite the prime example, the Court rejected out of hand the argument that cases brought by Palestinian landowners challenging the legality of the requisition of their land to establish Jewish settlements could be regarded as non-justiciable because of the political dimensions of the government’s settlement policy.11 On the other hand, the Court was more reluctant to 10

And see In re Societe Bonduelle et Cie, Judgment of 29 June 1951, reprinted in: ILR, vol. 18, 1951, 573, in which a French court held that it did not have jurisdiction to review actions by the French military authorities in Germany. 11 Israel High Court of Justice (HCJ), Ayoub v. Minister of Defense, Judgment of 28 May 1979, Piskei Din (Judgments), vol. 33 (3), 113 (Beth El Case), English translation reprinted in: Meir Shamgar (ed.), Military Government in the Territories Administered by Israel 1967–1980, The Legal Aspects, 1982, 371; HCJ, Dweikat v. Government of Israel, Judgment of 22 October 1979, Piskei Din, vol. 34 (1), 1 (Elon Moreh Case), English translation reprinted in: ILM, vol. 19, 1980, 148.

Judicial Review during Armed Conflict

397

deal with cases challenging general policies, which were not directed towards the violation of the rights of a specific individual. It therefore refused to deal with a petition attacking the whole settlement policy of the government.12 The Court followed the same line when dealing with decisions on security grounds. During the 1991 Gulf crisis, Palestinians challenged the decision not to issue them gas-masks even though such masks had been issued to residents of Jewish settlements on the West Bank. The Court dismissed the IDF’s argument that the decision as to whom to issue gas-masks was a non-justiciable military decision. As the claim was based on discrimination the Court held it was bound to examine it on the merits. It upheld the claim and ordered the IDF to issue gas-masks to all residents.13 II. Applicable Law: Hague Regulations and Geneva Convention IV

Once the Court had established its jurisdiction to review actions of the military in the OT, it had to decide what legal norms it would apply in exercising this review. Israeli law follows the British approach to international law. According to this approach, customary international law is part of the common law of the land that will be applied and enforced by the domestic courts, unless it is incompatible with parliamentary legislation. Conventional international law, on the other hand, will not be applied and enforced by the domestic courts unless it has been incorporated in the domestic legal system by parliamentary legislation.14

12

HCJ, Bargil v. Government of Israel, Judgment of 25 August 1993, Piskei Din, vol. 47 (4), 210, Case No. 4481/91, English translations available on the Supreme Court’s homepage at: http://62.90.71.124/eng/verdict/framesetSrch.html. 13 HCJ, Morcous v. Minister of Defense, Judgment of 14 January 1991, Piskei Din, vol. 45 (1), 467. Also see HCJ, Samara v. IDF Commander of Judea and Samaria, Judgment of 16 June 1980, Piskei Din, vol. 34 (4), 1, English summary: Isr. Y.B. Hum. Rts., vol. 11, 1981, 362. In this judgment the Court dismissed the argument that the refusal to allow family unification could be regarded as non-justiciable because security considerations were involved. 14 This rule is a function of the constitutional division of powers. The power to conduct foreign relations, including the power to make international agreements on behalf of the State, is in the hands of the executive branch of government. In order for binding international conventions to become part of domestic law they must be incorporated into that law by the legislature.

398

David Kretzmer

While there is fairly substantial support for the view that the above distinction between customary and conventional international law is not relevant when it comes to armed conflict, especially in relations to acts committed outside the territory of the State,15 the Supreme Court of Israel applied the distinction when discussing whether it would enforce international law in cases relating to the OT. The Court held that the Regulations annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land of 190716 (the Hague Regulations) have been recognized as reflective of customary law. It refused to hold, however, that all provisions of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 194917 (Geneva Convention IV), reflect customary law. In particular, the Court held that Article 49 para. 1 of the Convention, which prohibits all deportations of protected persons from occupied territory, and Article 49 para. 6, which prohibits the occupying power from transferring part of its civilian population into the occupied territory, are not part of customary law.18 Ruling that the provisions in the Geneva Convention that were most problematical from the IDF’s point of view were not part of conventional law allowed the Court to avoid taking a clear stand on another controversial question: the applicability of Geneva Convention IV to the Israeli occupation of the West Bank and Gaza. When the IDF captured these territories during the course of the 1967 War, military orders were promulgated setting up military courts. The military orders expressly stated that the military courts were bound to apply Geneva Convention IV, which would have precedence over all military legislation.19 A few months after the War ended voices were raised challenging the very application of Geneva Convention IV to the occupation of the West Bank 15

See, e.g., Ian Brownlie, Principles of Public International Law, 4th ed. 1990, 48; Daniel Patrick O’Connell, International Law, 2nd ed. 1970, 59; Lord Arnold Duncan McNair, The Law of Treaties, 1961, 89; and also David Kretzmer, The Enforcement and Commentary of the Geneva Convention IV by The Supreme Court of Israel, Mishpatim, vol. 26 (1), 1995, 49, 52–66 (in Hebrew). 16 Regulations concerning the Laws and Customs of War on Land, 18 October 1907, reprinted in: Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and 1907, 1915, 100. 17 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 135. 18 See HCJ, Kawasme v. Minister of Defence, Judgment of 19 August 1980, Piskei Din, vol. 35 (3), 113, English summary: Isr. Y.B. Hum. Rts., vol. 11, 1981, 344; Beth El Case (note 11). 19 See Kretzmer (note 6), 32.

Judicial Review during Armed Conflict

399

and Gaza. The argument was raised that under Article 2 para. 2, the Convention only applies to occupation of territory of a High Contracting Party.20 As Jordan had illegally annexed the West Bank in 1951, whereas Egypt had never claimed sovereignty over Gaza, these territories were not the territory of a High Contracting Party when occupied in 1967. It was therefore doubtful whether Geneva Convention IV applied. The official position of the government became that Geneva Convention IV did not apply de jure, but that Israel would comply with its humanitarian provisions.21 The government’s argument is highly problematical and was rejected by most international lawyers, Israelis and foreigners alike.22 According to Article 2 para. 1, the Convention applies in all cases of armed conflict between High Contracting Parties and so it applies to all aspects of the 1967 armed conflict, including the occupation of territory during the course of that conflict. Article 2 para. 2 was introduced into the Convention to cover cases of occupation that did not result from an armed conflict.23 Given its approach that not all of the provisions of the Geneva Convention are part of customary international law, the Supreme Court of Israel never decided whether the government’s argument had any substance to it.24 Despite its attitude that it would not rule on the basis of the Geneva Convention, the Supreme Court on occasion interpreted various provisions of the Con20 Art. 2 para. 2 states: “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Power, even if the said occupation meets with no armed resistance.” 21 See Nissim Bar-Yaacov, The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip, Israel Law Review (Is. L.R.), vol. 24, 1988, 485. 22 See, e.g., Yoram Dinstein, The International Law of Belligerent Occupation and Human Rights, Isr. Y.B. Hum. Rts., vol. 8, 1978, 104, 107; Theodore Meron, West Bank and Gaza: Human Rights and Humanitarian Law in the Period of Transition, Isr. Y.B. Hum. Rts., vol. 9, 1979, 106; Stephen M. Boyd, The Applicability of International Law to the Occupied Territories, Isr. Y.B. Hum. Rts., vol. 1, 1971, 258; Adams Roberts, What Is a Military Occupation? British Yearbook of International Law, vol. 54, 1984, 249, 281–283; Richard A. Falk/Burns H. Weston, The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defence of the Intifada, Harvard International Law Journal, vol. 32, 1991, 129, 138–144; Hans Peter Gesser, Protection of Civilian Population, in: Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995, 209, 244. 23 See Advisory Opinion (note 1), para. 95. 24 The argument was recently rejected by the International Court of Justice, see id.

400

David Kretzmer

vention, including those that it held not to be reflective of customary law. But until recently, when it did so it was invariably to give support to the government interpretation of the Convention.25 Thus, for example, in a series of judgments the Court held that Article 49 para. 1 of the Convention, which prohibits all forcible transfers and deportations, must be read in light of its background. Assuming that this background was the Nazi deportations carried out in World War II, the Court held that the provision does not apply to deportation of specific individuals on security grounds.26 In recent years there has been a subtle change in the Court’s approach to the Geneva Convention. I shall dwell on this change below. III. Applicable Law: Israeli Administrative Law

One of the interesting features of the Court’s jurisprudence on the OT is its ruling that all decisions of the authorities must be gauged not only on the basis of customary international law, but also on the basis of the principles of Israeli administrative law.27 The theory behind this ruling is that the IDF and other governmental authorities are part of the executive branch of government, and as such they are subject to administrative law, no matter where they operate. Israeli administrative law rests on three fundamental principles: 1. no governmental authority may take action that affects the rights or liberties of the individual unless it has clear authority under law to do so; 2. in exercising their powers all governmental authorities are bound by rules of procedural fairness, such as the requirement that a person be afforded a hearing before action is taken against him, and the rule against bias; and 3. all governmental discretion must be exercised reasonably, without discrimination, on the basis of a sound factual basis, for a proper purpose and without taking into account irrelevant 25

See Kretzmer (note 6), Chapter 3. Id. 27 See, e.g., HCJ, Al-Taliya v. Minister Of Defence, Judgment of 28 May 1979, Piskei Din, vol. 33 (3), 505; HCJ, Jam’iat Ascan Elma’almoon Eltha’aooniah Elmahduda Elmaoolieh v. Commander of the IDF Forces in the Area of Judea and Samaria, Judgment of 28 December 1983, Piskei Din, vol. 37 (3), 785, 795, English summary: Isr.Y.B. Hum. Rts., vol. 14, 1984, 301; HCJ, Beit Sourik Village Council v. Government of Israel, Judgment of 2 May 2004, Case No. 2056/04, available on the Supreme Court’s homepage at: http://62.90.71.124/heb/verdict/search/verdict_by_misc.html, English translation available on the Court’s homepage (note 12) (Beit Sourik Case). 26

Judicial Review during Armed Conflict

401

considerations. In recent years the Court has added that use of such discretion must also meet standards of proportionality.28 In some cases the Court has held that the principles of international law and administrative law lead to the same conclusion. A prime example is the decision in the famous Elon Moreh Case.29 In that case, the IDF had requisitioned private land on the West Bank for the building of a Jewish settlement, declaring that the land was required for military needs. The Court found that the main purpose of establishing the settlement had been political rather than military. It therefore held that the requisition order was invalid both under international law and under Israeli administrative law. Under the former, an occupying army does not have the power to requisition land for political purposes; under the latter, a political purpose is not a proper purpose for a military commander. As we shall see below, the Court adopted a similar approach in its decision relating to the separation barrier. In other cases, the Court has used administrative law in order to impose procedural requirements on the authorities that are not demanded by local legislation and are not necessarily a part of customary international law. Thus, for example, in the Association for Civil Rights Case30 the Court held that under the general principles of administrative law, the authorities were bound to grant the inhabitants of a house a hearing before using their statutory power to demolish their house.31 Application of administrative law provided the Court with a potent weapon for interfering in decisions of the military authorities, without having to rule on issues of principle in international law. However, the Court used this weapon sparsely. In most cases, it was prepared to bow to the discretion of the military authorities and to rule that there were no grounds for interfering with their decisions.32 Recent cases show a willingness of the Court to depart from this line.

28

See President Barak in Beit Sourik Case (note 27), para. 36. Supra, note 11. 30 HCJ, Association for Civil Rights in Israel v. Officer Commanding Central Command, Judgment of 30 July 1989, Piskei Din, vol. 43 (2), 529, English summary: Isr. Y.B. Hum. Rts., vol. 23, 1993, 294. 31 The issue of house demolitions and its compatibility with IHL will be discussed below. 32 See Kretzmer (note 6), 157–160. 29

402

David Kretzmer

IV. General Assessment of Court’s Approach

Until the present wave of violence, the Court’s record on judicial review in petitions relating to the OT had been mixed. While it supported the government’s position on most substantive questions relating to government actions in the OT, and was highly reluctant to interfere in the discretion of military commanders, it placed procedural constraints on the exercise of certain powers, such as punitive house demolitions, deportations and administrative detention. Furthermore, the mere existence of judicial review provided a restraining influence on the authorities. Empirical work on the success rate in petitions relating to the OT showed that in “the shadow of the Court” the authorities backed down or compromised in many cases after a petition was submitted, sometimes because of the pressure by judges, and in other cases as a result of the interference of lawyers in the office of the Attorney General.33 In the study on the Supreme Court mentioned above, I concluded that in its actual jurisprudence the legitimizing function of the Court had been dominant. However, when one considers the influence of judicial review, including the cases settled in the Court’s shadow, one must conclude that it had some restraining influence on the authorities.34 V. Judicial Review since September 2000

The cycle of violence that began in September 2000, known to many as the second intifada, effected a significant change in the political climate in Israel. During the years following the Oslo Accords and subsequent agreements there was a feeling of optimism that the end of the occupation was in sight, and that judicial review over actions in the OT would soon be a closed chapter in the Court’s history. Events since September 2000 have shown that this assessment was premature. The number of terrorist attacks on Israeli civilians since the beginning of 2001 created an atmosphere of anxiety and vulnerability in Israeli society, which re-enforced the perception of Israelis that they are the prime victims of 33

See Yoav Dotan, Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice During the Intifada, Law and Society Review, vol. 33, 1999, 319. 34 See Kretzmer (note 6), 196–197.

Judicial Review during Armed Conflict

403

the conflict who must find ways to defend themselves. This is well-reflected in the decisions of the Court. The hostilities that began in 2000 issued in a new phase of violence that far surpassed anything Israelis had experienced since the occupation began in 1967. The conduct of the actual hostilities presented the Court with questions quite different from those presented by the problems of an ongoing occupation. My examination of the Court’s approach since September 2000 will rest on cases that I have divided into five categories: – Interpreting the Geneva Convention: the ‘Assigned Residence’ Cases (Section D.); – House Demolitions: Balancing Security and Human Rights (Section E.); – Judicial Review During Active Hostilities (Section F.); – Detention During Hostilities (Section G.); – The Separation Barrier (Section H.).

D. Interpreting Geneva Convention IV: Anatomy of the‘Assigned Residence’ Cases I. The Political Background

On 27 March 2002, 22 people were killed and 140 injured when a suicide bomber blew himself up at a Passover seder celebration in a hotel in the coastal town of Natanya. This was the latest in a series of bombings in a month during which over thirty civilians in Israel and the OT were killed. Following the Natanya bombing the IDF embarked on a campaign, termed ‘Defensive Shield,’ during which most of the towns on the West Bank handed over to Palestinian control during the Oslo process were re-occupied. The campaign did not put an end to terrorist attacks on Israeli civilians. At a loss to find new measures that could deter potential suicide bombers, several cabinet ministers raised the idea of deporting families of suicide bombers. They claimed that potential suicide bombers might be deterred from carrying out a suicide bombing if they knew that their families would be harmed. The ministers’ proposal faced harsh criticism. The cabinet therefore decided to ask the At-

404

David Kretzmer

torney General for an opinion on whether deportation of family members of suicide bombers would be legal.35 II. The Legal Dimension

In a number of highly controversial decisions handed down after 1967, the Supreme Court of Israel held that Article 49 para. 1 of Geneva Convention IV, which prohibits deportation of protected persons from occupied territory, whatever the motive for that action might be, does not apply to deportation of individuals on security grounds.36 Notwithstanding this jurisprudence, the Attorney General informed the government that deporting Palestinians to a foreign country would be regarded by the international community as a violation of international law. Furthermore, he stated that it would not be legal to take measures against family members of suicide bombers unless there was convincing evidence that they themselves had been personally involved in the terrorist activity. He opined, however, that West Bank residents who themselves had been involved in the terrorist activity of family members could be transferred to Gaza. On 16 July 2002 a bus was ambushed and 8 Israelis, including 2 small children, were killed. The following day a suicide bomber blew himself up in Tel Aviv, killing 3 people and seriously wounding 40. The cabinet decided to reconsider the proposal that had been raised previously. In light of the Attorney General’s opinion it could not act on the original proposal. It therefore latched onto the Attorney General’s statement that family members of suicide bombers who were involved in the terrorist activity could be transferred from the West Bank to Gaza. The IDF lawyers were asked to formulate the necessary legal basis for such a measure. The lawyers involved in drawing up the military order authorizing transfer of West Bank residents to Gaza were well aware that deportations are outlawed by international law. They therefore phrased the new military order as one that dealt with “special supervision and assigning a place of residence.” The new 35

The Attorney General is the chief legal advisor of the government and also heads the criminal prosecution service. He is not a political figure and enjoys an independent status. According to the jurisprudence of the Supreme Court, unless a court rules otherwise, the Attorney General’s legal opinion binds the government. 36 See Kretzmer (note 6), 167–169.

Judicial Review during Armed Conflict

405

order stated that if the military commander of the West Bank considered it imperative to do so for decisive reasons of security, he could issue an order placing an individual under special supervision. Such an order could include the provision that the said person “be required to live within the bounds of a certain place in Judea and Samaria or in Gaza, as specified by the military commander in the order.”37 The new military order included the declarations that the order was made because of the need to contend with terror and its perpetrators, and that it had been promulgated with the consent of the military commander of Gaza. The military commander of Gaza promulgated a parallel order stating that a person subject to an order to reside in Gaza may not leave Gaza without the permission of the military commander of the West Bank or of Gaza. Any person against whom such an order had been issued had the right to appeal before an appeals committee headed by a military judge. III. The Court Petition

Armed with the new military legislation, the military commander of the West Bank issued an order against three West Bank residents, stating that he considered it imperative that they live in Gaza. All three, each of whom was the close relative of a person who had allegedly been involved in organizing terrorist attacks, appealed the order. After the military appeals committee rejected their appeals, lawyers of two Israeli human rights NGOs petitioned the Supreme Court on their behalf. They raised a number of arguments that related to the procedures followed, but their main arguments were that the measure was contrary to international law for two reasons: (1.) the measure was in fact a deportation; and (2.) the object of the measure was not preventive, but general deterrence, making it a form of collective punishment. An enlarged bench of nine justices, headed by Chief Justice Aharon Barak, heard the case.38 The measure taken by the authorities enjoyed a wide degree of public support. Cabinet ministers, senior security officials and a large part of the press felt that all ordinary measures had failed to halt the terrorist attacks and that special, extraordinary measures were called for. The government had already been 37

The Israeli authorities use the traditional geographical terms ‘Judea and Samaria’ to describe the West Bank. 38 HCJ, Ajuri v. IDF Commander, Judgment of 3 September 2002, Piskei Din, vol. 56 (6), 352, Case No. 7015/02, English translation available on the Court’s homepage (note 12) (Ajuri Case).

406

David Kretzmer

forced by lawyers to back down from its original plan to deport family members who were not involved in supporting terrorist activities. The measure being challenged before the Court was the watered-down version regarded as acceptable in the Attorney General’s opinion. A ruling by the Court that even this measure was unacceptable would be taken as a clear indication that the legal elites were preventing the “military experts” from taking the actions needed to protect the public. At the same time, the Court was well-aware that the real intention of the government had been to deport family members. This would obviously have been totally unacceptable. IV. The Court’s Decision

The petition raised serious legal issues. The main argument of the petitioners relied on Article 49 para. 1 of Geneva Convention IV. As mentioned above, in the past the Court had held that this provision is not reflective of customary international law, and may not be enforced by the domestic courts. In decisions that had been harshly criticized, the Court had also held that in all events, Article 49 para. 1 does not apply to deportation of specific individuals on security grounds.39 The petitioners’ arguments were seemingly forcing the Court to reconsider its position on both the status and interpretation of Article 49 para. 1. The measure taken by the authorities had been condemned by the international community. In these circumstances, the Court could scarcely leave open the issue of the compatibility of this measure with the Geneva Convention. Government counsel argued that even though the Geneva Convention does not formally apply to IDF actions in the West Bank and Gaza, and is not enforceable before domestic courts, the authorities were convinced that they had respected its provisions. Relying on this declaration, the Court held that in light of the government’s long-standing position that the IDF would respect the humanitarian provisions of the Convention, the Court would assume that the Convention applied, and would rule on that basis, without entering into the complicated legal issues regarding application and domestic enforcement of the Convention. The Court’s pragmatic approach may obviously be criticized on theoretical grounds. Unless the Court actually determines that the Convention applies, how can it rule on its basis? The Court is not an arbitrator or mediator, but a Court of 39

These cases are discussed in Kretzmer (note 6), Chapter 3.

Judicial Review during Armed Conflict

407

law that is supposed to rule on the basis of the applicable legal norms.40 Notwithstanding this criticism, the Court’s approach was probably a prudent one. Had the government argued that the Geneva Convention was irrelevant, the Court would have had to rule on the issue. But given the pragmatic stand of the government itself, and the clear evidence that an attempt had been made to fit the measure into the confines of Geneva Convention IV, the Court’s approach allowed it to rule on the merits without expressly undermining the position that the government had maintained in the international arena for a long time. The government’s argument rested on Article 78 of the Convention, which states: If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.

The Court declared that it would decide whether the orders against the petitioners could be justified under this provision. If so, they would be upheld. If not, they would be overruled, without re-examining the interpretation of Article 49 of the Geneva Convention. Both parties agreed that Article 78 refers to assigned residence within the occupied territory. The government argued that both the West Bank and Gaza should be regarded as one occupied zone, even though two separate military commanders are in charge of each area. The petitioners’ argument was that the West Bank and Gaza are two separate territories, and that transferring a person from one to the other must be regarded as deportation.

40

In one of the earliest cases relating to the territories occupied by Israel in 1967, one of the judges, Justice Witkon, had expressly refused to accept government consent as grounds for ruling on the basis of Geneva Convention IV. Justice Witkon felt that doing so would turn the proceedings into a sort of arbitration that depends on the consent of the parties: HCJ, Khelou v. Government of Israel, Judgment of 23 May 1973, Piskei Din, vol. 27 (2), 169, 177.

408

David Kretzmer

The Court accepted the government’s argument. It held that both the West Bank and Gaza were part of Mandatory Palestine. Both are conceived of as one area. They are under the aegis of the same Palestinian Authority (PA) established by the agreements between Israel and the PLO. Most importantly, clause 11 of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip41 signed by Israel and the Palestine Liberation Organization (PLO) states: The two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which shall be preserved during the interim agreement.

Following the Court’s decision, some human rights NGOs simply repeated the mantra that deportations were illegal, making no attempt to address the Court’s reasoning.42 It seems to me, however, that the Court’s approach cannot simply be dismissed out of hand. The above-quoted section from the agreement between Israel and the PLO may be cited not only to support the view that assigned residence of a West Bank resident in Gaza is consistent with Article 78, but even to support the claim that removal of a person from the West Bank to Gaza is not prohibited under Article 49 para. 1 of Geneva Convention IV. Article 49 para. 1 prohibits deportation of a person in occupied territory to the territory of the Occupying Power or to the territory of any other country, occupied or not. In light of the above agreement, it would be very difficult to argue that forcing a resident of the West Bank to move to Gaza involves deportation to the territory of another country. On the other hand, it must be admitted that in reality, the arrangements under the Oslo agreements that were meant to give effect to the integrity of the West Bank and Gaza have never been executed. In actual fact, the two areas are separated and there is no freedom of movement between them. Thus, while a person subject to assigned residence in occupied territory is not removed from his or her family and friends, who could presumably visit him or her, a West Bank resident sent to assigned residence in Gaza is cut off from friends and family, who are not able to visit without a special permit. Furthermore, it is not at all clear that the area in Gaza to which the petitioners were sent should be regarded as an area that is clearly subject to a regime of belligerent occupation. As al41 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995, Israel-PLO, available at: http://www.knesset.gov.il/process/docs/heskemb_ eng.htm. 42 See, e.g., Amnesty International, Israel/OT: Further Information on Unlawful Forcible Transfer/Collective Punishment, 4 September 2002, AI Index MDE 15/133/ 2002, available at: http://web.amnesty.org/library/index/ENGMDE151332002.

Judicial Review during Armed Conflict

409

ready noted, the IDF has re-asserted its control over all areas on the West Bank that were transferred to the control of the PA under the agreements that followed the Oslo Accords. However, most of Gaza still remains under the control of the PA.43 The petitioners argued that, even if the measure could indeed be regarded as one of assigned residence, use of the measure in the cases before the Court was aimed at deterring others, and not at neutralizing a danger created by the individuals subject to assigned residence themselves. Recognizing that they could not claim to be acting within the confines of Article 78 if the only argument was deterrence, the authorities argued that the main object of the measure was to contain a security risk created by the designated persons themselves. They claimed, however, that in choosing between different measures the deterrent effect of the specific measure could be taken into account. Given the background described above, the government’s argument had an element of artificiality about it. One of the persons against whom the assignment order was granted was under administrative detention when the order was issued. How could assigned residence in Gaza be a measure required to neutralize the security risk she posed? Add to this that at the time of the hearing the IDF had reasserted its authority in areas on the West Bank that were previously under Palestinian control. It had not done so in Gaza, most of which was still controlled by the PA. How could the security risk created by individuals be lessened by transferring them to an area in which the authorities would lose control over their activities? Notwithstanding these factors, the Court was not prepared to interfere with the military commander’s assessment that the measure could be effective in neutralizing the danger created by an individual. It quoted from Pictet’s Commentary on Geneva Convention IV,44 in which the editors acknowledge that it is “left very largely to Governments to decide the measure of activity prejudicial to the internal or external security of the State which justifies internment or assigned residence.”45 43

This is one of the main reasons cited by the authorities to support the legality of targeting suspected terrorists who operate in Gaza. See David Kretzmer, Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, European Journal of International Law, vol. 16, 2005 (forthcoming). 44 Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, 1958, 368. 45 Ajuri Case (note 38), para. 28.

410

David Kretzmer

The Court held that it was legitimate to take into account questions of general deterrence when choosing between different available measures to contain security risks. It emphasized, however, that the measure of assigned residence involves a serious limitation on the freedom of the individual. It may not be imposed unless there is clear evidence that there is a reasonable possibility that a real danger of harm to the security in the area will arise from that individual if the measure is not taken. Armed with this test, the Court proceeded to discuss the case against each of the three petitioners. It upheld use of the measure against two of them, on strength of evidence of their active involvement in the terrorist activities of a family member. However, it held that the involvement of the third petitioner in the activities of his brother had not been strong enough to justify use of this extreme measure against him. While he had been aware of the activities of his brother, he had not given any active support to these activities. The Court therefore overruled the assigned residence order against this petitioner. The Court was obviously well-aware that this interpretation of Article 78 could be regarded as controversial. It therefore saw fit in ending its judgment to make the following remark: Before we conclude, we would like to make two closing remarks. First, we have interpreted to the best of our ability the provisions of art. 78 of the Fourth Geneva Convention. According to all the accepted interpretive approaches, we have sought to give them a meaning that can contend with the new reality that the State of Israel is facing. We doubt whether the drafters of the provisions of art. 78 of the Fourth Geneva Convention anticipated protected persons who collaborated with terrorists and ‘living bombs.’ This new reality requires a dynamic interpretive approach to the provisions of art. 78 of the Fourth Geneva Convention, so that it can deal with the new reality.46

A number of assigned residence cases reached the Court after the Ajuri decision.47 As opposed to the Ajuri Case, the measure was not used against family members of persons involved in terror, but against the persons who were themselves allegedly involved in the activities of a terrorist organization. In all of the

46

Id., para. 40. HCJ, Adris v. IDF Commander, Judgment of 29 October 2003, Case No. 9534/03; HCJ, Abad v. IDF Commander, Judgment of 31 December 2003, Case No. 9552/03; HCJ, Sualma v. IDF Commander, Judgment of 4 December 2003, Case No. 9586/03, all available on the Court’s homepage (note 27). 47

Judicial Review during Armed Conflict

411

cases the petitioners were West Bank residents who had been held in administrative detention for various periods of time. Rather than extending their administrative detention, the military commander issued assigned resident orders for them to reside in Gaza. They were not put on criminal trial since part of the evidence was privileged on grounds of State security. The evidence was seen by the Supreme Court, which upheld the orders in all cases. The Court rejected the argument that the persons involved should have remained in administrative detention, rather than being forced to move from the West Bank to Gaza. It held that the measure was a less drastic restriction on the freedom of movement of the persons involved than administrative detention, and that in all events, choice of the appropriate security measure was in the discretion of the military commander. Assigned residence could be used when the military authorities had clear evidence regarding the security threat posed by the individuals involved, and subjecting them to assigned residence would diminish that threat. My previous research on the way the Court has interpreted the Geneva Convention shows that it has consistently favored the government’s interpretation, even when this has forced it to change its theory of interpretation from one case to the next.48 The Ajuri decision would seem to be consistent with this approach. The Court legitimized a measure despite arguments that it is incompatible with Geneva Convention IV, though in this case it did so on stronger grounds than in previous cases. On the other hand, having upheld the measure in principle, the Court restricted its use. In the absence of judicial review it is unlikely that the authorities would have requested a legal opinion before deporting family members of terrorists and it is also likely that they would not have been constrained to limit the measure to family members involved in the terrorist activity. Lest the government had any second thoughts about following the Attorney General’s opinion, the Court itself used the case as an opportunity to strengthen the constraints, not only by its rhetoric, but by holding that the involvement of one petitioner in the terrorist activities of a family member was not strong enough to justify such a harsh measure against him. Significantly, after the Ajuri Case, the measure was only used against persons who were themselves allegedly actively involved in the work of terrorist organizations.

48

See Kretzmer (note 6), Chapter 3.

412

David Kretzmer

E. House Demolitions I. Background

In discussing the question of house demolitions a distinction must be drawn between three types of house demolitions: 1. punitive demolitions; 2. demolitions for operational reasons, generally during fighting; and 3. demolition of houses that have been built illegally. It is not always possible to distinguish between the different types, and there is often a suspicion that houses that were ostensibly demolished for operational reasons were in fact demolished as a form of punishment or retribution. However, the types of demolitions raise different legal questions. In this section, I shall dwell mainly on punitive demolitions, with which the bulk of the Court’s decisions are concerned. I shall also discuss cases dealing with operational demolitions. I shall not discuss demolition of houses that were built illegally. II. Punitive Demolitions: Background

Punitive house demolitions are, in my mind, the most objectionable of the security measures used by the IDF in the OT since 1967. Based on a provision in the notorious Defence Regulations (Emergency) promulgated by the British Mandatory authorities in 1945, the measure is used to demolish or seal the family homes of Palestinians who have been involved in terrorist attacks or attacks against the military.49 In all cases, the perpetrator of the act that leads to the use of the measure has been apprehended or killed (often in the course of a suicidebombing) or has escaped, so that the persons who suffer from the measure are family members. There is no need to prove that the residents of the family home were involved in the violent activities of their son, daughter, brother or sister, or were even aware of these activities. The mere fact that the person involved in the violence lived in the house is sufficient. Use of punitive house demolitions is incompatible with standards both of international humanitarian law and international human rights law.50 As the 49

For a full description of the legal basis for such demolitions see Kretzmer (note 6), 145–149. 50 See Kretzmer (note 6), 146–148; Dan Simon, The Demolition of Homes in the Israeli Occupied Territories, Yale Journal of International Law, vol. 19, 1994, 1.

Judicial Review during Armed Conflict

413

measure is not directed towards the person involved in the violence, it must be regarded as a form of collective punishment, or, at the very least, punishment of persons for crimes they have not committed personally, which is expressly prohibited under Article 33 of Geneva Convention IV. Furthermore, the measure may be regarded as a form of cruel and inhuman punishment.51 It would seem to involve unlawful interference in the family home52 and unlawful destruction of property.53 Despite arguments against their legality, the Supreme Court has over the years consistently upheld the use of punitive house demolitions.54 In a number of decisions, whose reasoning leaves a lot to be desired, the Court dismissed the argument that the measure is a form of collective punishment.55 One of the arguments repeatedly mentioned by the Court is that the measure is not aimed at punishing, but at deterring potential terrorists from acting.56 I regard this argument as a piece of sophistry that does the Court little credit.57 One of the aims of

51

See UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, UN Doc. CCPR/CO/78/ISR (2003), para. 16, available at: http:// www.unhchr.ch/tbs/doc.nsf/0/7121cbf0578c594ec1256da5004b25e8. 52 Id. Also see Eur. Court H.R., Akdivar v. Turkey, Judgment of 16 September 1996, reprinted in: European Human Rights Reports (EHRR), vol. 23, 1997, 143, in which the Eur. Court H.R. held that destruction of homes by the Turkish army amounted to a violation of the right to family life and home, protected under Art. 8 ECHR. The Court left open the question if a violation of the right to be free from cruel, inhuman or degrading treatment or punishment was also involved. 53 Demolition of private property in occupied territories is prohibited under Art. 53 of Geneva Convention IV, “except where rendered absolutely necessary by military operations.” Punitive demolitions cannot be regarded as required by (‘military operations’) and certainly cannot be regarded as rendered absolutely necessary: see Kretzmer (note 6), 146–148. 54 Id., 149–163. 55 Id., 149–153. One of the Justices, Justice Cheshin, has dissented from this view and has held that destruction of a home when there is no evidence that the residences knew of the terrorist activities of the family member, or were involved therein, is indeed unlawful collective punishment: HCJ, Hizrahn v. IDF Commander, Judgment of 23 March 1992, Piskei Din, vol. 46 (2), 150; HCJ, Almarin v. IDF Commander, Judgment of 14 June 1992, Piskei Din, vol. 46 (3), 693. 56 See, e.g., HCJ, Elkatzahf v. IDF Commander of Judea and Samaria, Judgment of 12 March 1990, Piskei Din, vol. 44 (1), 614; HCJ, Shuahin v. IDF Commander of Judea and Samaria, Judgment of 19 August 1990, Piskei Din, vol. 44 (3), 875, English summary: Is. L.R., vol. 25, 1995, 325. 57 Kretzmer (note 6), 149–153.

414

David Kretzmer

punishment is general deterrence and any measure imposed for this purpose in response to a crime must be regarded as a form of punishment. Having rejected the argument that punitive house demolitions involve collective punishment, the Court avoided dealing in detail with the other principled arguments against such demolitions, such as the argument that it involves unlawful destruction of private property. The Court rejected attempts to raise these arguments, stating that they had already been dismissed in previous decisions, although in fact the only argument discussed in those decisions is the argument about collective punishment.58 As in the assigned residence case, while the Court has not been prepared to rule that all punitive house demolitions are incompatible with international humanitarian law and international human rights law, it has made an effort to constrain use of the measure. In each application for judicial review of a decision to demolish a house, the Court issues an interim injunction stopping the demolition until the case has been heard. This in itself has often led the authorities to reconsider their position and to opt for a less extreme sanction, such as sealing the house. Furthermore, in a landmark decision handed down in 1988, the Court held that the authorities may not demolish a house as a punitive measure unless they have given the occupants a hearing and, if their arguments are rejected in the hearing, time to petition the Court.59 This has had a considerable restraining influence on the authorities. Furthermore, after initial hesitation to interfere in the discretion of military commanders in deciding on the type of measure to be used in each case, the Court eventually ruled that the commanders were bound by the proportionality principle.60 It interpreted this to mean that the authorities may not demolish a house if the living quarters of persons other than the nuclear family of the person involved in the terror or violence would be harmed. The authorities modified their practice in order to conform with this ruling, thus reducing the scope of house demolitions.61

58

Id. Association for Civil Rights in Israel v. Officer Commanding Central Command (note 30). 60 HCJ, Turkmahn v. Minister of Defence, Judgment of 15 February 1993, Piskei Din, vol. 48 (1), 217. 61 See Kretzmer (note 6), 160–161. 59

Judicial Review during Armed Conflict

415

III. House Demolitions since September 2000: Squaring the Circle

The above description reflects the position of the Court’s jurisprudence on house demolitions when violence erupted in September 2000. It is a reasonable hypothesis that with intensification of the conflict, the Court would not be prepared to go further in containing use of punitive house demolitions than it had in the past, and would even be prepared to relax some of the constraints it had placed on its use before. This hypothesis proves to be correct. In a number of cases heard since September 2000, the Court has upheld use of punitive house demolitions ordered by the military commander in response to specific terrorist attacks. In most of the cases, the Court gives a fairly detailed description of the terrorist attack that led to the use of the measure, and it frequently mentions the general situation in which the country finds itself. Thus in one case the Court stated: For a few years, and especially since the end of September 2000, Palestinian organizations have been carrying out murderous terrorist acts in the area of the State of Israel, and in the territories in its control. These acts were intended to hurt Jews as Jews, and so far the bloodbath has claimed the lives of many hundreds, and has caused injury to thousands.62

The Court has repeated its position that the measure is not a form of collective punishment since its aim is deterrence,63 that it is for the military commander to decide whether a given measure is effective,64 that the measure may be imposed even if the person who carried out the act has not been convicted in a court of law,65 and that there is no need to prove knowledge or involvement of the family members living in the house in order to justify use of the measure.66 As stated above, before September 2000 the Court subjected use of house demolitions to procedural requirements. After the conflict intensified, the authori62

HCJ, Sharbaati v. Officer Commanding Home Front, Judgment of 15 December 2003, Case No. 10467/03, available on the Court’s homepage (note 27). 63 HCJ, Bakar v. IDF Commander, Judgment of 3 November 2003, Case No. 3363/ 03; HCJ, Kadar v. IDF Commander, Judgment of 2 October 2003, Case No. 8262/03, both available on the Court’s homepage (note 27); HCJ, Abassi v. Officer Commanding Home Front, Judgment of 5 January 2003, Piskei Din, vol. 57 (2), 55. 64 Id. 65 Sharbaati v. Officer Commanding Home Front (note 62), para. 3–4. 66 HCJ, Bachar v. IDF Commander, Judgment of 17 September 2002, Piskei Din, vol. 56 (6), 488; HCJ, Zaaroub v. IDF Commander of Gaza Strip, Judgment of 20 August 2002, Piskei Din, vol. 56 (6), 407.

416

David Kretzmer

ties argued that given the hostilities, in some cases granting a hearing to the tenants before demolishing a house might endanger the forces involved and lead to postponement of the demolition. The Court stressed that the ongoing hostilities did not mean that the authorities were no longer bound by the hearing requirement. However, rather than ruling that if a hearing was not possible, a house could not be demolished, it held that, when such a hearing was not possible, in certain circumstances the house could be demolished. Everything depends on the particular circumstances, and the balance between the right of hearing and the danger to the soldiers and the chance of frustrating employment of the measure.67 Later the Court held that the duty to grant a hearing before a house demolition is subject to three exceptions: immediate operational necessity, lifethreatening danger to the soldiers involved and the assessment that the hearing would frustrate the possibility of carrying out the demolition.68 The Court even suggested that persons who feared that their house would be demolished because an inhabitant had been involved in a terrorist attack could approach the military commander of their own accord. The military commander assured the Court he would give careful consideration to any arguments presented in any such communication.69 While the judges are not prepared to prohibit punitive house demolitions, it is not surprising that they feel uncomfortable about their role in approving use of the measure and look for ways to rationalize it. In one case, after repeating the usual arguments about the lawfulness of the measure, Justice Tirkel made the following statement: Notwithstanding, and despite the legal reasons, it is morally distressing that the crime of the terrorist is paid for by the members of his family, who as far as we know did not assist him and did not know about his actions. This distress derives from the ancient principle of the Jewish tradition according to which “the fathers shall not be put to death for the sons, neither shall the sons be put to death for the fathers; every man shall be put to death for his own sin” (Deutr. XXIV, 16) […]. The sages even complained that King David had violated this principle by not showing mercy for the seven sons of Saul […]. […] However, the chance that destruction or sealing of a house will in the future prevent spilling of blood requires us to harden our hearts and 67

HCJ, Amar v. IDF Commander, Judgment of 6 August 2002, Piskei Din, vol. 56 (6), 110. 68 HCJ, Alzar v. IDF Commander, Judgment of 3 May 2004, Case No. 4103/04, available on the Court’s homepage (note 27). 69 HCJ, Zalah a-Din v. IDF Commander, Judgment of 8 August 2002, Case No. 6868/ 02; HCJ, Gradat v. IDF Commander, Decision of 5 September 2002, Case No. 7206/02, both available on the Court’s homepage (note 27).

Judicial Review during Armed Conflict

417

to spare the living, who are likely to become victims of horrific acts of terrorists, more than we should spare the tenants of the house. This cannot be avoided.70

In another case Justice Levi acknowledged how severe the measure of house demolition is, and how painful and difficult its consequences are. But he added: At times there is no choice, since it has been recognized as a measure that rationally is likely to achieve general deterrence, and it has even been held proportional as long as it is used in especially grave cases […].71

In the same case Justice Levi conceded that before deciding the case he wondered whether it was “proper in a state based on rule of law that such extreme measures be taken before a person had been convicted, but in the end I was persuaded that [this case] is not the appropriate one in which we should reconsider this issue.”72 One of the most extreme expressions of discomfort in their role in permitting house demolitions appears in a case in which the petitioners’ counsel once again raised the argument that it was disproportionate to demolish a house, as the petitioners had not been party to the terrorist attack carried out by family members (blowing themselves up in a crowded street in the center of town). The Court accepted that the petitioners had not been involved in the act itself, although evidence showed that they had been well aware of their family members’ activities. Justice Matza saw fit to declare: It is a fact worth mentioning that in the entire petition we could not find one word of reservation by any of the petitioners in respect to the despicable murderous act that the members of their families committed. We did not find that any of them condemned the act or expressed shame that a family member had committed it.73

Justice Matza added that the consistent jurisprudence of the Court was that knowledge by the family members is not required in order to justify use of the measure by the military commander. However:

70 HCJ, Saada v. Officer Commanding Home Front, Judgment of 27 November 2003, Case No. 6288/03, available on the Court’s homepage (note 27). 71 Sharbaati v. Officer Commanding Home Front (note 62), para. 3c. 72 Id. The case in question involved a suicide bomber who blew himself up on a bus, killing 22 persons including several babies, and injuring 120. The person whose house was to be sealed had driven the bomber to the site of the attack. He admitted his part in the attack and expressed no regret whatsoever, stating that “I am not sorry. Just as you kill Arabs we will kill Jews.” 73 Bachar v. IDF Commander (note 66).

418

David Kretzmer

Absence of words of reservation or condemnation in the present case adds a moral dimension to the justification for the [demolition] order; since the position of the petitioners in this matter is like that of a person who petitions the High Court of Justice without clean hands.74

Perhaps the most extreme example of the manner in which the Court perceives the conflict appears in a case in which the petitioners’ counsel argued that the measure of house demolitions was used in a discriminatory manner. While the measure was used against the family homes of Palestinians involved in terror attacks, it was not used when Jews had been involved in terrorist activities. The Court answered this argument in the following manner: As we have said, the goal of these measures is deterrent, and not punitive. The phenomenon of Jewish terrorists is extremely serious, but it is confined to isolated cases, while the vast majority of the Jewish public in Israel condemns the phenomenon and disassociates itself from it. There is therefore no need to use this type of sanction in order to deter this part of the public. On the other hand, unfortunately the situation is different among the Palestinian public. It is sufficient to point to the large number of terrorist attacks that have been carried out and many that were prevented, and it is especially appropriate to point to the shouts of joy after the killing of Jews, and the “days of celebration” that the family members of those defined as ‘shahidim’ (martyrs) declare after they learn of the death of their sons. In my mind, these clarify how much the population in the territories occupied by Israel encourages the acts of suicide-bombers, and it also explains the growing number of those who are prepared to serve as ‘living bombs.’ In this situation the need to find deterrent means in order to reduce the cycle of killing, is a matter of survival and there is no higher need. Thus we are not talking about discrimination, but measured and balanced use of Article 119.75

So much for the rhetoric used by the Court. But this is not the whole picture. In some cases the Court has pressured the authorities to mitigate or to reconsider their position. Thus, in one case the Court stated that it would not interfere in the assessment of the military authorities that house demolitions have a deterrent effect. Nevertheless, given the extreme nature of the measure, the authorities should from time to time examine the soundness and efficiency of this 74 Id. It should be noted that the two other judges on the bench stated that they agreed that the measure could be carried out because the evidence presented to the Court showed that the family members whose house was to be demolished were well aware what the suicide bombers were likely to do. 75 Sharbaati v. Officer Commanding Home Front (note 62), para. 3e. After this article went to press it was reported that an internal committee established by the Chief of Staff to look into the issue of house demolitions had expressed the opinion that the damage to security caused by punitive house demolitions outweighed any potential deterrent effect they had. In response the Minister of Defence ordered the IDF to halt all punitive demolitions: Ha’aretz, 18 February 2005, 1.

Judicial Review during Armed Conflict

419

assessment.76 In another case, during the appeals process that preceded the petition to the Supreme Court, the military commander agreed to reduce the scope of the demolition.77 It is fair to assume that one of the reasons for this was the fear that the original demolition order would be regarded as disproportionate by the Court. In the assigned residence case, the Court presented a reasonable legal argument for its position, making a genuine attempt to interpret the relevant Article in the Geneva Convention, albeit in a manner that favored the position of the authorities. While the position taken by the Court in that case is open to criticism, it cannot be said that the interpretation of Geneva Convention IV adopted by the Court is unfounded. Furthermore, it does not seem to the present writer that, when the measure of assigned residence is used against persons who were themselves actively involved in supporting terrorist acts, it can be regarded as an abandonment of fundamental legal principles. The position in relation to house demolitions is quite different. There are extremely strong arguments for ruling that the measure is unlawful by any standard. The authorities have indeed consistently claimed that the measure is an effective deterrent, but this is no more than a claim that has been substantiated only by a few pieces of anecdotal evidence that don’t prove much. Even if the Court was hard-put to rule out a measure that was supposed to be an effective deterrent, it could have shifted the burden of proof on effectiveness to the authorities, rather than ruling that it could not interfere with a measure the authorities considered effective. It is quite apparent that the judges themselves are fully aware that punitive house demolitions are incompatible with basic legal values. They feel uncomfortable about their role in upholding the measure. Nevertheless, seeing that the authorities claim to regard this measure as an effective weapon, they are not prepared to prohibit its use. Instead they give vent to their reservations, while at the same time trying to rationalize their position by stressing that use of the measure is meant to save lives. The Supreme Court has both a reputation and a self-image as an institution that protects fundamental human rights. How has it been able to live with punitive house demolitions? How has it explained its willingness to approve use of 76

HCJ, Azadin v. IDF Commander, Judgment of 19 October 2003, Case No. 8575/ 03, available on the Court’s homepage (note 27). 77 HCJ, Feraj v. IDF Commander, Judgment of 4 March 2004, Case No. 893/04, available on the Court’s homepage (note 27).

420

David Kretzmer

a measure that strikes many objective observers as barbaric? Most importantly, why has it refrained from applying norms of international humanitarian law and ruling that the measure is simply illegal? The answers to these questions are complex. Obviously the Court is reluctant to prevent use of a measure that the authorities claim is essential in the attempt to contain violence and terror. This became especially evident in the cases of suicide bombings in which the authorities claimed that they had no other methods of deterring potential terrorists, who knew that they would be giving up their lives in the course of the attack. The parallel with the assigned residence cases is that the Court continues to make an effort to constrain use of the measure. The authorities have accepted that they have to work within the parameters of the proportionality principle laid down by the Court. Finally, the Court has frequently attempted to lessen its responsibility for use of the measure by stressing that it is the military commander who has to decide, and that it is his assessment that the measure is an effective deterrent. The Court is merely checking to see whether the commander is acting within the bounds of his authority. It should be added that while the perception of human rights lawyers is that the Court has abdicated its protective function by allowing house demolitions, in some political circles the Court has been accused of doing exactly the opposite: of preventing the authorities from protecting the Israeli public against terrorist attacks. After the Court issued a number of interim injunctions halting house demolitions, there were demonstrations against their decisions, and a number of politicians made statements criticizing the Court. IV. Operational Demolitions

During the height of the fighting in the Jenin refugee camp at the beginning of April 2002, two human rights NGOs petitioned the Court to order the military commander not to destroy any houses before giving the inhabitants a right of hearing and a chance to evacuate their house. The petitioners claimed that they had received information that military forces in the camp were destroying houses along two central roads. In response, the military commander informed the Court that intense fighting had ensued in the camp after the IDF entered in order to destroy the infrastructure of Palestinian terror. The IDF was being fired on from houses and for operational reasons some houses had to be destroyed.

Judicial Review during Armed Conflict

421

The commander claimed that loudspeakers were used to call upon inhabitants to evacuate houses that were to be destroyed. The Court held that the scope of judicial review over ongoing military operations was restricted. The conditions were not normal and static, which would have made it possible to demand that the commander afford every person a hearing before their house was destroyed. The Court noted the commander’s declaration that his forces were conducting their operations according to norms of international humanitarian law and that every effort was being made to avoid harming innocent persons.78 In May 2004, there was a horrendous terrorist attack in Gaza in which a young Israeli woman and her four children were murdered. The IDF immediately demolished a number of houses near the site of the attack. When Palestinians in the area petitioned the Court to enjoin further demolitions, the Court set the case for an immediate hearing. At the hearing, which took place on the morning after the petition was submitted, government counsel conceded that houses in the area of the terrorist attack had indeed been demolished. He stated, however, that the demolition had not been carried out as a punitive measure, but on the basis of information that further attacks were planned in the area. The demolitions were carried out under Article 23 lit. g of the Hague Regulations, there being “an immediate military necessity during an armed conflict.” Counsel declared that there were no plans to demolish other houses. However, if the need was to arise to do so, the IDF would allow the tenants a hearing before demolishing their house, unless one of the exceptions laid down in the cases dealing with punitive demolitions applied, namely, there was an immediate operational necessity, lives of soldiers would be endangered by the hearing, or the hearing would frustrate the possibility of carrying out the demolition. In the light of this declaration, the petitioners withdrew their petition.79 Two weeks after the terrorist attack the IDF entered the Rafah area. Israeli authorities claimed that the military operation was necessary to destroy the infrastructure for terror and tunnels through which Palestinians were smuggling arms from Egypt. Fierce fighting ensued between the IDF and members of armed Palestinian groups. Soon after the military operation began, a petition was submitted to prevent demolition of houses in the Rafah area. The authori78 HCJ, Adalah v. IDF Commander, Judgment of 9 April 2002, Piskei Din, vol. 46 (3), 6. 79 Alzar v. IDF Commander (note 68).

422

David Kretzmer

ties claimed that during actual fighting an immediate military necessity arose to demolish houses in order to protect the lives of soldiers. They repeated the commitment they had made in the previous case, namely to grant a hearing before demolition of a house unless one of the three exceptions applied. As military operations in the specific area had ended by the time the matter came to court, the Court held that the petition had become theoretical. It was therefore dismissed.80 Two days later another petition was submitted to the Court. The petitioners, who lived in an area in Rafah in which fighting continued, asked for an injunction against demolition of their houses, or at least for an order that the authorities should give them warning of the intention to demolish their houses, and to allow them a hearing before doing so. The Court drew a clear line between punitive house demolitions and operational demolitions. It stated that the petitioners’ arguments rested on the assumption that the demolitions were punitive. However, the Court declared, this was not the case. It mentioned the previous petitions and the IDF’s declaration that it had no prior intention to demolish houses in the Rafah area, either for deterrent purposes or for widening the buffer area between Rafah and the Egyptian border. The authorities explained that sometimes during fighting IDF soldiers were fired upon from houses. In such cases, protecting the soldiers’ lives might require demolishing the houses. The Court once again mentioned the commitment not to demolish a house without a hearing unless one of the three exceptions applied. It added: Counsel for the respondents did not hide the fact that in the situation pertaining in the area of the activities, granting a hearing is now almost impossible. But their explanations persuaded us that as a rule house demolitions are not carried out in the said area unless one of the three exceptions applied.81

The Court dismissed the petition after remarking that it was sure that the IDF was fully conscious of the seriousness of its responsibility and was making every effort to reduce the damage and suffering caused to the civilian population as far as possible. As can be seen from the above decisions, the Court is highly reluctant to intervene in cases in which the authorities claim that demolitions are necessary in 80

HCJ, Shakfaht v. IDF Commander, Judgment of 16 May 2004, Case No. 7206/02, available on the Court’s homepage (note 27). 81 HCJ, Abu Atra v. IDF Commander, Judgment of 18 May 2004, Case No. 4694/04, available on the Court’s homepage (note 27).

Judicial Review during Armed Conflict

423

order to protect soldiers’ lives during military operations. At first, the Court failed to distinguish clearly between such cases and punitive demolitions, applying the exceptions to the hearing requirement laid down in cases of punitive demolitions. Later it expressly stated that there was a tremendous difference between the types of cases, and that in fact there was no room for a hearing during military operations. Nevertheless, it did not entirely abandon the hearing requirement. Instead, it relied on the authorities that they would allow such a hearing if it were possible. The attitude of the Court in these cases reflects its general approach to questions that arise during military operations. I shall now discuss this approach. F. Conduct of Hostilities I. From Occupation to Active Armed Conflict?

Soon after September 2000 the legal advisors of the IDF argued that the situation was now one of “armed conflict short of war.” This argument, which was adopted by the government in its brief to the Mitchell Commission,82 has farreaching consequences on the applicable legal regime. For, while the management of a belligerent occupation is in essence based on a law-enforcement model of law, with all that this implies vis-a-vis the use of force and rights of due process, the armed conflict model assumes that it is legitimate to use force against enemy combatants. Furthermore, it is not self-evident that the type of judicial review that had become standard practice during the years of “pure occupation” was acceptable if we were really talking of ongoing hostilities. One can readily conceive of a Court reviewing decisions of the military in occupied territory to take measures against protected persons in real time. Can one really expect a Court to monitor the actions of an army that claims to be fighting in an armed conflict? The notion that the situation in the OT was now one of an armed conflict is not shared by all. The Commission of Inquiry established by the UN Commission on Human Rights soon after the intifada started left the question open, stat-

82 See Report of the Sharm el Sheikk Fact-Finding Committee, The Mitchell Report, 30 April 2001, available at: http://www.mideastweb.org/mitchell_report.htm, citing from statements submitted by the Government of Israel.

424

David Kretzmer

ing that it did not have enough information to take a position.83 A group of Oxford Public Interest Lawyers who recently wrote an opinion on the legality of the separation barrier took the line that the level of violence did not justify the conclusion that there was armed conflict in progress.84 In its Advisory Opinion on the Legal Consequences of the Wall, the ICJ implicitly rejected the Israeli argument, although it is far from clear on what basis it did so.85 While the Israel High Court of Justice has never been asked to take a clear stand on the issue, the judges have time and again mentioned that the situation in the OT is now one of armed conflict. Thus, in the Ajuri Case, discussed above, Chief Justice Barak stated: Since the end of September 2000, fierce fighting has been taking place in Judaea, Samaria and the Gaza Strip. This is not police activity. It is an armed struggle. Within this framework, approximately 14,000 attacks have been made against the life, person and property of innocent Israeli citizens and residents, the elderly, children, men and women. More than six hundred citizens and residents of the State of Israel have been killed. More than 4,500 have been wounded, some most seriously. The Palestinians have also experienced death and injury. Many of them have been killed and wounded since September 2000. Moreover, in one month alone – March 2002 – 120 Israelis were killed in attacks and hundreds were wounded. Since March 2002, as of the time of writing this judgment, 318 Israelis have been killed and more than 1,500 have been wounded. Bereavement and pain overwhelm us.86

83

See United Nations, Commission on Human Rights, Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine, Report of the Human Rights Inquiry Commission, UN Doc. E/CN.4/2001/121, para. 39–40. It should be noted that they adopted this position before IDF embarked on the “Defensive Shield” campaign in March 2002. 84 Oxford Public Interest Lawyers, Legal Consequences of Israel’s Construction of a Separation Barrier in the Occupied Territories – International Law Opinion, February 2004 (on file with the author), para. 115. Unfortunately, this conclusion is presented as a bland statement and no attempt is made to address the figures on the level of organized violence presented by the authorities. Also see International Humanitarian Law Research Inititative, Policy Brief, The Separation Barrier and International Law, available at: http://www.ihlresearch.org/opt/feature.php?a=36. 85 The implicit rejection of this argument may be deduced from the Court’s view that, as terrorist attacks in Israel originated from the OT, Israel could not invoke its inherent right to self-defence under Art. 51 of the UN Charter: see Advisory Opinion (note 1), para. 139. Furthermore, the Court rejected the relevance of Art. 23 lit. g of the Hague Regulations, which applies during hostilities. 86 See Ajuri Case (note 38), para. 1.

Judicial Review during Armed Conflict

425

This perception of the situation has been repeated over and again by the judges.87 The Court has also mentioned on a number of occasions that the military measures adopted by the IDF since September 2000 were taken as part of the State of Israel’s right to self-defence, recognized in Article 51 of the UN Charter.88 II. Hostilities and Judicial Review

In some cases characterization of the situation in the OT as one of armed conflict has been reflected in the applicable legal norms. Thus, on a number of occasions the decision of the military to destroy property has been justified on the basis of Article 23 lit. g of the Hague Regulations, which appears in the section on hostilities and prohibits destroying the enemy’s property “unless such destruction […] be imperatively demanded by the necessities of war.”89 In other cases, the measures involved have been justified under the law applicable in a situation of belligerent occupation. In these cases, mentioning that the situation is one of actual hostilities has obviously been added in order to strengthen the claim that, in balancing the clash between individual rights and security, greater weight should be given to military/security considerations.90 87 See, e.g., HCJ, Marab v. IDF Commander, Judgment of 5 February 2003, Piskei Din, vol. 57 (2), 349, Case No. 3239/02; HCJ, Almadani v. Minister of Defense, Judgment of 2 May 2002, Piskei Din, vol. 56 (3), 30, Case No. 3451/02, English translations available on the Court’s homepage (note 12). 88 See Ajuri Case (note 38), para. 3; Almadani v. Minister of Defense (note 87), para. 9. It should be noted that in its Advisory Opinion (note 1), para. 139, the ICJ rejected the argument that attacks by terrorists could be an armed attack which gives a State the right to self-defence under Art. 51 of the Charter. This highly problematical view was expressly rejected by three of the judges on the Court: see id., Separate Opinion of Judge Higgins, para. 33; Separate Opinion of Judge Kooijmans, paras. 35–36; Declaration of Judge Buergenthal, paras. 5–6. 89 See HCJ, Gosin v. IDF Commander, Judgment of 30 May 2002, Piskei Din, vol. 56 (4), 608; HCJ, Ahmad v. IDF Commander, Judgment of 8 September 2003, Case No. 7669/03, available on the Court’s homepage (note 27); the application of this provision was rejected by the ICJ in its Advisory Opinion on the separation barrier: see Advisory Opinion (note 1), para. 124. 90 Zaaroub v. IDF Commander of Gaza Strip (note 65), 410; Bachar v. IDF Commander (note 66), 490–491; Amar v. IDF Commander (note 67), 114–115; Sharbaati v. Officer Commanding Home Front (note 62), para. 3a.

426

David Kretzmer

As we saw above, when asked to interfere in house demolitions during military operations, the Court stressed that the scope of judicial review in such cases was highly limited. Following this approach, the Court could conceivably have held that IDF actions during actual fighting are not justiciable. It refused to do so. On two occasions the Court dealt with petitions relating to the siege by the IDF on the Church of the Nativity in Bethlehem, after armed Palestinian gunmen had taken refuge there. It also dealt with petitions relating to the removal of bodies from Jenin after the battle there, protection of medical personnel during the “Defensive Shield” campaign and responsibility of the IDF to ensure humanitarian assistance to civilians affected by military operations in the Rafah area. While the Court was not prepared to summarily dismiss all cases for judicial review of ongoing military operations, in a number of cases it relied on the description of the situation as one of actual fighting in order to justify its position that it could not interfere in the specific case. During the battle in Jenin in April 2002, a Palestinian NGO petitioned the Court to order the IDF to refrain from harming the civilian population, and to this purpose to refrain from bombing civilian targets from aircraft, tanks or any other type of weapon. The Court accepted the government’s argument that the petition should be dismissed as inadmissible, “since it is not possible to exercise judicial review and to grant effective remedies that relate to the methods of operational activities.”91 The Court saw fit to add, however, that the petition should also be dismissed on the merits since from the reply submitted by the State it transpired “that the IDF makes an effort to prevent, or at the very least to minimize, civilian casualties.”92 In another case, an Israeli NGO asked the Court to prohibit use of flechette bombs. Having established that there was no international treaty outlawing this type of weapon, the Court refused to interfere, ruling that the choice of weapons in order “to prevent murderous terrorist attacks” was not one of the questions in which the Court would interfere. It added that the authorities had satisfied the Court that the scope of use of this type of weapon had been regulated in an army order that bound all military commanders.93 91 HCJ, LAW v. General Itzchak Eitan, Judgment of 10 April 2002, Piskei Din, vol. 56 (3), 9. 92 Id. 93 HCJ, Physicians for Human Rights v. Officer Commanding Southern Command, Judgment of 27 April 2003, Piskei Din, vol. 57 (4), 193, Case No. 8990/02, English translation available on the Court’s homepage (note 12).

Judicial Review during Armed Conflict

427

Another case in which the Court initially refused to examine an issue on the merits related to targeted killings. In response to a general petition by an Arab member of the Knesset to halt all targeted killings, the Court stated that it would not interfere in the choice of means used by the military authorities in their attempt to prevent terrorist attacks. It added, however, that this was especially the case when the petition was not based on concrete facts and sought a wide general remedy.94 When a more detailed petition on this issue was submitted, the Court reconsidered its position and demanded a response from the State. In an unprecedented move the judges spelled out the legal questions which should be addressed by the parties.95 At the time of writing, the parties have submitted lengthy pleadings and a decision is pending. III. Judging Hostilities

How has the Court handled issues relating to hostilities? In the cases relating to the Church of the Nativity in Bethlehem, the Court dealt with the situation that arose during the “Defensive Shield” campaign, after 200 Palestinian gunmen had taken refuge in the Church, which was surrounded by IDF forces. The clergy who remained in the Church petitioned the Court to order the authorities to supply them with basic necessities and to allow the removal of two bodies. The Court held that since there were ongoing negotiations between the parties in the attempt to reach an arrangement, it would not be proper for it to interfere in steps taking place during operational activities. It added that the authorities had assured the Court that the IDF was treating the clergy in a sensitive and humane fashion.96 When the siege on the Church continued, another petition was submitted to the Court, this time by the Palestinian Governor of Bethlehem and two Arab members of the Knesset, asking for an order regarding medical treatment, access for the Red Cross, removal of dead bodies and supply of food and water to the persons in the Church, who included not only armed men but Palestinian ci94

HCJ, Barake v. Prime Minister, Judgment of 10 January 2002, Piskei Din, vol. 56 (2), 509. 95 See HCJ, Public Committee Against Torture in Israel v. Government of Israel, Judgment of 18 April 2002, Case No. 769/02, available on the Court’s homepage (note 27). 96 HCJ, International Custodian of Terra Sancta v. Government of Israel, Judgment of 24 April 2002, Piskei Din, vol. 56 (3), 22 (Church of Nativity Case).

428

David Kretzmer

vilians who had entered the Church and were apparently being prevented from leaving by the armed men in the Church.97 The IDF and the Palestinians were negotiating an agreement and when the matter came before the Court all problems had been solved, except for supply of food and water. The Government argued that the matter was non-justiciable as there were on-going negotiations with the Palestinians in the Church. They added that they were complying with IHL, pointing to Articles 17 and 23 of Geneva Convention IV.98 This would seem to be the classic type of case in which domestic courts would not want to interfere. The IDF claimed that the civilians in the Church were free to leave and promised that they would not be harmed if they did so. They added that if they supplied food and water to the civilians there was no way they could make sure that it would not be used by the fighters. Even though the duty of a party to an armed conflict to allow free passage of essential foodstuffs and medical supplies for civilians is subject to the party being satisfied that there are no serious reasons for fearing that the consignments may be diverted from their destination, the Court did not summarily dismiss the petition. It stressed that the ongoing hostilities were not conducted in a “legal vacuum.” All parties were obliged to abide by principles of international law. The Court was convinced that as far as the fighters were concerned the IDF was abiding by these principles, but it was concerned with the plight of the civilians. It held a special session to consider their situation and only after the authorities stated that they were prepared for the civilians to leave the Church to eat and drink and then return to the Church was the Court satisfied. It dismissed the petition, stating that just as it would not interfere with the way the authorities conducted operations it would not interfere with negotiations between the parties. These negotiations were a matter for the executive branch of government.99 Another example of the way the Court operates in these circumstances was provided by a case relating to the removal of bodies after the battle in Jenin in April 2002. When the battle ended, the bodies of 26 Palestinians had not been 97

Almadani v. Minister of Defence (note 87). Art. 17 requires parties to an armed conflict to conclude local agreements for the removal from besieged or encircled areas of wounded, infirm and other vulnerable civilians and for passage of ministers of religion. Art. 23 obliges parties to Geneva Convention IV to allow free passage of essential foodstuffs and medical supplies for civilians. This obligation is subject to the party being satisfied that the consignments may not be diverted from their destination. 99 Almadani v. Minister of Defence (note 87). 98

Judicial Review during Armed Conflict

429

removed from the battle site. Arab members of the Knesset, together with Palestinian NGOs, petitioned the Court asking for an order that the IDF refrain from removing the bodies, and that the removal be carried out by the Red Cross, the Red Crescent and medical teams. The Court demanded an immediate response by the authorities and issued a temporary injunction preventing removal of the bodies until the matter had been heard. During the course of the hearing the authorities agreed to Red Cross participation in removal and identification. The Court recommended that if at all possible the Red Crescent should also take part. In the end all parties agreed on the procedure and the Court saw fit to declare: Indeed, there is no real disagreement between the parties. The location, identification, and burial of bodies are important humanitarian acts. They are a direct consequence of the principle of respect for the dead – respect for all dead. They are fundamental to our existence as a Jewish and democratic state.100

In the case of Physicians for Human Rights v. IDF Commander,101 the Court expressly stated that its role during actual hostilities is to force the authorities to show that their activities are compatible with IHL. In that case the petitioners complained of the way the IDF was preventing medical crews of the Palestinians from operating during the hostilities, providing specific examples of cases in which such crews had been prevented from getting wounded to hospitals and even cases in which ambulances had been fired upon. The authorities replied that in the short time at their disposal they had not been able to investigate the individual cases. They claimed that use of ambulances by the Palestinians for transporting weapons and explosives aggravated a situation that was difficult enough due to the fierce fighting, but that they were making every effort to conform with IHL. The Court stated that in the absence of any possibility of examining the concrete cases all it could do was to stress the duty of the IDF to comply with principles of IHL. While the alleged abuse of ambulances by the Palestinians aggravated the situation, it did not free the IDF from its obligation to respect humanitarian principles. Just as it had in the Jenin Case, the Court saw fit to declare that these principles rest not only on international law, but on the values of 100 HCJ, Barake v. Minister of Defence, Judgment of 14 April 2002, Piskei Din, vol. 56 (3), 11, para. 9, Case No. 3114/02, English translation available on the Court’s homepage (note 12). 101 HCJ, Physicians for Human Rights v. Commander of the IDF in the West Bank, Judgment of 8 April 2002, Case No. 2936/02, English translation available on the Court’s homepage (note 12).

430

David Kretzmer

the State of Israel as a Jewish and democratic State. Finally, the Court stated that the remedy requested by the petitioners was an explanation by the authorities for its actions. Since the petitioners had received such an explanation the petition was dismissed. Soon after fighting started when the IDF entered the Rafah area in May 2004, four Israeli human rights NGOs petitioned the Court.102 They asked the Court to order the IDF to allow medical teams and ambulances to reach and evacuate the wounded; that the evacuation be carried out without the need to co-ordinate it in advance with the humanitarian center established by the IDF when the operations began; that transfer of medical equipment between Rafah and hospitals outside the area of fighting be allowed; that medical personnel and civilians involved in evacuating the wounded and the dead not be threatened or harmed; that the supply of water and electricity to a neighborhood of Rafah in which it had been halted be renewed and supply of food to residents of this neighborhood be permitted; and that a delegation of Israeli doctors from the Israeli NGO, Physicians for Human Rights, be allowed to enter hospitals in the area in order to assess medical needs. They also demanded investigation of an incident in which a shell had been fired on a gathering of civilians and asked the Court to order the army to refrain from shelling gatherings of civilians even if there were armed men among them, provided that there was no immediate threat to life. The petition was submitted in the evening and the duty judge set a hearing for the next morning, ordering the government to present its reaction by then. When the Court convened, the government argued that the petition was not justiciable, as military operations were still going on and the Court should exercise restraint. At the same time government counsel attempted to provide a picture of what was going on in the area. They were accompanied by the IDF colonel responsible for humanitarian matters in the battle zone. The Court dismissed the argument of non-justiciability. It stated: The purpose of this petition is to direct the present actions of the military. This is ex ante judicial review, exercised while military operations are currently underway. This imposes certain constraints on the Court. Of course, petitions that look towards the future are not novel to us. […] Even so, the current petition is unique in that it 102

HCJ, Physicians for Human Rights v. Commander of the IDF in the Gaza Strip, Judgment of 30 May 2004, Case No. 4764/04, available on the Court’s homepage (note 27), English translation available on the Court’s homepage (note 12). The decision was handed down six days after the IDF declared it had left the Rafah area.

Judicial Review during Armed Conflict

431

asks us to review military operations while they are underway and while IDF soldiers are subject to the dangers inherent to combat. As such, it is appropriate to emphasize that: Clearly this Court will take no position regarding the manner in which combat is being conducted. As long as soldiers’ lives are in danger, these decisions will be made by the commanders. In the case before us, it was not claimed that the arrangement at which we arrived endangered the lives of soldiers […]. We do not review the wisdom of the decision to take military action. We review the legality of the military operations. As such, we presume that the operations in Rafah are necessary from a military standpoint. The question before us is only whether these military operations adhere to domestic and international law. The fact that operations are necessary from a military standpoint does not automatically mean that they fulfill legal requirements. Of course, with regard to issues of military concern, we do not stand in the stead of the military commander, and we do not substitute our discretion for his own. That is his expertise. We examine the legal import of his decisions. That is our expertise.103

Having rejected the argument that it should not deal with the case, the Court proceeded to fulfill the role of mediating between the parties. While the fighting was still going on the IDF colonel was in telephone contact with forces in the area and gave the Court an ongoing report on attempts to resolve the humanitarian concerns of the petitioners, including supply of water, electricity, food, medicines and medical equipment, evacuation of the wounded, burial of the dead and shelling of civilians. With the active intervention of the Court many of the problems had been solved or at least mitigated by the time the IDF informed the Court that it had left the area and that the PA was in control of security and civilian matters. Thus, the Court pressured the authorities to fix the wells and provide water tankers, allow passage of equipment needed to mend the electricity grid, facilitate entrance of medical supplies, lift the curfew to allow people to obtain food, co-ordinate efforts to evacuate the wounded and to allow relatives of the dead to attend burial services. Having filled the role of mediator and seen to it that many of the urgent problems raised by the petitioners had been ameliorated, the Court resumed its traditional judicial function and delivered a reasoned judgment.104 The judgment of the Court is divided into a number of sections. After describing the course of events and its attitude on the issue of justiciability, the Court sets out the normative framework for examining the legality of IDF actions. It mentions the Hague Regulations and Geneva Convention IV, as well as principles of Israeli administrative law. There is no mention of the fact that the 103 104

Id. Id.

432

David Kretzmer

Geneva Convention has not been adopted by Israeli legislation. Rather the Court mentions that the principles of the Convention regarding protection of civilians reflect the same principles that are enshrined in Israel’s Basic Law: Human Dignity and Liberty. The Court goes on to mention the general principle that appears in Article 27 of the Convention regarding respect and protection of civilians; the duty of an occupying power to ensure food and medical supplies under Articles 55 and 59 of the Convention and its duty to ensure operation of medical facilities under Article 56 of the Convention and to allow continuation of Red Cross activities. All these provisions apply in occupied territories and the Court did not question whether they continue to apply during active hostilities in such territories. Having set the general normative framework, the Court proceeds to examine the specific questions raised by the petitioners. It stresses the following points: a. Water: The military commander is obligated to ensure supply of water in an area of actual hostilities. This obligation includes the duty to provide water if there is a shortage. b. Medical supplies: The military commander must ensure that there is adequate medical equipment in the area of the hostilities. This should be taken into account in planning a military operation. c. Food: The overall responsibility to ensure that there is adequate food for civilians in a battle area lies with the military. d. Evacuation of wounded: The military are bound to do whatever is possible in conditions of fighting to facilitate evacuation of local civilians who have been wounded. The Court mentioned that the allegation of firing on an ambulance had been an isolated incident and that it was convinced that the orders prohibiting such acts were clear and unambiguous. e. Burial of the dead: The protection of the honor of protected persons included protecting the dignity of the dead. The army does not fulfill its obligations in this respect merely by allowing removal of the dead to hospitals. It is dutybound to see to dignified burials, which include participation of family members in the funeral. While the problems in the specific case had been resolved by the time the Court wrote its judgment, it stressed that for future cases the military should establish a clear procedure for dealing with this issue. As to the firing on a crowd of civilians, the Court mentions the army’s explanation that the gathering had taken place in an area in which active hostilities were

Judicial Review during Armed Conflict

433

taking place, and the fact that there were armed men in the crowd. The army admitted firing a shell, but claimed it had been aimed at an abandoned building. It conceded, however, that seven civilians had been killed. An internal investigation was being carried out by the army and its findings would be given to the IDF Advocate General. In these circumstances, the Court said, the petitioners had to wait until the investigation was completed and the Advocate General had decided how to proceed. The Court added, however, that we can only repeat the obvious: the army must employ all possible caution in order to avoid harming a civilian population, even one that is protesting against it. The necessary precautions are, obviously, a function of the circumstances, such as the dangers posed to the civilians and the soldiers.105

The Court held that as the issues raised by the petitioners had actually been resolved, there was no need for a judicial remedy. There was one exception. The IDF had refused to allow a delegation of Israeli doctors to visit medical installations in the area. It claimed that there was a danger that Israeli citizens might be the object of an attack or be kidnapped. The Court said it was convinced that the objection of the IDF was based on security considerations and it refused to interfere in the decision. It stressed that the decision related only to Israeli citizens, and that any other medical personnel were free to visit the area. Finally the Court made a few remarks relating to the future. It emphasized that military operations that comply with standards of international humanitarian law require, firstly, that the norms of IHL be studied by all ranks, from the Chief of Staff to the Private, and secondly, that institutional mechanisms should be established that will enable the norms to be met in practice. The Court mentioned that from the petitions presented to the Court, it appeared that progress had been made since the events that had taken place two years earlier.106 The decision of the Court in this case concerning the Rafah area is an unusual judgment. The Court’s main function in the case had been mediating between the IDF and civilians in the area and facilitating amelioration of humanitarian problems during the military operations. The Court’s judgment is therefore not a ruling in the dispute between the parties, but a summary of the dispute and how it had been resolved, and a very general discussion of the norms that should guide the military in similar situations. Some of this discussion reads as 105

Id., para. 58. While the Court did not say so it was obviously referring to the “Defensive Shield” campaign of April 2002, in which the IDF was subject to severe criticism, domestic and international. 106

434

David Kretzmer

a series of platitudes that have very little connection with real situations on the ground during hostilities; other parts do contain legal directives that the IDF will have to consider in any future cases. The actual norms that the Court prescribed are based mainly on provisions relating to occupied territories in the Geneva Convention IV.107 In a situation of occupation, the occupying power retains its duty to ensure and restore public order and safety as long as the occupation continues. In such a context, it therefore may well be appropriate to place a heavy burden on the occupying power to provide civilians with food, water and medical equipment even when actual fighting is going on. But how realistic is such a demand in other situations of hostilities? Military commanders are certainly bound to refrain from targeting civilians and civilian targets. They must also be aware of the possibility of civilian casualties when attacking military targets, and abide by the requirements of proportionality. However, are military commanders of an army involved in armed conflict with another State really obliged to take positive steps to provide food, water and medical equipment to civilians on the other side while the battle is going on? The Church of the Nativity and Rafah Cases reveal that if they wish to do so, domestic courts can play a limited role during the actual fighting in armed conflicts. That role is a mitigating one. The Court forces the authorities to give thought to principles of IHL and to provide a credible solution to specific problems that is compatible with these principles. It is hard to envisage a domestic court telling the authorities in real time what they may or may not do in the course of hostilities. But the very notion that the authorities may be called to account for their actions before their own courts might have some restraining influence on the way they act. The presence of the Court “at the front” may certainly facilitate amelioration of humanitarian concerns that the military might ignore if not forced to confront them. The Supreme Court’s mediating role is possible because petitioners can gain immediate access and call upon it to rule on the legality of military actions in real time. It is hardly surprising that in such cases, the Court is reluctant to issue a binding ruling to the military authorities on how they are to conduct military operations. Rather it adopts the modus operandi described in the discussion of the Church of the Nativity and Rafah Cases: mediating while the military 107

It should be noted, however, that Art. 27 of the Convention is defined as a provision common to the territories of the parties to the conflict and to occupied territories.

Judicial Review during Armed Conflict

435

operation is continuing and issuing a reasoned ruling after the immediate crisis has ended, when the ruling is not really a resolution of the concrete dispute brought before the court. G. Detention during Hostilities One of the serious issues that arose following the US action in Afghanistan relates to the power of a State that is party to an armed conflict to detain persons suspected of involvement in the activities of a terrorist group, and the rights of such persons to access to counsel and to judicial review.108 These questions were discussed in detail in the Supreme Court’s decision in the Marab Case.109 During the “Defensive Shield” campaign a large number of Palestinians were detained by the IDF for investigation about their connections with terrorist groups. It became apparent to the military authorities that they could not meet the requirements of the prevailing military orders in the OT, which required bringing detainees before a military judge within 8 days of their detention.110 The military commander therefore promulgated new military orders which allowed the IDF to hold a detainee for 18 days before bringing him before a judicial body, restricted access to counsel during that period, and even allowed a period of 8 days before the detainee had the opportunity to challenge his detention in an internal procedure. The initial order was to apply for a period of two months, but before it expired it was renewed. The new order reduced the 108 The literature on this issue is vast. But see Sean D. Murphy (ed.), Contemporary Practice of the United States Relating to International Law: U.S. Nationals Detained as Unlawful Combatants, American Journal of International Law (AJIL), vol. 97, 2003, 196; US Supreme Court, Hamdi et al. v. Rumsfeld; Rumsfeld v. Padilla et al.; Rasul et al. v. Bush et al., all of 28 June 2004, available at: http://www.findlaw.com/casecode/ supreme.html; Jelena Pejic, Three Misconceptions About the Laws of War, Crimes of War Project, 29 October 2004, available at: http://www.crimesofwar.org/onnews/newsmiscon.html; September 11 and its Aftermath, An Ongoing Special Edition, Crimes of War Project, available at: http://www.crimesofwar.org/expert/attack-main.html. 109 Marab v. IDF Commander (note 87). 110 The military legislation allowing detention of a person for 8 days before bringing him before a judge was upheld by the Supreme Court in a laconic decision in which it merely stated that having heard the arguments of the military authorities the Court concluded there was no justification for interfering in the said legislation: HCJ, Natshe v. IDF Commander, Judgment of 26 February 2002, Case No. 2307/00, available on the Court’s homepage (note 27).

436

David Kretzmer

maximum period of detention before the detainee was brought before a judge to 12 days. An Israeli human rights NGO submitted a petition challenging the military order in April 2002, soon after the order was promulgated. The Court’s judgment in the case was delivered in February 2003, almost 10 months after the petition was submitted. By this stage the “Defensive Shield” campaign had long been over, and while detentions of Palestinians suspected of involvement in terrorist activities continued, they were not of the scale they had been when the order had been promulgated.111 The Court’s judgment, written by Chief Justice Barak, deals with a number of questions of principle. The petitioners claimed that the new military order provided for a type of detention that was neither preventive administrative detention, nor ordinary criminal detention, but mass detention for the purpose of screening. Neither international human rights law nor international humanitarian law allows such detention, which is not based on individual cause. The military order must therefore be regarded as unlawful. The Supreme Court cited Article 9 para. 1 of the ICCPR112 as a yardstick for the notion that under international law there is a prohibition of arbitrary detention. It stated that this principle is accepted in Israeli law too and must be respected in the OT. The Court noted that while the law of belligerent occupation does not specifically deal with the power to arrest persons on suspicion of committing a crime, this power derives from the duty of the occupying power to maintain public order.113 It added that the power to arrest a person for criminal investigation is inherent in Article 78 of Geneva Convention IV, which relates to internment and assigned residence for imperative reasons of security. 111 The authorities informed the Court that by the beginning of May 2002, three weeks after the petition was submitted to the Court during the “Defensive Shield” operation, 7000 Palestinians had been detained under the new legislation. Most of these arrestees were released after initial investigation in temporary detention centers; by the middle of May, 1600 persons were still being held. 112 International Covenant on Civil and Political Rights, 19 December 1966, UNTS, vol. 999, 171 (ICCPR). 113 The Court cited Art. 43 of the Hague Regulations and Art. 27 of Geneva Convention IV, which state that “the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” It also mentioned Art. 64 of Geneva Convention IV, which allows the occupying power to subject the population of occupied territories to provisions that are essential to secure public order and its own security.

Judicial Review during Armed Conflict

437

The Court declared that detention of a person who neither threatens, nor is likely to threaten, public safety or security would be arbitrary and would therefore exceed the powers of a military commander.114 The Court accepted that the law in the OT allowed for only two types of detention: administrative preventive detention and criminal detention. Both these types of detention are based on individual cause and do not allow group detention. The military order states that a person may be held in detention only if “the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, the IDF, or the public.” The Court regarded this as indication that the power of detention was for the purposes of criminal investigation and that there had to be individual cause for detaining an individual.115 The principled position of the Supreme Court that the authorities are never authorized to subject a person, whoever he or she may be, to arbitrary detention is to be welcomed. It would nevertheless seem that in examining whether this principle was indeed respected, the Court’s approach was somewhat simplistic. In the regular criminal process a suspicion against the arrestee may lead to his arrest and subsequent detention. The military order, on the other hand, speaks of the “circumstances of his detention.” The Court stated that the circumstances leading to suspicion in a situation of fighting are different from those that pertain in the regular criminal context. It also stated that the fact that a person belongs to a group may create the suspicion that justifies his arrest.116 The Court 114

As authority for this declaration the Court relied both on the judgment of the ICTY trial chamber of 16 November 1998 in The Prosecutor v. Delalic et al., IT-96-21; and on Committee of Ministers of the Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism, 11 July 2002, Art. 7 para. 1, available at: http://www. coe.int/T/E/Human_rights/h-inf(2002)8eng.pdf. 115 The Court stated in Marab v. IDF Commander (note 87), para. 23: The cause required is that the circumstances of the detention raise the suspicion that the detainee endangers or may be a danger to security. Thus, a person should not be detained merely because he has been detained during warfare; a person should not be detained merely because he is located in a house or village wherein other detainees are located. The circumstances of his detention must be such that they raise the suspicion that he – he individually and no one else – presents a danger to security. Such a suspicion may be raised because he was detained in an area of warfare while he was actively fighting or carrying out terrorist activities, or because he is suspect of being involved in warfare or terrorism. 116 The Court explained, id.: Of course, the evidentiary basis for the establishment of this suspicion varies from one matter to another. When shots are fired at the defence forces from a house, any person located in the house with the ability to shoot may be suspect of endangering

438

David Kretzmer

did not examine whether the term ‘circumstances of his detention’ in fact enables the authorities to adopt a system of profiling, which allows them to detain all persons in a certain area who possess some common characteristics (such as all men between the ages of 15 and 45). This was apparently the system adopted by the authorities during the “Defensive Shield” campaign.117 Having held that the type of detention permitted by the military order was in fact detention for criminal investigation, the Court proceeded to discuss the issue of the maximum period for bringing a person before a judicial authority. On this question the Court relied heavily on principles of international law. While neither the Hague Regulation nor Geneva Convention VI deal with the issue of bringing detainees before a judicial authority within a certain time, Article 9 para. 3 of the ICCPR and Article 5 para. 3 of the ECHR demand that the arrestee be brought promptly before a judge or other person authorized to exercise judicial authority. The Court discussed the notion of “promptly,” citing decisions of the European Court of Human Rights on this issue.118 It held that there is no hard and fast rule as to how many days “promptly” means – there must be a certain degree of flexibility so that the special circumstances of the situation may be considered. However, even this flexibility cannot be grounds for a long delay before the detainee is brought before a judicial body. The Court accepted that one could not expect there to be judicial review on the battle-ground. However, once the detainees were removed from the front and reached a detention center, there was no justification for delaying judicial review of the detention until the investigation was over. The Court refused to accept the authorities’ argument that they did not have sufficient staff or military judges to ensure that all detainees were brought before a judge within a short period of time. It stressed that as the liberty of the individual was security. This basis may be established against a single person or a group of persons […]. The only detention authority set in these orders is the authority to detain where there exists an individual cause for detention against a specific detainee. It is insignificant whether that cause applies to an isolated individual or if it exists with regard to that individual as part of a large group. The size of the group has no bearing. Rather, what matters is the existence of circumstances which raise the suspicion that the individual detainee presents a danger to security. 117 See Report of the Secretary General prepared pursuant to General Assembly resolution ES-10/10 (Report on Jenin), UN Doc. A/ES-10/186 (July 2002), para. 30. 118 The main decision cited by the Court was Eur. Court H.R., Brogan v. United Kingdom, Judgment of 29 November 1988, reprinted in: EHRR, vol. 11, 1989, 117.

Judicial Review during Armed Conflict

439

involved, the authorities were bound to employ more staff and judges so that the demands of the law were met. On the basis of these principles, the Court held that periods of 18 and subsequently 12 days were not compatible with the demands of promptness and that the sections of the military order providing these periods were therefore invalid. It refused to stipulate what the maximum permissible period would be, stating that “due to the unique circumstances before us, the approach adopted by international law, which avoids prescribing set periods and instead requires that a judge be approached promptly, is justified.”119 The Court left it to the military commander to promulgate new military orders in which the time limits would be stipulated. However, given the complexity of the matter it delayed its order for a period of six months. The next issue discussed by the Court was delay in access to counsel. Once again relying on international human rights norms as well as Israeli law, the Court stressed that the right of a detainee to consult counsel was a fundamental right that must be respected. However, both under international human rights law and international humanitarian law this right may be restricted.120 Firstly, the right obviously cannot be exercised during hostilities themselves. Secondly, the right might be restricted if its exercise endangered the fighting forces (by facilitating transfer of information through attorneys) or harmed the investigation. Given these restrictions, the Court found no fault with the military order that allowed restriction of the right to counsel.121 The petitioners had argued that denying access to counsel implied that the detainee was being held incommunicado, a form a detention outlawed under inter119

Marab v. IDF Commander (note 87), para. 35. The Court cited from the Guidelines on Human Rights and the Fight Against Terrorism (note 114). According to para. IX 3. of these guidelines, the imperatives of the fight against terrorism may justify certain restrictions on the right to defence of an accused, in particular in relation to arrangements for access to and contacts with counsel. The Court also cited para. 18.3 of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, ratified by the UN General Assembly, GA Res. 43/173 of 9 December 1988, Annex, which allows suspension of the right to see counsel “in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.” 121 By the time the case reached the Court, the military order stated that the initial restriction was for two days. However, this could be extended by the senior investigating officer for two periods of up to 15 days each, so that the maximum period in which a person could be denied access to counsel was 32 days. 120

440

David Kretzmer

national law. The Court stressed that this was not the case. The Red Cross was allowed access to detainees as soon as they reached a detention center, and detainees’ families were informed of their arrest. Furthermore, the right to apply to the Supreme Court for habeas corpus was maintained at all times. This right could be exercised by a family member, a concerned friend or a human rights NGO. The attitude of the Court on the issue of access to counsel reveals the tension in a model of law that mixes laws of armed conflict and criminal law. When dealing with gathering of intelligence during an armed conflict one can appreciate that the needs of investigation may well justify denying access to counsel to detainees suspected of taking part in hostilities. As seen above, however, the Court placed the type of detention under discussion squarely within the criminal investigation model. It is more difficult to accept limitations on access to counsel when the detainee is being investigated on a criminal charge and may subsequently stand trial on the basis of information revealed during that investigation. In the final part of its judgment the Court discussed the provision in the military order that denied a detainee the right to any internal review of his detention for a period of up to 8 days. This basically meant that a person could be held for 8 days before investigation began. The authorities claimed this was essential because of the lack of the conditions for investigation during fighting and the number of detainees who had to be investigated. The Court refused to accept the authorities’ argument. While it recognized that people could not be investigated at the scene of the fighting where they were arrested, all arrestees were sent to detention centers within two days and there was no justification for a long delay after they reached these centers. The Court stressed that since it had found that the time before a detainee was brought before a judge was too long, it followed that the time allowed before an internal hearing was also too long. The provision in the military order allowing for 8 days before such a hearing was required was therefore invalid. Once again, however, the Court gave the military commander six months to promulgate a new order. In reviewing the Court’s judgment on the question of detention a number of comments are called for: 1. The principled approach of the Court, that all detentions of persons during an armed conflict are subject to principles of international law regarding depri-

Judicial Review during Armed Conflict

441

vation of personal liberty, is to be welcomed. Unfortunately, this approach is not always regarded to be as self-evident as it should be. 2. The willingness of the Court to resort not only to rules of international humanitarian law, but to principles of international human rights law, is also to be welcomed. The Court did indeed remark that it was not deciding whether the rules of international human rights law were formally applicable – but the important point is that it relied on these rules. 3. The main point of the judgment, that arbitrary detention is never allowed, and that there must be judicial mechanisms to ensure that this principle is respected even in a situation of occupation and active hostilities, deserves emphasis. 4. As intimated above, there is a certain element of artificiality in regarding detention during hostilities as a form of criminal detention. The incongruency of this classification becomes apparent when the Court in effect opens the way for detention on the basis of profiling and accepts that access to counsel may be denied during the investigation. With all this said and done, it must be pointed out that much of what the Court said had no application in the specific case before it. In this respect, the judgment is similar to the judgment regarding the fighting in the Rafah area that was reviewed above. By the time the Court delivered its judgment the conditions that led to the military order regarding detention were no longer pertinent. Furthermore, the Court held that its decision invalidating provisions in the military order would not come into effect for 6 months. This meant that the authorities could in fact continue to detain people under the military order in a manner that violated their fundamental rights. In this case too, then, the importance of the principles laid down in the judgment lies in the hope that they will be applied in future cases, and not in their application in the concrete case before the Court. H. The Separation Barrier After the intifada started in September 2000, there was a spate of terrorist attacks inside Israel. When other methods of stopping these attacks seemed to fail, circles in Israel proposed building a ‘separation barrier’ which would impede access to Israel of potential terrorists.122 This proposal stood in stark contradic122

There is some difference in the terminology used to describe the barrier. The General Assembly used the term ‘wall’ and the ICJ followed suit. Use of this loaded term

442

David Kretzmer

tion to policies adopted by Israeli governments since 1967 whose object was to make separation between Israel and the OT extremely difficult.123 It was not surprising therefore that right-wing politicians, including the present prime minister, Ariel Sharon, were initially opposed to the barrier, which they regarded as incompatible with their vision of a greater Land of Israel. However, as terrorist attacks inside Israel increased and public pressure grew, attitudes on the right changed, and some members of the right-wing Likud party, including Sharon, accepted the idea of a barrier. The original aim of the barrier was to prevent infiltration of terrorists from the West Bank into Israel. It cannot be denied, however, that political factors were involved too.124 Some supporters on the center-left believed that building the barrier would be a step towards a two-state solution. Those on the centerright thought it could serve as a way to incorporate many settlements that had been built on the West Bank on the Israeli side of any future border with a Palestinian State. The route of the barrier, set by the prime minister and one main adviser, and approved by the cabinet, runs through the West Bank. In parts it was determined by the existence of Israeli settlements on the West Bank and the desire to incorporate these settlements on the west side of the barrier. Little attention was given to the disastrous effect the barrier would have on some Palestinian communities. In some places, Palestinian land-owners found themselves was obviously politically motivated. In some places there is indeed a high wall, but most of the barrier is comprised of a fence surrounded by buffer areas. I shall be using the general term barrier. 123 These policies were described by Meron Benvenisti, The West Bank Data Project, A Survey of Israel’s Policies, 1984. For a more recent study, see Elisha Efrat, Geography of Occupation: Judea, Samaria and the Gaza Strip, 2002 (in Hebrew). 124 See interview with minister Zipi Livni published in the daily Ha’aretz. Gideon Alon, I’ll take existence, Ha’aretz, 20 September 2004. Livni stated that “construction of the fence is meant, in the future security policy of Israel, to transfer 85–90 % of the territory to the Palestinians living on the other side of the fence. If Israel places itself around the fence to grant security to the blocs of settlements, this is meant to ease the lives of the Palestinians, even thought the price is harm to the villagers who live close to the fence. When the dilemma is between the life of an Israeli citizen living in the settlement and the difficulty which we create by constructing the fence for Palestinian villager in working their land, my value choice is clear.” Also see Uzi Dayan, In Defense of a Fence, Speech to The Washington Institute’s Special Policy Forum, 19 December 2003, available at: http://www.washingtoninstitute.org/watch/peacewatch/ peacewatch2003/437.htm. Dayan is the former deputy chief of staff of the IDF and was head of the National Security Council of Israel when it submitted the initial proposal for the barrier to the government.

Judicial Review during Armed Conflict

443

on the east side of the barrier, while their land was on the west side. In many cases the barrier restricted access to schools or to medical facilities. In order to build the barrier, large tracts of land were requisitioned, and damage was caused to olive groves and water-wells. A significant number of petitions were submitted to the Supreme Court, challenging the actions taken by the military authorities in order to build the barrier. A general petition was also submitted challenging the legality of the whole route of the barrier.125 The Court was not responsive to the initial petitions. In the Ibrahim Case,126 heard in October 2002, shortly after the first steps to build the barrier were taken, the Court dismissed a petition challenging requisition of land for building part of the barrier. The Court stated that while the barrier did indeed cause harm to the petitioners, “this harm is the result of the state of fighting which has existed in the area for more than two years – a state that has cost many lives.” The Court recognized that the harm caused was quite substantial, but it held that the barrier was an essential element in the security doctrine of the IDF, and “as is well-known this Court does not tend to interfere in operational security considerations.” Relying on the tendency of the Court not to interfere in operational security considerations in order to dismiss cases connected with the barrier did not last. In June 2004, ten days before the International Court of Justice delivered its advisory opinion on the Legal Consequences of the Wall, the Supreme Court of Israel handed down its judgment in the Beit Sourik Case.127 Its judgment in this case reveals a radical departure from the said tendency. The petition in the Beit Sourik Case related to a 40 kilometer section of the barrier being built north-west of Jerusalem in the region of the West Bank village of Beit Sourik. The petitioners challenged the legality of orders issued by the military commander in the area, requisitioning their land for the barrier. They raised a number of arguments against the barrier. In the first place, they argued that it was being built for political, rather than security reasons, and there

125

At the time of writing, this petition is still pending before the Court. HCJ, Ibrahim v. IDF Commander, Judgment of 14 October 2002, Case No. 8172/ 02, available on the Court’s homepage (note 27). 127 Beit Sourik Case (note 27). 126

444

David Kretzmer

fore amounted to annexation of territory, prohibited under international law. Secondly, they argued that even if the purpose was security, the route should have been on the Israeli side of the Green Line, and that building the barrier on the West Bank was illegal. Finally, they argued that the damage to the Palestinian communities was disproportionate to the security advantage in constructing the barrier. In reply to the petition, the authorities declared that the barrier’s purpose was to protect the lives of Israelis and that the central considerations in choosing the barrier’s route had been operational-security ones. They argued that the Green Line between Israel and the West Bank was a political line, and not a security line. As the object was to protect persons in Israel itself, it was sometimes necessary, from a security point of view, to build the barrier in the West Bank, so as to provide a buffer zone and to allow protection against fire directed to Israeli targets from Palestinians operating in the West Bank. The military authorities claimed that an effort had been made to minimize the damage to Palestinians and that arrangements had been made for gates in the fence to be opened so as to facilitate access of Palestinians who live on the east side of the barrier to land and services on the west side. As to the requisition of land, the authorities argued that under international law it was permitted as part of Israel’s inherent right to defend itself against threats originating outside its border. Such requisition is also allowed under the law of belligerent occupation. The petitioners realized that they would have a hard time contending with the security arguments of the authorities unless they could provide some counterevidence by security experts. They were helped in this by the fact that they were joined in the petition by Israeli residents of a town near the barrier and especially by an opinion drawn up by a group of retired senior army officers, members of the dovish Council for Peace and Security. These officers claimed that the route chosen by the authorities was not optimal from a security point of view, and that an alternative route that had a less drastic effect on Palestinian residents would be preferable. They did not claim, however, that this route would have to be in Israel itself, or on the Green Line. With the consent of the petitioners and the State, the opinion of these retired officers was submitted to the Court. The Court’s judgment deals with the questions posed on a number of levels. In the first place, it discusses the legal norms that apply. The Court accepts that these norms are first and foremost the norms of the international law of belligerent occupation. Following the line taken in the Ajuri Case on assigned resi-

Judicial Review during Armed Conflict

445

dence,128 the Court refrains from dealing with formal application of Geneva Convention IV. It simply states that the question did not arise, “since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review.” In line with its standard jurisprudence, the Court added that the principles of Israeli administrative law also apply to the actions of the military commander. After laying down the normative framework, the Court divided its analysis into two questions: 1. the legal power to construct the barrier; and 2. the barrier’s route. On the first question, the Court accepted that the military commander does not have the legal power to construct a barrier whose purpose is political. It would therefore not be legitimate for the commander to construct a barrier if the intention was to annex territory or to draw a political border. As opposed to the ICJ, however, which did not have the Israel government’s arguments on the merits at its disposal, the Supreme Court was presented with detailed arguments by the military commander explaining why the barrier was needed for security reasons and why the particular route in the segment under review had been chosen. The Court rejected the argument that departing from the Green Line implied that the barrier was motivated by political considerations. In fact, the Court stated the opposite was the case: “it is the security perspective – and not the political one – which must examine the route on its security merits alone, without regard for the location of the Green Line.” The Court stressed that the members of the Council for Peace and Security, who had criticized the route chosen by the military commander, did not recommend following the Green Line. The Court’s conclusion was that, based upon the facts before it, the barrier was motivated by security concerns. The Court’s conclusions on this point call for two comments. In the first place, the military commander submitted an affidavit to the Court in which he declared that “the fence is intended to prevent the unchecked passage of inhabitants of the area into Israel and their infiltration into Israeli towns located in the area [i.e. the West Bank].”129 In other words, in his mind security involved protecting not only people in Israel itself, but also people in Israeli settlements in the West Bank. Unlike the ICJ, which held that these settlements were illegal, and that therefore building the barrier to defend them involved a violation of in128 129

Supra, note 38. Beit Sourik Case (note 27), para. 29. Emphasis added.

446

David Kretzmer

ternational law, the Supreme Court did not touch on the legality under international law of the Israeli settlements on the West Bank. This is hardly surprising, as in the past it had made every effort to avoid ruling on this question, especially as regards the argument accepted by the ICJ, namely, that the settlements were established in violation of Article 49 para. 6 of Geneva Convention IV.130 I have elsewhere questioned whether the illegality of the settlements under international law necessarily means that measures taken to protect the residents of such settlements from terror attacks are in themselves illegal.131 As it did not discuss the legality of the settlements themselves, the Supreme Court did not discuss this question either. Its implied assumption was that acts taken by the military commander to protect the security of settlers were legitimate security measures.132 Secondly, having received credible evidence from the military commander that the decisions on the barrier and its route were based on security considerations, the Court relied on the burden of proof principle employed in Israeli administrative law. Under this principle, the burden to prove illegality of a decision by an administrative body acting ostensibly within its legal authority lies on the person challenging that decision. The administrative body may have to adduce evidence, but having done so it is the petitioners’ duty to refute that evidence. The Court held that the petitioners in this case had not refuted the evidence that the considerations in building the segment of the barrier under review had been security considerations. The petitioners had argued that the military commander lacked the legal authority to take private land for a barrier. Relying on Articles 23 lit. g and 52 of the Hague Regulations, the Court stated that a military commander in occupied territory has the authority to requisition private land for military needs. As it had accepted that the barrier was constructed for security purposes, the Court drew what seemed the obvious conclusion, namely, that requisitioning land for the barrier was within the commander’s legal powers. 130

See Kretzmer (note 6), Chapter 5. See David Kretzmer, The Advisory Opinion: The Light Treatment of Humanitarian Law, AJIL, vol. 99, 2005 (forthcoming). 132 This is consistent with previous jurisprudence of the Court, in which it has consistently held that measures taken to protect settlers are legitimate security measures, even when they involve serious incursions on the freedoms of local Palestinian residents. See, e.g., HCJ, Zalum v. IDF Commander, Judgment of 9 March 1987, Piskei Din, vol. 41 (1), 528. 131

Judicial Review during Armed Conflict

447

The Court’s position regarding the military commander’s authority to requisition land is also not free from difficulties. In the first place, in discussing the legal framework the Court relied on the law of belligerent occupation. However, Article 23 lit. g of the Hague Regulations appears in Section II of the Regulations, which deals with hostilities. The Court gave no explanation why this article was relevant.133 Was it because hostilities were in fact going on in the West Bank? If so, one would have expected the Court to mention this factor when discussing the applicable legal regime. It did not do so.134 Article 23 lit. g refers to seizure of enemy property “imperatively demanded by the necessities of war.” Does ‘enemy property’ include all private property in occupied territory? And is land taken for building the barrier “imperatively demanded by the necessities of war?” Turning to Article 52 of the Hague Regulations, the issue is even more complicated. This provision allows requisitions in kind for the needs of the army of occupation. In the Beth El Case,135 an early case dealing with requisition of private land on the West Bank for the construction of an Israeli settlement, the Supreme Court held that despite the language of Article 52, it is accepted that a military commander in occupied territory has the power to requisition land. However, this must be for the needs of the army of occupation. Is this synonymous with the term ‘military needs?’ In the Beth El Case the Supreme Court gave a wide interpretation to the term ‘needs of the army of occupation,’ claiming that there was no real difference between this term and general military needs. It is far from clear that this approach is well-founded.136 In the Beit Sourik Case the Supreme Court avoided this question. It simply spoke of military needs, without examining whether this is the same as needs of the army of occupation.137 Article 46 of the Hague Regulations prohibits confiscation of private property in occupied territory. In order to escape application of this provision, requisition 133

Beit Sourik Case (note 27), para. 32. In its Advisory Opinion (note 1), the ICJ dismissed application of Art. 23 lit. g to the issue of land taken for the barrier. While the Supreme Court gave no reason why Art. 23 lit. g is applicable, the ICJ gave no reasons for the simple statement that it is not relevant. I have discussed the issue elsewhere: Kretzmer (note 131). 135 See, supra, note 11. 136 See Georg Schwarzenberger, International Law as Applied in International Court and Tribunals, vol. II, The Law Of Armed Conflict, 1968, 268–288. 137 Supra, note 27. 134

448

David Kretzmer

orders were issued for the land. These orders state that the land is being seized on a temporary basis and that the owners will receive payment for use of their land. The authorities have declared that the barrier is not a permanent structure and that it could be demolished if the security need no longer existed, or as part of a political settlement with the Palestinians. In such a case the land would revert to its owners, whose title in the land has not been expropriated. The Supreme Court has always taken the approach that if title in land remains untouched, and the formal basis for taking the land is temporary requisition, such an act will be not regarded as confiscation of the land, and will be legal provided it is done for military needs. In the Beth El Case,138 the approach led the Court to rule that requisitioned land may be used for establishing an Israeli settlement that had been justified on security grounds. This formalistic approach may be challenged. When actual use of the land is denied to the owners for an appreciable period, which may very well become permanent, and especially when the use of the land is radically changed (e.g., by building installations on agricultural land) it seems to me questionable whether the mere fact that the title has not been affected means that the land has not been confiscated. This would seem to have been the approach of the ICJ, which held that by taking land for the barrier Israel violated the prohibition on confiscation of land.139 After holding that the military commander had the power to construct a barrier for military needs, that there had indeed been military needs in the present case and that land could be requisitioned for the barrier, the Court proceeded to examine the route of the segment of the barrier under consideration. The fundamental approach of the Court in examining this issue was that the commander was duty-bound to find a proper balance between security considerations and the rights, needs and interests of the local population. It mentioned the humanitarian duties of the commander under Article 46 of the Hague Regulations and Article 27 of Geneva Convention IV. The Court stressed that the duty to balance security considerations with liberty of the individual is a general problem both in international law and domestic law. The solution is a universal one, based on the principle of proportionality, which has become a general principle both of international law and of Israeli administrative law. The Court then proceeded to set out the basis of the proportionality principle – well-known in German law as Verhältnismäßigkeit, 138 139

Supra, note 11. Advisory Opinion (note 1), para. 132.

Judicial Review during Armed Conflict

449

and adopted in recent years in Canadian and Israeli constitutional law. According to this principle, in order to meet the test of proportionality, a governmental measure must past three sub-tests: there must be a rational connection between the aim and the measure; the measure must be the least invasive measure to achieve the aim; and the damage caused by the measure must not outweigh the benefit to be achieved. The Court held that the first two requirements of this three-prong test had been met. The barrier was certainly a rational measure to achieve a legitimate aim: preventing infiltration of terrorists into Israel. The Court was convinced that the military commander had chosen a route dictated by security considerations and that he himself believed this to be the best route from a security angle. While the members of the Council for Peace and Security had indeed suggested an alternative route, which was preferable in their eyes from a security point of view, the Court had been provided with no evidence why it should prefer their opinion to that of the military commander. In these circumstances the Court had to give due deference to the view of the responsible military commander. The big question, in the Court’s mind, was the third prong of the proportionality test: the balance between the military advantages of the route chosen and the damage caused by that route to Palestinian residents. In a phrase which bears repeating, the Court stated that whereas the military commander was the military expert on the military nature of the barrier, the judges are the experts on its humanitarian aspects. As the Court put it: The military commander determines where on the hill and on the plain the route of the fence will pass. That is his expertise. We examine whether the damage to the local residents caused by this route is proportional. That is our expertise.140

Having laid the legal basis both for the test to be applied, and for the judges to override the opinion of the military commander on this matter, the Court went into a detailed examination of the facts on the ground, describing both the military advantages of each section of the barrier, as well as the damage caused to Palestinian residents. The Court was not prepared to rule that the military advantages of any segments of the specific route were negligible, nor that there were grounds for accepting that the route proposed by the Council for Peace and Security was preferable from a security point of view. However, it held that in 140

Beit Sourik Case (note 27), para. 48. For some unknown reasons this passage was omitted from the official English translation of the decision.

450

David Kretzmer

most sections of the barrier under discussion the security advantages of the particular route were outweighed by the damage caused to the Palestinian residents. It therefore revoked the orders requisitioning the land and ordered the authorities to find an alternative route for the barrier. It is unusual for a domestic court in Israel or any other democratic country to interfere in the discretion of military authorities on questions of security, especially when it holds that the authorities were empowered to take the specific action, and that they were acting on sincere security grounds. It is even rarer when a country is faced with very real security problems, such as terrorist attacks on its civilian population. The willingness of the Supreme Court of Israel to subject the decision of the military commander to substantive judicial review, and to interfere in his discretion because of the damage caused to civilians, is an important precedent. One hopes it will be followed by the Court in future cases and by courts in other jurisdictions. On the doctrinal level the judgment makes an important contribution. Substantive examination by courts of measures taken on security grounds on the basis of the proportionality test is to be welcomed. As Judge Kooijmans remarked in his separate opinion in the Advisory Opinion on the Legal Consequences of the Wall, such an analysis was conspicuous by its absence in the Opinion of the ICJ.141 In applying the proportionality test, the Court set out the three-pronged test accepted in some domestic systems as a general principle in international law. While this test of proportionality has at times been adopted by international bodies,142 it has not become as accepted as it is in those domestic systems. The week after the Supreme Court of Israel handed down its decision in the Beit Sourik Case the International Court of Justice delivered its Advisory Opinion on the Legal Consequences of the Wall. There are some similarities between the two judicial opinions. However, the differences between them are striking. 141

Advisory Opinion (note 1), Separate Opinion of Judge Kooijmans, para. 34. See, e.g., Human Rights Committee, General Comment No. 27 on Art. 12 of the Covenant, para. 14, UN Doc. CCPR/C/21/Rev.1/Add.9 (1999). In discussing permissible restrictions to freedom of movement the Committee states: “Art. 12 para. 3 clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.” 142

Judicial Review during Armed Conflict

451

While the Supreme Court conducted a careful and thorough analysis of the law and its application to the concrete facts of the barrier, the ICJ Opinion consists of very general statements of the law, unaccompanied by any real attempt to address the complexity of the situation or to examine application of the law to the concrete facts on the ground. This was stressed by Judge Higgins in her Separate Opinion. Judge Higgins also expressed regret that the ICJ had not followed “the tradition of using advisory opinions as an opportunity to elaborate and develop international law.”143 She added that the treatment by the Court of issues of international humanitarian law was rather light.144 The Supreme Court’s decision in the Beit Sourik Case may be criticized on various grounds. It ignored the influence of Israeli settlements on the barrier’s route; it also ignored the political factors that obviously influenced the barrier’s route. Nevertheless, I maintain that the Court’s decision was based on sound legal reasoning. It was a courageous decision, which certainly did not conform to political expectations. It set clear parameters for judging not only the segments of the barrier under consideration in the specific case, but all other segments being planned or built.145 The judgment forced the government to reconsider the route of the barrier not only of the segment challenged in the specific case itself, but in its entirety.146 The route was changed and while the new route does not eliminate all violations of IHL or human rights law, it has mitigated some of the harsh consequences of the previous route. 143

Advisory Opinion (note 1), Separate Opinion of Judge Higgins, para. 23. Id., para. 25. 145 Two cases regarding additional segments of the barrier were decided by the Court after its decision in the Beit Sourik Case. In the one case, the Court followed the analysis adopted in the Beit Sourik Case, stressing that the main question was the issue of proportionality. In that case there were conflicts between residents in the same village. The village council had reached an agreement with the authorities on the route of the barrier in the vicinity. The petitioners had refused to take part in the negotiations with the authorities and challenged the route after the agreement had been reached. The Court eventually dismissed the petition on the grounds of delay: HCJ, Abu Tir v. IDF Commander, Judgment of 24 November 2004, Case No. 940/04. In the second case the parties reached an agreement regarding changes in the route. At the parties’ request the agreement was approved by the Court: HCJ, Samara v. State of Israel, Judgment of 30 November 2004, Case No. 5538/04. Both available on the Court’s homepage (note 27). 146 See the article by Israel’s foremost military commentator, Zeev Schiff, Full of Mistakes – Until the Court Ruled, Ha’aretz, 21 September 2004. Also see Yuval Yoaz, Constructed Sections of Fence to Be Reviewed, High Court Told, Ha’aretz, 13 September 2004. 144

452

David Kretzmer

J. Conclusions The Supreme Court has fulfilled a unique role since Israel became an occupying power in 1967. It is the first domestic court to subject the military authorities in occupied territory to ongoing judicial review over their actions. This review is not conducted post facto, but in real time. Until the peace process broke down and violence erupted in September 2000, the record of the Court in reviewing petitions from the OT had been mixed. The intensive fighting and terrorist attacks in Israel and the OT forced the Court to deal with some issues that it had not had to deal with before. From the above review of the Court’s decisions in a wide range of issues, one can draw some general conclusions. 1. The Court has not formally overruled its previous jurisprudence that not all of the provisions of Geneva Convention IV are reflective of customary international law. Neither has it challenged the traditional position of the Government of Israel that it is doubtful whether the Convention applies on the West Bank and in Gaza. However, the Court has adopted what may be termed a pragmatic approach under which it examines actions of the military according to the provisions of Geneva Convention IV. It is difficult to believe that after adopting this approach in so many cases, the Court could in the future concede that government action may be incompatible with a provision in Geneva Convention IV, but that it would not rule on the issue as the particular provision is not part of customary law. 2. In the past the Court has refused to interfere in some actions which are incompatible with Geneva Convention IV. The prime examples are the establishment of Israeli settlements in the Occupied Territories and punitive house demolitions. Its new approach to the Geneva Convention has not led the Court to reconsider its position on these issues. In the Beit Sourik Case, the Court ignored the legal status of settlements, and in the house demolitions cases, the Court simply reaffirmed its jurisprudence that such demolitions are not necessarily unlawful. 3. In most cases in which the Court has applied Geneva Convention IV, it has relied on general provisions in the Convention, such as Article 27, which obligates State Parties to respect the rights of protected persons, while allowing them to “take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” In other cases, the Court

Judicial Review during Armed Conflict

453

has conceded that the matter before it is not regulated by Geneva Convention IV and has looked elsewhere for guidance. In the Ajuri Case the Court interpreted a specific provision in the Convention, Article 78 which deals with assigned residence, and found that transfer of protected persons suspected of involvement in terrorist activities from the West Bank to Gaza was compatible with this provision. The Court conceded that it had adopted what it termed a dynamic interpretation of the Convention, which, in the Court’s view, is demanded in the area of armed conflict with terrorist groups. 4. The Court has mentioned on more than one occasion that the situation in the OT is one of active hostilities or armed conflict. It has not examined whether, given the fact that the armed conflict is taking place in occupied territory, it should be regarded as an international armed conflict, or, since no other State is involved, whether the conflict should be regarded as one of a non-international character. It has also not conducted an independent examination of the scope and level of violence to see whether the characterization of the situation as one of armed conflict is legally sound. 5. While mentioning the existence of active hostilities, when applying norms of international humanitarian law, the Court has generally relied on provisions that relate to a situation of belligerent occupation.147 The Court has not fully grappled with the interaction between rules of belligerent occupation and those of active armed conflict. 6. The Court frequently refers to norms of international human rights law. This may be regarded as significant since the Government of Israel has contested application of its obligations under human rights treaties to actions of the IDF in the OT. It should be pointed out, however, that the Court has relied on international human rights norms in order to stress fundamental principles, such as the requirement that a detainee on a criminal charge be brought promptly before a judicial authority. In no case has the Court been prepared to interfere in actions of the military solely on the grounds that they are incompatible with international human rights law. In the case on detention during hostilities the Court stated expressly that it was not taking a position on the question of whether the international human rights instruments on which it relied were

147 The main exception has been reliance on Art. 23 lit. g of the Hague Regulations, which prohibits destruction and seizure of enemy property during hostilities unless “imperatively demanded by the necessities of war.”

454

David Kretzmer

formally applicable as it was convinced that Israeli law complied with international standards. 7. While the Court has been understandably reluctant to interfere in ongoing military operations, it has not accepted the argument that such operations are non-justiciable. In all cases it has required the authorities to explain their actions. In some cases, it has regarded provision of such an explanation as sufficient. In other cases, the Court has assumed an active role in mediating between the legal counsel for the Palestinian petitioners and the military authorities. This is a unique role for a court. The present writer is aware of no other instance in which a court, domestic or international, has fulfilled a similar role in a situation of armed conflict. 8. In some cases, after mediation between the parties has led to resolution of most of the contentious issues, the Court has written reasoned judgments in which it describes the mediation process and analyses the norms of international law that apply in the specific context. These judgments have an element of artificiality behind them. They cannot be regarded as decisions whose object is to rule on the dispute between the parties. Their main function is to lay down the normative base for the future. In some cases it seems that the fact that the Court does not have to apply the norms in a concrete situation facilitates prescription of a normative framework that seems somewhat detached from reality. 9. The Court has generally tended to respect the discretion of the military authorities in issues of military necessity. The Court’s decision in the Beit Sourik Case stands out as a major and significant departure from this tendency. It is conceivable that the Court’s decision in that case was influenced by its knowledge that the ICJ would be ruling on the same issues. Whether this is the case or not, the Court’s willingness to interfere in the military commander’s discretion on grounds of lack of proportionality is an important precedent, both for the Court itself and for other domestic and international judicial bodies. Can we draw any general conclusions from the above discussion regarding the role of domestic courts in enforcement of norms of international humanitarian law? It seems to me that the record of the Supreme Court of Israel reveals both the potential strengths and weaknesses of judicial review in real time. The strengths lie in the power of domestic courts to operate swiftly, to obtain full explanations from the authorities for their actions and to contend with complicated

Judicial Review during Armed Conflict

455

factual issues. The weakness lies in the natural tendency of such courts, as organs of the State in question, to give support to the executive branch of government in times of crisis. Domestic courts will obviously perceive the political dimensions of a conflict between their own State and outsiders, whether other States or non-state actors, in a manner that reflects common perceptions in their own society. In democratic countries such as Israel, judges enjoy independence from the other branches of government and can rule according to their conscience without fear of sanction. However, this does not make them neutral in cases of conflict. This lack of neutrality is certainly going to color decisions of such courts in times of severe conflict. The question is, however, whether leeway remains for such courts to subject the military authorities to meaningful constraints demanded by international law. It seems to me that when it comes to the Supreme Court of Israel the answer to this question is positive. There are indeed some extremely weak links in the Court’s jurisprudence. The most glaring of these is its refusal to prohibit punitive house demolitions. The Court’s rhetoric is often stronger than its willingness to interfere in concrete cases. In many cases its legitimizing function is quite apparent. However, the Court has restrained the military in some situations, and has even been prepared to interfere in major governmental decisions, such as the route of the separation barrier. It has accepted that the actions of the military must conform to standards of international humanitarian law and human rights law. Even when its interpretation of these standards can be challenged, the principle itself, and the effort of the Court to reach an interpretation that is consistent with the standards, cannot be ignored. In concluding this article it is interesting to examine how the Court itself perceives its role. The answer was given by Chief Justice Barak in his judgment in the Ajuri Case. He stated: The State of Israel is undergoing a difficult period. Terror is hurting its residents. Human life is trampled upon. Hundred have been killed. Thousands have been injured. The Arab population in Judaea and Samaria and the Gaza Strip is also suffering unbearably. All of this is because of acts of murder, killing and destruction perpetrated by terrorists. Our heart goes out to Mrs Kessler who lost her daughter in a depraved terrorist act and to all the other Israelis who have lost their beloved ones or have been themselves severely injured by terrorist attacks. The State is doing all that it can in order to protect its citizens and ensure the security of the region. These measures are limited. The restrictions are, first and foremost, military-operational ones. It is difficult to fight against persons who are prepared to turn themselves into living bombs.

456

David Kretzmer

These restrictions are also normative. The State of Israel is a freedom-seeking democracy. It is a defensive democracy acting within the framework of its right to self-defence – a right recognized by the charter of the United Nations. The State seeks to act within the framework of the lawful possibilities available to it under the international law to which it is subject and in accordance with its internal law. As a result, not every effective measure is also a lawful measure. Indeed, the State of Israel is fighting a difficult war against terror. It is a war carried out within the law and with the tools that the law makes available. The well-known saying that “In battle laws are silent” (inter arma silent leges – Cicero, pro Milone 11 […]) does not reflect the law as it is, nor as it should be. […] Indeed, the position of the State of Israel is a difficult one. Also our role as judges is not easy. We are doing all we can to balance properly between human rights and the security of the area. In this balance, human rights cannot receive complete protection, as if there were no terror, and State security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State. It provides a reason for its struggle. Our work, as judges, is hard. But we cannot escape this difficulty, nor do we wish to do so.148

148

Ajuri Case (note 38), para. 41.

Failed States – Legal Aspects and Security Implications By Robin Geiss* A. Introduction Failed States are increasingly seen as one of the most imminent concerns the international community is currently facing. Indeed, failed States have been identified as likely safe havens for international terrorist organizations, they have displayed some of the gravest and most persistent violations of even the humanitarian minimum standard, they have suffered extreme poverty and caused large refugee flows as well as regional destabilization.1 As legal grey areas, they provide a breeding ground for organized crime, illegal drug trafficking and similar activities. In short, failed States have become synonymous with a variety of worldwide problems, many of which have come to be accepted as threats to international peace and security. It is on this basis that the European Security Strategy, promulgated in December 2003, explicitly takes into consideration the phenomenon of State failure, while the National Security Strategy of the United States, proclaimed by the Bush administration in the aftermath of 11 September, somewhat more broadly acknowledges the dangers inherently attached to weak States.2 The preventive policies encapsulated in these strategies reflect a legitimate concern of *

Dr. iur, LL.M. (NYU). Partially, this piece is based on my doctoral thesis, which was concluded in May 2004. Warm thanks are due to Noemie Bulinckx and Björn Elberling for their suggestions and critical remarks. 1 With regard to terrorism and failed States see, e.g., International Crisis Group, Somalia: Countering Terrorism in a failed State, Africa Report No. 45, 2002, available at: http://www.crisisweb.org/library/documents/report_archive/A400662_23052002.pdf. 2 A Secure Europe in a Better World, European Security Strategy, 12 December 2003, 5, available at: http://ue.eu.int/uedocs/cmsUpload/78367.pdf; The National Security Strategy of the United States of America, available at: http://www.whitehouse.gov/ nsc/nss.pdf (US National Security Strategy).

458

Robin Geiss

States, which today experience imminent threats and dangers that cannot be deterred in any conventional sense and that may need to be tackled before they develop into an actual attack or profound regional destabilization.3 Given, however, that thus far State failure in and of itself has not been accepted to constitute a threat to the peace within the meaning of Article 39 of the Charter of the United Nations,4 there are signs of an evolving discrepancy between legitimate security concerns of individual States and the absence of the legal prerequisites for a multilateral response to the phenomenon of State failure during its early stages. This might explain the array of attempts to lower the threshold for unilateral intervention or military actions short thereof in failed States as they have been proposed by legal scholars as well as politicians.5 Evidently, such lines of argumentation feature quite well into a “war on terrorism” and the National Security Strategy of the United States that encapsulates the advocacy of preemption. Nevertheless, tendencies to incorporate the phenomenon of State failure into any such policies are particularly worrisome given that the concept of State failure, despite its very imminent real-world consequences, from a legal perspective remains rather vague. Various States have been identified as failed States in the past, the concept of failing or weak States embraces an even greater variety of States, and a Babylonian diversity of terminology furthermore enhances the legal uncertainty entailed in this concept.6 Somalia, Liberia, Afghanistan, Leba3 Adam Roberts, The Use of Force, in: David M. Malone (ed.), The UN Security Council, 2004, 133, 144. 4 Charter of the United Nations, 26 June 1945, UNCIO, vol. 15, 335 (UNC). 5 However, it is noteworthy that in the context of the so-called Operation Enduring Freedom, for example, Foreign Minister Joseph Fischer, in a declaration before the Foreign Committee of the German parliament, pointed out that no military action would be taken “in countries outside Afghanistan in which at the moment there is no government,” without further approval of the parliament. See the Report of the Foreign Committe of 14 November 2001, 4, available at: http://dip.bundestag.de/btd/14/074/1407447.pdf. 6 Gerald Helman/Steven Ratner, Saving Failed States, Foreign Policy, vol. 89, 1992–1993, 3; Daniel Thürer, Der Wegfall effektiver Staatsgewalt, Berichte der Deutschen Gesellschaft für Völkerrecht (BDGV), vol. 34, 1996, 9–47; Matthias Herdegen, Der Wegfall effektiver Staatsgewalt, BDGV, vol. 34, 1996, 49–85; Jürgen Bartl, Die humanitäre Intervention durch den Sicherheitsrat der Vereinten Nationen im “Failed State”, 1999. Partially reference is made to anarchic conflicts in general, see Chairman’s report of the First International Committee of the Red Cross (ICRC) International Meeting on International Humanitarian Law, 19–23 January 1998, reprinted in: International Review of the Red Cross, vol. 323, 1998, 366. However, terms like ‘quasi States,’ ‘weak States,’ ‘fragile States,’ ‘collapsed States,’ ‘d’Etat déblie,’ ‘d’Etat mou’

Failed States – Legal Aspects and Security Implications

459

non, and Rwanda are only the most prominent among the States commonly cited in this context. However, for the sake of emphasizing the concept’s potential for political instrumentalization, it bears mentioning that States such as Pakistan and Egypt have likewise been identified as failed States.7 While most attempts to expand the scope of unilateral measures vis-a-vis failed States, given their potential to undermine the prohibition of the use of force as well as the collective security system as a whole, have been widely refuted throughout the literature, they nevertheless reflect a legitimate security concern of many States. However, rather than focusing on expanding the scope of unilateral measures in response to State failure and its symptoms, this piece sets out to analyze whether the complex phenomenon of State failure entails general repercussions for the stability of international relations and whether it comprises specific aspects on grounds of which multilateral action under Chapter VII could be authorized in a timely manner, thereby taking into consideration the security concerns of individual States. Without rehashing the numerous works on humanitarian intervention, many of which were triggered by the milestone Resolution 794 regarding Somalia,8 this piece thus intends to analyze whether the phenomenon of State failure, in and of itself, constitutes a threat to international peace and security. To this end the analysis in a first step addresses the defining criteria and the legal personality of failed States (B.). Secondly, the legal consequences of State failure are considered in view of their impact on the stability of international relations in general (C.). In a third step the inquiry turns to the question of which implications can be inferred from the respective findings in parts B. and C. with regard to the notion of a threat to the peace unand ‘d’Etat faible’ are also used. See Ira William Zartman, Introduction: Posing the Problem of State Collapse, in: Ira William Zartman (ed.), Collapsed States: The Disintegration and Restoration of Legitimate Authority, 1994, 1; Amy Eckert, United Nations Peacekeeping in Collapsed States, Journal of International Law and Practice, vol. 5, 1996, 280; Alexandros Yannis, State Collapse and the International System. Implosion of Government and the International Legal Order from the French Revolution to the Disintegration of Somalia, 2000; Robert H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World, 1993. 7 UN Commission on Human Rights, Summary of the 17th Meeting, UN Doc. E/CN.4/2001/SR.17: “Pakistan was increasingly seen as a failed State after its most recent democratic interlude had come to an end.” UN Committee of Economic, Social and Cultural Rights, Summary of the 13th Meeting, UN Doc. E/C.12/2000/SR.13: “With 100 million urban and 500 000 rural apartments unoccupied, the gap between rich and poor was widening, prompting UNDP to describe Egypt as a failed State.” 8 SC Res. 794 of 3 December 1992.

460

Robin Geiss

der Article 39 UNC (D.). In this latter part, the analysis starts from the presumption that State failure should be targeted as early as possible, at best even before horrendous violations of fundamental human rights become daily news and before terrorist activities develop into an actual attack. B. The Definition of Failed States – A Closer Look It seems to be widely accepted that State failure is synonymous with the collapse of governmental authority. Yet, as will be seen, it may still be too great an abstraction to single out and to distinguish this phenomenon from related crises. Terminology predetermines structure, therefore, based on the two elements inherent in the term failed State, I will, in a first step, identify the criteria indicative of what amounts to and should be acknowledged as “failure,” and in a second step, I will turn to the question of statehood. I. Causes, Symptoms and Defining Criteria of State Failure

It is first of all necessary to differentiate its causes and symptoms from the legal criteria that define a failed State and on which the determination of a threat to the peace would henceforth be based. Focusing on the phenomenon of State failure from the international law perspective, this piece cannot do justice to a comprehensive analysis of its causes. Suffice it to say that no mono-causal explanation could possibly be given for such a complex phenomenon. The aftermath of the cold war, in particular the sudden withdrawal of super-power assistance, the heritage of the colonization era and specifically a rigidly applied uti possidetis rule, as well as the marginalization globalization tends to inflict on less developed countries, are only the most prominent among a variety of factors which are likely to have influenced the decline of State structures, in particular in sub-Saharan African countries.9 States which have displayed a profound disrupture of their governmental structure have been typically affected by wide-spread and severe violations of human rights and humanitarian law principles, they have triggered large refugee 9

Regarding the impact of globalization see, e.g., Jan Pronk, Minister of Development Cooperation of the Netherlands: “The same globalization, however, led to more neglect, more marginalization, increasing poverty, more conflict, more failed States […],” UN Second Committee, Press Release, UN Doc. GA/EF/2721 (1996).

Failed States – Legal Aspects and Security Implications

461

flows internally as well as into their neighboring countries, and famine and poverty are likewise common. These features typically occur in situations where effective governmental control is absent, however, they are also common to other types of crises, such as international or internal armed conflict, natural disasters or dictatorial regimes in which governmental control is all too effective. Thus, all of the above-mentioned occurrences cumulatively as well as alternatively are likely symptoms of a failed State. They cannot, however, be resorted to as defining criteria of the phenomenon as they are not exclusively connected to State failure. While the United Nations human development index, the child mortality rate or a country’s status as one of the world’s highly indebted poor or least developed countries may well serve as indicators for State failure from a preventive policy point of view, they can hardly be a decisive parameter for a legal definition. Departing from the legal concept of statehood which is commonly accorded to Georg Jellinek’s formula of the elements of statehood as adopted in the 1933 Montevideo Convention,10 the absence of effective government is the predominant characteristic of a failed State.11 While in abstracto this criterion is not disputed, the difficulty remains to determine the degree of ineffectiveness necessary so as to amount to the absence of effective governmental authority in casu concreto. It was the declared intention of the States party to the Montevideo Convention to encompass every type of State under a universal concept of statehood. Accordingly, the constitutive criteria under this formula are rather broad and leave a wide margin of discretion.12 A limine, slight fluctuations in population 10

Montevideo Convention on the Rights and Duties of States, 26 December 1933, UNTS, vol. 165, 19, 25. Art. 1 of the Convention reads: “The State as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States.” Critique of this formula as a definition a posterior is, e.g., expressed by James Crawford, Negotiating Global Security Threats in a World of Nations States: Issues and Problems of Sovereignty, American Behavioral Scientist, vol. 38, 1995, 867, 869. 11 Georg Jellinek, Allgemeine Staatslehre, 1900. Similar already Johann Ludwig Klüber, Öffentliches Recht des Deutschen Bundes und der Bundesstaaten, 3rd ed. 1831, 1. 12 In its Advisory Opinion regarding Western-Sahara, the ICJ stipulated that “[n]o rule of international law, in the view of the Court, requires the structure of a State to follow any particular pattern, as is evident from the diversity of the forms of State found in the world today,” ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, 12, para. 94. But see also GA Res. 36/162 of 16 December 1981; Jean

462

Robin Geiss

or of the degree to which governmental authority is exercised are precluded from having any decisive impact from the perspective of international law.13 The history of the modern nation State, in particular during the period of decolonization, provides ample evidence of significant differences in degree of a government’s effectiveness, and it seems questionable how to pin-point the degree of ineffectiveness necessary to render a State a failed State. Potentially, resort could be had to a quantitative element in that, for example, every State which has lost control over more than half of its territory would be considered a failed State.14 Given that any such threshold would appear to be chosen rather at random, a qualitative criterion would seem more suitable to serve as a point of reference for State failure. International law lays down no specific requirements as to the nature and extent of an effective government, except, it seems, that it includes some degree of maintenance of law and order.15 Already the Commission of Jurists, while discussing the status of the Aaland Islands, referred to the capacity to uphold law and order as the decisive element of governmental authority;16 a view which was subsequently reiterated by the Declaration of Berlin.17 Accordingly, the respective Security Council resolutions regarding the situation in Somalia referred to the absence of law and order,18 and with regard to Liberia it was explicitly stated that “[t]he immediate origins of the Salmon, Internal Aspects of the Right to Self-Determination, in: Christian Tomuschat (ed.), Modern Law of Self-Determination, 1993, 253, 260. 13 Josef L. Kunz, Identity of States under International Law, 1924, 68, 71; Hans Heinrich Mahnke, Entstehung und Untergang von Staaten, 1965, 100, 107; Hans Herz, Die Identität des Staates,1931, 8. 14 The State Failure Task Force has emphasized that “when a regime lacks the strength of authority to effectively govern at least half its sovereign territory, it is considered to be a failed State […].” State Failure Task Force, Problem Set Codebook, available at: http://www.cidcm.umd.edu/inscr/stfail/sfcodebk.htm, Sect. III. 1. in fine. 15 James Crawford, The Creation of States in International Law, 1979, 46; Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations, 1963, 24. 16 “Political and social life was disorganized; the authorities were not strong enough to assert themselves, civil war was rife […];” Commission of Jurists, League of Nations Official Journal, Special Supplement No. 4, 1920, 8 et seq. 17 Berlin Declaration of 5 June 1945, reprinted in: A Decade of American Foreign Policy: Basic Documents, 1941–49, 1950, 506 et seq. 18 SC Res. 897 of 4 February 1994 highlighted “the importance of a re-established police force and judicial system for the restoration of public order throughout Somalia;” SC Press Release 6194 of 15 March 1996 emphasized that “anarchy and lawlessness reigned supreme.”

Failed States – Legal Aspects and Security Implications

463

three year war can be traced to the complete breakdown of law and order and civil authority […].”19 Similarly, in a more general manner the UN SecretaryGeneral in 1995 emphasized as particular characteristics of a failed State “the collapse of State institutions, especially the police and judiciary, with resulting paralysis of governance, a breakdown of law and order, and general banditry and chaos.”20 Thus, from an international law perspective, effective government is absent if its core element, the ability to guarantee law and order, has dissolved. Nevertheless, the question remains whether the absence of effective government constitutes the single decisive criterion to determine State failure or whether additional characteristics demand consideration. In theory, every regime change entails the absence of government for at least a logical second. In the course of a revolution, a coup d’état or during an occupation, the implementation of a new government may be hampered for weeks if not months, and during internal armed conflict, the ability to effectively govern a State and to uphold law and order may likewise be seriously compromised. Again, a quantitative temporal element, like for example a period of six months after which a State that has not managed to reestablish its government would be rendered a failed State, would appear to be rather randomly chosen. Preferably, irrespective of the precise duration of the absence of effective government, resort should be had to an additional qualitative criterion. It is a State’s inability to reorganize and to rebuild an effective government by its own means which from the outset creates a situation the international community cannot ignore and which can adequately be described with the terminology failed State. This inability to rebuild essential State structures without outside help is a specific feature which States like Somalia, Liberia and Afghanistan have displayed in the past. With regard to Somalia, the UN Secretary General emphasized that “[t]he situation in Somalia will continue to deteriorate until the political will exists among the parties to reach a peaceful solution to their dispute, or until the 19 Report of the Secretary-General on the Question of Liberia, UN Doc. S/25402 (1993), para. 5. See also Peace Talks on Liberia, Geneva 10–17 July 1993, Summary of the Proposal for the Reinsertion of Demobilized Combatants, 13 July 1993, reprinted in: Marc Weller (ed.), Regional Peace-keeping and International Enforcement: The Liberian Crisis, 1994, 313: “With the breakdown of law and order and civil authority […]”; UN Doc. S/PV.3187 (1993), 9; Report of the Secretary-General Concerning the Situation in Abkhazia, Georgia, UN Doc. S/1994/253, para. 24. 20 UN Secretary-General, Supplement to An Agenda for Peace: Position Paper of the SG on the Occasion of the Fiftieth Anniversary of the United Nations, UN Doc. A/50/ 60-S/1995/1, para. 13.

464

Robin Geiss

international community gives itself new instruments to address the phenomenon of a failed State.”21 In this context, it is noteworthy that in retrospective the absence of government in Somalia has persisted for over a decade.22 Regarding Afghanistan, the Secretary General in June 1998 expressis verbis referred to features of a failed State in stating that “[w]hile Afghanistan itself shows typical ‘failed-State’ symptoms, in which the armed factions are unwilling to opt for peace, […] what has ensued since then is the emergence of regional players more assertive than before and intent on filling the vacuum,”23 and the situation in Liberia was described as “[w]arring parties […] holding the entire population hostage.”24 A great variety of parties, all of which are acting in a private rather than the public interest,25 leads to a profound stalemate in the intra-State conflict, during which the ability of a population to set up a new government in pursuance of its right to political self-determination is paralyzed. This criterion, i.e.

21

Boutros Boutros-Ghali, Introduction, in: The United Nations and Somalia (1992–1996), United Nations Blue Book Series, vol. 8, 1996, 87. See also the statement of the Belgian Delegate: “[Somalia] is a country without a government, without an administration, with no source of authority, where factions and gangs hold sway, Somali ‘authorities’ at all levels of society compete for anything of value in the country,” UN Doc. S/PV.3145 (1992), 23 et seq. In Somalia the security situation is apparently again worsening at the time of writing: Report of the Secretary-General, UN Doc. S/2004/469, paras. 19–42. Also see the Socio-Economic Survey on Somalia, Report of the SecretaryGeneral on the Situation in Somalia, UN Doc. S/2004/115, para. 44 and UN Doc. S/2004/115/Corr. 1. 22 Report of the Secretary-General on the Situation in Somalia, UN Doc. S/1999/882, para. 63. 23 Report of the Secretary-General on the Situation in Afghanistan and its Implications for International Peace and Security, UN Doc. S/1998/532, para. 50. For a similar summary of failed State specific criteria see Kofi Annan, Address to the United Nations Association of Canada, UN Doc. SG/SM/6412 (1997): “Most visibly, we have seen this unfold in societies in conflict, in so-called failed States. We have seen what happens to these States when the center falls apart, when rival militias replace reason, when citizens are bereft of the most basic conditions of stable existence, when outside powers involve themselves in the running of the country, we have seen it in Angola, Somalia, Zaire, Bosnia.” 24 See also UN Doc. S/PV.3138 (1992), para. 75 (Statement of the US Representative): “The revolution against Samuel Doe […] has become bogged down in a bitter struggle for personal power while the interests of the nation suffer.” 25 A Peace conference, initiated by Boutros Boutros-Ghali in Addis Ababa from 4 to 15 January 1993, drew representatives of 15 Somali political factions as well as leaders of community organizations, and led to the signing of a cease-fire by the 15 groups.

Failed States – Legal Aspects and Security Implications

465

the inability to exercise political self-determination, indicates an incapability of the respective people to reorganize the State in and of themselves and thereby a limine implies a long term absence of State structures.26 This has unfolded most vividly in the multi-sided civil war in Somalia where the opposing armed groups persistently failed to cooperate in the efforts to end the violence and to negotiate a peaceful settlement of their differences.27 However, even though far fewer parties were involved in the conflicts in Liberia and Afghanistan, these conflicts have likewise been stalemated due to the unwillingness of the parties to opt for peace. In conclusion, the absence of an effective government in combination with a profound paralysis of a people’s ability to exercise their right to internal self-determination cumulatively indicate a prolonged inability of a State to reorganize and rebuild its governmental institutions and thus to fulfil its obligations vis-a-vis the international community and towards its own people. II. The Failed State – A Sovereign State

Quite strikingly, the legal personality of States that have lacked an effective government over a significant period of time – in the case of Somalia, for example, the situation has persisted for more than thirteen years – has never been questioned.28 Already the absence of any debate ex tacendo allows the conclu26 It has been emphasized repeatedly that “[t]he most basic principle of selfdetermination is that of the right of popular participation in the government of the State as an entity,” UN Doc. E/CN.4/Sub.2/1992/37, 33, para. 165. See also Patrick Thornberry, The Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism, in: Tomuschat (note 12), 101 et seq.; Thomas M. Franck, The Emerging Right to Democratic Governance, American Journal of International Law (AJIL), vol. 86, 1992, 46, 58; Supreme Court of Canada, Reference re Secession of Quebec, reprinted in: International Legal Materials (ILM), vol. 37, 1998, 1340, 1371, para. 126: “The recognized sources of international law establish that the right to selfdetermination is normally fulfilled through internal self-determination – a peoples’ pursuit of its political, economic, social and cultural development within the framework of an existing State.” 27 The United Nations and Somalia (note 21), 3. 28 The only evidence of a perception of loss of statehood can arguably be derived from the following statement: “[T]he international community was searching for a peaceful resolution of political disputes, which could allow the rebirth of Somalia;” Press Release of 15 March 1996, UN Doc. SC/6194. Additionally, a lower court of Germany found that Somalia had ceased to exist as a State, see Hessischer Verwaltungsgerichtshof, Case No. 13 UE 2378/96.A, Judgment of 29 July 1996 (on file with the author), 18: “Spätestens seit dem Zeitpunkt der Flucht des Regierungschefs Siad Barre

466

Robin Geiss

sion that the statehood of these entities was generally perceived to continue despite the absence of a constitutive criterion for statehood. This can also be concluded from the continued membership of Somalia, Liberia and Afghanistan in the United Nations, which according to Article 4 UNC is only open to States and which was at no point questioned, even though United Nations organs had repeatedly emphasized the lack of an effective government in the respective States.29 It is an accepted premise that international relations depend on the notion of legal certainty, predictability as well as stability and for this reason require a high degree of statism. Generally, therefore, adherence to the maxim of a highest degree of continuity is praised so as to ensure stability in the legal relations among States, and many authors oppose any too strict relationship between statehood and the presence of effective governmental authority once a State has come into existence.30 The principle of continuity, in particular in light of the fact that in the case of a failed State there is no entity ready to succeed into the legal obligations,31 aiming at ensuring legal stability, thus calls for a continuity of the failed State’s legal personality. This practice seems plausible as a continuation of a long standing tradition, and pragmatic considerations such as not to incite or to fuel boundary disputes argue in its favor.32 aus Mogadischu am 26. Januar 1991 ist davon auszugehen, dass der somalische Staat untergegangen [ist].” But see also James Leslie Brierly, The Law of Nations, 1942, 145: “[T]he identity of a State is not affected by changes in the form or the persons of its government, or even by a temporary anarchy.” 29 With regard to Somalia, this can also be concluded e contrario from the fact that neither the Republic of Somaliland nor Puntland have internationally been recognized; Peggy Hoyle, Somaliland: Passing the Statehood Test?, Boundary and Security Bulletin, vol. 8, 2000, 80. The absence of any substantial discussion of the problem can be accorded to the fact that absent “une autorité internationale, chargée de constater la disparition d’un Etat,” Henri Rolin, in: Annuaire de l’Institut de Droit International, vol. 2, 1936, 212; statehood simpliciter is only rarely the subject of controversy unless it has to be dealt with as a prerequisite to answer connected legal questions, for example Yugoslavia’s status as a party to the Genocide Convention. 30 Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, vol. I/1, 2nd ed. 1989, 137. 31 See generally Wladyslaw Czaplinski, La continuité, l’identité et la succession d’états – évaluation de cas récentes, Revue Belge de Droit International, vol. 26, 1993, 374, 375. 32 Even though a State’s extinction today does not ipso facto transform its territory into terra nullius, it could in the long-term lead to large scale alterations of territorial borders.

Failed States – Legal Aspects and Security Implications

467

However, in the case of a failed State this principle clashes with the principle of effectiveness. Law as a product of social reality and, absent any central authority that could enforce its provisions, international law in particular depends on a certain degree of effectiveness to ensure its functionality.33 Faced with the failed State’s utter incapability to interact on the international level and its incapacity to perform basic State functions, the principle of effectiveness would thus demand the extinction of a failed State as a subject of international law.34 In consequence, the question of a failed State’s statehood is dependent upon a balancing of the principle of continuity and the principle of effectiveness, to which I now turn. State practice has developed a number of criteria to determine a State’s identity after the occurrence of a potentially status-altering event, such as for example long time occupation. However, there are hardly any objective criteria to circumscribe the degree or duration of defectiveness of governmental authority necessary to lead to a State’s extinction. The outcome of the collision of the principle of effectiveness and the principle of continuity is thus determined on a case by case basis. To some degree, reference can be had to the period of decolonization, which has shown that the principle of effectiveness is susceptible to modifications. State practice in the context of decolonization evidences that effective governmental authority is not necessarily a conditio sine qua non for the emergence of statehood, as long as a legitimate claim to statehood can be derived from a peoples’ right to self-determination.35 Whereas in 33

Sir Hersch Lauterpacht, Recognition in International Law, 1948, 426. Generally on the principle of effectiveness: Heike Krieger, Das Effektivitätsprinzip im Völkerrecht, 2000; Herbert Krüger, Das Prinzip der Effektivität, in: Dimitri S. Constantopoulos/Constantin Th. Eustathiades/Charalambos N. Fragistas (eds.), Grundprobleme des internationalen Rechts, Festschrift für Jean Spiropoulos, 1957, 265; Giuseppe Ottolenghi, Il principio di effettività e la sua funzione nell’ordinamento internazionale, Rivista di Diritto Internazionale, Serie III/15, 1936, 3, 402; Karl Doehring, Effectiveness, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 7, 1984, 70; Thomas M. Franck, The Power of Legitimacy among Nations, 1990, 244; Gustav Radbruch, Einführung in die Rechtswissenschaft, 10th ed. 1961, 39. This is for example, vividly exemplified by the fact that the coastal zone was fixed at 3 miles off shore, since this was the distance the canons of the time were capable of reaching. 34 Despagnet describes the consequences of a loss of governmental authority as follows: “L’extinction de tout governement par le fait d’une anarchie continue que rend impossible les relations internationales, aucune autorité est suffisemment assise pour représenter la collecitivité des habitants de l’Etat;” Frantz Despagnet, Cours de Droit International Public, 3rd ed. 1905, 93. 35 See also David Raic, Statehood and the Law of Self-Determination, 2002, 408 et seq. Apart from the colonial context, deficiencies with regard to the effectiveness of an

468

Robin Geiss

the case of the Democratic Republic of the Congo in 1960, despite an overt lack of effective authority, the existence of an independent government was widely acknowledged36 and only rarely disputed37 – the same is true in the case of Guinea Bissau38 and Rwanda Burundi39 –, with regard to Biafra’s secession declared on 30 May 1967, in light of a lack of legitimacy, a higher degree of effectiveness was demanded and the statehood of Biafra was denied.40 In the context of decolonization the right of self-determination has evolved as a principle of legitimizing changes.41 This still holds true today in so far as the right of self-determination in certain circumstances and ultima ratio may grant a right to secession. However, this is but only one aspect of the notion of selfdetermination, the fundamental idea of which is to grant a people the ability to design its own political fate.42 It follows that apart from legitimizing changes,

entities authority have been compensated through the right of self-determination in the cases of Georgia’s recognition through the European Community as well as in the cases of Bangladesh and Croatia. 36 See Catherine Hoskyns, The Congo since Independence, 1965; id., The Congo: A Chronology of events January 1960–December 1961, 1962. 37 Thomas Baty, Can an Anarchy Be a State, AJIL, vol. 28, 1934, 444–455. 38 Questions Relating to Guinea-Bissau, United Nations Yearbook (UNYB), 1973, 143–147; Aid to Guinea-Bissau, UNYB, 1974, 169. 39 Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations, 1963, 22 et seq.; Ruanda-Urundi, UNYB, 1961, 484–494. 40 David Adedayo Ijalaye, Was Biafra at any Time a State in International Law?, AJIL, vol. 65, 1971, 551, 552; James Crawford, The Creation of States in International Law, 1979, 46, 265. With regard to the effectiveness of governmental authority in Bosnia-Herzegovina, see Marc Weller, Peace-keeping and Peace-enforcement in the Republic of Bosnia and Herzegovina, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), vol. 56, 1996, 70 et seq. 41 GA Res. 1514 (XV) of 14 December 1960. Today, in light of Art. 1 para. 2 of the two UN Covenants, the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A (XXI) of 16 December 1966, and the International Covenant on Civil and Political Rights, GA Res. 2200A (XXI) of 16 December 1966, the legal character of the right to self-determination is not disputed and it is widely regarded to amount to ius cogens, UN Doc. E/CN.4/Sub.2/390 and Corr. 1 and Add. 1 (1977), 17, para. 63. See also Rosalyn Higgins, International Law and the Avoidance, Containment and Resolution of Disputes, Recueil des Cours (RdC), vol. 230, 1991, 9, 164; Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal, 1995, 102. 42 Lee. C. Buchheit, The Secession, The Legitimacy of Self-Determination, 1978, 216 et seq. See also the Statement of Secretary-General U. Thant regarding Biafra, UN Monthly Chronicle, February 1970, 36.

Failed States – Legal Aspects and Security Implications

469

the principle can also provide for stability and continuity once a State has legitimately been established.43 Still today, even though “territory inhabited by peoples not organized as a State cannot be regarded as terra nullius”44 and despite the fact that partial legal personality may be accorded to a non-State organization representing a people,45 it is only through the State that a people has an equal voice on the international level. The Security Council has repeatedly addressed the people of Somalia as the bearer of the right of self-determination,46 and likewise the States of the Economic Community Of West African States (ECOWAS) have emphasized the right to self-determination of the Liberian people.47 The extinction of such a State would run counter to the right of a people which have at no point expressed the will to alter the status of their State. Accordingly, in the case of a failed State, despite the loss of all central authority the absence of government cannot be regarded to be ultimate and definitive as long as a right to self-determination remains on which the continuity of the State can be rested.48 It follows that neither the quality nor the period of time for which governmental authority is absent influence a failed State’s statehood. As long as a bearer of the right of self-determination is existent, i.e. as long as the people of a failed State have not disintegrated to such an extent that they cannot be regarded as a people under international law anymore, the legal personality of a failed State continues. This does not render void the principle of effectiveness vis-a-vis failed States if it is taken into account that ultimately only statehood in conformity with the right to self-determination ensures stability and therefore effectiveness in international relations.

43 Dietrich Murswiek, Offensives und Defensives Selbstbestimmungsrecht – Zum Subjekt des Selbstbestimmungsrechts der Völker, Der Staat, vol. 23, 1984, 523, 527. See also GA Res. 2625 (XXV) of 24 October 1970. 44 Ian Brownlie, Principles of International Law, 5th ed. 1998, 598. 45 James Crawford, The Rights of Peoples: Some Conclusions, in: James Crawford (ed.), The Rights of Peoples, 1988, 159, 164. 46 SC Res. 794 of 3 December 1992, preambular para. 16; SC Res. 814 of 26 March 1993, preambular para. 8; SC Res. 865 of 22 September 1993, preambular paras. 4, 8; SC Res. 885 of 13 November 1993, preambular para. 4; SC Res. 886 of 18 November 1993, preambular para. 4. 47 ECOWAS, First Meeting of the Committee of Nine on the Liberian Crisis, Final Communiqué, Abuja 7 November 1992, reprinted in: Weller (note 19), 241; similar Thürer (note 6), 16. 48 See also the case of Lebanon, Tono Eitel, Lebanon – A Legal Survey, German Yearbook of International Law (GYIL), vol. 29, 1986, 11, 14.

470

Robin Geiss

As statehood continuous undisputedly, the failed State, despite its incapability to perform any State functions whatsoever, remains a sovereign State,49 at least in so far as sovereignty is understood as preserving the domaine reservé from outside interference.50 It is in this context that the Security Council has repeatedly reiterated the sovereignty and territorial integrity of States whose governmental authority had collapsed.51 In light of this the concept of a suspended sovereignty of failed States, as proposed by Fowler who stipulates that “Somalia in the early 1990s [...] in the midst of political chaos and famine may have lost its sovereignty,”52 has to be rejected.53 The argument brought forward 49

SC Res. 733 of 23 January 1992. Helmut Steinberger, Sovereignty, in: Rudolf Bernhardt (ed.), EPIL, Instalment 10, 1987, 397, 408; Stefan Oeter, Souveränität – ein überholtes Konzept?, in: Hans-Joachim Cremer/Thomas Giegerich/Dagmar Richter/Andreas Zimmermann (eds.), Tradition und Weltoffenheit des Rechts, Festschrift für Helmut Steinberger, 2002, 259, 276. See also Island of Palmas Case (Netherlands v. United States), Award of 4 April 1928, RIAA, vol. 2, 829, 838; PCIJ, Lotus Case (France v. Turkey), Judgment of 7 September 1927, Series A, No. 10, 18; ICJ, Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4, 35; ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 212. 51 In Res. 814 of 26 March 1993, the Security Council highlighted the absence of law and order in Somalia while at the same time calling for “respect for the sovereignty and territorial integrity of Somalia;” see also SC Res. 923 of 31 May 1994; SC Res. 954 of 4 November 1994. Regarding Afghanistan, see, e.g., SC Res. 1333 of 19 December 2000: “Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan […];” SC Res. 1267 of 24 November 1999; SC Res. 1214 of 8 December 1998; SC Res. 1101 of 28 March 1997: “Affirming the sovereignty, independence and territorial integrity of the Republic of Albania […].” Similarly in the case of Iraq, while pointing out a situation of lawlessness, the Security Council reaffirmed “the sovereignty and territorial integrity of Iraq,” SC Res. 1483 of 22 May 2003. See also Jackson (note 6), 23 et seq.; Stephan D. Krasner, Sovereignty – Organized Hypocrisy, 1999, 4: “A State can have international legal sovereignty, be recognized by other States, but have only the most limited domestic sovereignty either in the sense of an established structure of authority or the ability of its rulers to exercise control over what is going on within their own territory.” 52 Michael R. Fowler/Julie M. Bunck, Law, Power, and the Sovereign State – The Evolution and Application of the Concept of Sovereignty, 1995, 42. Similar Peter Baehr, The Security Council and Human Rights, in: Rick Lawson/Matthijs de Blois (eds.), The Dynamics of the Protection of Human Rights in Europe, Essays in Honour of Henry G. Schermers, vol. 3, 1994, 15, 24. 53 PCIJ, Morocco Nationality Decrees, Advisory Opinion of 7 February 1923, PCIJ Ser. B, No. 4, 24: “[W]hether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question, it depends upon the development of international relations.” 50

Failed States – Legal Aspects and Security Implications

471

here gains support from Article 3 of Additional Protocol II54 as well as from the corresponding Article 8 para. 3 of the ICC Statute,55 which reiterate the principle of non-intervention even in cases in which law and order have to be re-established, i.e. where they are absent in a State.56 Nevertheless, in light of the humanitarian situation on the ground, some authors have favored a rather restrictive reading of Article 2 para. 4 UNC with regard to failed States, arguing that any humanitarian intervention in States that lack governmental authority would in fact neither be directed against their “territorial integrity” nor against their “political independence.”57 Such a reading of Article 2 para. 4 UNC has been widely rejected – in general as well as in the more specific context of failed States.58 With regard to Somalia, the President of the Security Council emphasized that “all States should refrain from any military intervention in the internal situation in Somalia.”59 Accordingly, as the sovereign statehood of the failed State continues despite the afore-described criteria, military intervention within the territory of a failed State remains subject to the provisions of the Charter of the United Nations and can thus be authorized solely under Chapter VII of the Charter.

54 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, UNTS, vol. 1125, 609 (AP II). 55 Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9 (ICC Statute). 56 Art. 3 para. 1 AP II reads as follows: “Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.” With regard to Art. 8 para. 3 ICC Statute, see Andreas Zimmermann, Art. 8, mn. 339 et seq., in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999. 57 Herdegen (note 6), 49, 58. 58 Albrecht Randelzhofer, Art. 2, mn. 4, 35, in: Bruno Simma (ed.), The Charta of the United Nations – A Commentary, 2nd ed. 2002; Oscar Schachter, The Legality of ProDemocratic Invasion, AJIL, vol. 78, 1984, 645, 649. 59 UN Doc. S/PRST/2001/1; earlier already UN Doc. S/PRST/1997/57; UN Doc. S/PRST/1999/16; UN Doc. S/PRST/1999/31; UN Doc. S/PRST/2000/22.

472

Robin Geiss

C. Implications for International Stability and Legal Certainty On the basis that the failed State remains a sovereign State, subject to rights as well as obligations under international law, the inquiry now turns to analyzing the phenomenon’s implications for international relations and their stability. I. The Incapacity to Act on the International Level

The absence of an effective government renders a State incapable of interacting with other subjects of international law on the international level.60 It is rather evident that absent central State organs a failed State, contrary to the presumption underlying Article 6 VCLT,61 will not be able to conclude international treaties. Despite its imminent need for developmental aid, Somalia for example could neither sign the Lomé IV and Lomé IV bis nor the Cotonou agreement and could thus not profit from the seventh and eighth European Development Funds.62 Similarly, a failed State’s actions cannot be regarded as relevant State practice in the context of establishing customary law.63 Neither can a failed State act as a persistent objector vis-a-vis customary law developments concerning its own legal status, for example the justification of unilateral military intervention absent the consent of a failed State. In addition, a failed State is not capable of resorting to unilateral means of coercion such as retorsion or reprisal, it cannot make use of the means foreseen in Article 33 UNC and it is incapable of participating in international proceedings since it lacks the relevant 60

See already Despagnet (note 34): “L’extinction de tout governement par le fait d’une anarchie continue que rend impossible les relations internationales, aucune autorité est suffisemment assise puor représenter la collecitivité des habitants de l’Etat.” 61 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, 331 (VCLT). 62 See European Court of Justice, Case C-369/95, Somalifruit SpA, Camar SpA v. Ministero delle Finanze, Ministero del Commercio con l' Estero, 1997 ECR I-6619, para. 9–10 (Somalifruit case): “The Democratic Republic of Somalia, which signed the Lomé Convention on 15 December 1989, did not deposit an instrument of ratification within the period provided. Nor did Somalia participate in the Agreement amending that convention signed in Mauritius on 4 November 1995.” 63 For the evolution of customary law, see generally Charles G. Fenwick, International Law, vol. I, 4th ed. 1965, 72.

Failed States – Legal Aspects and Security Implications

473

locus standi.64 More importantly however, a failed State can no longer invite outside help or consent to humanitarian actions of third States or international organizations. On-site investigations which may be fundamental to establish individual responsibility for criminal acts cannot be pursued.65 Thus, not only is a failed State utterly helpless in reorganizing basic State structures, it is even incapable of arranging for help from third parties.66 Facing imminent security concerns, States as well as humanitarian organizations have withdrawn their delegations from States in which law and order could no longer be guaranteed. Failed States typically lack the personal resources as well as the financial means to uphold embassies in third countries. Even if a failed State does not immediately close its missions abroad, third States may have a legitimate interest to declare its representatives persona non grata given that the financial obligations of foreign missions can be quite significant and that credentials of a mission’s personnel can no longer be issued.67 Consequently, a failed State is hampered in the provision of diplomatic protection to its citizens abroad, whose standing may thus be worse than the international status of state-

64

“[T]he instructions and authority they had received from the interim government are not instructions and authority from the Government of the Republic.” British High Court, Queen’s Bench Division, Somalia v. Woodhouse Drake & Carey (Suisse) S.A. and Others, 13 March 1992, reprinted in: The Weekly Law Reports of 6 November 1992, vol. 3, 744, 757 (Somalia v. Woodhouse Drake). 65 Generally see Georg Nolte, Eingreifen auf Einladung, 1999; Louise DoswaldBeck, The Legal Validity of Military Intervention by Invitation of the Government, British Yearbook of International Law (BYIL), vol. 56, 1985, 189–252. 66 During the drafting process of SC Res. 794, it was mentioned that “[i]n Somalia there is no Government that can be the interlocutor of the United Nations for the purposes of agreeing upon a humanitarian-assistance operation,” UN Doc. S/PV. 3145 (1992), 13. 67 Cf. Letter to the Counsellor of the Permanent Mission of a Member State to the United Nations, 26 February 1992, United Nations Juridical Yearbook 1992, 491–492. This is evidenced for example by the fact that a Somali diplomat requested social security assistance in Germany. Nordrhein-Westfälisches Oberverwaltungsgericht, Judgment of 11 February 1992, reprinted in: International Law Reports, vol. 94, 1994, 597, 602. In England, for example, the High Court denied the diplomatic status of a Somalia diplomat after the government of Siad Barre had ceased to exist:“[T]he former government of President Siad Barre has ceased to exist and she [Ms. Bihi] has no accreditation or authority from any other government […I]t is clear that she has no diplomatic status in the UK and has no recognition from Her Majesty’s Government as a representative of the Republic of Somalia in this country,” Somalia v. Woodhouse Drake (note 64), 744 et seq.

474

Robin Geiss

less persons, who are at least protected through the Agreement for the Status of Stateless Persons.68 As far as a failed State’s representation in the fora of the United Nations, namely the General Assembly, is concerned, the situation appears to be rather straightforward. While it has become common practice to seat delegations provisionally if the validity of the credentials submitted is in doubt, credentials are only valid for one particular session and they have to be renewed for the next session.69 Accordingly, Somalia is mentioned for the last time in the report of the Credentials Committee of December 1991 – the year in which Somalian dictator Siad Barre was ousted from power70 –, in which the Committee recommends that the Somalia credentials should be regarded as merely provisional and that formal credentials should be issued as soon as possible.71 Given the absence of any central State organs, formal credentials could not be submitted for the following session and on 14 September 1992, the Chargé d’affaires of the Somali mission at the UN submitted a letter to the Secretary General, stating that “we wish […] to stress that we find it untimely to allow for any delegation to represent Somalia in the forty-seventh session of the GA since there is no representative government yet in place.”72 Subsequently, from 1992 until 2000

68 Convention relating to the Status of Stateless Persons, 28 September 1954, UNTS, vol. 360, 117; this lack of protection may be compensated in so far as the concept of de facto statelessness is employed to citizens of a failed State, Christian Gloria, in: Knut Ipsen (ed.), Völkerrecht, 4th ed. 1999, 301. 69 Siegfried Magiera, Art. 9, mn. 20, in: Simma (note 58). 70 Siad Barre was ousted from power on 27 January 1991; UN Doc. S/23693 (1992), para. 77: “[T]he Absence of any civil society and the breakdown of law and order in Mogadiscio […] Banditry, looting and reckless firing have complicated all efforts […].” See also the European Political Co-operation Statement of 13 September 1992, reprinted in: BYIL, vol. 63, 1992, 615, 646: “In the view of the Community and its member States, none of the Somali factions can lay claim to speak as the legitimate authority in Somalia.” In a letter dated 24 November 1992, the Secretary General stipulated that “in the absence of a government or governing authority capable of maintaining law and order, Somali ‘authorities’ at all levels of society compete for anything of value in the country,” UN Doc. S/24859 (1992). 71 UN Doc. A/46/563 and Add. 1 (1991). 72 Unpublished internal memo of the UN department of Legal Affairs, cited in: Yannis (note 6), 110. Cf. also the statement of the English High Court in Somalia v. Woodhouse Drake (note 64), 744.

Failed States – Legal Aspects and Security Implications

475

Somalia found no further consideration in the Committee’s reports,73 and in 1999 the Secretary General emphasized that “representation of the Somali people in intergovernmental and international fora [is] absent […].”74 Thus, in the case of a failed State, even if no objections are raised in accordance with Article 29 of the Rules of Procedure, the formal correctness of any credentials submitted must already be denied on the basis of the obvious absence of any official State organ.75 It is noteworthy, however, that in the cases of Liberia, Rwanda and Sierra Leone, despite the fact that the governmental authority was seriously compromised and at least in the case of Liberia temporarily absent, the Credentials Committee accepted the respective credentials submitted as formally in order.76 The significance of these differences, however, diminishes in light of the fact that it is a symptomatic feature of a failed State that it not only lacks governmental authority but also any other means of resources. Typically therefore a failed State does not have the financial capacity to meet its obligations under Article 17 para. 2 UNC, thereby automatically triggering the loss of the right to vote in the General Assembly according to Article 19 UNC.77 73 See only, e.g., UN Doc. A/47/517 and Add. 1 (1992); UN Doc. A/48/512 and Add. 1 (1993). Somali credentials are mentioned for the first time again in UN Doc. A/55/537 (2000); UN Doc. A/55/537/Add.1/4 (2000). 74 UN Doc. S/1999/882, para. 63. 75 Legal Counsel to the UN, United Nations Judicial Yearbook 1970, 169–170, para. 4. A quite similar question presented itself to the Credentials Committee of the Assembly of the League of Nations during its 17th ordinary session, when the Committee had serious doubts as to the effective authority of the Ethiopian authority, Emperor Selassie. However, there were no objections from other Member States as to the validity of the credentials presented and finally, the Credentials Committee confined itself to a pragmatic approach, accepting the credentials submitted as sufficient for the current session. See League of Nations Official Journal, Special Supplement 155, 1936, 40; Sir Hersch Lauterpacht, The Credentials of the Abyssinian Delegation to the Seventeenth Assembly of the League of Nations, BYIL, vol. 18, 1937, 184, 186. The disputed question, whether the Credentials Committee has the authority to conduct a more substantive inquiry regarding the validity of the credentials submitted, does not arise in the case of a failed State. 76 Regarding Liberia see UN Doc. A/46/563 (1991); UN Doc. A/47/517 (1992); UN Doc. A/48/512 (1993); regarding Rwanda see UN Doc. A/48/512/Add.1 (1993); UN Doc. A/49/517/Add. 1 (1994). 77 Generally see Dan Ciobanu, Financial Obligations of States under Art. 19 of the UN Charter, 1973; Gerhard Ohse, Die Suspension des Stimmrechts in der Generalversammlung der UNO, Vereinte Nationen, vol. 21, 1973, 155–159. From 1993 to 2001, the amount of Somalia’s arrears exceeded the amount of the contributions due from it for the preceding full two years and consequently, Somalia was without a right to vote during this period of time. Again it is noteworthy that in other cases where a State’s ar-

476

Robin Geiss

Partially, more recent legal frameworks have incorporated this all-encompassing inability to act on the international level and have made provision accordingly. The ICC Statute, which was adopted after the international community’s attention had been raised to the phenomenon of State failure, in Article 57 III lit. d makes provision for this particular constellation and allows for investigative measures irrespective of a government’s consent. However, the scope of this provision is limited to State parties to the Rome Statute and does not authorize coercive action, which would most likely be essential to carry out any meaningful investigative measures amidst the chaos of a failed State.78 Given Somalia’s urgent need for developmental aid, the UN Secretary General “urge[d] international financial institutions such as the World Bank and the European Development Fund, in administering the Lomé IV Convention, to exercise flexibility in this regard […].”79 Subsequently, the ACP-EU Council of Ministers decided to compensate Somalia’s inability to sign the respective trearears likewise exceeded the relevant amount, the Committee on Contributions decided that these arrears were “a result of the devastating impact of the protracted civil war” and therefore beyond the control of the State in the sense of Art. 19 UNC. Accordingly, in these instances States were granted the right to vote despite their arrears. See e.g., with regard to Liberia, Tajikistan and the Comores, UNYB, 1997, 1442. This procedure, however, was not applied in the case of Somalia, although it is obvious that its arrears are likewise due to the “impact of a protracted civil war.” Since the practice concerning Art. 19 UNC is handled rather discreetly, it seems impossible to derive any clear assessments from this practice. What can be said with certainty is that, in so far, State failure has not been generally recognized as a circumstance beyond the control of the respective State, and that vis-a-vis failed States, pragmatic solutions prevail over legal consistency. This is also exemplified by the fact that the Security Council, although repeatedly emphasizing the absence of a government in Somalia, invited Somalia, according to Rule 37 of its Provisional Rules of Procedure, to attend the sessions of the Security Council without a right to vote. Similarly, official UN documents still listed the Somali Chargé d’Affaires a.i. after 1992. In conclusion, the practice of not explicitly dealing with the question of Somali representation provided that the fora of the United Nations could be used as a minimum basis for communications. In the absence of a right to vote, the factual results of any formal rejection of Somali representatives would not have led to different results. 78 Fabricio Guariglia/Kenneth Harris, Art. 57, in: Triffterer (note 56); See also Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/51/22 (1996) 114, Art. 26 para. 6 lit. c. A legal basis for the use of force was however still included in the Zutphen Draft, UN Doc. A/AC.249/1998/L.13. Its Art. 47 para. 2 lit. c, option 2, subpara. (iii), stated: “In the case of paragraph (i) (b) above, the Prosecutor may use compulsory measures for collecting evidence (such as search and seizure and compelling the attendance of witnesses) based upon a valid warrant issued by the Pre-Trial Chamber.” 79 UN Doc. S/1999/882, para. 72.

Failed States – Legal Aspects and Security Implications

477

ties by stating that “[t]he ACP-EU Council of Ministers […] confirms the political accession of Somalia to the Lomé Convention, despite the fact that Somalia has not been able to ratify the Convention for reasons beyond its control […].”80 Accordingly, the Cotonou Agreement in Article 93 VI provides that “the Council of Ministers may decide to accord special support to ACP States party to previous ACP-EC Conventions which, in the absence of normally established government institutions, have not been able to sign or ratify this agreement.” However, such provisions are of limited scope, they remain partial at best and cannot compensate for the overall lack of a central government. Furthermore, while the incorporation of the failed State into the framework of international law may serve legitimate aims, such as timely delivery of development aid, on a more abstract level any such attempts entail an imminent danger in that they inherently rest on the assumption that State failure can indeed be tolerated, at least temporarily.81 However, the opposite is true given that the humanitarian hardship cannot be terminated by legal provisions, nor can the complexity of problems connected to the absence of governmental authority within the territory of an entire State ever be remedied by specifically tailored legal exceptions. II. The Inability to Fulfil Legal Obligations vis-a-vis Third States and the International Community as a Whole

In the absence of any governmental authority, the failed State is inherently unable to fulfil any of its international obligations regardless of whether they are derived from treaty law, customary law or resolutions of the Security Council. In particular, since international terrorism has been identified as a threat to the peace,82 the Security Council has imposed a variety of obligations on States to counter terrorist activities. Failed States however, apart from sometimes providing a safe haven to terrorist organizations, are inherently unable to perform the tasks provided for in Security Council Resolution 1373 or to control the prolif80

Cited in Somalifruit case (note 62), para. 11. Rika Koskenmäki, Legal Implications Resulting from State Failure in Light of the Case of Somalia, Nordic Journal of International Law, vol. 73, 2004, 1, 35; Henry Richardson, Failed States, Self Determination and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, Temple International and Comparative Law Journal, vol. 10, 1996, 52, 75–76; Jeffrey Herbst, Responding to State Failure in Africa, International Security, vol. 21, 1996, 120, 144. 82 See, e.g., SC Res. 1377 of 12 November 2001. 81

478

Robin Geiss

eration of weapons of mass destruction to non-State actors in accordance with Resolution 1540,83 both of which have been adopted in response to the threat imposed by international terrorism. With regard to obligations derived from international treaties, given a failed State’s apparent inability to adhere to the principle of pacta sunt servanda, different approaches have been taken so as to provide for the inability to meet its obligations. Some authors have regarded the situation of a failed State to amount to force majeure or an état de necessité, others have suggested the suspension of a failed State’s treaty obligations by virtue of the clausula rebus sic stantibus entailed in Article 62 VCLT.84 Indeed, in the situation of a failed State, albeit a temporary situation, the concern for legal certainty demands a broader and more general solution than the application of the concept of force majeure to each and every single obligation that a failed State fails to fulfil, and a somewhat more sustainable arrangement with regard to treaty relations seems desirable.85 However, Article 61 VCLT, the 83 SC Res. 1373 of 28 September 2001; SC Res. 1540 of 28 April 2004. “Yet poverty, weak institutions, and corruption can make weak States vulnerable to terrorist networks and drug cartels within their borders,” US National Security Strategy (note 2), 4; “Collapse of the State can be associated with obvious threats, such as organized crime or terrorism,” European Security Strategy (note 2), 5. Even though recent Security Council resolutions in this context make explicit provision for assistance to such countries that require assistance in implementing the respective requirements, the measures foreseen therein were by no means intended to compensate the complete absence of governmental structures. 84 Andrea Gattini, Zufall und force majeure im System der Staatenverantwortlichkeit anhand der ILC-Kodifikationsarbeit, 1991, 129. The obvious similarity between the concept of force majeure and certain provisions of treaty law is shown in the Fourth Report of Sir Gerald Fitzmaurice, UN Doc. A/CN.4/120, Yearbook of the International Law Commission (YbILC), vol. 1959-X, 37, 44, in which he stated: “Temporary or ad hoc impossibility of performance justifies non-performance of a treaty obligation provided that the impossibility is literal and actual, in the sense of imposing an insuperable obstacle or impediment to performance in the nature of force majeure […].” 85 Sir Humphrey Waldock, Second Report on the Law of Treaties, UN Doc. A/CN.4/ 156, YbILC, vol. 1963/II, 36, 79: “These cases might simply be treated as cases in which force majeure could be pleaded as a defense exonerating a party from liability for non-performance. But where there is a continuing impossibility of performance of continuing obligations it seems better to recognize that the treaty may be suspended.” The ICJ stipulated that “those two branches of international law obviously have a scope that is distinct,” Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 36, para. 47. It is for this reason that the ILC, in its commentary regarding Art. 58 of the Draft Articles and in differentiation to the concept of force majeure, states that “when there is a continuing impos-

Failed States – Legal Aspects and Security Implications

479

provision dealing with impossibility of performance, was intentionally formulated in a rather restrictive manner, excluding the notion of subjective impossibility, which is typically present in a failed State.86 Resort can be had to a subsidiary provision, the clausula rebus sic stantibus entailed in Article 62 VCLT, which is applicable in case of the occurrence of an event which, in the words of the ICJ, “radically transform[s] the extent of the obligations.”87 Profound internal changes, e.g. with regard to a State’s political structure, have been accepted in this context in the past, and it seems that Article 62 VCLT could thus be applied in the case of a failed State.88 However, Article 62 VCLT merely entails the possibility for States to terminate or suspend a treaty subject to the procedure foreseen in Articles 65–68 VCLT. Inter alia to provide for legal certainty89 and to rule out potential abuse, a written notification is mandatory so as to inform the other party of a treaty’s suspension, whereas any form of automatic suspension was intentionally excluded.90 Nevertheless, in the case of a failed State there is an argument to be made in favor of automatic suspension. The inability of a failed State to perform is rather sibility of performing recurring obligations of a treaty, it is desirable to recognize, as part of the law of treaties, that the operation of a treaty may be suspended temporarily.” Commentary to Draft Article 58 of the 1966 ILC Draft Articles on the Law of Treaties, YbILC, vol. 1966/II, 256, para. 3. See also ICJ, Gabcíkovo-Nagymaros Project, para. 102. 86 Although during the drafting stage somewhat broader proposals had been made, Robert Ago emphasized that “perhaps the provision should speak of a disastrous event rendering the performance of the treaty impossible.” ILC, Summary Record, 832nd Meeting, YbILC, vol. 1966/I-1, 64, 68, para. 44. In the end, the consideration of the stability of treaties prevailed and led to the adoption of the restrictive version: ILC, Summary Record, 833rd Meeting, YbILC, vol. 1966/I-1,70, 73, para. 24. 87 Gabcíkovo-Nagymaros Project (note 85), para. 104. 88 See Schweizerisches Bundesgericht, In re Lpeschkin, Case No. 189, 1923–1924, Entscheidungen des schweizerischen Bundesgerichts, vol. 49, 188. 89 Taslim O. Elias, The Modern Law of Treaties, 1974, 131, 188. Report of the International Law Commission on the Work of its Eighteenth Session, UN Doc. A/6309/Rev.1, YbILC, vol. 1966-II, 169, 263, para. 6: “[The requirement of notification would] give a substantial measure of protection against purely arbitrary assertions of the nullity, termination or suspension of the operation of a treaty.” 90 The ICJ held that “the doctrine [clausula rebus sic stantibus] never operates so as to extinguish a treaty automatically or to allow an unchallengeable denunciation by one part; it only operates to confer a right to call for termination […].” ICJ, Fisheries Jurisdiction Case (United Kingdom v. Iceland), Judgment of 2 February 1973, ICJ Reports 1973, 3, 21, para. 44; Regarding the potential risk of abuse see Sir Gerald Fitzmaurice, Second Report on the Law of Treaties, UN Doc. A/CN.4/107, YbILC, vol. 1957/II, 16, 53.

480

Robin Geiss

apparent to all parties involved and, keeping in mind that suspension is only of a temporary nature, it would be in the parties’ mutual interest that neither one of them is obliged to fulfil its treaty obligations during the time of crisis. While this solution may serve the purpose of legal certainty, it is noteworthy that nevertheless the failed State, for a significant period of time, will not be in a position to fulfil its treaty obligations – many of which are relevant for international peace and stability, in particular if they concern the combating of international terrorism and criminal activities. III. The Absence of State Responsibility

International responsibility is a cornerstone of the international legal order which, absent any centralized enforcement agency, depends on a system of norm enforcement among its primary subjects, the States.91 “States act by and through their agents”92 and as a general rule, the conduct of private persons or entities is not attributable to the State under international law.93 Starting from the recently adopted ILC Draft Articles on State Responsibility94 as the most elaborate basis for State responsibility, there are only a few exceptions to the general rule that private conduct is not attributable to the State. Absent any State organs, the failed State could thus only be held responsible for any form of misconduct originating on its territory if one of these exceptions was applicable. Article 9 of the ILC Draft Articles provides for the attribution of private behav91

Accordingly, the principle of responsibility has been described as “[o]ne of the principles most deeply rooted in the doctrine of international law and most strongly upheld by State practice and judicial decision;” Roberto Ago, Third Report on State Responsibility, UN Doc. A/CN.4/246, YbILC, vol. 1971/II-1, 199, 205, para. 30. See also Bin Cheng, General Principles of Law, 1953, 170; Clyde Eagleton, The Responsibility of States, 1928, 5. 92 James Leslie Brierly, The Law of Nations, An Introduction to the International Law of Peace, 5th ed. 1955, 55. 93 ILC, Commentary to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), 59 (ILC Commentary), Art. 8, mn. 1. F.V. Garcia Amador, Second Report on State Responsibility, UN Doc. A/CN.4/106, YbILC, vol. 1957-II, 104, 121, paras. 1 et seq.; Haig Silvanie, Responsibility of States for Act of Insurgent Governments, AJIL, vol. 33, 1939, 78, 90; Green H. Hackworth, Responsibility of States for Damages Caused in their Territory to the Person or Property of Foreigners, AJIL, vol. 24, 1930, 514. 94 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), 43.

Failed States – Legal Aspects and Security Implications

481

ior to the State in cases in which a “person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.” Some authors have deduced the responsibility of failed States based on a strict adherence to the wording of this article.95 The provision, however, was primarily intended to cover transitional situations such as the period following a revolution or an occupation, in which governmental authority is present at least to some minor degree.96 In order to come within the scope of Article 9, the non-State actors have to exercise “elements of governmental authority,”97 which is hardly true if warring factions are striving for economic gain. Moreover, the commentary of the ILC clearly indicates that “[t]he cases envisaged by Article 9 presuppose the existence of a government in office and of State machinery whose place is taken by irregulars or whose action is supplemented in certain cases.”98 This reading is supported by the wording “elements” which implies that governmental authority is absent only in certain fields which are thus occupied by private actors. Accordingly, already in 1991 the special representative to Afghanistan reported that “[t]he fact that substantial portions of the territory are not controlled by the Government accounts for a lack of international legal responsibility.”99 It is for this reason that the ILC Commentary, which is dated August 2001, entails no reference to Somalia or Afghanistan. Rather, the case of the Iranian revolutionary guards, which subsequent to the Iranian revolution 95

David Bodansky/John R. Crook, The ILC’s State Responsibility Articles, AJIL, vol. 96, 2002, 773, 783. Bodansky states that “in failed or poorly functioning States, Art. 9 provides for State responsibility if nonstate-actors step in to perform governmental functions in the absence or default of official authority.” Similar Thürer (note 6), 32. 96 The ILC Commentary refers to such transitional periods in referring to cases “where the regular authorities dissolve, are disintegrating, have been suppressed […]. They may also cover cases where lawful authority is being gradually restored, e.g. after foreign occupation.” ILC Commentary (note 93), Art. 9, mn. 1. 97 See also Report of the International Law Commission on the Work of its TwentySixth Session, UN Doc. A/9610/Rev.1, YbILC, vol. 1974/II-1, 157, 285, para. 11. The nature of the acts performed is decisive, ILC Commentary (note 93), Art. 9, mn. 4. 98 ILC Commentary (note 93), Art. 9, mn. 4. 99 UN Doc. A/46/606 (1991), para. 25; however this quote has to be read in the context of para. 28: “Legally speaking, so long as there is no other central Afghan Government recognized by the United Nations, the current one is to be held internationally responsible for the aforementioned situation.”

482

Robin Geiss

took over responsibility for immigration issues and toll enforcement at the Teheran airport, merely serves as an illuminating example.100 This guiding example hardly allows any analogies to the failed State scenario where the performance of the most basic governmental functions is at issue and the failed State, thus, is not a case “such as to call for the exercise of those elements of authority.” As if to confirm this reading, the Iran US Claims Tribunal, in the case Yeager v. Islamic Republic of Iran, stipulated that “the Revolutionary Guards were exercising governmental authority with the knowledge and acquiescence of the revolutionary Government, which made Iran liable for their acts.”101 It would seem more plausible to deduce responsibility of the failed State from Article 10 para. 1 of the ILC Draft Articles, which attributes the conduct of an insurrectional movement which becomes the new government of a State to that State.102 The provision is based on the concept of continuity which ensures stability in international relations.103 The assumption on which Article 10 para. 1 of the ILC Draft Articles is based found expression already in the Bolívar Railway Claim, where it was stated that “the nation is responsible for the obligations of a successful revolution from the beginning, because, in theory, it represented ab initio a changing national will, crystallizing in the finally successful re100 Iran-US Claims Tribunal, Yeager v. Islamic Republic of Iran, Iran-US Claims Tribunal Reports, vol. 4, 1987, paras. 42–48. 101 Id., para. 43: “[I]n operations of which the new Government must have had knowledge and to which it did not specifically object.” See also ILC Commentary (note 93), Art. 9, mn. 2 et seq. It is however, noteworthy, that the ILC Commentary is somewhat ambiguous in so far as with regard to the wording “in the absence or default of the official authorities,” it points out that this wording “is intended to cover both the situation of a total collapse of the State apparatus as well as cases where the official authorities are not exercising their functions in some specific respect […].” The word “default” was implemented with the intention to cover all situations, id., mn. 5. In an earlier commentary, Tomka had explained that “[a]s to the terms ‘absence or default,’ the first covers the situation where the official authorities do exist, but are not physically there at the time, and the second covers cases where they are incapable of taking any action. The combination of ‘absence or default’ was thus considered appropriate to capture all possible scenarios,” see Tomka (note 98), 13. 102 Ian Brownlie, State Responsibility, 1983, 178; Eagleton (note 91), 147. 103 The ILC has highlighted that the State “is the only subject of international law to which responsibility can be attributed. The situation requires that acts committed during the struggle for power by the apparatus of the insurrectional movement should be attributable to the State, alongside acts of the then established government.” ILC Commentary (note 93), Art. 10, mn. 5; Inter-American Court of Human Rights (IACHR), Velásquez Rodríguez Case (Commission v. Honduras), Judgment of 29 July 1988, Ser. C, No. 4, para. 184.

Failed States – Legal Aspects and Security Implications

483

volt.”104 As long as the existing government prevails, it is responsible for its own actions and the conduct attributable to it. If, however, an insurrectional movement finds widespread support within a country and thus replaces the former government, Article 10 para. 1 ensures this new government’s responsibility for acts committed ex ante as an insurrectional movement.105 Again, the failed State scenario is not easily subsumed under such assumptions. A great variety of parties that strive for anything but the public interest, and consequently the absence of nearly any possibility to pursue political self-determination for the population, run counter to the underlying assumption of Article 10 para. 1 ILC Draft Articles that a prevailing faction would represent the will of the people. So as to ensure this general assumption, the insurrectional movements envisaged by Article 10 para. 1 ILC Draft Articles have to meet certain organizational standards, similar to the ones entailed in Additional Protocol II to the Geneva Conventions106 – a standard which, as has been indicated above, the warring factions in a failed State typically fail to meet. Furthermore, it is a typical feature of the failed State scenario that no single party manages to prevail and that, if peace is ever to be achieved, a number of factions have to be engaged in the peace process and are likely to be represented in any newly established government.107 In the course of the drafting process of the articles on State responsibility the ILC, however, expressed the clear intention that there should be no responsibility in cases in which the new government consisted of

104 Bolívar Railway Co. Claim (United Kingdom v. Venezuela), RIAA, vol. 9, 445, 453; Jackson H. Ralston, The Law and Procedure of International Tribunals: Being a Résumé of the Views of Arbitrators upon Questions arising under the Law of Nations and of the Procedure and Practice of International Courts, 1926, 343. Schwarzenberger is more skeptical, stating that “[t]his is no more than an empty fiction in the verbiage of political philosophy.” Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol. I, 1945, 628. 105 ILC Commentary (note 93), Art. 10, mn. 4. 106 Sambiaggio Case (Italy v. Venezuela), RIAA, vol. 10, 499, 507; General Claims Commission of 1923, US and Mexico, Opinions of Commissioners, 1927, reprinted in: AJIL, vol. 21, 1927, 160; Silvanie (note 93), 78, 85. 107 Joachim Wolf, Die gegenwärtige Entwicklung der Lehre über die völkerrechtliche Verantwortlichkeit der Staaten, ZaöRV, vol. 43, 1983, 481, 512. In order to enhance national reconciliation and guarantee a minimum of stability, it is usually mandatory to involve various parties in the new government; see Michael Akehurst, State Responsibility for the Wrongful Acts of Rebels, BYIL, vol. 43, 1968, 49, 60.

484

Robin Geiss

different parties.108 Although this to some degree constitutes a departure from the principle of continuity, the ILC justified this exception by arguing that any other approach would likely endanger the national peace process and that fragile States which have emerged from a time of profound crisis and are still in the midst of a transitional process should not be burdened with any form of international responsibility.109 There is thus little prospect that a failed State could ever be held responsible for misconduct occurring in the period of absence of governmental authority. This outcome is quite similar to the application of the so called clean slate rule to newly independent States,110 which the ILC justified on the basis of the law of self-determination.111 Given the inherent paralysis of any exercise of the right of self-determination through the people of a failed State, there is thus a comparable argument to be made here, in that whatever harmful conduct takes place in a failed State scenario, it does not represent the national will.112 While the absence of responsibility can thus be explained on legal as well as pragmatic grounds, the fact remains that international responsibility, a cornerstone of stability of the international system as a whole, is nonexistent in a failed State situation.113

108

Report of the International Law Commission on the Work of its Fiftieth Session, UN Doc. A/53/10, YbILC, vol. 1998-II, 1, 85, para. 416. 109 Id. “The State should not be made responsible for the conduct of a violent opposition movement merely because, in the interests of an overall peace settlement, elements of the opposition are drawn into a reconstructed government. Thus the criterion of application of paragraph 1 is that of a real and substantive continuity between the former insurrectional movement and the new government it has succeeded in forming.” ILC Commentary (note 93), Art. 10, mn. 7. 110 UN Doc. A/CONF.80/4 (1977), para. 59: “The ‘clean slate’ metaphor, the Commission wished to emphasize, is merely a convenient and succinct way of referring to the newly independent State’s general freedom from obligation in respect of its predecessor’s treaties.” See also Art. 38 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 8 April 1983, reprinted in: ILM, vol. 23, 1983, 306. 111 Report of the International Law Commission on the Work of its Thirty-First Session, UN Doc. A/34/10, YbILC, vol. 1979/II-2, 1, 30, Art. 11, mn. 3. 112 Bolívar Railway Co. Claim (note 104), 445, 453. See also Ralston (note 104), 343 et seq. 113 In the case of a failed State, absent any form of attribution to the State, there is no necessity to recur to force majeure or a state of necessity, both of which, according to the Arts. 23 and 25 of the ILC Draft Articles, refer to an attributable act of State.

Failed States – Legal Aspects and Security Implications

485

IV. Insufficient Legal Protection of Civilians in a Failed State

Experiences in the past have proven that gross violations of fundamental human rights, a common symptom of the failed State, impose a major obstacle for national reconciliation and significantly diminish the prospects for a peaceful solution of the conflict. An analysis of a failed State’s implications for international peace thus demands, apart from the evident factual violations that persist in such States, a consideration of the legal framework for the protection of civilians. 1. Human Rights Protection in the Absence of Governmental Authority The traditional concept of human rights is focused on the status negativus, i.e. the protection of individuals from the State. The universal bill of human rights as well as subsequent human rights treaties refer to State jurisdiction and depend on governmental structures so as to implement their provisions.114 Absent any governmental structures, State actions are no longer performed and the fundamental presumption of human rights law, that there is an omnipresent Leviathan the power of which must be restrained by virtue of human rights, is void in light of the prevalence of anarchy in a failed State situation. Accordingly, the UN Commission on Human Rights summarized its findings on the situation in Somalia, stating that “without a central administrative structure it is not possible to lay down the foundations of a permanent program of human rights for Somalia.”115 It is also for this reason that the Republic of Moldavia and Azerbaijan, on the occasion of their accession to the European Convention on Human 114

Special Rapporteur Ermacora confirmed this assumption in his report on Afghanistan in February 1994, where he stated: “Although Afghanistan is a party to various international human rights instruments […], there is still no administration which could be able to guarantee human rights as enshrined in the above-mentioned instruments. The adherence of a Government to international human rights instruments has no practical value in such a situation,” UN Doc. E/CN.4/1994/53, para. 44. With regard to the year 1995, Ermacora went on to stipulate: “[T]he respect of human rights depends on the existence of an effective government which can guarantee the enjoyment of human rights and which is able to protect any individual in the country against the infringement of his or her human rights by whomever it may be,” UN Doc. E/CN.4/1995/64, para. 20. 115 Report by the Independent Expert on the Conditions in Somalia, UN Doc. E/CN.4/ 1994/77/Add.1, para. 22.

486

Robin Geiss

Rights,116 issued reservations with regard to certain territories that were not under their effective control.117 Should suspension of human rights treaties thus be the consequence? The answer is in the negative. Human rights treaties differ from regular treaties in that there is no equivalent do ut des relationship, and the necessity to ensure continuing legal protection in times of turmoil, and in particular during times of transition when governmental structures are being re-established, prevails. This can likewise be deduced from the existence of derogation clauses, which, although they allow a certain degree of derogation in times of crisis, indicate that a core body of human rights remains applicable at all times.118 Furthermore, this outcome is in accordance with a general tendency in international law to uphold human rights treaties regardless of profound changes. The Human Rights Committee has taken this view in the context of the transfer of sovereignty over Hong Kong to the People’s Republic of China;119 in its decision of 7 October 116

European Convention for the Protection of Human Rights and Fundamental Freedom, 4 November 1950, ETS No. 5. 117 With regard to Azerbaijan, see the Declaration contained in the instrument of ratification, deposited on 15 April 2002: “The Republic of Azerbaijan declares that it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation.” The Republic of Moldavia, in its Declaration contained in the instrument of ratification, deposited on 12 September 1997, declared “that it will be unable to guarantee compliance with the provisions of the Convention in respect of omissions and acts committed by the organs of the self-proclaimed Trans-Dniester Republic within the territory actually controlled by such organs, until the conflict in the region is finally settled.” See List of declarations made with respect to Convention for the Protection of Human Rights and Fundamental Freedoms, available at: http://conventions.coe.int/ Treaty/Commun/ListeDeclarations.asp?NT=005&CM=8&CL=ENG&VL=1. See also European Court of Human Rights, Ilascu et al. v. Moldova and the Russian Federation, Decision on Admissibility of 4 July 2001, available at: http://hudoc.echr.coe.int/. 118 In this context, it is noteworthy that, although the failed State seems to constitute the prototype of a situation which could render the derogation clauses applicable, the ultimate aim and purpose of derogation is to allow a State such flexibility that internal order and the status quo ante in which human rights are fully applicable can be reestablished as soon as possible. In a failed State, which is per definitionem deprived of any means to re-establish domestic order, even the derogation clauses are thus rendered meaningless, which once more is an indication of the overall presumption that a State is always capable of at least conducting a minimum of State functions. 119 The Committee went on to declare that once the rights of the Covenant have been accorded to the people living in a territory “such protection cannot be denied to them merely by virtue of dismemberment of that territory or its coming under the sovereignty of another State or of more than one State,” UN Doc. CCPR/C/79/Add. 69 (1996),

Failed States – Legal Aspects and Security Implications

487

1992 it saw the successor States of the Socialist Federative Republic of Yugoslavia bound to the ICCPR;120 and it likewise regarded the successor States of the former USSR to be bound to such human rights treaties the USSR had previously ratified.121 A majore ad minus, it could be argued that, if even in the case of dismemberment and State succession human rights obligations that existed ex ante continue to be valid, this must also be so in cases of failed States which do not even compromise the continuity of the State.122 This then raises the question of the addressees of human rights obligations in a failed State scenario. The inherent deficiencies regarding human rights protection vis-a-vis State actions could potentially be compensated in so far as human rights obligations can be extended to non-State actors. Stabilized de facto regimes as well as insurrectional movements have acquired an accepted status under international law and today there is little doubt that they may be subject to specific obligations under international law. However, the failed State is characterized by the engagement of a great variety of different actors all of which typipara. 4; See also UN Doc. CCPR/C/SR.1178/Add.1 (1992); UN Doc. CCPR/C/SR.1200 (1992); UN Doc. CCPR/C/SR.1201 (1992); UN Doc. CCPR/C/SR. 1202 (1992). 120 Andreas Zimmermann, Staatennachfolge in völkerrechtliche Verträge – Zugleich ein Beitrag zu den Möglichkeiten und Grenzen völkerrechtlicher Kodifikation, 2000, 545; International Convenant on Civil and Political Rights, 19 December 1966, UNTS, vol. 999, 171 (ICCPR). 121 While Bosnia-Herzegovina, in its submission of 15 April 1994, argued for automatic succession to the Genocide Convention (Memorial of the Government of the Republic of Bosnia and Herzegovina, 146, available at: http://www.icj-cij.org/icjwww/ idocket/ibhy/ibhy_written_pleadings/ibhy_memorial_19940415.pdf), the International Court of Justice left the question unanswered in its decisions with regard to provisional measures as well as in its decisions regarding preliminary objections, see ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, 15 et seq., 316 et seq.; Judgment of 11 July 1996, ICJ Reports 1996, 595 et seq. See also id., Separate Opinion of Judges Shahabuddeen and Weerawantry, 595, 645. The latter expressly stressed that any gap in the application of human rights, especially in times of change, is not desirable. For a critique of these arguments see Zimmermann (note 120), 562. 122 The argument that, despite all obstacles, human rights treaties continue to be in force in the absence of governmental structures, finally finds support in Art. 60 para. 5 VCLT. This provision, which despite its seemingly restrictive wording applies to human rights treaties as well as treaties of humanitarian law, expresses the necessity of upholding human rights regimes in all times. See Egon Schwelb, Termination or Suspension of the Operation of a Treaty as a Consequence of its Breach, India Journal of International Law, vol. 7, 1967, 309, 322; Christian Feist, Kündigung, Rücktritt und Suspendierung von multilateralen Verträgen, 2001, 157.

488

Robin Geiss

cally lack the organizational structure and permanence necessary to fulfill the requirements of either a de facto regime or an insurrectional movement. The problem of warring factions that de lege lata do not meet the standards in order to gain at least partial personality under international law has long been recognized, since in the numerous internal armed conflicts throughout the world, it is commonly these actors who are responsible for the most egregious human rights violations.123 Approaches to developing a minimum humanitarian standard embrace the concept of extending human rights obligations to a greater variety of non-State actors, and recent attention to international terrorism and terrorist organizations has fueled this debate immensely.124 The desirability of any such extension notwithstanding, final consensus has yet to be reached on this issue. In this ongoing debate, the failed State could potentially figure as an exceptional case in which the threshold for binding non-State actors to human rights treaties is somewhat lower than it would otherwise be – the reason being that in the particular situation of the failed State, non-State actors do not have to overcome a hostile government anymore and in its absence they are the only actors exerting at least a minimum of control regardless of their organizational structure. These particular features have already been mentioned expressis verbis in a report of the Secretary-General on fundamental standards of humanity in which he stipulated that “non-State actors should also be held accountable under international human rights law, especially in situations where the State structures no longer exist or where States are unable or unwilling to mete out punishment for crimes committed by non-State actors.”125 While this line of ar123

UN Doc. E/CN.4/1995/2; UN Doc. E/CN.4/Sub.2/1994/56; UN Doc. E/CN.4/ 1996/80/Add.1; UN Doc. E/CN.4/1997/77/Add. 1; UN Doc. E/CN.4/1998/87/Add.1, para. 6. 124 “Modern developments of international humanitarian law, recent authoritative pronouncements […], and a respectable body of theory tend to embrace elements leading to some modification of the traditional position that private individuals or groups are not capable of violating human rights;” UN Doc. E/CN.4/Sub.2/1997/28, para. 15. A number of resolutions of the UN human rights commission have referred to gross violations of human rights perpetrated by terrorist groups. See also Theodor Meron, When do Acts of Terrorism Violate Human Rights?, Israel Yearbook on Human Rights (Isr. Y.B. Hum. Rts.), vol. 19, 1989, 274; Sompong Sucharitkul, Terrorism as an International Crime: Questions of Responsibility and Complicity, Isr. Y.B. Hum. Rts., vol. 19, 1989, 247, 249. 125 UN Doc. E/CN.4/1999/92; UN Doc. E/CN.4/1998/87, para. 64: “[I]t raises an issue of potential international concern. This will be especially true in countries where the Government has lost the ability to apprehend and punish those who commit such acts. But very serious consequences could follow from a rushed effort to address such acts

Failed States – Legal Aspects and Security Implications

489

gumentation is certainly worth considering de lege ferenda, at present the aforementioned tendencies can hardly be seen to amount to more than “signs of a certain evolution and broadening of interest.”126 Human rights, even though they remain legally in force throughout the absence of an effective government, are thus insufficient to guarantee the protection of the population. Even if considerable progress was to be achieved in the near future with regard to the extension of human rights obligations towards non-State actors, this would only be of help if the current monitoring mechanisms were adapted accordingly.127 As of now, the mechanisms available to oversee the respect for human rights depend on the consent of the respective State.128 Absent governmental structures, the security of any fact finding mission could hardly be guaranteed and even if information could be conducted – quid non –, the mobilization of shame seems of little value vis-a-vis non-State actors who, striving for sheer economic gain and regional power, have no aspiration whatsoever to acquire a good standing on the international plane. It is in this context that the UN Commission on Human Rights made a resigned statement that “the independent expert has not been able to carry out his mandate owing to the circumstances prevailing in Somalia.”129 Thus, merely the deterrent effect of the prospect of […].” See also Asbjörn Eide/Allan Rosas/Theodor Meron, Combating Lawlessness in Gray Zone Conflicts through Minimum Humanitarian Standards, AJIL, vol. 89, 1995, 215, 218. 126 UN Doc. E/CN.4/Sub.2/1997/28, para. 14; UN Doc. E/CN.4/1998/87, para. 59: “Yet these groups are not, strictly speaking, legally bound to respect the provisions of international human rights treaties which are instruments adopted by States and can only be formally acceded to or ratified by States. The supervisory mechanisms established by these treaties are not empowered to monitor or take action on reports on the activities of armed groups.” 127 See, e.g., UN Doc. E/CN.4/RES/2002/35, para. 9: “Urges all relevant human rights mechanisms and procedures, as appropriate, to address the consequences of the acts, methods and practices of terrorist groups in their forthcoming reports to the Commission […].” 128 The Secretary General, in his report, emphasized that “[t]he supervisory mechanisms established by these treaties are not empowered to monitor or take action on reports on the activities of armed groups;” UN Doc. E/CN.4/1998/87, para. 59. 129 UN Commission on Human Rights Res. 1995/56 of 3 March 1995. The Committee for the Elimination of Racial Discrimination concluded in light of the outstanding reports from Somalia: “There was little that the Committee could do since there was no Government to submit a report and nobody to represent the country […];” UN Committee on the Elimination of Racial Discrimination, UN Doc. CERD/C/SR.1114 (1995), para. 2. Finally, the Committee concluded: “Noting that there is a complete breakdown of law and order and no effective government, the committee decides that it will return

490

Robin Geiss

individual prosecution in the aftermath of such a crisis – the significance of which is subject of an ongoing discussion – provides an incentive to abstain from grave violations of human rights. Throughout the time of crisis however, the failed State strikingly slips through most of the loopholes of the current human rights regime, and human rights protection as well as mere monitoring of potential violations remain absent in the failed State. 2. The Applicability of Humanitarian Law Conflict situations in failed States differ significantly. Somalia may be taken as the worst case scenario in that a confusing diversity of warring parties, rudimentarily structured and in military terms hardly organized, competed for anything of value in the country, while far fewer parties were involved for example in the conflicts in Liberia and Afghanistan. It is thus somewhat axiomatic to assume that a failed State would almost always display a scenario of a highly unstructured conflict. On the other hand, if any of the competing parties acquired a more sophisticated organizational structure, it would most probably prevail and the conflict situation would not be so stalemated as to lead to the long-term absence of governmental authority in the first place. Departing from the worst case scenario as a typical, albeit not always present situation, common Article 3 of the four Geneva Conventions130 entails the applicable humanitarian minimum standard. In the case of Somalia this was confirmed in so far as the independent expert for Somalia, looking back at the preceding conflict in that country, reiterated that “all parties to the conflict [in Somalia] are bound by the laws and customs applicable in armed conflicts not of an international nature.”131 to review the State Party’s implementation of the International Convention once political stability has been re-established.” The Committee went on to stipulate that “[i]t did not seem fair therefore to remind Somalia of its reporting obligations under the Convention […].” 130 Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 12 August 1949, UNTS, vol. 75, 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, UNTS, vol. 75, 85; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS, vol. 75, 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 287. 131 UN Doc. E/CN.4/2000/110. See also UN Doc. E/CN.4/1999/103, para. 34; UN Doc. E/CN.4/1998/96, para. 12; UN Doc. E/CN.4/1997/88, para. 55.

Failed States – Legal Aspects and Security Implications

491

However, while it is commonly agreed that the threshold of common Article 3 is met in failed States situations, at first sight, it would not seem too far fetched to question the applicability of even this minimum standard. There is widespread consensus that minor upheavals or short-term eruptions of violence or generally any form of disorder that could still be controlled by the employment of the police do not amount to an armed conflict and remain exclusively within the sovereign jurisdiction of the respective State, which is accordingly free to choose the means of its response.132 The ICRC Commentary elaborates on this, stipulating that inter alia riots, that is to say all disturbances which from the start are not directed by a leader and have no “concerted intent,” as well as “isolated and sporadic acts of violence, as distinct from military operations carried out by armed forces or organized armed groups,” do not amount to an armed conflict in the sense of common Article 3. Given the fact that the predominant reason for the stalemated conflict in a failed State situation is the presence of unorganized groups that do not share any concerted intent other than to strive for their private gain, the applicability of common Article 3 appears indeed questionable. Such a finding could find support in a number of Security Council resolutions which described the situation in Somalia as a “proliferation of armed banditry,” a “sporadic outbreak of hostilities,”133 and qualified the conflict as a mere “civil strife.”134 If these descriptions were taken as the relevant point of departure, Somalia displayed the characteristics of an internal conflict that typically remains below the threshold of common Article 3 as described above.135 However, violence in a failed State, albeit rarelyconcerted or orga132

Theodor Meron, Human Rights in Internal Strife, Their International Protection, 1987, 47; Majorie Whiteman, Digest of International Law, vol. 10, 1968, 40; Jean Pictet, Humanitarian Law and the Protection of War Victims, 1975, 58. 133 SC Res. 775 of 28 August 1992; SC Res. 767 of 24 July 1992; SC Res. 897 of 4 February 1994: “Condemning the continued incidents in Somalia of fighting and banditry […].” 134 SC Res 814 of 26 March 1993. 135 Quite strikingly, the ICTR incidentally adopted a rather high threshold in requiring that the warring parties must be “organized as military in possession of a part of the national territory;” ICTR, Trial Chamber, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgment of 2 September 1998, para. 619, available at: http://www.ictr.org/ ENGLISH/cases/Akayesu/judgement.htm. However, the Inter-American Court of Human Rights expressly stipulated that no such territorial requirement was necessary, but that it was “important to understand that the application of Common Art. 3 does not require the existence of large-scale and generalized hostilities or a situation comparable to a civil war in which dissident armed groups exercise control over parts of national territory […].” IACHR, Tablada Case (Juan Carlos Abella v. Argentina), Case No. 11.137,

492

Robin Geiss

nized, occurs on a large scale and the failed State displays a specific feature that allows a somewhat more lenient approach with regard to the threshold of common Article 3. Absent an effective government, the failed State could not possibly respond to even the most insignificant form of internal riot.136 The fear of intrusion into a State’s domaine réservé by virtue of subjecting a State’s response to the provisions of common Article 3, which historically constituted the basis for any approach to heighten the threshold of Article 3,137 does not play out in the case of a failed State.138 Thus, the overall telos of the Geneva Conventions and in particular common Article 3, the aim to ensure a humanitarian minimum standard, prevails in favor of a less restrictive threshold in the case of a failed State, and the organizational deficiencies of the warring fractions can thus be overcome.139 Nevertheless, the regulatory density of common Article 3, which merely provides for an absolute minimum standard, is scarce. Additional Protocol II of the Geneva Conventions augments the humanitarian standard guaranteed in common Article 3, but at the same time the threshold for its applicability lies considerably higher.140 In particular, there is consensus that conflicts that take Report 55/97, para. 152; ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1, Judgment of 15 July 1999, available at: http://www.un.org/icty/cases/ jugemindex-e.htm. 136 The historical bias is reflected in the sheer number of provisions that regulate inter-State warfare in comparison to Art. 3 and the 28 Articles entailed in AP II which regulate internal armed conflicts. 137 See, e.g., the statement of the Indian delegate that “the application of draft Protocol II to internal disturbances and other such situations would be tantamount to interference with the sovereign rights and duties of States,” UN Doc. CDDH/I/SR.23, VIII, 215, 224; Georges Abi-Saab, Non-international Armed Conflicts, in: UNESCO, International Dimensions of Humanitarian Law, 1988, 227. 138 See the discussion at the diplomatic Conference in Geneva 1949, Final Record of the Diplomatic Conference of Geneva of 1949, vol. II-B, 116 et seq. See also Raymond T. Yingling/Robert W. Ginnane, The Geneva Conventions of 1949, AJIL, vol. 46, 1952, 393, 395; Pictet (note 132), 56; Dietrich Schindler, Schwierigkeiten bei der rechtlichen Qualifikation bewaffneter Konflikte, in: Jörg Stüssi-Lauterburg (ed.), Festschrift für Walter Schaufelberger, 1986, 108. 139 Common Art. 3 is thus automatically applicable, Yves Sandoz/Christophe Swinarski/Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949, 1987, para. 4438; Eide/Rosas/Meron (note 125), 215, 518. 140 David Forsythe, Legal Management of Internal War: The 1977 Protocol on NonInternational Armed Conflicts, AJIL, vol. 72, 1978, 272, 285; Aldo V. Lombardi, Bür-

Failed States – Legal Aspects and Security Implications

493

place exclusively between non-State actors are not encompassed.141 In light of the more restrictive wording of Article 1 of Additional Protocol II, de lege lata there is less room for an expansive reading on the basis of a teleological interpretation. The drafting process of the Second Additional Protocol, however, evidences a noteworthy factor in this regard that ought to be taken into consideration de lege ferenda. The International Committee of the Red Cross, in its draft of the Second Additional Protocol in 1973, proposed to extend the scope of this protocol also to cases in which the government has dissolved and in which solely non-State actors are engaged in the hostilities.142 Apparently this proposal was not endorsed at the time merely for the reason that delegations did not see its practical relevance. Now that State failure has become an ever present reality, the proposal may have to be reconsidered. It amounts to an unfortunate paradox that in those cases in which the most heinous violations of human rights and fundamental principles of humanitarian law are common features, the applicable protective legal framework is a priori limited to the absolute minimum standard. The law of The Hague, which addresses the methods and means of combat, is not applicable in internal armed conflicts, and Common Article 3 provides hardly any protection of the civilian population from the effects of hostilities. The legal vacuum in this regard can be compensated in so far as certain provisions of humanitarian law that have acquired customary law status supplement the minimum standard under common Article 3. It is noteworthy that the Appeals Chamber in the Tadi jurisdiction appeal ruled that customary rules governing internal conflict include the protection of civilians from hostilities, in particular from indiscriminate attacks, and the protection of civilian objects. Moreover, regarding the actual implementation of any such provisions, pragmatic obstacles remain since the anarchic conflict structure of a failed State, in which unorganized militia gerkrieg und Völkerrecht, 1976, 97; Yves Sandoz, Le droit d’initiative du Comité international de la Croix-Rouge, GYIL, vol. 22, 1979, 366. 141 Sandoz/Swinarski/Zimmermann (note 139), para. 4460; Michael Bothe/Karl Josef Partsch/Waldemar Solf, New Rules for Victims of Armed Conflicts, 1982, 627; Dietrich Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, RdC, vol. 163, 1979, 121, 148; Frits Kalshoven, Reaffirmation and development of international humanitarian law applicable in armed conflicts: The Diplomatic Conference, Geneva 1974–77, Netherlands Yearbook of International Law, vol. 8, 1977, 107, 112; Abi-Saab (note 137), 228; Lindsay Moir, The Law of Internal Armed Conflict, 2002, 104. 142 ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentaries, 132; see also Sandoz/Swinarski/Zimmermann (note 139), para. 4461.

494

Robin Geiss

without any uniform or any kind of distinguishing emblem can hardly be distinguished from local civilians and the large numbers of internally displaced persons,143 entails additional challenges in this context. As regards the customary law status of provisions under the Second Additional Protocol, despite a number of studies that suggest a widespread State practice on the basis of an according opinio iuris,144 there is hardly any reference as to whether the threshold for the applicability of said provisions has been simultaneously lowered by virtue of customary law. Given the absence of any form of effective human rights protection, it is thus predominantly common Article 3 which guarantees a bare humanitarian minimum standard in a failed State. D. The Failed State as a Threat to the Peace Since the Security Council has taken some innovative paths vis-a-vis the definition of what constitutes a threat to the peace – arguably to the extent that a threat to the peace today amounts to “whatever situations can command an affirmative vote of the Council”145 –, the scope of situations in which Chapter VII measures may be employed has grown significantly. Even though State failure has not been anticipated within the terms of the Charter – Article 78 UNC evidences that the trusteeship council was intended to become obsolete from the

143

Marco Sassoli/Antoine A. Bouvier, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, 1999, 485. 144 ICTR, Tadi (note 135), para. 117: “Many provisions of [Additional Protocol II] can now be regarded as declaratory of existing rules or as having crystallized emerging rules of customary law.” See also ICTR, Akayesu (note 135), para. 610; and the Report of the Representative of the Secretary-General, Francis Deng, UN Doc. E/CN.4/ 1998/53/Add.1, para. 68: “There is wide consensus that the key provisions of the four Geneva Conventions and the two Additional Protocols have acquired the status of rules of general or customary international law binding on all States.” A more careful approach towards the customary law status of AP II, however, is adopted by Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in: Astrid J. M. Delissen/Tanja J. Gerard (eds.), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven, 1991, 93, 144. 145 Andreas Lowenfeld, Unilateral Versus Collective Sanctions: An American Perspective, in: Vera Gowlland-Debbas (ed.), United Nations Sanctions and International Law, 2001, 96.

Failed States – Legal Aspects and Security Implications

495

beginning,146 – it is noteworthy that during the San Francisco Conference, Norway proposed an amendment of the Chapter VII enforcement powers according to which the Council should have the power to temporarily assume the administration of a territory if administration by the occupant State represented a threat to the peace. While the proposal was not rejected on grounds of its substance, at San Francisco it was agreed that mentioning any specific powers could subsequently allow the interpretation that other powers not listed were implicitly excluded. Although Boutros Boutros-Ghali in 1995 still endorsed a rather cautious approach with regard to the UN’s role in assuming responsibility for law and order,147 today there remains hardly any doubt that the Security Council has the power to authorize transitional administrations. The governance of Kosovo has been placed under the auspices of the United Nations,148 UNTAET was granted overall responsibility for the administration of East Timor, a mandate which is partially continued by UNMISET;149 by virtue of Resolution 1483 of 22 May 2003 the Security Council authorized the civil administration of Iraq through the occupying powers; and somewhat less comprehensive mandates have been assigned to the United Nations Transitional Administration for Eastern Slavonia150 and the High Representative for Bosnia-Herzegovina. While it has thus come to be accepted that Article 41 UNC entails the Security Council’s power to authorize a civil administration in all its aspects of either a State or territory, State failure in and of itself has so far not been regarded as a threat to the peace within the meaning of Article 39 UNC. This raises two questions. First, whether it would fall within the discretion of the Security Council to determine that State failure, characterized by the absence of government and a paralysis of any form of internal self-determination, poses a

146

It has been pointed out elsewhere that the type of administration provided by UNMIK, UNTAET and UNMISET closely resembles the trusteeship system and that the provisions of Chapter XII UNC do not imply that this constitutes a conclusive set of rules precluding the exercise of administrative authority in any other form: Erika de Wet, The Chapter VII Powers of the United Nations Security Council, 2004, 318. 147 Supplement to an Agenda for Peace (note 20), paras. 13–14. 148 SC Res. 1244 of 10 June 1999, para. 19. 149 SC Res. 1410 of 17 May 2002. 150 Generally see Ralph Wilde, From Danzig to East Timor and Beyond: The Role of International Territorial Administration, AJIL, vol. 95, 2001, 583 et seq.

496

Robin Geiss

threat to the peace. Second, if the first question was to be answered in the affirmative, whether the Security Council should in fact do so. The notion of a threat to the peace has not been defined in the Charter and a systematic interpretation thereof is not conclusive with regard to the question if and in how far the Security Council’s discretion to determine any given situation as a threat to the peace is limited. While for example the very constitution of the Council as well as the distribution of voting power within the Security Council indicate a mere political nature of any Article 39 UNC determination, the differentiation of degrees of intensity entailed in Article 39 UNC that could potentially open up Chapter VII imply that the Council does not have unbound discretion, which in any case would distort the balance of competencies between the different UN organs and potentially ascribe to the Security Council a role it was never intended to assume. On a substantive level the debate circles around the question whether peace in the sense of Article 39 UNC is solely to be understood as the absence of armed conflict between States or whether, departing from a broader definition of peace, social, political and economic conditions may be taken into consideration as well. The vast majority of Security Council resolutions dealing with internal conflict situations – for example resolutions dealing with the situation of the Kurds in Iraq,151 with Yugoslavia,152 Albania,153 Kosovo,154 Liberia,155 Rwanda,156 Sierra Leone157 – have made explicit reference to the implications for neighboring countries and the stability of the region, thus embracing the narrower concept of a negative definition of peace. Somalia is commonly cited as the only instance in which the Security Council has deviated from this practice, by determining solely the humanitarian situation in combination with the unique situation of the absence of governmental authority to constitute a threat to the peace. 151

SC Res. 688 of 5 May 1991: “Gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq, including most recently in the Kurdishpopulated areas, the consequences of which threaten international peace and security in the region […].” 152 See only SC Res. 713 of 25 September 1991. 153 SC Res. 1101 of 28 March 1997. 154 SC Res. 1199 of 23 September 1998. 155 SC Res. 788 of 19 November 1992. 156 SC Res. 918 of 17 May 1994. 157 SC Res. 1132 of 8 October 1997.

Failed States – Legal Aspects and Security Implications

497

However, it seems doubtful whether this indeed constitutes an exception to an otherwise coherent practice of the Security Council if, on the basis of the foregoing analysis, one takes into account that the phenomenon of State failure inherently and ipso facto entails far reaching implications for the regional and international stability and is thus synonymous with a situation that could potentially result in international armed conflict. International dialogue is impossible, treaty obligations as well as obligations imposed by the Security Council so as to counter a threat to the peace remain unfulfilled, State responsibility, a cornerstone of international stability, is absent and the peaceful solution of disputes impossible, given the lack of any representative organs of a failed State. Furthermore, the failed State is incapable of conforming even with such norms of human rights law as have acquired the status of ius cogens and that are binding erga omnes. Any power vacuum, especially in a region where boundaries have been under constant dispute, ipso facto endangers the stability of the respective region. The European Security Strategy emphasizes that “State failure is an alarming phenomenon, that undermines global governance, and adds to regional instability”158 and it is therefore the case that even in Somalia, the international dimension of the conflict, albeit not explicitly mentioned in Resolution 794, was nevertheless taken into consideration throughout the drafting stages of this resolution as well as in subsequent resolutions. State failure can thus already be encompassed under the negative definition of peace and raises no particular problems with regard to the extent of the Security Council’s discretion under Article 39 UNC. On this basis, the question remains whether State failure could be referred to as the single decisive criterion to establish a threat to the peace or whether additional criteria, namely its common symptoms such as gross human rights violations and large refugee flows, demand simultaneous consideration. More specifically, this is the question whether State failure in and of itself already poses a concrete threat before the human tragedy ultimately reaches an intolerable extent that can no longer be ignored. The answer to this question is inter-linked with and depends on the ability of the Security Council to take preventive action. The wording of Article 24 paragraph 1 UNC – “prompt and effective action” – has been emphasized in support of a restrictive approach according to which the Security Council was intended to merely react to an actual crisis. Al158

European Security Strategy (note 2), 4.

498

Robin Geiss

though the wording “threat” in Article 39 UNC accords a degree of flexibility to the Security Council which is also supported by the reference to the maintenance of peace in distinction to the restoration of peace, an overly broad discretion to take preventive action could potentially introduce a positive peace concept through the backdoor, since on the basis of a hypothetical chain of causation an endless number of factors including economic, social or political ones could potentially provoke international unrest in the distant future. While acknowledging these legitimate concerns, it is noteworthy that State failure entails specific features which allow for a much more concrete prognosis. State failure is a vicious circle given that the collapse of governmental structures is accompanied by a stalemated conflict and a prolonged paralysis of the right to internal self-determination. While the country is incapable of reorganizing itself it is simultaneously not in a position to request or consent to any form of outside assistance. Thus absent any prospect of restoration, the situation is far more likely to deteriorate than to solve itself. Over time criminal activities as well as human rights violations will grow in the absence of any authority, which in turn further diminishes a society’s ability to reconstruct its governmental structures. It is on this basis that the European Security Strategy emphasizes that “State failure and organized crime spread if they are neglected.”159 Moreover, the failed State is per definitionem incapable of tackling any form of terrorist activity within its territory. In the case of Libya as well as Sudan and Afghanistan, the Security Council has already determined these States’ unwillingness to adequately counter terrorist activities as a threat to the peace. More recently, the Security Council has referred to more abstract notions such as the concept of terrorism itself as well as the possibility of prosecution through the ICC, in its resolutions 1422 and 1487, as threats to the peace within the scope of Article 39 UNC. While the degree of abstraction and in particular the far ranging measures entailed in these latter resolutions have received significant critique throughout the literature, a majore ad minus they allow the conclusion that as long as State failure is taken into consideration not in abstracto but in view of specific events in a particular State, this would be a situation specific enough so as to constitute a threat to the peace. Regarding then the question whether the Security Council should in fact do so, the line of argumentation is twofold. Given that a situation of State failure is much more likely to deteriorate than to solve itself, it is rather obvious that at 159

Id., 7.

Failed States – Legal Aspects and Security Implications

499

some point the international community will inevitably have to intervene in one way or the other. The question thus is not whether the strategy of intervention should be pursued at all vis-à-vis failed States, but rather when intervention should take place. Viewing State failure and not merely the human tragedy as the basis of a threat to the peace would as a first step provide at least the legal basis irrespective of the actual political will for a timely intervention on a multilateral basis. From the outset, the paradox that, while in failed State scenarios humanitarian action becomes ever more urgent, it simultaneously becomes ever more difficult to provide, could be avoided. Establishing a civil administration seems the only means by which at least a minimum standard of human rights could be rendered applicable and on the basis of which a meaningful exercise of the right to internal self-determination would have a reasonable prospect in the future. Departing from State failure as a threat to the peace would from the outset allow the Security Council to authorize a broadly mandated peace-keeping force that could tackle the situation comprehensively, while waiting to take action would most likely increase the costs and duration of an intervention that at some point will become unavoidable. The European Security Strategy, accordingly, embraces a general concept of prevention in stating that “we should be ready to act before a crisis occurs. Conflict prevention and threat prevention cannot start too early.”160 On a more conceptual level, the argument for a timely intervention based on State failure as a threat to the peace gains support from the fact that States have come to view State failure and the factors inherently attached to it, namely the phenomenon of international terrorism, as a considerable threat to their security. Tendencies to tackle specific threats originating on the territory of a failed State unilaterally are on the increase and the absence of governmental authority provides a welcome basis for those arguing in favor of the legitimacy of unilateral action. The sovereignty of these States has been disputed or viewed to be suspended,161 arguments in favor of the presumption of a consenting will of the population stand in stark contrast to the principle that consent under international law needs to be expressed clearly and explicitly,162 arguing in favor 160

Id., 7. Fowler/Bunck (note 52). Similar Baehr (note 52). Generally see Alexandros Yannis, The Concept of Suspended Sovereignty in International Law and its Implications in International Politics, European Journal of International Law, vol. 13, 2002, 1037–1052. 162 The ILC Commentary on Art. 20 points out that consent “must be actually expressed by the State rather than merely presumed on the basis that the State would have consented if it had been asked.” ILC Commentary (note 93), Art. 20, mn. 6. 161

500

Robin Geiss

of a teleological restriction of the prohibition of the use of force entailed in Article 2 para. 4 UNC does not seem as far fetched as it otherwise would, and specifically Article 51 UNC has been interpreted quite extensively with regard to particular threats originating from the territory of a failed State. A systematic interpretation as well as the wording of Article 51 UNC indicate quite clearly that collective action authorized by the Security Council for the sake of international peace prevails over the unilateral use of force. However, a system of collective security can only be upheld as long as legitimate security concerns of individual States are taken into account and as long as there is at least a legal possibility to trigger collective action in a timely fashion. Furthermore, it should be kept in mind that even if specific threats were to be allowed to and could in fact be removed unilaterally, they merely constitute the symptoms of the underlying problem of State failure and without the removal of their roots, i.e. the reestablishment of governmental structures, they are likely to reoccur in the future, thus prompting unilateral action again and again. Dealing with situations that call for a substitution of governmental functions has proven to be a highly complex, costly and time consuming issue, which can be approached successfully only through the engagement of the international community as a whole. E. Conclusion There is evidently a strong moral argument to be made in favor of restraining the Behemoth unleashed in failed State scenarios by all means and as quickly as possible in light of the seemingly inescapable atrocities human beings tend to inflict on each other absent any instances of control. Indeed, the unfortunate wealth of experiences in the past seems to support Hobbes’ views of human nature as homo homine lupus. Moreover, legally the failed State runs counter to the very essence of international law which for the sake of sustainable peace regulates the interactions of States, its original subjects which already by definition must be capable of interacting with each other. While the immediate period following the end of the cold war may have been somewhat more lenient in allowing the international community to tacitly ignore the inability of certain States to perform basic State functions and to interact on the international level, this no longer holds true. State failure has far reaching implications for international peace, the awareness of which, together with a global concern for

Failed States – Legal Aspects and Security Implications

501

fundamental human rights, has risen significantly in the recent past. The security strategies of Europe and the United States have incorporated these concerns into their preventive policies accordingly. Many of the features and symptoms of State failure have come to be accepted as factors that potentially constitute a threat to the peace, and experiences from the past suggest that at some point in time, military intervention will become unavoidable. Given a failed State’s complex implications for international peace and stability in combination with its inherent inability to reorganize itself without outside intervention, the foregoing study suggests that the prerequisites for collective intervention under Chapter VII of the UN Charter are already met once the defining criteria of State failure are present.

Outsourcing War – Private Military Companies and International Humanitarian Law By Nicki Boldt A. Introduction War, in a non-technical sense, implies continuous fighting conducted by organized militaries which engage the responsibility of governments.1 Outsourcing means purchasing a significant percentage of intermediate components or services from outside suppliers.2 Outsourcing war therefore means purchasing needed military components and services from so called private military companies (PMCs).3 Today, outsourcing of military functions by States like the United States of America or the United Kingdom has reached a scale that was not predictable ten years before. From 1994 to 2002, the US Defense Department entered into over 3,000 contracts with US-based PMCs with a value of more than $ 300 billion.4 These figures will rise to new unknown heights in 2003 and 2004 due to the conflict in Iraq.5 A third of the US budget for the war in Iraq is reportedly spent

1

Lothar Kotzsch, The Concept of War in Contemporary History and International Law, 1956, 56. 2 Gretchen Morgenson/Campbell R. Harvey, The New York Times Dictionary of Money and Investing, 2002. 3 Often known as Private Military Contractors, Private Military Firms or Private Security Companies. 4 According to Laura Peterson from The Center for Public Integrity, Privatizing Combat, The New World Order, 2002, available at: http://www.publicintegrity.org/bow/ report.aspx?aid=148. 5 International Committee of the Red Cross (ICRC), The ICRC Is to Expand Contacts With Private Military and Security Companies, 2004, available at: http://www. icrc.org/Web/Eng/siteeng0.nsf/iwpList74/21414DE8FCAF2645C1256EE50038A631; Peterson (note 4).

Private Military Companies and International Humanitarian Law

503

on PMC services.6 According to Paul Bremer, former head of the Coalition Provisional Authority (CPA), there are more than 20,000 military contractors in Iraq working for the US or firms employed by the US.7 The term contractor is used in this article in the same way as used in the US military,8 to mean employees of PMCs. The fact that the list Paul Bremer presented includes neither CACI nor Titan, two PMCs infamous because of their involvement in the Abu Ghraib scandal,9 suggests that the actual figures are even higher.10 As there are about 145,000 soldiers in Iraq11 this means a ratio of at least one contractor to seven soldiers. During the Gulf War of 1991 there were 9,178 contractors and approximately 500,000 soldiers in Iraq,12 a proportion of roughly one to fifty-four. According to official statements of different sources, it is possible that in the near future PMCs could even work without the involvement of State military and soldiers at all, for example carrying out United Nations peacekeeping operations.13 These figures show that the privatization of military functions is moving forward at a great speed and probably will move on even faster in the future. That growth in numbers is accompanied by a change in the nature of outsourced tasks.14 While formerly civilians used to 6

David Leigh, Who Commands the Private Soldiers?, The Guardian, 17 May 2004. CPA, Discussion Paper, Private Security Companies Operating in Iraq, attachment to a letter dated 4 May 2004 from Secretary Rumsfeld to Representative Ike Skelton, available at: http://www.house.gov/skelton/pr040504a.htm (Rumsfeld Letter). 8 See Lisa L. Turner/Lynn G. Norton, Civilians at the Tip of the Spear, The Air Force Law Review (AFLR), vol. 51, 2001, 1, 3. 9 See Julian Borger, US Military in Torture Scandal, The Guardian, 30 April 2004; Jonathan Groner, Untested Law Key in Iraqi Abuse Scandal, Legal Times, 11 May 2004. 10 Deborah Avant, What are Those Contractors Doing in Iraq?, Washington Post, 9 May 2004. 11 Congressional Research Service, Iraq: U.S. Regime Change Efforts and PostSaddam Governance, RL31339, updated 7 January 2004, 28, available at: http://www. usembassy.at/en/download/pdf/iraq_change.pdf. 12 US Government Accounting Office, DoD Force Mix Issues: Greater Reliance on Civilians in Support Roles Could Provide Significant Benefits, Pub. GAO/NSIAD-95-5, 1994, http://www.gao.gov/archive/1995/ns95005.pdf. 13 See UN Press Release SG/SM/6613 (26 June 1998); UK Foreign and Commonwealth Office, Green Paper, Private Military Companies: Options for Regulation, 2002, 19 et seq. (UK Green Paper). 14 Doug Brooks, A New Twist on a Long Military Tradition, The Boston Globe, 19 October 2003; Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubicon? – Role of Civilians Under the Laws of Armed Conflict, AFLR, 7

504

Nicki Boldt

serve in support positions behind the lines, today they accompany the troops at the frontline or take over dangerous security missions.15 In many cases where reality changes that fast, it is unclear how to apply the relevant laws and regulations to the new situation. As PMCs, through outsourcing, participate in military operations and thereby get more or less close to actual combat, the law that has to be applied, inter alia, is the law of armed conflict or international humanitarian law (IHL).16 The question this article tries to answer is whether the norms of that body of law are able to solve the problems arising out of the expansion of the private military industry. One problem regarding PMCs and IHL is the status of military contractors under that law. This problem, on which the ICRC does not take a position,17 gained relevance in February 2003 when Colombian rebels captured three employees of California Microwave Systems whose military intelligence plane had crashed in rebel territory on a mission for the US Defense Department.18 The legal status of the contractors was unclear, as were the rights, obligations and options of the involved countries.19 Another problem is that of enforcement possibilities provided by IHL against PMCs. This issue became pertinent lately when the US PMC that won the $ 250 million contract for re-establishing the Iraqi police forces was DynCorp, which previously carried out various other operations for the US administration, for example in Colombia, Kosovo and Bosnia.20 In two of its previous assignments, some DynCorp contractors had been accused of perverse inhuman behavior and

vol. 51, 2001, 111, 117; Steven J. Zamparelli, Contractors on the Battlefield – What Have We Signed up for?, Air Force Journal of Logistics, vol. 23, No. 3, 1999, 11, 14. 15 Id. 16 For the applicability of IHL in international and non-international armed conflicts see Christopher Greenwood, Scope of Application of Humanitarian Law, in: Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995, 39. 17 ICRC (note 5). 18 Scott Wilson, Colombian Rebels Kill U.S. Civilian – Three Still Missing after Crash, Washington Post, 15 February 2003. 19 Peter Warren Singer, War, Profits and the Vacuum of Law: Privatized Military Firms and International Law, Columbia Journal of Transnational Law (Colum. J. Transnat’l L.), vol. 42, 2004, 521, 522. 20 Antony Barnett, Battle for Iraq: Scandal-Hit U.S. Firm Wins Key Contracts, The Observer, 13 April 2003.

Private Military Companies and International Humanitarian Law

505

of colluding in the black market trade of women, children and weapons.21 None of them was ever criminally prosecuted.22 A better known case is the recent Abu Ghraib scandal, where at least two contractors were responsible for abuses of Iraqi prisoners.23 Whether they will be prosecuted is uncertain due to jurisdictional problems under Iraqi and US laws.24 There are many other problems with PMC activities, such as the diversity of possible customers including private entities, threats to State sovereignty or the possible destabilization of regions,25 but this article, by reviewing just the two most obvious problems presented above, will try to answer whether IHL can provide legal solutions to the problems arising from the expanding presence of PMCs. B. Possible Fields of Engagement for PMCs Before attempting to address the legal problems raised by the activities of PMCs, it is important to identify the different fields of activity PMCs are or could be engaged in. At least four fields of engagement26 can be distinguished which could be used as a general guideline for analyzing PMC activities. These fields are the support of military activities, advising and training of States’ military, security services and active participation in combat operations.27 21

John Crewdson, Sex Scandal Still Haunts DynCorp, Chicago Tribune, 19 April 2003; Peterson (note 4). 22 Peterson (note 4); Singer (note 19), 525. 23 See Antonio M. Tabuga, Art. 15-6 Investigation of 800th Military Police Brigade, U.S. Army Report on Abuse of Iraqi Prisoners, 48, available at: http://scoop.agonist. org/annex/taguba.htm. 24 Borger (note 9); Groner (note 9). 25 See UK Green Paper (note 13); Robert Raasveldt, Accountability Problems for Private Military Companies, Humanitäres Völkerrecht – Informationsschriften, vol. 17, 2004, 187; Juan Carlos Zarate, The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder, Stanford Journal of International Law, vol. 34, 1998, 75, 145 et seq. 26 The concept used here to make a distinction can also be found in Yves Sandoz, Perspectives on Suitable Policy Frameworks, in: International Alert (ed.), The Privatisation of Security: Framing a Conflict Prevention and Peace Building Policy Agenda, 2001, 17. 27 Support, advice and security services can be provided in non-hostile environments, but only services provided in hostile environments, like Afghanistan or Iraq, are likely to raise questions of IHL.

506

Nicki Boldt

I. Support of Military Activities

The first field of activity PMCs could engage in is military support. There is a vast range of possible support activities, the only common element of which is that PMCs do not provide combat abilities. The first nearly classical opportunity for outsourcing military support functions is to provide facility management services for the construction of buildings, cooking, washing and cleaning, and communication.28 The US Marine Corps, for example, outsourced 1,100 cook positions in 2001.29 Kellogg Brown and Root (KBR), a PMC subsidiary of Halliburton, is said to provide the US forces in the Balkans and in Iraq with everything from construction services to water purification, mail delivery and the repatriation of bodies.30 Another service provided by PMCs not linked to combat is after-combat know-how. SPA-International, for example, provided scientists to help investigate the biological and chemical weapons capacity of Saddam Hussein,31 and firms like Minetec specialize in demining operations.32 But possible support services also include activities that are more significant for the immediate fighting capability of the troops, such as the maintenance of high-tech weapons systems.33 The US, for example, has outsourced the maintenance and administration of strategic weapons such as the B-2 stealth bomber, the KC-10 refueling aircraft and many surface warships,34 while the UK has out-

28 Brooks (note 14); Jean-Fraçois Quéguiner, Direct Participation in Hostilities Under International Humanitarian Law, 2003, available at: http://www.ihlresearch.org/ihl/ feature.php?a=42. 29 Gordon Lubold, Privatization Means Fewer Corps Cooks, Marine Corps Times, 8 January 2001. 30 See US Government Accounting Office, Report to the Chairman, Contingency Operations, Army Should Do More to Control Contract Cost in the Balkans, GAO/NSIAD00-225, 2000, 3, available at: http://www.gao.gov/archive/2000/ns00225.pdf; UK Green Paper (note 13), 8; Brooks (note 14); Peter Warren Singer, Corporate Warriors: The Rise of the Privatized Military Industry, 2003, 143 et seq. 31 Ariana Eunjung Cha/Renae Merle, Line Increasingly Blurred Between Soldiers and Civilian Contractors, Washington Post, 13 May 2004. 32 UK Green Paper (note 13), 8. 33 Guillory (14), 123 et seq.; Zamparelli (note 14), 14. 34 US Department of Defence, Improving the Combat Edge Through Outsourcing, 1996, 19, available at: http://www.acq.osd.mil/installation/docs/out_rpt.pdf; Kenneth Bredemeier, Thousands of Private Contractors Support U.S. Forces in Persian Gulf, Washington Post, 3 March 2003; Zamparelli (note 14), 11, 13.

Private Military Companies and International Humanitarian Law

507

sourced the entire Royal Navy’s aircraft support.35 The US Army has implemented the “habitual relationship” concept, which is supposed to guarantee full weapons systems support through PMCs “from the factory to the foxhole.”36 Examples include the Prime Vendor Support Program for the AH-64 Apache attack helicopter37 and the program for the Patriot missile system, where technicians are available even in combat situations to solve technical problems immediately.38 Contractors are even needed to operate some high-tech systems personally, as only they have the appropriate training to do so.39 Until 2000 the Predator drone flying surveillance missions in Bosnia were operated by military personnel and contractors alike.40 That practice was stopped in Afghanistan when Predators were armed with hellfire missiles,41 but it continues with the Global Hawk surveillance drone operated by Northrop Grumman contractors.42 But even if not armed, the operation of those drones could be of crucial importance for the outcome of battles, for example by locating fleeing targets in Afghanistan.43 Compared with facility management, maintenance and especially operational activities may include a greater risk for the contractors involved, as they often have to work alongside the troops in the field operating these systems.44 Another very dangerous activity, regarding particularly the situation in Iraq, is participation in logistical support, which may expand from transporting troops to their operational area to supplying troops on the front through supply convoys or helicopters. Nearly 700 trucks delivering supplies to the 60 military bases in Iraq 35

Singer (note 30), 12, 15. Guillory (note 14), 125; Eric A. Orsini/Gary T. Bublitz, Contractors on the Battlefield: Risks on the Road Ahead?, Army Logistician, vol. 31, 1999, 130; Zamparelli (note 14), 14. 37 Id. 38 Guillory (note 14), 125; Zamparelli (note 14), 14. 39 Id. 40 Dale Warman, Air Force Squadron Takes Over Predator Operations, Air Force News Service, 1996, available at: http://www.fas.org/irp/news/1996/n19960905_ 960887.html. 41 Guillory (note 14), 126, fn. 92. 42 Singer (note 30), 17. 43 See Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, Chicago Journal of International Law (forthcoming). 44 Guillory (note 14), 127; Zamparrelli (note 14), 14. 36

508

Nicki Boldt

on a daily schedule are driven by contractors.45 The risk is shown by the fact that four contractors of Blackwater Security Consulting were killed while providing security for a food delivery convoy supplying coalition troops in Iraq.46 Sometimes the line between logistical support and actual combat operations gets blurred, for example when Blackwater, in a battle of four Marines, three Salvadoran Soldiers, and eight of its own security contractors protecting the CPA headquarter in Najaf against the Iraqi Militia, had to ferry in ammunition supplies and carry a wounded US Marine to safety. The Blackwater crews of the deployed Blackhawk helicopters had to fight their way through, supported by two US Apache combat helicopters that helped repel the militia.47 Another very sensitive support activity, not involving physical dangers but juridical problems, is information gathering and analysis by PMCs. This can be conducted for example through the operation of remote sensors or intelligence drones, analyses of satellite data, or even the interrogation of prisoners. The problems with PMC intelligence operations became obvious in April 2001 when a Peruvian air force jet, led by a US-sponsored contractor-operated surveillance plane, mistook an American missionaries’ plane for a drug courier and shot it down.48 Another field as highly sensitive as intelligence services is that of information operations. To conduct information operations means to take action to affect adversary information and information systems while defending one’s own information and information systems.49 Offensive information operations include information gathering operations, military deception and computer network attacks,50 which could even cause destructive effects within the territory of another State, e.g. by manipulating the computer system of a power station or 45

James Glanz, For Truckers in Iraq, It’s All About Money, International Herald Tribune, 28 September 2004. 46 See Spencer E. Ante/Stan Crock, The Other U.S. Military, Businessweek Online, 31 May 2004, available at: http://businessweek.com/magazine/content/04_22/b3885116. htm; James Dao, The Struggle for Iraq: Security, Private Guards Take Big Risks, for Right Price, New York Times, 2 April 2004. 47 Dana Priest/Mary Pat Flaherty, Under Fire, Security Firms Form an Alliance, Washington Post, 8 April, 2004; Associated Press, Security Guards Role Worries Lawmakers, The Columbia Daily Tribune, 27 April 2004. 48 Juan Forero, Role of U.S. Companies in Colombia Is Questioned, New York Times, 18 May 2001. 49 See US Department of Defense, Joint Doctrine for Informations Operations, Joint Pub. 3-13, available at: http://www.dtic.mil/doctrine/jel/new_pubs/jp3_13.pdf. 50 Id.

Private Military Companies and International Humanitarian Law

509

the national railway network.51 Defense information operations include counterdeception and counterintelligence.52 Contractors’ staff, e.g., the entire information operation cell supporting the US Southern Command, and are thus responsible for operations in 32 countries in Central America, South America and the Caribbean.53 II. Advice, Training and Planning

Another field of important PMC activity is advice, training and planning for States’ military forces, where PMCs sell military know-how often gained in western military careers.54 A special case is that of MPRI, which in 1997 developed the Army’s field manual on acquiring and managing contractors for the Training and Doctrine Command of the US Army55 – a PMC telling the US Army how to deal with PMCs. Outsourcing of training capabilities ranges from the introduction of individual soldiers to special tasks or tactics to the training of the officer’s corps or the whole military. The Vinnell Corporation in 1975 won a $ 77 million contract to train the Saudi Arabian National Guard, a deal widely considered as the first time a US PMC obtained a contract with a foreign government.56 Later Vinnell trained Saudi troops in special fields like counterintelligence and chemical weapon defense.57 MPRI, a PMC founded by former senior military officers of the US military, operates the US military Reserve Officer Training Corps programs at over two hundred US universities, which means that the US military leaders of tomorrow are now trained by private contractors.58 In

51

Guillory (note 14), 126; Michael N. Schmitt, Wired Warfare: Computer Network Attack and International Law, International Review of the Red Cross, vol. 846, 2002, 365, 375 et seq. 52 See, supra, note 49. 53 Dan Verton, Navy Opens Some IT Ops to Vendors, Federal Computer Week, 21 August 2000. 54 Brooks (note 14); David Isenberg, Have Lawyer, Accountant, and Guns, Will Fight: The New, Post-Cold War Mercenaries, 1999, available at: http://www.nyu.edu/ globalbeat/pubs/Isenberg021999.html. 55 Singer (note 30), 123. 56 Peterson (note 4); Zarate (note 25), 103. 57 Id. 58 Singer (note 30), 16, 123.

510

Nicki Boldt

the UK 80 % of all army training now involves civilian contractors.59 Planning occurs at the strategic, operational, and tactical level, i.e. from the whole war with another nation, to campaigns and major operations and the single combat encounter.60 The activities in advisory, training, and planning are often inter-connected, because the military of less developed States often relies on a PMC for restructuring and training of their troops. The most prominent case of such a connection is the contract between MPRI and Croatia. MPRI was contracted by the Croatian Government in 1994 to design a program to improve the capabilities of Croatia’s armed forces. The fact that the Croatian forces performed unexpectedly well in an offensive against Serb forces in 1995 leads many analysts to the conclusion that MPRI was also involved in training and planning, even if MPRI denies any involvement beyond general classroom instruction.61 III. Security Services

Providing security services is the first PMC activity which consists of providing combat ability. Here, contractors take over the protection of important persons, sites, or convoys. The distinction from active participation in offensive combat operations is that security services do not aim at fighting. Security contractors only fight in self defense or in defense of the object they secure.62 Blackwater, for example, protected Paul Bremer in Iraq,63 and DynCorp the Afghan president Harmid Karzai.64 Blackwater troops also escorted supply convoys in Iraq, military or PMC, and guarded provincial outposts for the CPA.65 DynCorp even provided guard service for US Army installations in Qatar.66 59

UK Green Paper (note 13), 13. See US Department of Defence, Dictionary of Military and Associated Terms, as amended through 30 November 2004, available at: http://www.dtic.mil/doctrine/jel/ doddict/. 61 See UK Green Paper (note 13), 13; David Kassebaum, The Legal Use of Private Security Firms in Bosnia, Colum. J. Transnat’l L., vol. 38, 2000, 581. 62 Rumsfeld Letter (note 7); Singer (note 19), 532. 63 Singer (note 30), 17; Priest/Flaherty (note 47). 64 Leigh (note 6); David Isenberg, Security for Sale in Afghanistan, Asian Times, 4 January 2003. 65 Leigh (note 6); Ante/Crock (note 46). 66 Peterson (note 4). 60

Private Military Companies and International Humanitarian Law

511

That security services can easily lead to the use of force can be seen in the cases shown above, where security was connected with logistical services.67 Another form of security service is the provision of police forces for hostile environments. The US contribution to the UN monitoring mission in Kosovo, for example, included DynCorp contractors.68 IV. Active Participation in Offensive Combat Operations

The most problematic activity in which a PMC could engage is the active participation in offensive combat operations. Only a very limited number of PMCs seem to provide such services.69 The most prominent cases of combat involvement by PMCs are those of Executive Outcomes (EO) in Angola and especially in Sierra Leone. In 1995 EO was hired by the Sierra Leonean government, a military regime, to train and support its forces. EO led offensives against the Sierra Leonean rebels and secured the capitol Freetown. At the same time, EO improved the quality of the State’s forces. In 1996, after EO attacked a major rebel base, the rebels agreed to negotiations and elections, which were held in the same year. In a peace agreement, the elected government agreed to the withdrawal of EO. Following its withdrawal, a coup took place which brought a military/rebel government to power.70 While the cause of events seems to show that EO’s presence had a positive influence, all its engagements were discussed in a critical manner. EO’s troops mostly consisted of former soldiers from the South African Apartheid Regime, and they used methods conventionally regarded as illegal, such as vacuum bombs.71 There are cases of active participation in combat operations that are not discussed in such a negative light. DynCorp, for example, operates armed Blackhawk helicopters for the US State Department in the Colombian anti-drug efforts, providing search and rescue teams for military and police. In 2001, a DynCorp helicopter became involved in a fire fight with Colombian guerrillas

67

See, supra, Sect. B. II. See UK Green Paper (note 13), 8; Jonathan Steele, US Gives Kosovo to Mercenaries, The Guardian, 31 October 1998. 69 UK Green Paper (note 13), 8. 70 Id., 12; Isenberg (note 54). 71 Id. 68

512

Nicki Boldt

while rescuing the crew of a police helicopter the guerrillas had downed.72 Incidents of the same nature have occurred with International Charter Incorporated providing medical evacuation services for UN peacekeeping operations in Liberia, Sierra Leone and Haiti.73 C. The Status of PMC Employees under IHL This article will first address the status of contractors under IHL. It will answer the question of whether contractors as non-state actors are to be regarded as civilians or if they, carrying weapons and engaging in combat, are combatants. Furthermore it is unclear if the rules of international law dealing with mercenaries are applicable to contractors. The question thus is whether PMCs and their contractors fit into the framework and terms of IHL or if they are something new. I. Civilians or Combatants

Persons with the primary status of combatants may participate directly in hostilities and thus legally launch attacks. This means that they cannot be tried before domestic penal courts for acts committed in an attack74 except for core crimes such as genocide or war crimes.75 Additionally, if caught, combatants gain the secondary status of prisoners of war, and are protected as such.76 Con72 Guillory (note 14), 127; Juan O. Tamayo, Privatizing War: U.S. Civilians Taking Risks in Colombia Drug Mission, Wilmington Morning Star, 26 February 2001. 73 Peterson (note 4). 74 See Regulations Concerning the Laws and Customs of War on Land, Annex to the Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, Martens, NRG, 3e série, vol. 3, 461, Art. 3 (HR); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, vol. 1125, 3, Art. 43 para. 2 (Protocol I); see also Knut Ipsen, Combatants and Non-Combattants, in: Fleck (note 16), 65, 68. 75 Alexander Behnsen, The Status of Mercenaries and Other Illegal Combatants Under International Humanitarian Law, German Yearbook of International Law (GYIL), vol. 46, 2003, 494, 495; Ipsen (note 74), 68. 76 HR (note 74), Art. 3; Geneva Convention Relative to the Protection of Prisoners of War, 12 August 1949, UNTS, vol. 75, 135, Art. 4 lit. a (GC III); Protocol I (note 74), Art. 44 para. 1.

Private Military Companies and International Humanitarian Law

513

versely, combatants are legal targets, while civilians are protected and not legitimate targets of attack.77 A civilian directly participating in hostilities commits an illegal act and can be tried as an illegal combatant,78 and will also lose protection from attack.79 The question of status thus can be a very important one for PMCs, contractors, and involved States alike. It decides what a contractor is allowed to do and how he must behave in armed conflicts. States’ militaries often treat contractors as civilians without further consideration.80 According to a publication of the US Department of Defense “contractors accompanying the armed forces are considered civilians accompanying the force.”81 The term ‘civilians accompanying the force’ can be found in Article 4 A para. 4 GC III, which imposes an obligation on States to qualify such civilians for prisoner of war status by giving them an identity card. ‘Civilians accompanying the force’ are described as civilians being inter alia members of aircraft crews, supply contractors or services responsible for the welfare of the soldiers.82 But this status can only be given to contractors if they really are civilians.83 Civilians are, according to Article 51 Protocol I persons who do not belong to the categories referred to in Article 4 A GC III and Article 43 Protocol I.84 This means that all persons not labeled combatants implicitly in 77

Protocol I (note 74), Art. 51. Hans-Peter Gasser, Einführung in das humanitäre Völkerrecht, 1995, 31; Ipsen (note 74), 93. 79 Protocol I (note 74), Art. 51 para. 3; for the conclusion that there is no third category of persons in IHL besides combatants and civilians, see Behnsen (note 75), 494; Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 2004, 113; Jean de Preux, Art. 43 Protocol I, in: Yves Sandoz/Christophe Swinarski/Bruno Zimmermann (eds.), ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, 506, 515. 80 Joint Chiefs of Staff, Doctrine for Logistic Support of Joint Operations, Joint Pub. 4-0, 2000, Section 12 a (Doctrine for Logistic Support), available at: http:// www.dtic.mil/doctrine/jel/new_pubs/jp4_0.pdf; US Air Force, International Law – The Conduct of Armed Conflict and Air Operations, Pamphlet 110-31, 1976, 3 et seq. , see also Human Rights Watch, Q & A: Private Military Contractors and the Law, 2004, available at: http://hrw.org/english/docs/2004/05/05/iraq8547_txt.htm; Turner/Norton (note 8), 26 et seq.; Zamparelli (note 14), 16. 81 Doctrine for Logistic Support (note 80). 82 GC III (note 76), Art. 4 A paras. 4 and 5. 83 In those statements contractors are often treated as neither civilians nor combatants, but something in-between. But as previously established, there is no third category of persons in IHL see, supra, note 79; see also Guillory (note 14), 116. 84 Protocol I (note 74), Art. 51 para. 1. 78

514

Nicki Boldt

Article 4 A GC III or explicitly in Article 43 Protocol I are civilians.85 According to Article 4 A para. 1 GC III, members of the armed forces of the State or of militias or volunteer corps formally incorporated in those armed forces can be de jure combatants. According to Article 4 A para. 2 GC III, members of militias or volunteer corps not incorporated but with a connection to a State may be de facto combatants, a status that derives from the nature of a group.86 Article 43 Protocol I encompasses both categories, de jure and de facto combatants, in one definition.87 Members of the armed forces of a party to a conflict, which consist of all armed forces, groups, and units with a command responsible to that party, are combatants according to this norm. These articles indicate two ways of acquiring combatant status, membership in the armed forces of a State itself or in a PMC connected to a State. Additionally, combatants must fulfill the personal conditions88 of combatant status, wearing a distinctive sign,89 and carrying weapons openly.90 1. Direct Membership of a Contractor in the Armed Forces of a State The first method for a contractor to acquire de jure combatant status is through direct membership in the armed forces of a State. The actual incorporation of individual contractors could lead to the conclusion that they sometimes indeed form a part of those forces. They work next to State soldiers as part of 85

See Hans-Peter Gasser, Protection of the Civillian Population, in: Fleck (note 16), 501, 510. 86 Schmitt (note 43), 9; Jean de Preux, Art. 4, in: Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949, Commentary, vol. III, 1960, 57. 87 Schmitt (note 43), 9. 88 On the question of whether those conditions only apply to members of units not incorporated into the States’ armed forces for acquiring de facto combatant status or have to be fulfilled by members of the armed forces and of units incorporated in those forces for acquiring the de jure combatant status see also Regina Buß, Der Kombattantenstatus, 1992, 203. 89 HR (note 74), Art. 1; GC III (note 76), Art. 4 A para. 2 lit. c; Protocol I (note 74), Art. 44 para. 3; regarding the partisan warfare exception in Art. 44 Protocol I, which normally would not be applicable for PMCs, see Knut Ipsen, Kombattanten und Kriegsgefangene, in: Horst Schöttler/Bernd Hoffmann, Die Genfer Zusatzprotokolle, 1993, 136, 154. 90 HR (note 74), Art. 1 No. 3; GC III (note 76), Art. 4 A para. 2 lit. c; Protocol I (note 74), Art. 44 para. 3.

Private Military Companies and International Humanitarian Law

515

field units in the “habitual relationship concept” where technicians sleep, eat, and work with their units.91 The battle Blackwater employees fought in Najaf protecting the CPA headquarters appeared to show a very close relationship between contractors and the State’s military.92 But the decisive factor for classification as a member of the armed forces of a State is that State’s organizational competence deriving from State sovereignty over internal affairs.93 The State decides on the organization of its armed forces and the prerequisites for membership therein,94 so that domestic laws and the State’s political structure are decisive.95 Normally, a formal act of enlistment is required and new members are bound to the State.96 It seems unlikely that a State would incorporate a contractor into its armed forces in such a formal way as to be enlisted, but the decision remains with the States. When Papua New Guinea in 1997 deputized contractors of Sandline helping to defeat a local rebel movement,97 this had to be seen as a formal incorporation of the contractors in its armed forces.98 The same is true for EO contractors enlisted in the Sierra Leonean armed forces.99 It is therefore possible for contractors to become enlisted in the contracting States’ armed forces, but this seems to be and to remain an exception. Especially in western States relying on contractors, the understanding of PMCs is that of an efficient and flexible instrument to save money, to handle new technologies, and to overcome bottlenecks in the more formalistic armed forces,100 a position not compatible with formal enlistment.

91

See, supra, Sect. B. I. Id. 93 M. H. F. Clarke/T. Glynn/A.P.V. Rogers, Combatant and Prisoner of War Status, in: Michael Anthony Meyer (ed.), Armed Conflict and the New Law, 1991, 107, 108; Ipsen (note 89), 141. 94 Buß (note 88), 200; Clarke/Glynn/Rogers (note 93), 108. 95 Waldemar A. Solf, Art. 43, in: Michael Bothe/Karl Josef Partsch/Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts, 1982, 231, 236. 96 Clarke/Glynn/Rogers (note 93), 108; Schmitt (note 43), 9. 97 See Sinclair Dinnen/Anthony J. Regan/Ron May (eds.), Challenging the State: The Sandline Affair in Papua New Guinea, 1997. 98 Singer (note 19), 533 et seq. 99 Zarate (note 25), 124. 100 See US Department of Defence (note 34) for the US view on contractors; see also Orsini/Bublitz (note 36), 130; Zamparelli (note 14), 13 et seq. 92

516

Nicki Boldt

Western States’ militaries have thought about the possibility of requiring that all contractors have military obligations towards the employing State, which would mean that they would already be part of the State’s military.101 The military can bring such personnel, for example reservists, to active duty if combatants are needed to ensure continuation of essential services.102 Because of the sheer number of contractors needed, for example in Iraq, only some of the contractors could have such an obligation. Those contractors could therefore guarantee the continuation of essential services, but not solve the problem of contractor status. For the militaries of militarily less developed States, this option has never existed, because they employ PMCs for military know-how not available in their own militaries. 2. Membership of a Contractor in a PMC Connected to the State The second method of acquiring combatant status is through the PMC the employee works for, which is connected to the contracting State. To grant contractors this option, the PMC must meet some conditions which are ipso facto fulfilled by States’ armed forces. The PMC must be an armed group or unit,103 connected to a party of an armed conflict,104 under a command responsible to that party,105 and must conduct its operations in accordance with IHL.106 a) Armed Group or Unit First of all, the PMC has to be an armed group or unit. Considering the abovementioned statements regarding contractors as civilians accompanying the 101

See Guillory (note 14), 141. Id. 103 Protocol I (note 74), Art. 43 para. 1; GC III (note 76), Art. 4 A paras. 1 and 2 refers to special forms of groups and units, militias and voluntary corps. Militia and voluntary corps must be armed by definition. 104 HR (note 74), Art. 1; GC III (note 76), Art. 4 A paras. 1 and 2 lit. a; Protocol I (note 74), Art. 43 para. 1. 105 HR (note 74), Art. 1; GC III (note 76), Art. 4 A para. 2 lit. a; Protocol I (note 74), Art. 43 para. 1. 106 HR (note 74), Art. 1 No. 4; GC III (note 76), Art. 4 A para. 2 lit. d; Protocol I (note 74), Art. 43 para. 1. 102

Private Military Companies and International Humanitarian Law

517

force,107 and trying to find the criteria of the combatant definition which contractors, according to those statements, do not fulfill, the most likely criteria is that of being an armed unit. This seems to derive mainly from the classical activities of PMCs engaged in the welfare of State troops. It is clear that PMCs qualify as groups or units. The question is whether PMCs are armed. For a group or unit to be armed does not mean that its members have to carry weapons. The status of an armed unit requires that its assignment is combat, or more precisely, that its duties entail direct participation in hostilities.108 Since only combatants may legally participate directly in hostilities and only members of armed units can be combatants, it is inescapable that at least all units assigned to operations assuming direct participation in hostilities count as armed. Because otherwise their assignment would be illegal, members of those groups must be combatants, provided all other criteria are fulfilled. The question is whether the modern activities of PMCs have to be considered as direct participation in hostilities. If this is the case, the relevant PMCs are armed units. Unfortunately, IHL does not provide for a precise definition of that notion.109 aa) Attack Some problems of that definition can be resolved by using another definition found in Article 49 Protocol I defining the term attack.110 There is no doubt that a person carrying out such an attack will also directly participate in hostilities. Article 49 Protocol I is used to identify a narrower field of action than Article 43 Protocol I, namely only acts involving the use of force.111 Direct participation in hostilities, to some extent, also includes the preparation and return from attack.112 Article 49 Protocol I defines an attack as encompassing “acts of violence against the adversary, whether in offense or defense.” It simply

107 108 109 110 111 112

See, supra, Sect. C. I. See Buß (note 88), 201 et seq.; Schmitt (note 43), 12, fn. 58. Quéguiner (note 28). Id. Id.; see also Schmitt (note 43), 22. De Preux (note 79), 516; Quéguiner (note 28).

518

Nicki Boldt

refers to the use of armed force to carry out a military operation.113 Every participant of a military operation, offensive or defensive, using force thus could be seen as part of an attack and directly participating in hostilities.114 Every PMC whose assignment entails the use of force, or at least the option to use it, qualifies as an armed unit. PMCs offering troops for the active participation in offensive combat operations thus are armed units, because they were contracted to use force against the adversary. No questions arise regarding the dispatch of combat troops, like that of EO.115 The same is true for armed search and rescue teams because they will, if necessary, use force to free the person they have to rescue.116 PMCs like Blackwater, offering military security services for military objectives, such as supply convoys or military areas, are also armed units, because if attacked, they have to defend the objective by force. The option to use force is thus included in their contracts.117 Because the protection of important persons of the political class and the State’s administration clearly is a military objective, even personal security services could amount to an attack.118 But in security operations there are more problematic fields. The condition that the violence has to be directed against the adversary is of special importance. While participation in offensive military operations or the defense of military objectives clearly is linked to the conflict,119 defense activities can also be directed otherwise. The defense of life and property, which is not a military objective, against looters or other criminals, or against attacks contrary to IHL, is not direct participation in hostilities.120 There has to be a nexus between the threat and the ongoin hostilities.121 Because PMCs taking over military security services are assigned to defend military objectives, the option for an attack is included in their contract. Those 113

Jean de Preux, Art. 49 Protocol I, in: Sandoz/Swinarski/Zimmermann (note 79), 603; Quéguiner (note 28). 114 Quéguiner (note 28). 115 Guillory (note 14), 126; Schmitt (note 43), 18. 116 Guillory (note 14), 126; Schmitt (note 43), 20 et seq. 117 See Schmitt (note 43), 19. 118 Id. 119 If contractors act out of motives unrelated to the conflict and outside of a military operation, e.g. to steal money or property, there clearly is no nexus to the conflict. See Schmitt (note 43), 18 et seq. 120 Id., 19. 121 Quéguiner (note 28); Schmitt (note 43), 19 et seq.

Private Military Companies and International Humanitarian Law

519

PMCs qualify as armed units. Only the participation of PMCs in law enforcement operations, like that of DynCorp in Bosnia, can be ruled out from direct participation in hostilities under this condition. The defense against illegal acts is permitted even to civilians.122 Another even more problematic field is that of offensive information operations. If such operations cause damage within the territory of another State, it could be as devastating to enemy forces as traditional warfare, even if not involving active force. Here, it does not make much sense to distinguish direct from indirect participation, or a physical attack from other forms of participation, on the question of whether active force is used, or whether a person causing these effects acts at the location of the effects or on another continent.123 A computer network attack which kills, injures or damages within the territory of another State therefore qualifies as an attack.124 PMCs engaged in these activities qualified as an attack clearly participate directly in hostilities and thus are armed units according to the definition of combatant. bb) Direct Participation in Hostilities The problem beyond these relatively clear cases qualifying as an attack is the classification of other activities especially in the field of logistical support, where a more accurate definition of “direct participation in hostilities” is needed. As is the case with attacks, the possibility that contractors would have to participate in hostilities directly must also be established in their assignment. From the wording of Article 43 para. 2 and Article 51 para. 3 Protocol I, the content of the notion ‘direct participation in hostilities’ remains unclear.125 The range of possible participation extends from participation in already mentioned attacks to the entire war effort.126 To give effect to the purpose of the norm, the definition has to balance the protection of civilians and the legitimate military interest of the armed forces to effectively respond to the means and methods of combat that might be used by civilians.127 Thus, restricting participation in hosti122 123 124 125 126 127

Schmitt (note 43), 19 et seq. Id., 22. Guillory (note 14), 126, fn. 93; Schmitt (note 51), 375 et seq. Dinstein (note 79), 27. De Preux (note 79), 516; Quéguiner (note 28). Quéguiner (note 28).

520

Nicki Boldt

lities to attacks would be too narrow, because it would hinder the forces from reacting effectively to threats by civilians, which could not legally be fought even in the case of an imminent attack. The extension to the entire war, on the other hand, would be too broad, because it is possible in modern warfare for major parts of the population to participate in the war effort.128 Accordingly, participation in activities such as arms production or military engineering, although ultimately harmful to the enemy, are not hostile acts.129 Between these extremes, there are three possible approaches for further clarifying the definition: two of them referring to a causal relationship between the act conducted and an attack,130 the third just referring to a person’s incorporation into military operations. Taking the former approach, this causal relationship cannot be understood only as direct causation, but as causal proximity, including acts which, by their nature and purpose, are intended to cause actual harm to the personal and equipment of the adversary.131 But in this causality approach, there still is a margin as to the degree of causality needed. The first option requires direct causality for the actual killing or destruction. The participation would have to be part of the process by which a particular attack was or would have been rendered possible, either through execution or preparation.132 This approach seems too restrictive if one takes into account the purpose of IHL. It was shown that the interpretation of IHL norms has to consider the protection of civilians and the legitimate needs of the armed forces. In the notion of direct participation in hostilities, these factors are opposites, but the protection of civilians can only be effective if the military need of armed forces is taken into consideration. The interpretation of direct participation in hostilities determines under what circumstances the protection of civilians has to step behind military needs, because civilians directly participating in hostilities lose their protection. As the protection of civilians is the main purpose of Protocol I, this distinction is a seminal principal of IHL that has to be applied effectively.133 If the interpretation is too restrictive, so that military needs remain unconsidered and the armed forces may not attack civilians, even though such an attack seems 128

De Preux (note 79), 516; Quéguiner (note 28). Guillory (note 14), 117. 130 De Preux (note 79), 516; Schmitt (note 43), 15. 131 Id. 132 Turner/Norton (note 8), 28 et seq.; see Schmitt (note 43), 15 et seq. 133 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 225, 257; Schmitt (note 43), 16. 129

Private Military Companies and International Humanitarian Law

521

necessary, the military probably will readily ignore the prohibition, and the protection of civilians will be eroded. Therefore, the question is in which cases there is a legitimate military need to attack civilians. It is clear that such a need exists when civilians are causally incorporated in the process directly leading to destruction.134 Apart from these cases, there are many other activities that are of major importance for the actual military success of individual military operations. From the position of military necessity, it seems clear that all activities imposing a threat to troops and material or military success require attacks against civilians carrying out these activities. From the position of the protection of civilians, it seems clear that not every threat by civilians can lift the protection, but only those immediately connected with combat operations. If a civilian imposes an immediate and direct threat to the adversary, he has come so close to combat operations in status and activity that he himself has forfeited his right to protection. According to these considerations, it is clear that a liberal interpretation of the direct participation notion is needed and that the first option, with the requirement of direct causality to the actual killing, is a too narrow view. Therefore the second approach has to be applied, according to which causal proximity only requires the behavior to constitute a direct and immediate military threat to the adversary.135 The third approach considers every person integrated into combat operations to be directly participating in hostilities. Integration means being an uninterrupted, indispensable part of an activity, so that the activity cannot function without that person’s presence.136 This interpretation lays even more weight on military necessity and is not compatible with the need for an immediate connection with combat operations, dictated by the protection of civilians. Thus, to qualify as direct participation in hostilities, a behavior must constitute a direct and immediate military threat to the adversary.137 Looking at PMC activities not qualifying as an attack, it becomes clear that the determination of what direct participation in hostilities is still necessitates a case-by-case approach. But there are some approaches upon which such a determination may be made. Advice and training mostly have little immediate impact on military operations and thus will seldom constitute a direct threat to the ad134 135 136 137

See Schmitt (note 43), 16. De Preux (note 79), 516; Quéguiner (note 28). See Guillory (note 14), 117. Quéguiner (note 28).

522

Nicki Boldt

versary and direct participation in hostilities.138 With respect to planning, on the other hand, one must differentiate. While strategic and operational planning for State militaries seem to be as far removed from the single combat encounter as advice and training, planning on the tactical level, e.g. target selections for aerial operations, could indeed have an important impact on the conditions of military operations. This planning therefore can be seen as direct participation in hostilities.139 The distinction can be along the same lines with respect to intelligence services. While gathering, analyzing and disseminating intelligence on the strategic and operational level seems to be too removed from actual combat, the same activities on the tactical level would usually constitute a threat to the adversary.140 The operation of reconnaissance drones or planes, for example, will often result in the development of time-sensitive tactical-level data which would qualify as direct participation. The same is true for the interrogation of detainees.141 Logistic activities will often not pose an immediate threat to the adversary. Driving food supply trucks will not be direct participation in hostilities.142 The supply of combat troops with ammunition, of course, is another matter, because immediate battlefield logistics impose an immediate threat to the adversary.143 The skirmish of Blackwater forces in Najaf shows that the ability to ferry ammunition into a combat situation may determine the victor in an individual operation.144 Maintenance of weapons systems conducted away from the battle zone cannot be qualified as an immediate threat, while battlefield repair of battle damages and the elimination of technical combat difficulties must be seen as direct participation in hostilities.145 The same is true for preparation of equipment before battle, such as loading weapons, refueling aircrafts, or performing technical pre-combat checks.146 Facility management and troop welfare services do not pose an immediate threat to the adversary and thus are not direct participation in hostilities.147 138 139 140 141 142 143 144 145 146 147

See Schmitt (note 43), 24; Solf (note 95), 252. Schmitt (note 43), 22 et seq. Id. Id. Id., 23; Solf (note 95), 252. Id. Schmitt (note 43), 23. Guillory (note 14), 128; Schmitt (note 43), 24. Schmitt (note 43), 23. Id.

Private Military Companies and International Humanitarian Law

523

PMCs conducting activities that qualify as direct participation in hostilities are for that reason armed units, therefore granting the possibility of combatant status to their employees. b) Connection to a Party of an Armed Conflict PMCs that form armed units must have a connection to a party of the armed conflict in order to be granted combatant status. The definition of combatant again distinguishes between de jure and de facto combatant status.148 Members of militias and volunteer corps de jure incorporated into the States armed forces can by this incorporation become combatants.149 Due to the voluntary character of the employment of their contractors, PMCs form a volunteer corps. This is also true for mercenaries,150 and even if the applicability of the mercenary definition to PMCs is unclear, the organizational character of PMCs and mercenaries in this regard is the same. The legal connection between the State and the militia or volunteer corps in this situation is the same as that of armed forces of the State itself. As is the case with regard to individual contractors, the decision of whether or not a militia or a volunteer corps forms a de jure part of the State’s armed forces is made by the State’s political structure and its laws and regulations.151 Without a doubt, the US National Guard for example, organized as a militia, is a part of the US armed forces. Thus, while such incorporation of PMCs is in fact possible, it seems highly unlikely. A contract alone is not enough to transform a PMC into a part of the State’s armed forces.152 The act of 148 The structure of Art. 4 A GC III clearly differentiates between de jure combatant status through those militias or volunteer corps incorporated in the armed forces of a State in para. 1, and de facto combatant status through those not incorporated in para. 2. In Art. 43 para. 1 Protocol I, de jure combatant status through incorporated units forms a part of the term armed forces besides the terms groups and units, which mean unincorporated groups and units, thus granting de facto combatant status. See Ipsen (note 74), 70. 149 The terms militias and volunteer corps used here are part of the definition in Art. 4 A GC III. In Art. 43 Protocol I these terms have been replaced by the terms groups and units in order to make clear that members of all parts of the States’ armed forces could be labeled combatants. See Ipsen (note 89), 152. 150 Jean de Preux, Art. 47 Protocol I, in: Sandoz/Swinarski/Zimmermann (note 79), 571, 577. 151 Buß (note 88), 200; Clarke/Glynn/Rogers (note 93), 108. 152 Schmitt (note 43), 10.

524

Nicki Boldt

de jure incorporation of a militia or a volunteer corps is normally shown by an act of formal incorporation or creation of the unit, or the listing of such a unit in the armed forces list of the State etc.153 From the above-mentioned understanding by States of PMC functions,154 it is even more unlikely that such formal incorporation would be an option, especially for western States. There was some thought about the possibility of States creating a quasi-PMC, granting employment advantages to highly qualified individuals within its own armed forces, thereby bypassing the private PMCs,155 but as long as PMCs form marketoriented private entities it remains difficult to imagine that they would be de jure incorporated into a State’s armed forces. The decision admittedly remains with the States. Militias and volunteer corps not de jure incorporated into the armed forces must have another form of link to the State. While in former times, this connection required formal authorization by the State, this requirement was abolished with the Hague Regulations (HR).156 Today, the question is whether or not a group is fighting on behalf of a party to the conflict.157 IHL thus refers to a construction normally found in the law of State responsibility.158 A breach of international law has to be attributable to a subject of international law.159 According to Article 5 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ILC-Draft),160 which to a great extent codifies customary international law,161 a State is responsible for acts of persons that are not organs of 153

See Buß (note 88), 200. See, supra, Sect. C. I. 1. 155 See Guillory (note 14), 142. 156 Ipsen (note 89), 152; de Preux (note 86), 59. 157 Ipsen, (note 89) 152 et seq.; de Preux, (note 86) 57. 158 According to Buß (note 88), 209 every act of support, e.g. food, weapons, ammunition supply or intelligence sharing, for a militia or volunteer corps by a State is enough to establish a de facto link. A connection in the sense of State responsibility thus would not be necessary. But because the ILC Commentary on GC III shows that even the drafters referred to units ‘acting on behalf of the State,’ a classical term in the law of State responsibility, this article will consider State responsibility as necessary. 159 Buß (note 88), 158; Ipsen (note 89), 152 et seq. 160 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), 43. 161 ILC, Commentary on the Draft Articles on State Responsibility, UN Doc. A/56/10 (2001), 58, 59; Stephan Hobe/Otto Kiminich, Einführung in das Völkerrecht, 8th ed. 2004, 241 et seq. 154

Private Military Companies and International Humanitarian Law

525

that State but empowered by the State’s law to exercise elements of governmental authority. Even if some PMCs may exercise elements of governmental authority, they are mostly contracted and thus not empowered by law. In cases where a State formally incorporates a PMC into its armed forces, there could also be a transfer of governmental authority. If a private entity is not empowered by law to exercise governmental authority, but is in fact acting on the instructions or under the direction or control of that State, according to Article 8 ILCDraft its acts shall also be considered acts of that State. By contracting a PMC, a State exercises control through its contract with a PMC. It assigns a functions to the PMC, sets a code of conduct and often defines exactly how many contractors have to do what, and in what manner.162 Within the parameters of that contract, the State can even instruct contractors while in the field or on mission.163 Therefore contractors in principle have to be seen as acting on behalf of the employing State. Problems may appear where a PMC is not directly contracted by the State, but subcontracted. Companies contracted to rebuild infrastructure in Iraq are required to care for security questions themselves,164 i.e. they have to subcontract a PMC. It seems relatively clear that if security activities form an integral part of the contract performance, there is no difference to the situation of directly contracted PMCs.165 But a PMC may be contracted by others not party to the conflict, by another State or a private entity, e.g. a mining company. The question of on which State’s behalf the PMC acts, or if it acts on the behalf of a State at all, can only be answered on a case-by-case basis. Is DynCorp, employed by 162 According to the standard for security escort contracts in Iraq, contractors must provide exactly the numbers of vehicles, including a lead element to clear the route and a trail element to prevent rear attack. They must comply with the US Rules on the Use of Force and are required to provide immediate aid to injured civilians. See Chris Shumway, Concern Over Mercenaries’ Role in Iraq Rises with Private Spending, The New Standard, 1 June 2004. 163 Normally contracting officers may approve changes in the contract to adapt them to actual needs, but according to a proposal on new rules for contractors this right should be transferred to the battlefield commander, see US Department of Defense, Proposed Rule on Contractors Accompanying a Force Deployed, Federal Register, vol. 69, No. 56, 23 March 2004, 13500 et seq. See also Vanessa Blum, DOD’s New War Zone Rules for Contractors, Legal Times, 22 April 2004; James Rosen, Contractors Status in Iraq Hits Grey Area, Sacramento Bee, 23 May 2004, available at: http://www.sacbee. com/content/politics/nation/story/9399325p-10323643c.html. 164 Id. 165 Schmitt (note 43), 12.

526

Nicki Boldt

the US but working within the Colombian anti-drug campaign, acting on behalf of the US or of Colombia?166 Is the PMC working for the mining company acting on behalf of a State at all? As Article 8 ILC-Draft indicates, the question can be answered by reviewing the level of control a State has over the actions of that PMC. Is the coordination of DynCorp with the Colombian armed forces so close that the forces can instruct DynCorp contractors and control its actions, or does this control stay with the US? The same conditions apply to PMCs employed by private entities. All PMCs thus acting on behalf of a State have a de facto connection to that State, giving its employees the possibility of combatant status. The distinction between Article 4 A para. 1 and Article 4 A para. 2 GC III follows Article 1 HR, distinguishing between “militias and volunteer Corps forming part of the army, and those which are independent.” It has been argued that PMCs therefore have to keep their organizational independence in order to acquire de facto status, a nearly impossible prerequisite if acting on behalf of the State.167 If organizational independence were a requisite for de facto combatant, it would have to be applied to all units and not only to PMCs. The problem that it seems improbable to be able to fulfill both requirements, i.e., acting on behalf of a State while at the same time acting independently of its armed forces, would then nearly rule out the possibility of de facto combatant status. Article 4 para. 2 GC III as Article 1 HR was meant to expand the possible circle of combatants, an objective not compatible with the requirement of independence. The term ‘independence’ thus has to be read as de jure independence, fulfilled whenever a militia or volunteer corps is not de jure incorporated into the armed forces of a State. All PMCs acting on behalf of a party to an armed conflict thus are connected to that State in the sense of the definition of combatant. c) Under a Command Responsible to that State for the Conduct of its Subordinates The PMC has to be under a command responsible to that State for the conduct of its subordinates. This condition provides the aforementioned require-

166 Ultimately it is the same question as under Art. 6 ILC-Draft for US forces working in the Colombian anti drug campaign. 167 Schmitt (note 43), 12.

Private Military Companies and International Humanitarian Law

527

ment of a legal nexus between unit and State.168 Without a responsible command, control by the State would not be possible, or would not reach individual members.169 Therefore, the unit must also have a minimum of organizational structure and internal discipline.170 The command may consist of personnel from the State’s military itself, or of private individuals.171 Contractors deployed in armed conflicts may be either assigned to the State’s armed forces or carry out operations on their own.172 Therefore, contractors could be under the instruction of the State forces commander they are assigned to or operate under their own command. CACI interrogators in Iraq, for example, work individually, assigned to a special unit and, at least theoretically, are under the supervision of military personnel.173 EO deployed a battalion-sized unit on the ground, supplemented by artillery and combat helicopters, to Sierra Leone, commanded by EO staff.174 In each instance a command is thus available. Additionally, corporate reason dictates a command structure within the entire PMC. PMCs are highly structured, often around military lines, which seems normal given the origin of PMC personnel.175 This command structure, as shown above,176 is responsible to the employing State through the contract. The State can exercise control through that structure, or through the individual commander, which is be sufficient for the required command. The fact that command responsibility over PMCs in Iraq remains widely unclear and chaotic177 is no obstacle for the question of a responsible command. The problem of contractor control in Iraq lies mainly within the US-led coalition, where unclear responsibilities and muddled channels of communication hinder effective coordination.178 In fact, State organs are in charge of the PMCs. The problem is that nobody knows which organ is responsible for what situation and which PMC. But even contradictory orders are orders. 168 169 170 171 172 173 174 175 176 177 178

Buß (note 88), 157 et seq.; Ipsen (note 89), 152. Id. Ipsen (note 89), 153. Buß (note 88), 158; de Preux (note 86), 59; Schmitt (note 43), 13. Singer (note 30), 92 et seq. Eunjung Cha/Merle (note 32). Singer (note 30), 93. Schmitt (note 43), 13; Isenberg (note 54). See, supra, Sect. C. I. 2. b). See Priest/Flaherty (note 47); Associated Press (note 47). Id.

528

Nicki Boldt

The question is what the scope of the disciplinary system should be. Normally the term ‘internal disciplinary system’179 covers the field of military disciplinary law, as well as military penal law.180 PMCs as private entities naturally cannot establish a disciplinary system including legal sanctions, and States’ disciplinary regulations usually do not apply to them.181 Due to responsibility problems in the modern deployment history of PMCs, the US, through the Proposed Rule on Contractors Accompanying a Force Deployed,182 plans to apply the US Uniform Code of Military Justice183 to contractors.184 That such rules have not been in place until now, although PMCs are employed in such numbers that problems are bound to occur, is due to the speed of privatization.185 As long as disciplinary laws do not exist, it is possible to argue that contractors generally lie beyond the reach of military discipline and thus of combatant status.186 Whether the requirement of a disciplinary system in the combatant definition requires a system of such a high standard is not that clear. The requirement is only meant to guarantee that States can exercise control over the individual soldier so that all actions of combatants that are illegal under IHL invoke the responsibility of a State.187 As was shown, there is enough control of States over PMCs to guarantee that responsibility.188 Legal measures therefore are not necessary. This was true at least up to and including GC III, where the requirement of a disciplinary system was only included in that of a responsible command.189 In Article 43 para. 1 Protocol I the requirement of an internal disciplinary system is an independent one besides the other requirements. It is unlikely that this change should mean that the requirement has to entail legal mechanisms. The combatant definition of Protocol I continues the tradition of the previous IHL 179

See Protocol I (note 74), Art. 43 para. 2. De Preux (note 79), 513. 181 Eunjung Cha/Merle (note 32); Raasveldt (note 25), 188. 182 US Defense Department (note 163). 183 US Uniform Code of Military Justice, US Code, Title 10, Chap. 47. 184 See also Blum (note 163); Rosen (note 163). 185 Associated Press (note 47). 186 See Phillip Carter, Hired Guns: What to Do About Military Contractors Run Amok, Slate, 9 April 2004, available at: http://slate.msn.com/id/2098571/; Schmitt (note 43), 11. 187 Buß (note 88), 158; Ipsen (note 89), 152. 188 See, supra, Sect. C. I. 2. b). 189 Buß (note 88), 158; Ipsen (note 89), 147. 180

Private Military Companies and International Humanitarian Law

529

treaties and new developments usually expand that definition.190 It has to be seen that, according to Article 47 Protocol I, mercenaries do not have the right to be a combatant. This rule would only make sense if mercenaries could acquire combatant status according to the combatant definition. Just like PMCs, mercenary units are private entities which cannot enforce discipline by means of legal norms. If the disciplinary system of mercenary units is enough for Protocol I, this has to be true for PMCs also. d) Compliance with the Rules of IHL It is unclear whether compliance with the rules of IHL is a constitutive element of the combatant definition or only a duty of States.191 Even if the combatant definition requires that units conform to IHL and be guided by moral criteria,192 PMCs only fall outside this definition if the whole PMC shows disregard for IHL. Violations of IHL by individual contractors are irrelevant.193 Such a general disregard for, or systematic violations of, IHL by PMCs cannot be observed.194 Some PMCs, like EO, may be willing to use methods prohibited by IHL,195 but the members of the International Peace Operations Association (IPOA), an industry association of nine PMCs, insist on the observance of IHL by its Members.196 The question of compliance with IHL must therefore be reviewed for every PMC individually. 3. Personal Conditions For the personal conditions that have to be fulfilled by the contractor himself, it is obvious that the wearing of a distinguishing symbol and the open carrying of weapons are case-by-case questions. 190

Dinstein (note 79), 44 et seq.; Ipsen (note 89), 149 et seq. Ipsen (note 89), 155. 192 De Preux (note 86), 61. 193 Schmitt (note 43), 14. 194 Id. 195 See UK Green Paper (note 13), 12; Singer (note 30), 218. 196 IPOA Code of Conduct, 22 March 2004, available at: http://www.ipoaonline.org/ code.htm. 191

530

Nicki Boldt

a) Membership in the PMC For employees, it is relatively clear that they are members of that PMC. The only problem seems to be the wording of Article 3 para. 2 HR, which stipulates that the armed forces of a party to a conflict consist of combatants and noncombatants. This wording could lead to the assumption that members of armed forces could also be civilians. But Article 3 para. 2 HR also states that both categories should have the secondary status of prisoners of war. This wording, as well as the drafting history, shows that the only purpose of Article 3 para. 2 HR is to guarantee the prisoner of war status to all members of the armed forces. No implications were intended regarding primary status.197 All members of the armed forces are permitted to participate directly in hostilities. b) Distinctive Sign Combatants must wear a distinctive sign recognizable at a distance, in order to distinguish themselves from civilians. The practice in distinguishing ranges from uniforms to characteristic parts of clothing or insignia which are clearly visible.198 The situation as to whether contractors wear or are allowed to wear a distinctive sign is inconsistent.199 Especially US sources indicate that contractors should not wear uniforms,200 but the ban is not absolute. The US Army permits items required for the safety of the contractor, such as chemical defense or extreme weather equipment.201 The US Air Force generally allows contractors to wear special garments for compelling reasons.202 In contrast to these regulations, the US joint doctrine generally stipulates the ability of the theatre commander to require a contractor to wear a battle dress uniform “when camouflage integ-

197

Ipsen (note 74), 82 et seq.; de Preux (note 86), 51. Dinstein (note 79), 37; de Preux (note 86), 59. 199 Guillory (note 14), 128. 200 US Department of the Army, Contractors Accompanying the Force, Army Regulation 715-9, 1999, 3 et seq. (Reg. 715-9), available at: http://www.army.mil/ usapa/epubs/pdf/r715_9.pdf; Lawrence J. Delany, Acting Secretary of the U.S. Air Force, Interim Policy Memorandum – Contractors in the Theater, 8 February 2001 (Air Force Memo). 201 Reg. 715-9 (note 200). 202 Air Force Memo (note 200). 198

Private Military Companies and International Humanitarian Law

531

rity or other military necessity dictates.”203 It only provides a minimum standard that contractors wearing uniforms should wear a symbol that establishes their contactor status.204 The US Air Force requires contractors who wear uniform to distinguish themselves by headgear or patches.205 Following pressure from host nations, the US Army now requires all contractors in the Balkans to wear civilian clothing.206 In States with less developed militaries, no such rules exist, so that contractors can mostly use uniforms according to their own policy. The policy of PMCs on wearing uniforms is even more inconsistent. KBR, for example, prohibits its contractors from wearing ‘military garb’ so as to avoid confusion.207 DynCorp, on the other hand, seems to consider the wearing of uniforms by its personnel one of the keys to success.208 This confusion also shows in the press, reporting on the activities of contractors. It is reported that DynCorp personnel in Colombia, contrary to DynCorp’s position on uniforms, wear Bermuda shorts while on mission.209 Other reports say that in Iraq contractors are not distinguishable from US soldiers, sometimes only wearing a different badge on a standard US field uniform.210 From statements of US sources it can be seen that the constraints against the issuance of uniforms to contractors derive from the concern that contractors could be mistaken as combatants and thus be attacked inadvertently.211 This view corresponds to the opinion of the US military that contractors are civilians accompanying the force and not directly participating in hostilities – a view that, as was shown above, does not correspond to the new fields of activities PMCs engage in. If the US or other States hinder contractors directly participating in hostilities from wearing uniforms, they fail to protect them. Those contractors may be attacked whether they wear uniforms or not, the only effect is that their 203

Doctrine for Logistic Support (note 80), 7. See id. 205 Air Force Memo (note 200). 206 Guillory (note 14), 129. 207 Id. 208 See id., 129. 209 Ignacio Gomez, U.S. Mercenaries in Colombia, Colombia Journal, 16 July 2000, available at: http://www.colombiajournal.org/colombia19.htm. 210 Eunjung Cha/Merle (note 32). 211 Secretary of the Air Force, Order, Uniforms for Civilian Employees, Air Force Instructions 36-801, 6 et seq., available at: http://www.e-publishing.af.mil/pubfiles/af/ 36/afi36-801/afi36-801.pdf; see also Turner/Norton (note 8), 53. 204

532

Nicki Boldt

actions are illegal and they may be prosecuted – a result probably not in the interest of States, PMCs and contractors. c) Carrying Arms Openly The last condition of the combatant definition is that combatants have to carry their arms openly. There is no evidence that contractors systematically fail to carry their arms openly.212 The only observation that could be made here is that not all contractors carry any weapons, but that is of no interest for combatant status because combatants are not required to carry arms.213 II. Mercenaries?

In newspaper articles, the term mercenaries is readily used for PMCs and their employees.214 Therefore another problem is the applicability of norms dealing with mercenaries. Article 47 Protocol I states that mercenaries shall not have combatant status. It defines a mercenary as any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces. 212

Schmitt (note 43), 13. For details on this question see Guillory (note 14), 129 et seq.; Turner/Norton (note 8), 56 et seq. 214 See for example Jonathan Franklin, US Contractor Recruits Guards for Iraq in Chile, The Guardian, 5 March 2004; The Baghdad Boom, The Economist, 25 March 2004. 213

Private Military Companies and International Humanitarian Law

533

The criteria of this definition are cumulative.215 It has been said that nearly no one could ever fulfill all conditions of this definition.216 The same seems to be true for contractors. The first problem already occurs within sub-paragraph a of Article 47 Protocol I, which was drafted in the light of experiences in the late 1960s, when in Africa groups of individuals fought for the entity that paid the highest fees in whatever conflict they were hired for, and caused great destabilization.217 This led to the wording according to which the combatants’ activities have to be linked to a special conflict, thus excluding volunteers who entered service on a permanent or long-time basis.218 But many PMCs recruit their employees for lengthy periods and work with contracts not tied to a special conflict.219 EO, for example, took its staff from Angola to Sierra Leone and to the Democratic Republic of Congo; they were therefore not recruited to fight in one special conflict.220 Furthermore, a contractor must be recruited in order to fight in that special conflict. The difference between sub-paragraphs a and b shows that fighting does not encompass all activities qualifying as direct participation in hostilities.221 The drafters wanted to exclude advisors and trainers, technicians, and support personnel from the definition of mercenary.222 Thus, only those contractors granting security services and those actively participating in offensive combat operations could fall under that definition, combatants from other fields of engagement are excluded.223 It is important in this context that the soldier has to be recruited with the intention to fight. If somebody is employed to train or supply the States’ armed forces and then incidentally gets involved in the fighting, 215

Kassebaum (note 61), 589. See George Best, Humanity in Warfare, 1980, 328, who polemicized that anyone who manages to get prosecuted under “this definition deserves to be shot – and his lawyer with [him].” 217 Waldemar A. Solf, Art. 47, in: Bothe/Partsch/Solf (note 95), 267, 268; Zarate (note 25), 88 et seq. 218 Dinstein (note 79), 51. 219 Singer (note 19), 532. 220 Id. 221 Antonio Cassese, Mercenaries: Lawful Combatants or War Criminals, Zeitschrift für ausländisches Öffentliches Recht und Völkerrecht, vol. 40, 1980, 1, 24; Zarate (note 25), 124. 222 De Preux (note 150), 579; Dinstein (note 79), 51 et seq. 223 Singer (note 19), 532; Zarate (note 25), 123. 216

534

Nicki Boldt

he is no mercenary.224 Therefore, the contractors of MPRI in the Balkans were not mercenaries. The crux of the mercenary definition is sub-paragraph c.225 A person has to be motivated by financial gain alone, which additionally has to be in excess of that paid to State soldiers. Objectively the payment of contractors is in excess of that of State soldiers. It is reported that in Iraq, security contractors earn up to $ 20,000 per month.226 The problem of sub-paragraph c is that it is subjective intent alone which must identify the person’s status. Without an objective reference, the intent to fight exclusively for profit is often unknowable and difficult to prove.227 Contractors could argue that they were motivated by other factors.228 MPRI, for example, is proud of employing mostly US nationals with an allegedly strong patriotism, and understands itself as some sort of instrument of US foreign policy.229 Patriotism as a second motivation would rule out the status of mercenary. Many members of EO said in interviews that, next to the money, they served with their company for the recognition and for the possibility to use the skills they had learned.230 This could be another backdoor exit in the mercenary definition. According to sub-paragraph d, all nationals of a party to the conflict are not mercenaries. MPRI’s employees with US nationality would therefore not fall under the mercenary definition if working for the US. In other cases citizenship is easily granted if necessary.231 Sub-paragraph e excludes all members of the armed forces of a State from mercenary status, thereby referring to the de jure combatant status of Article 4 lit. a GC III,232 which is more easily granted than citizenship as was shown above.233

224

Rainald Maaß, Der Söldner und seine kriegsvölkerrechtliche Rechtsstellung als Kombattant und Kriegsgefangener, 1990, 107; Zarate (note 25), 124. 225 Maaß (note 224), 110; de Preux (note 150), 579. 226 Leigh (note 6); Eunjung Cha/Merle (note 32). 227 Maaß (note 224), 110; de Preux (note 150), 579; Singer (note 19), 529. 228 Singer (note 19), 529. 229 Peterson (note 4); Singer (note 30), 119. 230 Singer (note 30), 103; Zarate (note 25), 93. 231 Singer (note 19), 533. 232 Cassese (note 221), 24 et seq. 233 See, supra, Sect. C. I. 1.

Private Military Companies and International Humanitarian Law

535

Even sub-paragraph f is more problematic than it seems. There are cases where States not party to a conflict send contractors into other States’ conflicts, like the US does in Colombia. This leads to the question, discussed previously, of when contractors are members of that State’s forces.234 Further problems may occur with the practice of some governments of authorizing PMC contracts with foreign States. In the US, for example, according to International Traffic in Arms Regulation,235 a PMC is required to obtain approval from the State Department before selling their services to a foreign government. The contract proposals are reviewed in order to ensure that no sanctions are violated and that it does not interfere with US policy needs.236 Even if it does not seem very convincing that this practice should be seen as an act of sending by the State, there are other practices where such an assumption seems possible. In the US, PMCs can also sell their services abroad through the Defense Department’s Foreign Military Sales program, thus avoiding the lengthy International Traffic in Arms Regulations licensing procedure. Under that program, the Defense Department pays the contractor for services offered to a foreign government, which in turn reimburses the Defense Department.237 According to these observations, contractors will almost certainly not fall under the mercenary definition of Article 47 Protocol I and thus will retain their combatant status.238 Even if contractors fulfilled the requirements of the mercenary definition, the question would be whether it is appropriate to solve the problems of today with rules developed in the 1970s. The practice of States towards PMCs is so positive that the applicability of the mercenary rules is questionable.239 III. Conclusion on the Status of Contractors

If contractors did not have the status of combatants, their direct participation in hostilities would be illegal. Due to the fact that States like the US employ 234

See, supra, Sect. C. I. 2. b). International Traffic in Arms Regulation, Code of Federal Regulations, Title 22, Parts 120–130, 1 April 2004, available at: http://pmdtc.org/reference.htm. 236 Peterson (note 4); see also Singer (note 19), 538 et seq. 237 Peterson (note 4). 238 Schmitt (note 43), 12, fn. 57; Singer (note 19), 532 et seq.; Zarate (note 25), 124. 239 See Enrique Ballesteros, Report on the Question of the Use of Mercenaries, UN Doc. E/CN.4/1997/24 (1994), para. 85 et seq.; Sandoz (note 26), 20; Zarate (note 25), 145. 235

536

Nicki Boldt

PMCs for activities including such participation, it is incomprehensible why contractors are prevented from becoming combatants. Potential problems with the requirement of a disciplinary system could be solved if States applied their military disciplinary systems to PMCs. States could also require contractors to wear uniforms. If contractors directly participating in hostilities were combatants, their activities would be legal under IHL. They would not enjoy the protection of civilians, but they lose that protection anyway when they participate directly in hostilities. In order to acquire combatant status, PMCs and contractors have to fulfill certain requirements, but that is indeed intended by IHL. If States argue that contractors are something new, this seems like taking the pick of the bunch. In IHL, noone can directly participate in hostilities and enjoy civilian protection at the same time. This clearly shows that the IHL system functions even for contractors. D. Enforcement of IHL The second problem this article will address is IHL’s enforcement mechanisms against PMCs. Since PMCs are private actors in a field primarily regulated by international law, the question is whether, and occasionally how, this law can be applied effectively. I. Enforcement through State Mechanisms

The classical approach of enforcing international law is directed towards States, as States are the classical subjects of international law. The pertinent questions to ask therefore are if there is an obligation by States to enforce IHL against PMCs, what options there are to do so and what problems would have to be overcome in doing so. To answer these questions, one has to analyze the different connections of the State to the PMC and the breach of international law, keeping in mind that a combination of these is not only possible, but the norm. 1. The Duties and Options of All States towards Breach of IHL First of all, it must be examined whether there is a duty that obliges every State to enforce IHL against PMCs, regardless of whether there is a link be-

Private Military Companies and International Humanitarian Law

537

tween State, PMC and the breach of IHL or not. The Geneva Conventions and Protocol I enumerate some breaches that count as grave and as such have to be made punishable offences in States’ criminal laws.240 Such breaches, for example intentional killing or torture of protected persons, according to Article 85 para. 5 Protocol I, must be regarded as war crimes.241 In the case of assumed grave breaches, every State has the duty to prosecute the suspect held in its custody or to hand over the alleged offender to the authorities of another State which is interested in his prosecution.242 To this extent, IHL stipulates that individual criminal responsibility for compliance with some IHL norms has to be enforced by the States.243 This duty to prosecute is based on the principle of universal jurisdiction, which gives States jurisdiction and thus the possibility of prosecution, regardless of the place where the breach occurs or the status of the person who committed the breach.244 Thus, every State must enact criminal laws dealing with grave breaches, laws which are also applicable for contractors acting in its own territories or in foreign States. Furthermore, it must prosecute possible violations of IHL by contractors that could amount to grave breaches, at least if the contractor is in its custody. The enforcement of humanitarian law against PMCs for grave breaches is therefore not a legal problem of IHL. There is a duty and the possibility of prosecuting individual contractors in violation of IHL in the same way as soldiers of States’ armed forces. The fact that contractors are private individuals has no special legal significance for IHL. If prosecution is not possible due to problems within the domestic legislation, the State is in violation of its duty to prosecute. The problems that could lead to such a violation will be reviewed below. 240

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, 12 August 1949, UNTS, vol. 75, 30, Arts. 49, 50 (GC I); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, UNTS, vol. 75, 84, Arts. 50, 51 (GC II); GC III (note 76), Arts. 129, 130; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 287, Arts. 146, 147 (GC IV); Protocol I (note 74), Art. 85. 241 Dinstein (note 79), 230 et seq. 242 Principle of aut dedere aut iudicare, GC I (note 240), Art. 49 para. 2; GC II (note 240), Art. 50 para. 2; GC III (note 76), Art. 129 para. 2; GC IV (note 240), Art. 146 para. 2; see also Mischa Morgenbesser, Staatenverantwortlichkeit für Völkermord, Verbrechen gegen die Menschlichkeit und Kriegsverbrechen, 2003, 155. 243 Gasser (note 78), 99. 244 Morgenbesser (note 242), 100.

538

Nicki Boldt

2. State Employing the PMC The first State that naturally comes to mind for enforcing IHL against PMCs is the State on whose behalf the PMC is acting, which normally would be the employing State.245 Through its use and employment of the PMC, the State has the strongest connection to the actions of the PMC. The general responsibility of that State for acts of contractors derives from the law of State responsibility,246 which entails as an integral part the duty to abstain from acts or put an end to situations imposing its responsibility.247 Therefore, the employing State has to ensure that the contractors it employs observe IHL and do not act contrary to international law. Otherwise every offended State could take countermeasures against that State according to Article 28 et seq. ILC-Draft. According to Article 1 common to the Geneva Conventions, every State is injured by violations of IHL, which therefore have to be read as erga omnes rules.248 Again, the situation concerning responsibility is exactly the same as with States’ soldiers, and legally there are no special problems with regard to IHL. The employing State has different means of enforcement of IHL against the PMCs it has contracted. First of all, it can make use of the contract with the PMC. The US, for example, includes the US government’s Rules on the Use of Force in security escort contracts for Iraq.249 Furthermore, the State can apply the disciplinary law of its armed forces to contractors, as the US are proposing in their Proposed Rule on Contractors Accompanying a Force Deployed,250 or can enact special disciplinary laws for contractors concerning compliance with IHL, like the US has done with the Military Extraterritorial Jurisdiction Act of 2000.251 In so doing, they have to take the scope of their liability into consideration. It does not help much if, as for example the Military Extraterritorial Juris245 For problems concerning the difference between employing State and State on whose behalf a PMC acts, see, supra, Sect. C. I. 2. b). 246 Id. 247 See Art. 30 ILC-Draft (note 160). 248 Gasser (note 78), 105; Birgit Kessler, Die Durchsetzung der Genfer Abkommen von 1949 in nicht-internationalen bewaffneten Konflikten auf Grundlage ihres gemeinsamen Art. 1, 2001, 47. 249 Carter (note 186); Eunjung Cha/Merle (note 32). 250 See, supra, note 163. 251 Military Extraterritorial Jurisdiction Act, 22 November 2000, US Code, Title 18, Chap. 212.

Private Military Companies and International Humanitarian Law

539

diction Act does, the enacted law applies only to contractors employed by the Defense Department.252 The contractors working for the US in Colombia for example, are under contract to the US State Department,253 other contractors work for other US agencies, such as the Central Intelligence Agency.254 Special legal problems only arise where the employing State has no jurisdiction. There is no such problem for grave breaches, because the universal jurisdiction principle applies there.255 Other breaches of IHL, on the other hand, require a jurisdictional nexus between the employing State and the breach.256 Another question is whether the employing State is able or willing to enforce IHL against its contractors. The government of Sierra Leone, for example, contracting EO, could not control its own capital, let alone monitor or punish the actions of EO contractors. Additionally, Sierra Leone would hardly have been able to challenge the military strength of the deployed EO force.257 States like Colombia, on the other hand, will not be willing to challenge PMCs who are doing their dirty work.258 Sometimes the non-compliance with IHL by PMCs comes in quite handy, but that again is no special problem of PMCs. In addition to the obligations under State responsibility, there are some special duties in IHL that should guarantee the ability of States to comply with that law. A State has to ensure that every person or institution acting on its behalf which might possibly need to apply IHL knows of its duties and obligations under that law.259 To this end, the State has to incorporate IHL instruction into its relevant military and civil training programs.260 This duty must also apply to PMCs because they act on the State’s behalf and often have to apply IHL. The fact that they are private entities makes no difference, since the duty also applies to civilians. It is reported that, for example, translators contracted by the US undergo a one-week program at Fort Banning, including instructions on the Gene252

See Groner (note 9); Singer (note 19), 537. See, supra, note 72. 254 Singer (note 19), 537. 255 See, supra, Sect. D. I. 1. 256 See, infra, Sect. D. I. 3.–6. 257 Singer (note 19), 535, 537. 258 Id., 537. 259 Gasser (note 78), 95. 260 GC I (note 240), Art. 47; GC II (note 240), Art. 48; GC III (note 76), Art. 127; GC IV (note 240), Art. 144; Protocol I (note 74), Art. 83. 253

540

Nicki Boldt

va Conventions.261 It is unclear whether such programs are held for all US contractors, and it is more than unlikely that less developed States guarantee their contractors’ knowledge of IHL. If there is a situation where the employing State is not identical to the State on whose behalf262 the PMC is acting, the aforementioned duties apply to the State on whose behalf the PMC is acting, not to the employing State. Because the employing State, through its payments and influence, makes possible the conduct of the PMC on behalf of the other State, another obligation may be violated. That obligation is that the State must abstain from measures aimed at violating other States’ rights.263 If the PMC is used against another State or violates that State’s rights in a foreseeable way, the employing State has, through its payment, violated this duty to abstain and has therefore incurred State responsibility. The employing State has thus to supervise the PMC, even if it does not act on its behalf. 3. State Where the Breach Occurred States are not generally responsible under international law for breaches occurring on their territory, and they do not automatically have to prosecute those breaches. According to the duty to protect, every State is obliged not to allow knowingly its territory to be used for acts contrary to the rights of other States. This duty also applies if the breach occurs on the State’s own territory, provided that other States’ rights could be violated there.264 Because IHL obligations have erga omnes character,265 violations of IHL are violations of every State’s rights. Therefore, the duty to protect obliges the State to prevent breaches of IHL on its

261

Eunjung Cha/Merle (note 32). See, supra, Sect. C. I. 2. b). 263 ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, 65; Ricardo Pisillo-Mazzeschi, The Due Diligence Rule and the Nature of the International Responsibility of States, GYIL, vol. 35, 1992, 9, 31 et seq. 264 ICJ, The Corfu Channel Case (United Kingdom v. Albania), Judgment of 9 April 1949, ICJ Reports 1949, 4, 22; American-Mexican Claims Commission, Texas Cattle Claims, reprinted in: Marijorie M. Whiteman, A Digest of International Law, vol. 8, 1967, 749. 265 See, supra, Sect. D. I. 2. 262

Private Military Companies and International Humanitarian Law

541

territory. This duty has to be applied under a due diligence standard, so that a State only has to do what is possible in order to prevent such breaches.266 The legal ability of the State of occurrence of the breach to prosecute is of special importance. According to the principle of territorial jurisdiction, a State may prosecute every criminal act committed within its territory.267 An additional nexus is not necessary. The territorial State may therefore enact laws penalizing every breach of IHL if it so desires. The problem is that the territorial State will rarely have the practical possibility to prosecute contractors in violation of IHL. The State most often will not have control over the PMC. In the situation of an armed conflict, PMCs working for the adversary are out of its reach. During the Iraq war, for example, PMCs working for the US in Iraq could hardly have been expected to turn their contractors over to the government of Saddam Hussein.268 If the State has control over the PMC, it will often, in an armed conflict, rely on its services and therefore be unwilling to challenge it. In Iraq the CPA, de facto the Iraqi government at the time of US occupation, granted immunity for contractors under Iraqi law.269 This is a highly problematic issue, seeing that there also was no clear jurisdiction under US law.270 The new Iraqi government on the other hand resisted a US demand for contractor immunity in June 2004.271 4. State Used as Operational Base by the PMC The duty to protect also applies if the act is committed on the territory of another State.272 The State from whose territory a PMC manages the operations in 266

PCIJ, The Case of the S. S. “Lotus” (France v. Turkey), Judgment of 7 September 1927, PCIJ Ser. A, No. 10, 4, 16; Pisillo-Mazzeschi (note 263), 34. 267 Ian Brownlie, Principles of International Law, 6th ed. 2003, 311; Malcolm N. Shaw, International Law, 5th ed. 2003, 579. 268 See Singer (note 19), 537. 269 Status of the Coalition, Foreign Liaison Mission, Their Personnel and Contractors, CPA Order Number 17 of 27 June 2003, available at: http://www.hiciraq.org/lite/ CPA/ORD17.pdf. 270 Carter (note 186). 271 Edward Cody, Contractor Immunity a Divisive Issue, Washington Post, 14 June 2004. 272 Pisillo-Mazzeschi (note 263), 34.

542

Nicki Boldt

another States territory, therefore, has to prevent, with due diligence, this PMC from violating IHL. The State used as the operational base will often be the employing State; the problems will thus be the same as with that State. 5. State of Registration for the PMC There is no direct responsibility of the PMC’s State of registration for the actions of that PMC. If the PMC is operating from that State’s territory, the duty to protect applies, but the registration of the PMC is not enough for the State to fall under that duty. Is, for example, Blackwater, which operates its training grounds and company facilities in North Carolina,273 managing its operations from the US, or is it managing its operations from the country to which it is deployed, and merely registered in the US? This question has to be answered on a case-by case basis, keeping in mind the prerequisite that the operation violating international law itself has to be based within that country’s territory. It is obvious that the State of registration has the greatest influence on the PMC as an entity. It can enact laws that regulate the activities of PMCs, as the UK Green Paper implies.274 The most obvious possibility would be a licensing procedure for PMCs or individual contracts, like that of the US International Traffic in Arms Regulation275 or the South African Regulation of Foreign Military Assistance Bill.276 Within such a procedure States would be able to control PMCs for their compliance with IHL. The problem with the enforcement of IHL by the State of registration is the small infrastructure of PMCs. If regulations are enacted, PMCs have the ability to simply relocate in order to circumvent legislation. As South Africa’s legislation begun to concentrate on EO, the founder of EO stated that “three other African countries have offered us a home.”277 Other escape options would be 273

Barry Yeoman, Need an Army? Just Pick Up the Phone, April 2004, available at: http://www.barryyeoman.com/articles/needanarmy.html. 274 UK Green Paper (note 13), 22 et seq. 275 Id. 276 South Africa, Regulation of Foreign Military Assistance Bill, 1997, Bill 54D-97, available at: http://www.info.gov.za/gazette/bills/1997/b54d-97.pdf. 277 See Singer (note 19), 535.

Private Military Companies and International Humanitarian Law

543

operating through subsidiaries or taking on a new corporate structure.278 The problems thus are obvious. 6. State of Nationality of the PMC’s Employees There is no special responsibility for the actions of a PMC or a contractor of the State of nationality of the acting contractor. But as with the State where the breach of IHL occurred, the State of nationality provides a special means of enforcement of IHL against individuals. According to the active personality principle, a State may prosecute any offence committed by its nationals.279 II. Enforcement through International Mechanisms

If all enforcement measures through State mechanisms shown above have failed, IHL can, at least in some instances, be enforced through international law. If the relevant States are unable or unwilling to prosecute alleged war crimes, the International Criminal Court becomes competent to prosecute offenders under Article 17 of the Rome Statute280. In order to exercise jurisdiction according to Article 12 of the Statute, the offence must occur on the territory of a State party to that statute, or has to be committed by a national of a State party. An international mechanism for enforcing IHL against employees of PMCs is not available in other situations. III. Conclusion on the Enforcement of IHL Against PMCs

Under international law, the duties and possibilities of States to enforce IHL are relatively clear. The only situation where the enforcement of IHL is legally problematic occurs when a contractor is of a different nationality than the employing State and no grave breach is in question. Here some States are obliged to enforce IHL but other States only have the possibility to do so. But even so,

278

Id. Brownlie (note 267), 311; Shaw (note 267), 579. 280 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998). 279

544

Nicki Boldt

the situation would be far better than it is at present if national governments enacted and enforced regulations up to this threshold. E. General Conclusion The conclusion regarding contractor status is thus the same as that for the enforcement of IHL: IHL and international law do provide mechanisms to solve the legal problems associated with the emergence of PMCs, but national regulations lag behind this development. Due to the speed of privatization and associated difficulties with interpretation of international regulations, national legislation has not done its homework. But there is hope, as concepts are developed and laws are enacted. There are general objections to the use of PMCs that were not discussed here and are not of a legal but rather of a philosophical nature. With States using PMCs to such an extent, resolving the legal problems seems to be a more realistic approach. Were national laws in place, at least the legal arguments against PMCs’ activities would be much less convincing. The private military industry would then hopefully become a regular aspect within the legal framework of IHL, and probably of international crisis management.

Derogation Measures under Article 4 ICCPR, with Special Consideration of the ‘War Against International Terrorism’ By Angelika Siehr A. Introduction1 Article 4 is a key provision of the International Covenant on Civil and Political Rights (ICCPR or the Covenant)2 and its implementation is a touchstone for the crucial question whether human rights are taken seriously in the most critical of situations: in a state of public emergency. Since Article 4 ICCPR regulates the (admittedly paradoxical) “possibility of legally suspending the exercise of certain human rights as the only means of guaranteeing the effective enjoyment of the most fundamental ones,”3 it is obvious that this provision is open to abuse. Indeed, experience shows that public emergencies are commonly charac-

1

The first part of this article has been presented at the EU-China Dialogue Seminar on Human Rights, 8–9 November 2004, The Hague, Netherlands, cf. Angelika Siehr, State Practice with Respect to Derogations, available in English and Chinese at: http:// www.eu-china-humanrights.org/seminars/ds0411.php. 2 International Covenant on Civil and Political Rights, GA Res. 2200A (XXI) of 16 December 1966 (entered into force on 23 March 1976). 3 Cf. The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency. Tenth annual report and list of states which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy, Special Rapporteur appointed pursuant to Economic and Security Council (ESOSOC) resolution 1985/37, UN Doc. E/CN.4/Sub.2/ 1997/19, para. 42. See also Ralph Alexander Lorz, Possible Derogations from Civil and Political Rights under Art. 4 of the ICCPR, Israel Yearbook on Human Rights, vol. 33, 2003, 85. For other paradoxical aspects of the implementation of universal human rights through nation States and the attempts of public international law to cope with the problems which arise out of that situation, see Angelika Siehr, Die Deutschenrechte des Grundgesetzes. Bürgerrechte im Spannungsfeld von Menschenrechtsidee und Staatsmitgliedschaft, 2001, 132 et seq., 142 et seq., 147 et seq., 302 et seq.

546

Angelika Siehr

terized by severe human rights violations.4 On the other hand, the protection of human rights through States parties depends on the maintenance of a constitutional, democratic order which effectively guarantees human rights, and this order needs to be defended in case of public emergency. Therefore not only most State constitutions contain emergency clauses, but human rights covenants too. Among regional human rights treaties, the 1950 European Convention on Human Rights (ECHR)5 as well as the 1969 American Convention on Human Rights (ACHR)6 contain similar provisions (Article 15 ECHR, Article 27 ACHR); the terms in which they regulate the measures open to States in public emergencies differ only slightly.7 The common task of emergency clauses in human rights instruments is to cope with the challenge of finding a middle course between the recognition of the legitimate right of sovereign States to defend their constitutional, democratic order and the prevention of misuse of the tool of emergency rights.8 For this purpose Article 4 of the Covenant allows for a State party to derogate unilaterally and temporarily from parts of its obligations under the Covenant, but subjects both this measure of derogation and its material consequences to a specific regime of safeguards. In Section B, I will take a closer look at the prerequisites and limitations of Article 4 ICCPR and especially at the difficulties in view of its implementation in State practice. In Section C, I will deal with the phenomenon of international terrorism, which has proven to be an acid test of the States parties commitment to human rights: It poses not only difficult legal problems with respect to the applicability of Article 4 ICCPR and particularly of its specific regime of safeguards, but also, as a matter of fact, international terrorists aim at provoking over-reactions of the States they have attacked in order to bring disrepute upon them.

4 Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, 1994, Art. 4, mn. 7.2. 5 European Convention for the Protection of Human Rights and Fundamental Freedom, 4 November 1950, UNTS, vol. 213, 221. 6 American Convention on Human Rights, 22 November 1969, UNTS, vol. 1144, 123. 7 Cf. Lorz (note 3), 87; Kevin Boyle, Derogation Mechanisms: ICCPR and ECHR Compared, 1, available at: http://www.eu-china-humanrights.org/seminars/ds0411.php. Manfred Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, 1993, Art. 4, mn. 4, gives more weight to the differences. For a comprehensive analysis see Matthias Maslaton, Notstandsklauseln im regionalen Menschenrechtsschutz, 2002. 8 Nowak (note 7), Art. 4, mn. 2, 3.

Derogation Measures under Article 4 ICCPR

547

B. Article 4 ICCPR in the Light of State Practice I. General

By the end of the year 2003, there were 151 States parties and 67 signatories to the ICCPR.9 Out of the impressive number of 151 States parties, 26 parties have notified a state of emergency to the Secretary-General of the United Nations since 1979,10 and none of them has done so just once – except for Israel. But in fact the notification of Israel, received by the Secretary-General on 3 October 1991, contains the information that “[s]ince its establishment, the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens […].” Therefore the state of emergency proclaimed in May 1948 has remained in force ever since.11 This is still true today, notably in the occupied territories. The measure is extended regularly for 12 months.12 On the other hand Peru has transmitted 84 notifications under Article 4 of the Covenant concerning the establishment, extension or termination of a state of emergency in different parts of the country, the first one dated 18 March 1983, the latest one (up to the end of December 2003) transmitted to the Secretary-General on 1 December 2003. In one case a single notification, received by the Secretary-General on 19 March 1992, comprised 64 different declarations or extensions of a state of emergency in different Provinces of Peru during August 1990 and March 1992.13 In 2003 there was only one “new” notification of derogation from rights guaranteed by the Covenant: On 13 March 2003, the Secretary-General re9 See Multilateral Treaties Deposited with the Secretary-General, vol. I, 2003, 169, 170 (Multilateral Treaties 2003). 10 The Covenant entered into force on 23 March 1976 but the Secretary-General did not receive a notification of a state of emergency until 30 July 1979, when there was a notification from Uruguay. 11 As Israel points out, those attacks have taken the form of threats of war, of actual armed attacks, and campaigns of terrorism resulting in the murder and injury of civilians, thereby constituting a public emergency within the meaning of Art. 4 para. 1 of the Covenant; see Multilateral Treaties Deposited with the Secretary-General, vol. I, 2002, 191 (Multilateral Treaties 2002). 12 See Office of the High Commissioner for Human Rights, List of States which have proclaimed or continued a state of emergency, UN Doc. E/CN.4/Sub.2/2003/39, 3, 4 (List of States); cf. also concluding observations of the Human Rights Committee (HRC) on Israel, UN Doc. CCPR/C/79/Add.93 (1998), para. 11. 13 Multilateral Treaties 2003 (note 9), 203–205.

548

Angelika Siehr

ceived from the Government of Serbia and Montenegro a notification under Article 4 of the Covenant concerning the declaration of a state of emergency in the Republic.14 Of course, this does not mean that there has been no state of emergency in this region before.15 Nor does it mean that there are no other States in which a state of emergency – whether or not in compliance with Article 4 of the Covenant – has continued or has been newly proclaimed in 2003, either by nonmember States or by States parties who fail to comply with their obligation of notification under Article 4 para. 3 ICCPR. In order to get a clearer picture of the situation, the Commission on Human Rights has requested the Office of the United Nations High Commissioner for Human Rights to submit a list of States which have proclaimed or continued a state of emergency. In 2003 that list included 9 States in which a state of emergency had been proclaimed before June 2001 and continued thereafter (Algeria, Egypt, Israel, Pakistan, Sierra Leone, Sri Lanka, Syria, Sudan and Turkey) and 11 States in which a state of emergency was proclaimed between June 2001 and May 2003 (Argentina, Columbia, Ecuador, Ghana, Guatemala, Indonesia, Liberia, Nepal, Peru, Serbia and Montenegro and the United Kingdom).16 Against this factual background, we can now deal with the question of the legal prerequisites and limits of derogation measures under Article 4 of the Covenant. II. Legal Requirements for Derogations under Article 4 ICCPR

When a public emergency which threatens the life of the nation arises and it is officially proclaimed, a State party may, according to Article 4 para. 1 ICCPR, derogate from a number of rights to the extent strictly required by the situation. The State party, however, is not allowed to derogate from certain specific rights, namely those listed in Article 4 para. 2 of the Covenant, and may not take discriminatory measures on a number of grounds. According to Article 4 14

See Multilateral Treaties 2003 (note 9), 209. Serbia and Montenegro have derogated from Arts. 9, 12, 14, 17, 19, 21 and 22 para. 2 ICCPR. 15 Between April 1989 and April 1990 Yugoslavia, the predecessor State of Serbia and Montenegro, notified to the United Nations twice the existence and twice the termination of a state of emergency, cf. Multilateral Treaties Deposited with the SecretaryGeneral, vol. I, 2000, 211, 212. 16 Cf. List of States (note 12), 3–8. It must be mentioned that Indonesia and Liberia are not parties to the Covenant (although Liberia is a signatory) and that Turkey became a party only on 23 September 2003 but the state of emergency was lifted on 30 November 2002.

Derogation Measures under Article 4 ICCPR

549

para. 3 ICCPR, the State party is also obliged to inform the other States parties immediately, through the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. In the same way it has to notify the date on which the derogations are terminated. 1. Existence of a Public Emergency Threatening the Life of the Nation (Article 4 Para. 1 ICCPR) The basic prerequisite of any human rights derogation stated in Article 4 of the Covenant is a “time of public emergency which threatens the life of the nation.” In contrast to Article 15 ECHR, Article 27 ACHR and the original drafts in the Human Rights Commission, Article 4 ICCPR refers only to “public emergency.” The original express reference to “war” was struck as it was felt that the Covenant should not envisage, even by implication, the possibility of war because the United Nations was established with the object of preventing war.17 Though, this does not mean that in time of war derogations are not permitted: During the drafting of Article 4 ICCPR it was emphasized several times18 that the outbreak of war represents the prototype of a public emergency that threatens the life of the nation.19 But so far only three States have justified derogations from the Covenant by the reason of external aggression. In its notification dated 11 November 1985, Nicaragua cited military aggression of the United States of America to justify derogation from certain provisions of the Covenant for a period of one year starting on 30 October 1985.20 Azerbaijan cited aggression by the armed forces of Armenia threatening the very existence 17

Previous drafts contained expressions such as “in time of war or other public emergency” or “in time of war or other public emergency threatening the interests of the people,” cf. Annotations on the text of the draft International Covenants on Human Rights (prepared by the Secretary-General), UN Doc. A/2929 (1955), 23, para. 39 (Annotations on Draft). 18 Cf. UN Doc. E/CN.4/SR.126 (1949), 5, 6, 8, 9. 19 Cf. Nowak (note 7), Art. 4, mn. 10, 12; Stefanie Schmahl, Derogation von Menschenrechtsverpflichtungen in Notstandslagen, in: Dieter Fleck (ed.), Rechtsfragen der Terrorismusbekämpfung durch Streitkräfte, 2004, 125, 126, both with further references. 20 Cf. Second Periodic Report of Nicaragua, UN Doc. CCPR/C/42/Add.8 (1988), paras. 27 et seq., 53 et seq., 160 et seq.; see also Multilateral Treaties 2002 (note 11), 192.

550

Angelika Siehr

of the Azerbaijani State to justify the proclamation of the state of emergency for a period of 60 days as of 3 April 1993.21 And Israel mentioned threats of war and armed attacks in its notification received on 3 October 1991.22 In practice, States parties have mostly referred to internal difficulties like insurrectional situations (Algeria, Ecuador), vandalism and the use of firearms (Argentina), serious political and social disturbances (Bolivia, Yugoslavia), terrorist activities (Azerbaijan, Chile, Colombia, Israel, Nepal, Peru, United Kingdom), subversive activities (Ecuador, Bolivia), serious internal unrest caused by an economic crisis (Ecuador, Bolivia), natural disasters (Guatemala: Hurricane Mitch, Ecuador: severe storm), clashes between demonstrators and units of defense forces (Panama), acts of sabotage (Peru, Sri Lanka), violence caused by drug traffickers (Colombia, Peru), the need to avert a civil war, economic anarchy as well as destabilization of state and social structures (Poland), violent nationalistic clashes (Russian Federation), civil war, a very chaotic socioeconomic and political situation, lawlessness and armed robbery (Sudan), the threat from international terrorism (United Kingdom), or the attempt to assassinate the President of the Republic (Venezuela).23 Pursuant to Article 4 para. 3 of the Covenant, States parties are obliged to inform the other States parties, through the Secretary-General, of, inter alia, the reasons by which derogations from provisions of the Covenant were actuated. The Human Rights Committee (HRC), the treaty body acting under the ICCPR, in the exercise of its powers to study, report and make general comments on States parties’ reports under Article 40, has from the outset also examined whether States parties comply with Article 4 ICCPR. If we consider the abovementioned reasons given by States parties in their notifications under Article 4 para. 3 of the Covenant, it is not surprising that the Committee has not always been satisfied by them in terms of a justification for a (prolonged) state of emergency.24 Some of the formulations are very vague and abstract. For in21

The Secretary-General received the notification on 16 April 1993, cf. Multilateral Treaties 2002 (note 11), 185. 22 See, supra, note 11. 23 Cf. Multilateral Treaties 2002 (note 11), 185–206; see also cf. also Reservations, declarations, notifications and objections relating to the International Covenant on Civil and Political Rights and the Optional Protocols thereto, UN Doc. CCPR/C/2/Rev.4 (1994), 58 et seq. 24 Cf. e.g., on Colombia, UN Doc. CCPR/C/79/Add.76 (1997), para. 25. Here the Committee expresses its concern that resort to the declaration of a status of emergency is still frequent and is seldom in conformity with Art. 4 para. 1 ICCPR. In view of the

Derogation Measures under Article 4 ICCPR

551

stance, Trinidad and Tobago declared in its notification of 11 August 1995 that “action has been taken or is immediately threatened by persons or bodies of persons of such a nature and on so extensive scale as to be likely to endanger the public safety or to deprive the community of supplies or services essential to life.”25 And some notifications did not mention any reason at all, like those of Guatemala (26 July 2001), Namibia (5 August 1999),26 Serbia and Montenegro (12 March 2003), Suriname (received on 18 March 1991), and Uruguay (received on 30 July 1979).27 Article 4 ICCPR has also been considered in a number of the Committee’s views under Article 5 para. 4 of the Optional Protocol to the ICCPR (OP).28 Several of those views related to the situation in Uruguay where multiple violations of rights under the Covenant were alleged. The communications generally concerned the application of “prompt security measures” under the state of emergency in Uruguay. In the Ramírez v. Uruguay Case, the HRC stated that “the Covenant (article 4) does not allow national measures derogating from any of its provisions except in strictly defined circumstances, and the Government has not made any submissions of fact or law to justify such derogation.”29 In the prolonged state of emergency in Chile, the HRC has justified doubts as to the existence of a state of emergency threatening the life of the nation, cf. UN Doc. A/34/40 (1997), para. 78: “It was pointed out that it was the Junta itself that constituted the real state of emergency for the Chilean people and that Art. 4 of the Covenant had not been intended to justify the acts of persons who themselves created emergency.” The HRC has also expressed its deep concern over the continued state of emergency prevailing in Israel, see UN Doc. CCPR/C/79/Add.93 (1998), para. 11. 25 Multilateral Treaties Deposited with the Secretary-General, vol. I, 1996, 154; cf. also the notification of El Salvador of 31 July 1985, id., 142. 26 Namibia indicated in its notification that the derogation measures were prompted by circumstances which had arisen in the Caprivi region causing a public emergency threatening the life of the nation and the constitutional order. This cannot be seen as information about the reason, it merely reiterates the text of Art. 4 para. 1 of the Covenant, cf. Multilateral Treaties 2002 (note 11), 191. 27 For references concerning the States parties mentioned in this paragraph see, supra, note 23, especially for Serbia and Montenegro see Multilateral Treaties 2003 (note 9), 209. 28 Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 2200A (XXI) of 16 December 1966 (entered into force on 23 March 1976). 29 Communication No. R. 1/4, View of 23 July 1980, UN Doc. A/35/40 (1980), 121, 125, para. 17. In para. 18, the HRC comes to the conclusion that Arts. 7, 9 paras. 1 and 4, 10 para. 1, and 14 para. 3 ICCPR have been violated because of the treatment Mr. Ramírez received: He was not released for six weeks after his release had been ordered by the military judge, and he did not have access to legal assistance.

552

Angelika Siehr

Landinelli Silva v. Uruguay Case, where candidates for elective office had been deprived of their right to engage in any activities of a political nature, the Committee made clear once again that “it needs full and comprehensive information” in order “to assess whether a situation of the kind described in Article 4 (1) of the Covenant exists in the country concerned,” and “that a State, by merely invoking the existence of exceptional circumstances, cannot evade the obligations which it has undertaken by ratifying the Covenant.”30 In its elaborate General Comment No. 29 on States of Emergency (Article 4) adopted in 2001, which replaces the rather brief General Comment No. 5 on Derogations of Rights adopted in 1981, the Committee reminds all States parties of the fact that not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by Article 4 para. 1 ICCPR.31 Along the same lines, the so-called Siracusa Principles, formulated at a conference of experts in Siracusa in spring 1984, already in 1984 declared that, e.g., “[e]conomic difficulties per se cannot justify derogation measures.”32 In General Comment No. 29, the Committee points out that on a number of occasions, it has expressed its concern over States parties who appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation, in situations not covered by Article 4.33 30

Communication No. R. 8/34, View of 8 April 1981, UN Doc. A/36/40 (1981), 130–133, para. 8.3; see also McGoldrick (note 4), Art. 4, mn. 7.37–7.41; Lorz (note 3), 90. 31 General Comment No. 29: States of Emergency (Article 4), UN Doc. CCPR/C/21/ Rev.1/Add.11 (2001), para. 3. Concerning the function of general comments as an instrument used by organs of implementation see Eckart Klein, General Comments. Zu einem eher unbekannten Instrument des Menschenrechtsschutzes, in: Jörn Ipsen/Edzard Schmidt-Jortzig (eds.), Recht – Staat – Gemeinwohl, Festschrift für Dietrich Rauschning, 2001, 301 et seq.; see also Christian Tomuschat, Human Rights: Between Idealism and Realism, 2003, 156–158. 32 See Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, para. 41, reprinted in: UN Doc. E/CN. 4/1985/4, Annex, 7 (Siracusa Principles). 33 The Committee refers in General Comment No. 29 (note 31), fn. 1, to its following comments/concluding observations: Tanzania, UN Doc. CCPR/C/79/Add.12 (1992), para. 7; Dominican Republic, UN Doc. CCPR/C/79/Add.18 (1993), para. 4; United Kingdom, UN Doc. CCPR/C/79/Add.55 (1995), para. 23; Peru, UN Doc. CCPR/C/ 79/Add.67 (1996), para. 11; Bolivia, UN Doc. CCPR/C/79/Add.74 (1997), para. 14; Colombia, UN Doc. CCPR/C/79/Add.76 (1997), para. 25; Lebanon, UN Doc. CCPR/C/ 78/Add.12 (1997), para. 10; Uruguay, UN Doc. CCPR/C/79/Add.90 (1998), para. 8; Israel, UN Doc. CCPR/C/79/Add.93 (1998), para. 11.

Derogation Measures under Article 4 ICCPR

553

It is interesting to see which provisions of the Covenant have in practice been the targets of derogation measures: Out of 24 notifications34 19 States parties have mentioned Articles 12 (freedom of movement) and 21 (freedom of assembly) and 16 have mentioned Article 9 (personal liberty). 13 have referred to Article 22 (freedom of association), 12 to Article 19 (freedom of expression), 11 to Article 17 (privacy) and 6 have mentioned Article 14 (procedural guarantees). Only Nicaragua and Chile have referred to Article 13 (expulsion of aliens) and only Nicaragua and the United Kingdom to Article 10 (the latter just to paras. 2 and 3). Only Chile has derogated from Article 25 (political rights of citizens), Sudan from Article 2 – and only Nicaragua has listed all derogable Articles (except Article 25), including Articles 1–5, 20 and 26.35 2. Official Proclamation of a State of Emergency (Article 4 Para. 1 ICCPR) In contrast to emergency clauses in regional human rights conventions, Article 4 ICCPR states that a State party is only allowed to derogate from provisions of the Covenant when the existence of an public emergency “is officially proclaimed.” In other words, prior official proclamation is a conditio sine qua non for the application of Article 4. This condition is designed to force derogating States parties to act openly from the outset of the emergency and to delegitimize after-the-fact justifications for violations of human rights.36 At the same time it serves domestic supervision, in particular by the legislative and judicial branches.37 In this sense the HRC states in its General Comment No. 29 that this requirement is essential for the maintenance of the principle of legality and rule of law at times when they are most needed. […] States must act within their constitutional and other provisions of law that govern […] the exercise of emergency powers; it is the task of the Committee to monitor the laws in question as to whether they enable and secure compliance with Article 4. In order that the Committee can perform its task, States parties to the Covenant should include in their reports submitted under Article 40 34

Two out of 26 notifications of States parties did not indicate the provisions from which they derogated, cf. Multilateral Treaties 2002 (note 11), 191 (Guatemala), 205 (Uruguay). 35 Cf. Multilateral Treaties 2003 (note 9), 190 et seq.; especially for Yugoslavia see, supra, note 15. 36 Lorz (note 3), 91, 92. 37 Nowak (note 7), Art. 4, mn. 17.

554

Angelika Siehr

sufficient and precise information about their law and practice in the field of emergency powers.38

3. Duty of Notification (Article 4 Para. 3 ICCPR) The restrictions of the emergency clause are effective only when their observance is subject to international supervision. Therefore Article 4 para. 3 of the Covenant requires that a State party availing itself of the right of derogation shall immediately inform the other States parties to the Covenant through the Secretary-General of the provisions from which it has derogated and the reason for these measures. The Siracusa Principles39 as well as the Committee’s General Comment No. 2940 put emphasis on the importance of an immediate, comprehensive notification by a derogating State party which should include full information about the measures taken, a clear explanation of the reasons, and full documentation regarding the applicable law. Moreover, members of the Committee have consistently referred to the requirement of Article 4 para. 3 of the Covenant.41 However, on a number of occasions members of the HRC have indicated that notifications had not met the requirements of Article 4 para. 3 ICCPR: States parties had failed to notify the Secretary-General of the proclamation of a state of emergency and the resulting measures of derogation from provisions of the Covenant, or of territorial or other changes in the exercise of their emergency powers.42 For instance, in the Syrian Arab Republic, the state of emergency pro-

38

General Comment No. 29 (note 31), para. 2. Cf. Siracusa Principles (note 32), paras. 44, 45 (para. 45 lits. a to e lists five specific elements that every notification should contain in order to provide sufficient information). 40 Cf. General Comment No. 29 (note 31), para. 17. 41 Cf. e.g. UN Doc. CCPR/C/SR.468 (1983), para. 24 (El Salvador); and UN Doc. CCPR/C/SR.469 (1983), para. 19 (Tomuschat on El Salvador); UN Doc. CCPR/C/ SR.355 (1982), para. 24 (Prado Vallejo on Uruguay). 42 The Committee refers in its General Comment No. 29 (note 31), fn. 10, to its comments/concluding observations on Peru, UN Doc. CCPR/C/79/Add.8 (1992), para. 10; Ireland, UN Doc. CCPR/C/79/Add.21 (1993), para. 11; Egypt, UN Doc. CCPR/C/79/ Add.23 (1993), para. 7; Cameroon, UN Doc. CCPR/C/79Add.33 (1994), para. 7; Russian Federation, UN Doc. CCPR/C/79/Add.54 (1995), para. 27; Zambia, UN Doc. CCPR/C/79/Add.62 (1996), para. 11; Lebanon, UN Doc. CCPR/C/79/Add.78 (1997), 39

Derogation Measures under Article 4 ICCPR

555

mulgated in Legislative Decree No. 51 of 22 December 1962, amended by Legislative Decree No. 1 of 9 March 1963, is still in force43 but has never – during a period of 43 years (!) – been notified to the Secretary-General. And in Egypt, the state of emergency declared in 1981 is still in force as well.44 Another problem is that notifications of States parties do not always provide all relevant information; for example, the notifications of Uruguay (1979) and of Guatemala (1998) did not indicate the provisions of the Covenant from which they had derogated.45 Other deficits of notifications46 – e.g. the lack of full information of measures taken and of a sufficient explanation of the reasons for them – have already been mentioned. The question is what the legal consequences are if a State party to the Covenant fails to comply or fully comply with the requirement of Article 4 para. 3 of the Covenant: Would such a derogation be invalid for that reason alone? In other words: Does it mean that the State party concerned may not, unless it has issued a formal notification, invoke internationally the right recognized by Article 4 ICCPR to suspend certain obligations under the ICCPR, even if it has proclaimed a state of emergency in conformity with its domestic law?47 Or does the finding that the requirements of Article 4 para. 3 of the Covenant have not been satisfied not determine whether the derogation itself is valid under Article 4 ICCPR? Two points are not disputed: (a) A State party which fails to make an immediate notification in due form of its derogation is in breach of its obligation to other States parties pursuant to Article 4 para. 3 of the Covenant. (b) Notification is a formal requirement48 but, as members of the Committee have stressed on a number of occasions, a very important one. For instance, during consideration of the State report of El Salvador, Professor Christian Tomuschat criticized that the United Nations had apparently not been informed of measures para. 10; India, UN Doc. CCPR/C/79/Add.81 (1997), para. 19; and Mexico, UN Doc. CCPR/C/79/Add.109 (1999), para. 12. Cf. also Despouy (note 3), paras. 125, 126. 43 See Syria, Second Periodic Report, UN Doc. CCPR/C/SYR/2000/2, para. 48; cf. also List of States (note 12), 4. Here the HRC expressed concern over the State of Emergency Legislation in Syria and recommended that it be “formally lifted as soon as possible,” cf. Amnesty International, Public Statement, Al Index: MDE 24/016/2004. 44 Cf. List of States (note 12), 3. 45 Cf. Multilateral Treaties 2002 (note 11), 191 (Guatemala), 205 (Uruguay). 46 Cf. General Comment No. 29 (note 31), para. 17. 47 See Despouy (note 3), paras. 62, 126. 48 Cf. id., paras. 62, 125; Lorz (note 3), 93.

556

Angelika Siehr

derogating from the Covenant. He emphasized that the requirement of notification was no mere formality: the very fact of being obliged to give notification of any derogation could lead Governments to abandon their plans with respect to certain derogations because, all things considered, they did not find them absolutely essential.49

Obviously, the idea is not only that notification is indispensable for the discharge of the Committee’s and the other States parties’ task to monitor compliance with the provisions of the Covenant50 but also that the notification requirement will have a direct impact on a State party’s conduct in an emergency situation and the scope of its derogations under the Covenant. Therefore, the function of the formal requirement of Article 4 para. 3 is also that of a warning to respect the limitations inherent in the emergency clause. However, it does not determine itself whether there exists an emergency truly threatening the life of the nation, whether it was officially proclaimed and whether the material restrictions of Article 4 ICCPR (see Section III.) have been observed. Against this background is does not make sense to deprive the State party concerned of the defenses otherwise available to it in procedures under the Covenant51 and to declare that an unnotified derogation is wholly invalid. The consequences of a violation of Article 4 para. 3 of the Covenant should not be ”out of proportion to the essentially procedural rather than substantive nature of the notification requirements.”52 In fact, members of the HRC, too, have always been reluctant to declare that derogations made under Article 4 para. 1 are invalid on the basis of failure to comply or fully comply with the notification requirement in Article 4 para. 3;53 instead, the Committee calls upon States parties concerned to comply

49

UN Doc. CCPR/C/SR.469 (1983), para. 19. Cf. General Comment No. 29 (note 31), para. 17. 51 The Siracusa Principles (note 32), para. 47 are not clear in this respect: They state that a party “may be deprived of the defences” under Art. 4 ICCPR but they do not say under which circumstances this will be the case. Cf. also Despouy (note 3), paras. 62, 126, who seems to follow the line of the Siracusa Principles. 52 Joan F. Hartman, Working Paper for the Committee of Experts on the Art. 4 Derogation Provision, Human Rights Quarterly, vol. 7, 1985, 89, 103. 53 Cf. the HRC in Landinelli Silva v. Uruguay (note 30), para. 8.3: “Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to Art. 4 (3) of the Covenant […].” See also Hartman (note 52) (with reference to the European counterparts of the HRC who take the same position); McGoldrick (note 4), Art. 4, mn. 7.20. 50

Derogation Measures under Article 4 ICCPR

557

with this duty immediately.54 However, General Comment No. 29 states clearly that the duty of the Committee to monitor the law and practice of a State party for compliance with Article 4 does not depend on whether that State party has submitted notification.55 It seems that it has successfully followed this guideline in practice and that the stress put on Article 4 para. 3 by HRC members is bearing fruit: States parties are increasingly complying with the notification requirement, particularly after they have appeared before the Committee.56 III. Limits to Derogation Measures in Accordance with Article 4 ICCPR

1. Non-Derogable Rights (Article 4 Para. 2 ICCPR) a) The Catalogue of Non-Derogable Rights of Article 4 Para. 2 ICCPR According to Article 4 para. 2 ICCPR it is only from certain rights guaranteed by the Covenant that no derogations are possible (Articles 6, 7, 8 paras. 1 and 2, 11, 15, 16 and 18). In addition, pursuant to Article 6 para. 2 Second OP,57 the right not to be executed, guaranteed in Article 1 para. 1 Second OP, shall also not be subject to any derogation under Article 4 of the Covenant. The catalogue of Article 4 para. 2 rights is the result of a compromise achieved after lengthy discussion:58 It exceeds the small catalogue of just four essential rights in Article 15 para. 2 ECHR, but it lags behind the extensive catalogue of Article 27 para. 2 ACHR.

54

Nowak (note 7), Art. 4, mn. 33. General Comment No. 29 (note 31), para. 17. 56 McGoldrick (note 4), Art. 4, mn. 7.22 with further references. 57 Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res. 44/128 of 15 December 1989 (Second OP). Art. 6 para. 2 mentions the possibility of a reservation under Art. 2 Second OP. 58 Nowak (note 7), Art. 4, mn. 21 with further references. 55

558

Angelika Siehr

b) The Permissibility of Reservations to Article 4 Para. 2 ICCPR In practice, on a number of occasions members of the HRC have clearly stated their view that non-derogable rights have been violated, e.g. in Chile, Uruguay, Colombia, the Russian Federation and in El Salvador.59 Trinidad and Tobago has tried to evade the problems faced by these States parties by making a reservation to Article 4 para. 2 of the Covenant. That reservation stated that [t]he Government of the Republic of Trinidad and Tobago reserves the right not to apply in full the provision of article 4, paragraph 2, of the Covenant since section 7 (3) of its Constitution enables Parliament to enact legislation even though it is inconsistent with sections (4) and (5) of the said Constitution […].60

Apparently the government of Trinidad and Tobago thought in this way it would be clear once and for all that it could not be accused of having violated non-derogable rights. At first glance this seems to be crafty, but of course it is more than doubtful whether such a reservation is permissible under the ICCPR. In fact it has been strongly criticized during consideration of the report of Trinidad and Tobago. For instance Professor Tomuschat commented that it was a “serious inconsistency with the objectives and purposes of treaty law, for the Government of Trinidad and Tobago to have found it expedient to make such a reservation” and recommended that the Government should be asked to consider withdrawing it.61 The Governments of the Federal Republic of Germany and of the Netherlands have also lodged a formal objection to the reservation of Trinidad and Tobago, the former stating that in its opinion, “it follows from the text

59 See on Chile: UN Doc. CCPR/C/SR.128 (1979), para. 45 (Tarnopolsky); on Uruguay: UN Doc. CCPR/C/SR.355 (1982), paras. 24 et seq., CCPR/C/SR.357 (1982), paras. 9 et seq. (Tomuschat), UN Doc. CCPR/C/SR.359 (1982), para. 8, and UN Doc. CCPR/C/SR.373 (1982). On the Russian Federation: UN Doc. CCPR/C/79/Add. 54 (1995), para. 27; on Colombia: UN Doc. CCPR/C/79/Add.76 (1997), para. 25; on El Salvador: UN Doc. CCPR/C/SR.468 (1983), paras. 20, 23, 32, 40, UN Doc. CCPR/C/ SR.469 (1983), para. 5, UN Doc. CCPR/C/SR.474 (1983), UN Doc. CCPR/C/SR.485 (1983), paras. 17, 20, and UN Doc. CCPR/C/79/Add. 34 (1994), para. 6: “serious and systematic violations of the right to life.” 60 Reprinted in: Centre for Human Rights (ed.), Human Rights. Status of International Instruments, 1987, 44, 45. 61 See UN Doc. CCPR/C/SR.555 (1984), 2, para. 1. But when presenting the second periodic report of Trinidad and Tobago, the State representative indicated that her government had not deemed it necessary to withdraw the reservation to Art. 4 para. 2, see UN Doc. CCPR/C/SR.765 (1987), para. 15. The reservation was again criticized, id., paras. 16–18 (Higgins), 20 (Cooray), 22 (Lallah).

Derogation Measures under Article 4 ICCPR

559

and the history of the Covenant that the said reservation is incompatible with the object and purposes of the Covenant.”62 The crucial issue is on which legal basis the question of permissibility of reservations to the ICCPR has to be decided and who has the competence to do so. The ICCPR itself does not contain any provision relating to reservations. Article 19 sub-para. c of the Vienna Convention on the Law of Treaties (VCLT)63 stipulates that where a reservation is not prohibited by the treaty or falls within specified permitted categories, it is permissible provided it is not incompatible with the “object and purpose of the treaty.” Although the VCLT is generally regarded as a codification of the relevant rules of customary international law in this area, there are some tensions between the more state-centered reading of the VCLT e.g. by the International Law Commission (ILC), and the approach taken to reservations under human rights treaties, first and foremost by the HRC. As the HRC pointed out in General Comment No. 24, adopted in 1994, on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto or in relation to declarations under Article 41 of the Covenant,64 human rights treaties have a special character due to the fact that they are non-reciprocal, i.e. they are not a web of inter-State exchanges of mutual obligations but guarantee rights of individuals.65 In the opinion of the HRC, the Vienna regime, which regulates inter-State (or international organization) relations, provides relevant guidance,66 but it does not always lead to satisfactory results in the field of reservations to human rights treaties, for instance with respect to the role of State objections.67 General Comment No. 24 has also made 62

Centre for Human Rights (note 60), 51. Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, 331 (entered into force on 27 January 1980), on reservations see Arts. 19–23; cf. also Arts. 19 et seq. Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, 21 March 1986, reprinted in: ILM, vol. 25, 1986, 543 (not yet in force). 64 General Comment No. 24, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994). As of 1 November 1994, 46 of the 127 States parties to the ICCPR had, between them, entered 150 reservations of varying significance to their acceptance of the obligations of the Covenant, cf. id., para. 1. 65 Id., paras. 17, 18. 66 Id., para. 6. 67 Id., para. 17; cf. also the working paper on the question of reservations to human rights treaties submitted by Françoise Hampson on request of the Sub-Commission on the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/2004/42, which mentions the dispute concerning the question whether there should be two different 63

560

Angelika Siehr

clear that it necessarily falls to the HRC to determine whether a specific reservation is compatible with the object and the purpose of the treaty.68 This position has met strong reactions among States and attracted criticism, e.g. from the Special Rapporteur of the ILC, Professor Alain Pellet.69 The ILC and its Special Rapporteur take the view that the Vienna regime was created to be applied universally and without exceptions and, since human rights treaties including the ICCPR did not establish a special regime, according to the ILC, the Vienna regime is applicable to all kinds of reservations including reservations to human rights treaties.70 However, despite the fact that many issues in this field are highly controversial, there is agreement71 between the ILC and the HRC that, since the ICCPR neither prohibits reservations nor mentions any type of permitted reservation, reservations to the ICCPR are permissible, unless a reservation is incompatible with the object and purpose of the treaty.72 Reservations to the ICCPR therefore have to be measured against the so-called “compatibility” or “object and purpose” test. The HRC has formulated this as follows:73 The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken. types of rules on reservations: those governing purely consensual treaties and those dealing with obligations of normative character (id., para. 7); Anna Natalia Schulz, Reservations to the ICCPR – the HRC and the ILC – Comparative Analysis, 2, available at: http://www.eu-china-humanrights.org/seminars/ds0411.php. 68 General Comment No. 24 (note 64), para. 18. 69 Cf. Alain Pellet, Second Report on Reservations to Treaties, UN Doc. A/CN.4/ 477/Add.1 (1996), paras. 60 et seq., with reference to critical remarks on General Comment No. 24 by the United States, the United Kingdom and France. 70 Cf. id., paras. 112, 118 et seq.; see also Preliminary Conclusions of the ILC on reservations to normative multilateral treaties including human rights treaties adopted by the Commission, Report of the International Law Commission on the work of its fortyninth session, UN Doc. A/52/10 (1997), para. 157, Nos. 1–3 (Preliminary Conclusions of the ILC). 71 Schulz (note 67), 3. Cf. also Hampson (note 67), para. 6, who points out that Arts. 19–22 of the VCLT are “generally accepted as the starting point in any discussion.” 72 Cf. General Comment No. 24 (note 64), paras. 6, 17, on the one hand; and Preliminary Conclusions of the ILC (note 70), No. 1, and Pellet (note 69), 47, para. 164, on the other. They all emphasize that the object and purpose of the treaty is the decisive criteria for determining the admissibility of reservations. 73 General Comment No. 24 (note 64), para. 7.

Derogation Measures under Article 4 ICCPR

561

To formulate it negatively: A reservation is incompatible with the object or purpose of a human rights treaty when it covers an act or event that erodes the substance of a right or leads to its total exclusion or negation because this would contradict the principle of intangibility inherent in human rights74 – or, to be more precise: inherent in human rights of a peremptory nature (and not all nonderogable rights are human rights of peremptory nature, as shown in Section c) below). Accordingly, reservations relating to peremptory norms of international law (e.g. the right to life, Article 6 ICCPR) are incompatible with the object and purpose of the treaty.75 A fortiori this argument covers a general reservation to Article 4 para. 2 ICCPR, which comprises all non-derogable rights, including those of peremptory character. The drafters of the Covenant have emphasized in the wording of Article 4 their understanding that there should be limits to restrictions on specific rights even in situations of crises.76 A reservation to Article 4 para. 2 undermines the idea of certain safeguards to the effective implementation of human rights, which are of particular relevance in an emergency situation. For this reason a reservation to Article 4 para. 2 ICCPR is neither compatible with the spirit nor with the wording of the Covenant.77 The Committee chooses another starting point of argumentation, but comes to the same result. It argues that some provisions are non-derogable exactly because without them there would be no rule of law. A reservation to the provisions of Article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency,

74 Cf. Olivier de Frouville, L’intangibilité des droits de l’Homme en droit international public. Régime des droits de l’Homme et droit des traités, 2004; id., Practice by States in Regard to Reservations and Declarations, 8, 9, available at: http://www.euchina-humanrights.org/seminars/ds0411.php. 75 General Comment No. 24 (note 64), para. 8. The Committee has further examined whether certain categories of reservations may offend the ‘object and purpose’ test, see paras. 10 et seq. It stated that while there is no automatic correlation between reservations to non-derogable provisions and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify a reservation to nonderogable provisions. 76 Cf. Tomuschat on Trinidad and Tobago, UN Doc. CCPR/C/SR.555 (1984), para. 1. 77 This has also been the result of a debate in the HRC on the validity of the reservation made by France to Art. 4 para. 1 ICCPR when it considered France’s report in 1983. The discussion led to the conclusion that although the Committee could accept reservations to Art. 4 para. 1 ICCPR, reservations to Art. 4 para. 2 ICCPR were incompatible with the aims and purposes of the Covenant, cf. Despouy (note 3), para. 104.

562

Angelika Siehr

would fall in this category.78 Pursuant to General Comment No. 24 the normal consequence of an impermissible reservation will be its severability, i.e. the Covenant will be operative for the reserving party but without benefit of its unacceptable reservation.79 c) Non-Derogable Rights and Peremptory Norms of International Law The enumeration of non-derogable provisions is related to (but not identical with) the question whether certain human rights bear the nature of peremptory norms of international law. In view of some fundamental rights, e.g. Articles 6 (right to life) and 7 (prohibition of torture or cruel, inhuman or degrading punishment) of the Covenant, their proclamation as being non-derogable in Article 4 para. 2 of the Covenant is to be seen as recognition of their peremptory nature ensured in treaty form in the Covenant. However, it is obvious that some other provisions of the ICCPR were included in the list of Article 4 para. 2 because it can never become necessary to derogate from these rights during a state of emergency, e.g. Articles 11 (prohibition to imprisonment because of inability to fulfil a contractual obligation) and 18 (freedom of thought, conscience and religion). On the other hand, the Committee emphasizes in its General Comment No. 29 that the category of peremptory norms extends beyond the catalogue of non-derogable rights as proclaimed in Article 4 para. 2 ICCPR: States parties may in no circumstances invoke Article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.80

In fact, the United States and France had already from the outset tried to have, inter alia, certain minimum guarantees of the rule of law, in particular the prohibition of arbitrary arrest, the requirement of prompt notice of charges, the right to a fair and public trial and the prohibition of retroactive offences included in

78

General Comment No. 24 (note 64), para. 10. This means that the approach of the HRC has become more restrictive since 1983, when it only rejected a reservation to Art. 4 para. 2 of the Covenant (see, supra, note 77). 79 Id., para. 18. 80 General Comment No. 29 (note 31), para. 11.

Derogation Measures under Article 4 ICCPR

563

the catalogue of Article 4 para. 2 of the Covenant.81 At first glance it appears astonishing that most of the judicial guarantees are missing in this list in view of the fact that the Additional Protocols82 of the Geneva Conventions83 declared them valid even in the case of war or non-international conflict.84 But since two thirds of the notifications of States parties contained a derogation from Article 9 and at least six States parties derogated (officially!) from Article 14 of the Covenant,85 the most important human rights provision governing due process, it is obvious that they are not ready to accept these provisions as non-derogable. However, in its General Comment No. 29 the Committee finally made clear that a minimum standard of due process86 is not only secured by international humanitarian law during armed conflict87 but also flows from the principles of legality and the rule of law, which are also inherent in the Covenant as a whole. The recognition of non-derogable rights requires that they are secured by procedural guarantees, often including judicial guarantees. “The provisions of 81 Hartman (note 52), 116. See also Lorz (note 3), 96, 97. Israel too had proposed to entrench the right to a fair trial by an independent and impartial tribunal, cf. Andreas Zimmermann, The Right to a Fair Trial in Situations of Emergency and the Question of Emergency Courts, in: David Weissbrodt/Rüdiger Wolfrum (eds.), The Right to a Fair Trial, 1998, 747, 758. For a comprehensive overview see David Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 2001, 35 et seq., 93 et seq. 82 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, vol. 1125, 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, UNTS, vol. 1125, 609. 83 Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 12 August 1949, UNTS, vol. 75, 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, UNTS, vol. 75, 85; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS, vol. 75, 135 (Geneva Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, vol. 75, 287. 84 Karl Josef Partsch, Human Rights, Covenants and their Implementation, in: Rüdiger Wolfrum (ed.), United Nations: Law, Policies and Practice, vol. 1, 1995, 592, para. 31. 85 See, supra, text accompanying note 35. 86 Cf. also the Siracusa Principles (note 32), paras. 60, 64, 66, 67, 70. 87 Particularly Art. 3 common to the Geneva Conventions (note 83); see Siracusa Principles (note 32), para. 67. The right to fair trial, guaranteed in Art. 3 of the Geneva Conventions, is part of the non-derogable minimum humanitarian standard, cf. Schmahl (note 19), 133, 134.

564

Angelika Siehr

the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights.”88 Furthermore, other provisions of the Covenant not listed in Article 4 para. 2 contain elements which cannot be made subject to lawful derogation under Article 4. A number of examples are given in General Comment No. 29.89 For instance, pursuant to Article 10 of the Covenant all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Although Article 10 is not expressly mentioned in Article 4 para. 2 ICCPR, the HRC rightly believes that here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person in the preamble to the Covenant and by the close connection between Articles 7 and 10. Another barrier is erected by the principle of proportionality (see Section b) below), according to which rights the suspension of which is pointless in states of emergency are in fact non-derogable too, even if they are not mentioned in Article 4 para. 2 of the Covenant and cannot be characterized as being of peremptory nature, e.g. the right of a child to a name and recording in a birth register (Article 24 para. 2). They are not mentioned in Article 4 para. 2 of the Covenant because an extension of the catalogue of non-derogable rights to these rights would trivialize this provision90 and obscure its underlying idea that certain essential rights of persons particularly endangered in emergency situations must be protected under all circumstances, including war or civil war. 2. Proportionality (Article 4 Para. 1 ICCPR) According to Article 4 para. 1, rights may be derogated from only “to the extent strictly required by the exigencies of the situation.” This is an express reference to the principle of proportionality which is subject to review by the Committee. In addition to the enumeration of non-derogable rights in Article 4 para. 2, it represents the most important limitation on permissible derogation measures.91 Similar to the proportionality requirement in national constitutions, 88 89 90 91

General Comment No. 29 (note 31), paras. 15, 16. Id., para. 13. See Hartman (note 52), 114. Nowak (note 7), Art. 4, mn. 24.

Derogation Measures under Article 4 ICCPR

565

it demands that the degree of interference and the scope of the measure (both territorially and temporally) must be in reasonable relation to what is actually necessary to cope with a public emergency which threatens the life of the nation. Moreover, the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the necessity of scrutinizing whether the specific measures taken pursuant to the derogation are also required by the exigencies of the situation.92 Furthermore, since permissible limitations (during normal periods) have been formulated individually for some of the rights protected by the Covenant (e.g. Articles 12 para. 3 and 19 para. 3), these are to be exhausted prior to taking emergency measures.93 The principle of proportionality also requires that the necessity of derogation measures be reviewed at regular intervals by independent national organs, in particular, by the legislative bodies and the courts. As exceptional measures, they may be imposed only for a limited period of time.94 The HRC has several times expressed its concern over insufficient attention being paid to the principle of proportionality, as for example in its concluding observations on Israel where it recommended “that the Government review the necessity for the continued renewal of the state of emergency with a view to limiting as far as possible its scope and territorial applicability and the associated derogation of rights.”95 The Committee has also expressed its reservations with regard to the duration of derogation measures taken by Chile, Syria, Colombia, Uruguay, Peru and El Salvador.96 Although the Committee has usually been reluctant to state a clear violation of the proportionality requirement, it has done so in cases where the misuse of emergency powers was evident, for instance in the Guerrero v. Colombia Case,97 where the Colombian police had raided a house 92

Cf. General Comment No. 29 (note 31), para. 4. Nowak (note 7), Art. 4, mn. 24. 94 Id., Art. 4 para. 25. 95 Cf. UN Doc. CCPR/C/79/Add.93 (1998), para. 11. 96 See the Report of the HRC: UN Doc. A/34/40 (1979), para. 78 (Chile), para. 293 (Syria); cf. also UN Doc. A/35/40 (1980), para. 247 (Colombia); UN Doc. A/37/40 (1982), para. 270 (Uruguay); UN Doc. A/38/40 (1983), para. 263 (Peru); UN Doc. A/ 42/40 (1987), para. 157 (El Salvador). 97 Communication No. R.11/45, View of 31 March 1982, UN Doc. A/37/40 (1982), 137, for the view of the HRC see para. 13.3: “[T]he action of the police resulting in the death of Ms. Guerrero was disproportionate to the requirement of law enforcement […] she was arbitrarily deprived of her life contrary to Art. 6 (1) […].” 93

566

Angelika Siehr

because of the suspicion that it had been used for kidnapping, and despite the fact that no evidence was found, had stayed in the house to await the arrival of the “suspected kidnappers.” They were killed as they arrived. In this way, seven innocent persons were shot dead as they arrived at their home. General Comment No. 29, however, indicates that the Committee will in future take a closer look at the proportionality requirement even in cases in which abuse is less evident.98 3. Compatibility with Other Obligations under International Law (Article 4 Para. 1 ICCPR) Article 4 para. 1 of the Covenant sets the further condition that derogation measures must not be inconsistent with the State party’s other obligations under international law, particularly the rules of international humanitarian law.99 This means that Article 4 does not provide any justification for derogation from the Covenant if this would entail a breach of the State’s other international obligations, whether based on treaty or general international law.100 The objective of the so-called “consistency requirement” is to harmonize the different obligations under international law undertaken by the States and especially to develop an interconnected system of various human rights obligations which comprises universal and regional human rights treaties as well as customary international law. This is supposed to strengthen the protection of human rights in emergency situations through the complementary application of all available norms, the idea being that the norm most favorable to the protection of human rights shall prevail.101 In practice, the handling has sometimes been quite different. Although Article 27 ACHR holds political rights to be non-derogable, Chile is the only State party that has notified a derogation from Article 25 lit. b ICCPR,102 and Uruguay has done so de facto as is known from the Landinelli Silva v. Uru-

98

General Comment No. 29 (note 31), paras. 4 et seq. Id., para. 9. 100 Id. 101 See Lorz (note 3), 100 et seq. 102 Cf. Multilateral Treaties 2002 (note 11), 187. 99

Derogation Measures under Article 4 ICCPR

567

guay Case103 (despite the fact that it had not mentioned any provisions of the ICCPR from which it derogated in its notification).104 It is not the task of the HRC to review the conduct of a State party under other treaties, but in exercising its function under the Covenant, the Committee has the competence to take a State party’s other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant. Therefore, it asks the States parties in General Comment No. 29 to present information on their other international obligations relevant for the protection of the rights in question, in particular on those obligations that are applicable in times of emergency, when invoking Article 4 para. 1 or when reporting under Article 40 ICCPR.105 In this respect, States parties should duly take into account the developments within international law of human rights standards applicable in emergency situations.106 4. Prohibition of Discriminatory Measures (Article 4 Para. 1 ICCPR) According to Article 4 para. 1 ICCPR, the permissibility of any derogation from the Covenant is further limited by the requirement that the measures taken do not involve discrimination solely on the grounds of race, color, sex, language, religion or social origin. But this requirement is somehow limited in itself. First, the distinctional criteria “national origin” and “political opinion” were deliberately omitted due to the fact that in times of war nationals of enemy

103

See, supra, text accompanying note 30. Cf. Multilateral Treaties 2002 (note 11), 205. 105 General Comment No. 29 (note 31), para. 10. The HRC refers here to the Convention on the Rights of the Child, GA Res. 44/25 of 20 November 1989, which has been ratified by almost all States parties to the Covenant and does not include a derogation clause. As Art. 38 of the Convention clearly indicates, it is applicable in emergency situations. 106 Cf. UN Doc. E/CN.4/1999/92, UN Doc. E/CN.4/2000/94 and UN Doc. E/CN.4/ 2001/91. For earlier efforts to identify fundamental rights applicable in all circumstances, see, e.g., International Law Association, Paris Minimum Standards of Human Rights Norms in a State of Emergency, 1984, reprinted in: American Journal of International Law (AJIL), vol. 79, 1985, 1072, 1073 et seq. (Paris Minimum Standards), or the Siracusa Principles (note 32). Cf. also Despouy (note 3), paras. 27 et seq., 102 et seq. For further references see General Comment No. 29 (note 31), fn. 6. 104

568

Angelika Siehr

States are often discriminated against, and second, the insertion of the word “solely” shows that it is the motive or intention that counts. Therefore, derogation measures that – because of their geographically limited scope of application – primarily affect members of a certain race or a certain religious or linguistic minority are permissible as long as they are not aimed at these population groups.107 Since discrimination is unfortunately often witnessed during states of emergency, the express prohibition in Article 4 para. 1 ICCPR helps to uphold prohibitions of discrimination otherwise derogable under the Covenant (Articles 2, 3, 14 para. 1, 23 para. 4, 24 para. 1, 25 and 26). On the other hand, as the Committee points out, there are elements or dimensions of the right to nondiscrimination that cannot be derogated from in any circumstances although the aforementioned Covenant provisions related to non-discrimination have not been listed among the non-derogable provisions in Article 4 para. 2 of the Covenant.108 The derogation e.g. of Sudan from Article 2 of the Covenant or the extensive derogations made by Nicaragua, which refer in fact to all derogable rights of the Covenant (except Article 25), must accordingly be interpreted in conformity with this specific prohibition of discrimination.109 C. The ‘War against International Terrorism’ under Article 4 ICCPR International terrorism is a challenge to the international order in many respects – not least in view of the emergency clauses of human rights treaties, including the provisions of Article 4 ICCPR. “Talking about legal aspects of emergency regimes takes us not only to the limits of normality as far as the factual situation is concerned, but to the limits of law – and the rule of law – as well.”110 This is especially true if the proclamation of an emergency situation refers to the highly complex phenomenon of international terrorism. However, since for the first time a State party to the ICCPR decided in December 2001 to avail itself of the right of derogation conferred by Article 4 para. 1 of the Covenant on the grounds of the terrorist attacks in New York, Washington, D.C. and

107 108 109 110

Cf. Nowak (note 7), Art. 4, mn. 28; Lorz (note 3), 101. General Comment No. 29 (note 31), para. 8. Cf. Multilateral Treaties 2002 (note 11), 203 (Sudan), 192 (Nicaragua). Lorz (note 3), 85.

Derogation Measures under Article 4 ICCPR

569

Pennsylvania on 11 September 2001,111 we have to face the difficult question whether ‘war against international terrorism’ as it has been proclaimed by President George W. Bush after these attacks can be waged on the basis of the emergency clause of Article 4 ICCPR. I. Legal Responses of the United Kingdom and of the United States of America

On 18 December 2001 the United Kingdom made the following notification to the Secretary-General of the United Nations: The terrorist attacks in New York, Washington, D.C. and Pennsylvania on 11th September 2001 resulted in several thousand deaths, including many British victims and others from 70 different countries. In its resolutions 1368 (2001) and 1373 (2001), the United Nations Security Council recognised the attacks as a threat to international peace and security. The threat from international terrorism is a continuing one. In its resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks. There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 4(1) of the Covenant, exists in the United Kingdom. […].112

According to the notification, as a result of the public emergency, provision was made in the Anti-terrorism, Crime and Security Act 2001,113 inter alia, for an extended power to arrest and detain a foreign national which will apply where 111

Notification of the United Kingdom of 18 December 2001, Multilateral Treaties Deposited with the Secretary-General, vol. I, 2001, 220, 221 (Multilateral Treaties 2001). 112 Id. 113 See Anti-terrorism, Crime and Security Act 2001, Chapter 24, Part 4, Sect. 21–23 (detailing the new law of the UK for dealing with suspected international terrorists through certification, deportation, removal, and detention), available at: http://www. legislation.hmso.gov.uk/acts/acts2001/20010024.htm.

570

Angelika Siehr

it is intended “to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic law powers.”114 The United Kingdom states further that it is aware of the fact that in some cases “continued detention may not be consistent with Article 9 of the Covenant. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 7 of the Covenant.” In such circumstances the international obligations of the United Kingdom prevent removal or deportation, “irrespective of the gravity of the threat to national security posed by the person concerned […].” And it concludes as follows: “To the extent that the exercise of the extended power may be inconsistent with the United Kingdom’s obligations under Article 9, the Government has decided to avail itself of the right of derogation conferred by Article 4(1) of the Covenant and will continue to do so until further notice.”115 Since the United Kingdom is a State party to the ECHR too, and parts of the Anti-terrorism Act also directly violate Article 5 para. 1 lit. f ECHR, according to which detention of a person with a view to deportation is only permitted where “action is being taken with a view to deportation” (Chahal v. United Kingdom),116 the Government further decided to declare that a public emergency within the meaning of Article 15 para. 1 ECHR exists in the United Kingdom to temporarily opt out of its obligations under that part of the ECHR.117 The wording of the two notifications is nearly identical.118 So far, the United Kingdom has been the only State party which has notified a derogation from the ICCPR and from the ECHR because of the implementation of a new anti-terrorism law.119 By 19 December 2001, just a few days after the law had entered into force, the Government had already used its new powers 114

Notification of the United Kingdom (note 111), 221. Id. 116 Eur. Court H.R., Chahal v. The United Kingdom, Judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, 1831, 1863, para. 112. 117 Cf. Statutory Instrument 2001 No. 4032, The Human Rights Act 1998 (Amendment No. 2) Order 2001, 19 December 2001, Part I, available at: http://www.hmso.gov. uk/si/si2001/20014032.htm. 118 Cf. id. in comparison with the notification of the United Kingdom (note 111). 119 William Hoge, U.S. Terror Attacks Galvanize Europeans to Tighten Laws, New York Times, 6 December 2001 (overview of the legislative efforts in the European Union, France, Germany, Spain and the United Kingdom to enhance their laws to protect against terrorism). 115

Derogation Measures under Article 4 ICCPR

571

under the Anti-terrorism Act to detain suspected international terrorists. Since the Anti-terrorism Act curtails certain civil liberties for a particular group of individuals – non-nationals suspected of being terrorists –, civil liberty groups announced that they would challenge the law both in the British courts and the European Court of Human Rights.120 On 16 December 2004, Britain’s highest court, a specially convened panel of judges in the Law Lords, ruled 8 to 1 in favor of nine foreign Muslim men who had been in detention for as long as three years, stating that the Government could not indefinitely detain foreigners suspected of terrorism without charging or trying them. The court stated that the Government’s “draconian” measures unjustly discriminate against foreigners since they did not apply to British citizens and that they constituted a lopsided response to the threat of a terrorist attack; the judges deemed them a clear violation of the ECHR.121 The US Administration, who had ratified the ICCPR in June 1992,122 reacted quite differently. Although it did proclaim a national emergency on 14 September 2001,123 it has never notified a state of public emergency pursuant to Article 4 para. 3 ICCPR. However, the Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism issued by President Bush on 13 November 2001124 contains provisions which, as a matter of fact, do 120

Cf. Virginia Helen Henning, Anti-Terrorism, Crime and Security Act 2001: Has the United Kingdom Made a Valid Derogation from the European Convention on Human Rights?, American University International Law Review, vol. 17, 2002, 1263, 1266 et seq. 121 Lizette Alvarez, Anti-Terrorism Law Rejected in Britain, The New York Times, 17 December 2004; cf. Also Richter verwerfen Antiterrorgesetz, Frankfurter Allgemeine Zeitung, 17 December 2004, 6; Terror-Gesetze verstoßen gegen Menschenrechte, Süddeutsche Zeitung/sueddeutsche.de, 16 December 2004, available at: https://ssl.sued deutsche.de/ausland/artikel/920/44876/. 122 It did so, however, with a great number of understandings, declarations and reservations, cf. Willem van Genugten, The United States’ Reservations to the ICCPR; International Law versus God’s Own Constitution, in: Monique Castermans-Holleman/Fried van Hoof/Jacqueline Smith (eds.), The Role of the Nation-State in the 21st Century. Human Rights, International Organisations and Foreign Policy, Essays in Honour of Peter Baehr, 1998, 35. 123 Cf. Presidential Documents, Proclamation 7463 of September 14, 2001, Declaration of National Emergency by Reason of Certain Terrorist Attacks, Federal Register, vol. 66, No. 181, 48199, 18 September 2001, also available at: http://www.whitehouse. gov/news/releases/2001/09/20010914-4.html. 124 Available at: http://www.whitehouse.gov/news/releases/2001/11/20011113-27. html.

572

Angelika Siehr

establish a derogation from Articles 9 and 14 ICCPR. It states in Section 1 lit. d that its ability to protect the United States and its citizens and to help its allies protect their citizens from further terrorist attacks “depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks.” Pursuant to Section 1 lit. e, it is necessary for individuals subject to this order to be detained and when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals. Section 4 lit. a of the Order determines that any individual subject to the said order shall, when tried, be tried by military commission and may punished even by the death penalty. According to Section 4 lit. b the Secretary of Defense shall issue, inter alia, orders for the appointment of one or more military commissions.125 According to Section 4 lit. c sub-para. 3, the admission of evidence is within the discretion of the presiding officer of the military commission. Pursuant to Section 7 lit. b of the Order, (1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and (2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

On 21 March 2002 the US Secretary of Defense, Donald H. Rumsfeld, issued Military Commission Order No. 1 which regulates, within the framework given by Military Order of 13 November 2001, “Procedures for Trials by Military Commissions of Certain Non-United-States Citizens in the War Against Terrorism.”126 This means that – contrary to Article 14 para. 5 ICCPR – a review by a higher tribunal according to law is denied to individuals subject to the Military Order. Moreover, the above-mentioned military commission itself does not constitute 125

For a critical review of the use of military commissions see Rahmatullah Khan, The U.S. Military Tribunals to Try Terrorists, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 62, 2002, 293, 315, 316, who calls the military tribunals, inter alia, “a mis-judged measure” and criticizes the “draconian character” of the Order; see also Daryl A. Mundis, The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts, AJIL, vol. 96, 2002, 320 et seq., and the references infra, note 224. 126 United States Department of Defense, Military Commission Order No. 1, reprinted in: ILM, vol. 41, 2002, 725 et seq.

Derogation Measures under Article 4 ICCPR

573

an independent and impartial tribunal established by law within the meaning of Article 14 para. 1 ICCPR, particularly since the final decision is up to the President or the Secretary of Defense (Section 4 lit. c sub-para. 8 of the Military Order). And there are no institutional guarantees for an appropriate defense, for prompt information to the detainee in a language which he understands on the nature and cause of the charge against him, for the right to be tried without undue delay, the right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, and other elements of the right to fair trial as required under Article 14 para. 3 ICCPR. Furthermore, the two Orders are silent on the question of the duration and further procedural requirements of detention itself and especially on the right to challenge its lawfulness, thereby derogating from Article 9 paras. 1 to 4 ICCPR.127 As we know, this has already become relevant in US practice. More than 600 persons suspected of being Taliban or Al-Qaeda terrorists have been detained at the US Naval Base at Guantánamo Bay, Cuba, most of them already for more than three years, but only four of them have been charged so far.128 Although it follows from the fact that the United States, according to Article III of the Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations,129 exercises “complete jurisdiction and control over and within said areas” at the US Naval Base at Guantánamo Bay, that the United States is bound by Article 2 paras. 1 and 3 ICCPR130 to respect and to ensure to all in127 Khan (note 125), 299: The Military Order of 13 November 2001 “occasioned a storm of protest in the media;” see also Christian Tomuschat, Der 11. September 2001 und seine rechtlichen Konsequenzen, Europäische Grundrechte-Zeitschrift (EuGRZ), vol. 28, 2001, 535, 545, who emphasizes that it would be fatal if the United States who wanted to combat a serious breach of the law would have to be blamed themselves for a breach of the law because of a lack of essential procedural guarantees. 128 The first 20 out of more than 625 detainees (cf. for information of the US Department of Defense: http://www.defenselink.mil/news/detainees.html; according to German news broadcast about 550 persons were still detained in January 2005) have been brought to Guantánamo Bay on 11 January 2002, cf. Bernhard Schäfer, Guantánamo Bay. Status der Gefangenen und habeas corpus, Studien zu Grund- und Menschenrechten, No. 9, 2003, 5 et seq. 129 16/23 February 1903, US Treaty Series No. 418, Agreement between the United States and Cuba; for more details Schäfer (note 128), 11 et seq. 130 The wording in Art. 2 para. 1 ICCPR “within its territory and subject to its jurisdiction” has to be read as a “disjunctive conjunction,” i.e., each State party undertakes to respect and ensure the rights recognized in the Covenant to all individuals within its territory and also to all individuals subject to its jurisdiction; cf. Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in: Louis

574

Angelika Siehr

dividuals subject to its jurisdiction at Guantánamo Bay the rights recognized in the Covenant131 and to provide, in the case of violations, an effective remedy, it did not do so with respect to its obligations under Articles 9 and 14 ICCPR as far as its detainees at Guantánamo Bay are concerned.132 In short: The United States have never notified a derogation from the ICCPR, but have established by domestic law and practice a de facto derogation from several provisions contained in Articles 9 and 14 of the Covenant. As already mentioned,133 the failure of notification constitutes a breach of a State party’s obligation under Article 4 para. 3 ICCPR, but it does not bar the State party concerned – here the United States – from arguing that the derogation itself is justified under Article 4 ICCPR. Therefore, the correctly notified derogation of the United Kingdom as well as the unnotified de facto derogation of the United States have to be examined further in order to determine whether they are in compliance with the (other) requirements of Article 4 ICCPR. II. Evaluation of Facts in the Light of Article 4 ICCPR

1. The Concept of ‘War Against International Terrorism’ The first question to answer is whether the terrorist attacks of 11 September 2001 or their consequences, the ‘war against international terrorism’ proclaimed by President George W. Bush after these attacks, truly constitute a “public emergency which threatens the life of the nation” under Article 4 para. 1 of the Covenant. As already mentioned, the United States consider themselves to be ‘at war.’ Not only does the above-mentioned Military Order of 13 November 2001 refer to “War against Terrorism.” President Bush has used the term on many other occasions, too; probably for the first time (as known to the public) in a phone call shortly after the terrorist attacks on 13 September 2001 with the Mayor of the City of New York, Rudolph W. Giuliani, and the Governor of the Henkin (ed.), The International Bill of Rights – The Covenant on Civil and Political Rights, 1981, 72, 74; see also Theodor Meron, Extraterritoriality of Human Rights Treaties, AJIL, vol. 89, 1995, 78 et seq. 131 On the applicability of the ICCPR cf. Schmahl (note 19), 135, fn. 63; and for a comprehensive analysis Schäfer (note 128), 43 et seq., 45 et seq. 132 Schäfer (note 128), 43 et seq.; Khan (note 125), 309 et seq. (Guantánamo Bay Cases), 311 et seq.; Tomuschat (note 127), 545; Schmahl (note 19), 133 et seq. 133 See, supra, Sect. B. II. 3.

Derogation Measures under Article 4 ICCPR

575

State New York, George E. Pataki,134 and at the National Day of Prayer and Remembrance on 14 September 2001,135 but e.g. also in his State of the Union Address of 29 January 2002, where he stated: “As we gather tonight, our nation is at war” to conclude optimistically “[w]e are winning the war on terror.”136 Bearing in mind that the original assumption underlying Article 4 ICCPR focused on war as the prototype of a “public emergency which threatens the life of the nation,”137 the use of the term ‘war’ in relation to international terrorism seems to suggest that the basic prerequisite of Article 4 para. 1 ICCPR is fulfilled. But, of course, the persuasive power of this argument depends on the legally correct use of the term ‘war.’ ‘War’ in the legal sense of the word is an armed conflict between two or more States or at least between a State and an organized (and identifiable!138) armed group, under responsible command, exercising such control over a part of the territory of the State as to enable it “to carry out sustained and concerted military operations”139 and to which international humanitarian law can be applied – principally the Hague Rules,140 the Red Cross Conventions of 1949 and the 1977 Protocols thereto.141 The non-state organization of Al-Qaeda terrorists is not at all able to control a part of the US territory; it is only capable of operating in disguise to commit terrorist attacks. So far, terrorist attacks have usually been regarded as serious offenses, to be punished under national legislation by national courts. In addition, trans-national, state-sponsored terrorism can be defined as an international crime, and is already prohibited by international

134

“An act of war was declared on the United States of America,” quoted in: Tomuschat (note 127), 535, 536, fn. 4. 135 “War has been waged against us by stealth and deceit and murder,” quoted in: id. 136 See White House, Office of the Press Secretary, The President’s State of the Union Address, 29 January 2002; cf. also New York Times, 30 January 2002. 137 See, supra, text accompanying note 16; cf. also Lorz (note 3), 88; Jaime Oraá, Human Rights in States of Emergency in International Law, 1992, 91 et seq. 138 Alain Pellet, The Attack on the World Trade Center, Legal Responses: No, This is not War!, 1, available at: http://www.ejil.org/forum_WTC/ny-pellet.html. 139 Cf. Protocol II (note 82), Art. 1 para. 1. Protocol II has been signed, but not ratified by the United States. 140 Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, reprinted in: Dietrich Schindler/Jirí Toman, The Laws of Armed Conflicts, 3rd ed. 1988, 69. 141 Pellet (note 138).

576

Angelika Siehr

customary law as a distinct category of such crimes.142 In view of the magnitude and extreme gravity of the terrorist attacks of 11 September 2001 as well as the fact that they targeted civilians, they may even be classified as crimes against humanity under Article 7 para. 1 of the Statute of the International Criminal Court,143 defined as inhuman acts committed as “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”144 However, whether or not States gradually come to share this characterization, the fact remains that we are confronted with very serious criminal offences committed by groups of individuals,145 but not with an act of ‘war,’146 of ‘aggression’147 or an ‘armed attack’148 in the legal sense of the word. Indeed, as the United Kingdom correctly pointed out in its above-mentioned notification of 18 December 2001, the Security Council had, in its Resolution 1368, unanimously adopted the day after the terrorist attacks of 11 September, considered the attacks, “like any act of international terrorism, as a threat to international peace and security.”149 But the Council carefully avoided speaking 142

Antonio Cassese, Terrorism is also Disrupting Crucial Legal Categories of International Law, 1, available at: http://www.ejil.org/forum_WTC/ny-cassese.pdf. 143 Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/ CONF.183/9, reprinted in: ILM, vol. 37, 1998, 999 (ICC Statute). 144 Tomuschat (note 127), 536; Cassese (note 142), 2, with reference to UN Secretary-General, Kofi Annan, UN High Commissioner for Human Rights, Mary Robinson, and others who have taken the same view. Pellet (note 138), 1 et seq., sees this possibility but points out that Art. 7 ICC Statute was not conceived in this spirit. 145 This has also been the position of SC Res. 1368 of 12 September 2001 and is in line with SC Res. 1269 of 19 October 1999 which summarizes the traditional approach of the UN to the problem of terrorism; cf. Doris König, Terrorism, in: Rüdiger Wolfrum (ed.), United Nations: Law, Policies and Practice, vol. 2, 1995, 1220, paras. 3 et seq. 146 Cassese (note 142), 1, Tomuschat (note 127), 536; cf. also Pierre-Marie Dupuy, The Law after the Destruction of the Towers, available at: http://www.ejil.org/forum_ WTC/ny-dupuy.html; Jordan Paust, War and Responses to Terrorism, available at: http://www.asil.org/insights/insigh77.htm#addendum2. 147 Pellet (note 138), 1. 148 The English version of Art. 51 of the Charter of the United Nations, 26 June 1945, UNCIO, vol. 15, 335, uses the expression “armed attack,” whereas the French version speaks of “aggression.” 149 SC Res. 1368 (note 145). The view of the Council, which has long considered that an internal conflict can constitute such a threat, has been shared by others (cf. Pellet (note 138), 2), and the Council has already defined specific “acts of international terrorism” as threats to the peace, e.g. with regard to the attacks against aircraft at Lockerbie and Flight UTA 772 attributed to Libya, see SC Res. 731 of 21 January 1992 and SC Res. 748 of 31 March 1992 (for more details cf. König (note 145), para. 13). However,

Derogation Measures under Article 4 ICCPR

577

of an “armed attack,” fully aware of the fact that according to Article 51 of the Charter the existence of such an attack is an indispensable precondition for selfdefense.150 Moreover, the US Administration itself would not at all recognize these attacks to be legally defined as an ‘act of war’ since the legal consequence would be the applicability of international humanitarian law, which grants certain privileges to the parties of the conflict.151 For the same reason the terrorist attacks of 11 September 2001 are no war crimes152 or violations of the laws of war as Section 1 lit. e of the above-mentioned Military Order of 13 November 2001 seems to suggest. These criminals should be tried under criminal law, not by military commissions for violations of the laws of war.153 Admittedly, the use of the misnomer ‘war’ has a huge psychological impact on public opinion. It emphasizes that the attacks of 11 September are so serious that their evil effects as well as the dimensions of a necessary US response can be equated with State aggression.154 This is politically legitimate but also dangerous,155 because legal categories get mixed up. Moreover, the position of the United States appears contradictory if the Bush Administration talks about ‘war’ and appoints military commissions but refuses to apply international humanitarian law, arguing that Al-Qaeda terrorists are not a contracting party to the Red Cross Geneva Conventions of 1949.156 Since a great deal of international humanitarian law is part

Res. 1368 marks the first time that the Council has classified terrorist attacks as threats to the peace in the abstract. See Andreas Zimmermann/Björn Elberling, Grenzen der Legislativbefugnisse des Sicherheitsrats – Resolution 1540 und abstrakte Bedrohungen des Weltfriedens, Vereinte Nationen, vol. 52, 2004, 71. 150 Nevertheless, the Council recognized in Resolution 1368 (2001) “the inherent right of individual or collective self-defence in accordance with the Charter;” for the combination of traditional and new answers the Council gave in this resolution to the phenomenon of international terrorism and its ambiguous character see Bardo Fassbender, The UN Security Council and International Terrorism, in: Andrea Bianchi (ed.), Enforcing International Law Norms Against Terrorism, 2004, 83, 86 et seq. 151 Tomuschat (note 127), 536. 152 Pellet (note 138), 1. 153 Joan Fitzpatrick, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, AJIL, vol. 96, 2002, 345 et seq., 353, 354. 154 Cassese (note 142), 1. 155 Pellet (note 138), 1. 156 Cf. White House, Office of the Press Secretary, Fact Sheet: Status of Detainees at Guantánamo, 7 Februar 2002, available at: http://www.whitehouse.gov/news/releases/ 2002/02/20020207-13.html.

578

Angelika Siehr

of international custom157 and some of its norms are even of peremptory nature,158 it could be applied if the Al-Qaeda terrorists who prepared the attacks of 11 September were a party to an armed conflict – but, as shown they are not and the term ‘war’ is false in legal terms. Of course, the situation is different with respect to the detainees at the US Naval Base in Guantánamo Bay captured during the armed conflict with Afghanistan which started on 7 October 2001. In this case, we do have an armed conflict and international humanitarian law, especially the Geneva Convention Relative to the Treatment of Prisoners of War, has to be applied.159 It is not possible to treat the specific problems with regard to the Guantánamo Bay detainees here.160 However, there is one point I would like to stress: Even if international humanitarian law has to be applied, this does not mean that international human rights law, including the ICCPR, is no longer applicable. As the International Court of Justice (ICJ) has pointed out, “the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.”161 However, if the meaning of a term used in a provision of the ICCPR seems to be doubtful, its interpretation may be determined by international humanitarian law if it proves to be the applicable lex specialis in this specific context. For instance, with respect to the question whether a person – contrary to Article 6 para. 1 ICCPR – is “arbitrarily deprived of his life” the answer will be provided by international humanitarian law which is designed to regulate the conduct of hostilities.162 On the other hand, Article 4 ICCPR was expressly designed to protect human rights in times of crisis, first and foremost during an armed conflict. For this reason, international human rights law is also applicable to the detention of enemy combatants which is, unlike what the US Administration assumes, not exclusively “governed by the

157

1989. 158

Cf. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law,

Cf. Geneva Conventions (note 83), common Art. 3 para. 1. Cf. Tomuschat (note 127), 545; thoroughly Schäfer (note 128), 36 et seq. 160 See for a comprehensive analysis Schäfer (note 128). 161 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, 240, para. 25. 162 Cf. id. 159

Derogation Measures under Article 4 ICCPR

579

more specific laws of armed conflict.”163 This means that the derogation from Articles 9 and 14 ICCPR with regard to the detainees at Guantánamo Bay as they have been described164 has to be measured against the requirements of Article 4 of the Covenant. 2. Terrorism and Emergency Situations under Article 4 ICCPR a) The Concept of ‘Terrorism’ If the so-called ‘war against terrorism’ is no ‘war’ in the legal sense, we have to answer the question whether the terrorist attacks of 11 September 2001 – being nothing else but an atrocious crime – constitute a “public emergency which threatens the life of the nation” under Article 4 para. 1 of the Covenant. It has always been difficult to define ‘terrorism’ on an international level and it has likewise been difficult to define a ‘public emergency.’ In the past, several States parties, e.g. Azerbaijan, Chile, Colombia, Israel, Nepal, Peru and the United Kingdom, have referred to ‘terrorist activities’165 in order to justify derogation measures under Article 4 of the Covenant. In some of these cases the Committee has expressed doubts as to the existence of a state of emergency threatening the life of the nation.166 The problem it faces is the way the term ‘terrorist activities’ (like ‘subversive activities’)167 has been used by countries like Colombia, Chile or Peru, i.e. without any reference to specific or even large-scale acts of terrorism. Anyhow, the term refers to a very diffuse phenomenon that – in contrast to natural disasters or an armed conflict – cannot be easily described in concrete figures relating to, e.g., the power of an earthquake or hurricane, the massing of troops or a huge number of victims. This entails the 163

This has been the US position towards the Inter-American Commission on Human Rights, cf. Response of the United States to Request for Precautionary Measures – Detainees at Guantanamo Bay, Cuba, 15 April 2002, reprinted in: ILM, vol. 41, 2002, 1015, 1020. Maybe this explains why the US Administration has not notified a derogation under Art. 4 ICCPR to the UN Secretary-General: It is of the opinion that “international human rights law is not applicable to [… the] detention of enemy combatants.” 164 See, supra, Sect. C. I., text accompanying note 132. 165 Cf. Multilateral Treaties 2002 (note 11), 186 et seq., 191, 194 et seq., 204. 166 Cf. on Colombia: UN Doc. CCPR/C/79/Add.76 (1997), para. 25; on Chile: UN Doc. A/34/40 (1997), para. 78. 167 See, supra, Sect. B. II. 1., text accompanying note 23.

580

Angelika Siehr

danger that certain States parties intentionally use the vagueness of the term to circumvent the requirements of Article 4 para. 1 ICCPR. However, as the difficulties to agree on a general definition of terrorism at the global level show, the main problem is not a factual one but relates to the different concepts of ‘terrorism,’ due to different values and different views on forms of politically motivated violence in the international community, as seen with respect to the struggle of national liberation movements.168 To cope with this problem the UN has focused on specific questions such as combating offenses committed on board aircraft, the seizure of aircraft, and crimes against internationally protected persons, the protection of nuclear material and, lately, the suppression of terrorist bombings.169 Up to now, there have been twelve different UN conventions on terrorism and seven regional conventions on terrorism.170 In the latest convention at the UN level, the International Convention for the Suppression of the Financing of Terrorism adopted by Resolution 54/109 of the General Assembly on 9 December 1999, there has even been the attempt to give a general definition of terrorism171 – necessarily so, because financial transactions cannot be criminal as such. We will see whether it will be

168

See, e.g., Report of the Ad Hoc Committee on International Terrorism, UN Doc. A/34/37 (1979), 7–10, paras. 24–31. Many delegations reiterated the categorical opposition of their Governments to acts of international terrorism (para. 24). Others stressed that “human beings, by their very nature, were prone to commit certain acts out of desperation, misery, frustration and provocation […]. The genuine struggle of oppressed peoples for liberation and equal rights, it was stated, actually constituted a negation of terrorism, violence and subjugation; it was an attempt to gain respect for human rights and the establishment of a just legal order” (para. 28). National liberation struggles, therefore, “should be strictly distinguished from terrorist acts which, in their essence, did not amount to resistance against terror of colonialism and occupation” (para. 30). Cf. also König (note 145), paras. 3, 4. 169 International Convention for the Suppression of Terrorist Bombings, GA Res. of 15 December 1997. It entered into force unexpectedly soon on 23 May 2001 after ratification by 22 States. 170 See for all UN Conventions and Regional Conventions on Terrorism: United Nations Treaty Collection – Conventions on Terrorism, available at: http://untreaty.un.org/ English/Terrorism.asp. 171 Cf. Art. 2 para. 1 lit. b: “Any […] act intended to cause death or serious bodily injury to a civilian, or to any other person not taking active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”

Derogation Measures under Article 4 ICCPR

581

widely accepted by the international community.172 I do not want to dwell further on this problem here: Since the attacks of 11 September 2001 have been unanimously condemned by the international community and particularly in Security Council Resolutions 1368 of 12 September 2001 and 1373 of 28 September 2001 as “acts of international terrorism,” at least in this case the question is not whether there has been an act of terrorism – this is beyond doubt – but only whether it constitutes “a public emergency which threatens the life of the nation” under Article 4 para. 1 ICCPR and who is entitled to refer to it. b) ‘Public Emergency’ under Article 4 ICCPR Despite the fact that there have been efforts of different expert bodies to provide a definition of the rather vague term “public emergency,”173 there is no generally accepted definition of this term under Article 4 para. 1 of the Covenant, and regrettably the HRC as the competent supervisory body of the Covenant has so far not even made an attempt to provide a precise definition. In its General Comment No. 29 adopted in 2001, it only points out that “[n]ot every disturbance or catastrophe qualifies as a public emergency that threatens the life of the nation […].” Therefore if “States parties consider invoking Article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances.”174 The fact that there have been “no clear indications of the application of any criteria by members [of the HRC] to the declaration of a public emergency although there is useful comparative jurisprudence under the ECHR in this re172

For a very careful discussion of the problem of defining international terrorism see Robert Kolb, The Exercise of Criminal Jurisdiction Over International Terrorists, in: Andrea Bianchi (ed.), Enforcing International Law Norms Against Terrorism, 2004, 227 et seq. Tomuschat (note 127), 538, describes four elements that constitute an act of terrorism, based on an analysis of GA Res. 49/60 of 9 December 1994, the definition of terrorism in the said UN Convention (note 171) and initiatives within the European Union. 173 See e.g. the definition provided by the Paris Minimum Standards (note 106), Sect. A para. 1 lit. b: “The expression ‘public emergency’ means an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.” 174 General Comment No. 29 (note 31), para. 3. In para. 5 the HRC gives some examples, e.g. a “natural castastrophe” or a “major industrial accident.”

582

Angelika Siehr

spect” has been criticized.175 Indeed, the Strasbourg organs did develop some criteria to be indicative of a state of emergency, especially in the Lawless Case of 1961,176 the Greek Case of 1969177 and the Ireland v. United Kingdom Case of 1978,178 which may be relied upon for the interpretation of Article 4 ICCPR.179 Using the customary and natural meaning of the words, the European Court of Human Rights holds in the Lawless Case that public emergency means “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.”180 If we take this as a starting point and also take into account the modifications or clarifications provided not only by the subsequent jurisdiction of the Strasbourg organs, but also by the above-mentioned 1984 Siracusa Principles181 and Paris Minimum Standards,182 as well as the statements on Norms and Principles Governing States of Emergency in the Tenth Report of Special Rapporteur Leandro Despouy,183 we can distinguish four different elements that constitute a state of emergency: (1) Due to extraordinary factual premises (external attack, internal disturbances, natural or man-made disasters, etc.), there must be an “exceptional threat,”184 i.e. a crisis or danger in that the ordinary measures or restrictions 175

McGoldrick (note 4), Art. 4, mn. 7.14 with further references. Eur. Court H.R., Lawless v. Ireland, Judgment of 1 July 1961, Series A, No. 3, paras. 23 et seq., 28. 177 Cf. Council of Europe, European Commission of Human Rights, The Greek Case, Report of the Commission to the Committee of Ministers of 18 November 1969, vol. I, Part 1, 80, 81, para. 153: “Such a public emergency may then be seen to have, in particular, the following characteristics: (1) It must be actual or imminent / (2) Its effects must involve the whole nation / (3) The continuance of the organized life of the community must be threatened / (4) The crisis or danger must be exceptional in that normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.” 178 Eur. Court H.R., Ireland v. The United Kingdom, Judgment of 18 January 1978, Series A, No. 25, para. 205, German translation in: EuGRZ, vol. 6, 1979, 149. 179 Nowak (note 7), Art. 4, mn. 14. 180 Lawless v. Ireland (note 176), para. 28. 181 Siracusa Principles (note 32), paras. 39–41. 182 For the definition of “public emergency” provided by the Paris Minimum Standards (note 106) see, supra, note 173. 183 Despouy (note 3), paras. 49 et seq. 184 Id., paras. 76–79, also for the following; cf. also Siracusa Principles (note 32), para. 39 (“exceptional […] danger”), and criterion (4) in the Greek Case (note 177). 176

Derogation Measures under Article 4 ICCPR

583

permitted by the Covenant for the maintenance of public safety, health or order are clearly inadequate. (2) The crisis or danger must be current or imminent, which invalidates any restriction adopted for purely opportunistic, speculative or abstract purposes.185 (3) The emergency should be of such magnitude as to threaten the life of the nation as a whole,186 i.e. its effects must involve the whole population, and either the whole or part of the territory of the State.187 (4) The continuance of the organized life of the community must be threatened.188 According to the Siracusa Principles the latter means a threat to the “physical integrity of the population, the political independence or the territorial integrity of a State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognized in the Covenant.”189 c) The Terrorist Attacks of 11 September 2001 under Article 4 Para. 1 ICCPR The terrorist attacks of 11 September 2001 shocked the world. As representatives of its fifteen members stated at the Security Council meeting on 12 September 2001 they “are an attack not only on the United States but against humanity itself” and “an open challenge to the international community as a

185

Despouy (note 3), para. 77. This has already been emphasized during the drafting of the Covenant, cf. Annotations on Draft (note 17), para. 39. 187 Siracusa Principles (note 32), para. 39. E.g. with regard to the British derogation measures in Northern Ireland, the European Commission of Human Rights and the Court as well as the HRC held that a geograhically limited emergency could affect the population as a whole and constitute a threat to the life of the nation, cf. Nowak (note 7), Art. 4, mn. 14; Despouy (note 3), para. 78. In contrast to this widely accepted understanding, the Paris Minimum Standards (note 106) state that a public emergency might not only be confined to a certain area of the country but need not engulf the population in its entirety, too, see, supra, note 173. 188 Despouy (note 3), para. 79; Greek Case (note 177), criterion (3); Nowak (note 7), Art. 4, mn. 14. 189 Siracusa Principles (note 32), para. 39. 186

584

Angelika Siehr

whole.”190 However, bearing in mind that the United States is the only remaining world power, there are some doubts whether the attacks really constitute a public emergency within the meaning of Article 4 of the Covenant. Of course, they had a huge psychological impact on the whole nation – even more, they changed the world191 – but did they (apart from the immense grief, anxieties, and rage they have caused) really threaten the continuance of the organized life of the superpower United States on an institutional level as described in the Siracusa Principles? Perhaps during the first days after the attacks, when air traffic and the stock market were stopped (although these are not the institutions ensuring human rights in the first instance), maybe even during the first weeks of mental “recovery” of the whole nation and its political leadership (though neither the political independence or the territorial integrity of the United States nor the existence or basic functioning of its institutions were endangered at any point) – but certainly not today. But even if we concede that in view of the above-mentioned indicators of a public emergency under Article 4 of the Covenant, criterion (3) is met192 and criterion (4) might have been met for a short period after the attacks, there are also doubts in view of criteria (1) and (2). Is it really true that the threat posed by the attacks is exceptional in the sense that the ordinary measures or restrictions permitted by the Covenant for the maintenance of public safety, health or order are clearly inadequate? This seems questionable since the measures that were taken immediately after the attacks, for instance the closing of the airspace over the United States and emergency measures necessary to ensure the security of the President of the United States, to check that no other terrorist attacks are imminent and to preserve traces of the offenders etc., are compatible with the Covenant without invoking its Article 4. On the one hand, several provisions of the Covenant, inter alia, Articles 12 para. 3, 18 para. 3, 19 para. 3, 21 and 22 para. 2, contain so-called restriction-clauses,193 which authorize necessary restrictions of some rights in ordinary situations (or in a crisis that does not 190

UN Doc. S/PV.4370 (2001); see Fassbender (note 150), 86 et seq. Last but not least, they changed some crucial categories of international law, Cassese (note 142). 192 As the Siracusa Principles (note 32), para. 39, show, we normally think of the physical integrity of the population, but it seems legally justifiable to equate the huge psychological impact of such an extremely grave attack on the whole population with a threat to its physical integrity. 193 Cf. also ECHR (note 5), Arts. 8 para. 2, 9 para. 2 and 11 para. 2; ACHR (note 6), Arts. 12 para. 3, 15 and 16. 191

Derogation Measures under Article 4 ICCPR

585

amount to a public emergency under Article 4 ICCPR) when necessary in order to guarantee public safety, health or public order. On the other hand, the requirements of the principle of proportionality depend to a certain extent on the context to which it is applied, so they will be different during a crisis compared to normal times.194 Therefore, according to General Comment No. 29, the possibility of restricting certain Covenant rights is generally sufficient during times of crisis and in this case no derogation from the provisions in question would be justified.195 This seems to be true too with respect to all measures taken by the United States immediately after the attacks of 11 September 2001.196 Regarding measures taken during the following months, such as the issuance of the US President’s Military Order of 13 November 2001 which evidently derogates from the rights guaranteed by Articles 9 and 14 of the Covenant,197 we face another problem: There is no longer a current/actual or imminent danger as required by the above-mentioned criterion (2), which has been generally accepted198 as a basic prerequisite for a public emergency threatening the life of the nation under Article 4 para. 1 of the Covenant. These measures are embedded in the so-called ‘war against terrorism’ and they are designed to prevent possible terrorist attacks that might occur in the future but which are neither current nor imminent yet. Since the term ‘war’ has proved to be legally false this means that they are part of a pre-emptive strategy of combating international terrorism. Such a – necessarily long-term (!) – strategy, dealing with an abstract danger of a very complex nature and of a global dimension,199 is clearly beyond the scope of Article 4 para. 1 of the Covenant which focuses on the exceptional case of a short-term crisis management in view of a concrete actual or imminent 194

Cf. Schmahl (note 19), 138. Cf. General Comment No. 29 (note 31), para. 5. 196 Otherwise the United States would have to show which of the measures it has taken immediately after the attacks presupposed a derogation from the Covenant under Art. 4; for the position of the US Administration, see, supra, note 163. 197 See, supra, Sect. C. I., particularly text accompanying notes 124–132. 198 Paris Minimum Standards (note 106), Sect. A para. 1 lit. b: “actual or imminent;” Greek Case (note 177), criterion (1): “actual or imminent;” Despouy (note 3), paras. 77, 79: “current or imminent;” Lorz (note 3), 89; Siracusa Principles (note 32), para. 39: “actual or imminent;” Nowak (note 7), Art. 4, mn. 14 (“true, direct threat”); cf. also Schmahl (note 19), 127. It is likely that the United States would oppose such an understanding today, but for the reasons mentioned supra, note 163, there has been no clear statement of the US Administration on this question yet. 199 See e.g. Wolfgang Schluchter (ed.), Fundamentalismus, Terrorismus, Krieg, 2003. 195

586

Angelika Siehr

danger, solely in order to safeguard human rights, the safety of the population and the operation of public institutions under the rule of law.200 Of course the word ‘pre-emptive’ reminds us instantly of the highly controversial debate about the broad notion of a right of ‘pre-emptive self-defense’ that the US Administration has proclaimed as part of a new National Security Strategy in September 2002. This alleged right even goes considerably beyond the equally controversial ‘anticipatory self-defense’ to which some States have in the past claimed to be entitled in the face of an imminent and evident attack.201 Indeed, a parallel can be drawn between a rather strict and a much broader understanding of the right of derogation under Article 4 para. 1 ICCPR and the right of self-defense under Article 51 of the UN Charter: In the first case, the respective right depends on the existence of an ‘actual or imminent danger,’ in the second case, it depends on the existence of an ‘actual or imminent armed attack.’ Whereas the broadening of the notion of self-defense202 endangers the ban on the threat or use of force laid down in Article 2 para. 4 of the UN Charter, which has by now become a peremptory norm of international law (ius cogens), the broadening of the notion of permitted derogation from rights guaranteed by the Covenant would endanger the efforts to secure human rights particularly in times of crisis. And in both cases a broadening of the respective concept undermines the responsibility of the Security Council for the maintenance of international peace and security threatened by large-scale terrorist attacks. It is not possible to reiterate the vivid debate on the alleged right of ‘pre-emptive self-defense’ here203 since this would go beyond the scope of this article. However, in view of this debate it might be interesting to elabo200

Cf. Despouy (note 3), para. 82, on the national emergency legislation. For details see Fassbender (note 150), 94 et seq. 202 Before the terrorist attacks of 11 September the right of self-defense was subject to stringent conditions, e.g. according to the famous Caroline Case of 1842, which is still the leading case in this field, there must be “a neccesity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” (see David John Harris, Cases and Materials on International Law, 5th ed. 1998, 894 et seq.). On the current crisis of the ban on the threat or use of force see Bardo Fassbender, Die Gegenwartskrise des völkerrechtlichen Gewaltverbotes vor dem Hintergrund der geschichtlichen Entwicklung, EuGRZ, vol. 31, 2004, 241, 249 et seq. 203 The catalogue of the library of the Peace Palace at The Hague, the Netherlands, alone contains 103 titles of books and articles on this subject (available at: http:// www.ppl.nl/catalogue.php?ppn=255295863&keyword=Pre-emptive%20use%20of%20 force&pagename=keyword-catalogue). Cf. also Cassese (note 142), 3 et seq.; Fassbender (note 150), 92 et seq.; id. (note 202), 249 et seq. 201

Derogation Measures under Article 4 ICCPR

587

rate a bit more on the above-indicated parallels of two different legal regimes which are both challenged by international terrorism. In view of the Covenant, the fact remains that there are serious doubts as to whether terrorist attacks ever constituted a public emergency which threatened the life of the nation of the United States of America as required by Article 4 para. 1 ICCPR.204 The answer to this question depends on the factual question whether any of the emergency measures taken during the first hours or days after the attacks, when the danger was still actual, necessarily demanded a derogation from – and not only restrictions of – the rights guaranteed by the Covenant. Later on, there have been derogation measures, but no longer an actual danger which could justify them. Since the Government of the United Kingdom notified the Secretary-General of derogation from the Covenant on the grounds of the terrorist attacks of 11 September 2001 and related considerations,205 we have to examine if there are any additional arguments that could justify a different evaluation in view of the existence of a public emergency under Article 4 ICCPR in the United Kingdom. The United Kingdom has a long history of combating terrorism. Whenever it notified the Secretary-General that it had found it necessary to take, to continue or to replace certain derogation measures under Article 4 of the Covenant – which has been the case four times before 18 December 2001206 – it was on the grounds of terrorism connected with Northern Ireland. And in its first notification of a state of emergency in 17 May 1976 (which was not terminated until 22 August 1984!), it mentioned that the emergency had even commenced prior to ratification by United Kingdom of the Covenant in May 1976.207 In the 1978 Ireland v. UK litigation in the European Court of Human Rights, it was accepted that an emergency threatening the life of the nation did exist in view of the

204 Tomuschat (note 127), 545, denies the existence of a public emergency; for the opposing view see Schmahl (note 19), 126, 127; Schäfer (note 128), 50, 51, but in his view it is now terminated, id., 56. 205 Notification of the United Kingdom (text accompanying note 112), especially the serious concern that the UK might be a haven for persons involved in international terrorism. 206 It twice notified a termination of the respective measures; cf. Multilateral Treaties 2001 (note 111), 220. 207 See id.

588

Angelika Siehr

situation prevailing in Northern Ireland at that time.208 However, later on there has been quite a lot of criticism of the way the United Kingdom dealt with the problem of terrorism, inter alia, during consideration of the second periodic report to the HRC which had been submitted by the United Kingdom on 4 December 1984.209 And as the dissenting opinions of four Judges in the Brannigan Case of 1993 show, the Court is moving towards a stricter interpretation of the term “public emergency,” too.210 Apart from that, the situation is completely different with respect to the terrorist attacks of 11 September 2001, which took place on the territory of the United States. Therefore, the claim of the United Kingdom that these attacks constitute a public emergency threatening the life of its nation under Article 4 of the Covenant is much weaker than the respective assertion of the United States – which has never been made – would have been. As the United Kingdom points out in its notification of 18 December 2001, there have been many British victims but with the same argument more than eighty other States211 – provided they are States parties to the Covenant – could notify a state of emergency under Article 4, which is hardly what its drafters had in mind. If we consider the above-mentioned criteria (3) and (4),212 it becomes evident that the fact that a State party, outside its territory, is negatively affected by the assassination of a certain number of its nationals,213 does not constitute a public emergency under Article 4 ICCPR: There is no such emergency situation within the territory of the respective State party since neither the life of the nation as a whole nor the continuance of the organized life of the community is affected.214 208

Ireland v. The United Kingdom (note 178), para. 205. Concerning the situation in Northern Ireland see Kevin Boyle, Human Rights and Political Resolution in Northern Ireland, Yale Journal of World Public Order, vol. 9, 1982, 156 et seq.; cf. also Kevin Boyle/Tom Hadden, Ireland: A Positive Proposal, 1986. 209 See for details and further references McGoldrick (note 4), Art. 4, mn. 7.23 et seq., 7.29 et seq. 210 Eur. Court H.R., Brannigan and McBride v. United Kingdom, Judgment of 26 May 1993, Series A, No. 258-B, View of the Court (“wide margin of appreciation”), paras. 43 et seq., Dissenting Opinions of the Judges Pettiti, Walsh, De Meyer and Makarczyk, paras. 60 et seq. For background information on the latter see Schmahl (note 19), 129. 211 According to Schluchter (note 199), 12, fn. 3, there have been victims from 83 different countries. 212 See, supra, text accompanying notes 186–188. 213 For the parallel argumentation that this fact does not constitute an armed attack under Art. 51 of the UN Charter on the State itself, see Tomuschat (note 127), 540. 214 The opposing view is taken by Schmahl (note 19), 128.

Derogation Measures under Article 4 ICCPR

589

But there remains a second argument. Pursuant to its notification of 18 December 2001, the UK Government believes that there are foreign nationals who use the United Kingdom as an organizational base for terrorist activity and as a safe haven.215 It refers expressly to Security Council Resolution 1373, adopted on 28 September 2001, which, by an act of international legislation, made obligatory for all States the essential provisions of the 1999 International Convention for the Suppression of the Financing of Terrorism. In operative paragraph 2 lits. b and c of Resolution 1373, the Council requires all States to take the necessary steps to prevent the commission of terrorist attacks and to deny safe haven to those who finance, plan, support or commit terrorist attacks. The United Kingdom rightly216 assumes that it has to comply with these obligations. However, in view of the above-mentioned criteria for a public emergency under Article 4 of the Covenant, there are some doubts, first, whether terrorist activities in the United Kingdom really constitute an actual or imminent danger and second, whether combating international terrorism necessarily requires a derogation from Article 9 of the Covenant. The answer to the first question depends on an evaluation of the factual situation. If information on a plan for concrete terrorist attacks is available, we do have an imminent danger – but it seems questionable that meeting it would require a derogation from Article 9 of the Covenant. And if the danger of international terrorism remains rather abstract, the steps taken to meet it are part of a pre-emptive strategy that is not covered by Article 4 of the Covenant.217 In view of the second question we also have to bear in mind that after the terrorist attacks of 11 September 2001 not only the United Kingdom, but also other European countries, e.g. France, Germany, and Spain, have promulgated new security laws in order to protect against terrorism.218 These countries are also States parties to the ECHR and face the same problem as the United Kingdom does: On the one hand, removal or deportation of a terrorist suspect to his own country is legally not possible if this might result in torture or other forms of illtreatment, and on the other hand, prolonged detention without a trial is not permitted by national as well as international law. Therefore, under the rule of law, the only possibility seems to be to bring a charge of membership in a terrorist organization or of other offenses against these terrorist suspects. If there is not 215

For the wording of the notification see, supra, text accompanying note 112. Cf., however, on the question of whether Res. 1373 (like the later Resolution 1540) might be considered ultra vires, Zimmermann/Elberling (note 149). 217 See, supra, Sect. C. I. 2. c), text accompanying note 199. 218 For an overview see Hoge (note 119). 216

590

Angelika Siehr

enough evidence, they have to be released, but may of course be put under surveillance if suspected of terrorist activities. To sum up: There are serious doubts as to the existence of a public emergency, both in relation to the United States and in relation to the United Kingdom.219 The impact of the terrorist attacks of 11 September 2001 can hardly be overestimated, but the legal question whether there is a “public emergency which threatens the life of the nation” under Article 4 of the Covenant follows a different pattern and the specific criteria which indicate a public emergency in the legal sense are not met in either of these cases. 3. International Terrorism and the Specific Regime of Safeguards under Article 4 ICCPR A rather strict interpretation of the term “public emergency” under Article 4 ICCPR is not only supported by the consideration that a derogation from rights guaranteed by the Covenant should be an exception which, like every other exception, must be construed narrowly in order to realize the object and purpose of the treaty, but it appears wise also because of some specific problems posed by the so-called ‘war against terrorism.’ In view of the highly complex problem of international terrorism – and in contrast to a ‘war’ in the legal sense – we do not know exactly who the enemy is, where it is, what its possible targets are, and the conflict seems to be open-ended too. The diffuse picture of the danger results in specific difficulties to apply the safeguards provided by Article 4 of the Covenant in order to prevent abuse of emergency powers. For instance, it is impossible to monitor the admissibility and proportionality of derogation measures in terms of their material scope, their duration and territorial application if the problem they are supposed to combat cannot be defined precisely. But if its specific regime of safeguards cannot be applied, the whole provision of Article 4 becomes pointless. However, if derogation measures refer to concrete problems like the detention of suspected international terrorists, they can be measured against Article 4 of the Covenant. With respect to the absolute barrier erected by Article 4 para. 2 against the derogation of certain rights by declaring them non-derogable, we have to bear in mind that, inter alia, no derogation is permissible which would 219

With respect to the UK, cf. the opposing view of Henning (note 120), 1277 et seq., 1296.

Derogation Measures under Article 4 ICCPR

591

violate the minimum humanitarian standard, including the minimum standard of due process.220 This also comprises the prohibition of a prolonged detention without any right to challenge its lawfulness, and this right has been denied to the detainees at Guantánamo Bay.221 It further includes the right to a fair trial,222 also secured by Article 3 para. 1 lit. d common to all 1949 Geneva Conventions,223 which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” It seems obvious that these requirements are not met by the US President’s Military Order of 13 November 2001. But since the United States of America is rightly proud of its long-standing democratic tradition, the legal deficiencies of the Military Order have received extensive commentary and vivid internal criticism, e.g. in a letter to the chair of the Senate Committee on the Judiciary signed by more than seven hundred American law professors.224 Those law professors called the “untested institutions contemplated by the Order […] legally deficient, unnecessary and unwise.” In particular, they argued that the order violates separation of powers, “does not comport with either constitutional or international standards of due process” and “allows the Executive to violate the United States’ binding treaty obligations.” There are justified doubts also in view of the British Anti-terrorism, Crime and Security Act 2001, and indeed the House of Lords ruled on 16 December 2004 that the Government could not indefinitely detain foreigners suspected of terrorism without charging or trying them, and saw a violation of European Human rights laws. One of the nine judges, Lord Hoffman, said the case was one of the most important decided by the court in recent years: It calls into question the very existence of an ancient liberty of which the country has until now been very proud: freedom from arbitrary arrest and detention. [...] The real 220

See, supra, Sect. B. III. 1. c), text accompanying notes 80–88. Cf. Schäfer (note 128), 27 et seq., 46, 48 et seq., 56 et seq. 222 Cf. General Comment No. 29 (note 31), para. 16. 223 The right to fair trial, guaranteed in Art. 3 of the Geneva Conventions (note 83), is also part of the non-derogable minimum humanitarian standard, see Schmahl (note 19), 133, 134. 224 Cf. Harold Hongju Koh, The Case Against Military Commissions, AJIL, vol. 96, 2002, 337, 338, fn. 10. The letter is available at: http://www.law.yale.edu/outside/html/ Public_Affairs/152/Leahy.pdf. See also the criticism of Mundis (note 125), 321 et seq.; Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, AJIL, vol. 96, 2002, 328 et seq.; Fitzpatrick (note 153); see also supra, notes 125, 127. 221

592

Angelika Siehr

threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for the Parliament to decide whether to give terrorists such a victory.225

Indeed, now it will ultimately be for the Parliament to decide whether and how the British Anti-Terrorism, Crime and Security Act 2001 will be amended, and this decision will certainly attract the attention not only of the British people but also of public international lawyers. D. Outlook Article 4 of the Covenant, like all derogation clauses in human rights treaties has to strike a difficult balance between the necessity of resorting to extraordinary measures in times of public emergency and the necessity of combating the danger of abuse that is inherent in all emergency powers. The functioning of the monitoring process is essential for achieving the goal of securing human rights, especially in times of crises when they are most jeopardized. In the past, the work of the HRC was impeded by a lack of clarity in the information provided by States parties pursuant to Article 4 para. 3 of the Covenant with regard to the measures they had taken in emergency situations, their grounds, and the applicable domestic law. In the future, a lack of clarity with respect to the definition of a “public emergency which threatens the life of the nation” under Article 4 para. 1 of the Covenant will probably turn out to be a serious problem; particularly, since after the attacks of 11 September 2001 the United Kingdom invoked Article 4 of the Covenant on the grounds of international terrorism in order to justify a derogation from Article 9, and the United States de facto derogated from Articles 9 and 14 of the Covenant. But Article 4 has not been designed to deal with such a highly complex phenomenon with global dimensions as international terrorism certainly is. It focuses on shortterm crisis management in view of an actual or imminent danger, solely in order to safeguard human rights, the safety of the population, and the operation of public institutions under the rule of law. The attempt to wage the ‘open-ended’ so-called ‘war against terrorism’ on the basis of the emergency clause of the 225

A et al. v. Secretary of State for the Home Department, para. 86, 97, available at: http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&others.pdf. Indeed, this seems to be part of the calculation of terrorists, cf. Peter Waldmann, Das terroristische Kalkül und seine Erfolgsaussichten, in: Schluchter (note 199), 87 et seq.

Derogation Measures under Article 4 ICCPR

593

Covenant also carries with it the danger that its specific regime of safeguards will be undermined, e.g. with respect to the principle of proportionality that presupposes a clear picture of a concrete danger to which, for a limited period of time, the respective emergency measures shall be applied. Therefore, it is regrettable that the HRC, which adopted its elaborate General Comment No. 29 only a few weeks before the terrorist attacks of 11 September 2001, did not define criteria that indicate a public emergency within the meaning of Article 4 of the Covenant. But it will hopefully do so in the near future, and thereby it may draw upon the ‘preparatory work’ of the Strasbourg organs and other human rights expert bodies. On the other hand, the hope remains that States parties will acknowledge that the solution of the challenging problem of international terrorism is not so much a question of a national state of emergency but rather one of international cooperation.

Harmonization of Asylum in the European Union – Emergence of an EU Refugee System? By Anja Klug* A. Introduction When the European Communities decided to create a Common Market way back in 1986,1 EU Member States quickly realized that freedom of movement could not be restricted to European Union (EU) citizens only. The abolition of border controls within the EU at the same time prevented controls of the movement of aliens, including refugees and asylum seekers. Various steps of intergovernmental cooperation on asylum policy finally led to the adoption of a legal basis for “measures on asylum” in the Amsterdam Treaty2 (AT) of 1997. Article 63 AT entrusted the Council with an impressive work program. Within a period of five years measures were to be adopted regarding procedural as well as material aspects of asylum law, measures which were, however, limited to the definition of “minimum standards.” Article 63 para. 1 AT obliged the Council to pursue this task “in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties.” In the Tampere Conclusions of October 1999 the European Council reaffirmed “the importance the Union and Member States attach to absolute respect of the right to *

The author is Senior Legal Officer at the Office of the United Nations High Commissioner for Refugees (UNHCR), Protection Policy and Legal Advice Section, Department for International Protection, Geneva. The views expressed are the personal views of the author and may not necessarily be shared by the United Nations or by UNHCR. She would like to thank Ivor Jackson especially and also Frances Nicholson for their comments and contributions. Thanks also go to Angelika Emmelmann for her assistance in editing the text. 1 Date of the signing of the Single European Act. See Single European Act, 17 and 28 February 1986, O.J. 1987 L 169. 2 Treaty of Amsterdam, 2 October 1997, O.J. 1997 C 340/1.

Harmonization of Asylum in the European Union

595

seek asylum.” It was agreed to establish the “Common European Asylum System” “based on the full and inclusive application of the Geneva Convention.”3 Since then, the Amsterdam agenda has almost been completed. Council Directives have been adopted on reception conditions,4 temporary protection5 and criteria for the recognition and the status of refugees and beneficiaries of subsidiary protection.6 A Council Regulation transformed with slight modifications the 1990 Dublin Convention,7 which had been adopted earlier as an instrument of intergovernmental cooperation to determine which Member State is responsible for the processing of an asylum claim.8 The day before the deadline of the AT elapsed on 30 April 2004 and after four years of controversial discussions, Member States succeeded in reaching a political agreement on standards for the asylum procedure.9 A European Refugee Fund had previously, in 2000, been established as a burden sharing instrument.10 For the sake of completeness, an additional directive adopted on the basis of Article 63 para. 3 AT (measures on 3

Presidency Conclusions Tampere European Council, 15 and 16 October 1999, SN 200/99 of 16 October 1999. 4 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, O.J. 2003 L 31/18. 5 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, O.J. 2001 L 212/12 (Temporary Protection Directive). 6 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, O.J. 2004 L 304/12 (Qualification Directive or Directive). 7 Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Communities, 15 June 1990, O.J. 1997 C 254. 8 Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, O.J. 2003 L 50/1 (Dublin Regulation). 9 Amended Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, draft, Council Document Asile 33 of 30 April 2004 (Asylum Procedure Directive). 10 Council Decision of 28 September 2000 establishing a European Refugee Fund, O.J. 2000 L 252/12, and successor instrument Proposal for a Council Decision establishing the European Refugee Fund for the Period 2005–2010, Council Document Asile 41 of 9 June 2004.

596

Anja Klug

immigration) should be mentioned, the Directive on Family Reunification, which also applies to refugee families.11 Apparently, an impressive legislative achievement. The EU Commissioner for Justice and Home Affairs, Vittorino, in his press release of 30 April 2004 emphasized its importance and praised it as “significantly contributing to a common approach across all 25 Member States.”12 In its Communication of 2 June on the results of the Tampere program and future guidelines, the Commission admitted that the standards of the Commission’s proposals were not always respected, but nevertheless presented the results as “considerable progress” which would have a positive impact in “ensuring a common minimum level of protection and procedural guarantees in all Member States for all those who genuinely need international protection.”13 Others were less positive. The UNHCR, who had readily embraced EU harmonization as the most promising effort for strengthening refugee protection – not only in Europe but globally as an example for other countries – and had offered advice and input from the outset, was forced to correct its overly positive approach. The agency not only expressed its disappointment with the low level of harmonization achieved, but raised a number of serious concerns during the negotiation process.14 Since few of them were actually addressed by the Council, UNHCR had to reiterate them after the process was completed. The same day that Commissioner Vittorino praised the progress achieved, UNHCR in a press release stated that “a key piece of European Union asylum legislation […] may lead in practice to breaches of international refugee law.” It condemned the result of the process as 11

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, O.J. 2003 L 251/12. A good overview on the developments is provided by Frances Nicholson, The Common European Asylum System: Haven or Fortress?, in: Steve Peers/Nicola Rogers (eds.), EU Immigration and Asylum Law: Text and Commentary, to be published in 2005. 12 UNHCR Press Release 69/04 of 30 April 2004. 13 “Commission presents Communication on results of the Tampere programme and future guidelines: Much has been done, but much also remains to be done,” European Commission Press Release IP/04/702 of 2 June 2004. 14 See inter alia: UNHCR, Suggestions for amendments to Arts. 11, 12, 14 and 15 of the European Commission “Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection,” COM (2001) 510 final, 2001/ 0207(CNS) of 12 September 2001; UNHCR, Annotations for Arts. 1 to 19 of the draft Council Directive on minimum standards for the qualification of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, 15 November 2002.

Harmonization of Asylum in the European Union

597

falling short of the commitments of the Tampere Summit. With regard to the Asylum Procedure Directive, UNHCR found that it contained “no binding commitment to satisfactory procedural standards” and thus allowed “scope for States to adopt or continue worst practices in determining asylum claims.”15 Not surprisingly, NGOs’ comments were not less harsh. Three major refugee and human rights organizations, the European Council on Refugees and Exiles (ECRE), representing 76 refugee organizations across Europe, Amnesty International and Human Rights Watch expressed their deep concerns that the measures would allow Member States of the European Union denial of protection and breach of international law and asked for withdrawal of the Asylum Procedure Directive.16 It is as yet too early for a final assessment of the instruments adopted. With the exception of the Dublin Regulation, the instruments are not directly applicable and have to be transposed into national law. Furthermore, they only lay down “minimum standards.” Due to the reluctance of Member States to surrender national standards, the directives also leave considerable room for national particularities. Nevertheless, some preliminary remarks and a prediction of the directives’ effect may already now be justified. Do the Directives fully meet the Tampere commitment? Do they comply with existing international standards or are they to be criticized for violating the international obligations of the Member States? The scope of the present article does not allow all relevant instruments to be assessed. Since the 1951 Convention Relating to the Status of Refugees17 and the 1967 Protocol relating to the Status of Refugees,18 binding international treaties with over 142 State parties, are considered the cornerstone of international refugee law, I would like to focus on the refugee definition as well as the standards for the treatment of refugees as defined in the Qualification Directive, and the extent to which these comply with the 1951 Convention. The Direc15

UNHCR Press Release 69/04 (note 12). Refugee and Human Rights Organisations Across Europe Express their Deep Concern at The Expected Agreement on Asylum Measures in Breach of International Law, Joint Press Release of ECRE, Amnesty International and Human Rights Watch of 28 April 2004, available at: http://www.ecre.org/policy/press_releases.shtml. 17 Convention Relating to the Status of Refugees, 28 July 1951, UNTS, vol. 189, 137 (as of 1 August 2004 ratified by 142 States, including Germany) (1951 Convention). 18 Protocol relating to the Status of Refugees, 31 January 1967, UNTS, vol. 606, 267 (as of 1 August 2004 ratified by 142 States, including Germany). 16

598

Anja Klug

tive’s subsidiary protection regime will only be discussed as regards its contribution to the development of international refugee law. In fact, concerning the refugee definition, the EU did not have to create new legal obligations to reach harmonization but could draw upon existing international norms. It is therefore interesting to examine how the EU, a regional economic and political body, implements and interprets in practice obligations deriving from international refugee law binding on Member States. Does it fully recognize the importance of the 1951 Convention? How does it safeguard compliance with the Convention? Has it developed progressive standards or does it fall back behind existing standards? Was the Convention’s international character taken into consideration? The following article tries to find answers to these questions. B. Content of the Qualification Directive The Qualification Directive was one of the last instruments adopted on 30 April 2004, the eve of the deadline set by Article 63 of the AT. It lays down “minimum standards” for the following three areas: who qualifies for refugee status, who shall be granted subsidiary protection19 and what status beneficiaries are to enjoy. The Directive applies to all EU Member States with the exception of Denmark.20 According to its Article 38, Member States shall transpose the Directive into their national laws by 10 October 2006. As regards the definition of refugee, the Commission was able to draw upon earlier work in the EU context. The Joint Position which had been adopted on 4 March 1996 by EU Member States on the basis of Article K3 of the Treaty of

19

The term “subsidiary protection” is defined in Art. 2 lit. e of the Directive as protection provided to a “third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin […] would face a real risk of suffering serious harm.” 20 Denmark decided to make use of its possibility to “opt out.” See preambular para. 40, which is based on Arts. 1 and 2 of the Protocol on the Position of Denmark annexed to the Treaty of Amsterdam (note 2).

Harmonization of Asylum in the European Union

599

European Union21 (Maastricht Treaty) had already introduced non-binding guidelines for interpreting the refugee definition of the 1951 Convention.22 The Commission Proposal for the Qualification Directive presented to the Council on 12 September 2001 took a holistic approach. Both refugee status and subsidiary protection were considered as forming part of one system of international protection and structured accordingly.23 As far as possible, provisions apply to both concepts (Chapter I (General provisions), Chapter II (Assessment of applications for international protection) and Chapter VII (Content of international protection)). Special features are discussed in Chapters III (Qualification for being a refugee) and Chapter IV (Refugee Status) on the one hand and V (Qualification for subsidiary protection) and VI (Subsidiary Protection Status) on the other hand. The Council has maintained this overall approach, but has, nevertheless, considerably lowered the minimum level of rights for beneficiaries of subsidiary protection.24 C. Definition of the Term Refugee Article 2 lit. c of the Directive defines a refugee as being a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply.

This provision basically reflects Article 1 A para. 2 of the 1951 Convention without, however, making a specific reference to the latter. Apart from various 21

325.

Treaty on European Union, 7 February 1992, consolidated version, O.J. 2002 C

22 Joint Position defined by the Council of 4 March 1996 on the basis of Art. K3 of the Treaty on the European Union on the harmonized application of the definition of the term “refugee” in Art. 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees, O.J. 1996 L 63 (Joint Position). 23 See Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, COM (2001) 510 final of 12 September 2001 (Explanatory Memorandum). 24 See, infra, Sect. VII.

600

Anja Klug

probably minor changes in the wording,25 a divergence of a more substantial nature was made: the term “refugee” was restricted to third country nationals: hence the exclusion of any asylum request by an EU citizen. The restriction goes back to the Protocol on Asylum for Nationals of Member States of the European Union adopted on the basis of a Spanish initiative,26 which has meanwhile been incorporated in all the asylum instruments. The approach clearly is contrary to Article 42 of the 1951 Convention, which prohibits reservations to Article 1 of that Convention. Even if such requests may seldom be wellfounded, they should – at least in principle – not be excluded. There is a great danger that such an approach will be copied by other States in Europe or in other regions and in fact lead to a geographical exclusion clause.27 Article 1 B–F of the 1951 Convention was not incorporated in this provision. As for Article 1 B (possibility of a geographical limitation), this is fully justified. All EU Member States are party to the 1967 Protocol, which supersedes Article 1 B. Article 1 C–F are taken up in detail in Articles 11–12 of the Directive. Additionally, Article 12 is referred to in Article 2 lit. c. This difference in approach to Article 1 of the 1951 Convention has no effect in practice. The succeeding two chapters of the Directive develop interpretative guidelines for the basic elements of the definition. Before starting to interpret the constituent elements of the 1951 Convention refugee definition, the Directive takes up a couple of special problems (sur place claims, agents of persecution, protection and the internal relocation alternative) which apply to both the re25

Besides reflecting the provisions of the 1967 Protocol which removed the geographical and temporal limitations contained in the Convention definition, some changes to the wording (such as e.g., another order of the last two Convention grounds or “stateless person” instead of person “not having a nationality”) were made. The necessity of these changes is questionable, nevertheless, it is unlikely that they will result in an important difference of interpretation. 26 Protocol (No. 29) on asylum for nationals of Member States of the European Union, O.J. 1997 C 340/1. 27 At the time, UNHCR criticized the Spanish proposal harshly, see UNHCR’s position on the proposal of the European Council concerning the treatment of asylum applications from citizens of European Union Member States, January 1997. Critical also Karin Landgren, Deflecting International Protection by Treaty: Bilateral and Multilateral Accords on Extradition, Readmission and the Inadmissibility of Asylum Requests, New Issues in Refugee Research Working Paper No. 10, June 1999, available at: http:// www.unhcr.ch/cgi-bin/texis/vtx/publ; Nicholas Sitaropoulos, Entwurf einer “EUAnerkennungs-Richtlinie,” Zeitschrift für Ausländerrecht und Ausländerpolitik, vol. 23, 2003, 379, 380.

Harmonization of Asylum in the European Union

601

fugee definition and subsidiary protection. While this structure may not have much influence on the results of a status determination decision, dogmatically it would have been preferable to first explain the definition before handling specific concepts. Although the Directive’s refugee definition is, as already indicated, based on the Convention refugee definition, the precedence of the 1951 Convention over the interpretative guidelines in the Directive is not expressed in the operative part of the latter. Only the Preamble clarifies that the minimum standards are meant as guidance “in the application of” the Convention (preambular para. 16) and that the refugee definition in the Directive is meant to be that of the Convention (preambular para. 17). I. Well-Founded Fear of Persecution

One of the central terms of Article 1 A of the 1951 Convention is “wellfounded fear of persecution.” The Convention, however, does not define which acts are to be considered as persecution. Commentators have pointed out that the drafters of the Convention purposely left the definition of this term open so as to address the changing forms of persecution and that the term “persecution” was not intended to be a restrictive notion.28 To this day there is no universally accepted definition of the term. Similarly Article 9 of the Directive (Acts of Persecution) does not attempt to draw up a full definition of the term but approaches it in two different ways. Para. 1 defines the characteristics acts of persecution must fulfill, and para. 2 provides a range of examples. As regards the characteristics, Article 9 para. 1 of the Directive requires that acts of persecution a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular rights from which derogation cannot be made […] or

28

See Paul Weis, The Concept of the Refugee in International Law, Journal du droit international, vol. 87, 1960, 928, 970; Atle Grahl-Madsen, The Status of Refugees in International Law, vol. I, 1966, 193; Volker Turk/Frances Nicholson, Refugee Protection in International Law: an overall perspective, in: Erika Feller/Volker Turk/Frances Nicholson (eds.), Refugee Protection in International Law, 2003, 3, 38 et seq.

602

Anja Klug

b) be an accumulation of various measures, including violations of human rights which are sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

Thus Article 9 para. 1 lit. a creates a strong link between persecution and international and regional human rights obligations. Such a connection is based on the preamble of the 1951 Convention and can also be found in the UNHCR Handbook, which states that serious violations of human rights would constitute persecution.29 Professor Hathaway has developed this approach further.30 While the link between human rights violations and the definition of the term persecution is acknowledged in State practice, there is seldom a clear analysis of the act in question on the basis of human rights terminology. Threats to life and freedom, to which Article 33 para. 1 refers, are commonly considered as persecution. Opinions differ, however, on whether and which other acts could also be considered “persecution.”31 Article 9 para. 1 of the Directive requires a “severe violation of basic human rights,” however refers “in particular” to rights “from which no derogation can be made under Article 15 para. 2 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms32 (ECHR),” i.e., the right to life (Article 2), the prohibitions of torture (Article 3) and of slavery (Article 4 para. 1), and the principle nulla poena sine lege (Article 7), and thus adopts the majority view. No guidance is, however, provided on the controversial question of how violations of other human rights could be relevant factors. This bears the danger of a minimalistic approach, restricted to the rights mentioned in Article 15 para. 2 of the ECHR, established as the European standard. While it certainly has to be welcomed that violations of other human rights are not excluded, an interpretation of the term “persecution” from a broader human rights context is not necessarily encouraged by the Directive. In fact, there are many other human rights the violation of which could be widely recognized as constituting persecution. Using the term “persecution” rather than referring to “human rights” would have allowed for a more progressive development of law.

29

UNHCR Handbook on Procedures and criteria for determining refugee status, reedited 1992, para. 51 (UNHCR Handbook). 30 James C. Hathaway, The Law of Refugee Status, 1991, 99–135. 31 See id. 32 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5.

Harmonization of Asylum in the European Union

603

Article 9 para. 1 lit. b of the Directive recognizes that persecution can consist of an accumulation of various measures (generally discussed under persecution on cumulative grounds). By including this notion, which had previously been mentioned in the UNHCR Handbook,33 the Directive opens the interpretation of the term persecution to some flexibility. Article 9 para. 1 focuses on the persecutory act itself. By contrast, Article 1 A para. 2 of the 1951 Convention requires a “well-founded fear of persecution.” It is the effect of the persecutory act or acts on the specific individual which has to be examined.34 Certainly, international and regional human rights instruments are important benchmarks which may indicate a well-founded fear of persecution. However, the term persecution cannot be defined solely on the basis of serious human rights violations. A well-founded fear of persecution can also be established on the basis of other factors. Severe discrimination or the cumulative effect of various measures in themselves not amounting to persecution, alone or in combination with other adverse factors, can give rise to a wellfounded fear of persecution, that is, they can make life so intolerable from many perspectives that the only way out is to leave the country.35 It is, therefore, questionable whether Article 9 para. 1 adequately takes into account the subjective approach of the Convention outlined above. In this regard, the Joint Position was much clearer. It explicitly addressed the difficulties of defining the term “persecution” and clarified that the guidance given did not constitute a definition. It also emphasized the necessity of a subjective assessment. According to the Joint Position, persecution requires that “in the light of all the circumstances of the case” the acts suffered or feared “manifestly preclude the person who has suffered them from continuing to live in his country of origin.”36 It is regrettable that the Joint Position’s approach has not been included in the Directive. The examples of persecutory acts provided under Article 9 para. 2 lit. e are especially interesting. They determine the extent to which deserters and persons avoiding military service are eligible for refugee status. Refugee status is to be granted if performing military service would require committing crimes or acts falling under the exclusion clauses of Article 12 para. 2 of the Directive. This is 33 34 35 36

UNHCR Handbook (note 29), para. 53. This is elaborated in id., para. 52. Id., paras. 51 et seq. Joint Position (note 22), Chapter 4.

604

Anja Klug

to be welcomed since it would be contradictory to exclude applicants from refugee status for such acts without providing them with a possibility to avoid participation in such crimes by seeking refugee status abroad. Other cases of draft evasion/desertion discussed in that context, such as conscientious objection for reasons of political, moral or religious convictions,37 have not been addressed in the Directive. Given the recognition of an evolving right to conscientious objection in human rights discussions,38 recognition of conscientious objection would have been logical. Given the generally restrictive recognition practice in Europe, such recognition seemingly has not been feasible. II. Agents of Persecution

Article 6 of the Directive (actors of persecution or serious harm) addresses non-state persecution, a problem which has been discussed controversially in a number of States for years.39 The Joint Position of 1996 followed the restrictive State practice of some Member States and required, for the recognition of refugee status, encouragement or permission by the authorities or a deliberate failure to act.40 Meanwhile, Member States which had followed that line have changed their practice. Even in Germany, where a very restrictive interpretation was used until recently, an amendment to the non-refoulement prohibition in Section 60 para. 1 of the new Law on the Residence of Foreigners clarifies that persecution can stem from non-state actors.41 This legislative change opened the way for an agreement at the EU level. Article 6 now reads as follows: 37

See UNHCR Handbook (note 29), para. 170. See inter alia The Question of Conscientious Objection to Military Service, Report of the UN Secretary General of 16 January 1997, UN Doc. E/CN.4/1997/99; Commission on Human Rights Res. 2004/35 of 19 April 2004, UN Doc. E/CN.4/2004/L.11/ Add.4; General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18), 30 July 1993, UN Doc. CCPR/C/21/Rev.1/Add. 4 39 See Opinion of UNHCR regarding the question of “non-state persecution” as discussed with the Committee on Human Rights and Humanitarian Aid of the German Parliament (Lower House) on 29 November 1999 (UNHCR Opinion); International Association of Refugee Law Judges, The Changing Nature of Persecution, IARLJ Conference, October 2000 in Berne. 40 Joint Position (note 22), 5.2. Persecution by third parties. 41 Section 60 para. 1 Aufenthaltsgesetz, as introduced by Art. 1 Gesetz zur Steuerung und Begrenzung der Zuwanderung und zur Regelung des Aufenthalts und der Integration von Unionsbürgern und Ausländern (Zuwanderungsgesetz, Immigration Act), German Federal Law Gazette (BGBl.) 2004 I, 1950, 1971. 38

Harmonization of Asylum in the European Union

605

Actors of persecution or serious harm include: (a)

the State;

(b)

parties or organizations controlling the State or a substantial part of the territory of the State;

(c)

non-state actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organizations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.

Article 6 of the Directive differentiates between three different actors: States, de-facto authorities and non-state actors. Only as regards the latter does it have to be shown that the State is “unable or unwilling to provide protection,” a formula developed by German courts in the 1960s42 and later incorporated in the UNHCR Handbook.43 However, this formula was also used by States which to a large extent excluded from refugee status persecution by non-state actors. In these States, the interpretation of the formula was extremely restrictive requiring State responsibility of the country of origin (also known as the ‘accountability view’).44 In response, UNHCR clarified that it was the effect of the persecutory act on the victim and ultimately his or her access to protection which had to be examined (‘protection view’).45 In practice, similar results can be achieved under both approaches, depending on their interpretation.46 Conceptually, however, they are different. The ‘protection view’ better reflects the approach of the 1951 Convention, which assesses the well-founded fear of persecution of the applicant.47 It would therefore have been preferable had this found entry into the Directive. The formula adopted is in principle sufficiently 42

Grahl-Madsen (note 28) refers to a decision of the Administrative Court in Ansbach (Case 2377-79 II/59 of 17 January 1961). 43 UNHCR Handbook (note 29), para. 65. 44 Ben Vermeulen/Thomas Spijkerboer/Karin Zwaan/Ben Fernhout, Persecution by Third Parties, 1998; Anja Klug, Rechtserheblichkeit nichtstaatlicher Verfolgung bei der Flüchtlingsanerkennung nach der Genfer Flüchtlingskonvention, Teil II Staatenpraxis, 2000 (not published); Volker Turk, Non-State Agents of Persecution, in: Vincent Chétail/ Vera Gowlland-Debbas, Switzerland and the International Protection of Refugees, 2002, 95–109. 45 See UNHCR Opinion (note 39); UNHCR: The International Protection of Refugees. Interpreting Art. 1 of the 1951 Convention Relating to the Status of Refugees, 2001. 46 Reinhard Marx, Stellungnahme für die öffentliche Anhörung des Ausschusses für Menschenrechte und Humanitäre Hilfe des Deutschen Bundestages am 29. November 1999 zu dem Thema: Nichtstaatliche Verfolgung, 50. 47 Guy S. Goodwin-Gill, The Refugee in International Law, 2nd ed. 1996, 73.

606

Anja Klug

suited to encompass the different constellations of non-state persecution, but it will very much depend on the interpretation by the Member States whether protection will in fact be granted for persecution by non-state actors. An important question relating to non-state persecution relates to failed State situations. While de facto authorities are recognized as actors of persecution by all EU Member States, it was contested, especially by the German jurisprudence on persecution in the context of (civil) war,48 but also by French asylum decisions,49 whether persecution by individuals or groups in a State with a complete break-down of State power could lead to recognition of refugee status.50 The Joint Position did not tackle this question at all since an agreement could not be reached by Member States in 1996. While Article 6 lit. c of the Directive does not explicitly address this problem, the Explanatory Memorandum to the Commission proposal clarifies that “the relevant enquiry is whether or not an applicant may obtain effective protection against the harm, or threat of harm, in the country of origin.”51 The intention of the Commission to include failed State situations was not contested by any Member State during the negotiations. A different approach has been taken in the new German Immigration Law of 2004. Section 60 para. 1 of the Law on the Residence of Foreigners includes a sentence which explicitly clarifies that the existence of a State authority is not required. Such a clarification in the Directive would have been preferable to remove any doubt. III. Lack of National Protection

1. National Protection Persecution only leads to recognition of refugee status if no national protection is available. The question of national protection seldom is relevant with re48

See, e.g., Reinhard Marx, Handbuch zur Asyl- und Flüchtlingsanerkennung, 1995, latest revision 2003, § 8 mn. 9 et seq.; Anja Klug, Flüchtlingsrechtliche Relevanz der “nichtstaatlichen” Verfolgung in Bürgerkriegen – die Rechtsprechung des BVerwG im Vergleich zur Praxis anderer europäischer Staaten, Neue Zeitschrift für Verwaltungsrecht, vol. 20, 2001, Supplement to No. 8, 65. 49 See Klug (note 48), 67. 50 The situation in Somalia in the mid-1990 was often cited as an example. 51 See Explanatory Memorandum (note 24), Art. 9 para. 1.

Harmonization of Asylum in the European Union

607

spect to State persecution. However, as regards non-state persecution, it is a decisive factor. According to Articles 6 lit. c and 7 of the Directive, not only States but also non-state entities, including international organizations, are considered capable of providing protection against persecution by non-state agents. While there is a certain logic in equating actors of persecution and actors of protection, its basis in international law is questionable. Non-state entities and international organizations do not have the attributes of a State. They are only to a limited extent subjects of international law, which in practice means that their ability to enforce the rule of law is restricted.52 Article 7 para. 2 of the Directive also provides guidance as to when protection against persecution by non-state actors is considered available. “Reasonable steps” need to have been taken to prevent persecution and the individual applicant must have access to such protection. Under the Directive, the objective situation in a given country has to be examined, especially the question as to whether it operates an “effective legal system.” As regards the individual applicant, the provision seems to be restricted to an examination of whether the applicant encounters any discrimination in accessing the system. The possibility of the existence of a well-founded fear of persecution, despite a legal system which in principle operates effectively in a non-discriminatory manner, is not apparent from the Directive. The danger exists that the Directive’s approach will fail to take individual risks sufficiently into account. 2. Internal Flight or Relocation Alternative Article 8 of the Directive, entitled “internal protection,” provides minimum rules for the application of a concept commonly called ‘internal flight or relocation alternative’ according to which refugee protection is refused if the applicant can find protection against claimed persecution in another part of his own country. The concept was developed by States in the 1980s with the arrival of an increasing number of refugees from countries outside Europe based on the argument that international refugee protection is provided only in the absence of State protection.53 There has been no consistent approach to the concept and 52

See, e.g., Matthias Ruffert, The Administration of Kosovo and East Timor by the International Community, International and Comparative Law Quarterly, vol. 50, 2001, 613, 623. Critical also Sitaropoulos (note 27), 382. 53 James A. Hathaway, International Refugee Law: The Michigan Guidelines on the Internal Protection Alternative, available at: www.refugeecaselaw.org./Refugee/guide-

608

Anja Klug

divergent practices and terminologies have emerged.54 However, there is agreement that the examination of an internal flight alternative basically requires an analysis of two questions: the situation in the area of internal relocation as well as an assessment of the specific circumstances of the individual case.55 UNHCR underlines the importance of examining first whether internal relocation is relevant in the individual case before examining its reasonableness in the particular case.56 Different opinions exist as to which conditions have to be fulfilled in the area of internal flight beyond safety from persecution or serious harm and to what extent specific individual circumstances will be taken into account.57 Article 8 para. 2 of the Directive requires examination of the general situation in the relevant area on the one hand and the personal circumstances of the individual case on the other. The specific area must be free of persecution and risk of suffering serious harm. Unfortunately, the article does not provide further guidance. The formula “the applicant can reasonably be expected to stay in that part of the country” leaves the decision as to the necessary minimum level of standards of treatment to the Member States. The Directive is also not sufficiently clear about the period in which the conditions permitting internal relocation must be fulfilled. The use of the present tense “there is no well-founded fear” and “the applicant can reasonably be expected” indicates an examination of the present situation. However, the wording “the applicant can reasonably be expected to stay […]” (emphasis added) instead of return could be interpreted as a backward view. The latter interpretation, however, would not be in line

lines.htm; and James C. Hathaway/Michelle Foster, Internal Protection/Relocation/ Flight Alternative as an Aspect of Refugee Status Determination, in: Feller/Turk/Nicholson (note 28), 357. Critical Turk/Nicholson (note 28), 3, 22 et seq. 54 UNHCR: Internal Protection/Relocation/Flight Alternative, Global Consultations on International Protection, San Remo Expert Roundtable 6–8 September 2001, UNHCR/ IOM/08/2002. The term ‘internal protection’ is taken from the Michigan Guidelines (note 53) which have been primarily developed by Professor Hathaway. 55 UNHCR: Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the Context of Art. 1 A para. 2 of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04 of 23 July 2003 (UNHCR Guidelines Internal Flight). A different approach is taken by the Michigan Guidelines on the Internal Protection Alternative by Hathaway (note 53). 56 UNHCR Guidelines Internal Flight (note 55). 57 An overview on state practice is provided by the ECRE research paper on the application of the concept of internal protection alternative, autumn 2000, available at: http://www. ecre.org/research/ipa.shtml.

Harmonization of Asylum in the European Union

609

with the 1951 Convention, which is based on an assessment of a present wellfounded fear of persecution. Especially problematic is Article 8 para. 3, which allows for a refusal of refugee status even if return to the area of internal relocation technically is not possible. Refugee protection can therefore be denied even if the applicant has at the time of the decision no accessible protection alternative. Thus, Article 8 para. 3 is not an expression of the principle of subsidiarity mentioned above but has a different intention. It retroactively punishes the applicant’s decision of seeking asylum abroad and not availing himself of protection available in his country of origin. According to the provision, it is not even necessary for the applicant to have known about the internal relocation alternative. Article 8 para. 3 creates an exclusion clause not in line with the 1951 Convention, which does not require threatened individuals to first exhaust all options within their own country before seeking asylum.58 Article 8 falls below the standard agreed upon in the Joint Position of 1996. Here, the internal relocation alternative was much better embedded into the context of Article 1 A para. 2 of the 1951 Convention. The relevant paragraph stated clearly that the requirements of Article 1 A para. 2 need to be examined. Furthermore, the Joint Position required the applicant to be able to obtain effective protection in his country of origin.59 IV. Membership of a Particular Social Group as One of Five Reasons for Persecution

Article 10 of the Directive provides interpretation of the five reasons for persecution. Of particular interest here is the interpretation provided for the concept ‘particular social group.’ This is the ground which is least clear and where State practice is diverse.60 While it is seldom used in some Member States,61 the con58 UNHCR Handbook (note 29), para. 91; Goodwin-Gill (note 47), 74; see also the Michigan Guidelines (note 53), para. 8: “There is no justification in international law to refuse recognition of refugee status on the basis of a purely retrospective assessment of conditions […].” 59 Joint Position (note 22), Chapter 8. 60 UNHCR Global Consultations, Summary Conclusions – Membership of a Particular Social Group, San Remo, September 2001; T. Alexander Aleinikoff, Protected Characteristics and Social Perceptions: An Analysis of the Meaning of “Membership of a Particular Social Group,” in: Feller/Turk/Nicholson (note 28), 264 et seq.; Heaven

610

Anja Klug

cept has become more developed in recent years, mainly in common law countries.62 In Europe, the UK House of Lords has passed landmark decisions.63 Two approaches dominate the international debate. The first examines whether a group is united by an immutable characteristic or by a characteristic so fundamental to human dignity that a person should not be compelled to forsake it (also known as the ‘protected characteristics approach’). The second approach examines whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large (‘social perception approach’).64 While analyses under the two approaches frequently converge, they may at times reach different results. UNHCR has expressed the view that the two approaches should be reconciled to avoid protection gaps.65 Article 10 lit. d of the Directive, according to which a group shall be considered to form a particular social group where in particular: – members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it and – that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society,

takes up both approaches. However, instead of two alternative analyses, it requires a twofold analysis for each approach. Thus, the Directive takes a clearly more restrictive line than the UNHCR.

Crawley/Trine Lester, Comparative Analysis of Gender-Related Persecution in National Asylum Legislation and Practice in Europe, AMRE Consulting, UK, May 2004, available at: http://www.unhcr.ch/epau. 61 Such as, e.g., Germany, as regards the practice on gender-related persecution; see Gabriele von Thenen, Geschlechtsspezifische Flucht- und Bleibegründe: Völkerrechtliche Verpflichtungen und innerstaatliche Rechtslage, 2003. 62 See e.g., James C. Hathaway/Michelle Foster, Membership of a Particular Social Group, Discussion Paper No. 4 Advanced Refugee Law Workshop, International Association of Refugee Law Judges, Auckland, New Zealand, October 2002, published in: International Journal of Refugee Law (IJRL), vol. 15, 2003, 477; Aleinikoff (note 60). 63 See especially Islam v. Secretary of State for the Home Department and R. v. Immigration Appeal Tribunal and Secretary of State for the Home Department, ex parte Shah, UK House of Lords, (1999) WLR 1015, reprinted in: IJRL, vol. 11, 1999, 496. 64 See Hathaway/Foster (note 62), 480 et seq. 65 UNHCR: Guidelines on International Protection: “Membership of a particular social group” within the context of Art. 1 A para. 2 of the 1951 Convention and/or its 1967 Protocol, HCR/GIP/02/02 of 7 May 2002.

Harmonization of Asylum in the European Union

611

It is also regrettable that two of the three most important examples of social groups, gender and age, were deleted in the course of the negotiations and only “common characteristic of sexual orientation” was maintained. Especially as regards gender-related persecution, the Directive takes an overly cautious approach. Not only is gender not mentioned as such among the examples of a social group, the provision further states “gender-related aspects might be considered, without by themselves alone creating a presumption for the applicability of the Article.” Given the positive developments in recognition practice and jurisprudence with regard to persecution on the basis of gender,66 this is surprisingly weak and involves the risk that persecution on the basis of gender will not be sufficiently considered. The text of the Directive therefore appears to be a compromise. On the one hand, it seeks to incorporate most recent developments, but on the other hand, it shrinks from the consequences. Especially with regard to women, it is questionable whether Article 10 lit. d of the Directive will contribute in any way to the recognition of the particular forms of persecution directed at women as sufficient to qualify for refugee status.67 The same is true of persecution of children.68 V. Sur Place Claims (Article 5)

Article 5 para. 1 of the Directive recognizes the possibility of sur-place claims, “a well-founded fear of being persecuted or a real risk of suffering serious harm may be based on events which have taken place since the applicant left the country of origin.” This includes activities in which the applicant himor herself has engaged (Article 5 para. 2), unless they are undertaken in the context of a subsequent application (Article 5 para. 3). In the latter scenario, 66

See e.g., Rodger Haines, Gender-Related Persecution, in: Feller/Turk/Nicholson (note 28), 319; Ninette Kelley, The Convention Refugee Definition and Gender-Based Persecution, IJRL, vol. 13, 2001, 558 et seq.; UNHCR: Guidelines on International Protection: Gender-Related Persecution within the context of Art. 1 A para. 2 of the 1951 Convention and/or its 1967 Protocol relating to the Status of refugees, HCR/GIP/02/01 of 7 May 2002; Crawley/Lester (note 60). 67 Contrary, the opposite was explicitly laid down in the new German Immigration law. Section 60 para. 1 of the Residence Law determines that “persecution because of membership of a particular social group includes threats against life, limb or freedom merely on behalf of gender” (translation by the author). 68 As regards persecution against children see Alice Edwards, Age and Gender Dimensions in International Refugee Law, in: Feller/Turk/Nicholson (note 28), 46 et seq.

612

Anja Klug

Member States may determine that such activities will “normally” not qualify for refugee status. Neither do they qualify for subsidiary protection under the Directive. In this regard, the Commission proposal followed an even more restrictive approach69 on the basis of the Joint Position.70 Upon criticism by UNHCR, the original text was modified. Article 5 para. 3 only applies to subsequent applications. Furthermore, it is not obligatory but up to the discretion of States to refuse refugee status in the case of self serving claims. Additionally, the term “normally” requires States to include the possibility of exceptions in their national law. The definition of cases not considered “normal” is, however, left to Member States. Finally, the phrase “without prejudice to the Geneva Convention,” leaves it open to Member States to grant 1951 Convention status to applicants outside the scope of the Directive. Article 5 clearly is a compromise text, attempting to incorporate the existing diverging approaches. It basically takes up the approach taken by the Joint Position but is less restrictive as regards self-serving claims. The 1951 Convention itself does not explicitly address the question of selfserving claims. Current State practice and opinions of refugee law experts on self-serving refugee claims are divergent.71 Some States make a distinction between actions resulting from a genuine conviction held by the applicant on the one hand, and those actions taken for the sole purpose of creating a risk of persecution on the other.72 In any event, other court decisions, especially of common law States require ‘good faith’ on the part of the asylum seeker, even though such claims are often rejected primarily because the well-founded fear of

69 UNHCR, Observations on the European Commission’s proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, November 2001. 70 Joint Position (note 22), Chapter 9.1. 71 See a description of the different approaches e.g., in Hathaway (note 30), 35 et seq. 72 Thus, e.g., as of 1 January 2005, Germany as regards second asylum applications. While subjective post-flight reasons not resulting from a genuinely held opinion were already excluded from the constitutional right to asylum (Section 28 of the Asylum Procedure Act), the provision was extended to applications for Convention status by Art. 3 of the new Immigration Act (note 41), 1991.

Harmonization of Asylum in the European Union

613

persecution is lacking.73 Other countries and commentators examine whether the applicant indeed has a well-founded fear of persecution. They base their opinion on the wording of Article 1 A para. 2 of the 1951 Convention and argue that refugee protection is not restricted to applicants acting in good faith but, in the first place, provides protection against persons fleeing persecution.74 The latter approach is supported by UNHCR.75 While recognizing the problems caused by self-serving claims, the Office considers a thorough examination of the claims, especially of the applicant’s credibility and the actual danger of persecution, to be a suitable way of dealing with such cases. From a protection point of view, it is unfortunate that persons with clear protection needs may fall outside the scope of the protection regime of the Directive. VI. Cessation, Exclusion and Revocation (Ending or Refusal of Recognition)

Article 11 para. 1 of the Directive basically reproduces the 1951 Convention’s cessation clauses of Article 1 C except that one important section is missing. The proviso to Article 1 C para. 5, which allows for an exceptional continuation of refugee protection for compelling reasons after a fundamental change of circumstances, has not been incorporated. While its actual wording only relates to statutory refugees,76 it is well-grounded in State practice in that it reflects a general humanitarian principle and is therefore applied beyond its wording.77 It is difficult to understand why it has not been incorporated in the 73

Thus, e.g., Australia, Somaghi v. Minister for Immigration, Local Government and Ethnic Affairs, Federal Court of Australia, 102 ALR 339 (1991) 31 FCR 100; see also Grahl Madsen (note 28), 251. 74 Thus, e.g., Switzerland, see Entscheidungen und Mitteilungen der Asylrekurskommission (EMARK) 1999/29-173; Hathaway (note 30); Guy Goodwin-Gill, Damian v. Secretary of State for the Home Department. Comment: Refugee Status and “Good Faith,” IJRL, vol. 12, 2000, 663 et seq. 75 UNHCR: Guidelines on International Protection: Religious based refugee claims under Art. 1 A para. 2 of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06 of 28 April 2004, para. 35. 76 Persons who meet the definitions of international instruments on refugee protection adopted prior to the 1951 Convention are referred to as “statutory refugees.” 77 UNHCR Handbook (note 29), para. 136; UNHCR-Executive Committee Conclusion No. 69 (XLIII) of 1992; Hathaway (note 30); Goodwin-Gill (note 74), 87; Joan Fitzpatrick/Rafael Bonoan, Cessation of Refugee Protection, in: Feller/Turk/Nicholson (note 28), 491, 517 et seq.

614

Anja Klug

Directive. The Explanatory Memorandum simply appeals to Member States “to ensure an appropriate status in such cases.”78 Article 12 of the Directive takes up the Convention’s exclusion clauses. The approach differs, however, from Article 11 of the Directive. Thus, Article 12 para. 1 lit. a not only reproduces the wording of Article 1 D of the Convention, which excludes “persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance,” but also refers specifically to this Convention and thus provides a better understanding of the background of the provision. Regrettably, the approach is not followed consistently. Article 12 para. 1 lit. b incorporates Article 1 E of the Convention, which excludes persons who have acquired in their country of residence “the rights and obligations which are attached to the possession of the nationality of that country” without reference to the Convention, but changes the text of the Convention by adding the phrase “or rights and obligations equivalent to those,” which is not in the Convention. Article 12 paras. 2 and 3, according to which 2. A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious nonpolitical crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations, as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. 3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein,

consist of a composite text taken from Article 1 F of the Convention which excludes persons from refugee status who have committed most serious crimes, but contains additions which are apparently meant to provide interpretative guidance. However, both parts, the Convention text and its interpretation, are mixed in such a way that it is not clear where the Convention text is being relied 78

Explanatory Memorandum (note 24), Art. 13 lit. e.

Harmonization of Asylum in the European Union

615

on and where the Directive intends to interpret the latter. This again increases the danger that the Convention will be wrongly interpreted. Moreover, the Directive adds the phrase “which means the time of issuing a residence permit” to the wording of Article 1 F lit. b of the 1951 Convention (“he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”). This could be contradictory to the wording of that Convention Article, which contains both a geographical and temporal limitation, by specifying that serious non-political crimes must have been committed (i.) outside the country of refuge and (ii.) prior to admission there. The wording of the addition to Article 1 F lit. c “as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations” may lead to an overly extensive application of this particular exclusion clause since Articles 1 and 2 of the UN Charter79 set out the purposes and principles of the United Nations in very general terms. On the contrary, Article 1 F is an exception to Article 1 A para. 2 and should therefore be interpreted restrictively. Article 14 of the Directive determines the conditions under which refugee status can be revoked, ended or refused. The provision includes a procedural element which is not in the Convention, with guidance on how to proceed in cases of cessation (Article 11 of the Directive) or exclusion (Article 12 of the Directive). Article 14 para. 3 lit. a authorizes, inter alia, Member States to “revoke” refugee status if the applicant “is excluded from being a refugee in accordance with Article 12.” The provision thus gives the impression that a refugee can be excluded after refugee recognition. From the wording of Article 1 F of the 1951 Convention however, it is clear, that Article 1 F, at least Article 1 F lit. b, cannot be applied to a recognized refugee unless new facts come to light.80 Furthermore, Article 14 paras. 4 and 5 of the Directive allow “the status granted to a refugee” to be revoked when “there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present” or when “he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.” This is language taken from Article 33 para. 2 of the Convention, which determines the conditions under which a recognized refugee may be denied the 79

Charter of the United Nations, 26 June 1945, UNCIO, vol. 15, 335. The article has therefore been severely criticized in the course of the negotiations by UNHCR. See also Volker Turk, Forced Migration and Security, IJRL, vol. 15, 2003, 113–125. 80

616

Anja Klug

non-refoulement protection of Article 33 para. 1. This provision was introduced mainly on the insistence of Germany, which had introduced a similar provision in its own law.81 In order to meet the strong criticism by UNHCR82 which made clear that this mixing of Article 1 F and Article 33 para. 2 was not in line with the Convention, the formulation “status granted to a refugee” was introduced to differentiate between refugee status granted according to the 1951 Convention and the status provided according to the Directive. Furthermore, it was clarified in Article 14 para. 6 that the refugee will maintain access to the rights of the 1951 Convention which do not require a legal residence. The compromise found is, however, far from satisfactory. Article 14 continues to mix two different concepts of the 1951 Convention, the exclusion clauses of Article 1 F and the exception to the non-refoulement principle in Article 33 para. 2, in a way which endangers the proper application of the 1951 Convention. In all probability, the differentiation between refugee status and “status granted to a refugee” will most likely neither be understood nor applied in practice. VII. Complementary Protection

Apart from defining who qualifies for refugee protection, the Directive also determines who would otherwise be in need of international protection, commonly described as “complementary” or, as in the Directive, as “subsidiary.” Here, the Directive takes up Member States’ obligations deriving from human rights law. It also creates a legal basis for the recognition of protection needs arising out of situations of armed conflict. This latter part especially is important for the development of international refugee law and will briefly be discussed here.83 According to Article 2 lit. e in connection with Article 15 lit. c of the 81

See modification to Sect. 51 para. 3 Aliens’ Law which had been introduced through Art. 11 Law for the Fight against Terrorism (Terrorismusbekämpfungsgesetz) of 9 January 2002, BGBl. 2002 I, 361, 370. Critical, inter alia, Stefanie Schmahl, Internationaler Terrorismus aus der Sicht des deutschen Ausländerrechts, Vortrag für das 20. Migrationspolitische Forum, Berlin, 2004. 82 Statement by Erika Feller, Director, Department of International Protection, UNHCR, Strategic Committee on Immigration, Frontiers and Asylum (SCIFA), Brussels, 6 November 2002, available at: http://www.unhcr.ch/. 83 For further details also as regards status and rights of beneficiaries which are not discussed in detail here, see Jane McAdam, The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime (extract from draft DPhil thesis, University of Oxford, 2004, on file with the author).

Harmonization of Asylum in the European Union

617

Directive, a person not qualifying for refugee status is considered to be in need of international protection where there are substantial grounds for believing that the person would face a real risk of suffering serious harm in his country of origin in the form of a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” Here, the Directive has succeeded in creating a European legal instrument for the recognition of protection needs arising out of situations of conflict which may be outside the scope of the 1951 Convention. Such protection needs have already been recognized in the past and UNHCR’s mandate encompasses this group.84 In Africa and Central America, States created a legal basis for the recognition of such protection needs which are similar to those covered by the 1951 Convention, but for which the link to a Convention ground was difficult or impossible to establish in the individual case, simply by clarifying that the 1951 Convention’s refugee definition extends to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave […]85

and to persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.86

The possibility, at the time addressed to refugee groups who could not benefit from the protection of the Convention because of the geographical limitation, was suggested by the drafters of the 1951 Convention who in the Convention’s Final Act expressed the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided 84 GA Res. 1673 (XVI) of 18 December 1961; GA Res. 3143 (XXVIII) of 14 December 1973. 85 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969, UNTS, vol. 1001, 45, Art. 1 para. 2 (OAU Refugee Convention). 86 Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held in Cartagena on 19–22 November 1984, published in UNHCR: Collection of International Instruments and other Legal Texts concerning Refugees and Displaced Persons, vol. II, 1995, Conclusion No. 3 (Cartagena Declaration).

618

Anja Klug

by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.87

Similar attempts in Europe had failed in the past.88 Here, the Directive succeeded in taking an important step forward, but is falling short on several aspects of the protection provided by the OAU Refugee Convention or the Cartagena Declaration. First, Article I para. 2 of the OAU Refugee Convention and the Cartagena Declaration use an encompassing refugee definition. Although the European Commission had originally intended to create one regime for international protection needs,89 the Directive as adopted clearly differentiates between the status of refugees and beneficiaries of subsidiary protection.90 It is, however, positive that the Directive spells out that subsidiary protection is complementary to refugee protection, i.e., it is only to be examined after it has been established that the applicant does not qualify for refugee protection.91 Nevertheless, the difference in obligations for the State bears the risk that refugee protection will be applied restrictively and persons in need of protection would be preferably given subsidiary status. Moreover, the definitions of the OAU Refugee Convention and the Cartagena Declaration include a much wider range of threats than just situations of conflict to which the Directive is restricted. Unlike the Directive, they also do not narrow the protected rights to “life” and “person.” A further important difference is that the Directive requires an individualized risk which may, depending on the 87

Excerpt from the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, E, reprinted in: the UNHCR Handbook (note 29), Annex I. 88 See Parliamentary Assembly of the Council of Europe Recommendation 773 (1976) and Recommendation 1236 (1994), reprinted in: Council of Europe, Selected Texts Concerning Territorial Asylum and Refugees Adopted Within the Council of Europe, vol. II, Recommendations and Resolutions of the Parliamentary Assembly, June 1999. See also Recommendation 18 (2001) of the Committee of Ministers to Member States on Subsidiary Protection of 27 November 2001, available at: http://wcm.coe.int/ViewDoc. jsp?id=67075. 89 Explanatory Memorandum (note 24), Chapter 5; see also the definition of international protection in Art. 2 paras. d and f of the Directive. 90 See, e.g., the difference as regards the maintenance of the right to family unity (Art. 23 para. 2); the length of residence permit (Art. 24 para. 2), access to the labor market (Art. 26 para. 3). 91 See preambular para. 24; Art. 2 lit. e: “Person eligible for subsidiary protection means a third country national or a stateless person who does not qualify as a refugee […].”

Harmonization of Asylum in the European Union

619

situation, be difficult to prove. Preambular paragraph 26 of the Directive aggravates this necessity for individualized proof by qualifying that risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.

Here the Directive even falls behind the Temporary Protection Directive, which includes within its scope persons who have fled areas of armed conflict or endemic violence and persons who are at serious risk or have been victims of systematic or generalized violations of their human rights.92 Although Article 15 lit. c of the Qualification Directive is definitely a step in the right direction, it is questionable whether its restricted scope will provide protection beyond that afforded by Article 3 ECHR. Nevertheless, one achievement of the Directive is that it has created a legal basis for complementary protection needs which may be outside the scope of the 1951 Convention within the EU and a definitive status for its beneficiaries.93 D. Content of Refugee Protection I. General

Chapter VII of the Directive deals with the status of refugees as well as of beneficiaries of subsidiary protection. As regards refugees, the 1951 Convention, to which all Member States are party, already provides an agreed standard. It would, therefore, have been expected that the Directive would copy or simply refer to the relevant provisions of the 1951 Convention. However, the Directive follows a different approach. Articles 21 to 34 of the Directive take up only a selection of Convention rights.94 Neither the Directive nor the Explanatory Memo92

See Temporary Protection Directive (note 5), Art. 2 lit. c. The Commission itself has clarified in the Explanatory Memorandum (note 24) that the Directive’s aim was to clarify and codify existing international and Community obligations and practice. 94 Not included are Art. 3 (non discrimination), Art. 4 (religion), Art. 6 (the term in the same circumstances), Art. 7 (exemption from reciprocity), Art. 8 (exemption from exceptional measures), Art. 10 (continuity of residence), Art. 11 (refugee seamen), Art. 12 (personal status), Art. 13 (movable and immovable property), Art. 14 (artistic rights and industrial property), Art. 15 (right of association), Art. 16 (access to courts), Art. 20 (rationing), Art. 25 (administrative assistance), Art. 27 (identity papers), Art. 29 (fiscal 93

620

Anja Klug

randum of the Commission’s draft provide any explanation as to why certain rights were included and others not. Even though Article 20 para. 1 clarifies that the chapter is “without prejudice to the rights laid down in the 1951 Convention,” this approach bears certain risks. Depending on how the Directive will be implemented, Convention rights not included in the Directive may be simply overlooked and not applied in practice. The approach taken by the Directive could therefore undermine the standards of the 1951 Convention because these standards are mentioned selectively. Furthermore, as will be shown below, the Convention rights included in the Directive have not always been incorporated correctly. As a consequence, the Convention standards could be changed, misinterpreted or lowered. Also, the Directive does not attempt to update the Convention standard to reflect developments in the human rights field which would have been desirable and would have added value to the Convention. Unlike the Directive’s chapters on the definition of refugee, the Directive offers little guidance on the interpretation of Convention rights. This raises the question as to whether there is any added value in including provisions for the standard of treatment for refugees in the Directive. II. Protection from Refoulement

Protection from refoulement is provided in Article 21 para. 1 by a reference to Member State’s international obligations: Member States shall respect the principle of non-refoulement in accordance with their international obligations.

The article does not explicitly refer to any of the specific refoulement provisions such as Article 33 para. 1 of the 1951 Convention, Article 3 of the 1984 Convention Against Torture (CAT),95 or Article 3 ECHR. Such an approach had been suggested, for example, by the European Parliament which argued that “it is important for legal certainty and the protection of human rights to guarantee excharges), Art. 30 (transfer of assets), Art. 31 (refugees unlawfully in the country of refuge), Art. 32 (expulsion), Art. 34 (naturalization) and Art. 35 (cooperation with UNHCR which is only mentioned in preambular para. 15). 95 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 of 10 December 1984, reprinted in: ILM, vol. 23, 1984, 1027.

Harmonization of Asylum in the European Union

621

pressly the primacy of human rights instruments that set higher standards.”96 Neither is the content of either of the three provisions directly reproduced in Article 21 para. 1. Also, the provision does not provide any interpretative guidance as regards the international obligations it refers to. Article 21 para. 2 lists exceptions to protection from refoulement and here, a different approach was adopted. Article 21 para. 2 basically reproduces Article 33 para. 2 of the 1951 Convention, albeit with some amendments. Article 21 para. 2 is declared applicable irrespective of whether or not the refugee is “formally recognized.” Firstly, as has already been stated for Article12 paras. 2 and 3 of the Directive, it is not clear from reading the Article where the existing Convention text was copied and where additions were made. Secondly, the fact that Article 21 para. 2 of the Directive explicitly applies to persons who are not formally recognized as refugees could result in the incorrect application of Article 33 para. 2 of the 1951 Convention. The applicability of the exception to the refoulement prohibition of Article 33 para. 1 requires a determination of refugee status, not least to enable a proper assessment of proportionality considerations.97 Article 21 is not sufficiently clear in this respect. Furthermore, the Directive fails to address clearly the fact that the refoulement prohibitions of Article 3 ECHR and Article 3 CAT are absolute and do not allow for any exceptions. The caveat in Article 21 para. 2 – “where not prohibited by the international obligations” in itself – indicates that the scope of Article 21 para. 2 is narrower than the wording. A better approach would have been to consolidate existing obligations. Article 21 paras. 2 and 3 of the Directive should have been merged to the effect that refugees falling under Article 21 para. 2 should not be refouled if protected against refoulement under Article 3 ECHR or Article 3 CAT. Then it would have been clear that Article 3 ECHR in most cases does not permit the refoulement of refugees even if they fulfill the requirements of Article 33 para. 2.

96

European Parliament, Report on the Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons who Otherwise Need International Protection, final A50333/2002, PE 319.971, Amendments 6, 19, 37 of 8 October 2002. 97 See Turk (note 80), 120. A different opinion is expressed by Sir Elihu Lauterpacht/ Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement, in: Feller/Turk/Nicholson (note 28), 87, 134.

622

Anja Klug

III. Maintaining Family Unity

Article 23 of the Directive expounds the status of family members already in the Member State, while family reunion is addressed in a separate directive. Member States are obliged to “ensure that family unity can be maintained.” The term “family” is defined in Article 2 lit. h. While the Commission proposal had suggested a much broader definition of the term,98 this was restricted considerably in the course of the negotiations. Firstly, only members of the core family (spouses and unmarried minor children) qualify and, secondly, the family must have already existed in the country of origin. This restriction has been criticized as not in line with international human rights obligations such as Article 8 ECHR, which according to the ECHR’s jurisprudence does not differentiate as to when and where the family was established.99 Family members who do not individually qualify for refugee status are generally “entitled to the benefits laid down in the Directive with the exception of the protection against refoulement.” This means that the Directive only partly incorporates the ‘principle of family unity’ according to which family members of a refugee in principle share his/her status and not only the basic rights attached to it.100 While the difference may generally be marginal, it does matter as regards questions such as the possibility to travel and the special protection against refoulement. It should also not be underestimated that a person under special protection of the 1951 Convention is received differently by the host society. Furthermore, uniform status for all family members implements the principle of family unity more satisfactorily. Generally, it is the whole family which suffers directly or indirectly from the persecution of one family member. It is on the basis of these arguments that the principle of family unity is followed in many

98

Explanatory Memorandum (note 24), Art. 2 lit. j. As regards the jurisprudence of the ECHR see David John Harris/Michael O’Boyle/ Colin Warbrick, Law of the European Convention on Human Rights, 1995, 313. 100 A right to family unity was not incorporated into the Convention but the “essential right” to family unity was referred to in the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (recommendations are reprinted in: UNHCR Handbook (note 29), 55); see also id., Chapter VI, and various UNHCR Executive Committee Conclusions, such as Conclusion No. 88 L (1999). 99

Harmonization of Asylum in the European Union

623

Member States.101 It is therefore surprising that Member States did not agree to incorporate it fully into the Qualification Directive. IV. Residence Permit, Freedom of Movement and Travel Documents

Unlike the 1951 Convention which does not explicitly regulate the question whether, in what State and for how long refugees are to be issued a residence permit, Article 24 of the Directive requires a residence permit to be issued. This is in line with existing European State practice which has been developed in order to effectively apply the 1951 Convention.102 According to Article 24 para. 1 Member States are obliged to issue a temporary residence permit for at least three years. The possibility of refusing a residence permit for “compelling reasons of national security or public order” is based on Article 32 para. 1 of the Convention which on these grounds allows for the expulsion of a refugee lawfully in the territory. A more far reaching suggestion for a provision according to which the resident permit becomes permanent after a certain period of time has, however, not been taken up. Freedom of movement is guaranteed in Article 32 of the Directive. The text differs slightly from the corresponding Article in the Convention. In substance, the main difference seems to be that Article 26 of the Convention requires legal residence, while Article 32 grants freedom of movement independent of the legality of the person’s residence. As regards travel documents, Article 25 basically copies the text of the first sentence of Article 28 para. 1 of the 1951 Convention. However, the rest of Article 28, especially the capability to issue travel documents to refugees who do not fulfill the requirements of the first sentence of Article 28 para. 1, and also the Annex, which regulates the transfer of responsibility, have not been incorporated. As regards the latter question, the Commission has however already an-

101 Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia: Report on Family Reunification, March 1997. Germany just recently extended the right to a same status to Convention Refugees with the new Immigration Act, see amendment to Sect. 26 Asylum Procedure Act through Art. 3 of the Immigration Act (note 41), 1991. 102 Goodwin-Gill (note 47), 368.

624

Anja Klug

nounced plans to draft a separate Directive on questions related to the transfer of responsibility.103 V. Access to Employment and Education

Access to employment for refugees is regulated in Article 26 paras. 1, 2 and 5 of the Directive. Access to the labor market is granted for employed and selfemployed activities according to the general rules applicable. Here the Directive not only implements but effectively simplifies the rather complicated provisions of Articles 17–19 and 24 of the 1951 Convention. Taking into account developments in labor law and practical reality, the standard of Article 26 para. 1 is in certain areas above that accorded under the Convention. As regards access to education, Article 27 of the Directive partly goes beyond the standard of the Convention (concerning minors). As regard access to education for adults, the provision neither fully reflects the standard of the 1951 Convention nor that of international human rights law. According to Article 22 of the Convention, all refugees, regardless of age, have access to elementary education in the same way as nationals. While the majority of adults may not be in need of elementary education, there may be some who never had a chance to attend or complete their elementary education and could now usefully benefit from such an opportunity. Indeed, their integration could thereby be enhanced. It is difficult to understand why here the Directive departs from the Convention standard. VI. Social Welfare, Health Care and Housing

The Directive entitles refugees to treatment equal to that of nationals as regards “necessary social assistance” (Article 28 para. 1) and “healthcare” (Article 29). By contrast, Article 23 of the Convention grants refugees equal treatment with regard to public relief and social assistance. Commentators and State practice have interpreted these latter terms widely as encompassing all the different social entitlements existing in a contracting State.104 The Convention, 103

Commission Staff Working Paper: the area of freedom, security and justice: assessment of the Tampere program and future orientations – list of the most important instruments adopted, COM (2004) 401 final of 2 June 2004, 8. 104 See e.g., Paul Weis, The Refugee Convention 1951, 1995, 174.

Harmonization of Asylum in the European Union

625

therefore, encompasses a much wider range of social rights as compared to those accorded under the Directive, which only picks out two specific rights, “social assistance” and “healthcare.” In addition, the first is qualified by the term “necessary,” which may be interpreted as further restricting the range of social rights to which refugees are entitled. Article 31 of the Directive grants refugees access to housing under conditions equivalent to those of other third country nationals legally staying in a Member State. By comparison, Article 21 of the 1951 Convention (housing) grants treatment as favorable as possible, and this standard could be lower or higher than the Directive. Equal treatment with other foreigners is just the bottom line. Against the argument that the Directive only sets a minimum standard, treatment as favorable as possible is, according to Article 21 of the Convention, to be considered the minimum standard. Again, the Directive’s provision is an unnecessary deviation from Convention text. In another respect, Article 31 of the Directive is wider than Article 21 of the Convention – different to the Convention, it does not require legal residence. VII. Integration and Naturalization

Article 33 of the Directive obliges Member States to set up integration programs and grant refugees access to such programs. Here, the Directive implements the first sentence of Article 34 of the 1951 Convention which obliges the Contracting States to facilitate “assimilation” as far as possible. However, the Directive only takes up the first part of Article 34 of the 1951 Convention. The obligation to facilitate naturalization, although relevant, has unfortunately not been incorporated. Here again, the Convention has not been adequately reflected. VIII. Vulnerable Groups

The Directive furthermore contains special provisions for vulnerable groups, for instance, in Article 20 para. 3, which obliges Member States to take into account the specific situation of vulnerable persons, and in Article 30, which contains special provisions for unaccompanied minors. Here, the 1951 Convention does not include any regulation and the Directive draws on existing practice.

626

Anja Klug

E. Conclusions Although the Preamble of the Directive (para. 3) refers to the need for a “full and inclusive application” of the Convention as the “cornerstone of the international legal regime for the protection of refugees,” thus reflecting the language of the Tampere Conclusions, the Directive does not accomplish this aim. There is no consistent approach to the 1951 Convention throughout the text. Some provisions reproduce the relevant Convention article, however, regrettably, with only one notable exception (Article 12 para. 1 lit. a), which duplicates the actual wording of Article 1 D of the Convention, without reference to the respective Convention article. Despite the solemn language in the Preamble of the Directive, this involves the danger that the international source of the respective norm gets overlooked and is thus transformed into a European, or even, after its implementation in the Member States, a purely national norm. This transformation could lead to important differences in the provision’s interpretation. Additionally, several of the Directive’s provisions deviate from the Convention text (e.g., the refugee definition in Article 2 lit. c of the Directive and Articles 27, 28 and 31 of the Directive). Some of these changes, even though unnecessary, could be considered editorial amendments (e.g., the changes to the refugee definition in Article 2 lit. c). A few, which have been developed in Europe, show higher standards than the Convention text (e.g., Article 26). However, several deviations, such as in the restriction of the definition of refugee to third country nationals, the additions to Article 1 E of the Convention in Article 12 para. 1 lit. b, and the deviations in Articles 27, 28 and 31 of the Directive, are clearly contrary to the Convention. Another problem is that in several Articles of the Directive, Convention provisions are mixed with what should be considered interpretative guidance (e.g., Article 12 paras. 2 and 3). Without a comparative analysis, only experts familiar with the 1951 Convention would know where the Directive incorporates Convention provisions and where it simply interprets the latter. Depending on how these provisions are transposed into the laws of the Member States, the Convention text and the interpretation given may become transformed into a new legal provision which deviates from the Convention. A set of provisions in the Directive (especially Chapters 1–3) could be understood as interpretative guidelines for the application of the refugee definition. Preambular para. 16 indicates that the standards of the Directive are meant to “guide” national authorities in the application of the Convention. Although it

Harmonization of Asylum in the European Union

627

could and should be argued that it is the Preamble which sets out the parameters within which the Directive is to be applied, it would have been important to give further weight and legal certainty to this clarification by including a provision in the operative part of the Directive which defines the hierarchy of norms and the precedence of Convention provisions over its interpretative guidelines in the Directive. Especially considering the problematic mixture of Convention provisions and interpretative guidelines, this is not only regrettable but may lead to breaches of the Convention. The quality of the interpretative guidelines varies. Some of the provisions take up recent developments in international refugee law such as the recognition of non-state persecution in Article 6, the reference to the human rights context of the term persecution in Article 9 para. 1 and the definition of “particular social group” in Article 10 para. 1 lit. d, even though the definitions found are, as described above, not completely satisfactory. A few of the provisions such as Article 8 para. 3 of the Directive concerning internal flight or relocation or the mixing of Article 1 F and Article 33 para. 2 of the Convention in Article 14 of the Directive are clearly contrary to the Convention. Generally, the guidelines reflect the existing consensus in the practice of Member States, whereas guidance on controversial questions is hardly to be found. Some of the provisions are compromise formulas reflecting the difference in opinion of Member States rather than determining the direction that interpretation should take (especially problematic in this regard is the compromise found in Article 14). The considerable room for interpretation still left to Member States may well have the consequence that wide variations in interpretation will continue to exist, even after the Directive has been implemented. As regards the Directive’s provisions defining the standards of treatment for recognized refugees, almost no interpretative guidance is provided. While it is recognized that, unlike as regards the refugee definition, there is hardly any commentary or compilation of State practice of these provisions, guidance on the application of these provisions would have been useful, especially to prevent tendencies to secondary movements because of differences in standards of treatment. Moreover, as regards Convention refugees, the necessity and usefulness of this part of the Directive is for this reason highly questionable especially since the Convention standards are, as stated above, reflected neither completely nor always correctly. The Directive acknowledges the existence of international protection needs arising out of situations of generalized violence. It has succeeded in creating one

628

Anja Klug

system for refugee related protection needs, including such which are not necessarily covered by the 1951 Convention, and provides for a status of beneficiaries of complementary/subsidiary protection. However, as has been stated above, it remains questionable whether Article 15 lit. c will provide protection above that afforded by Article 3 CAT or Article 3 ECHR. Furthermore, the Directive does not explicitly clarify that persecution can also take place in the context of armed conflict. The existence of a subsidiary protection regime with considerable differences in standards of treatment between Convention refugees and beneficiaries of subsidiary protection could therefore contribute to a restrictive application of the refugee definition and the prevalence of a subsidiary protection status. All in all, notwithstanding a number of laudable provisions and approaches, the adoption of the Qualification Directive may lead to the development of a unique European refugee protection system.105 While there is of course nothing inherently wrong with the concept of an EU Refugee Convention’ as presented by the Qualification Directive, the rather careless handling of Convention provisions in the Directive involves the risk that the European protection system will in practice lose the doctrinal link with the 1951 Convention and establish standards in the EU that are below or simply different from Convention standards. Such a development would not be in line with the purpose of the 1951 Convention of creating a universal protection regime.

105

Sitaropoulos (note 27), 383, speaks of a “Mini-Refugee Convention” (Miniflüchtlingskonvention).

The EU-US Agreement on Passenger Name Records and EC-Law: Data Protection, Competences and Human Rights Issues in International Agreements of the Community By Birte Siemen* On 17 May 2004, the Council of the European Union and the United States concluded an agreement on the processing and transfer of Passenger Name Records data (PNR).1 This agreement provides the United States Department of Homeland Security and the Bureau of Customs and Border Protection (CBP) with electronic access to the reservation systems of airlines. Access to passenger information covers, among others, the name, address, flight number and credit card number of the traveler. The goal of this agreement is to contribute to preventing potential terrorist attacks by providing customs authorities immediate access to data on passengers of transatlantic flights. This agreement is only one part of an increasing amount of legislation on the national and international level following the events of 11 September 2001. Aimed at the fight against terrorism, it reflects the considerable concern of Governments about security. Although this is without a doubt an honorable objective and one of great importance, the agreement also raises concerns. While supporting the prevention of terrorism, it affects fundamental rights at the same time. For this reason the agreement is subject to fierce criticism at the European level. In particular the European Parliament protested loudly against the conclusion of the agreement

*

LL.M. (Leiden). I am very grateful for comments by Christian Lau, LL.M. EC Council Decision 2004/496 of 17 May 2004 on the Conclusion of an Agreement Between the European Community and the United States of America on the Processing and Transfer of PNR Data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, O.J. 2004 L 183/83. 1

630

Birte Siemen

and finally, on 27 July 2004, brought an action for annulment before the European Court of Justice (ECJ).2 The purpose of this study is to describe the background of this dispute and to analyze legal issues involved from a European law perspective. First, I will analyze EU standards that apply with regard to the transfer of personal data to third countries. Second, I will examine whether US law complies with these principles. Finally, I will assess the lawfulness of the EU measures at issue in the European Parliament’s action of annulment. A. Background: US Measures on theTransfer of Passenger Data In US law, the Aviation and Transportation Act of 19 December 20013 constitutes the legal basis for the transfer of PNR data by air carriers to the US authorities. This legislation was enacted in response to the attacks on 11 September 2001. It requires airlines flying into US territory to transfer to the Commissioner of Customs certain data relating to passengers and cabin crew (Passenger Manifest Information).4 Data to be provided includes the full name, date of birth and citizenship, sex, passport number and country of issuance and – as applicable – the United States visa number or resident alien card number of each passenger and crew member. Additionally, it is in the discretion of the Under-Secretary, in consultation with the Commissioner of Customs, to request other information “reasonably necessary to ensure aviation safety.”5 Moreover, air carriers are compelled to make passenger name record information available to the Customs

2 Case C-317/04, European Parliament v. Council of the European Union, O.J. 2004 C 228/66. 3 Aviation and Transportation Security Act, 19 November 2001 (Public Law 107– 071), US Code, Title 49, Sect. 40101; Interim Rule, Department of the Treasury (Customs Service), Passenger and Crew Manifests Required for Passenger Flights in Foreign Air Transportation to the United States, 21 December 2001, Federal Register, vol. 66, No. 250, 2001, 67482; Interim Rule, Department of the Treasury (Customs Service), Passenger Name Record Information Required for Passengers on Flights in Foreign Air Transportation to or from the United States, 19 June 2002, Federal Register, vol. 67, No. 122, 2002, 42710 (Interim Rule 2002). 4 Id., Sect. 115. 5 Id., Sect. 115 (c) (2) (F).

EU-US Agreement on Passenger Name Records and EC-Law

631

Service upon request.6 This PNR, which contains information on the individual passenger such as identity and travel plans, may involve far more detailed information than those mentioned before. Besides name, address and telephone number, it provides information on hotel or car reservations and even more sensitive information such as credit card number and bank details. It might even contain religious or ethnic information, since meal arrangements may be provided too. In addition, the information contained in this system is not limited to flights from or into the territory of the United States. In implementing the Aviation and Transportation Act, the Department of Treasury issued interim rules.7 According to these regulations, air carriers must provide Customs with electronic access to passenger name record information contained in its automated reservation/departure control system. For this reason, each air carrier is obliged to ensure that its electronic system correctly interfaces with the US Customs Data Center. The passenger name record information received can be shared with other Federal agencies for the “purpose of protecting national security […] or as otherwise authorized by law.”8 B. Reaction within the European Union When the interim rules entered into force on 5 February 2003, European air carriers were faced with a dilemma: To avoid severe penalties such as loss of landing rights or payment of substantial fines, they had to forward the information requested. At the same time, however, they had to comply with rules of European Law. The Data Protection Directive of the European Community9 had entered into force in 1995, and from then on the transfer of personal data to third countries has been subject to Community Law.

6

Id., Sect. 115 (c) (3). Interim Rule 2002 (note 3). 8 Id., 42712. 9 EC Directive 95/46 of 24 October 1995 on the Protection of Individuals With Regard to the Processing of Personal Data and the Free Movement of Such Data, O.J. 1995 L 281/31 (Data Protection Directive). 7

632

Birte Siemen

I. EU-Standards on the Transfer of Personal Data to Third Countries

The transfer of personal data to a third country is regulated in Chapter IV of the Data Protection Directive. Whereas the principles are established in Article 25, derogations are possible, as explicitly provided in Article 26. 1. The Principles of Article 25 of the Data Protection Directive According to Article 25 para. 1 of the Data Protection Directive, Member States shall permit data transfer to third countries only if the country in question provides an “adequate” level of protection for personal data.10 A description of adequate level of protection is given in Article 25 para. 2, which states that the adequacy of the level of protection afforded by a third country shall be assessed in the light of all the circumstances surrounding a data transfer operation or set of data transfer operations; particular consideration shall be given to the nature of the data, the purpose and the duration of the proposed processing operation or operations, the country of origin and country of final destination, the rules of law, both general and sectoral, in force in the third country in question and the professional rules and security measures which are complied within that country.

The objective of the measure is to ensure that the provisions of the Directive cannot be circumvented by exporting personal data to third countries.11 When the Commission finds “that a third country does not ensure an adequate level of protection within the meaning of paragraph 2 […], Member States shall take the measures necessary to prevent any transfer of the same type to the third country in question” (Article 25 para. 4 Data Protection Directive). However, an insufficient level of protection does not preclude a finding of adequacy at a later stage. Article 25 para. 5 empowers the Commission to enter into negotiations in order to remedy the situation. Finally, Article 25 para. 6 provides that particularly the conclusion of such negotiations which ensure the protection of the private lives and basic freedoms and rights of individuals may make a finding of adequacy possible. 10

Id., Art. 25 para. 1 reads: “The Member States shall provide that the transfer to a third country of personal data which are undergoing processing or are intended for processing after transfer may take place only if, without prejudice to compliance with the national provisions adopted pursuant to the other provisions of this Directive, the third country in question ensures an adequate level of protection.” 11 Graham Pearce/Nicholas Platten, Achieving Personal Data Protection in the EU, Journal of Common Market Studies, vol. 36, 1998, 529, 539.

EU-US Agreement on Passenger Name Records and EC-Law

633

2. Derogations under Article 26 of the Data Protection Directive The transfer of personal data to a third country which does not ensure an adequate level of protection may take place on the conditions enumerated in Article 26 para. 1, i.e., inter alia, first, the unambiguous consent of the subject of the data, second, when the transfer is necessary for the performance of a contract between the subject of the data and the controller of the data, or third, in case the transfer is necessary or legally required on important public interest grounds. Furthermore, a Member State may – without prejudice to para. 1 – authorize a transfer or a set of transfers of personal data to a third country which does not ensure an adequate level of protection within the meaning of Article 25 para. 2, where the controller adduces adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights; such safeguards may in particular result from appropriate contractual clauses.12

Thus, although derogations are possible, it has to be kept in mind that the main goal of the Data Protection Directive is not affected: It must be ensured that data transmitted from within the European Union to recipients located outside its borders are not processed in a way that is incompatible with the fundamental rights of the subject.13 II. Uncertainties Regarding the Level of Data Protection in the US

Given that US standards on data protection have already been subject to discussion with regard to the transfer of data in the private sector, the reservations on the European side as to the plans of the US Government did not come as a surprise. Already in 1999, the ‘Article 29 Working Party’ – the Working Party on the Protection of Individuals With Regard to the Processing of Personal Data – (Working Party), an independent advisory body comprised of representatives of the Member States data protection agencies and a representative of the Com-

12

Data Protection Directive (note 9), Art. 26 para. 2. Spiros Simitis, Data Protection in the European Union – The Quest for Common Rules, Collected Courses of the Academy of European Law 1997, vol. 8-I, 2001, 95, 119. 13

634

Birte Siemen

mission, had assessed the standards of data protection in the US.14 In its report, the Working Party came to the conclusion that [p]rivacy and data protection in the United States is found in a complex fabric of sectoral regulation, at both federal and State level, combined with industry selfregulation. […T]he current patchwork of narrowly-focussed sectoral laws and voluntary self-regulation cannot at present be relied upon to provide adequate protection in all cases for personal data transferred from the European Union.15

As a consequence of this criticism, the development of ‘safe harbour regulations’ was proposed.16 On the basis of these guidelines in the private sector, US companies could submit to European data protection on a voluntary basis. At the same time, neither the European authorities nor those of the Member States could object to the transfer of personal data. Within the boundaries of the safe harbor regulations, an unhindered exchange of personal data became possible. Considering that the US has not, in the meantime, altered its data protection law and enforcement, the Commission had reservations with respect to the plans of the US Government as regards the transfer of PNR. It found that the level of protection was not adequate within the meaning of Article 25 paras. 1 and 2 of the Data Protection Directive. Thus, the Commission initiated a first round of talks with the US according to Article 25 para. 5 of the Directive. On 18 February 2003, the parties made a statement committing themselves to negotiations of an international agreement.

14

According to Data Protection Directive (note 9), Art. 29 para. 1, the Working Party has an advisory role and its statements do not have binding legal character. Nevertheless, it plays an important role in European data protection law since the interpretative documents it adopts are influential and are used as guidelines. See Christopher Kuner, European Data Privacy Law and Online Business, 2003, 8; Diana Alonso Blas, Towards a Uniform Application of the European Data Protection Rules: The Role of the Art. 29 Working Party, Privacy & Informatie, vol. 4, 2001, 4. 15 Working Party, Opinion 1/99 Concerning the Level of Data Protection in the United States and the Ongoing Discussions Between the European Commission and the United States Government, 26 January 1999, Doc. 5092/98/EN/final WP 15, available at: http://europa.eu.int/comm/internal_market/privacy/docs/wpdocs/1999/wp15en.pdf. 16 On the safe harbor system see Kuner (note 14); Peter Malanczuk, The European Directive on Data Protection and the U.S. “Safe Harbour” Principles, in: Robert Briner (ed.): Law of International Business and Dispute Settlement in the 21st Century, 2001, 497 et seq.

EU-US Agreement on Passenger Name Records and EC-Law

635

III. Violation of the Data Protection Directive

In reaching an agreement, the Commission must ensure that this agreement does not violate European Law, specifically the Data Protection Directive. Therefore, the central question was how an adequate level of protection within the meaning of Article 25 para. 1 of the Directive can be ensured once data are transferred to the US authorities. 1. Adequate Level of Protection within the Meaning of Article 25 Para. 1 of the Data Protection Directive The text of the Directive does not define the meaning of ‘adequacy.’17 The only indication as to what is meant by this term can be found in Article 25 para. 2 of the Directive, which states that particular consideration should be given to the nature of the data, the purpose and duration of the proposed processing operations, the country of origin and country of final destination, the rules of law (both general and sectoral) in force in the third country in question and the professional rules and security measures which are complied with in that country. This suggests that a twofold test has to be applied. First, the character of the data concerned has to be assessed, and, second, a comparison of the level of protection in the two countries needs to be undertaken.18 However, it is unclear whether an equivalent level of protection in the recipient State is required or whether a lower standard of data protection might be sufficient. According to the literature, the Data Protection Directive follows a functional

17

Ulrich Damann/Spiros Simitis, EG-Datenschutzrichtlinie, 1997, Art. 25, mn. 8; Eugen Ehmann/Marcus Helfrich, EG-Datenschutzrichtlinie, 1999, Art. 25, mn. 3; see also Torsten Stein, Transnationale Datenübermittlung und die Kompetenz der Europäischen Gemeinschaft zum Abschluss eines internationalen Abkommens zum Datenschutz mit dritten Staaten, in: Hans-Wolfgang Arndt (ed.), Völkerrecht und deutsches Recht, 2001, 518; Peter Blume, Transborder Data Flow: Is There a Solution in Sight?, International Journal of Law and Information Technology, vol. 8, 2000, 65, 69. 18 See Ulf Brühann, A30, Richtlinie 95/46/EG zum Schutz natürlicher Personen bei der Verarbeitung personenbezogener Daten und zum freien Datenverkehr, Art. 25, mn. 11, in: Eberhard Grabitz/Meinhard Hilf (eds.), Das Recht der Europäischen Union, 2004; Alexander Zinser, International Data Transfer Out of the European Union: The Adequate Level of Data Protection According to Art. 25 of the European Data Protection Directive, John Marshall Journal of Computer & Information Law, vol. 2, 2003, 553.

636

Birte Siemen

approach.19 Thus, the recipient country does not need to provide for a level of protection which is equivalent to EC standards. At the same time however, human rights must be ensured. This not only follows from Article 25 para. 6 of the Data Protection Directive, where it is stated that the negotiations referred to in Article 25 para. 5 shall aim at the protection of the private lives and basic freedoms and rights of individuals. General principles of EC law would be violated in case the European Community permitted the transfer without securing that fundamental rights of the citizen of the Union will be respected. This means that the decisive criterion is whether a transfer of personal data involves a risk for the protection of human rights of the person concerned. Human rights, i.e. in particular the right to data protection, form the minimum standards which must be secured when data is being transferred. For finding of adequacy the implications are as follows: Once the level of the risk involved has been established by the criteria enumerated in Article 25 para. 2 of the Directive,20 it must be considered whether the safeguards provided offer sufficient protection or whether the risk to the rights of the individual prevails.21 This means that the data protection regime of the recipient country has to pass a functionality and effectiveness test with respect to the protection of human rights. Once a sufficient standard for respect of human rights can be established in the individual case, the data may be transmitted. Therefore, the transfer of personal data may be permitted even if the recipient country does not provide for sufficient rules regarding data protection in general, i.e., if the protection in the case of the data transferred is sufficient.22 Although it has been established that the question whether the recipient State offers an adequate level of protection depends on the level of protection of human rights and varies from case to case, it is not yet clear which standards have to be applied. Some criteria, however, can be taken from the Directive. We will turn to some criteria below. 19

See Simitis (note 13), 119. Oliver Draf, Die Regelung der Übermittlung personenbezogener Daten in Drittländer nach Art. 25, 26 der EG-Datenschutzrichtlinie, 1999, 74. 21 Brühann (note 18), Art. 25, mn. 11 et seq.; Damann/Simitis (note 17), Art. 25, mn. 8; Simitis (note 13), 119; Ehmann/Helfrich (note 17), Art. 25, mn. 5; Rudolf Gridl, Datenschutz in globalen Telekommunikationssystemen, 1999, 248; Carole Moal-Nuyts, Le transfert de données à caractère personnel vers les Etats-Unis conformément au droit européen, Revue trimestrielle de droit européen, vol. 38, 2002, 451, 453. 22 Draf (note 20), 93. 20

EU-US Agreement on Passenger Name Records and EC-Law

637

2. Fundamental Principles of the Data Protection Directive Adhering to the functional approach does not mean that the level of protection provided by the Directive is irrelevant. Rather, it constitutes the basis for the comparison of the systems at stake.23 As will be shown, the Data Protection Directive provides for some fundamental principles which form the core of a right to data protection. First, the principle of fair and lawful processing of data must be mentioned. Article 6 para. 1 lit. a of the Directive establishes the ‘primary’ rule of data protection, since this rule embraces and generates the other core principles.24 Second, the minimum- or purpose principle has to be mentioned. According to Article 6 para. 1 lit. b, personal data has to be collected inter alia for specified, explicit and legitimate purposes. This means that it is prohibited to collect personal data for future purposes and to use personal data already collected for purposes other than those for which they were collected.25 Furthermore, the Directive grants to individuals far reaching participation and control rights. Persons should be able to find out at any time which data has been processed, and have the right to access,26 rectification, erasure or blocking of data which has not been processed in conformity with the provisions of the Directive.27 Closely related to this is the principle of transparency. This right encompasses information about the way the data are used, including the purposes of processing, the recipients and sources of the data and the “logic involved.”28 3. Opinions of the Article 29 Working Party As discussed above, already in 1999, the Working Party had analyzed the adequacy of the level of protection with respect to data being transferred to the 23

Zinser (note 18), 557. Lee Bygrave, An International Data Protection Stocktake @ 2000 – Part 2: Core Principles of Data Protection Instruments, Privacy Law & Policy Reporter, vol. 7, 2001, 170. 25 See also Kuner (note 14), 59, who calls it the “purpose limitation principle.” 26 Data Protection Directive (note 9), Art. 12 lit. a. 27 Id., Art. 12 lits. b and c. 28 Id., Art. 12 para. 1 lit. a; for more details see Lee Bygrave, Data Protection Law, Approaching Its Rationale Logic and Limits, 2002, 65; Working Party, Transfers of Personal Data to Third Countries: Applying Article 25 and 26 of the EU Data Protection Directive, 24 July 1998, Working Doc. DGXV D/5025/98 WP 12. 24

638

Birte Siemen

US. Since 2002, it has issued several opinions on the transmission of PNR data to the US.29 As early as its first opinion, the Working Party stated that the systematic data processing by the airlines as foreseen by US law was incompatible with the purpose principle. The original purpose of the collection of personal data by airlines or travel agencies was the fulfilment of their contractual obligation vis-à-vis the passengers. The transmission, however, goes “beyond the limited set of data that are usually provided by passengers in connection with the organization of the travel.”30 Moreover, the PNR may contain information that may reveal racial or ethnic origin, religious beliefs, or other sensitive data.31 Under Article 8 of Directive 95/36/EC such data may generally not be processed, except under certain listed circumstances,32 which are not fulfilled in the case at hand. Moreover, the Working Party emphasized that the derogations stipulated in Article 26 do not apply. Firstly, the consent of the subject might be difficult to obtain for practical reasons: It is not easy to provide the individual with the information necessary in a global reservation system, when different airlines and travel agents in different countries are involved. Therefore the information pro29

Working Party, Opinion 6/2002 on Transmission of Passenger Manifest Information and Other Data From Airlines to the United States, 24 October 2002, Doc. 11647/02/ EN WP 66; id., Opinion 4/2003 on the Level of Protection Ensured in the US For the Transfer of Passenger’s Data, 13 June 2003, Doc. 11070/03/EN WP 78; id., Opinion 2/2004 on the Adequate Protection of Personal Data Contained in the PNR of Air Passengers to Be Transferred to the United States’ Bureau of Customs and Border Protection (US CBP), 29 January 2004, Doc. 10019/04/EN WP 87; id., Opinion 6/2004 on the Implementation of the Commission Decision of 14-V-2004 on the Adequate Protection of Personal Data Contained in the Passenger Name Records of Air Passengers Transferred to the United States’ Bureau of Customs and Border Protection, and of the Agreement Between the European Community and the United States of America on the Processing and Transfer of PNR Data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, 22 June 2004, Doc. 11221/04/EN WP 95. 30 Opinion 6/2002 (note 29), 5. 31 Id., 7. 32 I.e. (1) the data subject has given his explicit consent, (2) the processing by the data controller for employment purposes, (3) when processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his consent, (4) in the case of certain type of processing of none-profit-bodies, when the processing relates to data which are manifestly made public by the data subject, (5) when is necessary for the establishment, exercise or defense of legal claims or (6) when the data is required for, inter alia, the purposes of preventive medicine and medical diagnosis, see also Kuner (note 14), 69.

EU-US Agreement on Passenger Name Records and EC-Law

639

vided to the subject must include the items set out in Articles 10 and 11 of the Directive.33 Thus, the transmission of PNR data does not fall under the derogation clause of Article 26 para. 1 lit. a. Likewise it is not possible for airlines to invoke necessity, provided for by Article 26 para. 1 subpara. b of the Directive. In the view of the Working Party, the amount of data goes beyond what can be considered as necessary to the performance of the contract. Furthermore, the airlines cannot invoke physical impossibility to fulfil their contractual obligations, owing to a loss of rights. In any case the transfer of data relating to persons not traveling to the United States is not covered by the exception.34 Moreover, the Working Group comes to the conclusion that the airlines may not rely on the possibility of transferring data where the transfer is necessary for safeguarding important public interests (Article 26 para. 1 lit. d ). In its view, neither is the need of the transfer proven nor does it seem acceptable “that a unilateral decision taken by a third country for reasons of its own public interest should lead to the routine and wholesale transfer of data protected under the directive.”35 The Working Party also finds it difficult to consider the transfer as necessary in order to protect the vital interests of the subject.36 Since the derogations of Article 26 para. 1 do not apply, the Working Party stresses the demand for an agreement under Article 26 para. 2 of the Directive, which means that the United States as the recipient country must offer sufficient guarantees for the protection of the data.

33 Data Protection Directive (note 9), according to Art. 10 the controller must provide the data subject with information about (1) the identity of the controller and his representative, (2) the purpose of the processing for which the data are intended, (3) any further information such as the recipients or categories of recipients of the data, whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply, the existence of the right to access to and the right to rectify the data concerning him in so far as such further information is necessary, with regard to the specific circumstances in which the data are collected to guarantee fair processing in respect of the data subject. Art. 11 stipulates that in case the data has not been obtained from the data subject, the controller must at the time of the undertaking of the recording of personal data or if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed, provide the data subject at least with the information mentioned in Art. 10, including the categories of data concerned. 34 Opinion 6/2002 (note 29), 6. 35 Id. 36 Id.

640

Birte Siemen

4. Negotiations under Article 26 Para. 2 of the Data Protection Directive In view of the objections by the Working Party, the European Commission entered into negotiations with the US authorities, on the basis of Article 25 para. 5 of the Directive, with the objective of concluding an agreement under which the US guarantees an adequate level of protection in respect to the data transferred. In May 2003 the US Bureau of Customs and Border Protection issued a measure,37 in which the US authorities made some concessions with respect to data protection and, in particular, to the protection of sensitive data within the meaning of Article 8 of the Data Protection Directive. In its Opinion 4/2003, the Working Party, however, came to the conclusion that the level of protection in this measure was not yet sufficient for several reasons. First, the Working Party had reservations as to the proportionality of the measures. Since the US authorities have the choice between different mechanisms for the transfer of data, i.e. direct access to the databases of the airlines (pull-system) and proactive disclosure of the data by the airlines (pushsystems), the powers of the US authorities exceeds those currently granted to European judicial and police authorities or intelligence and security services when carrying out similar activities in the European Union.38 With regard to systems of data transfer, the Working Party suggested to use the push-system only. Compared to the pull-system it is less likely that an infringement of the principle of the quality of the data (Article 6 Data Protection Directive) will occur.39 Moreover, the Working Party was of the opinion that in case the pullsystem was implemented, it could not be considered as a transfer of personal data to a third country in the strict sense. According to Article 4 para. 1 lit. c, the Directive applies to cases in which the controller of the data is not located in Community territory and, for purposes of processing personal data, makes use of equipment, automated or otherwise, situated on the territory of a Member State. As a consequence, when applying the pull-system, the Directive would be directly and completely applicable to the US authorities.40 37

Undertakings of the United States Bureau of Customs and Border Protection and the Unites States Transportation Security Administration of 22 May 2003 (not published). 38 Opinion 4/2003 (note 29), 5. 39 Id., 6. 40 Opinion 6/2002 (note 29), 7.

EU-US Agreement on Passenger Name Records and EC-Law

641

Second, the Working Party calls for a clear limitation of the purpose for which the data will be used. It should be limited to fighting acts of terrorism without expanding their scope to other unspecified “serious criminal offences.”41 In addition, the transmission of data to other public bodies should be restricted as well. These bodies should not only be identified, but also have their mission detailed. Communication to other authorities should be limited to cases of combating serious offences directly related to terrorism.42 Further, the Working Party considers regulations of, inter alia, the data retention time, the information and access rights of the individual, and enforcement and dispute settlement as necessary.43 Finally the Working Party underlines the necessity of publishing the commitments of the US side at least to the level of the Federal Register in order for them to be fully binding.44 This fierce criticism led the Commission to reopen the negotiations. After the US made a number of concessions, a modified measure was presented.45 PNR data would only be transferred as far as they relate to flights to or from the United States. Furthermore, data required by the US authorities would be limited to 34 elements, which are listed in an annex. Sensitive data within the meaning of Article 8 of the Directive would not be used until an automated system which filters and deletes sensitive PNR codes and terms has been implemented. In addition, the purpose specification was formulated in a more precise and restricted manner. The use of data is now strictly limited for purposes of preventing and combating terrorism and related crimes and other serious crimes, including organized crime which are transnational in nature. Thus ‘domestic’ crimes have been excluded. Progress in terms of data protection standards has also been made with respect to the storage of the information. Authorized access will be limited to a period of three and a half years instead of 50 years as intended in the initial plans. After this period, data that has not been manually

41

See Opinion 4/2003 (note 29), 6. Id. 43 Id., 8 et seq. 44 Id., 9. 45 See the Draft: CBP, Undertakings of the Department of Homeland Security Bureau of Customs and Border Protection (CBP), 12 January 2004, available at: http:// www.statewatch.org/news/2004/jan/EUUSAG2.pdf; Transfer of Air Passenger Name Record (PNR) Data: A Global EU Approach, COM (2003) 826 final, 16 December 2003. 42

642

Birte Siemen

accessed will be destroyed. Otherwise, it will be stored for 8 years before being deleted. In case data are rectified or a complaint is made by an individual, the person concerned can make a request to a Chief privacy officer of the Bureau of Customs and Border Protection to be appointed. This official must report annually to Congress. His findings are binding on the department. So a supervisory authority, though not independent and without pro-active monitoring tasks, will be established. Finally, the US authorities submit to a mechanism of an annual joint review with the Commission on the implementation of the measures. While negotiations between European and US officials continued, the European Parliament took up the issue. It developed a draft resolution, in which it urged the Commission to solve the matter by December 2003.46 In its draft resolution, Parliament set up several requirements which must be met for an adequate level of protection of personal data to be ensured. First of all, the Commission has to ensure that there is no discrimination against non-US passengers and that data must not be retained beyond the passengers’ stay on US territory.47 Furthermore passengers have to be notified of the transfer of data upon purchase of their ticket and have to give their informed consent.48 Lastly, passengers must be provided with access to a swift and efficient appeals procedure.49 Although no significant changes have been made to the proposal, the Commission announced in December 2003 that it had reached substantially improved data protection arrangements for PNR data transferred to the US and that it would launch, on the basis of the measures secured, the procedure necessary for the adoption of a decision under Article 25 para. 6 of the Directive and for the conclusion of a “light” international agreement.50 At the same time, the Commission declared that the agreement with the US constituted only one aspect of data protection issues. To improve aviation and border security, a multi-

46

European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Draft Motion for a Resolution on Transfer of Personal Data by Airlines in the Case of Transatlantic Flights: State of Negotiations With the USA, 24 September 2003, Doc. RE\507602EN.doc, available at: http://www.statewatch.org/news/2003/sep/ eppnr.pdf. 47 Id., 3. 48 Id. 49 Id. 50 Transfer of Air Passenger Name Record (PNR) Data (note 45).

EU-US Agreement on Passenger Name Records and EC-Law

643

lateral solution was needed. The agreement therefore formulates a global EU approach which goes beyond the actual problems in respect of the transfer of PNR to the US. In the Commission’s view, it entails the development of an EU position on the use of travelers’ data, including PNR, for aviation and border security and the creation of a multilateral framework for PNR data transfer within the International Civil Aviation Organization (ICAO). Another integral part of the global approach is the introduction of a filter-based push-system. The Commission expected the timetable for the implementation of this system to be ready by the middle of 2004.51 Only a few weeks later, the Commission prepared a draft decision, in accordance with Article 25 para. 5 of the Directive, on the adequate level of protection of PNR transferred to the US.52 According to this document, the CBP may access PNR under the conditions laid down in the measure. In reaction to the Communication from the Commission on the global approach and the draft Commission decision, the Working Party considered it appropriate to issue a new opinion, in order to examine recent developments.53 In this opinion it again emphasized the tension between the fight against terrorism and data protection. Although combating terrorism is both a “necessary and valuable element of democratic societies,” respect for fundamental rights and freedom of the individuals and in particular the right to privacy and data protection must be ensured.54 In view of the measures envisaged, the Working Party pointed out that the transfer of private data collected for commercial purposes to a public authority is without precedent. Bearing in mind the amount of data involved – amounting to at least 10–11 million individuals per year – the Working Party emphasized the need for a cautious approach, since the transfer of such an amount of data entails a risk of data mining and generalized surveillance and controls by a third State. Then the Working Party analyzed the modified measure in detail. Although it perceived progress with regard to the protection of fundamental rights, it still discovered several shortcomings. For example, the purpose

51

Id., 5. Draft Commission Decision of […] on the Adequate Protection of Personal Data Contained in the PNR of Air Passengers Transferred to the United States’ Bureau of Customs and Border Protection, 31 March 2004, Doc. C5-0124/2004, available at: http://www.statewatch.org/news/2004/mar/com-draft-dec-adequacy-usa.pdf. 53 Opinion 2/2004 (note 29). 54 Id., 3. 52

644

Birte Siemen

limitation still remained vague as far as it concerned the use of data for “preventing and combating other serious crimes, including organized crime, that are transnational in nature.”55 With regard to the list of data elements to be transferred, the Working Party stressed that it still contained 34 elements instead of 38 – only a marginal reduction. Moreover, the elements deleted had been accepted by the Working Party, whereas 20 elements which had been considered unnecessary, disproportionate and excessive remained on the list.56 The problem with respect to sensitive data had not been solved either. Among other factors,57 the Working Party considered these aspects to be proof for the fact that an adequate level of data protection still could not be ensured. Thus, a finding of adequacy by the Commission would be unlawful.

55

Id., 6. Id., 7; the PNR data elements the US requires from the airlines are: the PNR record locator code, date of reservation, date(s) of intended travel, name, other names on PNR, number of travelers on PNR, seat information, address, all forms of payment information, billing address, contact telephone numbers, all travel itinerary for specific PNR, frequent flyer information (limited to miles flown and address(es)), travel agency, travel agent, code share PNR information, travel status of passenger, split/divided PNR information, identifiers for free tickets, one-way tickets, email address, ticketing field information, ATFQ (Automatic Ticket Fare Quote) fields, general remarks, ticket number, seat number, date of ticket issuance, any collected APIS information, no show history, number of bags, bag tag numbers, go show information, number of bags on each segment, OSI information, SSI information, SSR information, voluntary/involuntary upgrades, received from information, all historical changes to the PNR, traveller’s full name, date of birth, complete home address, home phone number, see Opinion 4/2003 (note 29), Annex. In the view of the Working Party the data should be limited to the following information: PNR record locator code, date of reservation, date(s) of intended travel, passenger name, other names on PNR, all travel itinerary, identifiers for free tickets, one-way tickets, ticketing field information, ATFQ data, ticket number, date of ticket issuance, no show history, number of bags, bag tag numbers, go show information, number of bags on each segment, voluntary/involuntary upgrades, historical changes to PNR data with regard to the aforementioned items. 57 So the Working Party still considered the data retention period of three and a half year to be excessive as it had called for a retention period of “weeks or months.” In addition it urged the Commission to apply the push-system by April 2004, and asked for the precise identification of the other public bodies entitled to receive the data, stating that any direct or indirect onward transfer should made on a case by case basis. Moreover, the number of authorities to which data could be transferred should be restricted. Finally, it stressed the need for access and rectification rights of the individual, since it still considers these instruments to be insufficient, id., 7 et seq. 56

EU-US Agreement on Passenger Name Records and EC-Law

645

5. The Legislative Procedure – The Refusal of the European Parliament Despite intense criticism, the Council asked the Commission to submit the agreement with the US to the Council for conclusion. On 17 March 2004, a proposal for a Council Decision was presented.58 According to this agreement the CBP may electronically access the PNR data from air carriers’ reservation/departure control systems […] located within the territory of the Member States of the European Community strictly in accordance with the Decision and so long as the Decision is applicable and only until there is a satisfactory system in place allowing for transmission of such data by the air carriers.59

The European Parliament, however, strongly objected to the draft presented. The task of the European Parliament in the legislative procedure is twofold, because the transfer of PNR data is subject to two distinct legal acts: the finding of adequacy by the Commission decision according to Article 25 para. 5 of the Data Protection Directive and the conclusion of a bilateral treaty of international law between the European Community and the United States on the basis of Article 95 in conjunction with Article 300 paras. 2 and 3 EC.60 Whereas according to the latter provision the Parliament shall be immediately and fully informed, with respect to the adequacy finding under the Directive it becomes involved on its own initiative on the basis of Article 8 of the Comitology Decision.61 On the basis of this provision the European Parliament – though its participation in the legislative process is not provided for in the Directive itself – may have influence on the implementing measure. It has the option of indicating by way of a resolution that the measure adopted may exceed the implement-

58 Proposal for a Council Decision on the Conclusion of an Agreement between the European Community and the United States of America on the Processing and Transfer of PNR Data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, COM (04) 190 final, 17 March 2004. 59 Id., 6. 60 Consolidated Version of the Treaty Establishing the European Community, 24 December 2002, O.J. 2002 C 325/33 (EC). 61 Council Decision 1999/468/EX of June 1999 Laying down the Procedures for the Exercise of Implementing Powers Conferred on the Commission, O.J. 1999 L 184/23.

646

Birte Siemen

ing powers provided by the Data Protection Directive.62 Such a resolution was passed by the European Parliament on 31 March 2004.63 It was found that the draft Decision is not (and could not be) […] a legal basis capable of enabling, within the European Union, the purpose for which the data were collected in the PNR to be changed and enabling them to be transferred by the airlines, in whole or in part, to third parties,

whereas it may have the effect of lowering the data protection standards established by the Directive within the EU or the creation of new standards in agreement with third countries.64 Moreover, the European Parliament pointed out that the draft decision was based on measures which were purely administrative and therefore could not be considered to be of binding nature.65 The binding character was also put in doubt by the fact that the measure provided for rights for which there was no legal basis in US law and which can be subject to amendment.66 So the European Parliament listed aspects of data protection which it considered to be crucial for the transfer of data und called upon the Commission to submit a new decision on the finding of adequacy and to ask the Council to adopt a new mandate for the Commission to negotiate “a strong new international agreement in compliance with the principles outlined in this resolution.”67 62 In Art. 8 it is stated: “If the European Parliament indicates, in a Resolution setting out the grounds on which it is based, that draft implementing measures, the adoption of which is contemplated and which have been submitted to a committee pursuant to a basic instrument adopted under Article 251 of the Treaty, would exceed the implementing powers provided for in the basic instrument, the Commission shall re-examine the draft measures. Taking the Resolution into account and within the time-limits of the procedure under way, the Commission may submit new draft measures to the committee, continue with the procedure or submit a proposal to the European Parliament and the Council on the basis of the Treaty. The Commission shall inform the European Parliament and the committee of the action which it intends to take on the Resolution of the European Parliament and of its reasons for doing so.” 63 European Parliament Resolution on the Draft Commission Decision Noting the Adequate Level of Protection Provided for Personal Data Contained in the Passenger Name Records (PNRs) Transferred to the US Bureau of Customs and Border Protection, 31 March 2004, Doc. P5_TA-PROV(2004)0245, available at: http://www.statewatch. org/news/2004/mar/ep-pnr-report.pdf. 64 Id., 5. 65 Hence they might be subject to possible reorganizations within the Department of Home Security which would make the separation between internal structures obsolete, id., 6. 66 Id. 67 Id., 7.

EU-US Agreement on Passenger Name Records and EC-Law

647

In the European Parliament’s view, this agreement should be delivered during the transatlantic council in June 2004. The Parliament reacted similarly to the proposal for a Council Decision on the conclusion of an agreement between the European Community and the United States during the Consultation procedure under Article 300 para. 3 subpara. 1 EC. On 30 March68 and 7 April 2004,69 the Parliament’s Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs adopted a draft resolution in which it recommended not to approve the conclusion of the agreement and to instruct the Parliament’s President to call on the Council not to conclude the agreement. One of the central points of criticism related to the procedure followed by the Council. In the Committee’s view, the legal construction set up by the Council was not in conformity with EC law. Since a finding of adequacy of the Commission under Article 25 para. 6 of the Directive would only have the effect that personal data may be transferred to a third country, it would be in the discretion of the airlines whether transmission to US authorities actually takes place. Thus for establishing a legal obligation to transfer or to give access to the PNR, as was required by the US, the international agreement was needed. The agreement was to be incorporated into EC law by way of Council Decision. Moreover, the Committee pointed out that in the Commission Staff Working Paper, which had been submitted to the Council, another reason for the conclusion of an international agreement had been demonstrated: Article 7 of the Directive presupposes circumstances under which personal data may be processed. One of the circumstances mentioned in this provision is that processing is necessary for compliance with a legal obligation to which the controller is subject (Article 7 lit. c). The term ‘legal obligation’ however embraces only those im-

68 European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Draft Report on the Proposal for a Council Decision on the Conclusion of an Agreement between the European Community and the United States of America on the Processing and Transfer of PNR Data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection […], Doc. 2004/0064(CNS), available at: http://www.europarl.eu.int/meetdocs/committees/libe/ 20040405/530949en.pdf (Draft Report). 69 European Parliament, Committee on Citizens'Freedoms and Rights, Justice and Home Affairs, Report on the Proposal for a Council Decision on the Conclusion of an Agreement between the European Community and the United States of America on the Processing and Transfer of PNR Data by Air Carriers to the United State Department of Homeland Security, Bureau of Customs and Border Protection […], Doc. A5-0271/2004 final, available at: http://www.statewatch.org/news/2004/apr/ep-pnr-cttee-7-4-04.pdf.

648

Birte Siemen

posed by the Community or Member States’ law and not by a third country.70 Thus, the US measures do not yet impose a legal obligation for the airlines, which are the controllers in the underlying case. Only by the conclusion of an international agreement imposing an obligation on air carriers to process PNR data as required by the US authorities was a legal obligation within the meaning of Article 7 lit. c established. In the Committee’s view the crucial point of the creation of an obligation was that the international agreement, which is based on the same legal basis as the Data Protection Directive itself, will modify the Directive for several reasons: First, it declared applicable in the European Union and for the European citizens the US legislation in the domain of data protection. Secondly, it transfered to the European level the discretionary power of the Member States to authorize, according to Article 13 of the Directive, the utilization for security purposes of data originally collected for commercial use and to create, according to Article 7 lit. c of the Directive, a legal obligation for European airlines to give access to these data. Finally, it created new obligations for follow up and monitoring for the Commission on the smooth functioning of the agreement.71 Therefore, the Committee considered it indispensable to ask for the opinion of the ECJ under Article 300 para. 6 EC before the agreement was concluded. It furthermore called on the Council to refrain from concluding the agreement until the ECJ had delivered its opinion.72 In its vote on this matter on 21 April and 4 May 2004, the European Parliament followed the proposal of the Committee. It decided to refer the issue to the Court. The Commission and the Council, however, decided not to wait for the outcome of the request. On 14 May 2004, the Commission published its decision on adequacy under Article 25 para. 6 of the Directive.73 The international agreement was adopted by the Council on 17 May 200474 and signed by the Council

70

See also Damann/Simitis (note 17), Art. 7, mn. 4. Id., 6. 72 Draft Report (note 68). 73 EC Commission Decision C (04) 1914 of 14 May 2004 on the Adequate Protection of Personal Data Contained in the Passenger Name Record of Air Passengers Transferred to the United States’ Bureau of Customs and Border Protection, O.J. 2004 L 235/11. 74 See, supra, note 1. 71

EU-US Agreement on Passenger Name Records and EC-Law

649

and the United States on 28 May 2004.75 According to Point 7 of the agreement, it entered into force the very same day. Since the agreement had already entered into force, the procedure before the ECJ became irrelevant. There was no ‘agreement planned’ on which the ECJ could opine on the basis of Article 300 para. 6.76 On 16 June 2004 it was recommended by the Committee on Legal Affairs to contest the finding of the Commission and the Council’s decision before the ECJ by bringing an action of annulment. This view was supported by the Conference of Presidents of Parliament. On 25 June 2004, the President of the European Parliament at that time, Pat Cox, decided to refer the matter to the Court.77 IV. The Lawfulness of the Measures – The Action of Annulment

The following section analyzes the main arguments brought forward by the European Parliament in support of its claim. They will be examined in turn. The Parliament considers that Council Decision 2004/496/EC78 violates Community Law for several reasons. First, Article 95 EC would not be the proper legal basis for the Decision. Second, a violation of the rules of procedure is claimed. Third, the European Parliament argues that the Council Decision infringes fundamental rights, i.e. the right to privacy and data protection. Finally, a breach of the principle of proportionality, the failure to state reasons and a breach of the principle of loyal cooperation between the institutions is contended. In the following part, only two grounds will be discussed, namely whether Article 95 EC was the proper legal basis of the decision and whether the contested measure infringes human rights. 75

Agreement between the European Community and the United States of America on the Processing and Transfer of PNR Data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, O.J. 2004 L 183/84. 76 Opinion 1/94, Competence of the Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property, 1994 ECR I-5276, para. 12; Opinion 3/94, GATT-WTO- Framework Agreement on Bananas, 1995 ECR I-4577. At this point it is neither possible to withdraw from the conclusion nor to change the text of the agreement; see Christian Tomuschat, Art. 300, mn. 91, in: Hans von der Groeben/Jürgen Schwarze (eds.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft, 2004. 77 Case C-317/04 (note 2). 78 See, supra, note 1.

650

Birte Siemen

1. Article 95 EC as the Legal Basis for the Council Decision A principal requirement for the legality of any Community act is that the legislation is properly based upon some particular Treaty Article.79 In its Decision 2004/496/EC, the Council explicitly relied on Article 95 in conjunction with Article 300 para. 2 EC as the legal basis of the decision. Given that the Council was acting in the field of data protection and the Data Protection Directive itself is based on Article 95 EC80 this does not come as a surprise. However, taking into account the peculiarities of the Directive, it is doubtful whether this can serve as a legal basis for the Council Decision. As will be shown, the issue raises difficult questions concerning the distribution of competences within the European Community. According to Article 5 para. 1 EC, the Community shall act within the limits of the powers conferred upon it by the Treaty and of the objectives assigned therein. This principle of limited empowerment applies in both the internal and the external sphere.81 Since the Council Decision relates to the conclusion of an international agreement, a competence for an external measure in the field of data protection is needed. The Treaty explicitly does not at all confer to the Community any competence with respect to data protection. In case no explicit competence can be established, the case law of the ECJ concerning implied external powers applies.82 According to the ERTA case, implied external competence can either flow from Treaty provisions allowing for an internal competence in this field or from Community measures adopted within the Treaty’s internal sphere.83 Where the EC has been given powers to achieve a certain objective in its internal system, it has the corresponding external power necessary for the achievement of the same.84 As already mentioned, the EC Treaty does not provide for an explicit internal competence in the field of data protection. Thus, the implied 79

Paul Craig/Gráinne de Burca, EU Law, 3rd ed. 2002, 129. See the first recital of EC Directive 95/46 (note 9). 81 Opinion 2/94 on the Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 ECR I-1759, para. 24; Alan Dashwood/Christophe Hillion, The General Law of E.C. External Relations, 2000, 66. 82 See Craig/de Burca (note 79). 83 Case 22/70, Commission v. Council, 1971 ECR 263; see also Cases 3, 4 and 6/76, Cornelius Kramer and Others, 1976 ECR 1279; and Opinion 1/76 on the Draft Agreement Establishing a Laying-up Fund for Inland Waterway Vessels, 1977 ECR 741. 84 Sionaidh Douglas-Scott, Constitutional Law of the European Union, 2002, 158. 80

EU-US Agreement on Passenger Name Records and EC-Law

651

competence of the Council to conclude an international agreement, flowing from the ERTA-doctrine, can only be based on the Data Protection Directive itself. In this case, however, it is required that the Directive itself must be adopted within the competences conferred by the Treaty. The fact that Article 95 EC is the proper legal basis for the adoption of internal measures in the field of data protection has not been contested so far. Nevertheless, it is not beyond doubt that the Directive, read in conjunction with the ERTA-doctrine, entails an unlimited implied external power for the Community in this area. The Data Protection Directive was adopted to encourage the free flow of personal data within the European Community to contribute to the establishment of the internal market (Article 14 EC) to be achieved by measures adopted under Article 95 para. 1.85 At the same time, it intended to further the protection of fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.86 Thus, the object of the Directive is twofold. With regard to the competence question, this causes some uncertainties, since the exact scope of the Community’s power in the area of the protection of human rights is still unclear. In Opinion 2/94, the ECJ explicitly stated that “no treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field.”87 Thus, Article 95 EC cannot serve as the legal basis for human rights measures – regardless of being internal or external – in general.88 Yet, as can be seen from Tobacco Advertising,89 this does not necessarily affect the validity of the measure. In that case the ECJ had to deal with a directive enacted on the basis of Article 95 EC, aiming mainly at the protection of public health, a sector in which the Community, according to Article 129 para. 4 EC, has no competence to adopt harmonizing measures. In the Court’s view, the Community legislator cannot be prevented from relying on this particular legal basis as long as the conditions for recourse to Article 95 EC are fulfilled, even

85 86 87 88 89

See Data Protection Directive (note 9), recitals 5–9 as well as Art. 1 para. 2. Id., Art. 1 para. 1. See Opinion 2/94 (note 81), para. 27. See for this interpretation of the Court’s opinion Dashwood/Hillion (note 81), 73. Case C-367/98, Germany v. Parliament and Council, 2000 ECR I-8419.

652

Birte Siemen

if “public health protection is a decisive factor in the choices to be made.”90 Thus, generally speaking, on the basis of Article 95 EC, the Community is competent to enact measures by which an aim other than the fostering of the establishment of the internal market is pursued as well. Applying this finding to the Data Protection Directive means that the fact that a measure is aimed at the protection of human rights does not lead to its invalidity, given that it also intends to further the functioning of the internal market. Having established the Community’s internal competence in the field of data protection, one could argue that this inevitably entails an implied external competence on this sector.91 However, it ought to be considered that Tobacco Advertising only dealt with internal competences. Moreover, the issue of the transmission of PNR data does not easily fit into this line of reasoning. Unlike the Data Protection Directive, Council Decision 2004/496/EC does not further the functioning of the internal market, but only the protection of human rights. Thus, it is questionable whether the reasoning from the Tobacco Advertising judgment can be applied with respect to external competences as well or whether there are limits to the external competence of the Community as far as human rights issues are concerned. Assuming that the Community has no competence on the human right sector whatsoever, the application of the reasoning in Tobacco Advertising in combination with the doctrine of implied powers comes close to an infringement of the principle of limited empowerment. The principle of implied powers rests on the idea that the existence of a given power also implies the existence of any other power which is reasonably necessary for the exercise of the former.92 The Community’s power in the field of data protection, however, is linked to the functioning of the internal market. Given that it is hard to see why the transfer of PNR data to the US authorities improves the functioning of the internal market, it seems that the adoption of a measure solely on an aspect which is not by itself covered by the competences of the Com-

90 Id., para. 88; see also Case C-491/01, British American Tobacco, 2002 ECR I-11453, para. 62. 91 For the applicability of the ERTA-reasoning to Art. 95 see Opinion 1/94 (note 76); Rudolf Mögele, Art. 300, mn. 30, in: Rudolf Streinz (ed.), EUV/EGV, 6th ed. 2003. 92 On this narrow definition see Trevor C. Hartley, The Foundations of European Community Law, 4th ed. 1998, 102, who also provides for a wide interpretation, according to which the existence of a given objective or function implies the existence of any power reasonably necessary to attain it. According to Craig/de Burca (note 79), 123 the Tobacco Advertising case shows that the ECJ is willing to adopt the wider notion.

EU-US Agreement on Passenger Name Records and EC-Law

653

munity would expand the principle of implied powers. In the end, this would circumvent the principle of limited empowerment of Article 5 para. 1 EC. This, however, is not yet the end of the story. Although at first sight the statement of the ECJ in Opinion 2/94 seems to exclude any competence of the Community with regard to human rights, the limits to the Communities’ powers are not as strict. The statement of the Court must be read in the context of Opinion 2/94. The Opinion was requested by the Council under Article 300 para. 6 EC to indicate whether the Community may accede to the European Convention of Human Rights (ECHR). After having found that there was no explicit or implied power in the field of human rights, the Court examined whether Article 308 EC may constitute a legal basis for accession. However, it concluded that accession to the Convention would […] entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as the integration of all the provisions of the Convention into the Community legal order.93

Against this background, and bearing in mind that the ECJ referred to a general power to adopt measures in the human rights field, this statement must be interpreted as not precluding an agreement based on Article 308 for the enactment of specific Community measures for the protection of human rights, as long as these do not in fact result in a Treaty amendment.94 With regard to the agreement on the transfer of PNR data, one can argue that this is such a specific measure aiming at the protection of human rights. First of all, the Decision on the transfer of PNR aims at the protection of the right to privacy and data protection, thus at the furtherance of only one specific fundamental right and not of human rights in general. The second reason can be found in the unique character of the Data Protection Directive.95 It has been adopted for the harmonization of the right to private life and the right to data protection re93

See Opinion 2/94 (note 81), para. 34. Dashwood/Hillion (note 81), 73; Joseph H. H. Weiler/Sybilla C. Fries, A Human Rights Policy for the European Community and Union: The Question of Competences, in: Philip Alston (ed.), The EU and Human Rights, 1999, 161; Craig/de Burca (note 79), 353. 95 Another example is the non-discrimination directive and associated directives, i.e. EC Directive 200/43 of 29 June 2000 Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, O.J. 2000 L 180/22; and EC Directive 2000/78 of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, O.J. 2000 L 303/16. 94

654

Birte Siemen

spectively, because varying measures of the Member States on this sector constituted an impediment of the implementation of the internal market. Different rules on data protection would have impaired the free flow of data within the Community, which is a prerequisite for the functioning of the internal market.96 For this reason it has been accepted97 that data protection in general does come under the Community’s competence. Since the protection of the right to private life and data protection is closely linked to the functioning of the internal market, it could be said that the Data Protection Directive falls under the competence of the Community just because it aims at the protection of a human right. Thus, it is submitted that, when discussing the Community’s competence in the sector of data protection, one has to look at the measure in total. It would be rather artificial to split the issue of data protection into two parts: the free flow of information and the protection of human rights. Thus, it is submitted that Article 95 is the proper legal basis for the Council’s Decision.98 2. Infringement of Fundamental Rights Another major argument brought forward by the European Parliament to support the action of annulment was that Council Decision 2004/496/EC infringes the right to privacy and data protection. According to ECJ case law, which is 96

See Data Protection Directive (note 9), recitals 3–5. See Damann/Simitis (note 17), 63. 98 This is also true with respect to Art. 80 para. 2, Art. 71 para. 1 subpara. c EC, which according to the ECJ provides for an external competence of the EC (Case C-466/ 98–469/98 e.a., Open Skies, 2002 ECR I-9855). Art. 80 EC, read in conjunction with Art. 70 para. 1 lit. c EC, however, only provides for competence with regard to air transport security. Although the measures taken by the US aim inter alia at the furtherance of transport security, the main object is to combat terrorism in general. Thus it is submitted that the relevant articles do not provide for such a extensive competence as to include the measures in the case at hand. In addition, Art. 133 EC could be discussed as a legal basis, if one argues that the breakdown of negotiations with the US would mean a serious impediment to air transport and therefore to the supply of services. Contrary to rules which relate to the establishment of persons, such provisions come within the ambit of commercial policy (Opinion 1/94 (note 76), para. 45). However, in order to fall under Art. 133 EC, the central objective of the measure must be to regulate trade (Opinion 1/78, International Agreement on Natural Rubber, 1979 ECR 2871, para. 56). Above all though, Council Decision 2004/496/EC (note 1) aims at the protection of the right to data protection of the individual. Thus, it cannot be considered as a measure exclusively falling under the Community’s competence in the sector of commercial policy. See also Stein (note 17), 525. 97

EU-US Agreement on Passenger Name Records and EC-Law

655

now reflected by Article 6 para. 2 Treaty on European Union99 fundamental rights have to be considered as general principles of law, according to which the provisions of Community law have to be interpreted.100 As rules of law relating to the application of the Treaty, their infringement may also provide a ground for the annulment of Community acts.101 Before examining whether the Community’s fundamental right to privacy and data protection has been violated, its source and scope has to be established. A right to the protection of personal data is formulated in Article 8 of the EU Charter of Fundamental Rights,102 which states: 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.

Though the EU Charter is not yet in force and thus not legally binding, it indicates the standard which the Community is willing to apply with regard to the right to data protection in the future.103 However, for the time being, recourse 99

Consolidated Version of the Treaty on European Union, 24 December 2002, O.J. 2002 C 325/5. 100 Case 4/73, Nold v. Commission, 1974 ECR 491, para. 13; Case 44/79, Hauer v. Land Rheinland Pfalz, 1979 ECR 3727, para. 15; Joined Cases 46/87 and 227/88, Hoechst v. Commission, 1989 ECR 2859, para. 12. 101 Nold v. Commission (note 100). 102 Resolution on the Establishment of the Charter of Fundamental Rights, O.J. 2000 C 54/93. 103 Some other Articles of the Charter have previously been cited by the Court of First Instance, see Case T-54/99, max.mobil, 2002 ECR II-313, para. 48; Case T-177/01, JégoQuéré et Cie SA, 2002 ECR II-2365, para. 4; Joined Cases T-377/00 and T-379/00, e.a., Philip Morris International, 2003 ECR II-1, para. 122. Moreover, the Articles of the EU Charter of Fundamental Rights can be seen as a conglomerate of the constitutional traditions common to all Member States, see Koen Lenaerts/Eddy de Smijter, A “Bill of Rights” for the European Union, Common Market Law Review, vol. 38, 2001, 273, 298. See also the Conclusions of the Presidency of the Cologne European Council of 3–4 June 1999, Annex IV, European Council Decision on the Drawing up of a Charter of Fundamental Rights of the European Union, in which it is stated that “The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitu-

656

Birte Siemen

must be to the traditional source of fundamental rights in the European Community, i.e. the general principles of EC law as developed by the ECJ.104 Since the source of inspiration for these principles is found in the constitutional traditions common to the Member States and international treaties for the protection of human rights to which Member States are party,105 the scope of the Community right to data protection has to be established by these instruments. This is precisely the approach taken by the ECJ in its first judgment with regard to data protection after the entry into force of the Directive.106 In Österreichischer Rundfunk107 the Court had to decide on whether a provision of Austrian law could be interpreted as to allow the transfer of personal data concerning employees of the Österreichischer Rundfunk (ORF) to the Austrian Court of Audit. When examining whether this rule was in conformity with EC law, the ECJ concluded first that the measure did fall within the scope of the Data Protection Directive. Since the Directive as a measure of secondary law needs to be in conformity with primary EC law before being used as a yardstick in establishing the standards of data protection, the ECJ had to test whether it was in conformity with fundamental rights. Hence it had to have recourse to the fundamental right of data protection of the Community. Due to lack of a respective general principle of Community Law established by its own case law, the ECJ referred to Article 8 ECHR108 and the case law developed by the European Court of Human Rights (Eur. Court H.R.) pursuant to this Article. Article 8 ECHR reads: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic sotional traditions common to the Member States, as general principles of Community law. […]” available at: http://www.europarl.eu.int/summits/kol2_en.htm. 104 Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1970 ECR 1125, para. 3; Nold v. Commission (note 100), para. 13. 105 See Hauer v. Land Rheinland Pfalz (note 100), para. 15. 106 The notion of ‘data protection’ had already explicitly been mentioned in Case C-369/ 98, TR. und P. Fisher, 2000 ECR I-6751. 107 Joined Cases C-465/00, 138/01 and 139/01, Österreichischer Rundfunk, 2003 ECR I-1689. 108 European Convention for the Protection of Human Rights and Fundamental Freedom, 4 November 1950, ETS No. 5 (ECHR).

EU-US Agreement on Passenger Name Records and EC-Law

657

ciety in the interest of national security, Public safety or the economic well-being off the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The ECJ cited the cases Amann v. Switzerland109 and Rotaru v. Romania,110 in which the European Court of Human Rights had held that the expression “private life” must not be interpreted restrictively and that there is no reason or principle to justify excluding activities of a professional nature from the notion of private life. After having established an interference with Article 8 ECHR, the ECJ examined whether this interference can be justified under Article 8 para. 2 ECHR. To qualify for exception, the measure needs to be in accordance with the law, pursue a legitimate aim as specified in Article 8 para. 2 ECHR and be necessary in a democratic society for achieving that aim.111 The case demonstrates that when establishing Community standards with regard to data protection in primary law, i.e. on the level of fundamental rights, the Court directly applies Article 8 ECHR, including the standards developed by the Strasbourg Court, which will be examined next. Thus, when examining whether Council Decision 2004/496/EC infringes on the right to private life and data protection, it has to be established whether it complies with Strasbourg case law. This does not come as a surprise, as it has already turned out that, when establishing general principles of Community law, the ECHR plays a far more important role than the constitutional traditions common to all Member States.112 a) Scope of Protection of Article 8 Para. 1 ECHR But what are these standards? In view of the judgments of the European Court of Human Rights cited by the ECJ in Österreichischer Rundfunk it seems that the scope of Article 8 ECHR is rather wide, so that any personal data falls within its ambit. It is remarkable, however, that under the ECHR the right to 109

Eur. Court H.R., Amann v. Switzerland, Judgment of 16 February 2000, Reports of Judgments and Decisions 2000-II, 245, para. 65. 110 Eur. Court H.R., Rotaru v. Romania, Judgment of 4 May 2000, Reports of Judgments and Decisions 2000-V, 109, para. 43. 111 Österreichischer Rundfunk (note 107). 112 Lenaerts/De Smijter (note 103), 298; Dirk Ehlers, Sect. 13 I 3, mn. 8, in: Dirk Ehlers (ed.), Europäische Grundrechte und Grundfreiheiten, 2003; Jürgen Kühling, in: Armin von Bogdandy (ed.), Europäisches Verfassungsrecht, 2003, 593 et seq.

658

Birte Siemen

data protection has developed as an aspect of the right to private life as provided by Article 8 ECHR. Thus, according to the established case law of the Strasbourg Court, personal data falls within the scope of Article 8 ECHR only as far as it “relates to private life.”113 The right to private life on the other hand is not subject to an exhaustive definition.114 Accordingly, the notion of private life has been developed case by case.115 Yet some general principles can be derived from the case law of the Strasbourg Court. First, it has become clear that a decisive factor in determining whether the data “relate to private life” is their content. Secondly, the Court has held that the right to private life provides some protection even outside the private realm. This reasoning, which was introduced in Niemietz,116 has been specified by the court in the case P.G. and J.H. v. United Kingdom.117 In this case the court has held that, as far as a person has a reasonable expectation of privacy, even information collected from a person while moving in public might be considered to concern a person’s private life.118 Furthermore, in Amann and Rotaru the Eur. Court H.R. stated that the systematic recording and storing of data can constitute an interference with private life.119 When applying these principles to the case at hand, there is no doubt that the transfer of PNR data to US Authorities comes within the ambit of Article 8 ECHR. Although some of the data could be considered as ‘simple’ data, i.e. information such as the name, address and the date of birth of a person which 113 See Eur. Court H.R., Leander v. Sweden, Judgment of 26 March 1987, Series A, No. 116, para. 48; Eur. Court H.R., Z. v. Finland, Judgment of 27 February 1997, Reports of Judgments and Decisions 1997-I, 323, para. 95; Eur. Court H.R, P.G. and J.H. v. United Kingdom, Judgment of 25 September 2001, Reports of Judgments and Decisions 2001-IX, 195, para. 57. 114 Eur. Court H.R., Niemietz v. Germany, Judgment of 17 December 1992, Series A, No. 251-B, para. 56. 115 See, e.g., Stephan Breitenmoser, Schutz der Privatsphäre gemäß Art. 8 EMRK, 1986, 36–48; Jochen A. Frowein/Wolfgang Peukert, Europäische Menschenrechtskonvention, 2nd ed. 1996, 339, Art. 8; Francus G. Jacobs, European Convention on Human Rights, 3rd ed. 2002, 126 et seq. 116 Niemietz v. Germany (note 114). 117 P.G. and J.H. v. United Kingdom (note 113), para. 57. 118 Id. 119 “[P]ublic information can fall within the scope of private life where it is systematically collected and stored in files held by authorities. That is all the truer where such information concerns a person’s distant past.” Rotaru v. Romania (note 110), para. 43; see also Amann v. Switzerland (note 109), paras. 65–67.

EU-US Agreement on Passenger Name Records and EC-Law

659

have been found to not relate to a person’s private life in general,120 according to the doctrine developed in the Rotaru judgement, it nevertheless falls under Article 8 ECHR given that it is systematically collected and stored. Moreover, it needs to be established whether there was an interference with the right to data protection.121 From a doctrinal perspective there are some doubts as to whether an interference in the classic sense can be established. Only measures carried out by the State or the Community respectively or by one of its agencies are considered to be an interference. However, the interference in the strict sense takes place once the US authorities gain access to the relevant data. Thus, there is no direct interference with the right to data protection by the Community’s authorities. Yet, to the extent that Council Decision 2004/ 496/EC permits the measures leading to PNR data access by authorities of a third State – or rather creates an obligation for the airlines to transmit the data – the interference is attributable to the Community. As can be seen from the case law of the ECJ, “interference” has not been interpreted strictly. Even a measure only having indirect effects on the interests of the individual can mean an interference with its rights.122 The same result occurs under the ECHR, yet the doctrinal approach is slightly different. Although actions by entities not bound by the Convention, for example private parties, cannot be regarded as an interference,123 there might be a positive obligation flowing from Article 8 para. 1 ECHR. Thus, in case no direct interference can be established,124 there might be a positive duty on the 120

In 1992 the then existing European Commission had found in a decision that data contained in a Belgian identity card, such as name and address do not relate to private life, see Eur. Com. H.R., Reyntjens v. Belgium, Decision of 9 September 1992, Decisions and Reports 73, 136. 121 It needs to be mentioned, however, that in the case law of both the ECJ and the Eur. Court H.R., hardly any distinction is made between whether a measure comes within the scope of a right and whether it constitutes an interference. An exception can be found in Rotaru v. Romania (note 110), para. 43 and Amann v. Switzerland (note 109), para. 68. 122 See Case C-84/95, Bosphorus v. Minister for Transport, Energy and Communications and others, 1996 ECR I-3953, para. 22. Under the ECHR this problem is discussed in Eur. Court H.R., Hatton et al. v. United Kingdom, Judgment of 2 October 2001, available at: http://hudoc.echr.coe.int/, para. 115. 123 See, e.g., Eur. Court H.R., Hatton et al. v. the United Kingdom, Judgment of 8 July 2003, Reports of Judgments and Decisions 2003-VIII, 189, para. 95 124 Id., para. 119, the Eur. Court H.R. left open the question whether there was an interference or a positive obligation.

660

Birte Siemen

State to take reasonable and appropriate measures to secure the individual’s rights.125 There is therefore, irrespective of the doctrinal background, a breach of the right to data protection attributable to the European Community. Therefore, it needs to be established whether the measure is justified. b) Justification under Article 8 Para. 2 ECHR Under Article 8 para. 2 ECHR, interferences by the State are justified if they are in accordance with the law and necessary in a democratic society for the objectives restrictively set forth in this provision. Assuming that there was a positive interference with the right to privacy attributable to the Community, another question arises. The requirement that an interference must be ‘in accordance with the law’ refers to the legal system of the State involved, which must provide for an adequate basis for the restrictive measure.126 Besides, the law must be adequately accessible: The citizen must be able to have an indication which is adequate, in the circumstances, of the legal rules applicable to a given case, and a norm cannot be regarded as ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.127 He must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.128 The question whether the interference was provided by law in the case at hand depends on the starting point. Assuming that the interference, although attributable to the Community, must finally be seen in the action taken by the airlines or the US authorities respectively, the legal basis can be found in the Council Decision. It could also be maintained, however, that it is the Council Decision itself which has to be provided by law, since it regulates the transfer of data. If the second view is followed, there are considerable doubts as to whether the transfer of data is in accordance with the law. As already seen, the Council 125

See cases concerning environmental law: Eur. Court H.R., Moreno Gómez v. Spain, Judgment of 16 November 2004, available at: http://hudoc.echr.coe.int/, para. 55; Hatton v. United Kingdom (note 123). 126 Eur. Court H.R., Sunday Times v. United Kingdom (No.1), Judgment of 16 April 1979, Series A, No. 30, para. 37; for the ECJ see Hoechst v. Commission (note 100), para. 19; Österreichischer Rundfunk (note 107). 127 Sunday Times v. United Kingdom (No.1) (note 126), para. 77. 128 Id., para. 37.

EU-US Agreement on Passenger Name Records and EC-Law

661

explicitly refers to Article 95 EC as the legal basis of the Council Decision.129 As a provision regulating the internal market, Article 95 EC itself cannot be considered as fulfilling the requirements as to the quality of the law mentioned above. It is only by virtue of the implied powers doctrine that the Data Protection Directive comes into play. Given that the Directive originally and explicitly aims at the protection of just these rights, it can be disputed that it is foreseeable from this point of view that the Community may adopt measures which allow for large-scale access to personal data by third countries’ authorities. The fact that the implied powers doctrine is not codified, so that the Community cannot rely on a written legal basis of Community law, does not necessarily affect the legitimacy of the measure. The legal basis may also derive from rules pursuant to delegated powers, or in judicial practice.130 Thus, the term ‘law’ is understood in its substantive sense and not formally. Hence, generally speaking, a measure adopted on the basis of the doctrine of implied powers can be considered as providing a legal basis.131 To be justified under Article 8 para. 2 ECHR, the interference must not only have a sufficient legal basis, it must also have been carried out in order to achieve one or more of the aims listed in para. 2, and in addition it must be necessary in a democratic society. The Council Decision aims explicitly at the prevention of terrorism, thus it is in the interest of national security and the prevention of disorder and crime.132 According to the Eur. Court H.R., the adjective “necessary” in Article 8 para. 2 of the Convention implies that a pressing social need is involved and that the measure employed is proportionate to the legitimate aim pursued.133 In this respect the authorities also enjoy a margin of ap129

Thus, Art. 26 para. 5 of the Directive, which states that “at the appropriate time, the Commission shall enter into negotiations with a view to remedying the situation resulting from the finding made pursuant to paragraph 4,” can be read to implicitly provide for action other than negotiations by the Commission, which, however, cannot be considered as a legal basis for the Council’s action. 130 See Eur. Court H.R., Kruslin v. France, Judgment of 24 April 1990, Series A, No. 176-A, paras. 27–29; Eur. Court H.R., Huvig v. France, Judgment of 24 April 1990, Series A, No. 176-B, paras. 26–28. 131 Ehlers (note 112), Sect. 13 VI 3, mn. 41 however, is reluctant to apply this principle to Community law. 132 See Eur. Court H.R., Klass v. Germany, Judgment of 6 September 1978, Series A, No. 28, para. 48. 133 Eur. Court H.R., Silver v. United Kingdom, Judgment of 25 March 1983, Series A, No. 61; Eur. Court H.R., Moustaquim v. Belgien, Judgment of 8 February 1991, Series A,

662

Birte Siemen

preciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved.134 In the jurisprudence of the ECJ, hardly any reference to the objectives listed in Article 8 para. 2 ECHR can be found so far.135 So it is the case law of the Eur. Court H.R. which gives guidance as to the standards which have to be applied, when assessing legal measures. In the Mc Veigh case, the European Commission of Human Rights had to decide on measures involving UK authorities for the prevention on terrorism. With respect to the taking and storing of fingerprints and photographs, it held that “[t]he Commission is aware of the critical importance which intelligence material and forensic evidence may have in the detection of those responsible for terrorist offences.”136 After weighing “a relatively slight interference with the applicants’ right to respect for their private life” against “the pressing necessity to combat terrorist activity” it found the measures to be justified under para. 2 though the applicant in this case was not under suspicion for having committed a crime. In the Klass judgment in 1978, the Eur. Court H.R. stated with respect to surveillance measures that “[d]emocratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction.”137 Since the measures in question, a German legislation which allowed for secret surveillance, provided for “adequate and effective guarantees against abuse,” safeguarding the individual’s rights, they were held to be in conformity with Article 8 ECHR. As can be seen from the case law of the Strasbourg court, combat of terrorism can in principle be justified in the “interest of public safety” and/or “for the prevention of the rights and freedoms of others.” The organs have similarly recognized that the fight against terrorism is an important consideration under the proportionality test and that the Member States enjoy a wide margin of appreciNo. 193; Eur. Court H.R., Open Door and Dublin Well Women v. Irland, Judgment of 19 October 1992, Series A, No. 246. 134 Leander v. Sweden (note 113), para. 59. 135 Österreichischer Rundfunk (note 107), in which the economic well-being of the country was at stake. 136 Eur. Com. H.R., Mc Veigh v. United Kingdom, Decision of 18 March 1981, Decisions and Reports 25, 230. 137 Klass v. Germany (note 132), para. 48.

EU-US Agreement on Passenger Name Records and EC-Law

663

ation. Given that the Eur. Court H.R. had accepted the fight against terrorism as a justification for measures severely encroaching the fundamental rights of the individual, it seems unlikely that the measures in the case at hand will be found to be in violation with the right to privacy. It is submitted, however, that today the Eur. Court H.R. would attach greater importance to the right to privacy and data protection of the individual. The explanation can be found in the concurring opinion of Judge Pettiti delivered in the Malone judgment in 1984. In this case the Eur. Court H.R. found interception of telecommunication and metering by the British authorities to be in breach of Article 8 ECHR. With regard to the metering Judge Pettiti stated that [t]he comprehensive metering of telecommunications (origin, destination, duration) when effected for a purpose other than its sole accounting purpose, albeit in the absence of any interception as such, constitutes an interference in private life. On the data thereby obtained, the authorities are enabled to deduce information that is not properly meant to be within their knowledge. It is known that, as far as data banks are concerned, the processing of ‘neutral’ data may be as revealing as the processing of sensitive data.138

The Eur. Court H.R., however, ignored the importance of a ‘right to data protection’ embedded in the right to privacy at that time. The Court was not yet aware of the dangers automatic processing could mean to the individual’s rights. It was more than 15 years later with the Amann139 and Rotaru140 cases that the Court changed its mind and accepted the arguments already brought forward by Pettiti. Knowing about the threat that even mere processing of “neutral” data could mean to the right to private life, it is less likely that today the Court would classify a measure such as that in the Mc Veigh case as “slight interference.” Rather, it is likely that the margin of appreciation will be limited. As a consequence, when applying the proportionality test to the measures at hand, the fight against terrorism will not automatically prevail. Rather the negative effects on the rights of the individuals must not be underestimated. Thus, the criticism formulated by the Working Party141 is still applicable. So it is doubtful whether it is necessary that the data being transferred also contain the passenger’s e-mail address or credit-card number. Moreover, it is submitted that 138 Eur. Court H.R., Malone v. United Kingdom, Judgment of 2 August 1984, Series A, No. 95, Concurring Opinion of Judge Pettiti. 139 Amann v. Switzerland (note 109); see also Z. v. Finland (note 113). 140 Rotaru v. Romania (note 110). 141 See Opinion 4/2003 (note 29).

664

Birte Siemen

the safeguards are not sufficient. The control system as provided by the measures142 does not exclude the danger of abuse. In view of the amount of data being collected, an independent institution should be entrusted with the supervision of the information.143 Furthermore, the data retention period of three and a half years is not proportional to its purpose. The data should be strictly limited to what is necessary for the prevention of terrorism and should not be kept simply because it might prove useful at a later stage. Finally, it should be mentioned that, contrary to the Strasbourg Court, the ECJ is not directly bound by Article 8 ECHR.144 Although having established the right to private life in Community Law in accordance with Article 8 ECHR,145 there is thus no need to adhere to these principles under all circumstances. As it can already be seen from the case law of the ECJ, the scope of the right to private life is not entirely identical with the scope of Article 8 ECHR.146 If the ECJ decides to put more weight on the right to data protection, it can do so without a link to private life and establish an autonomous fundamental right to data protection. C. Conclusion The Agreement on the transfer of PNR data to the US authorities raises various issues in EC law. In the end, it will be the ECJ which will decide on this matter and it will be interesting to see what standards the Court will establish. In this article, only some aspects have been highlighted. First, the scope of the Community’s external competences has been analyzed. Here it is submitted that, although the Community is not competent to enact measures in the field of human rights in general, it is entitled to conclude international agreements on 142

Simitis (note 13). Such a control system was required by the Eur. Court H.R. in cases concerning the collection of information by a secret surveillance system, see Klass v. Germany (note 132) and Leander v. Sweden (note 113). 144 Internationale Handelsgesellschaft (note 104). 145 Case 136/79, National Panasonic, 1980 ECR II-2033, para. 19 et seq. 146 See Hoechst v. Commission (note 100), 2859; Case C-94/00, Roquettes Frères, 2002 ECR I-9011, in which the ECJ stated that business premises do not fall under the scope the right to private life. However, in Niemietz v. Germany (note 114), the Eur. Court H.R. has found otherwise. 143

EU-US Agreement on Passenger Name Records and EC-Law

665

data protection on the basis of Article 95 EC. Thus, Article 95 EC is the proper legal basis for Council Decision 2004/496/EC. Moreover, it has become clear that the fundamental right to privacy and data protection does not end at the Community’s external borders. Although it cannot be expected that third countries will accept the Community’s standards without reservation, the Community should not surrender from the start. Whereas the awareness that the use of personal data has been denationalized147 finally led to the enactment of the Data Protection Directive in the 1990s, the focus has in the meantime shifted from the supranational to the international level. Modern means of communication have not only led to an increasing demand of privacy, but they make the protection of the rights of the individual more difficult at the same time. Considering the amount of cross-border data flow, there will be no reasonable protection of personal data as long as it is limited to EC territory. However, the unlimited extraterritorial application of the Directive cannot be the solution. The Directive itself allows for the transfer of data as long as an ‘adequate level of protection’ can be ensured. The findings of the Working Party have shown that there are some doubts as to the adequacy in case of the transfer of PNR data. What can be gathered from this case is that as far as the transfer of data to third countries is concerned, the right to data protection depends on the economic power of the other state involved. The more powerful this State is, the more economic pressure there will be. For lack of alternatives this has lead the Commission to apply more generous standards when applying the Article 25 para. 6 Decision. 148 The legality of Council Decision 2004/496/EC, by which the contested agreement has been implemented in EC law, does not depend on the interpretation and application of secondary law. It has to be assessed in the light of the Community’s fundamental right to privacy and data protection. Although this right has only been established in the very recent case law of the European Court of Justice and European Court of Human Rights, both Courts have demonstrated that they are willing to set high standards in this respect. In order to establish a powerful fundamental right to data protection within the European Community, the European Court of Justice should declare the measure to be void.

147 148

See Simitis (note 13), 102. This has already been predicted by Ehmann/Helfrich (note 17), 287.

Changes and Challenges to the EU Judicial System after the Constitutional Treaty – An Overview By Ronald Steiling and Alexander Schultz A. Introduction On 29 October 2004 the Treaty establishing a Constitution for Europe1 was signed in Rome by the – then 25 – heads of states and governments of the EU Member States. This historical document brings about various major developments in European law, above all, the incorporation of the Charter of Fundamental Rights2 as the second part of the legally binding text of the Constitutional Treaty (CT). In this context it seems remarkable that one issue has widely evaded the general focus of discussion and argumentation: the question of the future design of the European judicial system.3 Besides the prominent changes this Treaty introduces, it also constitutes the legal framework that the EU judicial system will have to deal with for a considerable period of time. This article intends to discuss the most important aspects of the EU judicial system and deals with the changes the Constitutional Treaty entails in connection with that judicial system. In all respects, the greatest challenge the Union’s judiciary faces over the years to come is that of its ever mounting workload. Accordingly, this article first focuses on the institutional framework of the EU court system and on the question of what remedies the existing structure holds for problems arising therefrom. While burdened with the immense pressure of its high workload, the 1

Treaty establishing a Constitution for Europe, 29 October 2004, O.J. 2004 C 310. Charter of Fundamental Rights of the European Union, 7 December 2000, O.J. 2000 C 364/1. 3 A “Discussion Circle on the Court of Justice” was only established at the European Convention in February 2003, some five months before the adoption of the draft treaty. See European Convention, Final Report of the Discussion Circle on the Court of Justice, Doc. CONV 636/03. 2

EU Judicial System after the Constitutional Treaty

667

European courts are at the same time faced with a rising claim of the European Citizen for more effective judicial protection against Community measures. The second part of this article is therefore dedicated to the developments that the Constitutional Treaty brings about in this connection. Another unresolved question concerning the European judiciary is that of the future relationship between the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR), which will be addressed in the third part of this article. Finally, the changes to the jurisdictional reach of the European courts concerning present “third-pillar-measures” shall be delineated. B. The Workload Dilemma As mentioned above, the undoubtedly most severe and urgent problem the European judiciary currently faces is that of the ever increasing workload of the European courts. The facts in this respect have been presented by other commentators at numerous occasions.4 Nonetheless they are impressive enough to once again be reiterated in part at this occasion: for years now, cases filed far outnumber those decided by the Courts.5 The most drastic effect of the rising workload is the increasing duration of proceedings before the European courts. By 2002 the average duration of preliminary rulings procedures well passed the two year mark,6 and this upward trend continues. Pending periods for direct actions are not considerably shorter. These figures – unacceptable as they are already – are bound to worsen after the accession on 1 May 2004 of the ten new Member States. Although it may take some time before courts of the accession states make use of preliminary references as frequently as courts in Western Europe already do,7 the European court system is – under the current institu4 Cf. Piet Eeckhout, The European Courts after Nice, in: Mads Andenas/John A. Usher (eds.), The Treaty of Nice and Beyond. Enlargement and Constitutional Reform, 2003, 316; James Turner/Rodolphe Munoz, Revisiting the Judicial Architecture of the European Union, Yearbook of European Law, vol. 19, 2000, 1. 5 Statistics of judicial activity of the ECJ and the Court of First Instance are available at: http://curia.eu.int/en/instit/presentationfr/rapport/stat/st03cr.pdf and http://curia.eu.int/en/instit/ presentationfr/rapport/stat/st03tr.pdf, respectively. 6 Bo Vesterdorf, The Community Court System Ten Years from Now and Beyond: Challenges and Possibilities, European Law Review (ELR), vol. 28, 2003, 314. 7 Takis Tridimas, Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure, Common Market Law Review (CMLR), vol. 40, 2003, 16.

668

Ronald Steiling and Alexander Schultz

tional framework – obviously not fit to cope with the impending additional workload. Two major concerns ensuing from this inadequate situation may be identified. First, problems of judicial systems are never confined to the abstract institutional aspect. These problems result in infringements of individual fundamental rights, especially with respect to effective judicial protection and the right to access to court. In business-related matters effective judicial protection regularly means speedy judicial protection. These deficiencies are becoming all the more prominent after incorporation of the Charter of Fundamental Rights, with its Article II-107 CT on the judicial rights of the European Citizen, into the Constitutional Treaty.8 A second concern in connection with these institutional problems is that in future, the ECJ may not be able to deal with certain cases with the same expediency as would be possible with a lesser workload, so that the said problems may give rise to worries that the ECJ may just not be able to maintain the substantial and decisive role it has played in the past during the course of further European integration.9 Notwithstanding the fact that the present legal structure will endure over at least this decade until the actual implementation of the Constitutional Treaty, this Treaty also provides for only a few, and in any case not substantial, changes to the institutional structure of the European courts. Indeed, the provisions concerning the structure of European jurisdiction are left almost unchanged by the Constitution. The Convention basically endorses the approach taken by the Nice Intergovernmental Conference (IGC) in 2000 to tackle the challenges posed by a mounting caseload. The two means employed by the IGC were: first, a strengthening of the Court of First Instance (CFI) as the first instance for the ECJ; second, the establishment of an additional jurisdictional tier, the – currently – so-called judicial chambers. Created by a Council Decision in 198910 already for reasons of alleviating the ECJ’s workload,11 the CFI had originally not been a self-contained Community 8

See Liz Heffernan, The Community Courts Post-Nice: A European Certiorari Revisited, International and Comparative Law Quarterly, vol. 52, 2003, 914. 9 Vesterdorf (note 6), 314. 10 Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities, O.J. 1988 L 319. 11 Paul Craig/Graínne de Búrca, EU Law, 3rd ed. 2003, 90.

EU Judicial System after the Constitutional Treaty

669

organ but, in an institutional sense, part of the ECJ – in the wording of the Amsterdam version12 of the Treaty establishing the European Community (ECT) (ex Article 225 para. 1 ECT ), the CFI was merely “attached” to the ECJ. With the amendment of Articles 220, 224 et seq. ECT by the Treaty of Nice,13 the position of the CFI was strengthened and it was made organizationally independent. Also, it is now alluded to in Article 220 para. 1 ECT14 (Article I-29 para. 1 CT) as responsible, alongside the Court of Justice, for ensuring the observance of the law in interpretation and application of the Treaty. Thus, the Treaty of Nice expanded the jurisdictional competencies of the CFI significantly. According to Article 225 ECT (Article III-358 CT), the CFI has jurisdiction to hear and determine at first instance actions or proceedings arising under Articles 230, 232, 235, 236 and 238 ECT (Articles III-365, III-367, III-370, III-372 and III-374 CT), with the exception of those assigned to a specialized court15 and those reserved to the ECJ in the Statute. This is the opposite situation to the pre-Nice system, under which, in principle, all jurisdiction was reserved to the ECJ, and where it was left to the Council’s discretion to determine the types of cases that should be heard and decided by the CFI. Another amendment, which is probably of even greater significance, has been brought about by Article 225 para. 3 ECT (cf. Article III-358 para. 3 CT), according to which the jurisdiction for preliminary rulings may in specific matters be conferred to the CFI by the ECJ statute. Up to the Nice Treaty the competence to give preliminary rulings had been explicitly reserved to the ECJ by Article 225 of the Amsterdam Treaty. Besides the strengthening of the CFI, a second major aspect of institutional reform was the creation of an additional judicial tier. The Treaty of Nice introduced so-called judicial panels, which were to compensate to some extent for the increasing number of actions that had been filed over the preceding five years with the CFI. Judicial panels would be entrusted with, and thus alleviate 12 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts, 2 October 1997, O.J. 1997 C 340. 13 Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts, 26 February 2001, O.J. 2001 C 80. 14 Consolidated Version of the Treaty establishing the European Community, 24 December 2002, O.J. 2002 C 325. 15 As to the introduction of specialized courts see, infra.

670

Ronald Steiling and Alexander Schultz

the CFI from, jurisdiction over certain groups of procedures. They would hear and determine at first instance certain classes of action or proceedings brought in specific areas of law.16 According to Article 225 para. 2 ECT, the CFI itself is the appellate court to these judicial panels. Although decisions made by the CFI can only exceptionally be challenged before the ECJ where there is a serious risk of the unity or consistency of Union law being affected (Article 225 para. 2 subpara. 2 ECT), a three level judicial structure is thus established. Corresponding to these stipulations on judicial panels, Article III-359 CT provides for the establishment of so-called specialized courts by European law. In the light of the above-mentioned changes it becomes obvious that the name “Court of First Instance” no longer reflects the important role the court is bestowed with by the jurisdictional provisions of the new Treaty.17 It will also no longer be consistent with the actual facts, since the CFI will itself be an appellate court to the judicial chambers provided for in Article 225a ECT.18 This is accentuated by the most obvious formal change brought about by the Constitution in this respect, that under the Constitutional Treaty the nomenclature of the various courts will be altered. The Court of First Instance will be called “General Court.”19 The “Court of Justice of the European Union” will be used as the collective name for the Court of Justice, the General Court and the specialized courts to be established.20 At this point, there is no point in rehashing the discussions about the appropriateness of the outlined reform described above of the Court’s institutional structure as agreed upon by the IGC 2000, for by far not all of the said changes have hitherto been implemented. The actual reform has not yet taken place.

16

Cf. Art. 225 para. 3 subpara. 1 ECT; Art. 358 para. 3 CT. Vesterdorf (note 6), 323. 18 Antonio Tizzano, The Court of Justice in the Draft Treaty Establishing a Constitution for Europe, in: Ninon Colneric/David Edward/Jean-Pierre Puissochet/Damaso Ruiz-Jarabo (eds.), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias, 2003, 44. 19 In the initial version of the Constitutional Treaty it was, according to ex Art. I-28 CT, even to be called “High Court.” 20 Cf. Art. I-29 para. 1 CT. Another noteworthy institutional amendment is the introduction of an electoral panel, which according to Art. III-357 para. 1 CT shall be set up to give an opinion on candidates’ suitability to perform the duties of judge and Advocate General. 17

EU Judicial System after the Constitutional Treaty

671

From the Statute of the ECJ – likewise amended by the Nice Treaty –, it follows that the system of allocation of jurisdiction between the ECJ and the CFI remains in fact largely untouched. For instance, Article 51 ECJ Statute reserves to the Court, in derogation from the rule laid down in Article 225 para. 1 ECT, actions of Member States, Community organs as well as the European Central Bank under Article 230 and 232 ECT, so that the CFI only adjudicates actions of natural and legal persons and civil servants, as it already had done before the Treaty of Nice. For these actions, the ECJ is then the appellate court according to Article 225 para. 1 subpara. 2 ECT. According to Article 245 ECT, the ECJ Statute will remain applicable after inception of the Constitutional Treaty. A new statute is to be enacted according to Article III-381 CT. A conferment of jurisdiction for preliminary rulings to the CFI has not yet occurred. An actual first tangible step towards implementation of reforms is, however, the establishment of an European Union Civil Service Tribunal by Council Decision of 2 November 2004.21 Furthermore, the Commission has presented a proposal to create a similar panel for the Community patent to be established.22 However, only once the previous reforms have been fully implemented can it be ascertained whether the options introduced, aimed at tackling the workload dilemma, will suffice. As indicated before, since the framework will endure over a long period of time, the objective now is to make proper use of the existing options offered by the given provisions to address these most virulent problems of the European judicial system. The type of judicial procedure to be given great attention in this respect is the preliminary ruling procedure.23 This is essentially for two reasons. Preliminary rulings currently account for one half of all procedures, and thus represent one half of the workload of the ECJ. At the same time, the preliminary ruling procedure has been and continues to be of decisive importance in the development of the European legal order, because it is a crucial instrument for the advancement of European law and an important link between Community law and the respective national judicature.24 21

Council Decision 2004/752/EC, Euratom, O.J. 2004 L 333/7. Cf. Proposal for a Council Decision Establishing the Community Patent Court and Concerning Appeals Before the Court of First Instance, COM (2003) 828 final, 23 December 2003. 23 Heffernan (note 8), 914. 24 Tridimas (note 7), 9. 22

672

Ronald Steiling and Alexander Schultz

The question which will prove crucial for the future success, perhaps even the very survival, of the conventional system of preliminary rulings, is whether the General Court to be will finally be entrusted with jurisdictional competencies for hearing and determining certain classes of preliminary rulings.25 This step is necessary to implement the basic approach of the whole judicial reform in tackling the workload problem, under which competences are reallocated in such a way that technical and recurring issues are allotted to lower instances, while those cases which are found to be of major significance in safeguarding the unity and coherence of Community law are branched off to the ECJ. It is widely acknowledged, also with respect to the preliminary rulings procedure, that a considerable portion of the references which reach the ECJ is rather technical in nature, demanding rather large resources for the ruling but not effectively deciding crucial questions of law, therefore not necessarily calling for an ECJ decision.26 In discussions on implementation of this approach to reform, the pressing necessity of changes prompted by the indubitable workload dilemma still faces the problems as to the effects of such reforms on uniformity and coherence of Community law.27 However, worries as to the dangers such a conferment would actually pose to the unity and coherence of Community law appear somewhat exaggerated. Even today, the Court of Justice decides most of its cases in chambers, where inconsistent judicature cannot be fully avoided either.28 Such divergences can be remedied either by a later chamber decision or a decision of the plenary. Besides that, there seems to be no reason not to have confidence in the ability of the General Court to prudently observe the principle of unity and coherence of Community law in its own judicature and to fully attend to its responsibilities under Article III-358 para. 3 subpara. 2 CT, under which it is to identify and refer cases which require a decision of principle likely to affect the unity or consistency of Union law to the Court of Justice for a ruling. Fully recognizing the exclusive role that the principle of unity and coherence of Community law has played and will need to play in future in the unique process of European integration, the following brief reference to a national legal 25 26 27 28

Heffernan (note 8), 915; Vesterdorf (note 6), 319. Vesterdorf (note 6), 314 et seq. Cf. Eeckhout (note 4), 328. Vesterdorf (note 6), 315.

EU Judicial System after the Constitutional Treaty

673

system may be permitted. In Germany, the lower level courts, under the respective procedural codes, are regularly entrusted with discretion to independently refer legal questions of major significance and of importance for the promotion and unity of the law to a higher court level, without this discretion having any dramatic effects as to the consistency of judgments within the respective areas of law.29 Finally, Article III-358 para. 3 subpara. 3 CT also provides for the option of review of preliminary rulings of the General Court where there is a serious risk to the unity or consistency of Union law. In order for this procedure not to reinduce a postponement of decisions, the ECJ should in these cases act under the emergency procedure.30 Whilst it is hence to be hoped that the proverbial leopard will actually change its spots and the CFI finally be bestowed with certain preliminary reference jurisdiction in the foreseeable future, this step entails the question of the proper allocation of incoming cases between the ECJ and the CFI. To sort from the load of cases continuously reaching the Court those which are potentially of greater importance for the coherence and promotion of European law and which therefore have to be decided by the ECJ will legally be a matter of defining the “specific areas” in which the General Court shall have jurisdiction over preliminary rulings under Article III-358 para. 3 subpara. 1 CT. There have been numerous suggestions as to the proper means of allocation, which shall not be reiterated and discussed in detail at this point. In our opinion, however, the definition of specific areas should – as the wording already suggests – be substantive in nature. Allocation methods which preferably resort to structural solutions, such as attaching allocation to the level of the referring national court31 or introducing an a priori screening of all incoming cases for importance,32 do not appear suitable: the former because the origin of a preliminary reference most certainly does not determine the quality of the legal question presented concerning its significance for European law, the latter because such a procedure would itself be time-consuming and would therefore to a large extent 29

Cf., inter alia, Sect. 124 lit. b of the German Procedural Code for Administrative Courts (VwGO). 30 See Declaration on Art. 225, O.J. 2001 C 80/97. 31 John Cooke, European Judicial Architecture: Back to the Drawing Board, The Bar Review, vol. 5, 1999, 18. 32 Cathryn Costello, Preliminary Reference Procedure and the 2000 Intergovernmental Conference, Dublin Law Journal, vol. 21, 1999, 53; Heffernan (note 8), 915.

674

Ronald Steiling and Alexander Schultz

offset the positive effects aimed at by the conferment of jurisdiction in the first place. Notwithstanding the solution the upcoming discussions may spawn as to the correct method of allocation, it must never be forgotten that a Community court system incapable of coping with its workload poses a far greater threat to unity and coherence of Community law than a differing General Court judgment that is perhaps not fully consistent with the opinion or even a previous judgment of the ECJ could ever pose. The effective conferment of preliminary ruling competence to the CFI knows no alternative. C. Effective Judicial Protection of the Individual Whereas the Constitutional Treaty leaves the procedural provisions of most classes of procedures widely unchanged, it has indeed brought a modification to the provisions governing the action for annulment in Article III-365 para. 4 CT. This amendment could prove of great significance, because the Constitutional Treaty thus takes on an issue which has been subject to one of the cardinal disputes within the EU legal system:33 the question of locus standi of individuals and legal persons before the Court in direct actions against Community measures. Permit us first to shortly reiterate the background. The procedure under Article III-365 CT aims at the annulment of a Community legal act. If the Court accedes to the plea for annulment, the contested measure is declared void by judgment which has ex tunc und erga omnes effect.34 However, if the court deems necessary, it may retain parts of the measure. The weighty and as yet unsolved problem of legal protection arises with the question of who shall have standing before the Court, i.e. who shall be entitled to directly challenge measures of the Community by means of this action. Within the associated conditions of admissibility, the right to sue is determined by who files the action: Member States, the European Parliament (only since the Nice Treaty), the Council and Commission have privileged standing, meaning 33

Cf. Francis G. Jacobs, Effective Judicial Protection of Individuals in the European Union, Now and in the Future, in: Andenas/Usher (note 4), 335; Filip Ragolle, Access to Justice for Private Applicants in the Community Legal Order – Recent (R)evolutions, ELR, vol. 28, 2003, 90. 34 See Art. 231 ECT; Art. III-366 CT.

EU Judicial System after the Constitutional Treaty

675

their standing does not depend on further conditions.35 The European Court of Auditors and the European Central Bank may also bring actions against any measure of the Community.36 However, those institutions can only bring claims involving infringements of their inherent rights.37 Natural and legal persons, however, are known as non-privileged applicants and may bring actions (so-called individual actions) exclusively against Decisions,38 where the term “Decision” prima facie comprises Decisions of formal character addressed to the claimant directly. However, Article 230 para. 4 ECT also covers legal measures which – contrary to their formal notation – have the same effect on the claimant as a Decision directed to him as an addressee. At issue here are first Regulations, and second Decisions addressed to third persons. In these cases Article 230 para. 4 ECT postulates that the claimant must be directly and individually affected by these legal measures. A more precise definition of the direct and individual concern is given in the well-known Plaumann formula: Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed.39

This currently strict interpretation of the requirement of individual concern brings about problematic consequences.40 This is true especially for self-executing Community acts of general application, namely Regulations. As the Treaty stipulates their direct effect, Regulations concern any individual encompassed by their ambit. However, because of their abstract character they do not aim at individually designated persons, but, by nature, regularly aim at an undesignated group of persons. This brings about the heavily disputed deficit in legal protection 35

Cf. Art. 230 para. 2 ECT; Art. III-365 para. 2 CT. Cf. Art. 230 para. 3 ECT. Accordingly Art. III-365 para. 3 CT now additionally lists the Committee of the Regions as privileged claimant. See in this connection Holger Brecht, Klagerecht der Regionen nach Art. 230 EGV, Zeitschrift für Europarechtliche Studien, vol. 6, 2003, 135. 37 See Art. 230 para. 3 ECT. 38 See Art. 230 para. 4 ECT. 39 Case 25/62, Plaumann v. Commission, 1963 ECR 95. 40 Anthony Arnull, Private Applicants and the Action for Annulment since Codorniu, CMLR, vol. 38, 2001, 7; Ragolle (note 33), 90. 36

676

Ronald Steiling and Alexander Schultz

of the individual. Natural or legal persons are bound directly by – videlicet also unlawful – Regulations. Yet, because claimants affected by such Regulations are not individual addressees of the act in question, they have no means to defend themselves against such encumbering Regulations before the European Courts by means of direct actions. Although the Court has not shown the same reluctance to construe its jurisdictional competencies rather extensively in other connections,41 it has hitherto not been willing to depart from this strict interpretation in favor of more effective judicial protection of the individual under Community law. However, there have been judicial attempts to expand the notion of individual concern in the past, where a contested Regulation directly stipulated rights and duties of individuals in the form of orders and prohibitions. In a decision of 3 May 200242 the CFI, in an attempt to strengthen legal protection of natural and legal persons, expressed its opinion that the requirements for access of these persons to European court jurisdiction should be loosened: [I]n order to ensure effective judicial protection for individuals, a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him. The number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard.43

The Commission, however, lodged an appeal against this judgment, to which the ECJ acceded by judgment of 1 April 2004.44 In its judgment, the ECJ looked to another decision in this connection in the Unión de Pequenos Agricultores (UPA) case.45 In the UPA judgment of 25 July 2002, the ECJ confirmed its previous judgment on the access of individuals to Community jurisdiction. The UPA judgment contained two significant statements: first, the ECJ stated that 41

A telling example of such extensive interpretation of the Courts competencies is given by its ERT jurisprudence, which may only be brought into line with the Community law system with considerable effort, if at all, see Alexander Schultz, Das Verhältnis von Gemeinschaftsgrundrechten und Grundfreiheiten des EGV, 2005, 137 et seq. 42 CFI, Case T-177/01, Jégo-Quéré v. Commission, 2002 ECR II-2365. 43 Id., 2383, para. 51. 44 Case 263/02 P, Commission v. Jégo-Quéré, Judgment of 1 April 2004, available at: http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en. 45 Cf. Pascal Gilliaux, L’Arrêt Unión de Pequenos Agricultores: Entre Subsidiarité Juridictionnelle et Effective, Cahiers de droit européen, vol. 39, 2003, 177.

EU Judicial System after the Constitutional Treaty

677

it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection,46

second it referred to the role of the Member States as “masters of the treaty:” While it is, admittedly, possible to envisage a system of judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, if necessary, in accordance with Article 48 EU, to reform the system currently in force.47

The former reference to the Member States’ systems of judicial protection seems odd in the light of the Court’s tasks under the Treaty and of fundamental Community principles of judicial protection. The ECJ as the sole and ultimate instance for the interpretation of Community law holds the monopoly of annulment of Community measures according to the principles of unity and consistence of Community law. Actions for annulment are by nature only lodged where the legality of a Community measure is questioned. By pivotal Community law principles, no national court may rule on such an action. Member State courts are hindered by the primacy of Community law and the decision-making monopoly of the ECJ to declare Regulations as inapplicable, let alone to nullify them. As a consequence, the national court is obliged to refer this legal question to the Court for a preliminary ruling, for it can only achieve ECJ review of Regulations by referring a question of compatibility with Community law within the framework of the preliminary ruling procedure, where it is of relevance for the decision in a pending case. The question of how the individual can achieve such a review remains problematic. It is not reasonable for an individual to first transgress regulations in order to achieve their legal review. To pose the question of legality e.g. before a German court, the person affected only has the means of a declaratory action (Feststellungsklage). This action is, however, generally tied to rather narrow conditions of admissibility. Among others, a special legal relationship is generally required between the authority issuing the measure and the person concerned. The individual can therefore only obtain a review of a Community Regulation by means of the declaratory action if the otherwise strict requirements are modified in the light of effective legal protection and in the light of the Members State’s duty to loyalty, such that a legal relationship between the person affected by an order or prohibition and the authority, which is obliged to 46 47

Case 50/00 P, Unión de Pequenos Agricultores, 2002 ECR I-6677, para. 41. Id., para. 45.

678

Ronald Steiling and Alexander Schultz

abide by the regulation, is presumed.48 In practice, the lawyer will in fact have to refer to the ECJ ruling in the UPA case concerning the Member States’ duty to provide for the necessary means of legal protection against encroachments by Community law. Yet, by far not all national courts are prepared to take sincere regard of this jurisprudence and refer cases for a preliminary ruling to a European court, be it for the absence of appropriate judicial systems at Member State level or simply out of reluctance of the particular national court. Taking Germany as an example, an individual has no means of enforcing a preliminary ruling according to Article 234 ECT by a national court. An unlawful omission of making a reference for a preliminary ruling may only be challenged subsequently as an infringement of the fundamental right of access to the court.49 The right to effective judicial protection is defied in these cases. And also in those cases in which the national court actually decides to refer a case for a preliminary ruling, an infringement of the right to effective judicial protection might ensue since the duration of the overall proceeding is increased considerably by the preliminary reference procedure, as explained above.50 Given this unsatisfactory situation, the Convention had the rare opportunity to make use of the option offered by the UPA decision and propose to the “masters of the treaty” an effective solution to the problem in their draft for the Constitutional Treaty. And whilst the Constitution in its Article I-29 para. 1 subpara. 1 first explicitly refers to the duty of the Member States to provide for the necessary legal remedies to guarantee effective legal protection within the scope of application of Community law, by amending Article III-365 para. 4 CT, the Convention indeed appears to have picked up the ball played to the drafters of the Treaty and Constitution by the ECJ in its UPA decision. The third alternative provided by para. 4 prima facie seems to clearly oust the disputed requirement of individual concern from the conditions of admissibility of actions for annulment: Any natural or legal person may, under the same conditions, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures. 48

See Jürgen Gündisch/Sigrid Wienhues, Rechtsschutz in der Europäischen Union, 2003, 111 et seq. 49 Cf. Art. 101 of the German Constitution (Grundgesetz). 50 See, supra, Sect. B.

EU Judicial System after the Constitutional Treaty

679

Contrary to the previous norm of Article 230 para. 4 ECT, individual concern of private claimants is no longer required under this alternative. However, “Regulatory Acts” may not be equated with the present “Regulations” as defined in Article 249 ECT, which was the subject of the above-cited judgment. For those acts presently adopted as Regulations, the Constitution provides for two new legal acts: European Laws and European Regulations. The definitions of these two legal acts essentially differ by the legislative or nonlegislative character of the act. Thus European Laws are defined by Article I-33 para. 1 subpara. 2 CT as legislative acts of general application that shall be binding in their entirety and directly applicable in all Member States. A European Regulation, on the other hand, according to Article I-33 para. 1 subpara. 4 CT, shall be a non-legislative act of general application for the implementation of legislative acts and of certain specific provisions of the Constitution. So, if the non-legislative character of an act is made an essential element of the definition of Regulations, this element can be used as a first criterion of distinction also for the definition of Regulatory Acts. Consequently, a Regulatory Act must be of non-legislative nature, ruling out from its ambit European Laws as well as European Framework Laws.51 For these kinds of legal acts, only the conventional remedies according to the second alternative provided in Article III-365 para. 4 CT are available. In this connection it has been suggested that one reason for the Convention’s reluctance towards radical reform of the locus standi provisions of the annulment action was a common legal tradition under which acts of the legislature must in principle not be contested by the judiciary.52 This is of course particularly true for the French constitutional tradition, but even in Germany such a review is in fact harder to achieve than a review of acts of the executive or judicial branch.53 Thus, if indeed the legislative character of a measure is to be considered a decisive criterion for the contestability of such measures by means of the annulment procedure, this would lead to the interesting implication that the contestability of a Union measure would be made dependent on whether the European Parliament has taken part in the adoption of this act. In that case the 51 Wolfram Cremer, Der Rechtsschutz des Einzelnen gegen Sekundärrechtsakte der Union gem. Art. III-270 Abs. 4 Konventsentwurf des Vertrags über eine Verfassung für Europa, Europäische Grundrechte Zeitschrift (EuGRZ), vol. 31, 2004, 579. 52 Franz C. Mayer, Individualrechtsschutz im Europäischen Verfassungsrecht, Deutsches Verwaltungsblatt, vol. 119, 2004, 606. 53 Cf. the “direct effect requirement” of Art. 93 para. 1 No. 4a Grundgesetz.

680

Ronald Steiling and Alexander Schultz

restriction to non-legislative acts could after all be considered a strengthening of the role of the Parliament as the representative of the people – as the sovereign of not only the national, but also the Community legal system. Applying this criterion of definition for Regulatory Acts – the non-legislative character – to the UPA case, the decision of the ECJ would, under the regime of Article III-365 para. 4 CT, not have been any different then under the applicable provisions. The subject of the UPA case was Council Regulation (EC) No. 1638/98 of 20 July 1998 amending Regulation No. 136/66/EEC of the Council of 22 September 196654 on the establishment of a common organization of the market in oils and fats. Under Article III-231 para. 2 CT, this amending regulation would have had to be adopted as a European Law and would – as a legislative act – therefore not be considered a Regulatory Act.55 Different results, however, follow for the Regulation which was subject of the Jégo Quéré judgments, Regulation 1162/200156, which was adopted based on Council Regulation (EEC) No. 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture57 and which primarily intended to protect juvenile hake by establishing a general increase in the mesh size of towed nets used to catch hake. This second Regulation would now be adopted as a European Regulation and would therefore fall under the third alternative provided in Article III-365 para. 4 CT. As an implementing or executing Regulation adopted only by the Commission without participation of the Parliament, it would be considered a Regulatory Act under the Convention. Judicial protection against this Regulation would hence be available under the third alternative of Article III-365 para. 4 CT. The choice of the notion “Regulatory Act” indicates that the acts under the third alternative in Article III-365 para. 4 CT shall not be confined to “Regulations” as under Article I-33 para. 1 subpara. 4 CT, because otherwise this term would have been employed in the first place. There is, however, only one eligible class of legal acts which may count as Regulatory Acts according to Article III-365 para. 4 CT besides Regulations. The only other class of legal acts which is also of non-legislative and binding nature is the “Decision” under Arti54 Council Regulation (EC) No. 1638/98 of 20 July 1998 amending Regulation No. 136/66/ EEC of 22 September 1966, O.J. 1998 L 210/32. 55 Mayer (note 52), 612. 56 Commission Regulation (EC) No. 1162/2001 of 14 June 2001, O.J. 2001 L 159/4. 57 Council Regulation (EEC) No. 3760/92 of 20 December 1992, O.J. 1992 L 389.

EU Judicial System after the Constitutional Treaty

681

cle I-33 para. 1 subpara. 5 CT. Hence, Regulatory Acts comprise European Regulations and in principle European Decisions. Apart from the wording of Article III-365 para. 4 CT, this can also be derived by systematic argumentation:58 At different places in the Constitution, the decision of whether a certain task should be achieved by adoption of a European Regulation or of a European Decision is principally left to the discretion of the Union’s legislator.59 Were the notion of Regulatory Acts under Article III-365 para. 4 CT limited to European Regulations, the Union’s legislature would be able to decide over the contestability of the adopted measure by individuals, which is certainly not acceptable in terms of effective judicial protection as well as institutional balance.60 This line of reasoning is, however, only true for Decisions of general application, for an alternative to the kind of measure to be adopted can only ensue between European Decisions of general application and European Regulations, which by nature are of general application. Thus, only European Decisions of general application can be regarded as Regulatory Acts. Under Article 33 para. 1 subpara. 5 CT, general application of European Decisions is stipulated to be the normal case.61 It can only be limited to individual application if this is explicitly specified in the Decision. There is also no need to put those Decisions which have been limited to individual application under the term “Regulatory Acts” and thereby under the ambit of the third alternative in Article III-365 para. 4 CT. The contrary viewpoint would render the first two alternatives in Article III-365 para. 4 CT superfluous. These provisions constitute more special norms for judicial protection against individually applicable Decisions. Particularly the second alternative and its explanation as provided by the Plaumann formula appear fully sufficient in terms of effective judicial protection against such kinds of legal acts. Either the claimants are addressees of the contested Decision or they are affected by a Decision addressed to another person in a way which affects specific natural or legal persons by reason of certain attributes peculiar to them, or by reason of a 58

Cremer (note 51), 581. See also Art. I-36 para. 4 CT. 60 Cf. Case C-70/88, European Parliament v. Council (Tchernobyl), 1991 ECR I4529, para. 9. 61 Art. 32 para. 5 CT reads: “A European decision shall be a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.” 59

682

Ronald Steiling and Alexander Schultz

factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.62 In summary, “Regulatory Acts” can thus be defined as all non-legislative acts of general application which are of binding character. When speaking of individual judicial protection, it has to be noted that the Constitutional Treaty does not provide for an action before the ECJ by which the individual can directly invoke his or her rights granted by the newly incorporated Charter of Fundamental Rights. The idea of establishing such a special procedure was explicitly discarded by Workgroup II after a majority of the members expressed reservations about this option.63 In view of the German legal tradition, in which the Verfassungsbeschwerde has played a crucial role in implementing and attaining acceptance of the German constitution, this rightly appears regrettable. However, this decision is a direct consequence of the structural deficiencies of the Union judicial system, and thus leads back to the discussion presented above.64 The ECJ cannot exclusively function as a Constitutional Court as long as its jurisdiction encompasses the entirety of the law of the Union and therewith the enormous amount of secondary law currently in force. An effective fundamental rights procedure open to 500 million potential plaintiffs requires a self-sufficient sub-structural court system, leaving to the Constitutional Court only legal questions of fundamental character. Lastly, no effective relief is provided by the preliminary rulings procedure in this respect. The Fundamental Rights of the Charter can only be of relevance for a pending case before a national court if they are applicable in the national legal system governing the court’s decision. According to Article II-111 para. 1 CT, this, however, is only so where the Member State is implementing Union law.65 Hence, it can be stated that apart from the improvements discussed above regarding acts below the legislative level, judicial protection of Fundamental Rights under the Constitution will also be available only with the restrictions 62

See in particular Plaumann v. Commission (note 39), 107 and Case C-452/98, Nederlandse Antillen v. Council, 2001 ECR I-8973, para. 60. 63 European Convention, Final Report of the Working Group II, Doc. CONV 354/02, 9.15 et seq. 64 See, supra, Sect. B. 65 Cf. Schultz (note 41), 180 et seq.

EU Judicial System after the Constitutional Treaty

683

and deficiencies which exist under the requirements for standing in an annulment action. D. ECJ and ECtHR The relationship of the ECJ to the ECtHR has been subject to legal debate and thorough academic consideration for quite a period of time.66 The essential background for the significance of this inter-jurisdictional relationship is that the European Convention on Human Rights67 (ECHR) is up to now the only comprehensive written fundamental rights text which the EU Member States have declared as legally binding for them,68 inter alia making it a preferred source of Fundamental Rights of the Community.69 The ECtHR, established under the ECHR, is the court whose interpretation of the Human Rights Convention is binding for all EU Member States. And indeed, the ECJ has repeatedly made reference to the ECtHR jurisprudence and directly abided by it.70 Even the possibility of directly binding the EU to the provisions of the Charter has been discussed at several occasions.71 66

See Rick Lawson, Confusion and Conflict? Diverging Interpretations of the ECHR in Strasbourg and Luxembourg, in: Rick Lawson/Matthijs de Bloijs (eds.), Dynamics of the Protection of Human Rights in Europe, 1994, 219 et seq.; Dean Spielman, Human Rights Case Law in the Strasbourg and Luxembourg Courts: Inconsistencies and Complementarities, in: Philip Alston (ed.), The EU and Human Rights, 1999, 757. 67 European Convention for the Protection of Human Rights and Fundamental Freedom, 4 November 1950, ETS No. 5. 68 Ingolf Pernice, Gemeinschaftsverfassung und Grundrechtsschutz – Grundlagen, Bestand und Perspektiven, Neue Juristische Wochenschrift, vol. 43, 1990, 2414. 69 Starting with ECJ Cases 46/87 and 227/88, Hoechst v. Commission, 1989 ECR 2859, para. 18. Recent examples are Case C-74/95, Criminal Proceedings Against X, 1996 ECR I-6609, para. 25; Case C-368/95, Vereinigte Familiapress Zeitungsverlag und Vertriebs GmbH v. Heinrich Bauer Verlag, 1997 ECR 3689, para. 26 (Familapress); Case C-60/92, Otto BV v. Postbank, 1993 ECR I-5683, para. 11. 70 Criminal Proceedings Against X (note 69); Familiapress (note 69); Case 13/94, P/S and Cornwell County Council, 1996 ECR I-2143, para. 16; see also Case 185/95, Baustahlgewebe v. Commission, 1998 ECR I-8417, para. 29. 71 Rudolf Streinz, Europarecht, 6th ed. 2003, para. 361; Ellen Chwolik-Lanfermann, Grundrechtsschutz in der EU, 1994, 63; see for the opposing view: Christine Langenfeld/Andreas Zimmermann, Interdependenzen zwischen Europäischer Menschenrechtskonvention und Europäischem Gemeinschaftsrecht, Zeitschrift für ausländisches und öffentliches Recht, vol. 52, 1992, 304 et seq.; Albert Bleckmann, Bindung der EG an die EMRK, 1986, 86 et seq.

684

Ronald Steiling and Alexander Schultz

On the other hand however, the ECJ has in and by its jurisprudence established a genuine fundamental rights system as part of Community law. It is hindered from unreservedly binding itself to the ECtHR’s jurisprudence by the fundamental principles of unity and coherence of Community law. Another argument in this respect is prompted by the fact that the ECtHR in part also resorts to constitutional provisions of Member States.72 This poses a problem insofar as by far not all signatory states to the ECHR are members of the EC. The Community would thus be bound to legal valuations of third states legal systems.73 Accordingly, there has indeed been jurisprudence of the ECJ in which it (deliberately) deviated from the Strasbourg jurisprudence, a prominent instance being the ECJ judgment in the Hoechst case.74 While the ECtHR continually considers the premises of a company to fall under the ambit of Article 8 ECHR75 the ECJ denied the Hoechst AG this right when adjudicating its complaint against search measures conducted by the Commission in connection with competition procedures. On the other hand, however, the ECJ is bound by another pivotal Community law principle in this respect. The principle of loyalty under Article 5 ECT precludes the ECJ from full disregard of the judgments of the ECtHR. This principle, which today is to be construed as a mutual obligation, is explicitly laid out in Article 5 para. 2 CT as mutually binding on both the Member States and the Union. Thus, the ECJ may – in principle – take no measures the observance of which by EU Member States would mean an infringement of their international law obligations under the Convention.76 Whereas the ECJ is caught in this normative dilemma between the principles of supremacy, unity and coherence of Community law on the one hand and the 72 Cf. ECtHR, Balmer-Schafroth et al. v. Switzerland, Judgment of 26 August 1997, reprinted in: EuGRZ, vol. 26, 1999, 183, 185, para. 34. 73 Dirk Bornemann, Die Bedeutung der Grundrechtsquellen für den Grundrechtsschutz und für Grundrechtskollisionen in der Rechtsprechung des Europäischen Gerichtshofs, 2002, 121. 74 Hoechst v. Commission (note 69), as opposed to ECtHR, Chappell v. the United Kingdom, Judgment of 30 March 1989, Series A, No. 152-A; cf. also Otto BV v. Postbank (note 69) as opposed to ECtHR, Funke v. Frankreich, Judgment of 25 February 1993, Series A, No. 256, 23, para. 44. 75 Cf. Chappell v. the United Kingdom (note 74). 76 For the principle of loyalty as the genuine raison d’etre of the fundamental rights of the Community as general principles of law see Schultz (note 41), 39 et seq.

EU Judicial System after the Constitutional Treaty

685

principle of loyalty on the other, the Convention system contains provisions which may provide a solution. For instance Article 35 para. 2 subpara. b of the Convention provides that the ECtHR shall not deal with any application that is substantially the same as a matter that has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. A final statement has not yet been given by the ECtHR in this respect. But the more recent jurisprudence of the ECtHR seems to support the view that it is not prepared to waive its jurisdiction in the way the Bundesverfassungsgericht did in the Solange-II judgment.77 This is indicated by the Melcher decision, where the Human Rights Commission stated that it would not claim jurisdiction with respect to measures of the European Community as long as a comparable degree of individual rights protection was guaranteed by the Community.78 The ECtHR indeed indicated that a Member State to the Convention may not discharge itself from its obligations under the Treaty by conferring sovereign competencies to a supranational entity.79 Thus, Member States were bound by the fundamental rights of the Convention notwithstanding the fact that they were applying Community law. The Human Rights Court avoided giving a clarifying opinion in its recent decision on an individual application against the fifteen old Member States by which Senator Lines claimed infringement of its rights under Articles 6 and 13 ECHR,80 contesting a fines procedure which had been approved by judgments of the CFI81 and the ECJ.82 Although the parties had referred to the problem in their submissions to the Court, it based inadmissibility on different grounds without alluding to a possible conflict of jurisdiction. Thus, a final decision as 77

Decisions of the Federal Constitutional Court (BVerfGE), vol. 73, 339, English translation in: CMLR, vol. 25, 1988, 201 et seq. 78 Eur. Comm. H.R., Melchers & Co. KG v. Germany, Decision of 9 February 1990, Decisions and Reports, vol. 64, 1990, 138, para. 8; cf. also Eur. Comm. H.R., Matthews v. United Kingdom, Decision of 29 October 1997, reprinted in: EuGRZ, vol. 26, 1999, 207, para. 63. 79 ECtHR, Waite & Kennedy v. Germany, Judgment of 18 February 1999, Reports of Judgments and Decision 1999-I, 393 et seq., especially para. 67. 80 ECtHR, Senator Lines GmbH v. Austria et al., Decision of 10 March 2004, available at: http:/hudoc.echr.coe.int/. 81 Case T-191/98 (R), Senator Lines v. Commission, 1999 ECR II-2531 et seq. 82 Case C-364/99 P (R), Senator Lines v. Commission, 1999 ECR I-8733 et seq.

686

Ronald Steiling and Alexander Schultz

to the Strasbourg Court’s approach on the future relationship with the ECJ has been postponed for the time being. The aloofness of the Court in clarifying the relationship between the two jurisdictions may just have been somewhat deliberate. The Constituent Treaty in its Article 7 para. 2 now stipulates: The Union shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Constitution.

There had been recurrent endeavors in the past aiming at accession of the EU to the ECHR. However, the ECJ, in an opinion of 28 March 1996, had made clear that the applicable EC Treaty does not contain the necessary legal basis and that therefore an amendment of the Treaty would have been needed to implement such an accession.83 While Article 9 para. 2 CT will certainly have to be deemed a sufficient legal basis for the accession of the Union to the Convention system, this step would make the already existing problem of competing jurisdictions of the Luxembourg and Strasbourg courts all the more imminent. While the implementation of such an accession is in principle a thoroughly desirable step towards the establishment of a coherent European Fundamental Rights system, it may not be understood as the conversion of the ECtHR into another Fundamental Rights instance. This would be impossible on the grounds that such an approach would undoubtedly overburden the ECtHR’s institutional capacities, for it is confronted with virulent problems concerning its rising workload as well.84 But what then is the role of the ECtHR in connection with the Fundamental Rights related measures within the European Union after actual accession? Whereas the answer to this question cannot be given in the immediate future, there are two aspects of the Union’s accession to the Convention that can be identified as complicating institutional cooperation of the two courts. The first aspect is the future rank of the Convention norms within the Union legal order. International treaties concluded by the Union take on their own nor83 Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 ECR I-1759, para. 35. 84 Siegbert Alber/Ulrich Widmaier, Die EU-Charta der Grundrechte und ihre Auswirkungen auf die Rechtsprechung, EuGRZ, vol. 27, 2000, 497. Cf. further Tilmann Laubner, Relieving the Court of its Success? Protocol No. 14 to the European Convention on Human Rights, GYIL, vol. 47, 2004, 691.

EU Judicial System after the Constitutional Treaty

687

mative rank in between those of secondary and of primary Union law. This can be derived from the provisions of Articles III-323 para. 2 and III-325 para. 11 CT (Article 300 paras. 6 and 7 ECT), where it is stipulated that on the one hand the institutions of the Union are bound by the international agreement concluded under the respective constitutional provisions and on the other hand that Member States and Union institutions may obtain an opinion by the ECJ as to whether a potential agreement is compatible with the provisions of the Constitution. Within the Union’s legal order, the provisions of the Convention would hence always be of lower rank than those of the Constitution, so that e.g. any primary law provision concerning the Common Market would, by systematical interpretation, be higher-ranked than those of the ECHR. In this respect, another comparison with the German legal system may be expedient. Since the ECHR has been implemented into the national legal order by federal law, provisions of the Convention take the equivalent rank of federal law within the German legal order. Therefore, under strict doctrinal application of the law they must be construed in such a way as to be in compliance with the provisions of the German constitution. The German Constitutional Court (Bundesverfassungsgericht), in a decision of 14 October 2004, accordingly confirmed that [i]n taking into account decisions of the ECHR, the state bodies must include the effects on the national legal system in their application of the law. This applies in particular with regard to a partial system of domestic law whose legal consequences are balanced and that is intended to achieve an equilibrium between differing fundamental rights.85

Whereas effective consideration of the provisions of the Convention is accordingly becoming even more delicate on the part of the ECJ, the options for cooperation on the part of the ECtHR are also diminishing. Corresponding approaches can, after accession, only be based to a limited extent on the abovementioned provisions of Article 35 of the Convention. The domestic remedy rule in para. 1 of this Article, under which applications to the Court are inadmissible as long as the applicant has not exhausted local remedies, would still remain applicable. In the case of the European Union, this pertains to the remedies 85

Decision of 14 Oktober 2004, 2 BvR 1481/04, para. 57, official translation available at: http://www.bverfg.de/entscheidungen/rs20041014_2bvr148104e.html. See also Rainer Hofmann, The German Federal Constitutional Court and Public International Law: New Directions, New Approaches?, GYIL, vol. 47, 2004, 9–38.

688

Ronald Steiling and Alexander Schultz

provided for under the Constitution, and therefore to the – insufficient – system of individual judicial protection as outlined in the preceding chapter. Yet after EU accession, Article 35 para. 2 lit. b of the Convention would be unable to be put to use with respect to the Union or their Member States. When the Union is itself party to and bound by the Convention’s provisions, judgments of one of its organ’s may hardly be considered as procedures of international investigation or settlement according to this Article. The same must be true with regard to the application of this article pertaining to applications of EU Member States nationals. The judiciary of one member of the Convention – here the EU – can logically not be regarded as an external procedure of international investigation or settlement. A possible approach on the part of the ECtHR is provided by Article 53 ECHR, according to which nothing in the “Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms, which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.” This norm may perhaps indeed provide the ECtHR with reasons to take regard of special requirements of the Union legal system and stay consistent with the provisions of the Convention. Yet especially in the light of the latter approach, it becomes at any rate apparent that in a system of intertwined jurisdictions, clear-cut decisions are simply not available. Real cooperation between two “constitutional courts” necessarily demands mutual respect and concessions in the interest of the most effective protection of fundamental rights of the individual.86 E. Extension of Competencies – Jurisdiction over Third Pillar Measures? Another noteworthy aspect of the changes that the Constitutional Treaty brings for the European judicial system concerns possible extensions of the Court’s competencies with regard to measures concerning the common foreign and security policy. From the time of establishment of the European Union and the formation of its three-pillar structure, the measures adopted under the second

86

Cf. Schultz (note 41), 179.

EU Judicial System after the Constitutional Treaty

689

and third pillar provisions of the Treaty on European Union87 (EUT) have only been subject to judicial review under the strict exceptions provided by Article 46 EUT. In principle, this rule, under which the Court does not have jurisdiction with respect to the common foreign and security policy, is also upheld by the Constitutional Treaty in its Article III-376 para. 1.88 In its second paragraph, however, Article III-376 CT now essentially introduces two exceptions to this rule.89 Firstly, the Court shall have “jurisdiction to rule on proceedings, brought in accordance with the conditions laid down in Article III-365 para. 4, reviewing the legality of restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter II of Title V.” Reference is to be made in this connection to Article III-322 CT (Chapter V of Title V), which stipulates that “where a European Decision adopted in accordance with Chapter II so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 [of Article III-322] against natural or legal persons and groups or non-State entities.” The provision of Article III-376 para. 2 CT is in this regard to be highly welcomed in terms of the right to effective judicial protection of the individual. Secondly, the Court is also given jurisdiction to monitor compliance with Article III-308 para. 1 CT, which states that the “implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Articles I-13 to I-15 and I-17 CT.” Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedure and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union compe-

87

The Treaty on European Union, Consolidated Version, 24 December 2002, O.J. 2002 C 325/1. 88 “The Court of Justice of the European Union shall not have jurisdiction with respect to Arts. I-40 and I-41 and the provisions of Chapter II of Title V concerning the common foreign and security policy and Art. 293 insofar as it concerns the common foreign and security policy.” 89 A third way to attain judicial review of foreign and security measures might be to obtain an opinion by the ECJ on the conformity of an international treaty concluded within the framework of the foreign and security policy under the Constitution according to Art. III-325 para. 11 CT. Cf. also Art. 35 EUT.

690

Ronald Steiling and Alexander Schultz

tences in the Chapter on the Common Foreign and Security Policy.90 Here also, Article III-365 CT would be the procedure of choice, by which a privileged applicant could challenge a measure adopted under the foreign policy and security provisions arguing that this measure affected its jurisdiction under the Treaty. Even though it is to be expected that the ECJ will construe and apply these provisions with great diligence and restraint, the absolute exclusion of common foreign and security policy measures from judicial review thus seems to be abandoned by the Constitution. F. Conclusion The challenges to the European Union’s judicial system remain manifold. In fact, all of the questions posed in the above article remain widely unanswered. Will the reforms of the IGC 2000 as endorsed by the Constituent Treaty suffice to prevent the European judiciary from a breakdown in the face of an excessive workload? Are the will and the means within the Union’s judicial system with respect to the effective judicial protection of the individual adequate to meet the standards set by the European Fundamental Rights requirements? Will there be a congruent integrative European system of fundamental rights protection in the time to come? Will future progress in the field of the common foreign and security policy be accompanied by sufficient judicial review mechanisms? Whatever the actual answers to these individual questions will be, they exemplify the great importance of the European judiciary for the process of European integration and recall the need also in future not to lose focus of the state and development of the Union’s judicial system as one of the EU’s powers.

90 See in this respect ECJ Case C-170/96, Commission v. Council, 1998 ECR I-2763, para. 19 et seq. for a case of delimitation of inter-governmental action under the third pillar and competencies of the Community.

Relieving the Court of Its Success? – Protocol No. 14 to the European Convention on Human Rights By Tilmann Laubner On 13 May 2004, the Council of Ministers (CM) of the Council of Europe (CoE) adopted Protocol No. 141 to the Convention for the Protection of Human Rights and Fundamental Freedoms2 and opened it for signature by Member States of the CoE which are parties to the Convention.3 This article provides an overview and an initial evaluation of the Protocol’s main provisions. A. Introduction I. Background

Not long after the entry into force of Protocol No. 11 to the Convention on 1 November 1998,4 first “distress calls” could be heard from amidst the Euro1

Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the Control System of the Convention, 13 May 2004, ETS No. 194 (Protocol No. 14). 2 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (Convention) as amended by Protocol No. 11, 1 November 1998, ETS No. 155 (Protocol No. 11). For an unofficial consolidated version of the Convention as amended by Protocol No. 14 see CoE (Directorate General of Human Rights), Applying and Supervising the ECHR, Guaranteeing the Effectiveness of the European Convention on Human Rights: Collected Texts, 2004, Appendix I, 85. 3 Protocol No. 14 (note 1), Art. 18. 4 See Rudolf Bernhardt, Reform of the Control Machinery under the European Convention on Human Rights, American Journal of International Law, vol. 89, 1995, 145; Iain Cameron, Protocol 11 to the European Convention on Human Rights: The European Court of Human Rights as a Constitutional Court?, Yearbook of European Law, vol. 15, 1995, 219; Andrew Drzemczewski, The European Human Rights Convention: Protocol No. 11 – Entry into Force and First Year of Application, Human Rights Law Journal (HRLJ), vol. 21, 2000, 1.

692

Tilmann Laubner

pean Court of Human Rights (Court).5 Measured by its caseload, the Strasbourg Court, newly set up as a single, full-time institution, already seemed to be on the way to falling victim to its own success.6 More than half of today’s 45 State Parties have acceded to the Convention since 1988 (19 of them between 1989 and November 1998), raising the number of potential applicants before the Court to more than 800 million. Between 1990 and 2000, the number of individual applications brought before the European Commission of Human Rights and the Court had risen by over 500 %.7 In 2003, approximately 38,500 new applications were lodged, more than 60 % of them coming from Eastern and Central European States,8 raising the number of applications pending to approximately 65,000 at the end of that year.9 Clearly, this development had not been anticipated by Protocol No. 11, which originated in proposals first submitted in the 1980s and had been opened for signature in 1994.10 However, it threatens to

5

Cf. President Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights?, HRLJ, vol. 23, 2002, 161, 163. Also see European Court of Human Rights (ECtHR), Broniowski v. Poland, Judgment of 22 June 2004, para. 193, available at: http://hudoc.echr.coe.int/hudoc/; and Herbert Petzold, Epilogue: la réforme continue, in: Paul Mahoney/Franz Matscher/Herbert Petzold/Luzius Wildhaber (eds.), Protecting Human Rights: The European Perspective – Studies in Memory of Rolv Ryssdal, 2000, 1571, 1573. 6 Cf. Céline Husson/Nicolas Riou, Statistiques et projections – L’évolution du nombre de requêtes présentées à Strasbourg: la Cour européenne des droits de l’homme, victime de son succès?, Revue Universelle des Droits de l’Homme (RUDH), vol. 14, 2002, 259; Christian Tomuschat, Quo Vadis Argentatorum? The Success Story of the ECHR – And a Few Dark Stains, HRLJ, vol. 13, 1992, 401. 7 Cf. ECtHR, Survey of Activities 2003, 34, available at: http://echr.coe.int/Eng/ EDocs/2003surveycourt.pdf (Survey). In comparison to these figures, inter-State applications under Art. 33 of the Convention do not contribute significantly to the Court’s workload. 8 Id., 34 et seq. 9 CoE, Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the Control System of the Convention, para. 7, available at: http://conventions.coe.int/Treaty/EN/Reports/Html/194.htm (Explanatory Report). 10 Cf. Statement of President Luzius Wildhaber, quoted in: Ingrid Siess-Scherz, Bestandsaufnahme: Der EGMR nach der Erweiterung des Europarates, Europäische Grundrechte-Zeitschrift (EuGRZ), vol. 30, 2003, 100, 103; Norbert Paul Engel, Status, Ausstattung und Personalhoheit des Inter-Amerikanischen und des Europäischen Gerichtshofs für Menschenrechte, EuGRZ, vol. 30, 2003, 122, 127 et seq.

Protocol No. 14 to the European Convention on Human Rights

693

put the Court in a situation where it will no longer be able to meet the standards it set up itself with respect to the length of proceedings before national courts.11 II. Main Challenges to the Court

Two main factors deserve to be singled out in analyzing the reasons12 for the Court’s excessive caseload.13 First to be named is the huge number of ‘unmeritorious’ applications, i.e. individual applications which do not reach the stage of proceedings on the merits. In 2003, 96 % of all applications dealt with by the Court have either been rejected as inadmissible (93 %) or struck off the Court’s list of cases under Articles 35 and 37 of the Convention.14 Of the applications found to be admissible and decided by judgment of the Court in 2003, some 60 %15 pertained to so-called repetitive or ‘clone’ cases, making this the second most prominent factor for the situation the Court currently faces. The issues raised by such cases are identical or very similar to ones already decided by the Court as they are rooted in specific structural deficits within certain Contracting States.16 Repetitive or ‘clone’ cases may thus be defined as “cases in which the 11

Cf. Patricia Egli, Zur Reform des Rechtsschutzsystems der Europäischen Menschenrechtskonvention, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 64, 2004, 759, 760. On length of proceedings before the Court see Evaluation Group, Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights, 27 September 2001, CoE Doc. EG Court(2001)1, para. 31. 12 For an in-depth analysis, see id., paras. 22 et seq. 13 Cf. Reflection Group on the Reinforcement of the Human Rights Protection Mechanism (CDDH-GDR), Activity Report, 15 June 2001, CoE Doc. CDDH-GDR (2001)010, 4. 14 In absolute numbers: 17,272, as opposed to 753 applications declared admissible, see Survey (note 7), 33–34. 15 Explanatory Report (note 9), para. 7. 16 In this regard see also Resolution (2004)3 of the Committee of Ministers on Judgments Revealing an Underlying Systemic Problem, 12 May 2004, in which the CM invited the Court “to identify in its judgments […] what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments.” As to the implementation of this resolution see Broniowski v. Poland (note 5), paras. 190 et seq.; and ECtHR, Sejdovic v. Italy, Judgment of 10 November 2004, para. 46 and para. 2 of the dispositif, available at: http://hudoc.echr.coe.int/hudoc/. On the former judgment see Marten Breuer, Urteilsfolgen bei strukturellen Problemen – Das erste “Piloturteil” des EGMR, EuGRZ, vol. 31, 2004, 445.

694

Tilmann Laubner

same shortcoming of the domestic situation resulted in further violations of the Convention.”17 III. Process Leading to the Adoption of Protocol No. 14

Alarmed by the Court’s increasing workload, the European Ministerial Conference on Human Rights, held in Rome on 3–4 November 2000 on the occasion of the 50th anniversary of the adoption of the Convention, called on the CM to explore possibilities and options “with a view to ensuring the effectiveness of the Court in the light of this new situation.”18 As a follow up, the Ministers’ Deputies, in February 2001, assigned a prominent “Evaluation Group”19 in order to develop proposals on guaranteeing continued effectiveness of the Court. The Evaluation Group received additional input from a “Reflection Group” set up by the CoE’s Steering Committee on Human Rights (CDDH)20 and submitted its report to the CM in November 2001.21 Subsequently, the CDDH was instructed to further pursue the matter on the basis of the recommendations made by the Evaluation Group and to propose specific measures involving amendment of the Convention.

17

CoE Doc. CDDH-GDR (2003)001, 4, quoted in: Siess-Scherz (note 10), 101, fn. 13; cf. Reflection Group (note 13), Appendix II, para. 16; Evaluation Group (note 11), para. 60(c); CDDH, Interim Report of the CDDH to the Committee of Ministers, Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, 18 October 2002, CoE Doc. CM(2002)146, paras. 67 et seq. (CDDH Interim Report 2002). Other terms used in this regard are “straightforward” (id., para. 74) or “manifestly wellfounded” cases (CDDH, Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, Final Report Containing Proposals of the CDDH, 4 April 2003, CoE Doc. CM(2003)55, Proposal B.1 (CDDH Final Report 2003)). Cases regarding the length of civil proceedings in Italy may be named as a classic example for cases of this category. Further see Wildhaber (note 5), 164. 18 Declaration of the Ministerial Conference, quoted in: CDDH, Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, Final Activity Report, 13 April 2004, CoE Doc. CDDH(2004)004 Final, para. 2. 19 The Group was composed of Justin Harman, Permanent Representative of Ireland to the CoE, Chairman of the Ministers’ Deputies Liaison Committee with the Court (in the Chair), Luzius Wildhaber, President of the Court, and Hans Christian Krüger, Deputy Secretary General of the CoE. 20 Reflection Group (note 13). 21 Evaluation Group (note 11).

Protocol No. 14 to the European Convention on Human Rights

695

The CM set the frame for subsequent reform efforts by defining the following priorities: first, “preventing violations at [the] national level and improving domestic remedies,” second, “optimizing the effectiveness of the filtering and subsequent processing of applications,” and third, “improving and accelerating execution of judgments of the Court.”22 However, it was clear that the substantive rights guaranteed by the Convention and its Protocols should remain untouched. Likewise, the right of individual application, embodied in Article 34 of the Convention, was to be preserved “in its essence” as it lay “at the heart of the Strasbourg machinery.”23 The priorities identified by the CM required reform efforts to be implemented in various fields. Thus, the CDDH’s work, which had been accompanied by various actors in- and outside the CoE institutional framework, not only resulted in the adoption of Protocol No. 14. The CM also adopted a set of non-binding instruments requesting the CoE Member States to take measures at the national level in order to prevent and redress human rights violations by bringing national legislation and administration in conformity with Convention standards as well as by making findings as to violations and, ultimately, remedying those.24 By doing so, the CM took account of the principle of subsidiarity enshrined in Articles 1 and 19 of the

22

CM, Declaration on “The Court of Human Rights for Europe”, 7 November 2002, available at: https://wcm.coe.int/ViewDoc.jsp?id=320197&Lang=en, para. 14. 23 Evaluation Group (note 11), para. 41; cf. CM, Declaration on the Protection of Human Rights in Europe, “Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights”, 8 November 2001, CoE Doc. CM(2001)164, para. 5. 24 CM, Recommendation (2004)4 on the European Convention on Human Rights in University Education and Professional Training, 12 May 2004; Recommendation (2004)5 on the Verification of the Compatibility of Draft Laws, Existing Laws and Administrative Practice with the Standards Laid Down by the European Convention on Human Rights, 12 May 2004; Recommendation (2004)6 on the Improvement of Domestic Remedies, 12 May 2004; Resolution (2004)3 (note 16). See also Recommendation (2000) 2 on the Re-Examination or Reopening of Certain Cases at Domestic Level Following Judgments of the European Court of Human Rights, 19 January 2000; as well as Recommendation (2002)13 on the Publication and Dissemination in the Member States of the Text of the European Convention on Human Rights and of the Case-Law of the European Court of Human Rights, 18 December 2002; Resolution (2002)58 on the Publication and Dissemination of the Case-Law of the European Court of Human Rights, 18 December 2002; and Resolution (2002)59 Concerning the Practice in Respect of Friendly Settlements, 18 December 2002.

696

Tilmann Laubner

Convention, which allots responsibility for the protection of human rights first and foremost to the State Parties.25 Furthermore, the Court itself, already in November 2003, had taken steps on the procedural level by amending its Rules of Court based on the recommendations submitted by an internal working party established in 1999.26 Inter alia, it abolished the so called “warning letters” to those whose applications are likely to be rejected as inadmissible.27 Moreover, it substituted formal decisions on the inadmissibility of applications taken by a three-judge-committee under Article 28 of the Convention by a mere informal letter lacking any further reasoning.28 Finally, the CM for its part increased the Court’s budget for the years 2003 to 2005.29 However, the present article will focus on the measures requiring amendment of the Convention, as these lie at the core of this round of reform. B. Amendments to the Convention “Considering the urgent need to amend certain provisions of the Convention in order to maintain and improve the efficiency of the control system for the 25 Generally, see Herbert Petzold, The Convention and the Principle of Subsidiarity, in: Ronald St. J. Macdonald/Franz Matscher/Herbert Petzold (eds.), The European System for the Protection of Human Rights, 1993, 63. 26 CoE, Three Years’ Work for the Future: Final Report of the Working Party on Working Methods of the European Court of Human Rights, 2002 (Working Party Final Report); Rules of Court, as of November 2003, available at: http://echr.coe.int/Eng/ BasicTexts.htm. 27 Critical in this regard Christoph Grabenwarter, Zur Zukunft des Europäischen Gerichtshofs für Menschenrechte, EuGRZ, vol. 30, 2003, 174, 175 et seq. Also see SiessScherz (note 10), 104. 28 Rules of Court (note 27), Art. 53 para. 2. As to the wording of such a letter see Working Party Final Report (note 26), 85 et seq., reprinted also in: EuGRZ, vol. 30, 2003, 180. It seems difficult, however, to reconcile such practice with Art. 45 para. 1 of the Convention. Critically in this regard and further on the measures taken by the Court, see Siess-Scherz (note 10), 103 et seq.; and Brigitte L. Ohms, Bewertung des Diskussionsstands über die Entlastung des Europäischen Gerichtshofes für Menschenrechte, EuGRZ, vol. 30, 2003, 141, 145 et seq. 29 See Jeroen Schokkenbroek, Überblick über die Arbeit des Europarates betreffend die Reform des Gerichtshofes, EuGRZ, vol. 30, 2003, 134, 135 et seq.

Protocol No. 14 to the European Convention on Human Rights

697

long term,”30 Protocol No. 14 contains a number of changes pertaining to the individual application procedure before the Court as well as to the stage of the execution of judgments. It lies in the very nature of a drafting process that not all proposals that were made have found their way into the final text. Nonetheless, having a glance at some of the suggestions that have not been sustained may provide useful guidance in analyzing those that were more successful. Among the proposals of a more general character that were rejected at an early stage was the idea of ‘regional courts of first instance.’31 It was feared that their establishment would bear the risk of diverging standards and case-law along with associated high costs.32 The same fate ultimately awaited the proposition to introduce a procedure of preliminary rulings at the request of national courts comparable to that before the European Court of Justice under Article 234 of the EC Treaty.33 At least in the short term, this proposal was deemed to result in additional rather than less work for the Court as was also believed for an expansion of the Court’s competence to give advisory opinions under Articles 47 to 49 of the Convention.34 I. Filtering of Applications

“Optimizing the effectiveness of the filtering […] of applications,” was one of the priorities identified by the CM. Currently, an application upon receipt will be preprocessed by the Registry before the President of one of the four Sec30

Protocol No. 14 (note 1), preambular para. 5. For a more detailed discussion on this subject, see Jiry Malenovsky, Faut-il révolutionner le système actuel? Pour et contre l’institution de cours régionales, RUDH, vol. 14, 2002, 303. 32 Explanatory Report (note 9), para. 34; Evaluation Group (note 11), para. 83; Reflection Group (note 13), para. 39; cf. CDDH Interim Report 2002 (note 17), para. 21. 33 On this matter see Dominique Ritleng, La réforme de la CJCE, modèle pour une réforme de la Cour européenne des droits de l’homme?, RUDH, vol. 14, 2002, 288, 292 et seq.; Florence Benoît-Rohmer, Les perspectives de réformes à long terme de la Cour européenne des droits de l’homme: certiorari versus renvoi préjudiciel, RUDH, vol. 14, 2002, 313. Consolidated Version of the Treaty Establishing the European Community, 24 December 2002, O.J. C 325/33 (EC Treaty). 34 Explanatory Report (note 9), para. 34; cf. Evaluation Group (note 11), para. 84; CDDH Interim Report 2002 (note 17), para. 14; Amnesty International et al., Joint Response to Proposals to Ensure the Future Effectiveness of the European Court of Human Rights, AI Index IOR 61/008/2003, para. 14. 31

698

Tilmann Laubner

tions of the Court will nominate a member of the Section to function as judgerapporteur. The latter will examine and prepare the case and will then – depending on the complexity of the case – seize one of the Court’s committees of three judges or one of the Chambers consisting of seven judges. To this panel, he or she will submit a proposal as to the further proceedings. When faced with the task of reducing a court’s workload and increasing its capacities to filter out ‘unmeritorious’ applications, the natural reaction would be to increase the personnel involved. And indeed, Draft Protocol No. 14 as adopted by the CDDH in April 2004 authorized the CM to modify the number of judges upon request of the plenary Court.35 This option was eliminated from the final text only upon last minute intervention by the CoE’s Parliamentary Assembly (PA), which was concerned about inequalities between the State Parties if additional judges were to be appointed in respect of only some of them.36 1. Single-Judge Formation However, Protocol No. 14 as finally adopted nevertheless increases the number of units involved in filtering out ‘unmeritorious’ applications. This is done mainly by reducing the number of actors working on a single case during the admissibility stage: Article 26 as revised by Protocol No. 14 will allow the Court to not only sit in committees of three, Chambers of seven and a Grand Chamber of seventeen judges, but also in single-judge formation.37 The competence of single judges will largely equate that of three-judge-committees under the current Article 28 of the Convention. Thus, according to revised Article 27, he or she may – by means of a final decision – declare inadmissible or strike out of the Court’s list an application “where such a decision can be taken without 35

Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by the CDDH, 5–8 April 2004, Art. 1, CoE Doc. CDDH(2004)004 Final, Addendum I. Under this the Court was supposed to indicate both the number of additional judges as well as the State Parties in respect of which they were to be elected. 36 PA, Opinion No. 251 on Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, 18 April 2004, para. 7 (PA Opinion No. 251). Also see Grabenwarter (note 27), 175. As to proposals for stand-by judges see Evaluation Group (note 11), para. 87; CDDH Interim Report 2002 (note 17), 8, para. 19. 37 Protocol No. 14 (note 1), Art. 6.

Protocol No. 14 to the European Convention on Human Rights

699

further examination,”38 i.e. in, as the official Explanatory Report puts it, “clearcut cases,” where the application’s inadmissibility is “manifest from the outset.”39 Applications not fulfilling these prerequisites shall be referred to either a committee or a Chamber. However, judges may not sit as single judge in cases to which their State party is the respondent party. The single-judge arrangement has been subject to critique especially by several NGOs.40 Indeed, the final character of any such inadmissibility decision – which previously could only be effected by unanimous decision of three judges – combined with the vagueness of the supposedly restricting criterion and that of the new admissibility provision introduced by Protocol No. 14,41 warrant special scrutiny as regards the Court’s future practice. The filtering capacities released by introducing the single-judge formation will have to make up for the loss of confidence applicants so far could have in collegial decisions derived from different judicial and national perspectives. Whether this will be the case remains to be seen, given the fact that most of the work in filtering applications currently is done by the registry rather than the judges.42 2. ‘Rapporteurs’ In addition to the single-judge formation, Protocol No. 14 seeks to enhance the Court’s filtering capabilities by introducing a new category of personnel called ‘rapporteurs.’43 They will replace the legal secretaries introduced by Protocol No. 11 under current Article 25 of the Convention. The purpose of the rapporteurs will be to assist the single judges. As their designation suggests, they will not only do the preparatory “pre-judicial” work of registry case-lawyers but will also relieve the judges sitting as single judges of their 38

Protocol No. 14 (note 1), Art. 7. Explanatory Report (note 9), para. 67. 40 Amnesty International et al. (note 34), para. 7; Amnesty International, Comments on the Interim Activity Report: Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, AI Index IOR 61/005/2004, para. 44. 41 See, infra, Sect. B. III. 42 CDDH Interim Report 2002 (note 17), paras. 25, 27. Also see ECtHR, Response of the European Court of Human Rights to the CDDH Interim Activity Report Prepared Following the 46th Plenary Administrative Session, 2 February 2004, CoE Doc. CDDHGDR(2004)001, para. 5, note 2 (ECtHR Response). 43 Art. 24 para. 2 of the Convention as revised by Protocol No. 14 (note 1), Art. 4. 39

700

Tilmann Laubner

rapporteur functions. These currently form the most labor-intensive part of the judges’ filtering work. Thus, rapporteurs will provide a first legal analysis of the case-file and draft a rapporteur’s note which will be submitted directly to the single judge for decision.44 Ideally, judges should be assisted by rapporteurs with knowledge of the language and legal system of the respective respondent party. The institution of ‘rapporteurs’ is a remnant of the protracted debate on the question whether a special filtering unit should be established in Strasbourg. While a return to a two-tier system as had existed before Protocol No. 11 entered into force was not only considered too expensive but, above all, politically unacceptable,45 the Court itself throughout the drafting process strongly advocated the creation of a separate filtering body within the structure of the Court.46 Such division was thought to be composed of “assessors” forming a second category of personnel vested with judicial powers, apart from the elected judges.47 However, such a proposal was viewed very critically from the beginning by the CDDH as well as by external observers – and rightly so: It would have posed serious questions as to the legitimacy of (in-)admissibility decisions and, furthermore, would have run counter to the objective of Protocol No. 11 to render the Convention’s control system in general and the individual application procedure in particular fully judicial and to have decisions taken by a single body composed of elected judges.48 Furnishing non-judicial personnel with rapporteur functions might be questionable enough, bearing in mind the influence rapporteur’s notes currently have on actual admissibility decisions of the Court and viewed against the background provided by the new single-judge formation. In this regard it shall only be noted here that the rapporteurs will “function under the authority of the President of the Court” but at the same time will “form part of the Court’s registry.”49

44

Explanatory Report (note 9), paras. 58, 62; ECtHR Response (note 42), para. 9. Cf. Reflection Group (note 13), para. 40; CDDH Interim Report 2002 (note 17), 2. 46 ECtHR Response (note 42), para. 7; cf. Evaluation Group (note 11), para. 98. 47 Evaluation Group (note 11), para. 98; cf. ECtHR Response (note 42), para. 7. On further variants see Ohms (note 28), 146. 48 Cf. CDDH Interim Report 2002 (note 17), paras. 23 et seq.; Amnesty International et al. (note 34), para. 7. 49 Art. 24 para. 2 of the Convention as revised by Protocol No. 14 (note 1), Art. 4. 45

Protocol No. 14 to the European Convention on Human Rights

701

The latter is “provided by the Secretary General of the CoE,”50 a fact which has occasionally given rise to critical observations.51 II. Subsequent Processing of Applications

1. The Exception Becomes the Rule: Joint Decisions on the Admissibility and Merits of Individual Applications Current Article 29 para. 3 of the Convention generally requires decisions on the admissibility of an individual application to be taken separately from the judgment on the merits. Only in exceptional cases may the Court decide otherwise.52 Under Article 29 para. 1 of the Convention as revised by Article 9 of Protocol No. 14, the current exception will become the rule: In Chamber proceedings on individual applications, “[t]he decision on admissibility may be taken separately.”53 However, this amendment will (merely) “legalize” and adapt the Convention to an actual practice that recently has developed in the Court under Rule 54A (1) of the Rules of Court, particularly with regard to cases on length of proceedings and other subjects of established case-law of the Court.54 Bearing in mind that according to Article 45 of the Convention, admis50

CoE, Explanatory Report on Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established thereby, para. 66, available at: http://conventions.coe.int/Treaty/en/Reports/ Html/155.htm (Explanatory Report on Protocol No. 11 ). 51 Engel (note 10), 132 et seq.; Grabenwarter (note 27), 175. Engel has been countered by Deputy Secretary General of the CoE Maud de Boer-Buquicchio, Klarstellung zum Status des Europäischen Gerichtshofs für Menschenrechte und seiner Beziehungen zum Europarat, EuGRZ, vol. 30, 2003, 561 et seq. On the whole issue see Paul Mahoney, Separation of Powers in the Council of Europe: The Status of the European Court of Human Rights vis-à-vis the Authorities of the Council of Europe, HRLJ, vol. 24, 2003, 152. 52 According to the Explanatory Report on Protocol No. 11 (note 50), para. 78, “[t]he separate decision on admissibility is important for the parties when considering whether they should start friendly settlement negotiations.” On amendments to the friendly settlement procedure see, infra, Sect. B. II. 3. 53 As to proceedings before committees of the Court see, infra, Sect. B. II. 2. The principle of the taking of separate decisions by Chambers will be upheld with respect to the admissibility and merits of inter-State applications, see Art. 29 para. 2 of the Convention as revised by Protocol No. 14 (note 1), Art. 9. 54 Cf. Explanatory Report (note 9), para. 73; Siess-Scherz (note 10), 105. Also see, infra, Sect. B. II. 2.

702

Tilmann Laubner

sibility decisions must be reasoned, omitting the stage of separate admissibility decisions appears useful in order to expedite and streamline the individual applications procedure considerably.55 2. Simplified Procedure for “Manifestly Well-Founded Applications” In order to gain control in particular over the large number of repetitive or ‘clone’ cases, Protocol No. 14 will “supplement existing procedures for manifestly ill-founded applications with a simplified procedure for manifestly wellfounded applications.”56 To this end, amended Article 28 para. 1 lit. b of the Convention will empower committees of the Court to declare [an individual application] admissible and render at the same time a judgment on the merits, if the underlying question in the case concerning the interpretation or the application of the Convention or the Protocols thereto is already the subject of well-established case-law of the Court.57

Consequently, the competence to deliver decisions on the merits will no longer be reserved to the Court’s Chambers consisting of seven judges, but will be extended to its committees of three judges. Under current Article 28 of the Convention, committees are confined to inadmissibility decisions in clear-cut cases. A further integral part of the new simplified procedure is the principle of joint decisions on the admissibility and merits of individual applications, which has already been referred to above. These amendments promise to reduce both the time and the judicial capacity invested in a single repetitive or ‘clone’ case.58 Joining a number of similar cases for decision might even add further to these positive effects.59 The Court’s competence to resort to the new simplified procedure will depend on whether the questions underlying the case are “subject of well55

Cf. Egli (note 11), 782; Grabenwarter (note 27), 177. CDDH Final Report 2003 (note 17), Proposal B.1. 57 Art. 28 para. 1 lit. b of the Convention as amended by Protocol No. 14 (note 1), Art. 8. As to the parallels with proceedings before the German Constitutional Court under Sect. 93 lit. c of the German Law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz), see Klaus Stoltenberg, Neuere Vorschläge zur Reform des EGMR aus dem Kreis der Mitgliedstaaten, EuGRZ, vol. 30, 2003, 139, 140. 58 Also see CDDH Final Report 2003 (note 17), Proposal B.1. 59 Ohms (note 28), 147. 56

Protocol No. 14 to the European Convention on Human Rights

703

established case-law.”60 According to the official Explanatory Report, this will normally refer to case-law which has consistently been applied by a Chamber but in exceptional cases may also relate to a single decision on a question of principle, particularly if rendered by the Grand Chamber.61 Committee decisions under new Article 28 para. 1 lit. b of the Convention must be taken by unanimous vote62 and will be final. Due to the nature of the cases, they would not qualify for referral to the Grand Chamber under Article 43 of the Convention anyhow. Two aspects are worth mentioning with regard to the position of the respondent State under the new procedure. Firstly, the respondent State may well challenge the applicability of the new procedure, but may not veto it.63 Secondly, the new procedure, as a “by-product” of entrusting decisions on the merits to committees, will deviate from the principle of mandatory participation in all decisions on the merits by the judge elected with respect to the respondent State. This principle will continue to apply only to Chamber and Grand Chamber proceedings.64 Instead, new Article 28 para. 3 of the Convention will provide the committees with the possibility to invite the ‘national’ judge of the respondent State, if not a regular member of the committee already, to replace one of its members at any stage of the proceedings “having regard to all relevant factors, including whether that Party has contested the application of the [summary] procedure.”65 As has already been stated, the new simplified procedure promises to release time as well as capacities and thus to significantly reduce the workload of the judges of the Court. The registry of the Court has estimated that it could affect 60

Cf., supra, Sect. B. II. 1. Explanatory Report (note 9), para. 68. 62 Unanimity will be required on each aspect of the decision. Otherwise the Chamber procedure under Art. 29 of the Convention will apply; see id., para. 69. 63 Id. 64 Current Art. 27 para. 2 in combination with Arts. 29 et seq. of the Convention. 65 This latter provision has raised some concerns of being both detrimental to the Court’s outside appearance of independence, and unnecessary considering the special nature of the cases concerned, see Amnesty International (note 40), paras. 22 et seq.; cf. PA, Committee on Legal Affairs and Human Rights, Report on Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, Explanatory Memorandum, 23 April 2004, CoE Doc. 10147, para. 36, which voiced concerns about the State Party being given “too prominent a place.” 61

704

Tilmann Laubner

more than 50 % of the cases currently dealt with by a Chamber.66 However, it remains to be hoped that the State Parties will not thwart this potential by unreasonably challenging the procedure’s applicability. In the context of releasing judicial capacities, note should also be taken of the CM’s authority under new Article 26 para. 2 of the Convention to reduce by unanimous decision and for a fixed period the number of judges of the Chambers from seven to five if so requested by the plenary Court.67 3. Friendly Settlements The benefit of the friendly settlement procedure under the Convention is not undoubted.68 However, during the drafting process leading to the adoption of Protocol No. 14, a recently increasing practice was noted of resolving cases before the Court by means of friendly settlement between the individual complainant and the respondent State, particularly in the context of repetitive cases and other cases where questions of principle or changes in domestic law are not involved.69 Protocol No. 14 thus seeks to facilitate the conclusion of friendly settlements in several ways. In a first step, the relevant procedure will be merged into a single consolidated provision (new Article 39 of the Convention). Second, the Court’s obligation to place itself at the disposal of the parties as a mediator will no longer be restricted to the post-admissibility stage but will extend to any stage of the proceedings. Such adaptation will become necessary as the imple-

66

However, for the sake of completeness, it has also projected that the procedure would not significantly alleviate the workload currently weighing on the registry, see CDDH Final Report 2003 (note 17), Proposal B.1. 67 See Protocol No. 14 (note 1), Art. 6; and Explanatory Report (note 9), para. 63. 68 E.g., Vincent Berger, Le règlement amiable devant la Cour européenne des Droits de l’Homme, in: Franz Matscher/Herbert Petzold (eds.), Protecting Human Rights: The European Dimension – Studies in Honour of Gérard J. Wiarda, 1988, 55, 59. 69 Explanatory Report (note 9), para. 93; CM, Resolution (2002)59 Concerning the Practice in Respect of Friendly Settlements, 18 December 2002; cf. Evaluation Group (note 11), para. 62. Also see Explanatory Report on Protocol No. 11 (note 50), para. 94; and Ohms (note 28), 147.

Protocol No. 14 to the European Convention on Human Rights

705

mentation of new Articles 28 and 29 of the Convention most likely will lead to far fewer separate admissibility decisions which currently trigger the friendly settlement procedure.70 Third, future Article 39 para. 4 of the Convention will expressly subject friendly settlement agreements to the supervision of the CM. Recently, the Court had adopted a practice of endorsing friendly settlements through judgments instead of decisions in order to render Article 46 para. 2 of the Convention applicable. This practice not only runs counter the current wording of Article 39, but has also been recognized as hampering friendly settlements due to the negative connotations a formal judgment of the Court often has for respondent States.71 While it is to be hoped that a strengthened friendly settlement procedure will reduce the Court’s workload, it must of course also be ensured that it does not work to the applicant’s disadvantage.72 III. Introduction of a New Admissibility Criterion

Throughout the drafting process, no other issue has generated as much debate as has the new admissibility criterion to be inserted into new Article 35 para. 3 lit. b of the Convention.73 It received opposition from almost all sides including members of the CDDH itself,74 the Court,75 the PA,76 State Parties77 and NGOs.78

70

CDDH Final Report 2003 (note 17), Proposal B. 3; Explanatory Report (note 9), para. 92. 71 Explanatory Report (note 9), para. 94; cf. Ohms (note 28), 147. 72 Cf. Committee on Legal Affairs and Human Rights (note 65), para. 52. 73 See Protocol No. 14 (note 1), Art. 12. 74 Cf. CDDH Final Report 2003 (note 17), Proposal B. 4, fn. 2. 75 ECtHR Response (note 42), para. 24, note 5. 76 PA Opinion No. 251 (note 36), para. 11; cf. CDDH, Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, Interim Activity Report, 26 November 2003, CoE Doc. CDDH(2003)026 Addendum I Final, para. 26 (CDDH Interim Activity Report 2003). 77 Cf. CDDH Interim Activity Report 2003 (note 76), para. 33. 78 Amnesty International et al. (note 34), paras. 8 et seq.; Amnesty International (note 40), paras. 33 et seq.; cf. CDDH Final Report 2003 (note 17), Proposal B. 4, fn. 2.

706

Tilmann Laubner

According to the provision finally adopted, the Court shall declare inadmissible an individual application if it considers that the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

“[T]he Court’s ‘productivity’ cannot be increased ad infinitum if the quality of its judgments is to be maintained.”79 Based on this assessment the Evaluation Group concluded that the Court’s workload should be reduced “by modulating the treatment afforded to applications and reserving full judicial treatment for applications that warrant it.”80 In order to exclude cases of “minor or secondary importance,” the panel proposed to raise the admissibility threshold for individual applications by inserting in the Convention a provision “that would, in essence, empower the Court to decline to examine in detail applications which raise no substantial issue under the Convention.”81 This proposal of the Evaluation Group points to the “fundamental dichotomy”82 underlying the Convention’s human rights system. By giving paramount priority to the objective relevance of an application, i.e. its importance beyond the individual case, the Evaluation Group appears to have adopted the view which primarily assigns to the Court functions of “quasi-constitutional justice.” Individual applications, according to this view, mainly if not solely, serve as a means of disclosing and remedying grievances at the national level. Individual applications, thus, merely give reason to answer overarching legal questions of fundamental character and so, ultimately, raise the general standard of human

79

Evaluation Group (note 11), para. 90. Id. (emphasis added). In this context, the Evaluation Group aptly considered that granting the Court unfettered discretion as to which applications are accepted for examination comparable to that enjoyed by the US Supreme Court under the writ of certiorari procedure (see Elisabeth Zoller, Avantages et inconvénients du système américain du writ of certiorari, RUDH, vol. 14, 2002, 278 et seq.) would be inappropriate for the Strasbourg system as the Court does not stand at the top of a homogenous judicial hierarchy and would be exposed to charges of non-transparency and inconsistency, Evaluation Group (note 11), para. 91. Also see Reflection Group (note 13), Appendix II, paras. 9 et seq.; and Christian Tomuschat, Individueller Rechtsschutz: Das Herzstück des “ordre public européen” nach der Europäischen Menschenrechtskonvention, EuGRZ, vol. 30, 2003, 95, 99. 81 Evaluation Group (note 11), para. 93 (emphasis added). 82 Cf. Wildhaber (note 5), 162. 80

Protocol No. 14 to the European Convention on Human Rights

707

rights protection in Europe and establish an European “ordre public.”83 The opposite view gives priority to “individual justice,” i.e. providing legal protection and subjective relief to the individual applicant in order to enforce his or her human rights guaranteed under international law by means of a judicial procedure outside and ‘above’ his or her State.84 The CDDH, for its part, did not take sides in this dispute, but considered both functions as legitimate functions of the Court, none of which excluded the other.85 Accordingly, while in principle retaining the idea of raising the admissibility threshold for individual applications, the committee rejected the formula developed by the Evaluation Group as going too far.86 An additional competence of the Court to decline applications as inadmissible should be based on objective criteria taking into account both the general interests, i.e. the objective “value” of an application, such as its importance for the interpretation and application of the Convention, as well as the perspective of the individual applicant.87 Decisive impetus for the provision finally adopted came from a proposal submitted by Switzerland and Germany.88 In fact, future Article 35 para. 3 lit. b of the Convention will comprise a combination of subjective and objective criteria.89 As had been proposed by the Evaluation Group, the principle of de minimis non curat praetor will be introduced. Contrary to the ideas of that panel, however, it will not apply to the ob83 Cf., e.g., id., 162 et seq. Further on the ‘constitutional issue’ see Evert Albert Alkema, The European Convention as a Constitution and its Court as a Constitutional Court, in: Mahoney/Matscher/Petzold/Wildhaber (note 5), 41. 84 Cf., e.g., Tomuschat (note 80), 97 et seq. 85 CDDH Final Report 2003 (note 17), para. 11. 86 It also rejected the Evaluation Group’s proposal ((note 11), para. 96) to compensate for any restriction on the right of individual application through a system whereby cases rejected by the Court would be referred back to the courts and authorities of the respondent State for new decision, see CDDH Interim Report 2002 (note 17), para. 17; CDDH Final Report 2003 (note 17), para. 14. 87 CDDH Final Report 2003 (note 17), para. 15. 88 According to this proposal, an application ought to be inadmissible “if the applicant has not suffered a significant disadvantage and if the case raises neither a serious question affecting the interpretation or application of the Convention or the protocols thereto, nor a serious issue of general importance,” cf. id., Proposal B. 4. For more on the proposal, see Stoltenberg (note 57), 140 et seq. 89 On comparisons with Sect. 93a para. 2 German Law on the Federal Constitutional Court, see Stoltenberg (note 57), 140 et seq.; Grabenwarter (note 27), 176.

708

Tilmann Laubner

jective importance of an individual application but to the subjective gravamen sustained by the applicant (“significant disadvantage”) which consequently will be the starting point for the Court in examining the admissibility of an application under the new provision. The “objective value” of an application circumscribed by a formula taken from current Article 37 para. 1 of the Convention will serve as the first of two restrictions imposed on the Court’s competence of rejecting applications where the applicant has not suffered a “significant disadvantage.” The second safeguard clause shall prevent the Court from declining such applications if they have not been duly considered by a domestic tribunal. However, there are, as a matter of fact, some issues arising with regard to the new admissibility criterion that need to be addressed by the future practice of the Court at the latest. First is the considerable vagueness of the requirement of a “significant disadvantage” on the part of the applicant. In order to prevent decisions applying the new criterion from degrading into pure value judgments, it is imperative that objective and plausible criteria be evolved, a need that has been recognized.90 Hence, the Court will face the challenge of carefully developing criteria which are equally applicable to cases from all 45 State Parties to the Convention featuring fundamentally different, e.g. economic, circumstances.91 This task will require increased efforts as regards reasoning on the admissibility of applications.92 At least in the short-term perspective, this appears difficult to reconcile with the Protocol’s overall objective of reducing the Court’s workload.93

90

Explanatory Report (note 9), para. 80. It should be noted that according to Protocol No. 14 (note 1), Art. 20 para. 2, single-judge formations and committees will be prevented from applying the new criterion during a period of two years following the entry into force of Protocol No. 14. 91 E.g. civil proceedings involving an equivalent of 500 will affect applicants from Albania much differently than applicants from Germany. Putting a premium on financial disadvantages per se might even have the effect – albeit unintended – of discriminating against female applicants, a concern voiced by PA Opinion No. 251 (note 36), para. 11. Also see Alkema (note 83), 58. 92 This of course would require reintroduction of reasoned (in-)admissibility decisions where they have been abolished. Hereto see, supra, note 28. 93 According to the Explanatory Report (note 9), para. 79, however, it is expected that the new criterion “will be easier for the Court to apply” than some other (narrower!) admissibility criteria. Whether this, if accepted, would qualify as a value by itself is yet another question.

Protocol No. 14 to the European Convention on Human Rights

709

Secondly, the relationship between the requirement of a “significant disadvantage” and Article 34 of the Convention requiring the applicant to be the “victim” of a violation needs to be clarified. The Court traditionally has interpreted the latter requirement rather favorably for the applicant, not demanding any damage on his or her part.94 It has plausibly been suggested that if the Court had seen a need for a de minimis-criterion as regards the applicant’s gravamen in the past, Article 34 would have offered an opportunity to consider this aspect.95 Thus, the new provision’s necessity may be called into question. Questions also arise as to the second safeguard clause, requiring that cases to be rejected on the grounds of the applicant not having suffered a “significant disadvantage” must have been “duly considered by a domestic tribunal.” Emphasizing the principle of subsidiarity, this condition has been included in order to avoid the new admissibility criterion from misconception by State Parties as allowing them to disregard certain minor violations of the Convention.96 However, from a systematic point of view, again the relationship to existing admissibility criteria – here (effective) domestic remedies under Article 35 para. 1 of the Convention – appears somewhat unclear. But more importantly, the question once more arises whether such provision will not be likely to thwart the overall objective of Protocol No. 14 by adding to the Court’s workload instead of reducing it. For any finding as to whether a case in fact has been “duly considered by a domestic tribunal” would require the Court to examine in detail the proceedings on the national level and thus might call for a decision on aspects belonging to the merits at the admissibility stage.97 On the whole, raising the admissibility threshold will render applications inadmissible which under the current state of the law would not only be admissible but also well-founded on the merits. It will thus in essence curtail the right of individual application under Article 34 of the Convention. The question arises whether such curtailment of the right which “lies at the heart of the Stras-

94

Cf. Jochen A. Frowein/Wolfgang Peukert, Europäische Menschenrechtskonvention, 2nd ed. 1996, Art. 25, mn. 20; Ohms (note 28), 148. 95 Ohms (note 28), 148. 96 CDDH Interim Activity Report 2003 (note 76), paras. 34 et seq.; cf. ECtHR Response (note 42), para. 18. 97 Cf. Amnesty International (note 40), para. 37.

710

Tilmann Laubner

bourg system”98 is compensated by an adequate gain elsewhere, i.e. whether it is proportionate. It could be argued that the curtailment effected by the new admissibility criterion will not question the right of individual application as such as it is projected to affect only some 5 % of currently admissible cases.99 However, it appears that such figures point rather in another direction. Less than 10 % of all applications being lodged with the Court reach the admissibility stage. A reduction of these cases by 5 % certainly would not qualify as a significant effect on the Court’s workload. Moreover, the new admissibility provision will not address at all the two categories of cases that have been identified as the main challenges to the Court. It will neither affect the vast number of cases that already now are inadmissible nor will it specifically affect repetitive or ‘clone cases.’ Like any other case, the Court would only be able to reject one of these “manifestly well-founded” applications if the applicant has not suffered a “significant disadvantage.”100 Considering, furthermore, the new provision’s inherent potential to create new work for the Court, it at least seems highly questionable whether it is suitable at all to serve the overall purpose of Protocol No. 14. Questions as to whether the new criterion is necessary have been dealt with above. Finally, even if one were to accept that the immediate curtailment of the right of individual application will not be dramatic as regards numbers of current cases, these figures do not necessarily reveal the whole impact of the new admissibility criterion on the human rights situation in Europe. Rather, any curtailment of the right of individual application must be presumed to send a signal that despite all safe-guard clauses might be misconceived by some State Parties to the Convention101 – probably even willingly so. This might ultimately even lead to a further increase in the number of individual applications lodged with the Court. 98

See, supra, note 23. CDDH Final Report 2003 (note 17), para. 17, Proposal B. 4. According to estimates of the PA, 1.6 % of “all existing cases” or of “all cases dealt with by the Court” will be affected, see PA Opinion No. 251 (note 36), para. 11 and Committee on Legal Affairs and Human Rights (note 65), para. 44; it is somewhat unclear exactly which numbers of cases these figures refer to. Also cf. ECtHR Response (note 42), para. 23. 100 Cf. Stoltenberg (note 57), 141. 101 Cf. Françoise Tulkens, Les réformes à droit constant, RUDH, vol. 14, 2002, 265, 273. 99

Protocol No. 14 to the European Convention on Human Rights

711

IV. Supervision of Execution of Judgments

According to Article 46 para. 1 of the Convention, State Parties are obliged to abide by judgments of the Court,102 which shall be supervised by the CM under Article 46 para. 2 of the Convention.103 As regards the instruments placed at its disposal to fulfil this task, the CM’s choice currently is limited to either interim resolutions which may “express concern and/or […] make relevant suggestions with respect to the execution”104 or what has been labelled by the Court as the “nuclear options,”105 i.e. measures provided for by Article 8 of the CoE’s Statute ranging from suspension of rights of representation to expulsion from the organization.106 The lack of intermediate measures is evident and considerably weakens the Convention’s supervisory system,107 as is illustrated

102

Generally see Jörg Polakiewicz, The Execution of Judgments of the European Court of Human Rights, in: Robert Blackburn/Jörg Polakiewicz (eds.), Fundamental Rights in Europe: The European Convention on Human Rights and its Member States, 1950–2000, 2001, 55. 103 As to the supervisory procedure applied by the CM, see Rules Adopted by the Committee of Ministers for the Application of Art. 46, Paragraph 2, of the European Convention on Human Rights (CM Rules), available at: http://cm.coe.int/intro/e-rules 46.htm. Also see Ronald St. J. Macdonald, The Supervision of the Execution of Judgments of the European Court of Human Rights, in: Sienho Yee/Wang Tieya (eds.), International Law in the Post-Cold War World: Essays in Memory of Li Haopei, 2001, 409; Yvonne S. Klerk, Supervision of the Execution of the Judgments of the European Court of Human Rights: The Committee of Minister’s Role under Art. 54 of the European Convention on Human Rights, Netherlands International Law Review, vol. 45, 1998, 65. 104 CM Rules (note 103), Rule 7. 105 ECtHR Response (note 42), para. 28. 106 Cf. Rolv Ryssdal, The Enforcement System Set up under the European Convention on Human Rights, in: Mielle K. Bulterman/Martin Kuijer (eds.), Compliance with Judgments of International Courts, 1996, 64 et seq.; European Commission for Democracy through Law (Venice Commission), Opinion on the Implementation of the Judgments of the European Court of Human Rights (Opinion No. 209/2002), CoE Doc. CDL-AD (2002) 34, para. 44. 107 E.g. in ECtHR, Loizidou v. Turkey, Judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV, 1807 (Loizidou Case) it took more than five years and four interim resolutions before Turkey in December 2003 payed the applicant a sum for damages as well as costs and expenses that had been imposed on it by the Court. For a detailed analysis, see Venice Commission (note 106), paras. 17 et seq.

712

Tilmann Laubner

by the high number of repetitive cases before the Court.108 Protocol No. 14 seeks to address some of the existing lacunae.109 1. Interpretation Proceedings Firstly, future Article 46 para. 3 of the Convention will provide that “[i]f the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation.”110 In order to ensure sparing use of this possibility and avoid (further) overburdening of the Court,111 any such referral decision will require a majority vote of two thirds of the representatives entitled to sit on the CM. It is to be expected that under normal circumstances the formation of the Court which has rendered the original judgment will also decide on questions of its interpretation; other procedural aspects as well as the form of such interpretative rulings will be for the Court to decide upon.112 However, while interpretation proceedings under future Article 46 para. 3 are intended to overcome obstacles 108

Reflection Group (note 13), 4. Also see Wolf Ókresek, Die Umsetzung der EGMR-Urteile und ihre Überwachung – Probleme der Vollstreckung und der Behandlung von Wiederholungsfällen, EuGRZ, vol. 30, 2003, 168. The Court itself had advocated a ‘pilot judgment’ procedure to handle repetitive cases. This would have included an accelerated execution process, including an obligation for the respondent State to create retroactive domestic remedies for repetitive cases, which would have allowed the Court to decline to examine these: Reflection Group (note 13), para. 24; cf. CDDH Interim Activity Report 2003 (note 76), paras. 20 et seq.; Evaluation Group (note 11), para. 51. The CDDH, while acknowledging the usefulness of special (retroactive) domestic remedies for repetitive cases, such as the Pinto legislation in Italy, took the view that from a legal perspective this issue was more appropriately addressed through a recommendation of the CM to the COE Member States, see CDDH Interim Activity Report 2003 (note 76), para. 20. This view resulted in Recommendation (2004)6 (note 24). 109 See Protocol No. 14 (note 1), Art. 16. 110 Introduction of such competence had been recommended by the PA, Execution of Judgments of the European Court of Human Rights, Recommendation 1477 (2000), 28 September 2000 and Resolution 1226 (2000), 28 September 2000, para. 11 A.i. Currently, a party to a case may request the interpretation of a judgment within a period of one year following the delivery of that judgment under Art. 79 para. 1 of the Rules of Court (note 27). 111 Explanatory Report (note 9), para. 96. 112 Id., para. 97.

Protocol No. 14 to the European Convention on Human Rights

713

standing in the way of prompt execution based on differences regarding the interpretation of judgments,113 the official Explanatory Report stresses that they did not aim at enabling the Court “to pronounce on the measures taken by a High Contracting Party to comply with that judgment.”114 This reading appears strictly consistent with the traditional view adopted by the Court itself on various occasions, according to which a judgment of the Court “is essentially declaratory in nature and leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligations under Article [46 para. 1].”115 However, it is difficult to foresee in abstracto how in practice the Court will be able to meet the dual demand of interpreting a judgment with a view to its implementation on the one hand while being silent on the measures (to be) taken on the other. Furthermore, it also seems difficult to reconcile with more recent practice of the Court itself to indicate – in the context of Article 41 of the Convention relating to the award of “just satisfaction” to applicants – measures that would constitute restitutio in integrum,116 a development that so far has culminated in the prescription of concrete remedial measures in the dispositif of the Assanidze judgment.117 In any event, the new interpretation proceedings will at least in the short-term perspective bring additional work for the Court. 2. Infringement Proceedings Beyond the interpretation procedure, Protocol No. 14 will supplement the Convention by empowering the CM to institute infringement proceedings 113

Cf. Venice Commission (note 106), para. 76. Id., para. 97. 115 ECtHR, Marckx v. Belgium, Judgment of 13 June 1979, Series A, No. 31, para. 58; also see ECtHR, Scozzari and Giunta v. Italy, Judgment of 13 July 2000, Reports of Judgments and Decisions 2000-VIII, 471, para. 249. Cf. CM Rules (note 103), Rule 3 lit. b; J.G. Merrills/A.H. Robertson, Human Rights in Europe, 4th ed. 2001, 319; Georg Ress, Wirkung und Beachtung der Urteile und Entscheidungen der Straßburger Konventionsorgane, EuGRZ, vol. 23, 1996, 350, 351. 116 See e.g. ECtHR, Görgülü v. Germany, Judgment of 26 February 2004, para. 64, available at: http://hudoc.echr.coe.int/hudoc/ (on the repercussions of this judgment in Germany, see Rainer Hofmann, The German Federal Constitutional Court and Public International Law: New Decisions, New Directions?, German Yearbook of International Law (GYIL), vol. 47, 2004, 9; and Sejdovic v. Italy (note 16), para. 46. 117 ECtHR, Assanidze v. Georgia, Judgment of 8 April 2004, paras. 203 et seq., para. 14 lit. a of the dispositif, available at: http://hudoc.echr.coe.int/hudoc/. 114

714

Tilmann Laubner

against State Parties to the Convention. According to future Article 46 paras. 4 and 5 of the Convention, the CM, if it considers that a Party to the Convention “refuses to abide by a final judgment in a case to which it is a party,” may refer to the Court the question “whether that Party has failed to fulfil its obligations under [Article 46] paragraph 1.” Any such referral will require formal notice to the Party affected as well as, again, a majority vote of two thirds of the representatives entitled to sit in the CM.118 The Court will sit as a Grand Chamber119 and its decision is envisaged to take the form of a judgment.120 While resemblances of this new procedure to that provided for by Article 228 para. 2 of the EC Treaty are evident, so are the differences between the two systems. Unlike the EC Treaty, future Article 46 para. 5 of the Convention is silent on the legal consequences resulting from a finding by the Court of a violation of the obligation to abide by its judgments. A proposal to introduce a system of “astreintes,” i.e. financial penalties to be imposed on defaulting State Parties, which had been forcefully advocated by the PA,121 has finally been discarded by the CDDH.122 Instead, if it finds a violation of Article 46 para. 1 of the Convention, the Court shall refer the case to the CM “for consideration of the measures to be taken” (new Article 46 para. 5). Otherwise, if no violation is found, the CM shall close its examination of the case. Consequently, the Convention system, also in the future, will have to rely on its capability to exert political (“peer”) as well as moral pressure on its Member States to ensure execution of the Court’s judgments. A (public) finding by the Court to the effect that a Member State has failed to fulfil its obligations under Article 46 para. 1 of the Convention should carry some weight in this regard.123 However, the two-thirds majority requirement raises doubts as to the infringe-

118

The applicant to a case however, is not accorded the right to lodge infringement proceedings. 119 Art. 31 lit. b of the Convention as amended by Protocol No. 14 (note 1). 120 Explanatory Report (note 9), para. 100. 121 PA Opinion No. 251 (note 36), paras. 5, 14 (ix); Recommendation 1477 (2000) (note 110). For an evaluation of this proposal see Venice Commission (note 106), paras. 78–85. 122 CDDH Interim Activity Report 2003 (note 76), para. 44. 123 Cf. id.

Protocol No. 14 to the European Convention on Human Rights

715

ment proceedings’ feasibility in practice.124 Moreover, the procedure raises a variety of issues that yet need to be resolved. For instance, any finding by the Court as to whether a Contracting Party has fulfilled its obligations arising from Article 46 para. 1 of the Convention would presuppose that the scope of these obligations is clear. And again, any assessment of the implementation of judgments appears hard to imagine if it was to exclude any pronouncement on the measures (to be) taken by the respondent State. Furthermore, the prerequisites for the Court to make a finding on an infringement of the obligations under Article 46 para. 1 of the Convention still appear somewhat unclear. Would it for example require the Contracting Party to have violated its obligations intentionally or would any failure of fulfilment suffice, e.g. undue delays in legislation?125 Would such failure have to qualify as “persistent?”126 Questions also arise as to the procedural rights and the role of the respondent State as well as that of the applicant. The Court itself obviously felt uneasy with unresolved issues like those mentioned above; furthermore, it expressed concerns about the distinction between the political/executive branch of the CoE and its judicial branch being blurred if the Court was to be involved in the execution of judgments.127 It therefore ultimately rejected infringement proceedings in the form provided for by Protocol No. 14.128 Nevertheless, it appears that despite the questions referred to above, the arrangement laid down in future Article 46 paras. 4 and 5 of the Convention may, after all, be characterized as “a step in the right direction.”129

124

Cf. ECtHR Response (note 42), para. 30. The former is suggested by the words “refuses to abide,” the latter by the phrase “whether a Party has failed to fulfil its obligation.” Apart from questions of evidence, the latter would appear more plausible given the fact that cases of outright refusal to comply have been very rare so far. On the cases of Greece (Eur. Commission H.R., Denmark v. Greece, Norway v. Greece, Sweden v. Greece, The Netherlands v. Greece, Yearbook of the European Convention on Human Rights, vol. 11, 1968, 690) and Turkey (Loizidou Case (note 107)), see Macdonald (note 103), 417 et seq. 126 Cf. CDDH Interim Activity Report 2003 (note 76), para. 43; CDDH Final Report 2003 (note 17), Proposal C. 4 (ii). 127 Also see Evaluation Group (note 11), para. 49. 128 ECtHR Response (note 42), para. 29. 129 Committee on Legal Affairs and Human Rights (note 65), para. 54. 125

716

Tilmann Laubner

V. Miscellaneous Provisions

1. Judges: Terms of Office and Selection of Judges Ad Hoc As has been mentioned already, Protocol No. 14 as finally adopted leaves untouched the principle laid down in Article 20 of the Convention according to which the number of judges is equal to that of the Contracting Parties. However, it seeks to redress critique as to the independence and impartiality of the judges of the Court. Firstly, taking up a recommendation by the Evaluation Group which had referred to the standards set up under the Court’s own case-law130 and in order to guarantee both the appearance and reality of independence from the Contracting Parties’ governments,131 the judges’ terms of office will be increased from six to nine years.132 At the same time, the possibility of re-election will be excluded.133 Secondly, the procedure of appointing ad hoc judges will be revised. If no judge is available who has been elected for the respondent party to a case, the latter will no longer be allowed to appoint a person to sit as judge “on its behalf” after the beginning of proceedings (current Article 27 para. 2 of the Convention). Instead it will be for the President of the Court to select such person from a list submitted in advance by the relevant party.134 While not furnishing the judges ad hoc with the same legitimacy as provided to regular judges

130

Evaluation Group (note 11), para. 89, Conclusion 20 (b). Also see PA, Recommendation 1649 (2004), 30 January 2004, paras. 13, 21; cf. PA Opinion No. 251 (note 36), para. 8. 131 Cf. ECtHR Response (note 42), para. 32. 132 The Court itself, however, stressing the need to “ensure a sufficient nucleus of experienced Judges,” preferred a term of twelve years, ECtHR Response (note 42), para. 34. Also see CDDH Interim Report 2002 (note 17), paras. 46 et seq. 133 Art. 20 para. 1 of the Convention as amended by Protocol No. 14 (note 1), Art. 2. More detailed on the new arrangement Explanatory Report (note 9), paras. 50 et seq. As to the transitional provision, see Protocol No. 14 (note 1), Art. 21. Efforts of the PA (see Opinion No. 251 (note 36), para. 14 (ii) and Committee on Legal Affairs and Human Rights (note 65), paras. 14 et seq.) to insert into Art. 22 of the Convention relating to the election of judges a clause prescribing the candidature of at least one person of each gender for every vacancy on the bench ultimately failed, see Explanatory Report (note 9), para. 49. 134 Art. 26 para. 4 of the Convention as amended by Protocol No. 14 (note 1), Art. 6. Also see Explanatory Report (note 9), para. 64.

Protocol No. 14 to the European Convention on Human Rights

717

through the process of election by the PA under Article 22 of the Convention,135 this amendment will certainly serve the interests of independence and impartiality of the Court. 2. Council of Europe Commissioner for Human Rights Currently the CoE Commissioner for Human Rights, whose post was established by the CM in 1999,136 is not expressly assigned a role in the Convention system. Like any natural or legal person, he may be invited by the President of the Court to function as amicus curiae under current Article 36 para. 2 of the Convention. Protocol No. 14 upon entry into force will upgrade the Commissioner’s position. Under future Article 36 para. 3 he or she will expressly be permitted to intervene on his or her own initiative in all cases before a Chamber or the Grand Chamber as a third party and thus to submit written comments and take part in hearings. However, the Protocol will not go so far as to allow the Commissioner to lodge applications with the Court against one or more State Parties. Such competence had been requested by the PA and the Commissioner himself, in particular with respect to cases raising serious issues of a general nature or cases of mass violations of human rights.137 The PA in this regard had envisaged introduction of an actio popularis procedure along with appointing a “public prosecutor” at the Court, and to entrust this task to the Commissioner.138 Ultimately, however, the view seems to have prevailed within the CDDH that contrary to the Commissioner’s and the PA’s assessment, such competence would be incompatible with the Commissioner’s current rather consul-

135

Cf. Committee on Legal Affairs and Human Rights (note 65), paras. 29 et seq. CM, Resolution 99 (50), 7 May 1999. 137 As to the Commissioner’s request see CoE Commissioner for Human Rights, 3rd Annual Report 2002, CoE Doc. CommDH(2003)7, 7; and 4th Annual Report 2003, CoE Doc. CommDH(2004)10, 6, 17. 138 PA Opinion No. 251 (note 36), paras. 4, 13; Recommendation 1640 (2004), 26 January 2004, para. 7 (a), (b); Recommendation 1606 (2003), 23 June 2003, para. 10 (ii), (iii); Committee on Legal Affairs and Human Rights (note 65); PA, Rapporteur Rudolf Bindig, Committee on Legal Affairs and Human Rights, Report on the 3rd Annual Report on the Activities of the Council of Europe Commissioner for Human Rights 2002, 18 December 2003, Doc. 10024, paras. 42 et seq. 136

718

Tilmann Laubner

tative role139 and would damage his or her relationship with the governments of the State Parties.140 3. Accession of the European Union to the Convention Obviously, accession of the European Union (EU) to the Convention is a matter outside the general scope of Protocol No. 14 as it neither relates directly to the control system of the Convention as such nor will it contribute to a reduction of the Court’s workload.141 Rather it will achieve the opposite. However, in the light of the developments within the European Union that led to the adoption of the Treaty establishing a Constitution for Europe, which makes provision for the Union’s accession to the Convention,142 it was decided to lay a first cornerstone for such possibility also on the CoE’s side. Consequently, Article 17 of Protocol No. 14 will insert a new paragraph 2 into Article 59 of the Convention providing that “[t]he European Union may accede to this Convention.”143 Further modifications to the Convention which will become necessary in order to make such accession possible from a legal and technical point of view, as well as other issues that will or might require prior negotiation with the EU, have been left for regulation by a separate instrument.144 Upon instruction by the CM, these aspects have been examined by the CDDH in an additional

139 Cf. the Commissioner’s terms of reference contained in CM Resolution 99 (50) (note 136). 140 Cf. CDDH Interim Activity Report 2003 (note 76), para. 24. 141 For an overview of the subject see Hans Christian Krüger/Jörg Polakiewicz, Proposals for a Coherent Human Rights Protection System in Europe: The Convention on Human Rights and the EU Charter of Fundamental Rights, HRLJ, vol. 22, 2001, 1. 142 Treaty establishing a Constitution for Europe, 29 October 2004, O.J. 2004 C 310/1, Arts. I-9 para. 2 and III-325 para. 6 lit. a (ii). For more on the Treaty, the relationship between the EC/EU and the Convention as well as the issue of accession from the EC/EU perspective see Ronald Steiling/Alexander Schultz, Changes and Challenges to the EU Judicial System after the Constitutional Treaty – An Overview, GYIL, vol. 47, 2004, 666, 683 et seq. Also see Claus Dieter Classen, The Draft Treaty Establishing a Constitution for Europe: A Contribution to the Improvement of Transparancy, Proximity, and Efficiency of the European Union, GYIL, vol. 46, 2003, 323, 332 et seq. 143 Additionally, in those provisions amended by Protocol No. 14 the term “State Party” will be replaced by “High Contracting Party,” see e.g. future Art. 26 para. 4 of the Convention. 144 Explanatory Report (note 9), para. 101.

Protocol No. 14 to the European Convention on Human Rights

719

study.145 As regards the form of such instrument, the CDDH expressed preference for an accession “in one go,”146 i.e. through an accession treaty between the EU and the State Parties to the Convention, as opposed to the “classic” method consisting of another amending protocol which, after its entry into force, would be followed by the EU’s accession to the revised Convention.147 C. Concluding Observations The CM has urged the Member States of the CoE to ensure entry into force of the Protocol within two years from its opening for signature on 12 May 2004.148 So far, seven States have followed this appeal by ratifying the Protocol.149 In this regard it is worth mentioning that the CDDH had discussed the idea of transferring certain “matters of procedure” now dealt with in the Convention to a separate instrument (such as a “Statute” of the Court) capable of amendment by a simpler procedure. Such matters could have included the number of judges, the number of members of a Chamber or issues that are currently 145

CDDH, Study of Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights, 28 June 2002, CoE Doc. DG-II(2002)006 [CDDH(2002)010 Addendum 2] (Study on Accession). Such issues, which cannot be discussed further in the present context, would include e.g. the question of representation of the EU in the CM when supervising the execution of judgments under Art. 46 para. 2 and its contribution to the expenditure of the Convention’s supervisory system. For an overview see Pierre-Henri Imbert (Director General of Human Rights, CoE), Speech given on the occasion of “The Council of Europe’s European Convention on Human Rights and the European Union’s Charter of Fundamental Rights: Judges’ Symposium,” 16 September 2002, available at: http://www.coe.int/T/e/com/files/events/ 2002-09-Symposium-Judges/Imbert.asp. Also see Krüger/Polakiewicz (note 141), 10 et seq. 146 Imbert (note 145), Sect. I. 147 Study on Accession (note 145), paras. 12, 20. 148 CM, Declaration of the Committee of Ministers Ensuring the Effectiveness of the Implementation of the European Convention on Human Rights at National and European Levels, 12 May 2004, available at: http://www.coe.int/T/E/Human_rights/ execution/02_Documents/CMdec12052004.asp. 149 As of 14 February 2005, these States are Armenia, Denmark, Georgia, Ireland, Malta, Norway, and the United Kingdom. A further 31 States have signed the Protocol, which will enter into force, according to its Arts. 18 and 19, three months after all Parties to the Convention have expressed their consent to be bound. The status of signatures and ratifications is available at: http://conventions.coe.int/Treaty/Commun/ChercheSig. asp?NT=194&CM=1&DF=14/02/05&CL=ENG.

720

Tilmann Laubner

regulated in the Rules of Court.150 However, ultimately this idea was not retained although the CM’s possibility to temporarily reduce the number of judges in a Chamber upon request of the Court appears as a remnant thereof.151 An overall evaluation of Protocol No. 14 appears difficult due to the variety of issues provided for therein. Bearing in mind its overall objective to “maintain and improve” the efficiency of the control system under the Convention, Protocol No. 14 certainly contains a number of amendments which, in the short-term will release both court time as well as judicial capacities in the treatment of individual applications and thus increase the effectiveness of the Court. To be named here are the introduction of the single-judge formation, the simplified procedure, particularly affecting repetitive cases, as well as the farewell to a general rule of separate decisions on the admissibility and merits of individual applications. Most of the issues that have remained unclear or questionable in this regard should be capable of being resolved in practice. However, this does not seem to be the case with respect to the new admissibility criterion envisaged in Protocol No. 14. It raises far more questions and concerns than the potential to enable the Court to successfully encounter the challenges it faces. And these challenges will increase in scale with, Armenia and Finland having deposited their instruments of ratification in December 2004, Protocol No. 12 to the Convention152 on a general prohibition of discrimination coming into force on 1 April 2005, and with accession of the EU to the Convention at least appearing foreseeable. Coming back to this article’s somewhat heretical title, Protocol No. 14 will neither relieve nor deprive the Court of its success. It will not relieve it of its success if measured by the number of individual applications lodged with the Court as it will not reduce their number but only facilitate and expedite the Court’s handling of them. Neither will it (yet) deprive the Court of its success in terms of credit and confidence vested in it by (potential) applicants throughout Europe, despite all doubts on the new admissibility provision. However, it has been aptly noted that taking into account the steps undertaken by the Court

150 CDDH Interim Report 2002 (note 17), paras. 54–56; CDDH Final Report 2003 (note 17), Proposal B. 8. The starting point for this discussion was a proposal of the Evaluation Group (note 11), para. 88, Conclusion 20 (c). 151 See, supra, Sect. B. II. 2. in fine. 152 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 2000, ETS No. 177.

Protocol No. 14 to the European Convention on Human Rights

721

itself, the wind on the faces of individual applicants has become chillier.153 If the right of individual application was to be restricted in order to preserve its essence, this ought to be accompanied by more tangible pressure on the State Parties to comply with their obligations under the Convention.

153

Siess-Scherz (note 10), 107.

REPORTS Die Rechtsprechung des Internationalen Gerichtshofes im Jahre 2004 Von René Groß und Sue Stubbe A. Einleitung und Überblick über die anhängigen Verfahren1 Der Internationale Gerichtshof in Den Haag fällte im Jahre 2004 neun Urteile und erstattete ein Gutachten. Zur Zeit sind 22 Verfahren anhängig. Am 4. November 2004 legte der Präsident des Internationalen Gerichtshofes, Shi Jiuyong, der Generalversammlung (GV) der Vereinten Nationen den Jahresbericht des Gerichtshofes für den Zeitraum vom 1. August 2003 bis 31. Juli 2004 vor.2 Dabei betonte er in einer Rede, dass der Gerichtshof auch in diesem Jahr hohe Effizienz und Produktivität bewiesen habe. Um diese weiter zu steigern, habe der Gerichtshof eine bestehende Praxisanweisung (practice directions) konkretisiert und zusätzlich neue Anweisungen verkündet.3 Die seit dem 6. Februar 2003 bestehende personelle Zusammenstellung der Richterbank hat sich im Jahre 2004 nicht verändert. Jedoch wurde bekannt gegeben, dass Richter Gilbert Guillaume am 11. Februar 2005 sein Amt niederle-

1

Der Bericht schließt an die Darstellung von Jan Martin Lemnitzer/Philipp Wendel, Die Rechtsprechung des Internationalen Gerichtshofes im Jahre 2003, German Yearbook of International Law (GYIL), vol. 46, 2003, 565–605, an. 2 Report of the International Court of Justice 1 August 2003–31 July 2004, abrufbar unter: http://www.icj-cij.org/icjwww/igeneralinformation/igeninf_Annual_Reports/ iicj_annual_report_2003-2004.pdf. (Report 2003/2004). 3 Press Release 2004/30 vom 30. Juli 2004. Die Press Releases des Gerichtshofes sind abrufbar unter: http://www.icj-cij.org/icjwww/ipresscom/iprlast.html.

Die Rechtsprechung des IGH im Jahre 2004

723

gen wird. Am 15. Februar 2005 soll sein Nachfolger für die verbliebene Amtszeit bis 2009 gewählt werden. B. Die im Jahr 2004 anhängigen Verfahren im Überblick 1. In dem Verfahren Bosnien-Herzegowinas gegen Jugoslawien (jetzt Serbien und Montenegro) über die Anwendung der Konvention zur Verhütung und Bestrafung des Völkermords (Application of the Convention on the Prevention and Punishment of the Crime of Genocide) legte das Gericht den 27. Februar 2006 für den Beginn der öffentlichen Verhandlung in der Hauptsache fest.4 2. In dem Verfahren zwischen Ungarn und der Slowakei über die geplante Umleitung der Donau (Gabcíkovo-Nagymaros Project), in dem Verfahren zwischen Nicaragua und Kolumbien (Territorial and Maritime Dispute) und in dem von der Demokratischen Republik Kongo gegen Ruanda angestrengten Verfahren (Armed Activities on the Territory of the Congo (New Application: 2002)) nahm der Gerichtshof in diesem Jahr keine Verfahrenshandlungen vor. Auch in der Streitigkeit über die Verletzung der Regeln über den diplomatischen Schutz durch die Demokratische Republik Kongo bei der Behandlung eines Staatsbürgers der Republik Guinea (Ahmadou Sadio Diallo) und in der Streitigkeit über die Ziehung der Meeresgrenze zwischen Nicaragua und Honduras (Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea) schritt das Verfahren in diesem Jahr nicht voran. 3. In den von Jugoslawien (jetzt Serbien und Montenegro) angestrengten Verfahren gegen Belgien, Kanada, Frankreich, Deutschland, Italien, Niederlande, Portugal und das Vereinigte Königreich betreffend den Kosovo-Einsatz der NATO (Legality of Use of Force) fanden die öffentlichen Verhandlungen zu den vorgängigen prozessualen Einreden vom 19. April bis zum 23. April 2004 statt.5 Das Gericht fällte seine Urteile am 15. Dezember 2004 (siehe dazu unten E.).6 4. Im Verfahren der Demokratischen Republik Kongo gegen Uganda betreffend bewaffnete Aktivitäten auf dem Gebiet des Kongo (Armed Activities on the

4 5 6

Press Release 2004/37 vom 8. Dezember 2004. Press Release 2004/14 vom 16. März 2004. Press Release 2004/35 vom 3. Dezember 2004.

724

René Groß und Sue Stubbe

Territory of the Congo) wurde die öffentliche Verhandlung auf Bitte beider Staaten verlegt, sie findet nun vom 11. April bis zum 29. April 2005 statt.7 5. Im Verfahren Kroatien gegen Jugoslawien (jetzt Serbien und Montenegro) bezüglich der Anwendung der Konvention zur Verhütung und Bestrafung des Völkermordes (Application of the Convention on the Prevention and Punishment of the Crime of Genocide) wurde der 26. Februar als Termin für den Beginn der mündlichen Verhandlung in der Hauptsache festgesetzt.8 6. In dem Verfahren Liechtenstein gegen Deutschland (Certain Property) fand vom 14. Juni bis zum 18. Juni die mündliche Verhandlung statt. Anschließend begann das Gericht mit den Beratungen über das Urteil.9 7. Richter Gilbert Guillaume, in seiner Funktion als Vorsitzender der für die Grenzstreitigkeit zwischen Benin und Niger (Frontier Dispute) gebildeten Kammer, autorisierte beide Staaten zur Einreichung einer Replik und legte den 17. Dezember 2004 als Frist für die Einreichung der Schriftsätze fest.10 8. Nachdem im Verfahren Mexikos gegen die Vereinigten Staaten von Amerika (Avena and other Mexican Nationals) die mündliche Verhandlung vom 15. Dezember bis zum 19. Dezember 2003 stattgefunden hatte, fällte der Gerichtshof am 31. März 2004 sein Urteil (siehe dazu unten C.). 9. Im Verfahren über bestimmte Strafverfahren in Frankreich (Certain Criminal Proceedings in France) zwischen der Republik Kongo und Frankreich verlängerte der Präsident in einer Anordnung am 8. Dezember 2004 die Frist für das Einreichen der Replik durch die Republik Kongo auf den 10. Januar 2005 und für das Einreichen der Duplik durch Frankreich auf den 10. August 2005.11 10. Im Verfahren zwischen Malaysia und Singapur hinsichtlich der Inseln Pedra Branca/Pulau Batu Puteh, Middle Rocks und South Ledge (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge) reichten beide Parteien fristgerecht am 25. März 2004 ihre Schriftsätze ein.12

7

Press Release 2003/39 vom 7. November 2003, Press Release 2004/36 vom 6. Dezember 2004. 8 Press Release 2004/37 (Anm. 4). 9 Press Release 2004/21 vom 18. Juni 2004. 10 Press Release 2004/29 vom 13. Juli 2004. 11 Press Release 2004/38 vom 13. Dezember 2004. 12 Vgl. Report 2003/2004 (Anm. 2), Rz. 236.

Die Rechtsprechung des IGH im Jahre 2004

725

11. Der Gerichtshof erstellte am 9. Juli 2004 ein Gutachten zu den rechtlichen Konsequenzen des Mauerbaues in den besetzten palästinensischen Gebieten (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) (siehe dazu unten D.). 12. Nach erfolglosen Vorverhandlungen reichte Rumänien am 16. September 2004 eine Klage gegen die Ukraine hinsichtlich der Ziehung der Meeresgrenze zwischen beiden Staaten im Schwarzen Meer sowie der Abgrenzung des Festlandsockels und der dazugehörigen exklusiven Wirtschaftszone (Maritime Delimitation in the Black Sea) beim Gerichtshof ein.13 Gestützt wurde die Klage auf einen Vertrag über Zusammenarbeit und gute Nachbarschaft vom 2. Juni 1997 sowie auf ein Zusatzabkommen dazu, in dem sich beide Staaten verpflichten, einen Vertrag über die staatlichen Grenzen abzuschließen und im Falle erfolgloser Verhandlungen die Streitigkeit dem Gerichtshof zur Lösung vorzulegen.14 Am 19. November 2004 ordnete das Gericht an, dass Rumänien seine Schriftsätze bis zum 19. August 2005 und die Ukraine ihre Gegenschriftsätze bis zum 19. Mai 2006 einzureichen haben.15 C. Fall betreffend Avena und andere mexikanische Staatsangehörige (Mexiko gegen Vereinigte Staaten von Amerika) Urteil vom 31. März 200416 Zusammensetzung des Gerichtshofes: Präsident Shi; Vizepräsident Ranjeva; Richter Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Ad-hocRichter Sepúlveda.

13

Press Release 2004/31 vom 16. September 2004. Id.; für nähere Informationen siehe die Klageschrift Rumäniens vom 27. Mai 2004, abrufbar unter: http://www.icj-cij.org/icjwww/idocket/iru/iruframe.htm. 15 Press Release 2004/34 vom 19. November 2004. 16 Das Urteil sowie alle Erklärungen und Sondervoten sind abrufbar unter: http:// www.icj-cij.org/icjwww/idocket/imus/imusframe.htm. 14

726

René Groß und Sue Stubbe

I. Hintergrund des Falles und Anträge der Parteien

Am 9. Januar 2003 reichte Mexiko eine Klage gegen die Vereinigten Staaten von Amerika ein. Den Vereinigten Staaten wurde darin vorgeworfen, die Wiener Konsularrechtskonvention17 verletzt zu haben, indem sie mexikanische Inhaftierte sowie deren konsularische Vertretung nicht gemäß Artikel 36 WKK unterrichtet hätten. Die Zuständigkeit des Gerichtshofes ergebe sich aus Artikel 36 Abs. 1des Statuts des Internationalen Gerichtshofes18 und Artikel 1 des Fakultativprotokolls zur WKK betreffend die obligatorische Streitbeilegung.19 Gleichzeitig mit Einreichen der Klageschrift stellte Mexiko einen Antrag auf Erlass einstweiliger Maßnahmen gemäß Artikel 41 des IGH-Statuts i.V.m. Artikeln 73–75 der Verfahrensordnung des Internationalen Gerichtshofes.20 Das Gericht gab dem Antrag in seiner Anordnung vom 5. Februar 2003 im Hinblick auf drei von ursprünglich 54 genannten zum Tode verurteilten mexikanischen Staatsbürgern statt.21 Bis zur vorliegenden Entscheidung wurde keiner der 54 genannten mexikanischen Staatsbürger hingerichtet.22 Im Verlauf des Prozesses beantragte Mexiko, die Klage um zwei Fälle zu erweitern, und zog später das Ersuchen um Rechtsschutz für zwei der 54 genannten Fälle zurück. Während das Gericht den erstgenannten Antrag aus Gründen der prozessualen Gleichheit der Parteien abwies, stellte es zum zweiten Punkt lediglich fest, dass die Vereinigten Staaten keinerlei Einwände erhoben hatten.23 Im Verlauf der mündlichen Verhandlungen beantragte Mexiko zunächst die Feststellung, dass völkerrechtliche Verpflichtungen und seine Rechte verletzt seien. 52 mexikanischen Staatsbürger seien vor Gericht gestellt und verurteilt worden, ohne dass sie unverzüglich auf ihr Recht auf konsularischen Beistand 17

Vienna Convention on Consular Relations, 24. April 1963, UNTS, vol. 596, 262 (WKK). 18 Statute of the International Court of Justice, UNCIO, vol. 15, 355 (IGH-Statut). 19 Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 24. April 1963, UNTS, vol. 596, 262 (Fakultativprotokoll). 20 International Court of Justice, Rules of Court (1978) as amended on 5 December 2000, abrufbar unter: www.icj-cij.org/ (IGH-VerfO). 21 Anordnung bezüglich einstweiliger Maßnahmen vom 5. Februar 2003, abrufbar unter: http://www.icj-cij.org/icjwww/idocket/imus/imusorder/imus_iorder_toc.htm. 22 Urteil vom 31. März 2004 (Anm. 16), Rz. 8. 23 Id., Rz. 7.

Die Rechtsprechung des IGH im Jahre 2004

727

nach Artikel 36 Abs. 1 lit. b WKK hingewiesen worden wären. Dadurch sei zum einem Mexiko das Recht entzogen worden, konsularischen Schutz für seine Staatsangehörigen bereitzustellen, und zum anderen den mexikanischen Staatsbürgern das Recht entzogen worden, diesen Schutz zu erhalten. Außerdem hätten die Vereinigten Staaten Artikel 36 Abs. 2 WKK verletzt, indem sie keine effektive Überprüfung der Urteile zur Verfügung stellten. Mexiko ersuchte das Gericht deswegen auch um Feststellung der Rechtsfolgen dieser Verletzungen. Ihm stehe das Recht auf restitutio in integrum zu: Der status quo ante sei wiederherzustellen und die Vereinigten Staaten hätten dafür Sorge zu tragen, dass die vorangegangen Verletzungen die noch folgenden Prozesse nicht beeinflussten. Keinesfalls dürfe eine erneute Überprüfung durch Gnadenverfahren ersetzt werden oder ein innerstaatlicher Rechtssatz angewendet werden, der keine rechtliche Bedeutung an Verletzungen von Artikel 36 WKK anknüpfe. Diesbezüglich müssten die Vereinigten Staaten ausreichende Garantien und Versicherungen abgeben. Die Vereinigten Staaten beantragten, die Anträge Mexikos abzuweisen, da die Vereinigten Staaten ihr Verhalten dem LaGrand-Urteil24 angepasst hätten.25 II. Rechtliche Erwägungen des Gerichtshofes

1. Zuständigkeit und Zulässigkeit Trotz Einreden der Vereinigten Staaten bejaht der Gerichtshof seine Zuständigkeit hinsichtlich aller Anträge Mexikos nach Artikel 1 des Fakultativprotokolls sowie die Zulässigkeit aller Klagepunkte Mexikos. Mexiko sah die US-amerikanischen Einreden bereits deshalb als unzulässig an, weil sie außerhalb der zeitlichen Frist des Artikel 79 Abs. 1 IGH-VerfO erhoben worden waren. Das Gericht stellt jedoch klar, dass eine Einrede, die außerhalb dieser Frist erhoben werde, zwar ihre aufschiebende Wirkung verliere, aber immer

24

IGH, LaGrand Case (Germany v. United States of America), Urteil vom 27. Juni 2001, ICJ Reports 2001, 466 ff. Zu diesem Urteil vgl. Martin Mennecke, Towards the Humanization of the Vienna Convention of Consular Rights – The LaGrand Case Before the International Court of Justice, GYIL, vol. 44, 2001, 430–468. 25 Urteil vom 31. März 2004 (Anm. 16), Rz. 14.

728

René Groß und Sue Stubbe

noch im Hauptsacheverfahren angeführt werden könne.26 Daher untersucht der Gerichtshof die Einreden der Vereinigten Staaten. Der Gerichtshof stellt zunächst seine Zuständigkeit nach der WKK und dem Fakultativprotokoll fest, welche die Festlegung der Art und des Ausmaßes der Verpflichtungen der Vereinigten Staaten nach der WKK umfasse. Soweit diese Verpflichtungen das Verhalten innerstaatlicher Gerichte betreffen, müsse der Gerichtshof folglich auch in der Lage sein, das Verhalten unter völkerrechtlichen Gesichtspunkten zu beurteilen.27 Des Weiteren könne er auch restitutio in integrum anordnen.28 Die Zuständigkeit des Gerichtshofes erstrecke sich auch auf die Frage, ob das Recht auf konsularische Benachrichtigung ein Menschenrecht sei und auf die Festlegung grundsätzlicher Anforderungen an ordnungsgemäße Verfahren.29 Bezüglich der Zulässigkeit weist der Gerichtshof zunächst den Vorwurf der Vereinigten Staaten zurück, er fungiere als strafrechtliches Revisionsgericht.30 Auch die Pflicht, zunächst den innerstaatlichen Rechtsschutz zu erschöpfen, sei in diesem Fall nicht anwendbar, da Mexiko anführe, selbst in seinen Rechten aus Artikel 36 Abs. 1 WKK verletzt zu sein.31 Alle weiteren Einreden der Vereinigten Staaten werden ebenfalls zurückgewiesen.32 2. Verletzung von Artikel 36 Abs. 1 WKK Der Gerichtshof untersucht anschließend die Verpflichtungen der Vereinigten Staaten aus Artikel 36 Abs. 1 WKK und stellt dabei die Verletzung dieser Verpflichtungen fest. Er befindet zunächst, dass die Vereinigten Staaten Verpflichtungen bezüglich aller 52 Betroffenen besaßen. Mexiko habe durch Vorlage von 52 Geburtsurkunden und Erklärungen, in denen Betroffene aussagten, mexikanische Staatsbürger zu sein, bewiesen, dass die 52 Betroffenen mexikanische Staatsbürger seien.33 Den Vereinigten Staaten hätten dagegen darlegen müssen, dass die Betroffenen auch die US-amerikanische Staatsbürgerschaft besaßen. 26 27 28 29 30 31 32 33

Id., Rz. 24–25. Id., Rz. 28. Id., Rz. 34. Id., Rz. 35. Id., Rz. 37. Id., Rz. 38. Id., Rz. 30, 42, 44, 47. Id., Rz. 57.

Die Rechtsprechung des IGH im Jahre 2004

729

Der Gerichtshof lehnt die von den Vereinigten Staaten geforderte Unterscheidung zwischen burden of proof und burden of evidence ab. Mexiko sei nicht verpflichtet gewesen, den Vereinigten Staaten alle Informationen zukommen zu lassen, aus denen sich eine US-amerikanische Staatsbürgerschaft ergeben könnte. Die Vereinigten Staaten hätten, um ihrer Beweispflicht nachzukommen, die mexikanischen Behörden um die benötigten Informationen ersuchen müssen. Dies sei jedoch nicht geschehen. Der Gerichtshof untersucht weiter das Recht des Individuums auf Unterrichtung über seine Rechte aus Artikel 36 Abs. 1 lit. b WKK. Die Verpflichtung der in Haft nehmenden Behörden, den Inhaftierten zu unterrichten, entstünde, sobald erkennbar sei, dass die Person eine ausländische Staatsbürgerschaft besitze.34 Die Erkenntnis, dass der Inhaftierte tatsächlich eine ausländische Staatsangehörigkeit besitze, könne auch erst später vorliegen, wenn der Inhaftierte behauptet, US-amerikanischer Staatsbürger zu sein. Die Vereinigten Staaten hatten angeführt, dass sieben Personen dies bei ihrer Verhaftung behauptet hätten. Nach einer näheren Betrachtung dieser Fälle stellt der Gerichtshof jedoch fest, dass die Vereinigten Staaten eine solche Behauptung nur in einem Fall auch beweisen konnten. In allen anderen 51 Fällen sei davon auszugehen, dass die Verpflichtung aus Artikel 36 Abs. 1 lit. b WKK entstanden sei.35 Der Gerichtshof wendet sich nun der Frage zu, wie der Begriff „unverzüglich“ in Artikel 36 Abs. 1 lit. b WKK auszulegen sei. Mexiko hatte vorgebracht, „unverzüglich“ bedeute „unmittelbar nach Verhaftung und vor Vernehmung“, während die Vereinigten Staaten anführten, dass lediglich keine vorsätzliche Verzögerung erfolgen dürfe. Nach Ansicht des Gerichts ergibt sich weder aus dem Wortlaut, dem Ziel und Zweck noch aus den travaux préparatoires, dass „unverzüglich“ als „unmittelbar nach der Verhaftung und vor der Vernehmung“ verstanden werden müsse.36 Trotz dieser Ausführungen kommt der Gerichtshof zu dem Ergebnis, dass die Vereinigten Staaten in allen verbleibenden 51 Fällen ihre Verpflichtung aus Artikel 36 Abs. 1 lit. b WKK, den Inhaftierten zu unterrichten, verletzt hätten.37 In 50 Fällen sei überhaupt keine Unterrichtung erfolgt, und in dem anderen Fall sei der Betroffene zwar bereits 40 Stunden nach seiner Verhaftung unterrichtet worden, jedoch hätten die Behörden schon bei Verhaf34 35 36 37

Id., Rz. 63. Id., Rz. 66–74. Id., Rz. 84–87. Id., Rz. 90.

730

René Groß und Sue Stubbe

tung gewusst, dass der Betroffene die mexikanische Staatsangehörigkeit besessen habe.38 Anschließend untersucht der Gerichtshof die verbliebenen 51 Fälle auch noch im Hinblick auf die Pflicht zur unverzüglichen Unterrichtung des konsularischen Postens gemäß Artikel 36 Abs. 1 lit. b WKK. Diese Verpflichtung hätten die Vereinigten Staaten in 49 Fällen verletzt.39 Der Gerichtshof betont schließlich, dass, wie bereits im LaGrand-Urteil40 beschrieben, die drei Absätze des Artikel 36 WKK ein in Wechselbeziehung zueinander stehendes System (interrelated régime) seien.41 Dadurch, dass die Vereinigten Staaten Artikel 36 Abs. 1 lit. b WKK zuwider gehandelt hätten, sei es Mexiko auch unmöglich gewesen, sein Recht aus Artikel 36 Abs. 1 lit. a WKK auf Kommunikation mit und Zugang zu seinen Staatsangehörigen sowie sein Recht aus Artikel 36 Abs. 1 lit. c WKK, seine inhaftierten Staatsbürger zu besuchen, mit ihnen zu sprechen und zu korrespondieren, wahrzunehmen.42 Dagegen nahm der Gerichtshof nur in 34 der 51 Fälle eine Verletzung des Rechts Mexikos aus Artikel 36 Abs. 1 lit. c WKK an, die Möglichkeit rechtlichen Beistands für seine Staatsangehörigen zu organisieren. In den anderen 17 Fällen sei es den Konsularbeamten trotz der fehlenden Unterrichtung durch die zuständigen Behörden noch möglich gewesen, rechtlichen Beistand zu organisieren.43 3. Verletzung von Artikel 36 Abs. 2 WKK Als nächstes untersucht der Gerichtshof, ob auch eine Verletzung des Artikels 36 Abs. 2 WKK vorliegt. Mexiko hatte vorgebracht, dass die Vereinigten Staaten, insbesondere durch die Anwendung der procedural default doctrine, keine sinnvolle und effektive erneute Überprüfung der Urteile bereitgestellt hätten. Dadurch läge auch eine Verletzung von Artikel 36 Abs. 2 WKK vor. Der Gerichtshof bemerkt, dass die procedural default doctrine trotz des LaGrand-

38 39 40 41 42 43

Id., Rz. 89. Id., Rz. 91–97. LaGrand Case (Anm. 24), 492, Rz. 74. Urteil vom 31. März (Anm. 16), Rz. 99. Id., Rz. 102–103. Id., Rz. 104–106.

Die Rechtsprechung des IGH im Jahre 2004

731

Urteils44 noch nicht revidiert worden sei und weiterhin US-amerikanische Gerichte daran hindern könne, rechtliche Bedeutung an eine Verletzung von Artikel 36 Abs. 1 WKK anzuknüpfen. Der Gerichtshof stellt jedoch nur in Hinblick auf drei Fälle fest, dass eine Verletzung von Artikel 36 Abs. 2 WKK vorläge. Er begründet dies damit, dass nur in diesen Fällen die Verfahren an einem Punkt angelangt wären, an dem keine rechtliche Prüfung mehr möglich sei.45 4. Rechtsfolgen der Verletzungen Schließlich befasst sich der Gerichtshof mit den Rechtsfolgen der Verletzungen von Artikel 36 Abs. 1 WKK für die Vereinigten Staaten. Der angemessene Rechtsschutz für die Verletzungen läge in der Verpflichtung, eine erneute Überprüfung der Fälle vor Gericht zuzulassen.46 Der Gerichtshof versichert dabei, dass es im vorliegenden Fall um Artikel 36 WKK und nicht um die Richtigkeit der Urteile an sich gehe. Es sei daher Sache der US-amerikanischen Gerichte, die Fakten und insbesondere die durch die Verletzungen der Rechte aus der WKK entstandenen Nachteile zu untersuchen.47 Aus diesen Gründen wird die Forderung Mexikos nach Aufhebung der Urteile abgewiesen. Der Gerichtshof bemerkt weiter, dass er es nicht für notwendig erachte, zu entscheiden, ob die WKK Menschenrechte enthalte. Es ergebe sich jedoch weder aus dem Wortlaut, noch aus dem Ziel und Zweck, noch aus den travaux préparatoires der WKK, dass eine Verletzung der Rechte aus der WKK automatisch den gesamten Strafprozess beeinträchtige.48 Der Gerichtshof fügt dem noch hinzu, dass zwar die Regelung der konkreten Modalitäten für eine erneute Überprüfung hauptsächlich den Vereinigten Staaten überlassen werde, die Verletzungen der Rechte aus der WKK jedoch berücksichtigt werden müssten. Aufgrund der procedural default doctrine sei der Angeklagte praktisch nicht in der Lage, eine Verletzung aus Artikel 36 WKK vor US-amerikanischen Gerichten geltend zu machen.49 Des Weiteren müsse eine erneute Überprüfung auch wirkungsvoll sein und könne daher nicht durch 44 45 46 47 48 49

LaGrand Case (Anm. 24). Urteil vom 31. März (Anm. 16), Rz. 113–114. Id., Rz. 121. Id., Rz. 122. Id., Rz. 124. Id., Rz. 134.

732

René Groß und Sue Stubbe

Gnadeverfahren erfolgen.50 Gnadeverfahren würden Verletzungen der Rechte aus der WKK sowie die daraus entwachsenen Nachteile nicht umfassend untersuchen und einbeziehen.51 Der Gerichtshof erklärt weiter, er könne die von Mexiko geforderte Einstellung der rechtswidrigen Handlungen nicht anordnen, weil es nicht hinreichend dargelegt habe, dass es sich bei den Verletzungen um fortdauernde Verletzungen handele.52 Nachdem der Gerichtshof die Bemühungen der Vereinigten Staaten, Verletzungen von Artikel 36 Abs. 1 WKK zukünftig zu vermeiden, zur Kenntnis genommen hat, verweist er bezüglich der Forderungen nach Garantien und Versicherungen auf das LaGrand-Urteil.53 Dort hatte er festgestellt, dass die Bemühungen der Vereinigten Staaten als Versicherung ausreichen.54 Abschließend erklärt der Gerichtshof bezüglich der drei Fälle, in denen auch Artikel 36 Abs. 2 verletzt wurde, dass es Aufgabe der Vereinigten Staaten sei, den angemessenen Rechtsschutz unter den im Urteil aufgeführten Voraussetzungen zu gewähren.55 III. Entscheidungsformel

Aus diesen Gründen kommt der Gerichtshof zu dem Ergebnis, – dass er die Einreden Mexikos gegen die Einreden der Vereinigten Staaten zurückweist (13 : 2 Stimmen56), – dass er die Einreden der Vereinigten Staaten gegen die Zuständigkeit des Gerichts und die Zulässigkeit der Anträge Mexikos zurückweist (einstimmig), – dass die Vereinigten Staaten Artikel 36 Abs. 1 lit. b WKK verletzt haben, indem sie 51 mexikanische Staatsangehörige nicht unverzüglich über ihr Recht aus dieser Bestimmung unterrichteten (14 : 1 Stimmen57) und indem sie die zuständige mexikanische konsularische Vertretung nicht unverzüglich über 50 51 52 53 54 55 56 57

Id., Rz. 138. Id., Rz. 143. Id., Rz. 148. Id., Rz. 149–150. LaGrand Case (Anm. 24), 512–513, Rz. 124. Urteil vom 31. März (Anm. 16), Rz. 152. Dagegen stimmten Richter Parra-Arangueren und Ad-hoc-Richter Sepúlveda. Dagegen stimmte Richter Parra-Aranguren.

Die Rechtsprechung des IGH im Jahre 2004

733

die Inhaftierung von 49 mexikanischen Staatsangehörigen unterrichteten und dadurch Mexiko das Recht entzogen, den Betroffenen rechtzeitig Beistand zu leisten (14 : 1 Stimmen58), – dass die Vereinigten Staaten Artikel 36 Abs. 1 lit. c WKK verletzt haben, indem sie Mexiko das Recht entzogen, rechtzeitig mit seinen Staatsangehörigen zu verkehren, sie aufzusuchen und in der Haft zu besuchen (14 : 1 Stimmen59) und indem sie Mexiko das Recht entzogen, rechtzeitig rechtliche Vertretung für diese Staatsangehörigen zu organisieren (14 : 1 Stimmen60), – dass die Vereinigten Staaten Artikel 36 Abs. 2 WKK verletzt haben, indem sie, nachdem die Verletzungen der WKK in Bezug auf diese Individuen festgestellt wurden, keine erneute Überprüfung der Urteile gegen César Roberto Fierro Reyna, Roberto Moreno Ramos und Osvaldo Torres Aguilera im Lichte der in der WKK dargelegten Rechte zuließen (14 : 1 Stimmen61), – dass die angemessene Wiedergutmachung in diesem Fall in der Verpflichtung der Vereinigten Staaten liegt, bei freier Wahl der Mittel eine erneute Überprüfung der Urteile bereitzustellen, welche auch die Verletzungen von Artikel 36 WKK und die Ausführungen des Gerichts in Randziffern 138–141 des Urteils berücksichtigen (14 : 1 Stimmen62), – dass er die Verpflichtung der Vereinigten Staaten zur Kenntnis nimmt, seine Verpflichtungen aus Artikel 36 Abs. 1 lit. b WKK durch die Durchführung spezieller Maßnahmen zu gewährleisten, und dass er die Forderung Mexikos nach Garantien und Versicherungen der Nicht-Wiederholung durch diese Verpflichtung für erfüllt hält (einstimmig), – dass die Vereinigten Staaten, sollten trotzdem mexikanische Staatsbürger zu erheblichen Strafen verurteilt werden, ohne dass ihre Rechte aus Artikel 36 Abs. 1 lit. b WKK beachtet wurden, bei freier Wahl der Mittel eine erneute Überprüfung der Urteile vorsehen müssen, damit den Rechten aus der WKK unter Berücksichtigung der Randziffern 138–141 des Urteils ihre volle Bedeutung zukommt (einstimmig).

58 59 60 61 62

Dagegen stimmte Richter Parra-Aranguren. Dagegen stimmte Richter Parra-Aranguren. Dagegen stimmte Richter Parra-Aranguren. Dagegen stimmte Richter Parra-Aranguren. Dagegen stimmte Richter Parra-Aranguren.

734

René Groß und Sue Stubbe

IV. Erklärungen und Sondervoten

1. Erklärung von Präsident Shi Präsident Shi stellt fest, dass er die Ansichten aus seiner abweichenden Meinung im LaGrand-Urteil63 weiterhin vertrete. 2. Erklärung von Vize-Präsident Ranjeva In seiner Erklärung macht Vize-Präsident Ranjeva zunächst Ausführungen zur Frage der Beweislast. Die Unterscheidung zwischen burden of proof und burden of evidence sei richtigerweise widerlegt. Wie vom IGH im Corfu Channel Case64 ausgeführt, habe das Gericht die Kompetenz, die Konsequenzen der Nichtvorlage solcher Dokumente festzulegen, die wahrscheinlich ein Argument unterstützt hätten. Im Hinblick auf die Forderung Mexikos bezüglich des diplomatischen Schutzes ist Ranjeva jedoch der Ansicht, dass die WKK keinen diplomatischen Schutz vorsehe, weil sie ausdrücklich individuelle Rechte anerkenne. 3. Sondervotum von Richter Vereshetchetin Richter Vereshetchetin analysiert zunächst das Recht des diplomatischen Schutzes und den ILC-Entwurf zum Diplomatischen Schutz.65 Hinsichtlich der Frage, ob im vorliegenden Fall die Pflicht zur Erschöpfung des innerstaatlichen Rechtswegs bestand, lägen keine zwingenden Gründe vor, von der Regel abzuweichen, wonach dies der Fall sei, wenn unter den vorgebrachten Ansprüchen die individuellen die staatlichen überwiegen (preponderance standard). Vereshetchetin hält diese Pflicht trotzdem ausnahmsweise für nicht gegeben, da dieses Erfordernis dazu führen würde, dass eine Entscheidung des Gerichts keinen praktischen Effekt haben würde.

63

LaGrand Case (Anm. 24), Abweichende Meinung Präsident Shi, 518–524. IGH, Corfu Channel Case (United Kingdom v. Albania), Urteil vom 9. April 1949, ICJ Reports 1949, 4, 32. 65 ILC, Diplomatic Protection, Titles and Trexts of Draft Articles Adopted by the Drafting Committee, UN Doc. A/CN.4/L.613/Rev.1 (2002). 64

Die Rechtsprechung des IGH im Jahre 2004

735

4. Sondervotum von Richter Parra Aranguren Richter Parra Aranguren erklärt in seinem Sondervotum zunächst, dass der Einrede Mexikos gegen die Einreden der Vereinigten Staaten hätte stattgegeben werden müssen. Letztere hätten, indem sie sich auf eine einzige Runde mündlicher Verhandlungen einigten, auch auf vorgängige prozessuale Einreden in der Vorverhandlung verzichtet. Mexiko hingegen habe nicht ausreichend dargelegt, dass die 52 Individuen mexikanische Staatsbürger waren. Der Gerichtshof habe, wenn er über die Rechtswirkungen nationalen Rechts entscheide, dieses als Tatsachenfrage und nicht als Rechtsfrage zu behandeln. Mexiko hätte daher auch Artikel 30 der mexikanischen Verfassung vorlegen müssen, nach dem die Betroffenen laut Mexiko iure soli die mexikanische Staatsbürgerschaft erworben haben. Da die mexikanische Staatsbürgerschaft jedoch notwendige Vorraussetzung für die Anwendbarkeit des Artikel 36 WKK und die Ausübung diplomatischen Schutzes sei, könnte den Anträgen Mexikos nicht stattgegeben werden. Parra Aranguren erklärt weiter, dass die Pflicht zur Erschöpfung des innerstaatlichen Rechtsschutzes nur in den Fällen, in denen der Staat unmittelbar in seinen Rechten verletzt sei, keine Anwendung fände. Hier läge jedoch ein Fall vor, in dem Mexiko geltend mache, unmittelbar und mittelbar in seinen Rechten verletzt zu sein. Der Gerichtshof hätte entscheiden müssen, welches Element überwiege. Nach Ansicht Parra Arangurens überwiegt das mittelbare Element und demzufolge hätte die Pflicht zur Erschöpfung des innerstaatlichen Rechtsschutzes in jedem einzelnen Fall geprüft werden müssen. 5. Sondervotum von Richter Tomka Richter Tomka führt in seinem Sondervotum aus, dass der Gerichtshof nur zu dem Schluss kommen könne, dass die individuellen Rechte der mexikanischen Staatsbürger verletzt seien, wenn er Mexikos Antrag akzeptieren würde, dass es diplomatischen Schutz ausübe. Dann hätte jedoch die Einrede der Vereinigten Staaten, dass die mexikanischen Staatsangehörigen den innerstaatlichen Rechtsschutz nicht ausgeschöpft hätten, nicht unbeachtet bleiben dürfen. Im Ergebnis sei diese Pflicht hier trotzdem nicht anwendbar, weil die US-amerikanischen Gerichte keinen wirksamen Rechtsschutz für eine Verletzung der Rechte aus Artikel 36 WKK bereitstellen. Außerdem bemerkt er, dass die Verpflichtung,

736

René Groß und Sue Stubbe

einen ausländischen Inhaftierten über seine Rechte aus Artikel 36 WKK aufzuklären, bereits im Zeitpunkt der Verhaftung entstehe. 6. Sondervotum von Ad-hoc-Richter Sepúlveda In seinem Sondervotum kritisiert Ad-hoc-Richter Sepúlveda, dass der Gerichtshof sich im vorliegenden Urteil für eine restriktive Auslegung des Rechts der Staatenverantwortlichkeit entschieden habe und so nur eine begrenzte Reichweite für die von Mexiko geforderte Wiedergutmachung biete. Dadurch verpasse der Gerichtshof die Gelegenheit, die völkerrechtlichen Grundlagen der Staatenverantwortlichkeit weiterzuentwickeln. Der Gerichtshof hätte zudem die Parteinahme Mexikos für seine 52 Staatsbürger als Ausübung seines diplomatischen Schutzes anerkennen sollen. Weiter kritisiert er, dass der Gerichtshof im vorliegenden Urteil grundlegend von seinen Feststellungen im LaGrand-Urteil abweiche. Ein innerstaatlicher Rechtsweg müsse nicht erschöpft werden, wenn er unwirksam oder aussichtslos sei. Nicht nur in den drei im Urteil genannten Fällen seien die Betroffenen durch die Anwendung der procedural default doctrine praktisch nicht in der Lage, eine Verletzung aus Artikel 36 WKK vor US-amerikanischen Gerichten geltend zu machen. Dies habe der Gerichtshof zwar erkannt, doch sei er zu zurückhaltend bezüglich der daraus folgenden Wiedergutmachung gewesen. Ferner sei es falsch, dass Informationen, die dem Entsendestaat anders als durch Unterrichtung des Empfangsstaat zugekommen seien, die konsularische Posten trotzdem befähigen könnten, rechtlichen Beistand zu organisieren. Eine Überprüfung der im Urteil angeführten Fälle zeige, dass in den meisten, wenn nicht sogar in allen, rechtlicher Beistand von Anfang an dringend nötig gewesen wäre. Weiterhin merkt Sepúlveda an, dass eine gänzliche Wiedergutmachung schwerlich erreicht werden könne, wenn der vieldeutige Begriff „bei freier Wahl der Mittel“ nicht durch Angabe einiger spezieller Maßnahmen ergänzt werde. Außerdem hätte der Gerichtshof das Bedürfnis Mexikos nach Einstellung der Verletzungen von Artikel 36 WKK feststellen sollen, weil eine andauernde Verletzung vorläge.

Die Rechtsprechung des IGH im Jahre 2004

737

D. Gutachtenverfahren betreffend die Rechtsfolgen des Mauerbaues in den besetzten palästinensischen Gebieten Gutachten vom 9. Juli 200466 Zusammensetzung des Gerichthofes: Präsident Shi; Vizepräsident Ranjeva; Richter Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka. I. Hintergründe und Zusammenhänge des Falles und des Antrags

Am 8. Dezember 2003 bat die GV im Zuge ihrer zehnten dringlichen Sondersitzung gemäß Artikel 96 Abs. 1 der Satzung der Vereinten Nationen (SVN)67 um die Erstellung eines Gutachtens. Der Gerichtshof solle klären, welche Rechtsfolgen der Mauerbau durch die Besatzungsmacht Israel in den besetzten palästinensischen Gebieten, inklusive in und um Ost-Jerusalem, in Bezug auf die Regeln und Prinzipien des Völkerrechts habe. Insbesondere solle der Gerichtshof dabei die vierte Genfer Konvention von 194968 (4. GK) und die relevanten Resolutionen des Sicherheitsrat (SR) und der GV beachten.69 Bis zum 3. Februar wurden schriftliche Stellungnahmen von den Vereinten Nationen (VN), 44 ihrer Mitglieder, Palästina, der Liga der arabischen Staaten und der Organisation der Islamischen Konferenz eingereicht.70 Zur öffentlichen Anhörung fanden sich letztendlich Palästina wie auch Südafrika, Algerien, Saudi-Arabien, Bangladesh, Belize, Kuba, Indonesien, Jordanien, Madagaskar, Malaysia, Senegal, der Sudan, die Türkei, die Liga der arabischen Staaten und die Organisation der Islamischen Konferenz ein.71 66

Das Gutachten sowie die Erklärung und alle Sondervoten sind abrufbar unter: http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm. Zu diesem Gutachten ausführlich Andrea Bianchi, Dismantling the Wall: The ICJ’s Advisory Opinion and its Likely Impact on International Law, GYIL, vol. 47, 2004, 343. 67 Charter of the United Nations, 26. Juni 1945, UNCIO, vol. 15, 335. 68 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12. August 1949, UNTS, vol. 75, 287. 69 GV-Res. ES-10/14 (2003). 70 Press Release 2004/5 vom 3. Februar. 71 Press Release 2004/9 vom 18. Februar.

738

René Groß und Sue Stubbe

II. Rechtliche Erwägungen des Gerichthofes

1. Zulässigkeit des Gutachtens Der Gerichtshof bejaht zunächst seine Zuständigkeit.72 Die GV sei gemäß Artikel 96 SVN berechtigt gewesen, durch die Resolution ES-10/14 ein Gutachten vom Gerichtshof anzufordern. Die Zuständigkeit des Gerichts wiederum ergebe sich aus Artikel 65 Abs. 1 des IGH-Statuts. Der Gerichtshof erklärt, die GV könne ein Gutachten anfordern, obwohl der SR mit dem Konflikt zwischen Israel und Palästina beschäftigt gewesen sei. Die Kompetenz des SR gemäß Artikel 12 Abs. 1 SVN gehe in diesem Fall nicht vor, weil die Anforderung, keine „recommendation“ der GV „with regard to [a] dispute or situation“ im Sinne des Artikel 12 Abs. 1 SVN darstelle.73 Es war zudem vorgebracht worden, dass die GV bei der Berufung und Durchführung der zehnten dringlichen Sondersitzung nicht den Vorraussetzungen der Uniting for Peace-Resolution74 gefolgt sei.75 Nach diesen müsse der SR aufgrund eines Vetos eines der ständigen Mitglieder des SR darin gescheitert sein, seine Aufgabe zur Wahrung des Friedens und der Sicherheit wahrzunehmen. Außerdem müsse eine Bedrohung für den Frieden vorliegen.76 Laut Gericht waren diese Voraussetzungen im vorliegenden Fall erfüllt.77 Argumente bezüglich behaupteter prozessualer Unregelmäßigkeiten bei der GV-Sitzung am 8. Dezember und deren Relevanz für den Gutachtenantrag lehnt das Gericht ebenfalls ab.78 Des Weiteren handele es sich bei der Gutachtenfrage sehr wohl um eine „rechtliche Frage“ im Sinne von Artikel 96 Abs. 1 SVN und Artikel 65 Abs. 1 IGH-Statut, die der Gerichtshof entscheiden könne.79 Auch schließe der Mangel an Bestimmtheit der Frage die Zuständigkeit des Gerichts nicht aus. Vielmehr bedürfe es im Falle solcher Unbestimmtheiten der Klärung durch Interpretation von Seiten des Ge-

72 73 74 75 76 77 78 79

Gutachten vom 9. Juli 2004 (Anm. 66), Rz. 42. Id., Rz. 24–25. GV-Res. 377 A (V) vom 3. November 1950. Gutachten vom 9. Juli 2004 (Anm. 66), Rz. 29. Id., Rz. 30. Id., Rz. 31. Id., Rz. 33–35. Id., Rz. 37.

Die Rechtsprechung des IGH im Jahre 2004

739

richts.80 Schließlich befindet sich der Gerichtshof trotz des vorgebrachten politischen Charakters der Frage für zuständig, das Gutachten zu erstellen.81 2. Ermessen des Gerichtshofes, die Abgabe des Gutachtens abzulehnen Als nächstes kommt der Gerichtshof zu dem Ergebnis, dass keine entscheidenden Gründe vorlägen, das Ermessen gemäß Artikel 65 Abs. 1 IGH-Statut dahingehend auszuüben, das Gutachten nicht abzugeben.82 Zunächst war vorgebracht worden, das Gericht solle die Gutachtenanfrage ablehnen, weil diese eine umstrittene Angelegenheit zwischen Israel und Palästina betreffe, in deren gerichtliche Entscheidung Israel nicht eingewilligt habe. Der Gerichtshof lehnt dieses Argument ab, weil ein Mangel an Zustimmung von Seiten eines Staates keine Bedeutung für die Erstellung eines Gutachtens habe. Außerdem sei das Gutachten von direkter Bedeutung für die VN und nicht nur von Bedeutung im bilateralen Verhältnis zwischen Israel und Palästina.83 Ein Gutachten behindere auch keine politisch ausgehandelte Lösung des Israel-Palästina Konflikts.84 Zudem befindet das Gericht, dass ihm genug Informationen und Beweise zur Verfügung stünden, ein Gutachten abzugeben, und betont, dass es der Einschätzung der GV unterliege, ob das Gutachten sinnvoll sei.85 3. Hauptsache In der Hauptsache analysiert der Gerichtshof zunächst die zu beantwortende Gutachtenfrage.86 Er stellt darauf kurz den historischen Hintergrund des IsraelPalästina-Konflikts dar,87 um anschließend die schon durchgeführten Arbeiten an der Mauer mit Hilfe der ihm zur Verfügung gestellten Informationen zu beschreiben.88 80 Id., Rz. 38; siehe IGH, Legality of the Threat or Use of Nuclear Weapons, Gutachten vom 8. Juli 1996, ICJ Reports 1996-I, 234, Rz. 13. 81 Gutachten vom 9. Juli 2004 (Anm. 66), Rz. 41. 82 Id., Rz. 65. 83 Id., Rz. 46–49. 84 Id., Rz. 51–53. 85 Id., Rz. 55–62. 86 Id., Rz. 66–69. 87 Id., Rz. 70–78. 88 Id., Rz. 79–85.

740

René Groß und Sue Stubbe

a) Anwendbares Recht Weiter bestimmt das Gericht die für die Vornahme des Gutachtens relevanten völkerrechtlichen Normen. Von Bedeutung seien vor allem das Gewaltverbot, niedergelegt in Artikel 2 Abs. 4 SVN und Resolution 2625 der GV,89 und das gewohnheitsrechtliche Prinzip der Illegalität der gewaltsamen Aneignung von Territorium.90 Zusätzlich seien das Selbstbestimmungsrecht der Völker und das humanitäre Völkerrecht, besonders die auch als Gewohnheitsrecht geltende Haager Landkriegsordnung (HLKO)91 und die 4. GK von 1949, für die Erstellung des Gutachtens wichtig.92 Die 4. GK sei auch in den Palästinensergebieten, welche vor dem Sechtsagekrieg 1967 östlich der Demarkationslinie von 1949 lagen und von Israel während des Konflikts besetzt wurden, anwendbar.93 Letztendlich fänden auch der Internationale Pakt über bürgerliche und politische Rechte,94 der Internationale Pakt über wirtschaftliche, soziale und kulturelle Rechte95 und das Übereinkommen über die Rechte des Kindes96 in den besetzten Palästinensergebieten Anwendung.97 b) Verletzung dieser Normen durch den Mauerbau Anschließend wendet sich der Gerichtshof der Frage zu, welche der genannten Regeln und Prinzipien durch den Mauerbau verletzt worden seien. Der Gerichtshof stellt zunächst fest, dass die durch die israelische Regierung festgelegte Route der Mauer innerhalb der closed area (Fläche zwischen der Mauer und der Demarkationslinie) ungefähr 80 % der in den besetzten Palästinenser89

GV-Res. 2625 (XXV) vom 24. Oktober 1970. Gutachten vom 9. Juli 2004 (Anm. 66), Rz. 87. 91 Convention (IV) Respecting the Laws and Customs of War on Land, 18. Oktober 1907, abgedruckt in: Dietrich Schindler/Jirí Toman, The Laws of Armed Conflicts, 3. Aufl. 1988, 69 (HLKO). 92 Gutachten vom 9. Juli 2004 (Anm. 66), Rz. 88–101. 93 Id., Rz. 89–101. 94 International Covenant on Civil and Political Rights, GA-Res. 2200A (XXI) vom 16. Dezember 1966 (IPbürgR). 95 International Covenant on Economic, Social and Cultural Rights, GA-Res. 2200A (XXI) vom 16. Dezember 1966 (IPwirtR). 96 Convention on the Rights of the Child, GA-Res. 44/25 vom 20. November 1989. 97 Gutachten vom 9. Juli 2004 (Anm. 66), Rz. 102–113. 90

Die Rechtsprechung des IGH im Jahre 2004

741

gebieten lebenden israelischen Siedler einschließe.98 Aufgrund dessen sieht das Gericht, wie bereits zuvor der SR, in der israelischen Politik der Gründung von Siedlungen in den Palästinensergebieten eine Verletzung von Artikel 49 Abs. 6 der 4. GK.99 Des Weiteren äußert das Gericht die Befürchtung, dass die derzeitige Route der Mauer die zukünftige Grenze zwischen beiden Staaten im Voraus festlege. Es betrachtet dabei den Mauerbau und das damit verbundene Régime als Schaffung eines fait accompli. Dies könne eine permanente Situation hervorrufen, durch die der Mauerbau einer de facto-Annektierung gleichkäme.100 Der Gerichtshof kommt zu dem Schluss, dass der Mauerbau und die damit zusammenhängenden Maßnahmen die Ausübung des Rechts auf Selbstbestimmung der Palästinenser schwerwiegend einschränke und Israel die Verpflichtung, dieses Recht zu respektieren, verletzt habe.101 Danach betrachtet er mit Hilfe der vorgebrachten Informationen, inwieweit der Mauerbau und die Entstehung der closed area Einfluss auf das tägliche Leben der in den besetzten Gebieten lebenden Palästinenser haben. Folgen für das tägliche Leben seien z. B. Zerstörung von Privateigentum, Einschränkung der Fortbewegungsfreiheit, Beschlagnahmung von landwirtschaftlich genutzten Gebieten, Abschneiden des Zugangs zu Wasserquellen.102 Daher verstoße der Mauerbau gegen Artikel 46, 52 HLKO und Artikel 53 der 4. GK. Außerdem werde die Fortbewegungsfreiheit der Bewohner der besetzten Gebiete (Artikel 12 Abs. 1 IPbürgR) sowie die Ausübung der Rechte auf Arbeit (Artikel 6 und 7 IPwirtR), Gesundheit (Artikel 12 IPwirtR), Bildung (Artikel 13 und 14 IPwirtR) und einen adäquaten Lebensstandard (Artikel 11 IPwirtR) behindert.103 Insbesondere werden die entsprechenden Rechte des Kindes, geschützt durch Artikel 24, 27, 28 des Übereinkommens über die Rechte des Kindes, verletzt. Schließlich neige der Mauerbau, verbunden mit der Gründung von israelischen Siedlungen, zur Veränderung der demografischen Zusammensetzung der besetz-

98

Id., Rz. 119, 122. Id., Rz. 120. 100 Id., Rz. 121. 101 Id., Rz. 122. 102 Id., Rz. 133. 103 Id., Rz. 132, 134. 99

742

René Groß und Sue Stubbe

ten palästinensischen Gebiete und stehe somit im Widerspruch zu Artikel 49 Abs. 4 der 4. GK und den relevanten SR-Resolutionen.104 Als letzten Punkt überprüft der Gerichtshof, ob Israel sich auf die Derogationsklausel des Artikels 53 der 4. GK oder auf die in den Menschenrechtsschutzinstrumenten enthaltenen Derogationsklauseln aufgrund militärischer Notwendigkeit oder Erfordernissen der nationalen Sicherheit oder der öffentlichen Ordnung hätte berufen können. Im Ergebnis verneint er dies, weil er den von Israel festgelegten Verlauf der Mauer für nicht notwendig erachtet, um den von Israel vorgebrachten Sicherheitszielen nachzukommen.105 Letztendlich erachtet das Gericht keine der von Israel für den Mauerbau vorgebrachten Rechtfertigungsgründe, wie das Recht auf Selbstverteidigung und Notstand, für einschlägig.106 c) Rechtsfolgen der Verletzungen aa) Rechtsfolgen für Israel Der Gerichtshof legt anschließend die Rechtsfolgen der Verletzungen für Israel fest. Israel müsse zunächst das Recht der Palästinenser auf Selbstbestimmung respektieren und seinen Verpflichtungen aus dem humanitärem Völkerrecht und den Menschenrechtschutzverträgen nachkommen. Außerdem müsse es den freien Zugang zu den Heiligen Stätten der Palästinenser unter seiner Kontrolle gewährleisten.107 Zudem müsse es die Verletzungen gegen das Völkerrecht, welche sich aus dem Mauerbau ergeben, beenden und die weiteren Arbeiten unverzüglich einstellen. Israel müsse des Weiteren unverzüglich die Mauer und die dazugehörige Struktur demontieren. Auch seien alle gesetzgeberischen und behördlichen Handlungen bezüglich des Mauerbaues, mit Ausnahme der Regelungen zur Zahlung von Reparationen, unverzüglich außer Kraft zu setzen oder aufzuheben. Schließlich müsse an alle natürlichen und juristi-

104 Id., Rz. 134; SR-Res. 446 vom 22. März 1979; SR-Res. 452 vom 20. Juli 1979; SR-Res. 465 vom 1. März 1980. 105 Gutachten vom 9. Juli 2004 (Anm. 66), Rz. 135–137. 106 Id., Rz. 138–142. 107 Id., Rz. 149.

Die Rechtsprechung des IGH im Jahre 2004

743

schen Personen, die durch den Bau Schaden erlitten hätten, Schadensersatz gezahlt oder entsprechende Restitution geleistet werden.108 bb) Rechtsfolgen für andere Staaten In Bezug auf die Verpflichtungen der anderen Staaten stellt das Gericht fest, dass alle Staaten verpflichtet seien, die sich aus dem Mauerbau ergebene illegale Situation nicht anzuerkennen. Sie dürften keine Hilfe oder Unterstützung leisten, um die durch den Bau geschaffenen Situation aufrechtzuerhalten. Mithin müssten alle Staaten dazu beitragen, jedes Hindernis gegen die Ausübung des Selbstbestimmungsrechts unter Respektierung der SVN und des Völkerrechts zu beseitigen. Zudem hätten alle Vertragsparteien des 4. GK die Verpflichtung, zu gewährleisten, dass Israel seinen Verpflichtungen aus dem humanitären Völkerrecht aus dieser Konvention nachkomme. Als Begründung führt der Gerichtshof an, dass die Verpflichtung, das Selbstbestimmungsrechts zu respektieren, und bestimmte Verpflichtungen aus dem humanitärem Völkerrecht erga omnesCharakter hätten.109 Letztendlich müssten die VN, insbesondere die GV und der SR, entscheiden, welche weiteren Schritte notwendig seien, um die illegale Situation unter Beachtung des gegebenen Gutachtens zu beenden.110 Abschließend erklärt das Gericht, dass sowohl Israel wie auch Palästina den Regeln des humanitären Völkerrechts genau nachkommen müssen. Die tragische Situation in der Region, die durch illegale Handlungen und unilaterale Entscheidungen auf beiden Seiten entstanden sei, könne nur durch die Umsetzung der relevanten Resolutionen des SR beendet werden. Zusätzlich sei es die Pflicht des Gerichts, die GV auf die Notwendigkeit aufmerksam zu machen, die genannten Anstrengungen zu unterstützen. Nur so könne so schnell wie möglich eine Lösung für die zahlreichen Probleme auf Basis des Völkerrechts ausgehandelt und ein palästinensischer Staat gegründet werden.111

108 109 110 111

Id., Rz. 150–153. Id., Rz. 155–159. Id., Rz. 160. Id., Rz. 162.

744

René Groß und Sue Stubbe

III. Entscheidungsformel

Aus diesen Gründen kommt der Gerichtshof zu dem Ergebnis, dass er zuständig ist, das erbetene Gutachten zu erstellen (15 : 0 Stimmen) und dass er dieser Bitte auch nachkommt (14 : 1 Stimmen112). Der Gerichtshof beantwortet die von der GV gestellte Frage wie folgt: – Der Mauerbau und das dazugehörige Régime, das durch Israel als Besatzungsmacht in den besetzten Palästinensergebieten, einschließlich in und um Ost-Jerusalem, geschaffen wurde, verstoßen gegen das Völkerrecht (14 : 1 Stimmen113), – Israel ist verpflichtet, die Völkerrechtsverletzungen zu beenden, die weiteren Arbeiten am Mauerbau unverzüglich einzustellen, die dazugehörige Struktur zu demontieren und alle gesetzgeberischen und behördlichen Handlungen gemäß Rz. 151 des Gutachtens unverzüglich außer Kraft zu setzen oder aufzuheben (14 : 1 Stimmen114), – Israel ist verpflichtet, Reparationen für den durch den Mauerbau entstandenen Schaden zu leisten (14 : 1 Stimmen115), – Alle Staaten sind verpflichtet, die sich aus dem Mauerbau ergebene illegale Situation nicht anzuerkennen und keine Hilfe oder Unterstützung zu leisten, um die Situation aufrechtzuerhalten; alle Vertragsparteien der 4. GK haben zusätzlich die Verpflichtung, unter Respektierung der SVN und des Völkerrechts sicherzustellen, dass Israel dem in dieser Konvention niedergelegten humanitären Völkerrecht nachkommt (13 : 2 Stimmen116), – Die VN, insbesondere die GV und der SR, sollen überlegen, welche weiteren Handlungen notwendig sind, um die illegale Situation unter Beachtung des erbrachten Gutachtens zu beenden (14 : 1 Stimmen117).

112 113 114 115 116 117

Dagegen stimmte Richter Buergenthal. Dagegen stimmte Richter Buergenthal. Dagegen stimmte Richter Buergenthal. Dagegen stimmte Richter Buergenthal. Dagegen stimmten die Richter Kooijmans und Buergenthal. Dagegen stimmte Richter Buergenthal.

Die Rechtsprechung des IGH im Jahre 2004

745

IV. Erklärung und Sondervoten

1. Erklärung von Richter Buergenthal Nach der Meinung von Richter Buergenthal hätte das Gericht sein Ermessen dahingehend ausüben sollen, die Erstellung des erbetenen Gutachtens abzulehnen, weil ihm nicht genügend Informationen und Beweismittel zur Verfügung stünden. Aus diesem Grund stimme er auch gegen die restlichen Entscheidungen. Er gibt zu, dass man bei einer grundlegenden Analyse aller relevanten Fakten durchaus zu dem Ergebnis hätte kommen können, dass der Mauerbau gegen Völkerrecht verstoße. Aber ohne die notwendigen Informationen könne man auch keine Aussagen über eventuelle israelische Rechtfertigungsgründe treffen und somit erst recht zu keiner Entscheidung kommen. Im Zuge seiner Erläuterungen stellt er außerdem klar, dass das Recht auf Selbstverteidigung nach Artikel 51 SVN nicht nur gegen staatliche Akteure anwendbar sei, sondern auch auf Akte, die ihren Ursprung in den besetzten Gebieten hätten und gegen Israel gerichtet seien. Die Entscheidungen des Gerichts bezüglich der Verletzungen von Menschenrechtsverträgen und des humanitären Völkerrechts können zudem nicht überzeugen, weil das Gericht sich nicht mit den Fakten und Beweisen, besonders in Bezug auf den von Israel behaupteten militärischen Notstand und die Erfordernisse seiner nationaler Sicherheit, befasst habe. Eine Ausnahme sieht Buergenthal jedoch im Hinblick auf Artikel 49 Abs. 6 der 4. GK gegeben. Letztendlich könne man zwar argumentieren, dass das Gericht sich nur allein auf die Informationen aus den VN Berichten stützen könne, weil Israel es versäumt habe, die Fakten darzulegen. Im Gegensatz zum Streitverfahren unterliege Israel im Gutachtenverfahren aber keiner solchen Verpflichtung, daher sei dieses Argument abzulehnen. 2. Sondervotum von Richter Koroma In seinem Sondervotum möchte Richter Koroma die folgenden Punkte gesondert hervorgehoben haben. Zunächst erklärt er, dass der Mauerbau die Annexion von Teilen des besetzten Gebietes und die Enteignung von palästinensischen Land bewirke. Deshalb verstoße er gegen Völkerrecht, denn eine Besatzungsmacht dürfe nicht einseitig durch ihre Handlungen Veränderungen des Status des von ihr besetzten Gebietes herbeiführen. Die vorgebrachten

746

René Groß und Sue Stubbe

Einreden hinsichtlich der Zuständigkeit des Gerichts und der rechtlichen Zulässigkeit könnten insbesondere im Lichte der SVN, des IGH-Statuts und der Rechtsprechung des Gerichthofes nicht aufrechterhalten werden. Er begrüßt die Feststellung des Gerichts, dass der Mauerbau ein Hindernis für die Realisierung des Rechts der Palästinenser auf Selbstbestimmung, einschließlich des Rechts auf die Gründung eines eigenen Staates, darstelle. Schließlich betont er den autoritativen Charakter des Urteils und weist darauf hin, dass es jetzt an der GV sei, das Gutachten zu nutzen, um eine gerechte und friedliche Lösung des IsraelPalästina Konflikts herbeizuführen. 3. Sondervotum von Richterin Higgins Richterin Higgins führt in ihrem Sondervotum zunächst einige Punkte hinsichtlich der Frage des Ermessens des Gerichts aus. Des Weiteren bewertet sie die Vorgehensweise des Gerichts, den Mauerbau nur für sich allein und nicht im gesamten Kontext des Israel-Palästina Konflikts rechtlich zu beurteilen, als nicht wünschenswert. Sie führt auch genauer aus, welche Maßnahmen das Gericht hätte ergreifen müssen, um ein ausgeglichenes und gerechtes Gutachten zu erstellen, das sowohl Israel wie auch Palästina daran erinnere, ihren Verpflichtungen aus dem internationalen Recht nachzukommen. Obwohl Richterin Higgins die Meinung, dass der Mauerbau die Artikel 46 und 52 HLKO und Artikel 53 der 4.GK verletze, teilt, stimmt sie nicht vollkommen mit der Begründung überein. Insbesondere bezweifelt sie, dass der Mauerbau ein „schwerwiegendes Hindernis“ für das Selbstbestimmungsrecht der Palästinenser darstelle. Schließlich stimmt sie auch den im Gutachten festgelegten Rechtsfolgen zu, glaubt jedoch nicht, dass die Verpflichtungen für die anderen Mitglieder der VN auf erga omnes-Verpflichtungen beruhten. 4. Sondervotum von Richter Kooijmans Richter Kooijmans stimmt nur mit dem vorletzten Punkt der Entscheidungsformel des Gerichts nicht überein. Seine Entscheidung beruht auf folgenden Gründen: Zunächst sei es nicht notwendig, die Rechtsfolgen für die anderen Staaten zu ermitteln. Die Gutachtenanfrage beinhalte keine solche Frage. Es könne auch keine Analogie zum Gutachten im Namibia-Fall gezogen werden. Die Frage im Namibia-Fall habe sich gerade auf die Rechtsfolgen für andere

Die Rechtsprechung des IGH im Jahre 2004

747

Staaten bezogen.118 Folglich müsse es im vorliegenden Fall einen besonderen Grund für die Erörterung geben. Ein solcher liege laut Gericht darin, dass die Verpflichtungen Israels auch erga omnes Verpflichtungen enthielten. Diese Begründung und deren Herleitung hält Richter Kooijmans für nicht schlüssig. Zusätzlich hält er die Formulierung des vorletzten Punktes der Entscheidungsformel für schwach. Es sei schwierig vorherzusehen, was von den Staaten erwartet werden könne. Die Entscheidungen eines Gerichts sollten sich direkt auf das Verhalten des Adressaten erstrecken. Diesem Erfordernis sei weder im ersten noch im letzten Teil dieses Punktes nachgekommen worden. Hinsichtlich der Hauptsache löst sich Richter Kooijmans von der Urteilsfindung. Er ist nicht der Meinung, dass der Mauerbau eine Verletzung der israelischen Verpflichtung der Respektierung des Selbstbestimmungsrechts der Palästinenser darstelle. 5. Sondervotum von Richter Al-Khasawneh Richter Al-Khasawneh stimmt mit dem Gutachten und dessen Begründung überein, möchte aber drei Punkte genauer erläutern. Erstens entspreche die Charakterisierung der israelischen Präsenz in den besetzten Palästinensergebieten als militärische Besatzung der langjährigen opinio juris der internationalen Gemeinschaft und werde von vielen Resolutionen und Regierungspositionen unterstützt. Zweitens macht er einige Äußerungen zur Frage der Demarkationslinie. Schließlich stellt er fest, dass eine Lösung des Problems durch Verhandlungen möglich sei. 6. Sondervotum von Richter Elaraby Richter Elaraby stimmt mit dem gesamten Gutachten überein, möchte aber einige Punkte ausgeführt haben. Zunächst legt er die Natur und den Umfang der Verpflichtungen der VN bezüglich Palästinas dar. Dann spricht er den internationalen rechtlichen Status der besetzten Palästinensergebiete sowie die rechtlichen Auswirkungen des Mandats über Palästina und seiner Beendigung durch die GV an. Im dritten Teil seines Sondervotums analysiert er die Folgen der langjährigen israelischen Besatzung und die Beschränkungen der Regeln des jus 118 Siehe genauer IGH, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Gutachten vom 21. Juni 1971, ICJ Reports 1971, 51, Rz. 108.

748

René Groß und Sue Stubbe

in bello, welche den Schutz von Nichtkombattanten absichern. Seiner Meinung nach hätte die wichtige Feststellung, dass der Mauerbau gegen das Selbstbestimmungsrecht verstoße, in die Entscheidungsformel mit aufgenommen werden müssen. 7. Sondervotum von Richter Owada Richter Owada stimmt mit den Schlussfolgerungen hinsichtlich der Einreden, der Zulässigkeit des Gutachtens und den meisten Punkten der Hauptsache überein. Insbesondere ist er der Meinung, dass das Gericht hinsichtlich des Rechts zur Erstattung eines Gutachtens nicht nur darüber Aussagen treffen solle, ob es der Bitte nach einem Gutachten nachkommen könne. Vielmehr hätte es klären müssen, auf welche Art es Recht sprechen solle, um Fairness in der Handhabung des Rechts im vorliegenden Fall zu garantieren. E. Fall betreffend die Rechtmäßigkeit der Anwendung bewaffneter Gewalt (Serbien und Montenegro gegen Belgien, Kanada, Frankreich, Deutschland, Italien, Niederlande, Portugal und das Vereinigte Königreich) – Vorgängige prozessuale Einreden Urteile vom 15. Dezember 2004119 Zusammensetzung des Gerichtshofes: Präsident Shi; Vizepräsident Ranjeva; Richter Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Ad-hocRichter Kre a.

119

Die Urteile sowie alle Erklärungen und Sondervoten sind abrufbar unter: http://www.icj-cij.org/icjwww/idocket/iybe/iybeframe.htm (Belgien); http://www.icj-cij. org/icjwww/idocket/iyca/iycaframe.htm (Kanada); http://www.icj-cij.org/icjwww/ idocket/iyfr/iyfrframe.htm (Frankreich) http://www.icj-cij.org/icjwww/idocket/iyit/ iyitframe.htm (Italien); http://www.icj-cij.org/icjwww/idocket/iyge/iygeframe.htm (Deutschland); http://www.icj-cij.org/icjwww/idocket/iynl/iynlframe.htm (Niederlande); http:// www.icj-cij.org/icjwww/idocket/iypo/iypoframe.htm (Portugal); http://www.icj-cij.org/ icjwww/idocket/iyuk/iyukframe (Vereinigtes Königereich).

Die Rechtsprechung des IGH im Jahre 2004

749

I. Hintergrund des Falles und Anträge der Parteien

Die NATO hatte am 24. März 1999 aufgrund der anhaltenden Menschenrechtsverletzungen in der serbischen Region Kosovo, und nach dem Scheitern der Rambouillet-Verhandlungen der Jugoslawien-Kontaktgruppe, Luftangriffe gegen strategische Ziele in Jugoslawien120 gestartet, um die Menschenrechtsverletzungen im Kosovo zu beenden. Am 29. April 1999 erhob Jugoslawien Klage gegen zehn NATO-Mitgliedstaaten. Diese hätten durch die anhaltenden Luftgangriffe auf das Territorium Jugoslawiens zahlreiche völkerrechtliche Verpflichtungen verletzt. Als Grundlage für die Jurisdiktion berief sich Jugoslawien gegenüber Belgien, Kanada, den Niederlanden, Portugal, Spanien und dem Vereinigten Königreich auf Artikel 36 Abs. 2 des IGH-Statuts sowie Artikel IX der Konvention über die Verhütung und Bestrafung von Völkermord.121 Gegenüber Belgien und den Niederlanden führte Jugoslawien später noch Artikel 4 des Übereinkommens zur Schlichtung, gerichtlicher Streitbeilegung und Schiedsgerichtsbarkeit zwischen Jugoslawien und Belgien bzw. den Niederlanden (Schlichtungsübereinkommen) als weitere Grundlage für die Zuständigkeit des Gerichtshofes an.122 Gegenüber Frankreich, Deutschland, Italien und den Vereinigten Staaten berief sich Jugoslawien bezüglich der Zuständigkeit auf Artikel IX der Völkermordkonvention und verwies ansonsten auf Artikel 38 Abs. 5 der IGH-VerfO.123 Unmittelbar nach Einreichung der Klage stellte Jugoslawien Anträge auf Erlass einstweiliger Maßnahmen nach Artikel 73 der IGH-VerfO, die der Gerichtshof allesamt mit der Begründung zurückwies,124 dass er keine prima facieZuständigkeit zur Anordnung einstweiliger Maßnahmen besitze. Außerdem 120

Seit dem 4. Februar 2004 Serbien und Montenegro. Soweit wie möglich wird im Folgenden, wie im Urteil, der Name Serbien und Montenegro verwendet, es sei denn, der Name wird im historischen Zusammenhang benutzt. 121 Urteile vom 15. Dezember 2004 (Anm. 119), Rz. 1 (Belgien, Kanada, Niederlande, Portugal). Convention on the Prevention and Punishment of the Crime of Genocide, 9. Dezember 1948, UNTS vol. 78, 277 (Völkermordkonvention). 122 Urteile vom 15. Dezember 2004 (Anm. 120), Rz. 7 (Belgien, Niederlande). 123 Id., Rz. 1 (Frankreich, Deutschland, Italien). 124 IGH, Case conerning Legality of Use of Force (Yugoslavia v. Belgium), Request for the Indication of Provisional Measures, Anordnungen vom 2. Juni 1999, ICJ Reports 1999, 140, Rz. 51. Am gleichen Tag ergingen weitere Anordnungen in den Verfahren gegen Kanada, 274, Rz. 47; Frankreich, 374, Rz. 39; Deutschland, 433, Rz. 38; Italien, 493, Rz. 39; die Niederlande, 558, Rz. 51; Portugal, 672, Rz. 50; Spanien, 773, Rz. 40; das Vereinigte Königreich, 840, Rz. 43; und die Vereinigten Staaten, 926, Rz. 34.

750

René Groß und Sue Stubbe

strich er die Verfahren gegen Spanien und die Vereinigten Staaten von der Liste.125 Belgien, Kanada, Frankreich, Deutschland, Italien, Niederlande, Portugal und das Vereinigte Königreich beantragten während der mündlichen Verhandlungen, der Gerichtshofmöge ihre Fälle von der Liste streichen bzw. feststellen, dass er unzuständig und/oder die Klagen unzulässig seien. Serbien und Montenegro beantragten, das Gericht möge über die Zuständigkeit ratione personae entscheiden und die vorgängigen prozessualen Einreden der beklagten Staaten zurückweisen und, wenn es rationae persone zuständig sei, das Verfahren bezüglich der Hauptsache anordnen.126 II. Rechtliche Erwägungen des Gerichtshofes

1. Zurückweisung der Fälle in limine litis Zunächst beschäftigt sich der Gerichtshof mit der Einrede, dass er als Folge der geänderten Einstellung des Klägers bezüglich der Frage der Zuständigkeit des Gerichts die Fälle in limine litus abweisen und von der Liste streichen könne, ohne weiter die Zuständigkeit zu untersuchen. Serbien und Montenegro hatten in einem Schriftsatz Bemerkungen und Behauptungen bezüglich der vorgängigen prozessualen Einreden der beklagten Parteien vorgebracht und darin erklärt, dass es eine bewiesene Tatsache sei, dass sie nicht Mitglied des IGHStatuts kraft VN-Mitgliedschaft gewesen seien. Nach einer Untersuchung der zahlreichen Argumente, auf welcher rechtlicher Grundlage der Gerichtshof dieser Einrede nachgeben solle, kommt er zu dem Schluss, dass ihm eine Abweisung in limine litus nicht möglich sei.127 Er sei nicht in der Lage, die veränderte Position Serbien und Montenegros so zu behandeln, als habe sie die rechtliche Folge einer Einstellung der Verfahren gemäß Artikel 88 und 89 IGH-VerfO. Die vorliegenden Streitigkeiten gehörten nicht

125

Id., Rz. 34 (Spanien, Vereinigte Staaten). Urteile vom 15. Dezember 2004 (Anm. 119), Rz. 24 (Belgien, Frankreich, Kanada, Italien); Rz. 23 (Vereinigtes Königreich, Portugal); Rz. 22 (Deutschland). 127 Id., Rz. 26–44 (Belgien); Rz. 25–43(Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 24–42 (Vereinigtes Königreich, Deutschland). 126

Die Rechtsprechung des IGH im Jahre 2004

751

zu den Fällen, in denen der Gerichtshof selbst das Verfahren beenden könne.128 Bezüglich des Argumentes, die Streitigkeit um die Zuständigkeit habe aufgehört, weil die Parteien nun einig seien, dass der Kläger zur fraglichen Zeit kein Mitglied des Statuts war, bemerkt der Gerichtshof, dass Serbien und Montenegro in seinen Anträgen trotzdem speziell um eine Entscheidung des Gerichtshofes bezüglich der Zuständigkeitsfrage gebeten hätten. Diese Frage sei rechtlicher Natur und könne deshalb unabhängig von den Standpunkten der Parteien beantwortet werden.129 Auch die materiell-rechtliche Streitigkeit bezüglich der Völkermordkonvention habe nicht aufgehört, da Serbien und Montenegro in keiner Weise ihre Klagepunkte bezüglich der Hauptsache zurückgenommen hätten. Schließlich erklärt der Gerichtshof, dass Serbien und Montenegro, indem sie den Gerichtshof um eine Entscheidung über die Zuständigkeit auf Grundlage bestimmter vermeintlich neuer Tatsachen über ihren eigenen rechtlichen Status gegenüber den VN baten, weder ihre Rechte verwirkt noch auf sie verzichtet haben. Deshalb sollten Serbien und Montenegro auch nicht davon ausgeschlossen werden, den gegenwärtigen Prozess vor dem Gerichtshof weiterzuführen.130 2. Serbien und Montenegros Zugang zum Gericht gemäß Artikel 35 Abs. 1 IGH-Statut Als nächstes untersucht der Gerichtshof, ob Serbien und Montenegro gemäß Artikel 35 Abs. 1 des Statuts Zugang zum Gericht erhalten können. Der Gerichtshof beginnt mit der Bemerkung, dass die Frage, ob Serbien und Montenegro zur Zeit der Einleitung des gegenwärtigen Verfahrens Mitglied des Statuts waren, grundlegend für die weiteren rechtlichen Erwägungen sei und deshalb zunächst untersucht werden müsse.131 Einige Beklagte hatten angeführt, dass Jugoslawien bzw. Serbien und Montenegro zu keiner Zeit Mitglied der VN und somit auch kein Mitglied des Statuts gemäß Artikel 93 Abs. 1 SVN gewesen sei. 128

Id., Rz. 36–38(Belgien); Rz. 35–37 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 34–36 (Vereinigtes Königreich, Deutschland). 129 Id., Rz. 26–44 (Belgien); Rz. 25–43 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 24–42 (Vereinigtes Königreich, Deutschland). 130 Id., Rz. 43 (Belgien); Rz. 42 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 41 (Vereinigtes Königreich, Deutschland). 131 Id., Rz. 46 (Belgien); Rz. 45 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 44 (Vereinigtes Königreich, Deutschland).

752

René Groß und Sue Stubbe

Daher stehe Serbien und Montenegro der Zugang zum Gerichtshof nicht gemäß Artikel 35 Abs. 1 IGH-Statut offen. Der Gerichtshof rekapituliert nun die Ereignisse bezüglich der rechtlichen Position des Klägers gegenüber den VN. Er stellt fest, dass in der Zeit von 1992–2000 der rechtliche Status der Bundesrepublik Jugoslawien nicht eindeutig festgestanden habe. Innerhalb der VN seien drei verschiedene Standpunkte bezogen worden.132 Sowohl der SR als auch die GV seien der Ansicht gewesen, dass die Bundesrepublik Jugoslawien nicht automatisch die Mitgliedschaft der früheren sozialistischen Bundesrepublik Jugoslawien in den VN weiterführen könne, sondern sich um die Mitgliedschaft in den VN bewerben müsse.133 Jugoslawien selbst hätte dagegen behauptet, der Nachfolgestaat der sozialistischen Bundesrepublik Jugoslawien zu sein.134 Das Sekretariat der VN habe, in Ermangelung einer maßgebenden Festlegung, die Praxis des status quo ante, die vor dem Zusammenbruch der sozialistischen Bundesrepublik Jugoslawien vorherrschte, weitergeführt.135 Der Gerichtshof betont, dass er vor diesem Hintergrund in seinem Urteil vom 3. Februar 2003 im Wiederaufnahmeverfahren zum Genocide Convention Case136 von einer Position sui generis gesprochen habe. Er habe damit jedoch keine endgültige und definitive Schlussfolgerung getroffen.137 Die uneindeutige Situation sei jedoch durch Jugoslawiens Aufnahme als neues Mitglied in die VN am 1. November 2000 beendet worden.138 Auf keinen Fall könne das Urteil im 132 Id., Rz. 54–65 (Belgien); Rz. 53–64 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 52–63 (Vereinigtes Königreich, Deutschland). 133 Id., Rz. 65–68 (Belgien); Rz. 64–67 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 63–66 (Vereinigtes Königreich, Deutschland). 134 Id., Rz. 69 (Belgien); Rz. 68 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 67 (Vereinigtes Königreich, Deutschland). 135 Id., Rz. 70–72 (Belgien); Rz. 69–71 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 68–70 (Vereinigtes Königreich, Deutschland). 136 IGH, Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Yugoslavia v. Bosnia and Herzegovina) (Yugoslavia v. Bosnia and Herzegovina), Preliminary Objections, Urteil vom 3. Februar 2003, ICJ Reports 2003, 1 (Wiederaufnahme-Urteil). 137 Urteile vom 15. Dezember 2004 (Anm. 119), Rz. 73–74 (Belgien); Rz. 72–73 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 71–72 (Vereinigtes Königreich, Deutschland). 138 Id., Rz. 75–79 (Belgien); Rz. 74–78 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 73–77 (Vereinigtes Königreich, Deutschland).

Die Rechtsprechung des IGH im Jahre 2004

753

Wiederaufnahmeverfahren so aufgefasst werden, als hätte es bereits über den rechtlichen Status Serbien und Montenegros gegenüber den VN oder in Beziehung zum IGH-Statut entschieden.139 Der Gerichtshof schließt daraus, dass Serbien und Montenegro zum Zeitpunkt der Einreichung der Klageschrift zur Einleitung dieser Verfahren kein Mitglied der VN und somit auch kein Mitgliedstaat des Statuts gewesen seien. Serbien und Montenegro sei somit der Zugang zum Gericht nach Artikel 35 Abs. 1 IGHStatut verwehrt.140 3. Serbien und Montenegros möglicher Zugang zum Gericht auf Grundlage von Artikel 35 Abs. 2 IGH-Statut Der Gerichtshof untersucht nun, ob Serbien und Montenegro nach Artikel 35 Abs. 2 IGH-Statut Zugang zum Gericht erhalten könnten. Er weist dabei zunächst auf seine Anordnung vom 8. April 1993 im Genocide Convention Case141 hin.142 In der Anordnung hatte der Gerichtshof erklärt, dass eine Zuständigkeitsklausel in einer multilateralen Konvention wie Artikel IX der Völkermordkonvention prima facie als „besondere Bestimmung“ in einem geltenden Vertrag angesehen werden könne. Diesbezüglich hatten einige der beklagten Staaten vorgetragen, dass „geltenden Verträge“ in Artikel 35 Abs. 2 IGH-Statut nur Bezug auf Verträge nehme, die bereits bei In-Kraft-Treten des IGH-Statuts, dass heißt am 24. Oktober 1945, galten. Die Aussage, die der Gerichtshof in seiner Anordnung vom 8. April 1993 getroffen hatte, sei nur eine provisorische Einschätzung gewesen, für deren erneute Untersuchung überzeugende Gründe vorlägen. Der Gerichtshof stimmt der letzteren Aussage zu, und wendet sich der Anwendung und Auslegung von Artikel 35 Abs. 2 IGH-Statut nach den in Artikel 31 139

Id., Rz. 90 (Belgien); Rz. 89 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 88 (Vereinigtes Königreich, Deutschland). 140 Id., Rz. 91 (Belgien); Rz. 90 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 89 (Vereinigtes Königreich, Deutschland). 141 IGH, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Request for the Indication of Provisional Measures, Anordnung vom 8. April 1993, ICJ Reports 1993, 325 ff. 142 Urteile vom 15. Dezember 2004 (Anm. 119), Rz. 73–74 (Belgien); Rz. 72–73 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 71–72 (Vereinigtes Königreich, Deutschland).

754

René Groß und Sue Stubbe

Wiener Vertragsrechtskonvention143 niederlegten gewohnheitsrechtlichen Grundsätzen zu.144 Dabei stellt der Gerichtshof zunächst fest, dass sich aus dem Wortlaut zwei mögliche Interpretationen ergeben. Es käme zum einem in Betracht, dass sich Artikel 35 Abs. 2 IGH-Statut auf Verträge beziehe, die bereits bei InKraft-Treten des Statuts in Kraft waren. Zum anderen könnte der Artikel auch auf Verträge Bezug nehmen, die zum Zeitpunkt der Verfahrenseinleitung in Kraft waren.145 Daher bestimmt der Gerichtshof weiter Zweck und Ziel des Artikels 35 IGHStatut. Diese lägen darin, die Bedingungen des Zugangs zum Gericht festzulegen. Während Abs. 1 den Zugang für alle Mitgliedstaaten des Statuts eröffne, sei es Zweck des Abs. 2, den Zugang für Nichtmitgliedstaaten zu eröffnen. In diesem Zusammenhang sei es mit dem Hauptziel des Artikel 35 IGH-Statut unvereinbar, dass in Zukunft Staaten, die nicht Mitglied des Statuts seien, Zugang zum Gericht erhalten könnten, indem sie lediglich miteinander Verträge abschlössen, die eine Bestimmung mit dieser Folge beinhalteten. Daher müsse Artikel 35 Abs. 2 so ausgelegt werden, dass er sich auf Verträge beziehe, die bereits bei In-Kraft-Treten des Statuts in Kraft waren.146 Diese Schlussfolgerung werde zudem auch durch die travaux préparatoires bekräftigt. Da Artikel 35 Abs. 2 des Statuts des Ständigen Internationalen Gerichtshof (StIGH-Statut) eine weitgehend identische Bestimmung enthielt, untersucht der Gerichtshof zunächst diesen. Er stellt dabei fest, dass Artikel 35 Abs. 2 StIGH-Statut als Ausnahme zum Grundsatz in Abs. 1 gedacht gewesen sei, um die Fälle abzudecken, die von Abkommen erfasst würden, die in den Nachwirkungen des Ersten Weltkrieges noch vor In-Kraft-Treten des StIGHStatuts abgeschlossen wurden. Da es keine Hinweise darauf gäbe, dass bei der Übernahme der Bestimmung in das IGH-Statut eine Erweiterung des Zugangs zum Gericht vorgesehen war, kommt der Gerichtshof zu dem Schluss, dass Artikel 35 Abs. 2 IGH-Statut mutatis muntandis genau wie die parallele Bestimmung des StIGH-Statuts interpretiert werden müsse. Folglich beziehe sich Ar143

Vienna Convention on the Law of Treaties, 23. Mai 1969, UNTS, vol. 1155, 331. Urteile vom 15. Dezember 2004 (Anm. 119), Rz. 99–100 (Belgien); Rz. 98–99 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 97–98 (Vereinigtes Königreich, Deutschland). 145 Id., Rz. 101 (Belgien); Rz. 100 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 99 (Vereinigtes Königreich, Deutschland). 146 Id., Rz. 102 (Belgien); Rz. 101 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 100 (Vereinigtes Königreich, Deutschland). 144

Die Rechtsprechung des IGH im Jahre 2004

755

tikel 35 Abs. 2 auf Verträge, die bereits bei In-Kraft-Treten des IGH-Statuts in Kraft waren.147 Der Gerichtshof erklärt, dass selbst bei der Annahme, dass Serbien und Montenegro zur fraglichen Zeit Mitglied der Völkermordkonvention gewesen seien, Artikel 35 Abs. 2 IGH-Statut keine ausreichende Grundlage für den Zugang zum Gericht biete. Denn die Konvention trat erst am 12. Januar 1951, also nach In-Kraft-Treten des Statuts, in Kraft. Daher erachtet das Gericht es auch für nicht notwendig zu entscheiden, ob Serbien und Montenegro bei Einleitung des Verfahrens Mitglied der Völkermordkonvention waren.148 4. Zuständigkeit auf Grundlage des Artikel 4 der Schlichtungsübereinkommen In den Fällen gegen Belgien und den Niederlanden hatte sich Serbien und Montenegro zusätzlich auch auf Artikel 4 des Schlichtungsabkommens mit Belgien bzw. mit den Niederlanden als Grundlage der Zuständigkeit des Gerichtshof berufen. Daher beschäftigt sich der Gerichtshof in diesen Fällen mit der Frage, ob das Schlichtungsabkommen ein geltender Vertrag im Sinne des Artikel 35 Abs. 2 IGH-Statut sei und so als Grundlage für die Jurisdiktion dienen könne.149 Der Gerichtshof merkt an, dass Artikel 35 IGH-Statut den Zugang zum gegenwärtigen Gerichtshof und nicht zum Ständigen Internationalen Gerichtshof (StIGH) betreffe. Die Bedingungen für eine Übertragung der Zuständigkeit vom StIGH auf den gegenwärtigen Gerichtshof seien dagegen in Artikel 37 niedergelegt. Artikel 37 IGH-Statut könne jedoch nur in Fällen angeführt werden, welche als Streitigkeiten zwischen Mitgliedern des Statuts gemäß Artikel 35 Abs. 1 und nicht auf der Grundlage des Artikels 35 Abs. 2 vor das Gericht gebracht werden. Er stellt unter Bezugnahme auf sein Urteil im Barcelona Traction Fall150 klar, dass, wenn ein Vertrag, der die Zuständigkeit des StIGH vorsehe, in Verbindung 147

Id., Rz. 103–113 (Belgien); Rz. 102–112 (Kanada, Frankreich, Italien, Niederlande, Portugal); Rz. 101–111 (Vereinigtes Königreich, Deutschland). 148 Id., Rz. 114 (Belgien); Rz. 113 (Kanada, Frankreich, Italien, Niederlande); Rz. 116 (Portugal); Rz. 112 (Vereinigtes Königreich, Deutschland). 149 Id., Rz. 115–126 (Belgien); Rz. 114–125 (Niederlande). 150 IGH, Case concerning the Barcelona Traction, Light und Power Company, Limited (Belgium v. Spain), Preliminary Objections, Urteil vom 24. Juli 1964, ICJ Reports 1964, 32.

756

René Groß und Sue Stubbe

mit Artikel 37 des IGH-Statuts angeführt werde, der Gerichtshof sich überzeugen müsse, dass sowohl der Kläger als auch der Beklagte im Zeitpunkt, in dem die Streitigkeit unterbreitet wurde, Mitglieder des Statuts waren.151 Im Hinblick auf seine Feststellung, dass Serbien und Montenegro zum Zeitpunkt der Einleitung der Verfahren kein Mitglied des Statuts waren, kommt der Gerichtshof zu dem Schluss, dass Artikel 37 IGH-Statut Serbien und Montenegro keinen Zugang nach Artikel 35 Abs. 2 IGH-Statut auf Grundlage des Schlichtungsabkommens zum Gericht gewährt. Dabei sei es gleichgültig, ob das Abkommen am 29. April 1999 zum Zeitpunkt der Einreichung der Klage in Kraft war.152 5. Nichtnotwendigkeit der Erwägung der anderen vorgängigen Einreden Da der Gerichtshof festgestellt hat, dass Serbien und Montenegro zur Zeit der Einleitung des Verfahrens Zugang zum Gericht weder nach Artikel 35 Abs. 1 noch Abs. 2 gehabt haben, hält er es für nicht notwendig, die anderen von den Beklagten eingereichten Einreden zu untersuchen.153 III. Entscheidungsformel

Aus diesen Gründen kommt der Gerichtshof in allen acht Fällen zu dem Ergebnis, dass er keine Zuständigkeit besitzt, auf die Klagepunkte, die Serbien und Montenegro in ihrem Antrag vom 29. April 1999 geltend gemacht hatten, einzugehen (einstimmig).

151

Urteile vom 15. Dezember 2004 (Anm. 119), Rz. 123–125 (Belgien); Rz. 122–124 (Niederlande). 152 Id., Rz. 126 (Belgien); Rz. 125 (Niederlande). 153 Id., Rz. 127 (Belgien); Rz. 114 (Kanada, Frankreich,Italien); Rz. 126 (Niederlande); Rz. 117 (Portugal); Rz. 113 (Vereinigtes Königreich, Deutschland).

Die Rechtsprechung des IGH im Jahre 2004

757

IV. Erklärungen und Sondervoten

1. Gemeinsame Erklärung von Vize-Präsident Ranjeva, Richtern Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby Die sieben Richter merken zunächst an, dass der Gerichtshof, wenn er in einem Fall zwei oder mehr Gründe feststelle, warum seine Zuständigkeit ratione personae, ratione materiae oder ratione temporis nicht begründet sei, den passendsten Grund auswählen dürfe, der das Fehlen seiner Zuständigkeit stützt. Dabei müsse er jedoch drei Dinge beachten: Übereinstimmung mit vorangegangenen Fällen, Grad der Gewissheit des ausgewählten Grundes und mögliche Auswirkungen für andere Fälle. Dies habe das Gericht im vorliegenden Urteil nicht getan. Die Feststellungen des Gerichts seien mit den vorangegangen Entscheidungen, insbesondere mit dem Wiederaufnahme-Urteil vom 3. Februar 2003, nicht vereinbar. Darin hatte der Gerichtshof festgestellt, dass Jugoslawien zwischen 1992 und 2000 vor Gericht erscheinen durfte und sich dies auch nicht durch die Aufnahme in die VN geändert hätte.154 Ferner sei es nicht selbstverständlich, dass Jugoslawien zu dieser Zeit kein Mitglied der VN gewesen sei. Zudem sei es bedauerlich, dass das Urteil nicht klar aussage, ob Jugoslawien in der Zeit von 1992–2000 Mitglied der Völkermordkonvention gewesen sei. Die sieben Richter sind der Ansicht, der Gerichtshof hätte in seinem Urteil mühelos auf die Gründe abstellen können, mit denen er bereits in dern Anordnungen hinsichtlich einstweiliger Maßnahmen155 seine Zuständigkeit verneint hatte. 2. Erklärung von Richter Koroma Richter Koroma betont, dass der Gerichtshof in seinem Urteil nur entschieden habe, ob er in den Fällen auf die Hauptsache eingehen könne. Daher könne das Urteil nicht so ausgelegt werden, dass das Gericht bereits Position zu den materiell-rechtlichen Fragen bezogen habe.

154 155

Wiederaufnahme-Urteil (Anm. 136), Rz. 71. Anordnungen vom 2. Juni (Anm. 125).

758

René Groß und Sue Stubbe

3. Sondervotum von Richterin Higgins Richterin Higgins stimmt mit der Feststellung überein, dass Serbien und Montenegro nicht selbst das Verfahren eingestellt haben. Das Recht des Gerichts, Fälle von der Liste zu streichen, begründe sich jedoch in den ihm innewohnenden Befugnissen und sei somit nicht auf die im Urteil genannten Kategorien beschränkt. Daher hätte das Gericht den Fall von der Liste streichen sollen, da der Kläger sich durch sein eigenes Verhalten in eine Position gebracht habe, die unvereinbar mit Artikel 38 Abs. 2 IGH-VerfO sei. 4. Sondervotum von Richter Kooijmans In seinem Sondervotum macht Richter Kooijmans genauere Ausführungen zu den Aussagen in der gemeinsamen Erklärung. Ferner erklärt er, dass der Gerichtshof die Fälle in limine litis hätte abweisen sollen. Schließlich sei Artikel 38 Abs. 2 IGH-VerfO nicht mehr erfüllt, da Serbien und Montenegro ihre Begründung der Zuständigkeit des Gerichtshofes zurückgezogen hätten. 5. Sondervotum von Richter Elaraby Elaraby erklärt, dass Artikel 35 Abs. 1 IGH-Statut Serbien und Montenegro sehr wohl Zugang zum Gericht gewähre. Seiner Ansicht nach seien Serbien und Montenegro bzw. Jugoslawien zur Zeit der Einreichung der Klageschrift Mitglied der VN gewesen. Obwohl Jugoslawien zwischen 1992 und 2000 von der Teilnahme an der Arbeit der GV und deren untergeordneten Organisationen ausgeschlossen gewesen sei, sei es doch ein Mitglied sui generis gewesen. Weiter hätten Serbien und Montenegro auch als Nichtmitglied der VN Zugang zum Gericht nach Artikel 35 Abs. 2 IGH-Statut erhalten können. Der Begriff „geltende Verträge“ beziehe sich auf sämtliche Verträge zur friedlichen Streitbeilegung nach dem zweiten Weltkrieg und somit auch auf die Völkermordkonvention. Wenn die Interpretation des Gerichtshofes bezüglich „geltender Verträge“ den Grundsatz darstelle, müsse es auch eine Ausnahme für Verträge geben, die Rechtsschutz für jus cogens-Verletzungen vorsehen. Schließlich habe der Gerichtshof auch Zuständigkeit ratione personae nach Artikel IX der Völkermordkonvention besessen. Jugoslawien sei Nachfolgestaat

Die Rechtsprechung des IGH im Jahre 2004

759

der sozialistischen Bundesrepublik Jugoslawien gewesen und habe gemäß dem in Artikel 34 WVK niedergelegten Grundsatz die Verpflichtungen aus der Völkermordkonvention übernommen. Trotzdem kommt Elaraby zu dem Ergebnis, dass der Gerichtshof nicht in der Hauptsache zuständig sei, da der Gerichtshof keine Zuständigkeit ratione materie besessen habe. 6. Sondervotum von Ad-hoc-Richter Kre a Ad-hoc-Richter Kre a kritisiert in seinem Sondervotum zunächst den Wortlaut der Entscheidungsformel. Aus der Aufnahme Jugoslawiens am 1. November 2000 als neues Mitglied in die VN ergebe sich klar, dass der rechtliche Status Jugoslawiens vor dieser Zeit nicht der eines Mitglieds gewesen sein könne. Da Jugoslawien bzw. Serbien und Montenegro somit auch kein Mitglied des Statuts gewesen sei, hätten Serbien und Montenegro keinen locus standi. Dies hätte der Gerichtshof nach Ansicht Kre a s in seiner Entscheidungsformel erwähnen müssen. Zwar habe der Gerichtshof Ermessen, auf welche Gründe er seine mangelnde Zuständigkeit stütze, jedoch müsse dem fehlenden locus standi aufgrund seiner Natur als vordergründig zu untersuchende Zuständigkeitsvoraussetzung absolute Priorität eingeräumt werden. Des Weiteren untersucht Kre a ausführlich, ob der Gerichtshof die Fälle in limine litis hätte abweisen können, kommt aber, wie der Gerichtshof, zu dem Ergebnis, dass die Einreden der Beklagten nicht durchgreifen. Schließlich macht er noch einige Anmerkungen zu der unterschiedlichen Zusammensetzung der Richterbank im Verfahren bezüglich der einstweiligen Maßnahmen und dem Verfahren bezüglich der vorgängigen prozessualen Einreden. Insbesondere beschäftigt er sich mit der Frage, ob die Zusammenstellung der Richterbank dem Prinzip der Gleichheit der Parteien ausreichend Rechnung getragen habe.

Die Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte im Jahre 2004 Von Till Müller A. Einleitung Mit 718 gesprochenen Urteilen hat der Europäische Gerichtshof für Menschenrechte (EGMR) im Berichtszeitraum des Jahres 2004 nur geringfügig mehr Urteile gesprochen als im Vorjahr (703).1 In 588 dieser Urteile stellte der Gerichtshof eine Verletzung von mindestens einem Konventionsrecht fest. In 68 Fällen erledigte sich die Beschwerde durch eine friedliche Streitbeilegung der Parteien. Neben den Urteilen hat der Gerichtshof 20.537 Entscheidungen zur Zulässigkeit getroffen, in nur 757 Fällen hiervon erklärte er die Beschwerden für zulässig. 547 Beschwerden wurden aus der Liste des Gerichtshofes gestrichen. Dies ergibt, zusammen mit den 718 Urteilen, eine Gesamtzahl von 21.802 richterlichen Entscheidungen. Bedenkt man, dass nur 42 Richter am Gerichtshof tätig sind, zeigt diese Zahl eindrucksvoll die Arbeitslast des Gerichtshofes. Da die Anzahl der eingelegten Beschwerden vor dem Gerichtshof wiederum um 16 % auf ungefähr 45.000 gestiegen ist, kann auch nicht mit einer baldigen Entlastung, geschweige denn einer Abarbeitung aller Beschwerden, gerechnet werden. Daher verwundert es nicht, dass der Präsident des Gerichtshofes auf der jährlichen Pressekonferenz die Überlastung des Gerichtshofes durch offensichtlich 1

Zur Tätigkeit des Gerichtshofes im Jahr 2003 siehe Moritz Goedecke, Die Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte im Jahre 2003, German Yearbook of International Law (GYIL), vol. 46, 2003, 606 ff. Die folgenden Verweise auf Ansprachen, Pressemitteilungen, Urteile, Entscheidungen sowie die statistischen Daten beziehen sich auf Veröffentlichungen des Gerichtshofes unter der Internetadresse http://www.echr.coe.int/ bzw. http://hudoc.echr.coe.int/; alle Artikel ohne nähere Bezeichnung sind solche der Europäischen Konvention für Menschenrechte, 4. November 1950, UNTS, vol. 213, 221; Bundesgesetzblatt 1995-II, 579 (EMRK).

Die Rechtsprechung des EGMR im Jahre 2004

761

unzulässige Beschwerden beklagte.2 Er forderte vor allem die rasche Ratifizierung des 14. Zusatzprotokolls, welches die Feststellung der Unzulässigkeit einer Beschwerde erleichtern soll und somit dem Gerichtshof die Möglichkeit geben würde, seine Arbeit auf die Fälle zu konzentrieren, die tatsächliche menschenrechtliche Fragen aufwerfen.3 Im Jahr 2004 wählte die Parlamentarische Versammlung des Europarates insgesamt 22 Richterinnen und Richter: Hiervon wurden 14 Richter in ihrem Amt bestätigt und 8 Richter neu gewählt.4 Am 21. September 2004 musste der Gerichtshof den Tod des isländischen Richters Gaukur Jörundsson betrauern.5 Präsident des Gerichtshofes war im Berichtszeitraum der Schweizer Richter Luzius Wildhaber, seine Stellvertreter waren der griechische Richter Christos Rozakis und der französische Richter Jean-Paul Costa. Am 10. März 2004 lehnte die große Kammer die Beschwerde Senator Lines GmbH ./. 15 EU-Staaten mit der Begründung ab, die Beschwerdeführerin sei nach erfolgreich eingelegtem Rechtsmittel gegen die zu zahlende Strafe nicht mehr als Opfer im Sinne des Artikel 34 der EMRK anzusehen.6 Hiermit blieb die mit Spannung erwartete Stellungnahme zum Verhältnis vom Europäischen Gerichtshof und dem EGMR aus. Nachdem das sog. „Caroline-Urteil“ des Gerichtshofes7 zu intensiven Diskussionen in der deutschen Öffentlichkeit geführt hatte, machte das deutsche Bundesverfassungsgericht wenige Monate später in einer anderen Sache grundlegende Bemerkungen zur Bindung deutscher Gerichte an Urteile des EGMR, die wiederum in der Fachöffentlichkeit kritisch aufgenommen wurden.8 2

Vgl. Ansprache von Luzius Wildhaber am 21. Januar 2005. Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the Control System of the Convention, 13. Mai 2004, ETS No. 194. Näher zu den Reformen des 14. Zusatzprotokolls Tilmann Laubner, Relieving the Court of its Success? Protocol No. 14 to the European Convention on Human Rights, GYIL, vol. 47, 2004, 691. 4 Vgl. Pressemitteilungen 053 vom 30. Januar 2004, 215 vom 28. April 2004, 325 vom 25. Juni 2004, 482 vom 6. Oktober 2004. 5 Pressemitteilung 446 vom 22. September 2004. 6 Entscheidung Senator Lines GmbH ./. 15 Mitgliedstaaten vom 10. März 2004. 7 Urteil von Hannover ./. Deutschland vom 24. Juni 2004. 8 Beschluss des Zweiten Senats vom 14. Oktober 2004, 2 BvR 1481/04, abrufbar unter: http://www.bverfg.de/entscheidungen/rs20041014_2bvr148104.html. Vgl. hierzu Rainer Hofmann, The German Federal Constitutional Court and Public International Law: New Decisions, New Approaches?, GYIL, vol. 47, 2004, 9. 3

762

Till Müller

Von den 718 gefällten Urteilen betrafen 171 die Türkei, 79 Polen, 75 Frankreich, 47 Italien, 41 Griechenland, 33 Kroatien, 28 die Tschechei, 27 Bulgarien, 23 das Vereinigte Königreich, 20 Ungarn, 19 Rumänien, 17 Österreich, 15 Russland und Belgien, 14 die Slowakei und die Ukraine, 12 Finnland, 10 Moldawien und die Niederlande, 7 Portugal, 6 Deutschland, Spanien und Schweden, 3 Zypern, Dänemark und Lettland, 2 Georgien, Litauen, Island, Irland, und San Marino, ein Urteil entfiel jeweils auf Albanien, Andorra, Estland, Liechtenstein, Luxemburg und Malta. Gegen Norwegen, die Frühere Jugoslawische Republik Mazedonien, Slowenien und die Schweiz fällte der Gerichtshof in dem Berichtszeitraum kein Urteil. B. Zulässigkeit I. Jurisdiktion eines Vertragsstaates

Nach Artikel 1 kann ein Staat nur für eine Konventionsverletzung verantwortlich gemacht werden, wenn diese unter seiner Jurisdiktion geschehen ist. Bei der Feststellung, ob ein Sachverhalt unter die Jurisdiktion eines Mitgliedstaates fällt, wendet der Gerichtshof die Grundsätze des allgemeinen Völkerrechts und seine Rechtssprechung in den Fällen Bankovic und Andere ./. Belgien und 16 andere Mitgliedstaaten9 sowohl Loizidou ./. Türkei10 an.11 So orientiert sich die Jurisdiktion eines Staates zwar primär an dessen Territorium, ein Staat kann aber unter besonderen Umständen sowohl Jurisdiktion außerhalb seines Territoriums ausüben12 als auch der Jurisdiktion innerhalb seines Territoriums beraubt sein.13 Selbst wenn ein Staat in bestimmten Landesteilen durch Besetzung oder Rebellion nicht in der Lage ist, seine Jurisdiktion effektiv auszuüben, verliert er die Jurisdiktion im Sinne des Artikel 1 nicht vollständig. Vielmehr reduziert sich die 9 Entscheidung Bankovic und Andere ./. Belgien und 16 andere Mitgliedstaaten vom 12. Dezember 2001. 10 Urteil Loizidou ./. Türkei vom 18. Dezember 1996. 11 St. Rspr.; Urteil Ilascu und Andere ./. Moldawien und Russland vom 8. Juli 2004, Rz. 311 ff. 12 St. Rspr.; Urteil Issa und Andere ./. Türkei vom 16. November 2004, Rz. 67 ff. 13 St. Rspr.; Urteil Ilascu und Andere ./. Moldawien und Russland (Anm. 11), Rz. 312.

Die Rechtsprechung des EGMR im Jahre 2004

763

Pflicht des Staates, die Konventionsrechte zu schützen, darauf, alle rechtlichen diplomatischen Maßnahmen zum Schutz der Konventionsrechte und zur Wiedererlangung der effektiven Jurisdiktion zu ergreifen.14 Es liegt also am Gerichtshof zu bewerten, ob der Staat ausreichende Maßnahmen zum Schutz der Konventionsrechte ergriffen hat. Da der Gerichtshof keine Bewertung vornimmt, ob der betreffende Staat die richtigen oder falschen Maßnahmen getroffen hat, beschränkt sich die Feststellung auf den zu Tage tretenden Willen, die Jurisdiktion wiederzuerlangen und die Konventionsrechte zu schützen.15 Auch die völkerrechtliche Verpflichtung, ausländische Unterhaltsurteile eigenständig zu vollstrecken, begründet die Jurisdiktion des vollstreckenden Staates.16 II. Zulässigkeitsvoraussetzungen aus Artikel 34

Um den Gerichtshof vor actiones populares zu schützen, setzt Artikel 34 voraus, dass die Beschwerdeführer geltend machen können, selbst Opfer einer Konventionsverletzung geworden zu sein.17 Der Gerichtshof betrachtet als Opfer im Sinne des Artikel 34 jede Person, die von der fraglichen Handlung oder Unterlassung direkt betroffen ist.18 Hierbei kommt es nicht darauf an, dass der Beschwerdeführer auch Adressat einer Maßnahme, z. B. eines Urteils, ist. Es reicht aus, wenn er geltend machen kann, durch die Maßnahme betroffen zu sein.19 Anteilseigner von Unternehmen gelten von Maßnahmen gegen das Unternehmen als nicht direkt betroffen und können demnach keine Verletzung von Unternehmensrechten vor dem Gerichtshof geltend machen.20 Der Beschwerdeführer verliert seinen Status als Opfer im Sinne des Artikel 34 nicht schon durch eine positive Maßnahme oder ein ihn begünstigendes 14

Id., Rz. 333. Id., Rz. 340. 16 Urteil K. ./. Italien vom 20. Juli 2004, Rz. 21. 17 St. Rspr.; Entscheidung Danilenkov und Andere ./. Russland vom 19. Oktober 2004, 17. 18 St. Rspr.; Urteil Dogan und Andere ./. Türkei vom 29. Juni 2004, Rz. 93. 19 St. Rspr.; Urteil K. ./. Italien (Anm. 16), Rz. 26. 20 St. Rspr.; Entscheidung Myshkin ./. Russland vom 27. Mai 2004, 7. 15

764

Till Müller

Gerichtsurteil. Vielmehr bedarf es hierzu einer ausdrücklichen oder zumindest der Sache nach erkennbaren Annerkennung der Verletzung durch die Behörden und der Schaffung von Abhilfe.21 III. Zulässigkeit nach Artikel 35

Um die Subsidiarität des Gerichtshof zu wahren, verpflichtet Artikel 35 Abs. 1 den Beschwerdeführer, zunächst alle ihm zur Verfügung stehenden innerstaatlichen Rechtsbehelfe auszuschöpfen.22 Der Beschwerdeführer muss die Konventionsverletzung ausdrücklich oder zumindest der Sache nach bereits innerhalb der nationalen Verfahren gerügt haben.23 Hieraus ergibt sich, dass der Beschwerdeführer alles ihm Zumutbare getan haben muss, um effektiven Rechtschutz zu erhalten, bevor er eine Beschwerde vor dem Gerichtshof einreichen kann. An die Rechtschutzmöglichkeiten werden aber hohe Anforderungen gestellt. So muss das Rechtsmittel zugänglich und geeignet gewesen sein, den Konventionsverstoß auszugleichen, und schließlich muss eine tatsächliche Aussicht auf Erfolg des Rechtmittels bestanden haben.24 Um jedoch dem Grundsatz eines weitreichenden und effektiven Menschenrechtsschutzes Rechnung zu tragen, legt der Gerichtshof bei Anwendung dieser Subsidiaritätsklausel ein gewisses Maß an Flexibilität an den Tag, um unbillige Ergebnisse durch übertriebenen Formalismus zu vermeiden.25 C. Materielle Rechte I. Das Recht auf Leben, Artikel 2

Artikel 2 schützt das Recht jedes Menschen auf Leben. Neben dem Verbot absichtlicher Tötungen enthält Artikel 2 Abs. 1 die Ausnahme der gerichtlich verhängten Todesstrafe. Abs. 2 normiert weitere Umstände, in denen eine Tö21 22 23 24 25

St. Rspr.; Urteil Haase ./. Deutschland vom 8. April 2004, Rz. 69. St. Rspr.; Entscheidung Berdzenishvili ./. Russland vom 29. Januar 2004, 8 f. St. Rspr.; Entscheidung B. und L. ./. Vereinigtes Königreich vom 29. Juni 2004, 8. St. Rspr.; Entscheidung Said ./. Niederlande vom 5. Oktober 2004, 8. St. Rspr.; Entscheidung Merger und Cros ./. Frankreich vom 11. März 2004, 12.

Die Rechtsprechung des EGMR im Jahre 2004

765

tung keinen Verstoß gegen das Recht auf Leben darstellt, und zwar wenn die Tötung durch unbedingt erforderliche Gewaltanwendung verursacht worden ist. Neben dem Verbot der Tötung durch staatliche Organe enthält Artikel 2 auch eine positive Pflicht der Mitgliedstaaten, das Recht auf Leben zu schützen.26 Um dieser positiven Verpflichtung zu entsprechen, müssen die Mitgliedstaaten einen effektiven gesetzlichen Rahmen zur Verfolgung von Tötungsdelikten schaffen27 und im Falle konkreter Gefahren die entsprechenden Schutzmaßnahmen ergreifen.28 Der gesetzliche Rahmen muss zumindest ein gesetzlich sanktioniertes Tötungsverbot und die zur Durchsetzung dieses Verbotes erforderlichen Polizeigesetze umfassen.29 In dem Fall Vo ./. Frankreich hatte die Beschwerdeführerin gerügt, dass der fahrlässige Schwangerschaftsabbruch nicht strafrechtlich sanktioniert sei und demnach kein ausreichender Schutz des ungeborenen Lebens bestehe.30 Der Gerichtshof stellte zwar die Diskussion um den Schutz des ungeborenen Lebens ausführlich dar und analysierte sie, lehnte es dann aber ab, die Frage zu entscheiden.31 Stattdessen entschied er, dass die in Frankreich vorhandenen zivilrechtlichen Möglichkeiten eines Vorgehens gegen die Ärzte den Anforderungen des Artikel 2 genügen, da auch in einem zivilrechtlichen Verfahren die Verursacher festgestellt und zur Verantwortung gezogen werden.32 Neben dem Verbot der Tötung gehören auch präventive gesetzliche Maßnahmen in den Pflichtenkreis der Vertragsstaaten. Zu nennen ist z. B. der Erlass von effektiven Sicherheitsvorschriften und Verordnungen, die den Betrieb und die Beaufsichtigung von gefährlichen Anlagen, wie Industrieanlagen, regeln, sowie die Pflicht der ausreichenden Information der Öffentlichkeit über den Betrieb von gefährlichen Anlagen.33 Die Große Kammer des Gerichtshofes sah im Fall Öneryildiz ./. Türkei eine Verletzung des Artikel 2 darin, dass zwar gesetzliche Regelungen zum Betrieb einer Müll-Deponie bestanden, diese aber auf26 27 28 29 30 31 32 33

St. Rspr.; Urteil Öneryildiz ./. Türkei vom 30. November 2004, Rz. 71. St. Rspr.; Urteil Tekdag ./. Türkei vom 15. Januar 2004, Rz. 79. St. Rspr.; Urteil Nuray Sen ./. Türkei (No. 2) vom 30. März 2004, Rz. 180. St. Rspr.; Urteil Tekdag ./. Türkei (Anm. 27), Rz. 79. Urteil Vo ./. Frankreich vom 8. Juli 2004, Rz. 46. Id., Rz. 74 ff., 85. Id., Rz. 90 ff. St. Rspr.; Urteil Öneryildiz ./. Türkei (Anm. 26), Rz. 89 f.

766

Till Müller

grund fehlender effektiver Überwachungsinstrumente so ineffektiv waren, dass es zu einer Explosion der Deponie kam, die mehrere Menschenleben kostete.34 Weiterhin beinhaltet Artikel 2 die Pflicht, jeden unbedingt notwendigen Einsatz von Gewalt durch staatliche Behörden, vor allem Polizeieinsätze, so zu planen, vorzubereiten und durchzuführen, dass das Risiko eines tödlichen Ausgangs auf ein Minimum reduziert wird.35 Hierzu gehört eine umfassende Informierung der tätigwerdenden Kräfte über die Umstände und die Gefährlichkeit des Einsatzes.36 Kommt es zu einem Einsatz von Gewalt, so müssen die Einsatzkräfte nach Beendigung des Einsatzes eventuelle Verwundete ausfindig machen und unverzüglich ausreichender medizinischer Hilfe zuführen.37 Auch sind die Einsatzkräfte verpflichtet, die Umgebung des Einsatzortes auf eventuell zurückgebliebene Gefahrenquellen, wie zum Beispiel Blindgänger nach einem Feuergefecht, zu untersuchen.38 Da das Recht auf Leben als ein fundamentales Recht der Konvention angesehen wird, von dem keine Abweichung möglich ist, müssen an die Verhältnismäßigkeit jeder Gewaltanwendung sehr hohe Anforderungen gestellt werden.39 Kommt es zu einer möglichen Verletzung des Rechts auf Leben, so ist der Mitgliedstaat aus Artikel 2 i. V. m. Artikel 1 dazu verpflichtet, eine offizielle und effektive Untersuchung des Vorfalls durchzuführen.40 Es muss sich hierbei um eine faktisch unabhängige, umfangreiche und öffentliche Untersuchung handeln, welche dazu geeignet ist, die Verursacher zu ermitteln und zur Verantwortung zu ziehen.41 Hieraus kann aber kein Anspruch auf eine erfolgreiche Verurteilung abgeleitet werden.42 Eine besonders starke Schutzpflicht trifft den Staat gegenüber Menschen, die sich in staatlichem Gewahrsam befinden. Kommt es innerhalb des Gewahrsams zu Todesfällen, liegt es regelmäßig bei dem Staat, diese aufzuklären; im 34 35 36 37 38 39 40 41 42

Id., Rz. 109 f. St. Rspr.; Urteil Nachova und Andere ./. Bulgarien vom 26. Februar 2004, Rz. 95. St. Rspr.; id., Rz. 110. Urteil Ahmet Ökzan und Andere ./. Türkei vom 6. April 2004, Rz. 307 f. Id., Rz. 321. St. Rspr.; Urteil Tekdag./. Türkei (Anm. 27), Rz. 72. St. Rspr.; Urteil Nachova und Andere ./. Bularien (Anm. 35), Rz. 116. St. Rspr.; Urteil Tahsin Acar ./. Türkei vom 8. April 2004, Rz. 220 ff. St. Rsrp.; Urteil Nachova und Andere ./. Bularien (Anm. 35), Rz. 117.

Die Rechtsprechung des EGMR im Jahre 2004

767

Zweifel ist anzunehmen, dass die Gewahrsamsstelle für den Tod verantwortlich ist.43 II. Das Verbot von Folter und unmenschlicher Behandlung, Artikel 3

Das in Artikel 3 verankerte Verbot von Folter sowie unmenschlicher oder erniedrigender Behandlung oder Bestrafung gehört mit dem Recht auf Leben zu den Grundwerten der Gemeinschaft der Staaten, die den Europarat bilden.44 Das Verbot von Folter und unmenschlicher oder erniedrigender Behandlung oder Bestrafung ist absolut und kann nach Artikel 15 Abs. 2 auch in Zeiten staatlichen Notstands nicht außer Kraft gesetzt werden.45 Aus der Pflicht nach Artikel 1, die Konventionsrechte zu gewährleisten, ergibt sich, dass bei möglichen Verletzungen von Artikel 3 umfangreiche und unabhängige Ermittlungen durchzuführen sind, die dazu geeignet sind, die Schuldigen zu identifizieren und zu bestrafen.46 So stellt es z. B. einen Verstoß gegen Artikel 3 dar, wenn die Ermittlungen von jemandem geführt werden, der im selben Fall vor den Zivilgerichten als Zeuge gegen die Antragstellerin aufgetreten ist.47 Der Gerichtshof schränkt die Anwendung des Artikel 3 ein, indem er für einen Eingriff voraussetzt, dass die Misshandlung ein gewisses Maß an Intensität erreicht hat.48 Wann dieses Mindestmaß erreicht ist, muss von dem Einzelfall abhängig gemacht werden und hängt von verschiedenen Faktoren in den Umständen (z. B. Dauer oder Folgen der Misshandlung) oder dem Opfer selbst (z. B. Geschlecht oder Gesundheitszustand) ab.49 So kann schon eine relativ kurze und nicht sehr intensive Misshandlung einen Verstoß gegen Artikel 3 darstellen, wenn das Opfer aufgrund hohen Alters als besonders empfindlich anzusehen ist.50 43 44 45 46 47 48 49 50

St. Rspr.; Urteil Özalp und Andere ./. Türkei vom 8. April 2004, Rz. 34. St. Rspr.; Urteil Balogh ./. Ungarn vom 20. Juli 2004, Rz. 44. St. Rspr.; Urteil Ayder und Andere ./. Türkei vom 8. Januar 2004, Rz. 107. St. Rspr.; Urteil Sadik Önder ./. Türkei vom 8. Januar 2004, Rz. 41 f. Urteil Toteva ./. Bulgarien vom 19. Mai 2004, Rz. 63. St. Rspr.; Urteil G.B. ./. Bulgarien vom 11. März 2004, Rz. 70. St. Rspr.; Urteil Balogh ./. Ungarn (Anm. 44), Rz. 45. Urteil Toteva ./. Bulgarien (Anm. 47), Rz. 52

768

Till Müller

Eine Behandlung oder Bestrafung wird unter anderem als unmenschlich angesehen, wenn sie lang anhält und eine körperliche Schädigung oder intensive psychische Leiden hervorruft.51 Als erniedrigend wird eine Behandlung oder Bestrafung unter anderem angesehen, wenn sie bei dem Opfer Gefühle der Angst oder der Minderwertigkeit hervorruft und dazu geeignet ist, das Opfer bloßzustellen oder in seiner Würde herabzusetzen.52 Auch wenn kein Vorsatz bestand die Opfer zu erniedrigen, kann aufgrund der faktischen Folgen ein Verstoß gegen Artikel 3 vorliegen.53 Der Begriff Folter sollte ursprünglich eine besonders schwere unmenschliche Behandlung hervorheben und stigmatisieren.54 Inzwischen bedient sich der Gerichtshof bei der Abgrenzung zur unmenschlichen Behandlung auch des Artikel 1 der UN-Folterkonvention, der voraussetzt, dass die Täter die Absicht haben, mit der Misshandlung ein bestimmtes Ziel, z. B. Geständnis oder Bestrafung, zu erreichen.55 So erkannte der Gerichtshof in einem Fall, in dem das Opfer in geringem Maße im Polizeigewahrsam misshandelt wurde, die Polizisten jedoch kein bestimmtes Ziel, wie z. B. die Erpressung eines Geständnisses, verfolgten, nur eine unmenschliche Behandlung und stellte ausdrücklich keine Folter fest.56 Im Einzelfall können auch die Angehörigen von verschwundenen Personen Opfer einer unmenschlichen oder erniedrigenden Behandlung sein. Dies ist der Fall, wenn besondere Faktoren vorliegen, die den Angehörigen noch zusätzlichen Schmerz, neben dem ohnehin vorliegenden Schmerz durch den Verlust eines Angehörigen, bereiten.57 Solche Faktoren können z. B. sein: ein besonders enges Verhältnis, die persönliche Beobachtung der Entführung, häufige Erkundigungen bei den Behörden und die Reaktionen der Behörden auf diese Erkundigungen.58 51

425. 52

St. Rspr.; Urteil Ilascu und Andere ./. Moldavien und Russland (Anm. 11), Rz.

Id. St. Rspr.; Urteil G.B. ./. Bulgarien (Anm. 48), Rz. 70. 54 St. Rspr.; Urteil Ilascu und Andere ./. Moldavien und Russland (Anm. 11), Rz. 426. 55 Id. unter Verweis auf die Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GV Res. 39/46 vom 10. Dezember 1984. 56 Urteil Krastanov ./. Bulgarien vom 30. September 2004, Rz. 53. 57 St. Rspr.; Urteil Tahsin Acar ./. Türkei (Anm. 41), Rz. 238. 58 St. Rspr.; Urteil Tekdag ./. Türkei (Anm. 27), Rz. 85. 53

Die Rechtsprechung des EGMR im Jahre 2004

769

Besonders strenge Maßstäbe müssen im Rahmen des Artikel 3 angelegt werden, wenn es sich um vermeintliche Verletzungen von Personen handelt, die den staatlichen Behörden ausgeliefert sind. So ist prinzipiell jede Gewaltanwendung gegen einen Gefangenen ein Eingriff in Artikel 3, wenn sie nicht durch das Verhalten des Gefangenen selbst absolut notwendig geworden ist.59 Wird jemand gesund in Gewahrsam genommen und mit Verletzungen wieder entlassen, liegt es bei den Behörden nachzuweisen, dass die Verletzungen nicht auf unerlaubter Gewaltanwendung beruhen.60 Schränken Maßnahmen die persönliche Freiheit eines Menschen ein, so stellen sie meistens schon an sich eine gewisse Erniedrigung dar. Folglich müssen die Haftbedingungen die Würde und die Gesundheit der Inhaftierten gewährleisten.61 In Bezug auf die Todesstrafe geht der Gerichtshof weiterhin davon aus, dass das Death Row Phenomen, also das lange Warten auf die Exekution verbunden mit Abbrüchen von Exekutionsvorgängen in letzter Minute, eine Verletzung von Artikel 3 darstellt.62 Zu einer Verletzung von Artikel 3 kann auch beitragen, dass die Todesstrafe in dem Vertragsstaat gerade in der öffentlichen Diskussion in Frage gestellt wird und der Verurteilte durch die Aussicht auf eine mögliche Abschaffung der Todesstrafe stark verunsichert und unter emotionalen Stress gestellt wird.63 In dem Fall G.B. ./. Bulgarien lehnte der Gerichtshof allerdings eine Verletzung von Artikel 3 aus diesem Grund ab, weil der Staat dem Häftling ausreichende psychologische Hilfe bereitgestellt hatte, um mit dieser Stresssituation fertig zu werden, und ein Moratorium gegen die Durchführung der Todesstrafe in Kraft war.64 Relevant wird Artikel 3 vor allem auch in Fällen, in denen ein Vertragsstaat den Antragsteller in ein Land ausweisen will, in dem ihm Folter oder unmenschliche oder erniedrigende Behandlung oder Strafe droht. Hier geht der Gerichtshof in ständiger Rechtsprechung von einer Verletzung des Artikel 3 durch den ausweisenden Vertragsstaat aus, wenn dem Antragsteller in dem Zielland der Ausweisung aller Wahrscheinlichkeit nach unmenschliche oder erniedrigende

59 60 61 62 63 64

St. Rspr.; Urteil Balogh ./. Ungarn (Anm. 44), Rz. 45. St. Rspr.; id., Rz. 47. St. Rspr.; Urteil G.B. ./. Bulgarien (Anm. 48), Rz. 71. St. Rspr.; id., Rz. 78 f. St. Rspr.; id., Rz. 72. St. Rspr.; id., Rz. 80 f.

770

Till Müller

Behandlung oder sogar Folter droht und der Vertragsstaat dies nach allen Umständen wusste oder hätte wissen müssen.65 III. Das Recht auf Freiheit und Sicherheit, Artikel 5

In Artikel 5 gewährleistet die EMRK das Recht auf persönliche Freiheit und Sicherheit, indem sie willkürliche Freiheitsentziehung verbietet und einen strengen Rahmen von Vorraussetzungen, unter denen eine Freiheitsentziehung zulässig sein kann, vorgibt. Außerdem werden jedem Festgenommenen bestimmte Rechte gewährt, die ihn vor Willkür schützen sollen. 1. Rechtmäßigkeit der Haft – Artikel 5 Abs. 1 Abs. 1 des Artikel 5 enthält eine abschließende Aufzählung der rechtlich zulässigen Möglichkeiten einer Freiheitsentziehung, welche grundsätzlich restriktiv auszulegen ist.66 Dies heißt aber nicht, dass jeweils nur ein Rechtfertigungsgrund nach Artikel 5 Abs. 1 eingreifen kann, vielmehr kann es durchaus vorkommen, dass Freiheitsentzug durch mehrere Unterpunkte des Artikel 5 Abs. 1 gerechtfertigt ist.67 Zum anderen bestimmt Abs. 1, dass eine Freiheitsentziehung nur auf eine gesetzlich vorgeschriebene Weise vorgenommen werden darf. Hierbei bezieht sich Artikel 5 Abs. 1 eindeutig auf nationales Recht. Der Gerichtshof hat in diesem Zusammenhang immer wieder klargestellt, dass die Überprüfung und Interpretation des nationalen Rechtes an erster Stelle Sache der nationalen Gerichte ist.68 Um jedoch den Sinn und Zweck des Artikel 5, nämlich den Schutz vor willkürlicher Freiheitsentziehung, zu wahren, überprüft der Gerichtshof auch Freiheitsentziehungen, die formell mit nationalem Recht übereinstimmen, darauf, ob sie nicht willkürlich sind und somit gegen Artikel 5 verstoßen.69 Dies hält der Gerichtshof z. B. dann für gegeben, wenn die betreffende Regelung nicht verständlich und eindeutig genug ist, um dem verständigen Bürger die 65 66 67 68 69

St. Rspr.; Urteil Thampibillai ./. Niederlande vom 17. Februar 2004, Rz. 59 ff. St. Rspr.; Urteil Assanidze ./. Georgien vom 8. April 2004, Rz. 169. St. Rspr.; Urteil Brand ./. Niederlande vom 11. Mai 2004, Rz. 58. St. Rspr.; Urteil Morsink ./. Niederlande vom 11. Mai 2004, Rz. 63. St. Rspr.; id., Rz. 64.

Die Rechtsprechung des EGMR im Jahre 2004

771

Konsequenzen seiner Handlung vorhersehen zu lassen.70 Außerdem müssen Gesetze, die einen Freiheitsentzug ermöglichen, dem Rechtsstaatsprinzip entsprechen. Eine Person kann rechtmäßig in Untersuchungshaft genommen werden, wenn nach Artikel 5 Abs. 1 lit. c ein hinreichender Verdacht besteht, dass sie eine strafbare Handlung begangen hat. Ein Verdacht ist dann hinreichend, wenn die ihm zugrunde liegenden Fakten und Informationen auch einen objektiven Beobachter zu dem Glauben bringen würden, der Beschuldigte könne die Tat begangen haben.71 Eine abschließende Beurteilung kann aber nur im Zusammenhang mit allen Umständen des Einzelfalls erfolgen.72 Der einzige Zweck der Untersuchungshaft ist die Ermittlungen voranzubringen. Somit ist es irrelevant, ob der Beschuldigte schlussendlich angeklagt wird.73 Die Verdachtsmomente müssen nicht einmal für eine Anklage nach nationalem Recht ausreichen.74 Die Mitgliedstaaten sind dazu verpflichtet, ausreichende Aufzeichnungen über jeden Freiheitsentzug anzufertigen, allein das Fehlen von solchen Aufzeichnungen stellt eine Verletzung der Konvention dar.75 Artikel 5 Abs. 1 lit. e sieht weiterhin vor, dass Alkoholiker rechtmäßig festgenommen werden dürfen. Der Gerichtshof wendet hier allerdings nicht den medizinischen Begriff des Alkoholsüchtigen an, sondern lässt rechtmäßige Festnahmen zu, wenn Personen aufgrund von Alkoholmissbrauch eine Gefährdung für sich, andere oder den öffentlichen Frieden darstellen.76 2. Pflicht zur unverzüglichen Vorführung – Artikel 5 Abs. 3 Satz 1 Jede festgenommene Person hat das Recht, unverzüglich einem Richter oder einem vergleichbaren Beamten vorgeführt zu werden. Dieses Recht soll den Festgenommenen vor willkürlichen Verhaftungen durch die Exekutive schützen

70 71 72 73 74 75 76

St. Rspr.; Urteil H.L. ./. Vereinigtes Königreich vom 5. Oktober 2004, Rz. 114. St. Rspr.; Urteil Gusinskiy ./. Russland vom 19. Mai 2004, Rz. 53. St. Rspr.; Urteil Ikincisoy ./. Türkei vom 27. Juli 2004, Rz. 95. St. Rspr.; Urteil Gusinskiy ./. Russland (Anm. 71), Rz. 53. St. Rspr.; Urteil Tuncer und Durmus ./. Türkei vom 2. November 2004, Rz. 47. St. Rspr.; Urteil Ahmet Ökzan und Andere ./. Türkei (Anm. 37), Rz. 371. St. Rspr.; Urteil Hilda Hafsteinsdottir ./. Island vom 8. Juni 2004, Rz. 42.

772

Till Müller

und dadurch das Rechtsstaatsprinzip erhalten.77 Es muss sich daher um eine gerichtliche Überprüfung der Haftgründe handeln. Dies ist z. B. dann nicht der Fall, wenn die Überprüfung von einem Staatsanwalt durchgeführt wird.78 Ob die Vorführung unverzüglich stattgefunden hat, ist von den Umständen des Einzelfalls abhängig.79 Die Pflicht zur unverzüglichen Vorführung kann auch durch die besonderen Gefahren des internationalen Terrorismus nicht außer Kraft gesetzt werden.80 So liegt wohl zumindest nach einer Haft von mehr als vier Tagen und sechs Stunden ohne gerichtliche Überprüfung eine Konventionsverletzung vor.81 Keine Verletzung von Artikel 5 Abs. 3 liegt allerdings vor, wenn die festgenommene Person entlassen wird, bevor eine unverzügliche Vorführung möglich gewesen ist.82 3. Angemessene Dauer der Untersuchungshaft – Artikel 5 Abs. 3 Satz 2 Reicht zunächst der hinreichende Verdacht, um jemanden in Untersuchungshaft zu nehmen, so kann diese nur aufgrund des hinreichenden Verdachtes nicht auf unbestimmte Zeit aufrecht erhalten werden.83 Die Verlängerung der Untersuchungshaft darf nur von einem Richter oder vergleichbaren Beamten angeordnet werden, Staatsanwälte sind hierzu nicht befähigt.84 Ob die Dauer der Untersuchungshaft angemessen ist, kann nur unter voller Würdigung des Einzelfalls, einschließlich der Begründungen der Behörden für die verlängerte Untersuchungshaft sowie der Ausführungen des Häftlings, beurteilt werden.85 Gerechtfertigt kann eine längere Untersuchungshaft nur dann sein, wenn spezielle Faktoren das öffentliche Interesse an der Haft des Beschuldigten gegenüber dem Recht auf Freiheit wesentlich erhöhen.86 Der Gerichtshof untersucht hier die Begründungen der Behörden darauf, ob sie „relevant“ und ausreichend 77 78 79 80 81 82 83 84 85 86

St. Rspr.; Urteil Ikincisoy ./. Türkei (Anm. 72), Rz. 100. St. Rspr.; Urteil Ahmet Ökzan und Andere ./. Türkei (Anm. 37), Rz. 388. St. Rspr.; Urteil Ikincisoy ./. Türkei (Anm. 72), Rz. 101. St. Rspr.; Urteil Abdülsamet Yaman ./. Türkei vom 2. November 2004, Rz. 73. St. Rspr.; Urteil Ahmet Ökzan und Andere ./. Türkei (Anm. 37), Rz. 389. St. Rspr.; Urteil Ikincisoy ./. Türkei (Anm. 72), Rz. 103. St. Rspr.; Urteil Kuibishev ./. Bulgarien vom 30. September 2004, Rz. 62. St. Rspr.; Urteil Ahmet Ökzan und Andere ./. Türkei (Anm. 37), Rz. 388. St. Rspr.; Urteil D.P. ./. Polen vom 20. Januar 2004, Rz. 83. St. Rspr.; Urteil G.K. ./. Polen vom 20. Januar 2004, Rz. 82.

Die Rechtsprechung des EGMR im Jahre 2004

773

sind; weiterhin überprüft er auch, ob das Verfahren gegen den Beschuldigten mit der erforderlichen Sorgfalt, also ohne Verschleppungen, durchgeführt worden ist.87 4. Das Recht auf Haftprüfung – Artikel 5 Abs. 4 Artikel 5 Abs. 4 räumt jedem Festgenommenen oder Inhaftierten die Möglichkeit ein, die Rechtmäßigkeit seines Freiheitsentzuges sowohl auf prozessualer als auch auf materieller Ebene nach nationalem Recht sowie nach Artikel 5 Abs. 1 gerichtlich überprüfen zu lassen und gegebenenfalls eine Entlassung zu erwirken.88 Das gerichtliche Verfahren muss von dem Gegensatz der Parteien (adversarial system) geprägt sein und die Waffengleichheit der Parteien garantieren.89 Weiterhin müssen bestimmte, der Art des Freiheitsentzuges entsprechende Verfahrensgarantien eingehalten werden.90 Als Mindestgarantie sieht der Gerichtshof die Möglichkeit des Inhaftierten, an sich persönlich oder durch eine angemesse rechtliche Vertretung an das überprüfende Gericht zu wenden.91 5. Das Recht auf angemessene Entschädigung – Artikel 5 Abs. 5 Gemäß Artikel 5 Abs. 5 müssen die Vertragsstaaten einen gesetzlichen Anspruch auf Schadensersatz bei unrechtmäßigem Freiheitsentzug sicherstellen. Das Recht auf Schadensersatz nach Artikel 5 Abs. 5 besteht nur, wenn vorher nationale Gerichte oder der Gerichtshof die Unrechtmäßigkeit des Freiheitsentzuges festgestellt haben.92 Der Anspruch auf Schadensersatz darf davon abhängig gemacht werden, dass ein tatsächlicher Schaden nachgewiesen wird.93

87 88 89 90 91 92 93

Id. St. Rspr.; Urteil Hamanov ./. Bulgarien vom 8. April 2004, Rz. 82. St. Rspr.; Urteil G.K. ./. Polen (Anm. 86), Rz. 91. St. Rspr.; Urteil Klyakhin ./. Russland vom 30. November 2004, Rz. 72. St. Rspr.; Urteil Nikolova ./. Bulgarien (No. 2) vom 30. September 2004, Rz. 75. St. Rspr.; Urteil Vachev ./. Bulgarien vom 8. Juli 2004, Rz. 78. St. Rspr.; Urteil Pavletic ./. Slowakei vom 22. Juni 2004, Rz. 95.

774

Till Müller

IV. Verfahrensgarantien, Artikel 6

1. Anwendbarkeit des Artikel 6 Die Verfahrensgarantien des Artikel 6 sind auf Streitigkeiten über zivilrechtliche Ansprüche oder Verpflichtungen und strafrechtliche Verfahren aller Instanzen anwendbar, wobei der Gerichtshof jeweils eigenständige Definitionen hierfür entwickelt hat. Auf ein Verfahren, das über die Wiederaufnahme eines bereits abgeschlossenen Verfahrens entscheiden soll, sind die Verfahrensgarantien des Artikel 6 nicht anwendbar.94 Eine Streitigkeit über zivilrechtliche Ansprüche oder Verpflichtungen liegt vor, wenn über die Existenz oder über Art und Umfang von nach nationalem Recht anerkannten Rechtspositionen gestritten wird, wobei das Ergebnis des Streites das fragliche Recht unmittelbar betreffen muss.95 Eine zivilrechtliche Rechtsposition stellt nach ständiger Rechtsprechung des Gerichtshofes auch der gute Ruf dar.96 Eine Abänderung dieser Kriterien hat der Gerichtshof im Berichtszeitraum für Fälle vorgenommen, in denen Geschädigte als Nebenkläger (partie civile) in einem Strafverfahren auftreten, um Schadensersatzansprüche zu sichern.97 Hier hat die Anwendung der oben genanten Kriterien zu einer erheblichen Verkomplizierung der Anwendbarkeitsprüfung geführt.98 Der Gerichtshof sah sich vor das Problem gestellt, dass er den wahrscheinlichen Ausgang eines laufenden Verfahrens, noch zu erwartender Rechtsmittel oder anderer Rechtswege beurteilen müsste.99 Nach einer intensiven Auslegung des französischen Rechtes und der Konvention100 gelangt der Gerichtshof hier zu dem Schluss, dass der Nebenkläger immer dann den Schutz des Artikel 6 genießt, wenn er

94

St. Rspr.; Urteil San Leonard Band Club ./. Malta vom 29. Juli 2004, Rz. 40. St. Rspr.; Urteil Valova, Slezak und Slezank ./. Slowakei vom 1. Juni 2004, Rz. 58. 96 St. Rspr.; Urteil Kusmierek ./. Polen vom 21. September 2004, Rz. 47. 97 Urteil Perez ./. Frankreich vom 12. Februar 2004. 98 Id., Rz. 55. 99 Id., Rz. 55. 100 Id., Rz. 57–69.

95

Die Rechtsprechung des EGMR im Jahre 2004

775

nicht lediglich die Bestrafung des Täters verfolgt, sondern als Nebenkläger auftritt, um zivilrechtliche Ansprüche zu schützen.101 Ob ein Strafverfahren vorliegt, beurteilt der Gerichthof nach der nationalen Einordnung des Tatbestandes, der Art der Handlung und der Schwere der angedrohten Bestrafung.102 Ein Strafverfahren liegt auch dann vor, wenn ein Militärgericht nach einem Schuldeingeständnis nur noch den Strafrahmen festsetzen muss.103 Auch Verfahren vor den Verfassungsgerichten fallen unter den Schutzbereich des Artikel 6, dabei ist es irrelevant, ob das Verfahren im Rahmen des normalen Instanzenzugs vor das Verfassungsgericht gekommen ist oder ob es aus einem direkten Antrag nach nationalem Recht an das Verfassungsgericht entstanden ist.104 2. Verfahrensgarantien des Artikel 6 Abs. 1 Artikel 6 Abs. 1 enthält eine Vielzahl von Anforderungen an die nationalen Gerichte sowie die Grundsätze eines fairen Verfahrens. Die Vertragsstaaten sind verpflichtet, ihr nationales Rechtsystem so auszugestalten, dass die Gerichte in der Lage sind, alle durch Artikel 6 Abs. 1 an sie gestellten Anforderungen zu erfüllen.105 a) Anforderungen an das nationale Gericht – Artikel 6 Abs. 1 aa) Das Recht auf Zugang zu einem Gericht Artikel 6 Abs. 1 enthält ein grundsätzliches Recht auf Zugang zu den Gerichten. Dieses Recht ist allerdings nicht als absolut zu sehen, sondern darf Formvorschriften, Antragsfristen, Sicherheitszahlungen und ähnlichem unterworfen 101

Id., Rz. 70; dieser zivilrechtliche Anspruch kann allerdings auch in dem bloßen Schutz der persönlichen Ehre liegen. 102 St. Rspr.; Urteil Kyprianou ./. Zypern vom 27. Januar 2004, Rz. 31. 103 Urteil Le Petit ./. Vereinigtes Königreich vom 15. Juni 2004, Rz. 20. 104 St. Rspr.; Urteil Voggenreiter ./. Deutschland vom 8. Januar 2004, Rz. 32 f. 105 St. Rspr.; Urteil Cvijetic ./. Kroatien vom 26. Februar 2004, Rz. 41.

776

Till Müller

werden.106 Grundsätzlich gibt Artikel 6 kein Recht auf eine Berufungs- oder Revisionsverhandlung. Wo aber mehrere Ebenen der Rechtsprechung vorliegen, muss jede Instanz den Garantien des Artikel 6 Abs. 1 entsprechen, also auch zugänglich sein.107 Der Gerichtshof sieht weiterhin die unverzügliche Durchsetzung eines Urteils als wesentlichen Bestandteil des Rechtes auf Zugang zum Gericht.108 Die Beschränkung der Garantien von Artikel 6 auf den bloßen Zugang zu den Gerichten und den Ablauf des Verfahrens würde das Rechtsstaatsprinzip in Frage stellen, da Staaten in der Lage wären, den Vollzug für sie ungünstiger Entscheidungen zu verhindern.109 bb) Das Recht auf Unabhängigkeit und Unbefangenheit der Gerichte Der Gerichtshof betont, dass das Vertrauen auf die Unabhängigkeit und Unbefangenheit der Gerichte ein fundamentaler Grundstein jeder demokratischen Gesellschaft ist.110 Ob ein Gericht unabhängig ist, lässt sich u. a. nach der Art der Berufung der Richter, der Länge ihrer Amtszeit, dem Vorhandensein von Schutzmechanismen gegen Beeinflussung von außen und der Erscheinung des Gerichtes bestimmen.111 Ein Militärgericht, das durch den Offizier geschaffen wird und wieder aufgelöst werden kann, der mit der Strafverfolgung betraut und außerdem Vorgesetzter der Richter ist, kann daher nicht als unabhängig bezeichnet werden.112 In einer langjährigen Spruchpraxis hat der Gerichtshof zwei Arten der Befangenheit entwickelt: Zum einen die subjektive Befangenheit jedes einzelnen 106

St. Rspr.; Urteil Zwiazek Nauczyielstwa Ploskiego ./. Polen vom 21. September 2004, Rz. 29. 107 St. Rspr.; Urteil Marpa Zeeland B.V. und Metal Welding B.V. ./. Niederlande vom 9. November 2004, Rz. 48. 108 St. Rspr.; Urteil Prodan ./. Moldawien vom 18. Mai 2004, Rz. 52. 109 Urteil Mykhaylenky und Andere ./. Ukraine vom 30. November, Rz. 51. 110 St. Rspr.; Urteil Kyprianou ./. Zypern (Anm. 102), Rz. 32. 111 Urteil G.W. ./. Vereinigtes Königreich vom 15. Juni 2004, Rz. 42. 112 Id., Rz. 43; Bestätigung des Urteils Findlay ./. Vereinigtes Königreich vom 25. Februar 1997.

Die Rechtsprechung des EGMR im Jahre 2004

777

Richters, wobei jeder Richter für unbefangen gehalten wird, bis das Gegenteil bewiesen wird;113 zum anderen die objektive Befangenheit des Gerichtes, diese wird angenommen, wenn die Zusammenstellung oder die Beschaffenheit des Gerichtes geeignet ist, legitime Zweifel an seiner Unbefangenheit aufkommen zu lassen.114 Da Artikel 6 Abs. 1 das öffentliche Vertrauen in die Gerichte schützt, prüft der Gerichtshof hier, ob Fakten vorliegen oder auch nur vorzuliegen scheinen, die einen objektiven Beobachter zu dem Schluss bringen könnten, das Gericht sei befangen.115 cc) Das Recht auf öffentliche Anhörung Aus dem Recht auf öffentliche Anhörung nach Artikel 6 Abs. 1 leitet der Gerichtshof das Recht auf eine mündliche Verhandlung ab, wenn nicht besondere Gründe eine mündliche Verhandlung unnötig machen.116 Dies kann der Fall sein, wenn das Berufungsgericht nur über einfache rechtliche Fragen entscheiden muss.117 dd) Das Recht auf Entscheidung in angemessener Frist Nach Artikel 6 Abs. 1 hat jedermann den Anspruch, dass sein Verfahren in angemessener Frist entschieden wird. Ob die Entscheidung in angemessener Zeit gefunden wurde, beurteilt der Gerichtshof nach der Komplexität des Falles, dem Verhalten des Beschwerdeführers während des Verfahrens, der Vorgehensweise der nationalen Behörden und der Bedeutung des Verfahrens für den Beschwerdeführer.118

113

St. Rspr.; Urteil Kyprianou ./. Zypern (Anm. 102), Rz. 32 St. Rspr.; Urteil Puolitaival und Pirttiaho ./. Finnland vom 23. November 2004, Rz. 41. 115 St. Rspr.; Urteil San Leonard Band Club ./. Malta (Anm. 94), Rz. 60. 116 St. Rspr.; Urteil Valova, Slezak und Slezank ./. Slowakei (Anm. 95), Rz. 63. 117 Id., Rz. 64 ff. 118 St. Rspr.; Urteil Svetlana Naumenko ./. Ukraine vom 9. November 2004, Rz. 77. 114

778

Till Müller

Als besonders komplex hat der Gerichtshof zum Beispiel ein Betrugsverfahren mit 13 Angeklagten und über 100 Zeugen und mehr als 400 Beweisdokumenten angesehen.119 Verzögerungen, die durch die Ausübung von Verfahrensrechten des Beschwerdeführers entstanden sind, dürfen ihm nicht als Mitverschulden einer Gesamtverzögerung vorgeworfen werden.120 So liegt die Verantwortung für Verzögerungen durch die Anfechtung von Gutachten bei dem Staat.121 Genauso wenig kann dem Angeklagten eine Verzögerung entgegengehalten werden, die von den Mitangeklagten verursacht worden ist.122 In dem Fall Cevizovic ./. Deutschland rechnete der Gerichtshof eine Verzögerung, die durch Krankheit mehrerer Schöffen verursacht wurde, dem Staat zu und stellte folglich eine Verletzung von Artikel 6 Abs. 1 fest.123 Bei der Bewertung der Verfahrenslänge von Strafverfahren wird die Zeit ab dem Zeitpunkt der ersten Anklage in Betracht gezogen.124 Der Begriff der Anklage wird vom Gerichtshof als offizielle Benachrichtigung des Angeklagten durch die Behörden über die ihm zur Last gelegten Vergehen verstanden.125 Das Verfahren gilt mit dem letztinstanzlichen rechtskräftigen Urteil als beendet.126 b) Grundsätze des fairen Verfahrens – Artikel 6 Abs. 1 Artikel 6 Abs. 1 garantiert weiterhin ein faires Verfahren. Dieser Begriff wird von der EMRK allerdings nicht näher beschrieben. Daher kann der Gerichtshof nur in einer Gesamtbetrachtung feststellen, ob das Verfahren fair gewesen ist.127 Dennoch hat der Gerichtshof in seiner Rechtssprechung gewisse Grundsätze eines fairen Verfahrens erarbeit. 119 120 121 122 123 124 125 126 127

Urteil G.K. ./. Polen (Anm. 86), Rz. 100. Urteil Merit ./. Ukraine vom 30. März 2004, Rz. 74. Urteil Vachez ./. Bulgarien (Anm. 92) , Rz. 91. Urteil G.K. ./. Polen (Anm. 86), Rz. 102. Urteil Cevizovic ./. Deutschland vom 29. Juli 2004, Rz. 60 f., 54. St. Rspr.; Urteil Merit ./. Ukraine (Anm. 120), Rz. 70 Id. Id. St. Rspr.; Urteil Tamminen ./. Finnland vom 15. Juni 2004, Rz. 38.

Die Rechtsprechung des EGMR im Jahre 2004

779

Ein faires Verfahren muss nach dem Gerichtshof von dem Gegensatz der Parteien geprägt sein. Das heißt, dass beide Parteien Zugang zu allen vorgebrachten Beweisen und Bemerkungen gegenüber dem Gericht haben.128 Die Pflicht liegt hier auch bei dem entsprechenden Gericht, alle ihm zugeführten Beweise oder Dokumente an die andere Partei weiterzuleiten, wenn diese auch nur annähernd von Bedeutung sein könnten.129 Das Prinzip der Rechtsicherheit ist ein fundamentaler Bestandteil des Rechtsstaatsprinzip und somit eine Vorraussetzung eines fairen Verfahrens.130 Rechtskräftig abgeschlossene Verfahren dürfen demnach nur erneut gehört werden, wenn schwerwiegende Gründe für mögliche Fehler in der rechtlichen Bewertung sprechen oder neue, möglicherweise entscheidende Beweise vorliegen.131 Um ein faires Verfahren zu gewährleisten, ist es von großer Wichtigkeit, dass der Beklagte in der Lage ist, an dem Verfahren teilzunehmen. Dies umfasst nicht nur die bloße Anwesenheit, sondern auch die Möglichkeit, das Verfahren wahrzunehmen und zu verstehen.132 Dieser Grundsatz ist z. B. verletzt, wenn nicht genug Rücksicht auf das geringe Alter, und damit das eingeschränkte Verständnis, eines 11-jährigen Angeklagten genommen wird.133 Zu dem Recht auf ein faires Verfahren gehört auch das Recht, sich nicht selber belasten zu müssen.134 In dem Urteil Weh ./. Österreich erklärte der Gerichtshof mit vier zu drei Stimmen die Anwendung eines österreichischen Gesetzes, welches den Fahrzeughalter verpflichtet, in einem Verfahren wegen Verkehrsvergehen den Fahrzeugführer zu benennen, für mit der Konvention vereinbar, da kein Verfahren gegen den Halter selbst anhängig war.135 Diese Argumentation wurde von der Minderheit in der Kammer abgelehnt, da in ihren

128 129 130 131 132 133 134 135

St. Rspr.; Urteil H.A.L. ./. Finnland vom 27. Januar 2004, Rz. 44. Id., Rz. 45. St. Rspr.; Urteil Pravednaya ./. Russland vom 18. November 2004, Rz. 24. St. Rspr.; id., Rz. 25. St. Rspr.; Urteil S.C. ./. Vereinigtes Königreich vom 15. Juni 2004, Rz. 28. Id., Rz. 31 ff. St. Rspr.; Urteil Weh ./. Österreich vom 8. April 2004, Rz. 39. Id., Rz. 56 f.

780

Till Müller

Augen das Verfahren gegen Unbekannt sofort in ein Verfahren gegen den Halter überginge, wenn der Halter angäbe, er sei selbst gefahren.136 3. Die Unschuldsvermutung – Artikel 6 Abs. 2 Die Unschuldsvermutung aus Artikel 6 Abs. 2, nach der jeder Angeklagte unschuldig ist, bis seine Schuld gerichtlich festgestellt wurde, stellt ein wichtiges Element jedes fairen Strafverfahrens dar.137 So darf auch eine Entscheidung über Schadensersatz für rechtmäßige Untersuchungshaft, nachdem das Verfahren eingestellt wurde oder in einem Freispruch geendet hat, keine Feststellung von Schuld, sondern nur Ausführungen über den Verdacht enthalten.138 Im Fall Kyprianou ./. Zypern hatte ein Gericht einem Anwalt direkt mitgeteilt, es halte sein Verhalten für Missachtung des Gerichtes, und ihm darüber hinaus keine Möglichkeit gegeben, sich zu verteidigen, sondern ihm bloß aufgegeben, sich zu entschuldigen. Dies stellte für den Gerichtshof eine eindeutige Verletzung der Unschuldsvermutung dar.139 4. Die Verfahrensgarantien für den Beschuldigten – Artikel 6 Abs. 3 a) Unterrichtung über die Beschuldigung – Artikel 6 Abs. 3 lit. a Nach Artikel 6 Abs. 3 lit. a hat jeder Angeklagte das Recht, in möglichst kurzer Frist in einer für ihn verständlichen Sprache in allen Einzelheiten über die Art und den Grund der gegen ihn erhobenen Beschuldigungen in Kenntnis gesetzt zu werden. Das heißt, der Angeklagte muss detailliert über die ihm vorgeworfenen tatsächlichen Handlungen und deren rechtliche Einordnung informiert werden.140 Eine Verletzung kann schon dann vorliegen, wenn dem Angeklagten bestimmte, die Entscheidung beeinflussende, Interpretationen seines

136

Id., Gemeinsame Abweichende Meinung der Richter Lorenzen, Levits und Hajiyev, Rz. 1 ff. 137 St. Rspr.; Urteil Kyprianou ./. Zypern (Anm. 102), Rz. 52 138 Urteil Del Latte ./. Niederlande vom 9. November 2004, Rz. 31. 139 Urteil Kyprianou ./. Zypern (Anm. 102), Rz. 56. 140 St. Rspr.; id., Rz. 65.

Die Rechtsprechung des EGMR im Jahre 2004

781

Handelns nicht mitgeteilt werden, da er dann nicht in der Lage ist, sich gegen die Vorwürfe zu verteidigen.141 b) Anwaltliche Vertretung – Artikel 6 Abs. 3 lit. c Nach Artikel 6 Abs. 3 lit. c hat jeder Angeklagte das Recht, sich selbst zu verteidigen oder sich durch einen Anwalt seiner Wahl vertreten zu lassen. Hat der Angeklagte nicht die Mittel, um sich durch einen Anwalt vertreten zu lassen, hat er Anspruch auf einen Pflichtverteidiger, wenn dies im Interesse der Rechtspflege erforderlich ist. Der Gerichtshof legt Artikel 6 Abs. 3 lit. c so aus, dass er auch verletzt ist, wenn der Angeklagte sich zwar selbst vertritt oder von einem Anwalt seiner Wahl vertreten wird, er oder sein Anwalt aber keine Gelegenheit bekommen, sich zu äußern.142 Der Verzicht auf dieses Recht muss ausdrücklich erklärt werden und darf nicht aus den Umständen geschlossen werden.143 c) Befragung und Ladung von Zeugen – Artikel 6 Abs. 3 lit. d Ein weiteres Recht, das die Teilnahme des Beschuldigten am Prozess sichern soll, ist das Recht auf Befragung von Belastungszeugen und auf Ladung von Entlastungszeugen unter den selben Vorraussetzungen, unter denen auch die Belastungszeugen geladen werden. Das heißt im Grundsatz, dass eine Verurteilung nicht auf Aussagen von Zeugen gestützt werden darf, wenn der Beschuldigte nicht die Gelegenheit gehabt hat, diese Aussagen in Frage zu stellen und selbst die Zeugen zu befragen.144 Allerdings gibt Artikel 6 Abs. 3 lit. d kein absolutes Recht auf die Ladung und Befragung beliebiger Zeugen, vielmehr liegt es bei dem nationalen Gericht festzustellen, ob die Befragung bestimmter Zeugen für das Verfahren notwendig ist oder nicht.145 So kann das nationale Gericht eine Ladung von Zeugen verweigern, wenn es dem Beschuldigten die Identität und

141

Id., 66 ff. Urteil Hooper ./. Vereinigtes Königreich vom 16. November 2004, Rz. 20 ff. 143 Urteil Yavuz ./. Östereich vom 27. Mai 2004, Rz. 49 ff. 144 St. Rspr.; Urteil Laukkanen und Manninaen ./. Finnland vom 3. Februar 2004, Rz. 35. 145 Id. 142

782

Till Müller

den Inhalt der Aussagen von Zeugen mitteilt und dieser nicht begründen kann, warum er die Zeugen erneut befragen will.146 V. Nullum Crimen, Nulla Poena Sine Lege, Artikel 7

Artikel 7 schreibt die Grundsätze nullum crimen sine lege und nulla poena sine lege fest. Aus diesen entwickelt der Gerichtshof noch weitere rechtsstaatliche Grundsätze. Weiterhin wird auch die Verpflichtung, Gesetze verständlich und eindeutig zu gestalten, und das strafrechtliche Analogieverbot hieraus abgeleitet.147 Die Grundsätze nullum crimen, nulla poena sine lege können auch durch die gefestigte Rechtsprechung der nationalen Gerichte erfüllt sein, solange diese das Kriterium der Vorhersehbarkeit erfüllt.148 Um unter das Verbot von Artikel 7 zu fallen, muss eine Handlung auch als Strafe für ein strafrechtliches Vergehen gedacht sein; einfache willkürliche Handlungen zum Nachteil der Betroffenen fallen nicht hierunter.149 VI. Die Freiheitsrechte

Aufgrund des nahezu gleichen Aufbaus der Freiheitsrechte in Artikel 8–11 soll hier zunächst die Rechtsprechung des Gerichtshofs zum Schutzbereich der einzelnen Rechte dargestellt werden, um danach auf die gemeinsamen Grundsätze der Rechtfertigung von Eingriffen einzugehen. 1. Schutzbereich a) Recht auf Achtung des Privat- und Familienlebens, Artikel 8 Artikel 8 schützt das Recht auf Privat- und Familienleben. Hierbei sieht der Gerichtshof den Begriff des Privatlebens als einen sehr weiten Begriff, der 146

Id., Rz. 36 f. St. Rspr.; Urteil Pukh ./. Estland vom 10. Februar 2004, Rz. 25. 148 St. Rspr.; Urteil Achour ./. Frankreich vom 10. November 2004, Rz. 33. 149 Urteil Dogan und Andere ./. Türkei vom 29. Juni 2004, Rz. 124 ff.; hier wurde die Vertreibung aus einem Dorf nicht als Strafe angesehen und folglich keine Verletzung von Art. 7 angenommen. 147

Die Rechtsprechung des EGMR im Jahre 2004

783

keiner abschließenden Definition zugänglich ist.150 Als Grundsatz betrachtet der Gerichtshof aber, dass der Begriff des Privatlebens die physische sowie psychische Integrität einer Person umfasst.151 Daher beinhaltet der Schutz aus Artikel 8 die freie Entwicklung jeder Person, auch im Kontakt mit anderen, ohne Einwirkungen von außen.152 Geschützt wird daher u. a. der persönliche Name,153 Briefverkehr,154 Telefongespräche,155 Bilder, welche die Person im privaten Zusammenhang zeigen,156 die sexuelle Orientierung157 und das Heim.158 Der Begriff des Heimes wird von dem Gerichtshof unabhängig von den nationalen Bestimmungen definiert. Ob ein bestimmter Ort das Heim einer Person darstellt, hängt von den tatsächlichen Umständen und dem Grad der ständigen Beziehung zu dem Ort ab.159 Auch das Verbot, bestimmte Berufe in der privaten Wirtschaft zu ergreifen, kann Einfluss auf die persönliche Entwicklung im sozialen Umfeld haben und daher einen Eingriff in das Privatleben im Sinne des Artikel 8 darstellen.160 Da der Staat auch eine positive Pflicht hat, das Privat- und Familienleben zu schützen, kann auch ein Eingriff vorliegen, wenn die Beeinträchtigung von Dritten zu verantworten ist, aber der Staat nicht die notwendigen Maßnahmen unternommen hat, sie zu verhindern.161 Ein Eingriff in das Privatleben liegt demnach vor, wenn der beklagte Staat eine erhebliche Lärmbelästigung durch Bars und Nachtclubs nicht verhindert hat.162 Auch die Unfähigkeit des Staates, eine Räumungsklage durchzusetzen, kann einen Eingriff in Artikel 8 dar-

150 151 152 153 154 155 156 157 158 159 160 161 162

St. Rspr.; Urteil Sidabras und Dziautas ./. Litauen vom 27. Juli 2004, Rz. 43. St. Rspr.; Urteil von Hannover ./. Deutschland (Anm. 7), Rz. 50. St. Rspr.; id. Urteil Ünal Tekeli ./. Türkei vom 16. November 2004, Rz. 46. Urteil Doerga ./. Niederlande vom 27. April 2004, Rz. 43. Urteil Narinen ./. Finnland vom 1. Juni 2004, Rz. 32. Urteil von Hannover ./. Deutschland (Anm. 7), Rz. 52. Urteil B.B. ./. Vereinigtes Königreich vom 10. Feburar 2004, Rz. 23 f. Urteil Altun ./. Türkei vom 1. Juni 2004, Rz. 62. St. Rspr.; Urteil Prokopovich ./. Russland vom 18. November 2004, Rz. 36. Urteil Sidabras und Dziautas ./. Litauen (Anm. 150), Rz. 50. St. Rspr.; Urteil Pla und Puncrnau ./. Andorra vom 13. Juli 2004, Rz. 43. Urteil Moreno Gomez ./. Spanien vom 16. November 2004, Rz. 60 ff.

784

Till Müller

stellen.163 Weiterhin hat der Staat auch die positive Pflicht, die besondere Lebensweise von Minderheiten, wie z. B. der Sinti und Roma, zu unterstützen.164 Familienleben im Sinne des Artikel 8 umfasst nicht nur die Ehe oder Familie vor dem Gesetz, sondern auch jede Verbindung, die rein faktisch als Familie angesehen wird.165 Der Schutz beinhaltet vor allem das Recht beider Eltern auf Umgang mit den Kindern. Demnach ist der Staat verpflichtet, jede Trennung der Kinder von einem oder beiden Elternteilen möglichst kurz zu halten oder ausreichende Umgangsregelungen zu schaffen.166 Dieses Umgangsrecht darf nur dort eingeschränkt werden, wo es im besten Interesse des Kindes ist.167 Ob eine familiäre Beziehung besteht, kann nur anhand der Umstände eines jeden Einzelfalles beurteilt werden. Muss die Beziehung eines gerade geborenen Kindes zu seinem unehelichen Vater erst noch entstehen, kommt es z. B. auf die Beziehung der Eltern und das Bemühen des Vaters um die Mutter und das Kind vor und nach der Geburt an.168 So entschied der Gerichtshof im Fall Haas ./. Niederlande, dass bloß angeblicher, seltener Kontakt und nur angeblich väterliches Verhalten kein Familienleben im Sinne des Artikel 8 begründen können.169 b) Gedanken-, Gewissens- und Religionsfreiheit, Artikel 9 Das Recht auf Gedanken-, Gewissens- und Religionsfreiheit schützt zwar in erster Linie das Gewissen jedes Individuums, es umfasst aber auch das Recht, seinen Glauben alleine oder in der Gemeinschaft, privat oder öffentlich auszuüben.170

163

Urteil Cvijetic ./. Kroatien (Anm. 105), Rz. 53. St. Rspr.; Urteil Connors ./. Vereinigtes Königreich vom 27. Mai 2004, Rz. 84. 165 St. Rspr.; Urteil Lebbink ./. Niederlande vom 1. Juni 2004, Rz. 35. 166 St. Rspr.; Urteil Kosmopoulou ./. Griechenland vom 5. Februar 2004, Rz. 42. 167 Id. 168 Id., Rz. 36. 169 Urteil Haas ./. Niederlande vom 13. Januar 2004, Rz. 42. 170 St. Rspr.; Urteil Supreme Holy Council of the Muslim Community ./. Bulgarien vom 16. Dezember 2004, Rz. 73. 164

Die Rechtsprechung des EGMR im Jahre 2004

785

Einen Eingriff in die Religionsfreiheit sah der Gerichtshof in dem Kopftuchverbot an türkischen Universitäten171 sowie in der Unterordnung von islamischen Gemeinden unter eine gemeinsame Führung.172 c) Das Recht auf freie Meinungsäußerung, Artikel 10 Das Recht auf freie Meinungsäußerung ist eine Grundlage jeder demokratischen Gesellschaft und ermöglicht erst die Weiterentwicklung der Gesellschaft sowie die Selbstverwirklichung jedes Einzelnen.173 Um einen erfolgreichen gesellschaftlichen Diskurs zu ermöglichen und Toleranz und Pluralismus zu stärken, ist es daher notwendig, dass auch Informationen oder Meinungen geschützt werden, die von anderen als schockierend oder abartig empfunden werden.174 Von besonderer Wichtigkeit ist in diesem Zusammenhang die Freiheit der Presse.175 Die Presse hat nicht nur gewissermaßen die Pflicht, alle Informationen von öffentlichen Interesse, beschränkt nur durch die Rechte Dritter, weiterzugeben, die Öffentlichkeit hat ebenso ein Recht, alle wichtigen Informationen zu erhalten.176 Die Presse genießt bis zu einem bestimmten Punkt sogar ein Recht auf Übertreibung und Provokation.177 Zu den Gegenständen des öffentlichen Interesses, über welche die Presse im Rahmen ihrer Möglichkeiten berichten soll, gehört auch das Verhalten der Judikative.178 Hierbei muss allerdings beachtet werden, dass die Angehörigen der Judikative und besonders die Richter sich aufgrund ihrer Schweigepflichten nicht

171 Urteil Leyla Sahin ./. Türkei vom 29. Juni 2004, Rz. 71; der Gerichtshof sah den Eingriff aber als gerechtfertigt an und sah daher keine Verletzung von Art. 9 gegeben; der Fall wird zur Zeit noch vor der großen Kammer verhandelt. 172 Urteil Supreme Holy Council of the Muslim Community ./. Bulgarien (Anm. 170), Rz. 85. 173 St. Rspr.; Urteil Selistö ./. Finnland vom 16. November 2004, Rz. 46. 174 St. Rspr.; Urteil Karhuvaara und Iltalehti ./. Finnland vom 16. November 2004, Rz. 37. 175 St. Rspr.; id., Rz. 40. 176 St. Rspr.; Urteil Selistö ./. Finnland (Anm. 173), Rz. 48. 177 St. Rspr.; Urteil Karhuvaara und Iltalehti ./. Finnland (Anm. 174), Rz. 40. 178 St. Rspr.; Urteil Hrico ./. Slowakei vom 20. Juli 2004, Rz. 40 f.

786

Till Müller

gegen unbegründete Behauptungen zur Wehr setzen können und daher einen besonderen Schutz genießen müssen.179 Aufgrund der Wichtigkeit von Verlegern für das Pressewesen liegt bei dem Verbot, ein bestimmtes Buch zu vertreiben, nicht nur ein Eingriff in das Recht auf freie Meinungsäußerung des Autors, sondern auch in das des betroffenen Verlegers vor.180 Auch ein Berufsverbot kann einen Eingriff in Artikel 10 darstellen, wenn der Beruf selbst dem Betroffenen die Möglichkeit gegeben hatte, seine Meinungen zu äußern und zu verbreiten.181 d) Das Recht auf Versammlungs- und Vereinigungsfreiheit, Artikel 11 Artikel 11 schützt das Recht auf Versammlungs- und Vereinigungsfreiheit. Die Vereinigungsfreiheit umfasst vor allem das Recht, eine rechtlich anerkannte Vereinigung zu gründen und sie zu führen.182 Dieses Recht ist vor allem auch auf politische Parteien anzuwenden, die auf dem Boden der Verfassung stehen.183 Der Gerichtshof setzt den Schutz der Vereinigungsfreiheit so hoch an, dass er aus der nationalen Gesetzgebung zu diesem Bereich und deren Umsetzung Rückschlüsse über den Zustand der Demokratie in dem betreffenden Land zieht.184 Ein Eingriff liegt demnach z. B. vor, wenn eine Partei nicht zur Wahl zugelassen wird185 oder wenn ein Richter Disziplinarmaßnahmen aufgrund seiner Mitgliedschaft bei den Freimaurern ausgesetzt ist.186 2. Rechtfertigung Ein Eingriff in eines der Freiheitsrechte aus Artikel 8–11 kann nur unter drei Bedingungen als gerechtfertigt angesehen werden. Der Eingriff muss auf 179

Id. St. Rspr.; Urteil Plon (Société) ./. Frankreich vom 18. Mai 2004, Rz. 22. 181 Urteil Sidabras und Dziautas ./. Litauen (Anm. 150), Rz. 70. 182 St. Rspr.; Urteil Gorzelik und Andere ./. Polen vom 17. Februar 2004, Rz. 88. 183 St. Rspr.; Urteil Presidential Party for Moldovia ./. Russland vom 5. Oktober 2004, Rz. 28. 184 St. Rspr.; Urteil Gorzelik und Andere ./. Polen (Anm. 182). 185 Urteil Presidential Party for Moldovia ./. Russland (Anm. 183), Rz. 31 f. 186 Urteil Maestri ./. Italien vom 17. Februar 2004, Rz. 25 ff. 180

Die Rechtsprechung des EGMR im Jahre 2004

787

Grundlage eines Gesetzes geschehen sein, der Staat muss durch den Eingriff ein legitimes Ziel verfolgt haben und der Eingriff muss in einer demokratischen Gesellschaft notwendig gewesen sein.187 a) Gesetzlich vorgesehen Um als gesetzlich vorgesehen zu gelten, muss ein Eingriff eine gewisse Grundlage im nationalen Recht haben und für den Betroffenen als Konsequenz seines Verhaltens vorhersehbar gewesen sein.188 Diese Grundlage kann sowohl in Gesetzen und Rechtsverordnungen als auch in gefestigter Rechtsprechung zu finden sein.189 Weiterhin muss die rechtliche Grundlage durch entsprechende prozessuale Vorschriften einen willkürlichen Gebrauch durch die Exekutive unmöglich machen.190 Es darf jedoch nicht außer Acht gelassen werden, dass ein gewisses Maß an Abstraktheit und damit Ungenauigkeit erforderlich ist, um Gesetze auch langfristig auf sich ständig verändernde Bedingungen anwenden zu können.191 Die Bewertung, ob eine Norm diesen Ansprüchen genügt, muss mit Blick auf die Komplexität des Regelungsgegenstandes und auf den Adressaten getroffen werden.192 So setzt der Gerichtshof z. B. voraus, dass ein Verleger sowohl die Normen des Presserechts als auch die ständige Rechtsprechung in diesem Bereich kennt.193 Als unzureichend befand der Gerichtshof die finnischen Regelungen zur Umleitung von Geschäftspost zum Insolvenzverwalter, da diese keine genauen Bestimmungen über die Voraussetzungen und über die Durchführung der Umleitung enthielten und somit keinen ausreichenden Schutz gegen willkürlichen Gebrauch gewährten.194

187 188 189 190 191 192 193 194

St. Rspr.; Urteil Plon (Société) ./. Frankreich (Anm. 180), Rz. 23. St. Rspr.; Urteil Narinen ./. Finnland (Anm. 155), Rz. 34. St. Rspr.; Urteil Leyla Sahin ./. Türkei (Anm. 171), Rz. 77. St. Rspr.; Urteil Maestri ./. Italien (Anm. 186), Rz. 30. St. Rspr.; Urteil Gorzelik und Andere ./. Polen (Anm. 182), Rz. 64. St. Rspr.; Urteil Maestri ./. Italien (Anm. 186), Rz. 30. Urteil Chauvy und Andere ./. Frankreich vom 29. Juni 2004, Rz. 48. Urteil Narinen ./. Finnland (Anm. 155), Rz. 36.

788

Till Müller

b) Legitimes Ziel Der Staat muss mit seinem Eingriff ein im Sinne der Konvention legitimes Ziel verfolgen. Für einen Eingriff in das Familienleben, in Form einer Kontaktsperre, stellt z. B. das Wohl des betroffenen Kindes ein legitimes Ziel dar.195 Als legitimes Ziel für eine Einschränkung der Meinungsfreiheit kommen vor allem der Ruf und die Rechte Dritter in Betracht,196 aber auch die Aufrechterhaltung der Autorität des Gerichtes kann ein legitimes Ziel darstellen.197 Weiterhin stellen der Schutz der öffentlichen Ordnung und die Verbrechensprävention legitime Ziele zur Einschränkung des Schutzes des Privatlebens dar.198 c) Notwendigkeit des Eingriffs in einer demokratischen Gesellschaft Die Notwendigkeit der gerügten Maßnahme muss sich aus den Grundsätzen der demokratischen Gesellschaft ergeben. Dies kann nur der Fall sein, wenn sie aus einem drängenden sozialen Bedürfnis heraus erfolgt.199 Bei der Feststellung, ob ein drängendes soziales Bedürfnis vorliegt, genießt jeder Staat zwar ein gewisses Maß an Ermessen, jedoch obliegt es zuletzt dem EGMR, eine abschließende Beurteilung vorzunehmen.200 Liegt solch ein drängendes Bedürfnis vor, prüft der Gerichtshof weiterhin, ob die Maßnahme dem verfolgten legitimen Ziel angemessen ist und ob die Gründe, die der Staat für seine Maßnahme vorgebracht hat, schwerwiegend und ausreichend gewesen sind.201 Die abschließende Beurteilung, ob eine Maßnahme als „notwendig in einer demokratischen Gesellschaft“ anzusehen ist, kann allerdings nur nach einer eingehenden Betrachtung aller Umstände des Einzelfalles getroffen werden.202 Im Bereich von Sorgerechtsentscheidungen räumt der Gerichtshof den nationalen Gerichten einen weiten Beurteilungsspielraum ein. Je stärker die Einschränkungen des Rechtes auf Familienleben jedoch werden, so z. B. durch 195 196 197 198 199 200 201 202

Urteil Görgülü ./. Deutschland vom 26. Februar 2004, Rz. 37. Urteil Cumpana und Mazare ./. Rumänien vom 17. Dezember 2004, Rz. 86. Urteil Hrico ./. Slowakei (Anm. 178), Rz. 41. Urteil Klyakhin ./. Russland (Anm. 90), Rz. 109. St. Rspr.; Urteil Gorzelik und Andere ./. Polen (Anm. 182), Rz. 95. St. Rspr.; Urteil Cumpana und Mazare ./. Rumänien (Anm. 196), Rz. 88. St. Rspr.; Urteil Haase ./. Deutschland (Anm. 21), Rz. 88. St. Rspr.; Urteil Hrico ./. Slowakei (Anm. 178), Rz. 40 (c).

Die Rechtsprechung des EGMR im Jahre 2004

789

restriktive Umgangsregelungen, desto strenger wird auch der Überprüfungsmaßstab des Gerichtshofes.203 Schränkt eine Maßnahme den Kontakt zwischen Kindern und ihren Eltern ein, ist es von höchster Bedeutung für eine Rechtfertigung, ob die Maßnahme den besten Interessen des Kindes dient. Das Wohl des Kindes muss auch bei einer Abwägung aller widerstreitenden Interessen im Vordergrund stehen.204 In dem Fall Leyla Sahin ./. Türkei hatte der Gerichtshof zwischen der Religionsfreiheit der Antragstellerin, nämlich ihrem Recht ein Kopftuch auch in der Universität zu tragen, und den Zielen des Staates, religiöse Minderheiten, also Rechte Dritter, zu schützen und die öffentliche Ordnung aufrechtzuerhalten, abzuwägen.205 Aufgrund der Wichtigkeit der betroffenen Rechte und der uneinheitlichen Handhabung des Problems im europäischen Raum räumte der Gerichtshof hier der Türkei einen weiten Ermessensspielraum ein.206 Er sah unter anderem die zunehmende Politisierung des Kopftuches durch fundamentalistische Kräfte in der Türkei und den Eindruck, den das Kopftuch auf die Frauen macht, die es nicht tragen, als Grund an, ein drängendes soziales Bedürfnis anzunehmen.207 Im Ergebnis sah der Gerichtshof das Kopftuchverbot an türkischen Universitäten als gerechtfertigt an.208 Eingriffe in die Meinungsfreiheit unterscheidet der Gerichtshof danach, ob Tatsachenbehauptungen oder Werturteile betroffen sind. Da nur Tatsachenbehauptungen einem Beweis zugänglich sind, stellt es eine Konventionsverletzung dar, wenn von nationalen Behörden oder Gerichten ein Beweis für Werturteile verlangt wird; allerdings kann auch ein Werturteil zu weit gehen und somit verboten werden, wenn es jeglicher faktischer Grundlage entbehrt.209 Bei der Beurteilung der Angemessenheit der Maßnahme kommt vor allem der Schwere von Bestrafungen von Journalisten eine große Bedeutung zu. Ist die Bestrafung geeignet, andere Journalisten von der Ausübung ihres Berufes und vor allem von investigativem Journalismus in Angelegenheiten des öffentlichen 203

St. Rspr.; Urteil Görgülü ./. Deutschland (Anm. 195), Rz. 42. St. Rspr.; id., Rz. 41, 43. 205 Urteil Leyla Sahin ./. Türkei (Anm. 171), Rz. 108. 206 Id., Rz. 102. 207 Id., Rz. 108. 208 Id., Rz. 114; das Verfahren ist momentan zur Überprüfung durch die große Kammer anhängig. 209 St. Rspr.; Urteil Pedersen und Baadsgaard ./. Dänemark vom 17. Dezember 2004, Rz. 76. 204

790

Till Müller

Interesses abzuhalten, muss der handelnde Staat äußerst schwerwiegende Gründe zur Rechtfertigung dieser Strafen vorbringen.210 In dem Verfahren von Hannover ./. Deutschland musste der Gerichtshof zwischen der Pressefreiheit und dem Recht auf Privatleben abwägen.211 Die Beschwerdeführerin hatte verschiedene deutsche Urteile gerügt, die ihr keinen Schadensersatz für die Veröffentlichung mehrer Photographien, die sie in rein privaten Situationen zeigten, zugesprochen hatten.212 Der Gerichtshof hob hier die wichtige Rolle, die der Presse in einer Demokratie zukommt, hervor und bestätigte auch das Recht der Öffentlichkeit, in gewissem Rahmen über das Privatleben von Persönlichkeiten des öffentlichen Lebens, insbesondere Politikern, zu erfahren.213 Die Pressefreiheit müsse aber da beschränkt werden, wo die Veröffentlichungen über das Privatleben nur der Sensationslust und Neugier der Leser diene und nicht im Rahmen eines öffentlichen Diskurses erfolge.214 Da die Beschwerdeführerin keine öffentlichen Ämter oder Funktionen bekleidet, gestand der Gerichtshof ihr einen weiteren Schutz des Privatlebens zu als z. B. Politikern und sah in der Gleichstellung des Schutzniveaus mit Politikern durch die deutschen Gerichte eine Verletzung von Artikel 8 durch Deutschland.215 VII. Rechte aus den Zusatzprotokollen

1. Recht auf Schutz des Eigentums, Artikel 1 des 1. Zusatzprotokolls a) Der Begriff des Eigentums Artikel 1 des 1. Zusatzprotokolls (im Folgenden Artikel 1) schützt das Eigentum, wobei der Gerichtshof einen eigenständigen, von den nationalen Rechts210

St. Rspr.; Urteil Cumpana und Mazare ./. Rumänien (Anm. 196), Rz. 111 ff. Urteil von Hannover ./. Deutschland (Anm. 7). 212 Id., Rz. 8 ff. 213 Id., Rz. 64. 214 St. Rspr.; id., Rz. 65 ff. 215 Id., Rz. 76 ff.; diese Feststellung und vor allem die Weigerung der Bundesregierung, Rechtsmittel einzulegen, stieß auf heftige Proteste nicht nur der Boulevardpresse in Deutschland, dazu näher Alexander Behnsen, Das Recht auf Privatleben und die Pressefreiheit – Die Entscheidung des Europäischen Gerichtshofs für Menschenrechte in der Sache Hannover ./. Deutschland, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 65, 2005, 1–17. 211

Die Rechtsprechung des EGMR im Jahre 2004

791

ordnungen unabhängigen Eigentumsbegriff zugrunde legt.216 Unter diesen Begriff fallen, neben dem tatsächlichen Eigentum und bestehenden Ansprüchen, auch solche Vermögenswerte, die dem Antragsteller eine gesicherte Aussicht auf ein Vermögensrecht geben.217 Es muss daher in einer eingehenden Untersuchung des Einzelfalls festgestellt werden, ob der Antragsteller solch eine gesicherte Aussicht oder ein anderweitig schützenswertes Interesse nach Artikel 1 geltend machen kann.218 Zu den geschützten Rechten nach Artikel 1 können auch Ansprüche gegen Pensionskassen gehören.219 Auch die de facto-Duldung von illegalen Behausungen über mehrere Jahre kann zu einer geschützten Position nach Artikel 1 führen.220 Verpflichtet ein Urteil die unterlegene Seite, einen Vertrag zu schließen, kann dies eine geschützte Eigentumsposition der obsiegenden Partei darstellen.221 Weiterhin kann auch das Recht, Tiere auf der Gemeindewiese grasen zu lassen und wirtschaftlichen Nutzen aus dem Gemeindewald zu ziehen, ein geschütztes Interesse im Sinne des Artikel 1 sein.222 b) Eingriff und Rechtfertigung Der Gerichtshof unterscheidet drei Eingriffe in das Eigentum. Abs. 1 Satz 1 ist allgemein gehalten und beinhaltet das Prinzip der friedlichen Nutzung des Eigentums; unter Abs. 1 Satz 2 fällt die klassische Enteignung, und Abs. 2 ermöglicht den Staaten, regelnd in das Eigentum einzugreifen.223 Da Abs. 1 Satz 2 und Abs. 2 jedoch nur spezifische Fälle von Eingriffen in das Eigentum bezeichnen, können sie nie losgelöst von den allgemeinen Prinzipien des Abs. 1 Satz 1 betrachtet werden.224

216 217 218 219 220 221 222 223 224

St. Rspr.; Urteil Dogan und Andere ./. Türkei (Anm. 149), Rz. 138. St. Rspr.; Urteil Kopecky ./. Slowakei vom 28. September 2004, Rz. 35 lit. c. St. Rspr.; Urteil Öneryildiz ./. Türkei (Anm. 26), Rz. 124. St. Rspr.; Urteil Kjartan Asmundsson ./. Island vom 12. Oktober 2004, Rz. 29. Urteil Öneryildiz ./. Türkei (Anm. 26), Rz. 127 ff. Urteil Kacmar ./. Slowakei vom 9. März 2004, Rz. 81. Urteil Dogan und Andere ./. Türkei (Anm. 149), Rz. 139. St. Rspr.; Urteil Bäck ./. Finnland vom 20. Juli 2004, Rz. 52. St. Rspr.; Urteil Broniowski ./. Polen vom 22. Juni 2004, Rz. 134.

792

Till Müller

Die Feststellung, ob eine bestimmte Form des Eingriffes, wie z. B. eine Enteignung, vorliegt, kann nur unter Betrachtung aller Umstände des Einzelfalls und losgelöst von der formellen Erscheinung der Maßnahme vorgenommen werden.225 Kann die Maßnahme nicht eindeutig zugeordnet werden, wendet der Gerichtshof die allgemeinen Grundsätze des Abs. 1 Satz 1 an.226 Die Ansprüche an die Rechtfertigung sind im Grundsatz bei allen Formen des Eingriffes gleich. Jeder Eingriff muss sich auf eine gesetzliche Grundlage stützen, ein legitimes Ziel des öffentlichen Interesses verfolgen und auf einer fairen Abwägung der widerstreitenden Interessen beruhen.227 Die Anforderungen an die gesetzliche Grundlage ergeben sich aus dem Rechtsstaatsprinzip und bestehen demnach in seiner verständlichen Formulierung und der Vorhersehbarkeit der Rechtsfolgen.228 In der Frage, ob eine Maßnahme im öffentlichen Interesse ist, genießen die nationalen Behörden einen weiten Ermessensspielraum.229 So nimmt der Gerichtshof an, dass eine Maßnahme im öffentlichen Interesse ist, solange sie nicht offensichtlich unbegründet ist.230 Unter besonderen Umständen kann auch eine Maßnahme, die keinen direkten Vorteil für die Gesellschaft als Ganzes hat, im öffentlichen Interesse sein.231 Vor allem aber muss die Maßnahme auf einer fairen Abwägung der Interessen beruhen, das heißt, sie muss zu dem verfolgten Ziel in einem angemessen Verhältnis stehen und darf dem Adressaten keine unverhältnismäßige Last aufbürden.232 Der Gerichtshof stellt hier vor allem auf die Art und Schwere des Eingriffes,233 die Höhe eine etwaigen Entschädigung234 und die widerstreitenden 225

St. Rspr.; Urteil Jahn und Andere ./. Deutschland vom 22. Januar 2004, Rz. 65. Urteil Öneryildiz ./. Türkei (Anm. 26), Rz. 133. 227 St. Rspr.; Urteil Broniowski ./. Polen (Anm. 224), Rz. 147–148, 150. 228 St. Rspr.; id., Rz. 147; aufgrund der Ähnlichkeit zu den Anforderungen an die Gesetzmäßigkeit von Eingriffen in die Freiheitsrechte wird für nähere Ausführungen auf den Punkt C. VI. 2. a) verwiesen. 229 St. Rspr.; Urteil Sorrentino Prota ./. Italien vom 29. Januar 2004, Rz. 56. 230 St. Rspr.; Urteil Broniowski ./. Polen (Anm. 224), Rz. 149. 231 St. Rspr.; id., Rz. 60. 232 St. Rspr.; Urteil Bruncroana ./. Finnland vom 16. November 2004, Rz. 67. 233 Urteil Dogan und Andere ./. Türkei (Anm. 149), Rz. 153. 234 St. Rspr.; Urteil Bäck ./. Finnland (Anm. 223), Rz. 55. 226

Die Rechtsprechung des EGMR im Jahre 2004

793

Interessen ab.235 Eine entschädigungslose Enteignung ist zwar nicht von vornherein ungerechtfertigt, kann aber nur in besonderen Ausnahmefällen gerechtfertigt sein.236 In mehreren Fällen, in denen Sicherheitskräfte in den frühen 1990er Jahren Dörfer im Süd-Osten der Türkei zerstört hatten, hat der Gerichtshof eine Verletzung des Eigentums nach Artikel 1 durch die Türkei festgestellt.237 Im Fall Broniowski ./. Polen stellte der Gerichtshof ein strukturelles Problem der polnischen Gesetzgebung und der behördlichen Praxis in Bezug auf die Entschädigung für Landverlust nach Vertreibungen aus den ehemaligen Ostgebieten Polens (Bug River Claims) fest.238 Im Berichtszeitraum hatte der Gerichtshof auch über eine Beschwerde gegen Deutschland zu entscheiden. Im Fall Jahn und Andere ./. Deutschland rügten die Antragsteller, dass die Verpflichtung zur entschädigungslosen Übereignung von Bodenreformland an den Staat gegen Artikel 1 verstieße.239 Der Gerichtshof sah hier eine Verletzung nicht in der angestrebten Rückabwicklung des ModrowGesetzes, sondern in der Tatsache, dass die Rückabwicklung in dem konkreten Fall entschädigungslos zugunsten des Staates erfolgt war.240 2. Das Recht auf Bildung, Artikel 2 des 1. Zusatzprotokolls Artikel 2 des 1. Zusatzprotokolls gewährt das Recht auf Bildung. Einen Eingriff in das Recht auf Bildung kann nur von Schülern oder Studenten, nicht aber von Lehrern oder Professoren geltend gemacht werden.241 Es räumt allen Perso235

Urteil Urteil Kjartan Asmundsson ./. Island vom 12. Oktober 2004, Rz. 40 ff. St. Rspr.; Urteil Jahn und Andere ./. Deutschland (Anm. 225), Rz. 82. 237 Urteil Ayder und Andere ./. Türkei (Anm. 45), Rz. 119; Urteil Altun ./. Türkei vom 1. Juni 2004, Rz. 62 f.; Urteil Hasan Ilhan ./. Türkei vom 9. November 2004, Rz. 112. 238 Urteil Broniowski ./. Polen (Anm. 224), 73. 239 Urteil Jahn und Andere ./. Deutschland (Anm. 225), Rz. 60 ff.; näher zu dem Urteil siehe Hans-Joachim Cremer, Eigentumsschutz der Erben von Bodenreformland in der ehemaligen DDR, Europäische Grundrechte-Zeitschrift (EuGRZ), Bd. 31, 2004, 134–142. 240 Urteil Jahn und Andere ./. Deutschland (Anm. 225), Rz. 91; die Bundesregierung hat gegen das Urteil Rechtsmittel zur großen Kammer eingelegt. 241 St. Rspr.; Entscheidung Slavic University in Bulgaria und Andere ./. Bulgarien vom 18. November 2004, 7. 236

794

Till Müller

nen, die unter der Hoheitsgewalt eines Staates stehen, das Recht ein, bestehende Ausbildungsmöglichkeiten wahrzunehmen; der Umfang und die Art dieser Ausbildungsmöglichkeiten fällt nicht unter Artikel 2 des 1. Zusatzprotokolls.242 Das Hauptaugenmerk des Schutzes der Bildung liegt in der Gewährleistung einer Grundbildung.243 3. Das Recht auf freie Wahlen, Artikel 3 des 1. Zusatzprotokolls Artikel 3 des 1. Zusatzprotokolls enthält die Verpflichtung der Vertragsstaaten, regelmäßig freie Wahlen der Legislative abzuhalten. Aus dieser Verpflichtung leitet der Gerichtshof das individuelle Recht ab, wählen und sich zur Wahl stellen zu dürfen.244 Diese Rechte sind zwar von fundamentaler Wichtigkeit für eine demokratische Gesellschaft, jedoch keinesfalls als absolut anzusehen. Die Mitgliedstaaten haben einen weiten Ermessensspielraum, in dem sie das Recht zu wählen oder sich zur Wahl zu stellen an besondere Vorraussetzungen knüpfen können.245 Es bleibt jedoch dem Gerichtshof überlassen zu beurteilen, ob solche Beschränkungen nicht das Recht auf freie Wahlen in seiner Substanz angreifen, ob sie ein legitimes Ziel verfolgen und ob das Prinzip der Verhältnismäßigkeit gewahrt wurde.246 Ein automatischer Entzug des Wahlrechts bei Verurteilung zu einer Freiheitsstrafe, ohne die spezifischen Umstände des Falles, wie z. B. Natur und Schwere der Tat oder Länge der Freiheitsstrafe, in Betracht zu ziehen, verstößt gegen Artikel 3 des 1. Zusatzprotokolls.247 In dem Fall Aziz ./. Zypern sah der Gerichtshof eine Verletzung von Artikel 3 des 1. Zusatzprotokolls darin, dass der Antragsteller als Zypriot türkischer Abstammung in Süd-Zypern nicht an den Wahlen teilnehmen konnte.248 Der Gerichtshof stand im Berichtszeitraum zum ersten Mal vor der Frage, ob die Anforderung, seinen Wohnsitz über eine gewisse Zeit in dem fraglichen 242 243 244 245 246 247 248

Id. Id. St. Rspr.; Urteil Aziz ./. Zypern vom 22. Juni 2004, Rz. 25. St. Rspr.; Urteil Santoto ./. Italien vom 1. Juli 2004, Rz. 54. St. Rspr.; Urteil Melniychenko ./. Ukraine vom 19. Oktober 2004, Rz. 54. Urteil Hirst ./. Vereinigtes Königreich vom 30. März 2004, Rz. 48 ff. Urteil Aziz ./. Zypern (Anm. 244), Rz. 29 ff.

Die Rechtsprechung des EGMR im Jahre 2004

795

Staat nachzuweisen, um sich zur Wahl stellen zu können, konventionsgemäß ist.249 Die Grundsätze, die für das aktive Wahlrecht vorhanden sind, konnten hier nicht angewendet werden, da das passive Wahlrecht stärkeren Beschränkungen unterworfen werden kann.250 Eine Pflicht, wie in diesem Fall, mindestens fünf Jahre in dem Staat gelebt zu haben, um sich den Parlamentswahlen zu stellen, kann so durchaus zulässig sein.251 Im konkreten Fall hatte der Antragsteller seinen Wohnsitz rechtlich noch in dem Wahlbezirk, war aber vor politischer Verfolgung in die USA geflohen. Ihn aufgrund dieser faktischen Abwesenheit vom Wohnsitz nicht zur Wahl zuzulassen, verstößt gegen Sinn und Zweck von Artikel 3 des 1. Zusatzprotokolls.252 4. Das Recht wegen derselben Strafsache nicht zweimal vor Gericht gestellt oder bestraft zu werden, Artikel 4 des 7. Zusatzprotokolls Artikel 4 des 7. Zusatzprotokolls schützt den ne bis in idem-Grundsatz, nach dem niemand für dieselbe Handlung zweimal bestraft oder vor Gericht gestellt werden darf. Das Ziel dieses Grundsatzes ist, ein doppeltes Verfahren zu verhindern. Demnach ist er nur verletzt, wenn ein bereits abgeschlossenes Verfahren ein zweites Mal unabhängig von dem ersten entschieden wird und zwei unabhängige Urteile bestehen.253 Eine Wiederaufnahme eines bereits abgeschlossenen Verfahrens, die zur Aufhebung des alten Urteils führt, stellt demnach keine Verletzung von Artikel 4 des 7. Zusatzprotokolls dar.254 Sie kann allerdings zu einer Verletzung von Artikel 6 Abs. 1 führen.255 VIII. Das Recht auf wirksame Beschwerde, Artikel 13

Durch Artikel 13 sind die Mitgliedstaaten verpflichtet, auf nationaler Ebene effektive Rechtswege zur Durchsetzung der Konventionsrechte zu schaffen; 249 250 251 252 253 254 255

Urteil Melniychenko ./. Ukraine (Anm. 246), Rz. 56. Id., Rz. 57. Id., Rz. 57. Id., Rz. 61 ff. St. Rspr.; Urteil Nikitin ./. Russland vom 20. Juli 2004, Rz. 35. Id., Rz. 45 ff. Siehe, supra, Punkt C. IV. 2. b).

796

Till Müller

hierbei liegt die genaue Umsetzung dieser Pflicht im Ermessen der Staaten.256 Die zur Verfügung gestellten Verfahren müssen geeignet sein, den Inhalt der zumindest möglichen Konventionsverletzung zu überprüfen und im Falle einer Verletzung entsprechende Maßnahmen zu treffen, außerdem müssen sie rechtlich und praktisch effektiv sein.257 Der Umfang des nötigen Rechtsschutzes hängt allerdings von der Natur des gerügten Rechtes ab.258 In Fällen besonders schwerer Konventionsverletzungen, wie z. B. bei Verstößen gegen Artikel 2 oder Artikel 3, beinhaltet das Recht auf wirksame Beschwerde auch ein Recht auf eine gründliche Untersuchung des Falles.259 Artikel 13 ist auch auf Beschwerden wegen überlanger Verfahrensdauer anwendbar; in diesen Fällen muss eine Möglichkeit bestehen, das betreffende Verfahren zu beschleunigen und Schadensersatz wegen überlanger Verfahrensdauer zu erhalten.260 Der Gerichtshof stellte während des Berichtszeitraums in einer Vielzahl von Verfahren gegen die Türkei, welche Vorkommnisse in den 1990er Jahren im Süd-Osten des Landes betrafen, fest, dass keine ausreichenden Untersuchungen in gerügte Konventionsverletzungen vorgenommen worden waren und daher Artikel 13 verletzt war.261 IX. Das Diskriminierungsverbot, Artikel 14

In Artikel 14 verankert die EMRK das allgemeine Diskriminierungsverbot. Hiernach müssen die Staaten alle Konventionsrechte unabhängig von Umständen wie z. B. Rasse, Religion, Geschlecht oder politischer Anschauung garantieren. Da Artikel 14 nur die Diskriminierung in der Anwendung anderer Konventionsrechte verbietet, kann eine Verletzung des Diskriminierungsverbotes nur im Zusammenhang mit einem anderen Recht der Konvention 256

St. Rspr.; Urteil Djangozov ./. Bulgarien vom 8. Juli 2004, Rz. 47. St. Rspr.; Urteil Supreme Holy Council of the Muslim Community ./. Bulgarien (Anm. 170), Rz. 103. 258 St. Rspr.; Urteil Öneryildiz ./. Türkei (Anm. 26), Rz. 147. 259 St. Rspr.; Urteil Balogh ./. Ungarn (Anm. 44), Rz. 62. 260 St. Rspr.; Urteil Merit ./. Ukraine (Anm. 120), Rz. 78. 261 U. a. Urteil Ipek ./. Türkei vom 17. Februar 2004, Rz. 208 f.; Urteil Altun ./. Türkei (Anm. 237), Rz. 75 f.; Urteil Hasan Ilhan ./. Türkei (Anm. 237), Rz. 126 f. 257

Die Rechtsprechung des EGMR im Jahre 2004

797

geltend gemacht werden.262 Allerdings muss keine Verletzung eines Konventionsrechtes festgestellt worden sein, es reicht aus, wenn das gerügte Verhalten in den Anwendungsbereich eines Rechtes fällt.263 Stellt der Gerichtshof eine eigenständige Verletzung des zugrundeliegenden Konventionsrechtes fest, so untersucht er eine zusätzliche Verletzung von Artikel 14 nur, wenn die Diskriminierung den Kern der festgestellten Verletzung darstellt.264 Nicht jede Ungleichbehandlung bei der Gewährung von Konventionsrechten ist als Diskriminierung einzuordnen; den Mitgliedstaaten wird ein gewisser Ermessensspielraum eingeräumt.265 Vielmehr schützt Artikel 14 vor der ungerechtfertigten Ungleichbehandlung vergleichbarer Sachverhalte266 und der ungerechtfertigten Gleichbehandlung unvergleichbarer Sachverhalte.267 Eine Ungleichbehandlung kann nur gerechtfertigt sein, wenn sie ein legitimes Ziel verfolgt und die fragliche Maßnahme in einem angemessenem Verhältnis zu diesem Ziel steht.268 Als diskriminierend hat der Gerichtshof eine gesetzliche Regelung im Vereinigten Königreich angesehen, die sexuellen Kontakt zwischen Männern unter 18 Jahren verbot, gleichzeitig aber sexuellen Kontakt zwischen Männern und Frauen schon ab 16 Jahren erlaubte.269 Das wohl umfangreichste und wichtigste Urteil zu einer Verletzung von Artikel 14 wurde in dem Fall Nachova und Andere ./. Bulgarien gesprochen.270 Der Fall betraf die Tötung von Verwandten der Beschwerdeführer, Mitglieder der Minderheit der Roma, durch staatliche Sicherheitskräfte und die mangelnde Untersuchung der Vorkommnisse.271 Der Gerichtshof stellte hier fest, dass auch die Pflicht unter Artikel 2, eine effektive Untersuchung durchzuführen, ohne jegliche Diskriminierung zu erfolgen hat.272 Von besonderer Wichtigkeit ist 262 263 264 265 266 267 268 269 270 271 272

St. Rspr.; Urteil Haas ./. Niederlande (Anm. 169), Rz. 41. St. Rspr.; Urteil Pla und Puncernau ./. Andorra (Anm. 161), Rz. 54. St. Rspr.; Urteil Aziz ./. Zypern (Anm. 244), Rz. 35. St. Rspr.; Urteil Bocancea und Andere ./. Moldawien vom 6. Juli 2004, Rz. 24. St. Rspr.; Urteil Ünal Tekeli ./. Türkei (Anm. 153), Rz. 49 f. St. Rspr.; Urteil Nachova und Andere ./. Bulgarien (Anm. 35), Rz. 158. St. Rspr.; Urteil Aziz ./. Zypern (Anm. 244), Rz. 34. Urteil B.B. ./. Vereinigtes Königreich (Anm. 157), Rz. 20 ff. Urteil Nachova und Andere ./. Bulgarien (Anm. 35), Rz. 147 ff. Id., Rz. 6 ff. Id., Rz. 157.

798

Till Müller

diese Pflicht, wenn Verdachtsmomente bestehen, dass Sicherheitskräfte des Staates aus rassistischen Motiven tödliche Gewalt angewendet haben.273 Rassistische Taten unterscheiden sich in ihrer Wirkung auf die öffentliche Ordnung entscheidend von normalen Gewaltdelikten. Daher müssen alle Spuren, die auf einen rassistischen Hintergrund einer Tat deuten, besonders intensiv verfolgt werden.274 Im Ergebnis stellte der Gerichtshof eine Verletzung von Artikel 14 in Verbindung mit Artikel 2 fest, wobei er ausdrücklich auf die Häufung von rassistisch motivierten Taten gegen die Roma in Bulgarien hinwies.275 X. Die wirksame Ausübung von Rechten, Artikel 34 Satz 2

Artikel 34 Satz 2 verpflichtet die Mitgliedstaaten das Recht auf Individualbeschwerde in keiner Weise zu behindern. Obwohl dies nur eine prozessuale Verpflichtung darstellt, ergibt sich aus der Natur der Verpflichtung, dass ihre Verletzung im Rahmen der Individualbeschwerde geltend gemacht werden kann.276 Hierbei ist es von höchster Bedeutung, dass die Kommunikation mit dem Gerichtshof in keiner Weise behindert oder beeinflusst wird.277 Daneben darf weder direkter noch indirekter Druck ausgeübt werden, um eine Beschwerde vor dem Gerichtshof zu verhindern oder zu behindern.278 Im Berichtszeitraum stellte der Gerichtshof in zwei Beschwerden von russischen Gefängnisinsassen eine Verletzung von Artikel 34 Satz 2 durch die russischen Behörden fest, da sie den Briefverkehr mit dem Gerichtshof behindert hatten.279 In einer weiteren Entscheidung stellte der Gerichtshof eine Verletzung durch Russland und Moldawien fest, wobei gerade die Verletzung durch Russland von besonderer Schwere war.280

273

Id., Rz. 158. Id., Rz. 160. 275 Id., Rz. 175. 276 St. Rspr.; Urteil Poleshchuk ./. Russland vom 7. Oktober 2004, Rz. 27. 277 St. Rspr.; id., Rz. 31. 278 St. Rspr.; Urteil Klyakhin ./. Russland (Anm. 90), Rz. 119. 279 Urteil Poleshchuk ./. Russland (Anm. 276); Urteil Klyakhin ./. Russland (Anm. 90), Rz. 119. 280 Urteil Ilascu und Andere ./. Moldawien und Russland (Anm. 11), Rz. 481 f. 274

Die Rechtsprechung des EGMR im Jahre 2004

799

D. Gerechte Entschädigung Hat der Gerichtshof eine Verletzung eines Konventionsrechtes festgestellt, ergibt sich aus Artikel 46 und Artikel 41, dass der betreffende Mitgliedstaat die Verletzung einzustellen und den Zustand vor der Verletzung so weit wie möglich wieder herzustellen hat.281 Nur wenn die nationale Rechtsordnung keine ausreichende Entschädigung ermöglicht, kann der Gerichtshof im Rahmen seines Ermessens dem Opfer einer Verletzung eine gerechte Entschädigung zusprechen.282 Bei der Berechnung der gerechten Entschädigung betrachtet der Gerichtshof zum einen die Vermögensschäden, die als direkte Folge der Konventionsverletzung entstanden sind, zum anderen NichtVermögensschäden, also psychische oder physische Schäden, die der Beschwerdeführer als Folge der Konventionsverletzung erlitten hat.283 Werden Vermögensschäden geltend gemacht, so muss der Antragsteller einen direkten Zusammenhang mit der Konventionsverletzung darstellen.284 Die Höhe des Vermögensschaden darf nicht auf rein spekulativen Zahlen beruhen.285 Eine Entschädigung für Nicht-Vermögensschäden gewährt der Gerichtshof in der Regel nur in Fällen schwerwiegender Konventionsverletzungen, die dem Opfer große Leiden zugefügt haben.286 In Fällen geringerer Verletzungen reicht die Feststellung einer Konventionsverletzung als gerechte Entschädigung aus.287 Nach ständiger Rechtssprechung können auch juristische Personen NichtVermögensschäden geltend machen. 288 Für die Berechnung von NichtVermögensschäden aufgrund überlanger Verfahrenslängen hat der Gerichtshof eine Summe von 1.000 bis 1.500 Euro pro Jahr Verhandlungsdauer zugrundegelegt. Diese Summe wird dann anhand der Wichtigkeit des Verfahrens, der Anzahl der Instanzen, dem Lebensstandard in dem betreffenden Staat, eventuel-

281

St. Rspr.; Urteil Qufaj Co. Sh. P-K. ./. Albanien vom 18. November 2004, Rz. 54. St. Rspr.; Urteil Zullo ./. Italien vom 10. November 2004, Rz. 25. 283 Id. 284 St. Rspr.; Urteil Haase ./. Deutschland (Anm. 21), Rz. 116. 285 Urteil Plon (Société) ./. Frankreich (Anm. 180), Rz. 61. 286 Urteil Ilascu und Andere ./. Moldawien und Russland (Anm. 11), Rz. 489; Urteil Balogh ./. Ungarn (Anm. 44), Rz. 85. 287 Urteil Hilda Hafsteinsdottir ./. Island (Anm. 76), Rz. 60. 288 St. Rspr.; Urteil Qufaj Co. Sh. P-K. ./. Albanien (Anm. 281), Rz. 63. 282

800

Till Müller

len begünstigenden nationalen Urteilen und dem Verhalten des Antragstellers modifiziert.289 Neben der Pflicht, die Opfer einer Konventionsverletzung zu entschädigen, trifft die Mitgliedstaaten auch die Pflicht, Maßnahmen nach nationalem Recht zu ergreifen, um die Verletzung zu beenden.290 In dem Urteil Assanidze ./. Georgien hat der Gerichtshof dem betreffenden Staat zum ersten Mal ausdrücklich vorgeschrieben, welche Maßnahmen er zu ergreifen hat, um die Konventionsverletzung abzustellen.291 In dem Urteil Broniowski ./. Polen hat der Gerichtshof erstmalig, wie von dem Ministerrat in einer Resolution angeregt,292 ein so genanntes Piloturteil zu einem strukturellen Problem gefällt.293 In diesem hat er die der Verletzung zugrunde liegende Struktur der polnischen Gesetzgebung und behördlichen Praxis klar herausgestellt und Wege dargestellt, wie dieses Problem angegangen werden könnte.294 E. Rechtsgutachten nach Artikel 47 Im Berichtszeitraum hat das Ministerkomitee das erste Mal von seinem Recht aus Artikel 47 Abs. 1 Gebrauch gemacht, den Gerichtshof um ein Gutachten über eine Rechtsfrage zu ersuchen.295 Das Ministerkomitee folgte einer Empfehlung der Parlamentarischen Versammlung des Europarates,296 eine Gutachtenanfrage zu der Co-Existenz der Convention on Human Rights and Fundamtental 289

Urteil Zullo ./. Italien (Anm. 282), Rz. 26 ff. St. Rspr.; Urteil Haase ./. Deutschland (Anm. 21), Rz. 115. 291 Urteil Assanidze ./. Georgien (Anm. 66), Rz. 203; näher zu diesem Urteil Marten Breuer, Zur Anordnung konkreter Abhilfemaßnahmen durch den EGMR – Der Gerichtshof betritt neue Wege im Fall Assanidze gegen Georgien, EuGRZ, Bd. 31, 2004, 257–263. 292 Resolution Res(2004)3 vom 12. Mai 2004, abrufbar unter: http://www.coe.int//T/ CM/WCD/advSearch_en.asp. 293 Urteil Broniowski ./. Polen (Anm. 224), Rz. 189 ff.; näher zu dieser Entscheidung Marten Breuer, Urteilsfolgen bei strukturellen Problemen – Das erste „Piloturteil“ des EGMR, EuGRZ, Bd. 31, 2004, 445–451. 294 Urteil Broniowski ./. Polen (Anm. 224), Rz. 189 ff. 295 Pressemitteilung 277 vom 2. Juni 2004. 296 Recommendation 1519 (2001), abrufbar unter: http://assembly.coe.int/Main.asp? link=http://assembly.coe.int/Documents/AdoptedText/ta01/EREC1519.htm. 290

Die Rechtsprechung des EGMR im Jahre 2004

801

Freedoms of the Commonwealth of Independent States und der EMRK zu stellen. Der Gerichtshof lehnte den Antrag allerdings nach Artikel 47 Abs. 2 mit der Begründung ab, die Gutachtenanfrage betreffe eine Frage, die auch unter einem normalen Verfahren nach der Konvention auftauchen könne und somit außerhalb seiner Gutachtenkompetenz liege.297 F. Ausblick Es sind im Jahr 2005 mehrere Entscheidungen von rechtlicher und politischer Bedeutung zu erwarten. In dem Verfahren Mamatkulov und Askarov ./. Türkei steht eine Entscheidung der großen Kammer über die Bindungswirkung von einstweiligen Anordnungen des Gerichtshofes an. In dem Verfahren Öcalan ./. Türkei steht immer noch die Entscheidung durch die große Kammer des Gerichtshofes aus. Weiterhin sind Entscheidungen der großen Kammer in den bereits erwähnten Fällen Jahn ./. Deutschland und Leyla Sahin ./. Türkei zu erwarten. Nachdem am 17. Dezember 2004 sowohl Armenien als auch Finnland das 12. Zusatzprotokoll ratifiziert haben, liegen nunmehr die erforderlichen zehn Ratifikationen vor und das Protokoll wird am 1. April 2005 in Kraft treten.298 Damit tritt ein umfassendes Diskriminierungsverbot in Kraft. Dieses ist, anders als noch Artikel 14, nicht akzessorisch zu den substantiellen Konventionsrechten. Vielmehr verbietet es jede Diskriminierung durch staatliche Stellen, auch wenn diese nicht in den Anwendungsbereich eines anderen Konventionsrechtes fällt. Diese Erweiterung des Verbotes von staatlicher Diskriminierung lässt eine Flut von neuen Beschwerden erwarten.

297

Pressemitteilung 277 (Anm. 295). Vgl. Übersicht, abrufbar unter: http://conventions.coe.int/Treaty/Commun/Que VoulezVous.asp?NT=177&CM=8&CL=ENG. 298

Die Rechtsprechung des Internationalen Strafgerichtshofes für das ehemalige Jugoslawien im Jahre 2004 Von Heiko Leitsch

A. Einleitung Im Berichtszeitraum1 ergingen insgesamt fünf Urteile der Strafkammer des Internationalen Strafgerichtshofes für das ehemalige Jugoslawien,2 hiervon vier Strafzumessungsurteile sowie vier Urteile in der Berufungsinstanz. Aufmerksamkeit erhielt insbesondere das Verfahren gegen Slobodan Miloševi . Zum einen begann Mitte Juli die Verteidigung ihre Argumente vorzubringen, zum anderen stellte das Gericht Slobodan Miloševi aufgrund dessen instabilen Gesundheitszustandes gegen dessen Willen einen Pflichtverteidiger zur Seite. Im Rahmen der completion strategy hielt das Tribunal an dem Ziel fest, in diesem Jahr seine Ermittlungen einzustellen. Um jegliche Arbeit der Strafkammer bis Ende 2008 beenden zu können, kam es zu weiteren Änderungen der Verfahrens- und Beweisregeln. So wurde etwa die Verweisung eines Verfah-

1 Dieser Bericht schließt an an die Berichte von Sara Jötten/Julia Schütze, Die Rechtsprechung des Internationalen Strafgerichtshofes für das ehemalige Jugoslawien im Jahre 2003, German Yearbook of International Law (GYIL), vol. 46, 2003, 635–674; Björn Elberling, Die Rechtsprechung des Internationalen Strafgerichtshofes für das ehemalige Jugoslawien im Jahre 2002, GYIL, vol. 45, 2002, 483–525; Reza Fakhreshafaei, Die Rechtsprechung des Internationalen Strafgerichtshofes für das ehemalige Jugoslawien im Jahre 2001, GYIL, vol. 44, 2001, 661–678. Vgl. auch den Jahresbericht des Gerichts über seine Tätigkeit vom 1. August 2003 bis zum 31. Juli 2004, UN Doc. A/59/215–S/2004/627 vom 16. August 2004. Die im Folgenden zitierten Dokumente sind über die Internetseite des Gerichtshofes unter http://www.un.org/icty/ abrufbar. 2 Im Folgenden: Tribunal oder Gericht.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

803

rens an ein nationales Gericht erleichtert und sichergestellt, dass neue Anklagen ausschließlich gegen die Hauptverantwortlichen erhoben werden.3 B. Änderungen der Beweisregeln und der Verfahrensordnung sowie der Zusammensetzung des Tribunals I. Änderung der Beweisregeln und der Verfahrensordnung

In drei Plenarsitzungen beschloss das Gericht Änderungen seiner Verfahrensordnung und Beweisregeln.4 Diese Änderungen wurden einerseits zur Erleichterung der Verwirklichung der completion strategy sowie andererseits zur Umsetzung der Sicherheitsratsresolutionen 15035 und 15346 vorgenommen. In einer außerordentlichen Plenarsitzung am 14. April 2004 ergänzten die Richterinnen und Richter die Regel 28 A: Danach ordnet der Gerichtspräsident einen Fall nur noch dann einem Richter einer Kammer der Strafkammer zu, wenn das Sekretariat zu dem Ergebnis kommt, dass die Anklage sich gegen einen oder mehrere der Hauptverantwortlichen für Verbrechen innerhalb der Zuständigkeit des Tribunals richtet.7 Eine weitere Entlastung des Gerichts wurde durch die Erweiterung der Regel 11bis am 10. Juni 2004 angestrebt: Für die Verweisung an ein nationales Gericht ist nunmehr ausreichend, dass dieses gewillt und fähig ist, das Verfahren zu übernehmen. Außerdem müssen ein faires Verfahren gewährleistet und die Todesstrafe ausgeschlossen sein.8 Daraufhin kam es am 7. September zu der Gründung einer Gerichtskammer, die dafür zuständig ist zu überprüfen, ob ein Verfahren gemäß Regel 11bis an ein nationales Gericht verwiesen werden kann.9 Zu einer Fülle von Änderungen der Beweisregeln kam es am 5. August 2004. Zum einen wurden ausführlichere Anforderungen aufgestellt, die der Anwalt 3

Jahresbericht (Anm. 1), Rz. 4 f. Eine aktuelle Version der Rules of Procedure and Evidence ist abrufbar unter: http://www.un.org/icty/legaldoc/index.htm. 5 SR-Res. 1503 vom 28. August 2003. 6 SR-Res. 1534 vom 26. März 2004. 7 IT/226, Amendment to the Rules of Procedure and Evidence, 14. April 2004. 8 IT/229, Amendment to the Rules of Procedure and Evidence, 10. Juni 2004. 9 Press Release 891 vom 7. September 2004. 4

804

Heiko Leitsch

eines Verdächtigen oder Beschuldigten erfüllen muss, um diesen vor dem Tribunal vertreten zu dürfen. Zum anderen wurden die Sanktionsmaßnahmen gegen einen Anwalt bei Fehlverhalten geändert, so dass in einem solchen Falle diesem nunmehr auch die Berechtigung zur Verteidigung vor dem Gericht entzogen werden kann. Ferner wird der Kanzler ermächtigt, dem Angeklagten im Interesse eines fairen Verfahrens einen Pflichtverteidiger zur Seite zu stellen, der diesen beim ersten Erscheinen vor dem Gericht vertritt.10 II. Personelles

Sir Richard May, der seit November 1998 Vorsitzender der 3. Kammer gewesen war und unter anderem auch das Verfahren gegen Slobodan Miloševi geleitet hatte, schied am 31. Mai 2004 aus gesundheitlichen Gründen aus seinem Amt aus.11 Er verstarb am 1. Juli 2004.12 Lord Boomy Sworn aus dem Vereinigten Königreich trat am 1. Juni 2004 seine Nachfolge an.13 Am 21. September 2004 wurden zwei weitere ad litem-Richter eingeschworen: Hans Henrik Brydensholt aus Dänemark und Albin Eser aus Deutschland.14 Zudem kam es am 22. November 2004 zur Wahl der ständigen Richter für den Zeitraum von vier Jahren beginnend am 17. November 2005 gemäß den Artikeln 13 und 13bis des Statuts. Gewählt wurden Carmel A. Agius (Malta), JeanClaude Antonetti (Frankreich), Iain Bonomy (Großbritannien), O-gon Kwon (Korea), Liu Daqun (China), Theodor Meron (USA), Bakone Melema Moloto (Südafrika), Alphonsus Martinus Maria Orie (Niederlande), Kevin Horace Parker (Australien), Fausto Pocar (Italien), Patrick Lipton Robinson (Jamaika), Wolfgang Schomburg (Deutschland), Mohamed Shahabuddeen (Guyana) und Christine Van Den Wyngaert (Belgien).15

10 11 12 13 14 15

IT/231, Amendment to the Rules of Procedure and Evidence, 5. August 2004. Press Release 824 vom 22. Februar 2004. Press Release 865 vom 1. Juli 2004. Press Release 856 vom 7. Juni 2004. Press Release 896 vom 21. September 2004. Press Release 813 vom 22. November 2004.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

805

C. Verfahren vor dem Tribunal I. Vorverfahren

1. Die Erhebung neuer Anklagen a) Verfahren gegen Ivan ermak und Mladen Marka Am 8. März 2004 wurde Anklage gegen Ivan ermak und Mladen Marka erhoben.16 Ihnen wird vorgeworfen, als Kommandant der Knin-Garnison beziehungsweise der Spezialkräfte des Innenministeriums Kroatiens für Verbrechen gegen die serbische Bevölkerung in der Region Krajina im Zeitraum vom 4. August bis zum 15. November 1995 verantwortlich zu sein. Die vorgeworfenen Verbrechen stehen mit der Offensive „Operation Storm“ in Zusammenhang, mit der von kroatischer Seite aus das Ziel verfolgt wurde, die Region Krajina zurückzuerobern. Die Anklage umfaßt Verbrechen gegen die Menschlichkeit in vier sowie Kriegsverbrechen in zwei Fällen. b) Verfahren gegen Rahim Ademi und Mirko Norac Am 20. Mai 2004 wurde die Anklage gegen Mirko Norac bestätigt.17 Am 2. August 2004 stimmte das Gericht der Zusammenlegung der Anklagen gegen Mirko Norac und Rahim Ademi zu.18 Ihnen wird vorgeworfen, für Verbrechen gegen die Menschlichkeit sowie Kriegsverbrechen in zwei Fällen in der Region Medak Pocket im Zeitraum vom 9. bis zum 17. September 1993 verantwortlich zu sein.19 Ferner wurden Rahim Ademi und Mirko Norac auf der Basis ihrer strafrechtlichen Verantwortlichkeit als Vorgesetzte angeklagt wegen Verbrechen gegen die Menschlichkeit in zwei Fällen sowie Kriegsverbrechen in drei Fällen.20 Mirko Norac soll zu diesem Zeitpunkt Kommandant der 9. Wachbri16 The Prosecutor v. Ivan ermak and Mladen Marka , IT-03-73-I, Indictment, 8. März 2004. 17 Press Release 851 vom 25. Mai 2004. 18 The Prosecutor v. Rahim Ademi, IT-01-56-PT, The Prosecutor v. Mirko Norac, IT04-46-I, Decision on Motion of Accused for Joinder, 3. August 2004. 19 The Prosecutor v. Rahim Ademi and Mirko Norac, IT-04-78, Indictment, 27. Mai 2004, Rz. 12 ff. 20 Case Information Sheet, Rahim Ademi and Mirko Norac Case, 22. August 2004.

806

Heiko Leitsch

gade Kroatiens und während der militärischen Operation Kommandant der Kampfgruppe „Sektion 1“ gewesen sein, welche die Operation geleitet haben soll.21 Rahim Ademi war während der gesamten Operation Kommandant des Militärdistrikts Gospic.22 Am 2. September 2004 stellte die Anklage zum ersten Mal seit der Änderung der Regel 11bis den Antrag, das Verfahren an das Amtsgericht Zagreb, Kroatien zu überweisen.23 c) Verfahren gegen Prli et al. Am 4. März 2004 wurde Anklage gegen Jadranko Prli , Milivoj Petkovi , Bruno Stoji , Slobodan Praljak, Valentin ori und Berislav Puši erhoben.24 Jadranko Prli war seit Ende 1993 Präsident der „Kroatischen Republik von Herceg-Bosna“. Die übrigen Angeklagten hatten führende Positionen in der „Republik“ inne, insbesondere bei den Herceg-Bosna/HVO-Streitkräften sowie der dortigen Militärpolizei. Die Angeklagten werden beschuldigt, als Mitglieder einer kriminellen Vereinigung an ethnischen Säuberungen in verschiedenen Gemeinden von Bosnien-Herzegowina beteiligt gewesen zu sein. Sie sollen in neun Fällen schwere Verletzungen der Genfer Konventionen, in acht Fällen Verbrechen gegen die Menschlichkeit und in neun Fällen Kriegsverbrechen begangen haben. Die Angeklagten wurden am 9. September 2004 vorläufig freigelassen.25 Dieser Entscheidung ging insbesondere die Frage voraus, ob auch die Berufungskammer die Aussetzung des Vollzugs einer Freilassung anordnen darf. Die Entscheidung der vorläufigen Freilassung erging bereits am 30. Juli 2004.26 Daraufhin legte die Anklage Berufung gegen diese Entscheidung ein.27 Zudem stellte sie sowohl bei der Strafkammer als auch bei der Berufungskammer den 21

Id., Rz. 9 f. Id., Rz. 4. 23 The Prosecutor v. Rahim Ademi and Mirko Norac, IT-04-78-PT, Request by the Prosecutor under Rule 11bis, 2. September 2004. 24 The Prosecutor v. Jadranko Prli et al., IT-04-74, Indictment, 4. März 2004. 25 Press Release 892 vom 9. September 2004. 26 The Prosecutor v. Jadranko Prli et al., IT-04-74-PT, Orders on Provisional Release, 30. Juli 2004. 27 The Prosecutor v. Jadranko Prli et al., IT-04-74-PT, Prosecutor’s Application for Leave to File an Interlocutory Appeal in Respect of the Orders on Provisional Release Concerning the Accused Prli et al., 5. August 2004. 22

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

807

Antrag, den Vollzug der Freilassung auszusetzen. Die Strafkammer wies diesen Antrag jedoch am 9. August 2004 zurück.28 Daraufhin ordnete die Berufungskammer entgegen der Entscheidung der Strafkammer die Aussetzung der Freilassung an.29 In ihrer späteren Entscheidung über die Rechtmäßigkeit der vorläufigen Freilassung, die die Berufungskammer im Ergebnis bejahte, bestätigte sie, dass sie die Kompetenz habe, den Vollzug der Entscheidung der Strafkammer auszusetzen.30 Aus Regel 107 in Verbindung mit den Regeln 54, 64 und 65 ergebe sich, dass überall dort, wo die Strafkammer befugt sei, Anordnungen oder Entscheidungen zu treffen, auch die Berufungskammer dazu befugt sei. Auch die Behauptung der Angeklagten, durch eine solche Entscheidung sei ihr Recht auf Berufung verletzt worden, greife nicht durch, da ein solches Recht in einem solchen Falle nicht bestehe.31 d) Weitere Anklagen Des Weiteren wurde am 8. März 2004 die geänderte Anklage gegen Ante Gotovina vom 24. Februar 2004 bekannt gegeben.32 Ferner wurde am 12. Oktober 2004 die Anklage gegen Miroslav Bralo vom 19. November 1995 veröffentlicht.33 2. Verfahren gegen Ljubisa Beara Gegen Ljubisa Beara wurde am 26. März 2002 Anklage erhoben.34 Während des Angriffs der bosnisch-serbischen Armee (VRS) auf die Enklave Srebrenica 28

The Prosecutor v. Jadranko Prli et al., IT-04-74-PT, Decision on Prosecution’s Motion for a Stay of Orders on Provisional Release, 9. August 2004. 29 The Prosecutor v. Jadranko Prli et al., IT-04-74-PT, Order on the Prosecution’s Motion for a Stay, 10. August 2004. 30 The Prosecutor v. Jadranko Prli et al., IT-04-74-PT, Decision on Motions for ReConsideration, Clarification, Request for Release and Applications for Leave to Appeal, 8. September 2004. 31 Id., Rz. 15–16. 32 The Prosecutor v. Ante Gotovina, IT-01-45, Order Lifting the Seal of the Amended Indictment, Decision on Leave to Amend Indictment and Order for Non-Disclosure, and Warrant of Arrest, 8. März 2004. 33 Press Release 900 vom 12. Oktober 2004. 34 The Prosecutor v. Ljubisa Beara, IT-02-58-I, Indictment, 26. März 2002.

808

Heiko Leitsch

war Ljubisa Beara Oberst und Sicherheitschef des Hauptstabes der VRS.35 Er soll daher als Mitglied einer kriminellen Vereinigung verantwortlich für die Verbrechen sein, die während und nach den Angriffen im Zeitraum von Juli 1995 bis Anfang November 1996 begangenen worden sind.36 Ihm werden Völkermord, Kriegsverbrechen sowie Verbrechen gegen die Menschlichkeit in vier Fällen vorgeworfen.37 Am 11. Oktober 2004 erschien Ljubisa Beara erstmals vor Gericht.38 Der Fall wurde der 3. Kammer des Gerichts zugewiesen.39 3. Verfahren gegen Fatimir Limaj, Haradin Bala und Isak Musliu Gemäß der zweiten geänderten Anklageschrift vom 12. Februar 2004 wird Fatimir Limaj und Isak Musliu zur Last gelegt, als Kommandanten der „Kosovo-Befreiungsarmee“ für die Verbrechen verantwortlich zu sein, die an den Gefangenen im Gefängnis von Lapusnik begangen wurden.40 1998 sollen Zivilisten aus verschiedenen Gemeinden im Kosovo unrechtmäßig in dem Gefängnis eingesperrt worden sein. Dort soll es zu Folterungen und zum Mord gekommen sein. Haradin Bala ist angeklagt, an diesen Verbrechen persönlich teilgenommen zu haben.41 Kurz bevor serbische Einheiten die Gegend zurückeroberten, sollen Haradin Bala und ein weiterer Wächter 21 Gefangene in die Berisha-Berge geführt haben. Nachdem sie sich dort mit Fatimir Limaj getroffen hatten, habe Haradin Bala die Gruppe geteilt und daraufhin zehn der verbliebenen Gefangenen erschossen.42 Limaj und Bala wird daher vorgeworfen, Kriegsverbrechen sowie Verbrechen gegen die Menschlichkeit in jeweils fünf Fällen begangenen zu haben. Isak Musliu werden Kriegsverbrechen sowie Verbrechen gegen die Menschlichkeit in jeweils vier Fällen vorgeworfen.

35

Id., Rz. 20. Id., Rz. 3, 17 f. 37 Id., Rz. 22 ff. 38 Press Release 900 vom 12. Oktober 2004. 39 The Prosecutor v. Ljubisa Beara, IT-02-58-I, Order for Detention on Remand, 11. Oktober 2004. 40 The Prosecutor v. Fatmir Limaj et al., IT-03-66-PT, Indictment, 12. Februar 2004. 41 Id., Rz. 5, 12. 42 Id., Rz. 34 ff. 36

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

809

Im Rahmen dieses Verfahrens wurde Bequ Beqaj am 21. Oktober 2004 wegen gezielter Störung und Missachtung des Gerichts, strafbar gemäß Beweisund Verfahrensregel 77, angeklagt.43 Im Zeitraum vom 17. Februar 2003 bis zum 19. Oktober 2004 soll er versucht haben, auf Zeugen und potentiellen Zeugen des Verfahrens Limaj et al. durch Drohung, versuchte Bestechung und auf andere Art und Weise Einfluss zu nehmen, damit diese ihre Aussage zurückziehen beziehungsweise nicht vor Gericht aussagen.44 4. Verfahren gegen Dragomir Miloševi Am 3. Dezember 2004 wurde Dragomir Miloševi dem Tribunal übergeben.45 Gemäß der Anklage vom 24. April 1998 war Dragomir Miloševi Kommandant des Sarajevo Romanija Corps. Er soll für die Terrorisierung und Tötung der in Sarajevo lebenden Bevölkerung im Zeitraum vom 10. August 1994 bis zum 21. November 1995 verantwortlich sein. Ihm werden daher Kriegsverbrechen in drei Fällen sowie Verbrechen gegen die Menschlichkeit in vier Fällen vorgeworfen.46 5. Weitere Verfahren im Vorverfahren Weiterhin befinden sich die Verfahren gegen Milan Marti , Ivica Raji , Mile Mrksi et al., Milutinovi et al., Pasko Ljubicic, Sefer Halilovic, Zeljko Mejakic, Jovica Stanisic und Franko Simatovic im Vorverfahrensstadium.47 Nach einem diesbezüglichen Antrag der Anklage steht die Entscheidung noch aus, ob der Fall Mitar Rasevi gemäß der Regel 11bis an ein nationales Gericht überwiesen werden soll.48 Auch in den Fällen Jankovi et al., Vladimir Kovacevi und

43

The Prosecutor v. Bequ Beqaj, IT-03-66-R77, Indictment, 21. Oktober 2004. Press Release 909 vom 4. November 2004. 45 Press Release 922 vom 3. Dezember 2004. 46 The Prosecutor v. Dragomir Miloševi , IT-98-29/1, Indictment, 24. April 1998, Rz. 6, 11 ff. 47 Vgl. http://www.un.org/icty/cases/factsheets/listindex-e.htm. 48 The Prosecutor v. Mitar Rasevic, IT-97-25/1-PT, Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should Be Referred to Another Court under Rule 11bis, 5. November 2004. 44

810

Heiko Leitsch

Mejaki et al.49 steht diese Entscheidung aus. Der Fall Vujadin Popovi wurde der 3. Kammer des Gerichts zugewiesen.50 II. Urteile und Verfahren der ersten Instanz

1. Verfahren a) Verfahren gegen Slobodan Miloševi Auch in diesem Jahr wurde das Verfahren gegen Slobodan Miloševi von dessen schlechtem Gesundheitszustand dominiert, so dass es wieder zur Verschiebung zahlreicher Prozesstage kam. Am 25. Februar 2004 wurde der Fall der Anklage geschlossen.51 Der Fall der Verteidigung sollte am 8. Juni 2004 beginnen, musste jedoch insgesamt fünf Mal verschoben werden.52 Daraufhin ordnete das Gericht eine Untersuchung an, um festzustellen, inwieweit der Angeklagte sich im Verfahren noch selbst verteidigen kann.53 Am 2. September 2004 erging dann die mündliche Anordnung, dem Angeklagten einen Verteidiger zur Seite zu stellen.54 Am 22. September 2004 begründete das Gericht seine Entscheidung. Der Begründung zufolge sei Ausgangspunkt der Entscheidung das Recht des Angeklagten auf ein faires Verfahren gewesen. Hierzu gehöre gemäß Artikel 21 (4) (d) des Statuts auch das Recht des Angeklagten, sich entweder selbst zu ver49 The Prosecutor v. Gojko Jankovi and Dragan Zelenovi , IT-96/23-2, Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should Be Referred to Another Court under Rule 11bis, 1. Dezember 2004; The Prosecutor v. Vladimir Kovacevi , IT-01-42/2, Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should Be Referred to Another Court under Rule 11bis, 2. November 2004; The Prosecutor v. Mejaki et al., IT-02-65, Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should Be Referred to Another Court under Rule 11bis, 4. Oktober 2004. 50 The Prosecutor v. Vujadin Popvi , IT-02-57-I, Order Assigning a Case to a Trial Chamber, 11. November 2004. 51 The Prosecutor v. Slobodan Miloševi , IT-02-54, Decision on Notification of the Completion of Prosecution Case and Motion for the Admission of Evidence in Written Form, 25. Februar 2004. 52 The Prosecutor v. Slobodan Miloševi , IT-02-54-T, Reason for Decision on Assignment of Defense Councel, 22. September 2004, Rz. 11. 53 Id., Rz. 16 ff. 54 Id., Rz. 1.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

811

treten oder sich durch selbst gewählte rechtliche Unterstützung vertreten zu lassen. Das Tribunal nahm daher eine Auslegung dieser Vorschrift anhand des Artikel 31 (1) der Wiener Vertragsrechtskonvention vor.55 Es stellte fest, dass das Recht, sich selbst zu verteidigen, für die Gewährleistung eines fairen Verfahrens von grundsätzlicher Bedeutung sei.56 Jedoch habe das Gericht auch sicherzustellen, dass der Angeklagte ein faires Verfahren erhält. Nötigenfalls habe das Gericht die Befugnis, zu diesem Zweck dem Angeklagten auch gegen seinen Willen einen Verteidiger zur Seite zu stellen. Artikel 24 (4) (d) des Statuts sei also dahingehend zu verstehen, dass ein Angeklagter das grundsätzlich bestehende Recht, sich selbst zu verteidigen, verlieren kann, wenn durch die Ausübung dieses Rechts das Ziel des Artikel 24 (4) (d) des Statuts, dem Angeklagten ein faires Verfahren zu gewährleisten, beeinträchtigt wird.57 Ferner stellte das Gericht fest, dass, falls man dem Angeklagten Slobodan Miloševi das Recht geben würde, sich weiterhin selbst zu verteidigen, eine große Gefahr für seine Gesundheit bestehe.58 Das Gericht betonte, dass es versucht hätte, dem Wunsch des Angeklagten weitest möglich nachzukommen, und dass er auch weiterhin die Möglichkeit habe, selbst vor Gericht aufzutreten.59 Jedoch werde das Verfahren auch dann fortgesetzt, wenn er sich weigern sollte, mit dem Verteidiger zusammenzuarbeiten.60 Die Strafkammer erließ außerdem eine Anordnung, in welcher Weise die Zusammenarbeit zwischen den Pflichtverteidigern und dem Angeklagten zu erfolgen habe.61 Auch die Berufung Miloševi s gegen die Entscheidung der Strafkammer blieb erfolglos. Die Berufungskammer bestätigte, dass unter den vorliegenden Umständen das Recht, sich vor Gericht selbst zu verteidigen, eingeschränkt werden durfte.62 Beachtenswert in diesem Zusammenhang ist jedoch die Feststellung der Berufungskammer, dass die Anordnung des Gerichts, welche die Zusam55

Id., Rz. 31 ff.; unter Verweis auf Vienna Convention on the Law of Treaties, 23. Mai 1969, UNTS, vol. 1155, 331. 56 Id., Rz. 32. 57 Id., Rz. 32–34. 58 Id., Rz. 63. 59 Id., Rz. 64, 68. 60 Id., Rz. 70. 61 The Prosecutor v. Slobodan Miloševi , IT-02-54-T, Order on the Modalities to Be Followed by Court Assigned Counsel, 3. September 2004. 62 The Prosecutor v. Slobodan Miloševi , IT-02-54-AR73.7, Decision on Interlocutary Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1. November 2004, Rz. 13.

812

Heiko Leitsch

menarbeit zwischen dem Angeklagten und seiner Pflichtverteidigung regelt, unzulässig gewesen sei.63 b) Verfahren gegen Mom ilo Krajišnik Nachdem Biljana Plavši sich am 2. Oktober 2002 der ihr zu Last gelegten Verbrechen gegen die Menschlichkeit schuldig bekannt hatte, entschied das Tribunal am 25. November 2002, ihr Verfahren vom Verfahren gegen Mom ilo Krajišnik zu trennen.64 Mom ilo Krajišnik plädierte weiterhin auf nicht schuldig.65 Das Verfahren gegen Mom ilo Krajišnik begann am 3. Februar 2004.66 Ihm werden Völkermord in zwei Fällen sowie Verbrechen gegen die Menschlichkeit in fünf Fällen vorgeworfen. Zudem soll er sich wegen Kriegsverbrechen strafbar gemacht haben.67 Mom ilo Krajišnik soll in der Zeit zwischen dem 1. Juli 1991 und dem 30. Dezember 1992 als Mitglied einer kriminellen Vereinigung, unter anderem mit Biljana Plavši , die Vernichtung der Muslime und Kroaten in der Region von Bosnien-Herzegowina geplant, vorbereitet und durchgeführt haben.68 c) Verfahren gegen Naser Ori Nach Erhebung der Anklage gegen Naser Ori am 28. März 2003 stellte die Anklage die zweite geänderte Anklageschrift am 1. Oktober 2004 fertig.69 Naser Ori wird vorgeworfen, für Verbrechen, die zwischen Juni 1992 und April 1993 insbesondere in den Gemeinden Srebrenica und Bratunac in BosnienHerzegowina begangen worden sind, verantwortlich zu sein. Ferner soll er für zahlreiche Verbrechen gegen muslimische Serben in der Gefängnisstation von Srebrenica verantwortlich sein. Naser Ori ist nunmehr angeklagt wegen Kriegs-

63

Id., Rz. 16 ff. Press Release 820 vom 30. Januar 2004. 65 Case Information Sheet, Mom ilo Krajišnik Case, 22. Juni 2004. 66 Press Release 820 vom 30. Januar 2004. 67 The Prosecutor v. Mom ilo Krajišnik, IT-00-39 & 40-PT, Amended Consolidated Indictment, 7. März 2002. 68 Id., Rz. 11 ff. 69 The Prosecutor v. Naser Ori , IT-03-68, Second Amended Consolidated Indictment, 1. Oktober 2004. 64

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

813

verbrechen in zwei Fällen sowie als Vorgesetzter wegen Kriegsverbrechen in vier Fällen.70 2. Urteile a) Urteil im Verfahren gegen Radoslav Brdjanin Die Anklage warf Radoslav Brdjanin in der sechsten geänderten Anklageschrift vom 9. Dezember 2003 vor, dass er als prominentes Mitglied der Serbisch Demokratischen Partei (SDS) eine führende Rolle bei der Machtübernahme in der Region Banja Luka durch die SDS gespielt habe.71 Ziel der SDS war die Gründung eines serbischen Staates in Bosnien-Herzegowina. Um dieses Ziel zu erreichen, soll die Führung der SDS unter Mitwirkung von Radoslav Brdjanin einen Strategieplan entworfen haben, mit dem Wissen, dass die Umsetzung dieses Planes nur gewaltsam möglich sein würde.72 Brdjanin wird insbesondere vorgeworfen, eine führende Rolle in der gegen die nicht-serbische Bevölkerung gerichteten Kampagne gespielt zu haben.73 Durch diese eskalierte im April 1992 die Situation in der bosnischen Region Krajina und bosnisch-serbische Einheiten ermordeten circa 200 muslimische Männer am Schauplatz Koricanske Stijene.74 Außerdem soll es zu der Errichtung von Bestrafungseinrichtungen gekommen sein, in denen weitere Verbrechen an der muslimischen Bevölkerung begangen wurden. Radoslav Brdjanin war daher angeklagt wegen Völkermordes in zwei Fällen, Verbrechen gegen die Menschlichkeit in fünf Fällen, Kriegsverbrechen in zwei Fällen sowie schwerer Verletzungen der Genfer Konventionen in drei Fällen.75 aa) Beweiswürdigung Aufgrund der zahlreichen Schauplätze, an denen Verbrechen stattgefunden hatten, kam es zu einer umfassenden Beweiswürdigung. Dabei sah die Straf70

Id., Rz. 12 ff. The Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Sixth Amended Consolidated Indictment, 9. Dezember 2003. 72 Id., Rz. 7, 13. 73 Id., Rz. 17. 74 Id., Rz. 41. 75 Id., Rz. 39 ff. 71

814

Heiko Leitsch

kammer den Großteil der von der Anklage vorgeworfenen Morde als erwiesen an.76 Ferner kam das Gericht zu dem Schluss, dass ein Teil der begangenen Handlungen die Schwere von Folter erreichten.77 Die Mehrzahl der Richter kam zudem zu der Überzeugung, dass zahlreiche Deportationen aus dem Gebiet Krajina stattgefunden hatten und der Angeklagte sich als Tatgehilfe wegen Verbrechen gegen die Menschlichkeit strabar gemacht hat.78 Ferner war Radoslav Brdjanin angeklagt wegen schwerer Verletzungen der Genfer Konventionen durch willentliche Zerstörung und Aneignung von Eigentum.79 Die Strafkammer kam aber zu dem Schluss, dass in der Zerstörung und Aneignung von bosnisch-muslimischem oder kroatischem Eigentum kein Verstoß gegen Artikel 2 (d) des Statuts zu sehen sei.80 Voraussetzung hierfür sei nämlich, dass das Eigentum entweder einen besonderen Schutz durch die Genfer Konventionen genoss oder sich in einem besetzten Gebiet befand. Das Gericht stellte fest, dass die Anklage für letzteres keinen ausreichenden Beweis erbracht hatte. Jedoch stelle die Zerstörung eine Verletzung von Artikel 3 (b) des Statuts und hinsichtlich der Zerstörung religiöser Einrichtungen von Artikel 3 (d) des Statuts dar.81 Ferner urteilte das Tribunal, dass nicht ohne jeglichen Zweifel feststehe, dass es in der Region Krajina zu Völkermord kam.82 Insbesondere sei die hierfür erforderliche Absicht von der Anklage nicht zweifelsfrei nachgewiesen worden.83 Den Tatbestand der Verfolgung als Verbrechen gegen die Menschlichkeit sah die Strafkammer dagegen als erwiesen an.84

76

The Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Judgement, 1. September 2004, Rz. 465. 77 Id., Rz. 524. 78 Id., Rz. 583. 79 The Prosecutor v. Radoslav Brdjanin, Indictment (Anm. 71), Rz. 61 ff. 80 The Prosecutor v. Radoslav Brdjanin, Judgement (Anm. 76), Rz. 638. 81 Id., Rz. 637–639. 82 Id., Rz. 989. 83 Id., Rz. 984. 84 Id., Rz. 1050.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

815

bb) Strafrechtliche Verantwortlichkeit gemäß Artikel 7 des Statuts Die Strafkammer stützte die strafrechtliche Verantwortlichkeit von Radoslav Brdjanin insbesondere auf die politischen Positionen, die er während des Zeitraumes, in dem die Verbrechen begangen wurden, inne hatte. Das Tribunal kam zu der Überzeugung, dass Brdjanin in der Autonomen Region Krajina (ARK) eine Schlüsselposition besessen habe.85 Dem Gericht zufolge hatte Radoslav Brdjanin zwischen Juni 1991 und Ende 1992 de jure und de facto Macht über die Polizeieinheiten in der Krajina.86 Ferner stellte das Gericht fest, dass Radoslav Brdjanin an der Umsetzung des „Strategieplans“ beteiligt war und zwar in dem Wissen, dass dieser nur mit Gewalt umgesetzt werden konnte.87 Das Tribunal war ferner überzeugt, dass der Angeklagte detaillierte Kenntnis von den im Vollzug des Plans begangenen Verbrechen hatte.88 Trotz seiner de facto-Befehlsgewalt über die Behörden, die Polizei, die Armee und die paramilitärischen Einheiten in der Krajina, sieht die Strafkammer den Angeklagten als nicht strafrechtlich verantwortlich im Sinne von Artikel 7 (3) des Statuts an.89 Vielmehr sei Radoslav Brdjanin für die Anordnung und als Tatgehilfe der verschiedenen Verbrechen strafrechtlich verantwortlich gemäß Artikel 7 (1) des Statuts.90 cc) Strafzumessung Radoslav Brdjanin wurde zu einer Haftstrafe von 32 Jahren verurteilt, wobei das Gericht feststellte, dass davon bereits 5 Jahre verbüßt sind.91 Am 22. Dezember 2004 reichte er einen Antrag auf Berufung ein.

85 86 87 88 89 90 91

Id., Rz. 41. Id., Rz. 291. Id., Rz. 305 ff. Id., Rz. 338. Id., Rz. 377. Id., Rz. 362 ff., 367 ff. Id., Rz. 153 f.

816

Heiko Leitsch

dd) Ermittlungen gegen Milka Maglov Milka Maglov war eine Verteidigerin von Radoslav Brdjanin. Am 8. April 2002 wurde an das Gericht herangetragen, dass sie in unzulässiger Weise an Zeugen der Anklage herangetreten sei. Daraufhin wurde vom Gericht ein amicus curiae-Ankläger bestellt, der untersuchen sollte, ob Milka Maglov gemäß Regel 77 der Verfahrens- und Beweisordnung das Gericht missachtet hatte. Das Verfahren begann am 19. Februar 2004. Am 19. März wurde ein Antrag von Milka Maglov auf Freispruch gemäß Regel 98bis bis auf einen Anklagepunkt abgelehnt.92 Auch der Antrag, Berufung gegen diese Entscheidung erheben zu dürfen, wurde abgelehnt.93 Am 17. Dezember 2004 erging auf Antrag des amicus curiae-Anklägers aber dann der Beschluss, das Verfahren gegen Milka Maglov einzustellen.94 b) Strafzumessungsurteil im Verfahren gegen Miodrag Joki Am 18. März 2004 wurde Miodrag Joki zu einer Haftstrafe von sieben Jahren verurteilt.95 Miodrag Joki wurde vorgeworfen, in der Zeit vom 23. Oktober 1999 bis zum 6. December 1999 als Kommandant unter der Führung von Pavle Strugar die zum UNESCO Weltkulturerbe gehörende Altstadt von Dubrovnik angegriffen zu haben.96 Miodrag Joki war wegen Kriegsverbrechen in sechs Fällen angeklagt.97 Am 25. August 2003 schlossen die Anklage und Joki ein plea agreement, in dem sich Miodrag Joki der ihm im Rahmen der zweiten ge92

The Prosecutor v. Radoslav Brdjanin concerning Allegations against Milka Maglov, IT-99-36-R77, Decision on Motion for Acquittal pursuant to Rule 98bis, 19. März 2004. 93 The Prosecutor v. Radoslav Brdjanin concerning Allegations against Milka Maglov, IT-99-36-R77, Decision on Request to Trial Chamber under Rule 73 to Certify Permission to Appeal Decision on Motion for Acquittal under Rule 98bis dated 19 March 2004, 20. April 2004. 94 The Prosecutor v. Radoslav Brdjanin concerning Allegations against Milka Maglov, IT-99-36-R77, Decision Confirming Vacation of Prior Orders and Termination of Proceedings, 17. Dezember 2004. 95 The Prosecutor v. Miodrag Joki , IT-01-42/1-S, Sentencing Judgement, 18. März 2004. 96 The Prosecutor v. Miodrag Joki , IT-01-42/1, Second Amended Indictment, 27. August 2003. 97 Id., Rz. 10 ff., 17 ff.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

817

änderten Anklage vorgeworfenen Verbrechen für schuldig bekannte.98 Am 17. September 2003 wurde daraufhin das Verfahren von Miodrag Joki von den Verfahren gegen Pavle Strugar und Vladimir Kovacevi getrennt.99 Anschließend erging am 18. März 2004 das Urteil gegen Miodrag Joki . c) Strafzumessungsurteil im Verfahren gegen Miroslav Deronji Miroslav Deronji wurde am 30. März 2004 zu einer Gefängnisstrafe von 10 Jahren verurteilt.100 Ihm war insbesondere vorgeworfen worden, am Abend des 8. Mai 1992 den Befehl zum Angriff auf das in der Gemeinde Bratunac gelegene Dorf Glogova gegeben zu haben.101 Über 60 bosnische Muslime wurden dabei vermutlich getötet. Gemäß der geänderten Anklage wurde er der Verbrechen gegen die Menschlichkeit in zwei Fällen sowie der Kriegsverbrechen in vier Fällen beschuldigt.102 Am 30. September 2003 erklärte er sich hinsichtlich eines Anklagepunktes, nämlich wegen Verbrechen gegen die Menschlichkeit, für schuldig.103 Am 30. März 2004 erging das Strafzumessungsurteil. Am 28. April 2004 legte Deronji Berufung gegen dieses ein. d) Strafzumessungsurteil im Verfahren gegen Darko Mrdja Gegen Darko Mrdja wurde am 14. Juni 2002 erstmals Anklage erhoben.104 Die Anklage legte Darko Mrdja zur Last, im August 1992 die Aussonderung einer Gruppe nicht-serbischer Männer, die im wehrfähigen Alter waren, befohlen bzw. an dieser teilgenommen zu haben.105 Daraufhin soll er den Befehl zur 98

Vgl. The Prosecutor v. Miodrag Joki , Sentencing Judgement (Anm. 95), Rz. 8 ff. The Prosecutor v. Pavle Strugar, IT-01-42-PT, Order for Separation, 17. September 2003. 100 The Prosecutor v. Miroslav Deronji , IT-02-61-S, Judgement, 30. März 2004. 101 The Prosecutor v. Miroslav Deronji , IT-02-61, Amdended Indictment, 29. November 2002, Rz. 8. 102 Id., Rz. 10 ff., 28. 103 The Prosecutor v. Miroslav Deronji , IT-02-61-PT, Plea Agreement, 30. September 2003. 104 The Prosecutor v. Darko Mrdja, IT-02-59, Indictment, 14. Juni 2002. 105 Id., Rz. 11 f. 99

818

Heiko Leitsch

Tötung der mehr als 200 Männer gegeben haben.106 Am 24. Juli 2003 verständigten sich die Anklage und Darko Mrdja auf ein plea agreement.107 Am 31. März 2004 wurde Darko Mrdja wegen Kriegsverbrechen sowie wegen Verbrechen gegen die Menschlichkeit zu 17 Jahren Haft verurteilt.108 Er verbüßt seine Haftstrafe in Spanien.109 e) Strafzumessungsurteil im Verfahren gegen Milan Babi Am 29. Juni 2004 erging das Strafzumessungsurteil gegen Milan Babi .110 Am 7. November 2003 war Anklage gegen Milan Babi erhoben worden.111 Ihm wurden Verbrechen gegen die Menschlichkeit wegen Verfolgungen aus politischen, rassischen und religiösen Gründen gegen die kroatische und nichtserbische Bevölkerung in der Krajina von August 1991 bis Februar 1992 vorgeworfen. Ferner wurden ihm in vier Anklagepunkten Kriegsverbrechen vorgeworfen.112 Am 12. Januar 2004 vereinbarten die Anklage und Babi ein plea agreement, in dem sich Babi bereit erklärte, sich der Verbrechen gegen die Menschlichkeit als Tatgehilfe einer kriminellen Vereinigung für schuldig zu erklären.113 In einem zweiten plea agreement vom 22. Januar 2004 erklärte sich Babi darüber hinaus bereit, sich der Kooperation mit einer kriminellen Vereinigung für schuldig zu erklären.114 Am 27. Januar 2004 erklärte sich Babi der Verbrechen gegen die Menschlichkeit unter Artikel 5 (h) und 7 (1) des Statuts für schuldig, am 28. Januar 2004 akzeptierte das Gericht dies. Die restlichen Anklagepunkte

106 107 108

2004. 109 110

2004. 111 112 113 114

Id., Rz. 14. Press Release 773 vom 24. Juli 2002. The Prosecutor v. Darko Mrdja, IT-02-59-S, Sentencing Judgement, 31. März Press Release 915 vom 23. November 2004. The Prosecutor v. Milan Babi , IT-03-72-S, Sentencing Judgement, 29. Juni Press Release 800 vom 18. November 2003. The Prosecutor v. Milan Babi , IT-03-72, Indictment, 6. November 2003. The Prosecutor v. Milan Babi , IT-03-72, Plea Agreement, 12. Januar 2004. The Prosecutor v. Milan Babi , IT-03-72, Plea Agreement, 22. Januar 2004.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

819

wurden dem Angeklagten erlassen. Am 29. Juni 2004 verurteilte das Gericht Babi zu 13 Jahren Haft.115 Am 3. September 2004 legte Babi Berufung ein.116 III. Verfahren und Urteile vor der Berufungsinstanz

1. Berufungsurteil im Verfahren gegen Mitar Vasiljevi Am 25. Februar 2004 fällte die Berufungskammer das Urteil im Verfahren gegen Mitar Vasiljevi . Er war von der Strafkammer zu 20 Jahren Haft wegen Verbrechen gegen die Menschlichkeit sowie Kriegsverbrechen verurteilt worden.117 Die Strafkammer hatte ihn für schuldig befunden, gemeinsam mit der paramilitärischen Einheit „White Eagles“ an der Exekution von fünf muslimischen Männern und an der versuchten Exekution zweier weiterer muslimischer Männer am Ufer des Flusses Drina als Mittäter beteiligt gewesen zu sein. Bezüglich der weiteren Anklagepunkte war Vasiljevi freigesprochen worden.118 Am 30. Dezember 2002 hatte er Berufung gegen seine Verurteilung sowie gegen die Strafhöhe eingelegt.119 a) Berufungsverfahren unter Artikel 25 des Statuts Aufgrund der Vielzahl der von der Verteidigung vorgebrachten Argumente machte das Gericht zunächst allgemeine Ausführungen, in welchem Umfang das Gericht die Entscheidung der Strafkammer überprüft und welchen formellen und verfahrensrechtlichen Anforderungen die vom Berufungskläger vorgebrachten Argumente entsprechen müssen, um von der Berufungskammer berücksichtigt zu werden.120 Die Berufungskammer stellt zunächst klar, dass das Berufungsverfahren nur ein korrigierendes Rechtsmittel darstellt und nicht zu einer umfassenden neuen 115

The Prosecutor v. Milan Babi , Sentencing Judgement (Anm. 110), Rz. 102. Vgl. Case Information Sheet, Babi Case, 28. September 2004. 117 The Prosecutor v. Mitar Vasiljevi , IT-98-32, Judgement, 29. November 2002. 118 Id., Rz. 263 f. 119 Press Release 825 vom 25. Februar 2004. 120 The Prosecutor v. Mitar Vasiljevi , IT-98-32-A, Judgement, 25. Februar 2004, Rz. 4 ff. 116

820

Heiko Leitsch

Prüfung des Falles führt. Aus diesem Grund sei es nicht ausreichend, dass eine Partei einen rechtlichen Fehler geltend mache, vielmehr müsse sie nachweisen, dass dieser Fehler zu einer fehlerhaften Entscheidung des Gerichts geführt habe.121 Bei einer fehlerhaften Beweiswürdigung hebe die Berufungskammer das Urteil nur dann auf, wenn dieses als ein „grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of a crime“ bezeichnet werden muss. Ähnliches gelte für eine Berufung gegen die Strafhöhe. Im Allgemeinen werde die Berufungskammer nur dann eine andere Haftstrafe verhängen, wenn sie glaube, dass die Strafkammer einen Ermessensfehler gemacht habe oder deren Entscheidung nicht dem geltenden Recht entspreche.122 Des Weiteren betonte die Berufungskammer in Bezugnahme auf das Kunara -Berufungsurteil,123 dass die in Berufung gehende Partei Urteile und andere Dokumente genau zitieren müsse, ansonsten weise die Berufungskammer die Argumentation ohne Begründung zurück.124 b) Chapeaux der Artikel 3 und 5 des Statuts Die Berufungskammer befand, dass das von dem Berufungskläger vorgebrachte Argument, seine Handlungen seien mit dem bewaffneten Konflikt in der Gegend nicht eng verbunden gewesen, nicht überzeuge.125 Auch das Argument, dass der Berufungskläger keine Kenntnis von dem systematischen Angriff auf die muslimische Bevölkerung hatte, überzeugte die Berufungskammer nicht. Somit sei eine Bestrafung nach Artikel 3 und 5 des Statuts nicht grundsätzlich ausgeschlossen.126

121

Id., Rz. 5 f. Id., Rz. 8 f. 123 The Prosecutor v. Dragoljub Kunara , IT-96-23-A, Judgement, 12. Juni 2002, Rz. 48. 124 The Prosecutor v. Mitar Vasiljevi , Appeals Judgement (Anm. 120), Rz. 11. 125 Id., Rz. 27. 126 Id., Rz. 30 f. 122

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

821

c) Beweiswürdigung Der Berufungskläger behauptete des Weiteren, dass die Strafkammer in sieben Punkten Tatsachen falsch gewürdigt habe, die zum einen im Zusammenhang mit den Ereignissen am Ufer des Flusses Drina stehen, zum anderen mit dem Verhältnis von Mitar Vasiljevi zu der paramilitärischen Gruppe von Milan Luki . Die Berufungskammer wies vier der Argumente als unbegründet zurück.127 Die Berufungskammer stimmte mit Mitar Vasiljevi aber überein, dass aus der Aussage eines Zeugen, er habe Milan Luki und seinen Männern ein Haus gezeigt, in dem Muslime wohnten, allein nicht geschlossen werden könne, dass Vasiljevi Informant von Milan Luki war.128 Die Berufungskammer stimmte Mitar Vasiljevi zudem zu, dass nicht zweifelsfrei nachgewiesen wurde, dass dieser Kenntnis davon gehabt hatte, dass Milan Luki beabsichtigte, die sieben muslimischen Männer, die im Vilina Vlas Hotel gefangen gehalten wurden, später zu töten.129 Ebenfalls aus Mangel an eindeutigen Beweisen befand die Berufungskammer, es könne nicht länger daran festgehalten werden, dass Vasiljevi bereits in dem Hotel mit einer Waffe auf die Männer gezielt hätte.130 d) Individuelle Verantwortlichkeit, Artikel 7 (1) des Statuts Mitar Vasiljevi war von der Strafkammer wegen Verbrechen gegen die Menschlichkeit als Mittäter gemäß Artikel 7 (1) des Statuts verurteilt worden.131 Die Berufungskammer kam zu der Überzeugung, dass die in der ersten Instanz vorgetragenen Tatsachen nicht ausreichten, um die Verantwortlichkeit von Vasiljevi als Mittäter zu begründen, da hierfür unter anderem die gemeinsame Tötungsabsicht gefehlt habe.132 Somit gelangt die Berufungskammer zu der Überzeugung, dass die strafrechtliche Verantwortung von Mitar Vasiljevi nicht mit der Verantwortlichkeit von Milan Lukic und den zwei weiteren unbekannten Männern, die auf die sieben 127 128 129 130 131 132

Id., Rz. 33 ff., 58 ff. Id., Rz. 79. Id., Rz. 53. Id., Rz. 57. The Prosecutor v. Mitar Vasiljevi , Judgement (Anm. 117). The Prosecutor v. Mitar Vasiljevi , Appeals Judgement (Anm. 120), Rz. 132.

822

Heiko Leitsch

muslimischen Männer am Ufer des Flusses Drina geschossen hatten, gleichgesetzt werden könne.133 Entgegen der vom Berufungskläger vorgebrachten Argumente befand das Gericht Mitar Vasiljevi jedoch der ihm vorgeworfenen Verbrechen als Tatgehilfe gemäß Artikel 7 (1) des Statuts für schuldig.134 e) Strafzumessung Die von Mitar Vasiljevi vorgebrachten Argumente hinsichtlich rechtlicher und faktischer Fehler in Zusammenhang mit der verhängten Höhe der Haftstrafe wurden von der Berufungskammer abgewiesen.135 Da das Gericht jedoch zu der Überzeugung gelangte, dass Mitar Vasiljevi nicht als Mittäter, sondern lediglich als Tatgehilfe zu bestrafen sei, wurde die Höhe der Haftstrafe von 20 auf 15 Jahre herabgesetzt.136 2. Berufungsurteil im Verfahren gegen Radislav Krsti Gemäß der geänderten Anklageschrift vom 27. Oktober 1999 war Radislav Krsti zur Last gelegt worden, als Befehlshaber des VRS-Drina Corps, einer Einheit der bosnisch-serbischen Armee, im Juli 1995 die „Sicherheitszone“ Srebrenica und auch die dort befindlichen holländischen UN-Beobachter angegriffen zu haben.137 Das VRS-Drina Corps soll in Srebrenica eingezogen sein und dort den Großteil der bosnisch-muslimischen Bevölkerung vertrieben und die männlichen Muslime getötet haben.138 Am 2. August 2001 hatte die Strafkammer Radislav Krsti des Völkermords, der Verbrechen gegen die Menschlichkeit sowie des Mordes als Kriegsverbrechen für schuldig befunden und ihn zu einer Haftstrafe von 46 Jahren ver-

133 134 135 136 137 138

Id., Rz. 131. Id., Rz. 135. Id., Rz. 150–173. Id., Rz. 182. The Prosecutor v. Radislav Krsti , IT-98-33, Indictment, 27. Oktober 1999. Id., Rz. 10.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

823

urteilt.139 Am 19. April 2004 erging das Berufungsurteil und die Gefängnisstrafe wurde auf 35 Jahre herabgesetzt.140 a) Völkermord Zunächst befasste sich die Berufungskammer mit der Feststellung der Strafkammer, dass es in Srebrenica zu Völkermord kam.141 Die Verteidigung hatte vorgebracht, dass der Verurteilung von Radislav Krsti eine Missdeutung der Definition von Völkermord zugrunde liege. Sie war der Auffassung, dass die Strafkammer das Tatbestandsmerkmal „Teil einer Gruppe“ als Voraussetzung für die Bejahung von Völkermord falsch definiert hatte. Die Berufungskammer wies dies im Ergebnis als unbegründet zurück.142 Gemäß Artikel 4 des Statuts und der Völkermordkonvention sei Voraussetzung für die Bejahung von Völkermord, dass eine Handlung mit der Absicht begangen worden sein muss, eine Gruppe als solche ganz oder teilweise zu zerstören. Jedoch sei nicht jeder Teil einer Gruppe ausreichend, sondern es müsse sich um einen wesentlichen Teil der Gruppe handeln.143 Für die Beantwortung der Frage, ob es sich um einen wesentlichen Teil der Gruppe handele, sei eine Vielzahl von Überlegungen maßgebend. Entscheidend sei zwar vor allem die zahlenmäßige Größe des Teils, auch in Relation zu der Größe der gesamten Gruppe. Auch die Bekanntheit des Teils müsse jedoch mit in die Erwägungen einbezogen werden.144 Die Berufungskammer stellte fest, dass sich in Srebrenica ca. 40.000 Muslime befanden – eine Anzahl, die im Vergleich zur gesamten muslimischen Bevölkerung in Bosnien-Herzegowina nur einen geringen Teil darstellte. Jedoch war die in Srebrenica lebende muslimische Bevölkerung besonders prominent, da sie sich in einer „UN-Sicherheitszone“ befand und somit von der internationalen Gemeinschaft geschützt wurde. Die Vernichtung der muslimischen Bevölkerung in Srebrenica habe somit die Schutzlosigkeit der bosnisch-muslimischen Bevölkerung symbolisch gezeigt. Da zudem eine große Zahl von 139

The Prosecutor v. Radislav Krsti , IT-98-33, Judgement, 2. August 2001, Rz. 727. 140 The Prosecutor v. Radislav Krsti , IT-98-33-A, Judgement, 19. April 2004. 141 Id., Rz. 5 ff. 142 Id., Rz. 23. 143 Id., Rz. 6, 8. 144 Id., Rz. 12.

824

Heiko Leitsch

Muslimen aus der Umgebung in Srebrenica Schutz gesucht hatte, sei man mit der Vernichtung der Enklave dem Ziel nähergekommen, die ganze Region von ihrer muslimischen Bevölkerung zu säubern.145 Als zweites Argument brachte die Verteidigung vor, die Strafkammer sei ohne ausreichende Beweise zu der Feststellung gekommen, dass der Angeklagte die notwendige Absicht für die Begehung von Völkermord gehabt hatte. Vielmehr habe die Strafkammer in unzulässiger Weise von den Anstrengungen, eine Gemeinschaft aus ihrer traditionellen Umgebung zu vertreiben, darauf geschlossen, dass beim Beschuldigten die Absicht vorgelegen hatte, die Gruppe zu vernichten.146 Die Berufungskammer stellte dazu fest, dass es sich in Srebrenica nicht um eine Vertreibung gehandelt habe, sondern zwischen 8.000 und 10.000 muslimische Männer im wehrfähigen Alter gezielt getötet wurden, was auch Einfluss auf den Fortbestand der ganzen Gemeinschaft hatte.147 Diese Konsequenz müsse der Führung der VRS-Einheiten bewusst gewesen und aus ihr müsse auf die Absicht zum Völkermord bei der Tötung der muslimischen Männer geschlossen werden. Die Berufungskammer wies daher die Argumente der Verteidigung als unbegründet zurück.148 b) Strafrechtliche Verantwortlichkeit Die Verteidigung brachte als weiteren Berufungsgrund vor, dass Radislav Krsti Völkermord jedenfalls nicht als Mitglied einer kriminellen Vereinigung begangen habe.149 Um dies darzulegen, brachte die Verteidigung insgesamt drei Argumente vor, von denen aber zwei von der Berufungskammer als unbegründet abgewiesen wurden.150 Als drittes Argument brachte die Verteidigung vor, dass nicht ausreichend erwiesen sei, dass Radislav Krsti zum Tatzeitpunkt einen ausreichenden Vorsatz zur Begehung von Völkermord hatte.151 Die Berufungskammer gelangte zu der Überzeugung, dass Krsti Kontakt zu General Ratko Mladi sowie zu den ande145 146 147 148 149 150 151

Id., Rz. 15. Vgl. id., Rz. 24. Id., Rz. 28. Id., Rz. 35, 38. Id., Rz. 39. Id., Rz. 47, 63. Id., Rz. 43.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

825

ren Hauptverantwortlichen für den Angriff auf Srebrenica hatte. Jedoch sei nicht erwiesen, dass Radislav Krsti durch diese Kontakte von deren Absicht erfuhr, die bosnischen Muslime zu exekutieren, und überdies diese Absicht mit ihnen teilte. Die Berufungskammer kam daher zu dem Ergebnis, dass Radislav Krsti nicht als Täter zu bestrafen sei.152 Jedoch habe Radislav Krsti spätestens seit dem 15. Juli 1995 gewusst, dass er mit seiner Zustimmung zur Nutzung seiner Einheit einen wesentlichen Beitrag zur Exekution der muslimischen Gefangen erbracht habe. Aufgrund dieses Wissens habe ein ausreichender Tatgehilfenvorsatz zum Völkermord vorgelegen.153 Somit sei Radislav Krsti Tatgehilfe einer kriminellen Vereinigung gemäß Artikel 7 (1) des Statuts gewesen.154 In diesem Zusammenhang stellte das Gericht klar, dass die Begehung von Völkermord als Komplize, wie sie in Artikel 4 (3) (e) des Statuts ausdrücklich genannt ist, nicht lex specialis zu Artikel 7 (1) des Statuts sei, sondern Artikel 7 (1) des Statuts abschließend die Beteiligungsformen an den Straftatbeständen des Statuts regle. Schließlich stellte die Berufungskammer fest, dass Krsti auch bezüglich der übrigen Verbrechen, die ihm zur Last gelegt wurden, lediglich Tatgehilfe gewesen sei.155 c) Verletzung der Verfahrens- und Beweisregel 68 Die Berufungskammer stellte fest, dass die Anklage gegen Regel 68, nach der sie verpflichtet ist, der Verteidigung entlastende Tatsachen mitzuteilen, verstoßen habe.156 Jedoch fehle es seitens der Verteidigung an der Begründung, in welcher Weise sie dadurch Nachteile erlitten habe.157 Aus diesem Grund wurde dieses Argument von der Berufungskammer verworfen. An das Büro der Anklage wurde jedoch für zukünftige Verfahren eine Nachricht gesendet.158

152 153 154 155 156 157 158

Id., Rz. 134. Id., Rz. 137. Id., Rz. 143. Id., Rz. 139, 144. Id., Rz. 188, 200. Id., Rz. 208. Id., Rz. 209.

826

Heiko Leitsch

d) Kumulative Verurteilung Die Anklage griff die Entscheidung der Strafkammer dahingehend an, dass diese eine kumulative Verurteilung von Radislav Krsti wegen verschiedener Verbrechen gegen die Menschlichkeit und wegen Völkermords als unzulässig erachtet hatte. Die Berufungskammer stellte fest, dass kumulative Verurteilungen nur dann zulässig seien, wenn sie zwar auf denselben Fakten basieren, die verschiedenen Straftatbestände jedoch unterschiedliche materielle Anforderungen haben.159 Diesem Test genügten nur zwei der vier neben dem Völkermord erhobenen Beschuldigungen der Anklage, nämlich Verbrechen gegen die Menschlichkeit durch die Exekution der muslimischen Männer in Srebrenica sowie Verfolgung als Verbrechen gegen die Menschlichkeit.160 e) Strafzumessung Die Berufungskammer wies zunächst die seitens der Anklage und der Verteidigung vorgebrachten Berufungsgründe hinsichtlich der verhängten Strafe als unbegründet zurück.161 Da die Berufungskammer jedoch zu der Überzeugung gelangte, dass Radislav Krsti nicht, wie die Strafkammer befunden hatte, Täter der ihm vorgeworfenen Verbrechen, sondern lediglich Tatgehilfe war, setzte sie die Haftstrafe auf nunmehr 35 Jahre herab.162 Seine Haftstrafe verbüßt Radislav Krsti in Großbritannien.163 3. Berufungsurteil im Verfahren gegen Tihomir Blaski Am 29. Juli 2004 erging das Berufungsurteil gegen Tihomir Blaski .164 Der Fall bezieht sich auf Verbrechen, die sich während des Konfliktes zwischen der Kroatischen Befreiungsarmee (HVO) und der bosnisch-muslimischen Armee in der Region von Lasva Valley von Mai 1992 bis Januar 1994 ereigneten. Tihomir 159

Id., Rz. 218. Id., Rz. 227, 229. 161 Id., Rz. 252, 255, 259, 263, 265. 162 Id., Rz. 275. 163 The Prosecutor v. Radislav Krsti , IT-98-33, Order Designating the State in Which Radislav Krsti Is to Serve his Prison Sentence, 11. November 2004. 164 The Prosecutor v. Tihomir Blaski , IT-95-14-A, Judgement, 29. Juli 2004. 160

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

827

Blaski war während dieser Zeit Kommandant der kroatischen Streitkräfte in Zentralbosnien.165 Die Strafkammer hatte ihn am 3. März 2000 wegen Verletzungen der Artikel 2, 3 und 5 des Statuts verurteilt.166 Tihomir Blaski war sowohl auf der Basis von Artikel 7 (1) des Statuts wegen individueller Verantwortlichkeit als auch auf der Basis von Artikel 7 (3) des Statuts wegen Verantwortlichkeit als Vorgesetzter zu einer Haftstrafe von 45 Jahren verurteilt worden.167 Das Berufungsverfahren war gekennzeichnet durch eine enorme Zahl neuer Beweise. Grund hierfür war die Öffnung der kroatischen Archive nach dem Tod des ehemaligen Präsidenten Franjo Tudjman im Jahre 1999. Der Berufungskläger hatte insgesamt vier Anträge gemäß Regel 115 der Verfahrens- und Beweisregeln des Tribunals eingereicht, die darauf gerichtet waren, der Berufungskammer neue Beweismittel präsentieren zu dürfen. Die Berufungskammer kam zu dem Schluss, dass eine Wiederaufnahme des Verfahrens dennoch nicht wünschenswert sei.168 a) Behauptete rechtliche Fehler in Bezug auf Artikel 7 des Statuts aa) Artikel 7 (1) des Statuts Zunächst nahm die Berufungskammer Stellung zu der vom Berufungskläger angegriffenen Auslegung der Beteiligungsformen in Artikel 7 (1) des Statuts durch die Strafkammer. Diese habe hinsichtlich der Anforderungen an den subjektiven Tatbestand dem Merkmal „befehlen“ im Artikel 7 (1) des Statuts einen fehlerhaften Bewertungsmaßstab zugrunde gelegt.169 Es sei für die Bejahung eines ausreichenden Vorsatzes hinsichtlich des Erfolgseintritts ungenügend, dass ein Risiko des Erfolgseintritts existierte, welches der Täter kannte und es somit auch akzeptierte.170 Vielmehr ergebe ein Vergleich der verschiedenen nationalen Regelungen, dass ein gewisser Grad des Risikos vorliegen müsse.

165 166 167 168 169 170

Id., Rz. 2. The Prosecutor v. Tihomir Blaski , IT-95-14, Judgement, 3. März 2000, Rz. 47 ff. Id., nach Rz. 808. The Prosecutor v. Tihomir Blaski , Appeals Judgement (Anm. 164), Rz. 4 f. Id., Rz. 41. Id., Rz. 38.

828

Heiko Leitsch

Ausreichend sei jedoch, dass jemand einen Befehl mit dem Bewusstsein erteile, dass bei Ausführung des Befehls Verbrechen begangen werden. Im Ergebnis sah die Berufungskammer die subjektiven Voraussetzungen dennoch als erfüllt an.171 bb) Artikel 7 (3) des Statuts Der Berufungskläger brachte des Weiteren hervor, dass die Strafkammer fehlerhafte Anforderungen an das Wissenselement in Artikel 7 (3) des Statuts gestellt habe. Diese hatte befunden, dass Blaski sich als Kommandant nicht darauf berufen könne, keine Kenntnis von den Handlungen seiner Befehligten gehabt zu haben, da er als solcher die Pflicht gehabt hätte, stets darüber informiert zu sein, wie seine Befehligten die ihnen anvertraute Aufgabe ausführen.172 Die Berufungskammer stellte in Bezugnahme auf das elebi i-Berufungsurteil173 fest, dass ein Vorgesetzter nur dann für die Handlungen seiner Untergebenen gemäß Artikel 7 (3) des Statuts strafrechtlich verantwortlich sei, wenn ihm konkrete Informationen vorgelegen hätten, welche ihn von dem Verhalten seiner Befehligten in Kenntnis gesetzt hätten.174 Schließlich äußerte sich die Berufungskammer auch zu dem Verhältnis von Artikel 7 (1) zu Artikel 7 (3) des Statuts und stellte fest, dass diese Vorschriften unterschiedliche Kategorien von strafrechtlicher Verantwortlichkeit betreffen.175 In dem Fall, in dem die Voraussetzungen beider Vorschriften erfüllt seien, dürfe eine Verurteilung jedoch allein auf der Basis von Artikel 7 (1) des Statuts erfolgen. Die überlegene Position des Angeklagten müsse dann strafschärfend berücksichtigt werden.176 Die Berufungskammer stellte somit fest, dass die Verurteilung von Tihomir Blaski hinsichtlich der gleichen Anklagepunkte und basierend auf denselben 171

Id., Rz. 42. Id., Rz. 61. 173 The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landžo, IT-96-21-A, Judgement, 20. Februar 2001. 174 The Prosecutor v. Tihomir Blaski , Appeals Judgement (Anm. 164), Rz. 62. 175 Id., Rz. 91. 176 Id., Rz. 91; vgl. auch The Prosecutor v. Zlatko Aleksovski, IT-95-14/1-A, Judgement, 24. März 2000, Rz. 183; The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landžo, Judgement (Anm. 173), Rz. 745. 172

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

829

Fakten nicht sowohl auf Artikel 7 (1) als auch auf Artikel 7 (3) des Statuts gestützt werden konnte und somit rechtlich fehlerhaft war.177 b) Artikel 5 des Statuts Die Berufungskammer stellte im Wesentlichen zwei Fehler hinsichtlich der Anwendung von Artikel 5 des Statuts durch die Strafkammer fest. Zum einen ging es um die Frage, welche Anforderungen an das Merkmal „zivile Bevölkerung“ zu stellen sind. Nicht die spezifische Situation des Opfers zum Zeitpunkt, in dem die Verbrechen begangen wurden, sei entscheidend, sondern einzig und allein, ob das Opfer zu diesem Zeitpunkt noch Mitglied einer bewaffneten Organisation sei oder bereits aus dieser ausgeschieden sei und die Waffen niedergelegt habe. Zudem stellte die Berufungskammer fest, dass die Anwesenheit von Soldaten in der Bevölkerung nichts an deren zivilen Status ändere.178 Zum anderen legte die Berufungskammer den Begriff „Verfolgung“ in Artikel 5 (h) des Statuts aus. Sie stellte fest, dass Verfolgung nicht schon dann vorliege, wenn „eine umfassende Verletzung von fundamentalen Menschenrechten“ gegeben sei. Vielmehr müsse die Verfolgung sich in gleicher Weise als schwerwiegend erweisen wie die anderen in Artikel 5 aufgeführten Handlungen, so dass die Feststellung einer diskriminierenden Absicht für die Feststellung einer Verfolgung nicht ausreichend sei.179 c) Verletzung von Verfahrensrechten Hinsichtlich der Verletzung von Verfahrensvorschriften entschied die Berufungskammer, dass zwar die zweite geänderte Anklageschrift rechtlich fehlerhaft gewesen sei, dies aber den Berufungskläger nicht an der Vorbereitung seiner Verteidigung gehindert habe.180 Auch durch die Verletzung der Verfahrensregel 68 seitens der Anklage sei es zu keinem materiellen Nachteil für den

177 178 179 180

The Prosecutor v. Tihomir Blaski , Appeals Judgement (Anm. 164), Rz. 92. Id., Rz. 113–115. Id., Rz. 136 ff. Id., Rz. 245.

830

Heiko Leitsch

Berufungskläger gekommen.181 Beide vorgebrachten Berufungsgründe wurden daher im Ergebnis verworfen. d) Beweiswürdigung Die Berufungskammer sprach den Berufungskläger hinsichtlich der ihm vorgeworfenen Verbrechen in der Gegend Ahmi i frei. Sie verneinte insbesondere die strafrechtliche Verantwortlichkeit von Tihomir Blaski .182 Auch hinsichtlich weiterer Verbrechen in der Gegend um Lasva Valley kam die Berufungskammer zu einer anderen Beweiswürdigung als die Strafkammer und sprach daher Blaski insoweit frei.183 Die Berufungskammer befand den Angeklagten weiterhin für schuldig wegen schwerer Verletzungen der Genfer Konventionen gemäß Artikel 2 (b) und Artikel 7 (3) des Statuts, da Blaski trotz der Kenntnis, dass seine Untergebenen im Kulturzentrum sowie im Veterinärkrankenhaus von Vitez Verbrechen gegen die dort gefangenen bosnischen Muslime begingen, nicht eingegriffen hatte.184 Ferner stellte die Berufungskammer fest, dass entgegen dem Urteil des Gerichts der ersten Instanz nicht zweifelsfrei feststehe, dass Tihomir Blaski befohlen hatte, die muslimischen Gefangenen als lebende Schutzschilde zu benutzen. Durch Unterlassen gemäß Artikel 7 (1) des Statuts habe er sich jedoch wegen schwerer Verletzungen der Genfer Konventionen gemäß Artikel 2 (b) des Statuts strafbar gemacht.185 e) Strafzumessung Die Berufungskammer kam zu dem Ergebnis, dass eine neue Strafhöhe zu bestimmen sei.186 Sie verurteilte Tihomir Blaski zu einer Haftstrafe von neun Jahren. Am 2. August wurde er frühzeitig aus der Haft entlassen.187 181 182 183 184 185 186 187

Id., Rz. 303. Id., Rz. 348, 422. Id., Rz. 444, 455, 466, 481, 511, 526, 530, 533, 564, 573. Id., Rz. 633. Id., Rz. 670. Id., Rz. 726. Press Release 876 vom 29. Juli 2004.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

831

4. Berufungsurteil im Verfahren gegen Dario Kordi und Mario erkez Am 17. Dezember 2004 erging das Urteil im Berufungsverfahren gegen Dario Kordi und Mario erkez.188 Dario Kordi war zuvor wegen Verbrechen in der Gegend um Lasva Valley von der Strafkammer zu 25 Jahren Haft verurteilt worden.189 Die Strafkammer hatte befunden, dass er unter anderem eine zentrale Rolle bei dem Angriff auf Ahmici im April 1993 gespielt hatte, bei dem mehr als 100 bosnisch-muslimische Zivilisten getötet worden waren.190 Mario erkez war von der Strafkammer zu einer Haftstrafe von 15 Jahren verurteilt worden.191 Kordi und erkez erhoben Berufung gegen alle Teile des Urteils. Die Anklage erhob Berufung gegen den Freispruch von Kordi und erkez hinsichlich der Verbrechen in Ahmici sowie gegen die Höhe der Haftstrafe.192 a) Faires Verfahren gemäß Artikel 21 des Statuts Die Berufungskläger machten zunächst geltend, sie hätten kein faires Verfahren gemäß Artikel 21 des Statuts erhalten. Die Berufungskammer wies dieses Argument als unbegründet zurück.193 Auch die behauptete Verletzung der Verfahrensregel 68 wurde neben anderen behaupteten Verfahrensfehlern als unbegründet zurückgewiesen.194 b) Behauptetes Vorliegen eines nicht internationalen Konflikts Ferner befand die Berufungskammer, dass zu der Zeit, in denen die Verbrechen begangen wurden, ein internationaler Konflikt zwischen Kroatien und 188

The Prosecutor v. Dario Kordic and Mario erkez, IT-95-14/2-A, Judgement, 17. Dezember 2004. 189 The Prosecutor v. Dario Kordic and Mario erkez, IT-95-14/2, Judgement, 26. Februar 2001, Rz. 854. 190 Id., Rz. 625, 642. 191 Id., Rz. 856. 192 Vgl. The Prosecutor v. Dario Kordic and Mario erkez, Appeals Judgement (Anm. 188), Rz. 12. 193 Id., Rz. 149. 194 Id., Rz. 210.

832

Heiko Leitsch

Bosnien-Herzegowina vorgelegen habe und somit die Genfer Konventionen Anwendung gefunden hätten.195 c) Dario Kordi vorgeworfene Verbrechen Die Berufungskammer stimmte einigen der von Dario Kordi vorgebrachten Argumenten zu, jedoch im Zusammenhang mit den Anklagepunkten nie im Ganzen, sondern lediglich in Bezug auf bestimmte Örtlichkeiten.196 d) Berufung von Mario erkez Die Berufungskammer folgte weitgehend den Argumenten von Mario erkez. Sie stellte insbesondere fest, dass die strafrechtliche Verantwortlichkeit von Mario erkez ausschließlich hinsichtlich der an den Gefangenen begangen Verbrechen in bestimmten Gebäuden in Vitez zu bejahen sei.197 In allen anderen Punkten hob die Berufungskammer das Urteil der Strafkammer auf.198 Die Strafkammer hatte zuvor die strafrechtliche Verantwortlichkeit von Mario erkez maßgeblich auf die Tatsache gestützt, dass Mario erkez bei einem Treffen in einem Hotel in Vitez am 15. April 1993 anwesend war. Die Berufungskammer gelangte jedoch zu der Überzeugung, dass diese Tatsache alleine nicht ausreiche, um eine strafrechtliche Verantwortlichkeit für spätere Verbrechen zu bejahen.199 e) Berufung der Anklage Die vorgebrachten Argumente der Anklage wurden von der Berufungskammer als unbegründet zurückgewiesen. Die Kammer sah Mario erkez als nicht strafrechtlich verantwortlich für die Propagandakampagne gegen die muslimische Bevölkerung sowie die in Ahmici begangenen Verbrechen an.200 195 196 197 198 199 200

Id., Rz. 376. Id., Rz. 1067. Id., Rz. 952. Id., Rz. 898 ff. Id., Rz. 891. Id., Rz. 770, 805.

Die Rechtsprechung des Jugoslawien-Tribunals im Jahre 2004

833

f) Strafzumessung Hinsichtlich der gegen den Angeklagten Dario Kordi verhängten Strafhöhe bestätigte die Berufungskammer das Urteil der Strafkammer und wies somit sowohl die Berufung der Anklage als auch die von Kordi zurück.201 Die Berufungskammer gab der Berufung von Mario erkez in verschiedenen Punkten statt. Sie befand erkez strafrechtlich verantwortlich gemäß Artikel 7 (1) des Statuts wegen Verfolgung als Verbrechen gegen die Menschlichkeit, Einsperrung als Verbrechen gegen die Menschlichkeit sowie schwerer Verletzungen der Genfer Konventionen. In einer neuen Strafzumessung verurteilte die Berufungskammer Mario erkez zu einer Haftstrafe von 6 Jahren. Da er diese bereits verbüßt hatte, wurde er in die Freiheit entlassen.202

201 202

Id., Rz. 1067. Id., Rz. 1092.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums im Jahre 2004 Von Frank Bayer* und Henning Jessen** A. Einführung Mit dem Beginn des Jahres 2005 kann das mittlerweile zehnjährige Bestehen des Streitbeilegungssystems der Welthandelsorganisation (WTO) gefeiert werden.1 Die WTO ordnet diesem Jubiläum eine besondere Bedeutung zu, was während des gesamten Jahres 2005 z. B. durch die Organisation einer weltweiten Serie von Festakten zum Ausdruck kommen wird. Diese Veranstaltungen sollen insbesondere an solchen akademischen Einrichtungen stattfinden, mit denen sich langjährige Mitglieder des Appellate Body – der ständigen Revisionsinstanz des Streitbeilegungsgremiums – besonders verbunden fühlen.2 Auch auf diese Weise wird sich im Jubiläumsjahr die Anerkennung dafür manifestieren, dass sich das Streitbeilegungssystem der WTO – insbesondere durch die Kontinuität der Spruchpraxis des Appellate Body – als ein unverzichtbarer Garant der auf der Einhaltung von Regeln basierenden WTO-Rechtsordnung erwiesen hat. Die Rechtssicherheit vermittelnde Funktion der im Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)3 nor*

Dr. iur., Rechtsreferendar, Kiel. LL.M. (Tulane), Doktorand, Universität Halle/Rechtsreferendar, Hamburg. 1 Dieser Bericht schließt an den Vorbericht von Alexander Szodruch/Carl-Sebastian Zoellner, Die Rechtsprechung des WTO-Streitbeilegungsgremiums im Jahre 2003, German Yearbook of International Law (GYIL), vol. 46, 2003, 675–710, an. 2 Vgl. WTO Press Release (Press/390) vom 6. Dezember 2004 (10th Anniversary – Academic Groups to Host Conferences Commemorating Establishment of WTO Appellate Body). 3 Abgedruckt in: The Legal Texts, The Results of the Uruguay Round of Multilateral Trade Negotiations, 354–379; deutscher Text in: Christian Tietje (Hrsg.), Welthandelsorganisation, 2. Aufl. 2003, 295–322; Wolfgang Benedek (Hrsg.), Die Welthandelsorganisation (WTO), 1998, 459–487. **

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

835

mierten Streitbeilegungsregeln, die sich nicht nur in Verfahrensregeln für die Einsetzung der Panel und einer darauffolgenden Anrufung des Appellate Body erschöpfen, sondern vielmehr auch aus institutionalisierten handelsdiplomatischen Regeln zur gütlichen (quasi vorgerichtlichen) Einigung bestehen, wurde im Laufe der letzten zehn Jahre übereinstimmend in einer Vielzahl wissenschaftlicher Abhandlungen und Fachaufsätzen besonders hervorgehoben.4 Dass die WTO-Mitglieder die Streitbeilegungsregeln des DSU umfassend angenommen haben, kann seit dem 1. Januar 1995 vor allem anhand statistischer Daten zur WTO-Streitbeilegung anschaulich verdeutlicht werden.5 Die Marke von 300 Verfahren wurde mittlerweile deutlich überschritten: Seit der Gründung der WTO wurden bis zum Ende des Berichtszeitraums (31. Dezember 2004) insgesamt 324 Streitbeilegungsverfahren gegenüber dem Dispute Settlement Body (DSB) notifiziert. Von diesen Handelsstreitigkeiten führten bislang 129 zur Einsetzung eines Panel in insgesamt 159 Einzelverfahren. Die Mehrheit der Fälle wird zwar immer noch durch die zahlenmäßige Minderheit der industrialisierten WTO-Mitglieder eingebracht (210 Mal als klagende Partei, 196 Mal als beklagte Partei). Dennoch klagten in bereits 137 Verfahren WTO-Entwicklungsländer, während sie in 123 Fällen als Beklagte auftraten.6 Diese Akzeptanz des WTO-Streitbeilegungsmechanismus ist nicht zuletzt auf die völkerrechtliche Verbindlichkeit der Entscheidungen der Panel und des Appellate Body zurückzuführen.7 Die Auswertung des Berichtszeitraums wird zudem zeigen, dass kleinere Entwicklungsländer in mittlerweile stetig zunehmendem und gewinnbringendem Maße die Möglichkeiten der WTOStreitbeilegung für sich einzusetzen wissen. Der Berichtszeitraum war z. B. das 4

Vgl. zuletzt z. B. Frederico Ortino/Ernst-Ulrich Petersmann (Hrsg.), The WTO Dispute Settlement System 1995–2003, 2004; David Palmeter/Petros C. Mavoidis, Dispute Settlement in the World Trade Organization – Practice and Procedure, 2004. 5 Der jeweils aktuelle Stand der WTO-Streitbeilegung ist im Internet abrufbar unter: http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm. 6 Die betreffenden Streitbeilegungsverfahren überschneiden sich teilweise, da mehrere WTO-Mitglieder gemeinsam als Streitgenossen klagen können. Die Daten sind insgesamt einem Bericht des Trade Policy Review Body entnommen und für den Abschluss des Berichtszeitraums 2004 angepasst worden, vgl. m. w. N. zur Streitbeilegung Annual Report by the Director-General, Overview of Developments in the International Trading Environment, WT/TPR/OV/10 vom 15. November 2004, Tz. 93 ff. (Annual Report 2004). 7 Zur Frage der Verbindlichkeit siehe John H. Jackson, International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to “Buy out”?, American Journal of International Law, vol. 98, 2004, 109–125, 123.

836

Frank Bayer und Henning Jessen

erste Jahr, in dem mit Bangladesch ein WTO-Mitglied aus der volkswirtschaftlichen Kategorie der am wenigsten entwickelten Länder den Streitbeilegungsmechanismus aktiv zur Einleitung handelsdiplomatischer Konsultationen nutzte.8 Im Jahr 2004 obsiegten außerdem die als Kläger auftretenden Entwicklungsländer in allen denjenigen Verfahren, in denen sich ihre Klagen gegen industrialisierte WTO-Mitglieder richteten. In lediglich einem einzigen Verfahren verlor (im Bereich des Dienstleistungshandels) eine – WTO-rechtlich als Entwicklungsland-Mitglied anzusehende – beklagte Partei (Mexiko) gegen einen klagenden Industriestaat (USA). Unter Anerkennung und Berücksichtigung dieser Entwicklungen stellt der nachfolgende Bericht alle diejenigen elf Streitbeilegungsverfahren vor, die im Jahr 2004 entweder durch den DSB der WTO verabschiedet oder durch die WTO-Panel bzw. den Appellate Body in der Sache entschieden wurden.9 B. Die WTO-Rechtsprechung zu den einzelnen Handelsübereinkünften I. Multilaterale Übereinkünfte im Bereich des Warenhandels

1. Allgemeines Zoll- und Handelsübereinkommen (GATT 1994) Ein Großteil der WTO-Streitbeilegungsverfahren betrifft weiterhin die in Annex 1A des Übereinkommens zur Errichtung der Welthandelsorganisation (WTO-Übereinkommen) aufgeführten multilateralen Abkommen über den Warenhandel. Traditionell spielt diesbezüglich vor allem die Untersuchung von Verletzungen des Allgemeinen Zoll- und Handelsabkommens (GATT 1994)10 eine zentrale Rolle. Auch im Jahr 2004 waren in zwei Verfahren mutmaßliche Verletzungen des Grundsatzes der Inländergleichbehandlung (vgl. Artikel III

8

Siehe India – Anti-Dumping Measure on Batteries from Bangladesh – Request for Consultations by Bangladesh, 2. Februar 2004, WT/DS306/1. 9 Im Berichtszeitraum wurden keine Verfahren nach Artikel 21.5 DSU abgeschlossen. Hierbei handelt es sich um Verfahren, die sich ausschließlich auf die rechtliche Überprüfung der Umsetzungsmaßnahmen hinsichtlich bereits ergangener Streitbeilegungsberichte beziehen. Entsprechende handelsdiplomatische Konsultationen wurden im Jahr 2004 in insgesamt acht bereits abgeschlossenen Verfahren geführt. 10 Deutscher Text in: Tietje (Anm. 3), 14–78; Benedek (Anm. 3), 61–154.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

837

GATT 1994) zu überprüfen. Zuvor präzisierte der Appellate Body in einem entwicklungspolitisch aufgeladenen Verfahren abschließend die WTO-rechtlichen Voraussetzungen für eine differenzierende Gewährung von Sonderzollpräferenzen an Entwicklungsländer. Neben der Interpretation der Kernvorschriften des GATT 1994, in deren Rahmen die Streitbeilegungsorgane bereits auf eine langjährig gefestigte Spruchpraxis zurückgreifen können, stehen inhaltliche Präzisierungen hinsichtlich der Auslegung der spezialisierten Warenhandelsübereinkommen zunehmend im Vordergrund der WTO-Streitbeilegung. Dementsprechend kommt den im Berichtszeitraum festzustellenden Auslegungsergebnissen zum Landwirtschaftsübereinkommen (Agreement on Agriculture, AoA),11 zum Subventionsübereinkommen (Agreement on Subsidies and Countervailing Measures, SCM)12 und zum Übereinkommen zur Durchführung des Artikel VI des GATT 1994 (Antidumping-Übereinkommen, ADÜ)13 eine stetig wachsende Bedeutung zu. a) European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries Das erstinstanzliche Panel hatte in diesem Verfahren eine Rechtsansicht vertreten, die unter den Streitparteien so kontrovers aufgenommen worden war, dass acht von insgesamt 18 Verfahrensbeteiligten aus verschiedenen Blickrichtungen (die Europäische Gemeinschaft (EG) als Beklagte sowie sieben Drittparteien) den Appellate Body anriefen, um eine Modifikation bzw. Aufhebung des Panelberichts zu erreichen.14 Die Kernfrage des Verfahrens lautete: Darf ein zollpräferenzgewährendes WTO-Mitglied im Rahmen der einseitigen Gewährung bestimmter Sonderzollpräferenzen zwischen einzelnen begünstigten

11

Deutscher Text in: Tietje (Anm. 3), 79–103; Benedek (Anm. 3), 155–181. Deutscher Text in: Tietje (Anm. 3), 144–179; Benedek (Anm. 3), 330–376. 13 Deutscher Text in: Tietje (Anm. 3), 119–143, Benedek (Anm. 3), 243–269. 14 Auch in der Literatur war der Bericht des Panel umfassend kritisiert worden, vgl. z. B. Robert Howse, The Death of the GSP? The Panel Ruling in the India–EC Dispute Over Preferences For Drug Enforcement, Bridges Monthly Review, vol. 8, 2004, 7–9; Steve Charnowitz/Lorand Bartels/Robert Howse/Jane Bradley/Joost Pauwelyn/Donald Regan, Internet Roundtable – The Appellate Body’s GSP Decision, World Trade Review, vol. 3, 2004, 239–265. 12

838

Frank Bayer und Henning Jessen

WTO-Entwicklungsland-Mitgliedern differenzieren? In dieser Frage hatte das Panel zunächst am 1. Dezember 2003 entschieden, dass WTO-Mitglieder, die Entwicklungsländern auf freiwilliger Basis Zollpräferenzen gewähren, gemäß Absatz 2 lit. a i. V. m. Fußnote 3 der sog. Enabling Clause15 grundsätzlich nicht zwischen verschiedenen Begünstigten aus dem Kreise der Entwicklungsländer differenzieren dürften.16 Die EG hatte gegen diese äußerst strenge Interpretation der Enabling Clause am 8. Januar 2004 Revision eingelegt, da sie im Rahmen ihres zwischen 2001 bis 2004 wirksamen Präferenzsystems (Generalized System of Preferences, GSP) durch spezielle Anreizvereinbarungen bestimmte Sonderzollpräferenzen an einen ausgewählten Kreis von zwölf begünstigten Ländern zur Bekämpfung des organisierten Drogenhandels gewährte und diese differenzierende Praxis auch in der Zukunft aufrecht erhalten wollte. Der Appellate Body veröffentlichte daraufhin (unter Beteiligung des damaligen Vorsitzenden Georges Abi-Saab sowie Luiz Olavo Baptista und Giorgio Sacerdoti) am 7. April 2004 eine ausgewogene(re) Entscheidung, die den Bericht des Panel in weiten Teilen inhaltlich modifizierte.17 Vor allem in der zentralen Frage des Verfahrens – der Legitimation für differenzierende Formen der Zollpräferenzgewährung – kam die Revisionsinstanz zu einem abweichenden Auslegungsergebnis, das wesentlich deutlicher am Sinn und Zweck der (bereits zuvor immer flexibel gehandhabten) Enabling Clause ausgerichtet war. Die im Schwerpunkt historisch hergeleitete Auslegung des Panel wurde damit zurückgewiesen. Der umfassend präzisierte Begründungsweg des Appellate Body war jedoch nicht automatisch mit einem geänderten praktischen Ausgang des Verfahrens gleichzusetzen. Vielmehr sollte sich die GSP-Entscheidung des

15

Siehe zum Wortlaut: Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, Decision of the Contracting Parties of 20 November 1979, GATT BISD 26S/203–205; vgl. näher Abdulqawi A. Yusuf, Differential and More Favourable Treatment – The GATT Enabling Clause, Journal of World Trade (JWT), vol. 14, 1980, 448–507. 16 Vgl. zusammenfassend zum Bericht des Panel Szodruch/Zoellner (Anm. 1), 677 ff.; ausführlich m. w. N. Henning Jessen, Zollpräferenzen für Entwicklungsländer: WTOrechtliche Anforderungen und Selektivität und Konditionalität – Die GSP-Entscheidung des Panel und Appellate Body, Beiträge zum Transnationalen Wirtschaftsrecht, Heft 27, 17 ff., abrufbar unter: http://www2.jura.uni-halle.de/telc/publikationen.html. 17 European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Appellate Body Report vom 7. April 2004, WT/DS246/AB/R; vgl. dazu Jessen (Anm. 16), 29 ff.; Charnowitz/Bartels/Howse/Bradley/Pauwelyn/ Regan (Anm. 14), 239 ff.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

839

Appellate Body vor allem zukunftsweisend für die Gestaltung kommender Präferenzsysteme erweisen.18 In der Prüfungschronologie entschied der Appellate Body in der Frage der Beweislastverteilung zunächst noch in inhaltlicher Übereinstimmung mit dem Panel und ordnete die Enabling Clause unter Berufung auf Sinn, Zweck und Zielsetzung dieses Rechtsinstruments (als „integraler Bestandteil“ der gesamten WTO-Rechtsordnung) grundsätzlich als Ausnahmevorschrift ein.19 Als Ausnahme vom Meistbegünstigungsprinzip des Artikel I:1 GATT 1994 fasse die Enabling Clause die „positiven Entwicklungsbemühungen“ der WTO-Mitglieder zusammen.20 Auf Grund der „fundamentalen Bedeutung“ der Enabling Clause für die Entwicklungsziele des WTO-Systems nahm der Appellate Body allerdings eine Modifikation hinsichtlich der prozessualen Verpflichtungen einer sich auf die Verletzung dieses Rechtsinstruments berufenden Partei vor.21 Aus Gründen des due process oblag es somit Indien, den behaupteten Verstoß gegen spezifische Vorschriften der Enabling Clause als Rechtsbasis der Klage so eindeutig wie möglich zu identifizieren, mithin die als WTO-rechtswidrig gerügten drug arrangements der EG in eine genaue Beziehung zu den vermeintlich verletzten Vorschriften der Enabling Clause zu setzen.22 Entscheidend war daraufhin die Auslegung des in Fußnote 3 zu Absatz 2 lit. a der Enabling Clause genannten Tatbestandsmerkmals non-discriminatory. Hier 18

Dies ist insbesondere am Inhalt der – eindeutig auf den Bericht des Appellate Body reagierenden – neuen GSP-Verordnung der EG für den Zeitraum vom 1. April 2005 bis zum 31. Dezember 2008 erkennbar, vgl. dazu Henning Jessen, „GSP Plus“ – Zur WTOKonformität des zukünftigen Zollpräferenzsystems der EG, TELC Policy Papers on Transnational Economic Law, No. 9, 2004, abrufbar unter: http://www2.jura.uni-halle. de/telc/policy_papers.html; vgl. kritisch hierzu Petros C. Mavroidis, Cosi Fan Tutti [sic] – Tales of Trade and Development, Development and Trade, GYIL, vol. 47, 2004, 39, 43–44. 19 Vgl. insgesamt zu diesen Ausführungen European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries (Anm. 17), Tz. 90–98. 20 Id., Tz. 92, vgl. zusammenfassend zum weitreichenden Querschnittsbereich des trade and development im Wirtschaftsvölkerrecht: Martin Michaelis/Henning Jessen, § 31 (WTO und Entwicklung), in: Meinhard Hilf/Stefan Oeter (Hrsg.), WTO-Recht – Rechtsordnung des Welthandels, 2005, 601–621. 21 European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries (Anm. 17), Tz. 106. 22 Id., Tz. 113–118; in seinem Klageschriftsatz hatte Indien jedoch nach Ansicht des Appellate Body gemäß Artikel 3.10 DSU „in gutem Glauben“ die Unvereinbarkeit der EG-drug arrangements insbesondere mit Abs. 2 lit. a i. V. m. Fn. 3 der Enabling Clause ausführlich dargelegt, vgl. id., Tz. 122.

840

Frank Bayer und Henning Jessen

stellte der Appellate Body zunächst fest, dass zwischen Indien und der EG Übereinstimmung dahingehend vorliege, dass jedenfalls nicht zwischen solchen Entwicklungsländern diskriminiert werden sollte, die sich im Hinblick auf ihre Entwicklungsbedürfnisse in einer „ähnlichen Lage“ befänden. Zwischen den Parteien sei dagegen streitig, auf welcher rechtlichen Basis die Bestimmung der „ähnlichen Lage“ genau zu erfolgen habe.23 Ausgehend von diesem Befund wandte sich der Appellate Body wieder dem Wortlaut des Absatz 2 lit. a i. V. m. Fußnote 3 der Enabling Clause zu. Aus dessen Wortlaut sei nicht notwendigerweise das Erfordernis einer identischen Gewährung von Zollpräferenzen gegenüber allen Entwicklungsländern zu folgern.24 Aus der Gesamtsystematik aller Absätze dieses Rechtsinstruments (insbesondere Absatz 3 lit. c der Enabling Clause) ergebe sich vielmehr ausschließlich die welthandelsrechtliche Verpflichtung, Vorzugs- und Sonderbehandlungen für Entwicklungsländer als „positive Reaktion“ im Hinblick auf ihre Entwicklungs-, Finanz- und Handelsbedürfnisse zu gestalten.25 Nach dem Wortlaut des Absatzes 3 lit. c Enabling Clause beziehe sich die Vorschrift jedoch nicht ausdrücklich auf „alle Entwicklungsländer“ oder „jedes einzelne Entwicklungsland“ und enthalte deshalb auch keine Verpflichtung zum Einschluss aller Entwicklungsländer.26 Eine Differenzierung zwischen einzelnen begünstigten Entwicklungsländern sei deshalb grundsätzlich möglich.27 Die Auslegungsergebnisse des Panel zu Absatz 2 lit. a i. V. m. Fußnote 3 Enabling Clause wurden durch den Appellate Body folglich aufgehoben. Der grundsätzlich bestehenden Differenzierungsmöglichkeit seien dennoch tatbestandliche Grenzen zu setzen: Eine Differenzierung anhand von Entwicklungsbedürfnissen habe sich insbesondere an objektiven Maßstäben zu orientie-

23

Id., Tz. 153. Id., Tz. 156. 25 Id., Tz. 158. 26 Id., Tz. 159; außerdem bestehe zwischen den Parteien Einigkeit über den heterogenen Gesamtcharakter der Entwicklungsländer und ihre wechselnden und unterschiedlichen Entwicklungs-, Finanz- und Handelsbedürfnisse, Tz. 160. 27 An anderer Stelle (vgl. id., Tz. 171) wurde die Möglichkeit einer Differenzierung zwischen einzelnen Begünstigten auch aus der Tatsache hergeleitet, dass in dem Abs. 2 lits. a und d Enabling Clause bereits in diesem Rechtsinstrument selbst eine Differenzierung zwischen „Entwicklungsländern“ und der Gruppe der „am wenigsten entwickelten Länder“ anerkannt sei; vgl. ausführlicher zu weiteren systematischen Argumenten des Appellate Body, Jessen (Anm. 16), 32 f. 24

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

841

ren.28 Aus Absatz 3 lit. c Enabling Clause folge das Erfordernis einer „positiven Reaktion“, folglich müsse die sonderpräferenzielle Behandlung im Einzelfall darauf ausgerichtet sein, die Lage in den begünstigten Ländern im Hinblick auf ihre spezifischen Bedürfnisse tatsächlich zu verbessern, und es müsse ein „ausreichender Zusammenhang“ zwischen der gemäß Absatz 2 Enabling Clause gestatteten Vorzugsbehandlung sowie der „Wahrscheinlichkeit einer Linderung des durch die Vorzugsbehandlung angesprochenen Entwicklungs-, Finanz- oder Handelsbedürfnisses“ existieren.29 Auf die Wirkungsweise der GSP-Systeme übertragen führe dies zu der Konsequenz, dass ein bestimmtes „Entwicklungsbedürfnis“ durch die Gewährung bestimmter Sonderzollpräferenzen in effektiver Weise angesprochen werden müsse.30 Falls also die Zollpräferenzen eines Industriestaates „positiv“ auf das entsprechende Entwicklungsbedürfnis reagierten und alle diejenigen Entwicklungsländer Begünstigte des GSP-Systems seien, die das entsprechende Entwicklungsbedürfnis miteinander teilten, so seien Zollpräferenzen selbst dann non-discriminatory, wenn sie nicht ausnahmslos allen Entwicklungsländer zugute kämen.31 Die drug arrangements der EG konnten folglich nach dem Prüfungsmaßstab des Appellate Body nur dann non-discriminatory sein, wenn sie allen GSP-Begünstigten zur Verfügung standen, die sich im Hinblick auf die Bekämpfung des illegalen Anbaus von Drogen und der Bekämpfung des organisierten Drogenhandels in einer „ähnlichen Lage“ befinden.32 Nach dieser deutlich vom Bericht des Panel abweichenden Argumentationslinie waren die letztlich übereinstimmenden Endergebnisse praktisch vorgegeben: Die drug arrangements zeigten keinerlei objektive Kriterien und keinen transparenten Überprüfungsmechanismus zur Aufnahme oder zum Ausschluss 28

Der „Standard des WTO-Übereinkommens“ oder der „Rechtsinstrumente anderer internationaler Organisationen“ sei hier möglicher objektiver Anhaltspunkt, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries (Anm. 17), Tz. 163. 29 Id., Tz. 164: “As such, in our view, the expectation that developed countries will ‘respond positively’ to the ‘needs of developing countries’ suggests that a sufficient nexus should exist between, on the one hand, the preferential treatment provided under the respective measure authorized by paragraph 2, and, on the other hand, the likelihood of alleviating the relevant ‘development, financial [or] trade need’.” 30 Id. 31 Id., Tz. 165. Zusätzlich dürfen die Zollpräferenzen nach Abs. 3 lit. a Enabling Clause keine ungerechtfertigte Bürde für andere Mitglieder bedeuten, vgl. Tz. 168. 32 Id., Tz. 180.

842

Frank Bayer und Henning Jessen

„ähnlich betroffener“ Begünstigter aus dem Kreis der Entwicklungsländer.33 Vielmehr existierte überhaupt keine Rechtsquelle des EG-Rechts, aus der sich die konkrete Zusammenstellung der Begünstigten für die betreffenden Sonderzollpräferenzen erklären ließ. Der Appellate Body stellte deshalb konsequenterweise eine akute Änderungsbedürftigkeit der GSP-Verordnung der EG fest, da sie in ihrer von 2001 bis 2004 geltenden Fassung die Aufnahme oder den Ausschluss von zu begünstigenden Entwicklungsländern nicht auf transparenter Basis ermöglichte. Eine derartig „geschlossene Liste“ von Begünstigten könne nicht den Einschluss aller vom illegalen Drogenhandel in ähnlicher Weise betroffenen Entwicklungsländer sicherstellen.34 Da die EG folglich keinerlei objektive Kriterien zum Einschluss ähnlich betroffener Entwicklungsländer vorweisen konnte, ordnete der Appellate Body die drug arrangements auf Grund ihrer Intransparenz im Ergebnis als diskriminierend und somit als unvereinbar mit Fußnote 3 Enabling Clause ein. Folglich kam eine Rechtfertigung der drug arrangements über Absatz 2 lit. a Enabling Clause auch nach dem Prüfungsmaßstab des Appellate Body nicht in Frage. Das Ergebnis des Panel wurde damit bestätigt, dies allerdings – auf Grund der abweichenden rechtlichen Interpretation des Begriffs non-discriminatory durch den Appellate Body – „aus anderen Gründen“. b) Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain Die anderen beiden GATT-Verfahren des Berichtszeitraums sind aus „systemischer“ Gesamtsicht insgesamt weniger auffallend als das vorangegangene GSP-Verfahren. Thematisch liegen ihnen bilaterale Handelsstreitigkeiten zwischen regional benachbarten WTO-Mitgliedern zugrunde, die vor allem Fragen der Inländergleichbehandlung gemäß Artikel III GATT 1994 betrafen. Trotz der Tatsache, dass seit Gründung der WTO-Rechtsordnung in insgesamt schon über 90 Verfahren bestimmte WTO-rechtliche Detailfragen der Inländergleichbehandlung thematisiert wurden35 und demgemäß in diesen Rechtsfragen eine bereits umfassend gefestigte WTO-Rechtsprechung existiert, treten immer 33

Id., Tz. 182. Id., Tz. 187: “Such a ‘closed list’ of beneficiaries cannot ensure that the preferences under the Drug Arrangements are available to all GSP beneficiaries suffering from illicit drug production and trafficking.” 35 Vgl. Annual Report 2004 (Anm. 6), Tz. 93. 34

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

843

wieder neue Einzelprobleme bezüglich der Auslegung des Artikel III GATT 1994 und der inhaltlich mit dieser Norm oftmals unweigerlich verknüpften Rechtsvorschriften (vgl. z. B. Artikel II, X, XI, XX und XXI GATT 1994) auf.36 In einer der vielen kanadisch-amerikanischen Handelsstreitigkeiten hatte ein mit Claudia Orozco, Alan Matthews und Hanspeter Tschäni besetztes Panel im Berichtszeitraum sowohl über export- als auch über importrechtliche Maßnahmen der kanadischen Regierung in Bezug auf den bilateralen Weizen- und Gerstehandel zwischen Kanada und den USA zu entscheiden.37 Die USA hatten schon seit geraumer Zeit die umfangreichen handelspolitischen Kompetenzen des kanadischen Weizenrates (Canadian Wheat Board, CWB) kritisiert. Diese Institution besitzt innerhalb Kanadas ein Monopol für die Vermarktung der Weizen- und Gersteproduktion der rund 85.000 kanadischen Getreidefarmer. Diese sind im Rahmen einer als innerstaatliche Defizitgarantie operierenden Regelung gesetzlich verpflichtet, dem CWB ihre Produktion gegen einen staatlich garantierten Preis zu verkaufen (sog. supply management system). Das CWB ist auf Grund dieser Regelung der weltweit größte Einzelverkäufer von Getreide und kann somit auch die Preisgestaltung umfassend beeinflussen. Die USA vertraten vor allem die Ansicht, dass die Existenz des CWB gegen den Nicht-Diskriminierungsgrundsatz der GATT-Vorschriften über Staatshandelsunternehmen (vgl. Artikel XVII: 1 a) und b) GATT 1994) verstießen.38 Außerdem würden die amerikanischen Weizenproduzenten durch verschiedene lokale Maßnahmen des CWB benachteiligt, die unvereinbar mit Artikel III: 4 GATT 1994 und Artikel 2 des Agreement on Trade-Related Investment Measures seien. Gerügt wurde z. B. ein Vermischungsverbot (grain segregation) zwischen einheimischer Produktion und Importweizen in den kanadischen Getreidesilos.39 Außerdem werde kanadisches Getreide im Rahmen des innerstaatlichen Weitertransports durch die kanadische Eisenbahn bevorzugt und preislich günstiger behandelt.40

36

Siehe hierzu insgesamt Gaëtan Verhoosel, National Treatment and WTO Dispute Settlement – Adjudicating the Boundaries of Regulatory Autonomy, 2002. 37 Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, Panel Report vom 6. April 2004, WT/DS276/R. 38 Vgl. zur diesbezüglichen Argumentation der USA id., Tz. 4.20 ff., 4.179 ff. 39 Id., Tz. 4.203, 4.209 ff. 40 Id., Tz. 4.210 ff., 4.213 ff.

844

Frank Bayer und Henning Jessen

Das Panel konnte zwar keine Verstöße Kanadas gegen die staatshandelsrechtlichen Vorschriften des GATT 1994 feststellen,41 es sah jedoch in den streitgegenständlichen Regelungen des Canada Grain Act, der Canada Grain Regulations und des Canada Transportation Act teilweise Verstöße Kanadas gegen das Gebot der Inländergleichbehandlung i. S. v. Artikel III: 4 GATT 1994, deren diskriminierenden Charakter Kanada auch nicht über Artikel XX d) GATT 1994 rechtfertigen konnte.42 Da die USA jedoch hinsichtlich ihres primären Verfahrensziels – nämlich einer grundsätzlichen Feststellung der welthandelsrechtlichen Unvereinbarkeit der Existenz des CWB mit den staatshandelsrechtlichen Regelungen des Artikel XVII GATT 1994 – nicht erfolgreich waren, ließen sie die erstinstanzliche Auslegung des Artikel XVII: 1 a) und b) GATT 1994 durch den mit John Lockhart, Georges Abi-Saab und Yasuhei Taniguchi besetzten Appellate Body nochmals überprüfen.43 Kanada war dagegen mit dem analytischen Ansatz des Panel nicht einverstanden, da Artikel XVII: 1 b) GATT 1994 vor Artikel XVII: 1 a) GATT 1994 geprüft worden war.44 Der Appellate Body bestätigte jedoch ausnahmslos den pragmatischen Lösungsweg des Panel. Insbesondere reichten auch der Revisionsinstanz die durch die USA vorgelegten Dokumente nicht aus, um auf eine generell diskriminierende Funktion des CWB und damit einen Verstoß Kanadas gegen Artikel XVII: 1 GATT 1994 insgesamt erkennen zu können.45 Die Berichte des Panel und die Modifikationen des Appellate Body wurden durch den DSB am 27. September 2004 angenommen. c) Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes Auch dieses Verfahren, das sich auf den ersten Blick mit bereits bekannten Rechtsfragen zu Artikel III: 2, 4 GATT 1994 beschäftigt, die in ähnlicher Form 41

Id., Tz. 6.29–6.151. Id., Tz. 6.159 ff. im Hinblick auf die teilweise GATT-Widrigkeit des Abschnitts 57 c) des Canada Grain Act; Tz. 6.253 ff. zur Analyse des Abschnitts 56 Abs. 1 der Canada Grain Regulations und der erfolglosen Berufung Kanadas auf Art. XX d) GATT 1994, Tz. 6.298 ff.; sowie Tz. 6.322 ff. für die Ausführungen des Panel zu den diskriminierenden Abschnitten 150 Abs. 1 und 2 des Canada Transportation Act. 43 Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, Appellate Body Report vom 30. August 2004, WT/DS276/R, Tz. 28 ff. 44 Id., Tz. 44 ff. 45 Id., Tz. 135 ff. (insbesondere Tz. 179 ff.). 42

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

845

bereits in den Verfahren Japan – Alcoholic Beverages46 und Korea – Beef47 erörtert wurden, bezieht sich vornehmlich auf die regionale Einhaltung des WTORechts im bilateralen Warenhandel zwischen zwei Nachbarstaaten. Honduras rügte – übrigens beraten durch das sog. Advisory Centre on WTO Law – die WTO-Rechtswidrigkeit bestimmter verwaltungstechnischer Maßnahmen, die beim Import von Zigaretten in die dominikanische Republik zu beachten sind. Der Unterschied zu schon früher erörterten Rechtsfragen der Inländergleichbehandlung i. S. d. Artikel III: 2, 4 GATT 1994 bestand nach der Argumentation Honduras vor allem darin, dass die verwaltungstechnischen Voraussetzungen für den Import von Zigaretten in die Dominikanische Republik (zumindest teilweise) bereits zu höheren Transaktionskosten führten, bevor die zum Import bestimmten Zigarettenpackungen überhaupt die Grenze der Dominikanischen Republik erreichten. Honduras argumentierte gegenüber dem mit Elbio Rosselli, Tae-Yul Cho und Cristian Espinosa Canizares besetzten Panel z. B., dass das Erfordernis eines Stempels (der die Beachtung der Einfuhrsteuervorschriften der Dominikanischen Republik bestätigen soll) zu höheren Kosten für Importeure führe, obwohl die Regelung formal auch für die einheimischen Anbieter gelte.48 Eine Rechtfertigung dieser Verletzung des Artikel III: 4 GATT 1994 über Artikel XX d) GATT 1994 kam nach Ansicht des Panel nicht in Frage, so dass dieser Vorwurf im Verfahrensverlauf genauso bestätigt wurde49 wie die Unvereinbarkeit bestimmter dominikanischer Sonderverbrauchssteuern und -gebühren für importierte Tabakwaren (so z. B. eine sog. transitional surcharge for econo-

46 Vgl. Japan – Taxes on Alcoholic Beverages, Appellate Body Report vom 4. Oktober 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R; siehe hierzu schon im Überblick Christoph Hermes, Die Rechtsprechung des WTO-Streitbeilegungsgremiums in den Jahren 1995–1999, GYIL, vol. 42, 1999, 530, 537 f. 47 Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Appellate Body Report vom 11. Dezember 2000, WT/DS161/AB/R; vgl. zum Inhalt dieses Verfahrens im Überblick Janine Gall/Henning Jessen, Die Rechtsprechung des WTOStreitbeilegungsgremiums im Jahre 2000, GYIL, vol. 43, 2000, 355, 359 f. 48 Vgl. hierzu Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, Panel Report vom 26. November 2004, WT/DS302/R, Tz. 7.198, 7.232 f. 49 Id., Tz. 7.156 ff. (insbesondere 7.205 ff.).

846

Frank Bayer und Henning Jessen

mic stabilization, eine foreign exchange fee und das Erfordernis der Hinterlegung einer Kaution, sog. bond requirement).50 Unterstützt von den USA, mit denen die Dominikanische Republik parallel zum Verfahren ein zum 1. Januar 2005 in Kraft tretendes Freihandelsabkommen vereinbarten, hatte die Dominikanische Republik insbesondere argumentiert, ihre auf den Verkauf von Zigaretten gesondert erhobenen Verbrauchssteuern und -gebühren seien eine nach Artikel XV: 9 a) GATT 1994 gestattete Kontrolle bzw. Beschränkung des Zahlungsverkehrs.51 Nach dem Abschluss der in dieser Situation gemäß Artikel XV: 2 GATT 1994 vorgesehenen Konsultationen mit dem Internationalen Währungsfonds (IWF) befand das Panel jedoch, dass die auf dem Territorium der beklagten Partei erhobenen Einfuhrsondergebühren nicht über Artikel XV: 9 a) GATT 1994 gerechtfertigt werden konnten, da sie weder eine Kontrolle bzw. Beschränkung des Zahlungsverkehrs i. S. d. dieser Vorschrift seien, noch inhaltlich mit den Vorschriften des Abkommens über den IWF im Einklang stünden.52 Mit diesem Ergebnis wurden insgesamt umfangreiche Verstöße der Dominikanischen Republik gegen die Artikel II: 1 b), III: 2, III: 4, X: 1, X: 3 a), XI: 1 GATT 1994 festgestellt.53 Da die Dominikanische Republik keine Revision zum Appellate Body ankündigte, ist davon auszugehen, dass der Bericht des Panel in der ersten Sitzung des DSB im Jahre 2005 angenommen wird. Eine in der WTO-Streitbeilegung bereits hinlänglich bekannte, tatbestandlich weite Auslegung der Inländergleichbehandlungsvorschriften wurde damit durch dieses – zwischen zwei Entwicklungsländern – geführte Verfahren ebenso bestätigt wie die positiv hervorzuhebende Funktion des Advisory Centre on WTO Law,54 ohne dessen rechtsberatende Unterstützung der Klägerstaat Honduras das Verfahren vermutlich nicht in einer vergleichbar effektiven Form hätte führen können. 50

Id., Tz. 7.24 ff. (zur transitional surcharge fee); Tz. 7.105 ff. (zur foreign exchange fee); und Tz. 7.234 ff. (zum Kautionserfordernis). 51 Id., Tz. 4.115 ff. 52 Id., Tz. 7.123 ff. (zu Art. XV: 9 a) GATT 1994); bzw. Tz. 7.146 ff. (zum Abkommen über den IWF). 53 Id., Tz. 7.25, 7.40, 7.73, 7.86, 7.90, 7.115, 7121 f., 7.145, 7.154 f. (zu den Verstößen gegen Art. II: 1 b) GATT 1994); Tz. 7.358, 7.364 (zu Art. III: 2 GATT 1994); 7.388, 7.394 (zu Art. X: 3 a) GATT 1994); Tz. 7.420 (zu Art. X: 1 GATT 1994). 54 Siehe hierzu die Ressourcen auf der Internetpräsenz des Advisory Centre on WTO Law, abrufbar unter: http://www.acwl.ch/e/dispute/wto_e.aspx; weitere Nachweise auch bei Michaelis/Jessen (Anm. 20), 601, 618 f., Rn. 51 ff.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

847

2. Landwirtschaftsübereinkommen/Subventionsund Ausgleichsmaßnahmenübereinkommen Das Übereinkommen über die Landwirtschaft (AoA) bietet das größte welthandelsrechtliche Konfliktpotenzial im Rahmen der WTO-Warenhandelsabkommen, da in diesem – jahrzehntelang von systemfremden Protektionismus geprägten – Handelssektor traditionelle politische Zielkonflikte existieren, die sich nur äußerst langsam wieder „de-materialisieren“ lassen.55 Dies zeigt sich erst Recht seit dem Auslaufen der sog. peace clause des Artikel 13 AoA. Diese „Friedensklausel“ ließ bis zum 31. Dezember 2003 (vgl. Artikel 1 lit. f AoA) keine WTO-rechtliche Überprüfung von landwirtschaftsbezogenen Ausgleichszollmaßnahmen oder AoA-konformen internen Unterstützungsmaßnahmen bzw. Ausfuhrsubventionen zu.56 Der Berichtszeitraum war folglich das erste Jahr, in dem die unvermeidlichen Überschneidungsbereiche zwischen dem AoA und dem Übereinkommen über Subventionen und Ausgleichsmaßnahmen (SCM) ungehindert nach außen treten konnten. Aus diesem Grund werden nachfolgend das AoA und das SCM unter einer Überschrift zusammengefasst, obwohl das SCM bereits seit Gründung der WTO-Rechtsordnung Gegenstand einiger überaus komplexer Streitbeilegungsverfahren war, die nicht zwangsläufig mit agrarwirtschaftlichen Implikationen verknüpft waren.57

55

Dazu insgesamt Henning Jessen, § 19 (Landwirtschaft), in: Hilf/Oeter (Anm. 20), 327–346; Hans-Joachim Prieß/Christian Pitschas, Das Übereinkommen über die Landwirtschaft, in: Hans-Joachim Prieß/Christian Pitschas (Hrsg.), WTO-Handbuch, 2003, 169–209. 56 Vgl. im Überblick Jessen (Anm. 55), 338, Rn. 45; Prieß/Pitschas (Anm. 55), 202, Rn. 115; Melaku Geboye Desta, The Law of International Agricultural Products, 2002, 440 f. 57 Siehe zuletzt Szodruch/Zoellner (Anm. 1), 680–682; davor schon Alexander Szodruch/Carl-Sebastian Zoellner, Die Rechtsprechung des WTO-Streitbeilegungsgremiums im Jahre 2002, GYIL, vol. 45, 2003, 528–542; Frank Bayer/Henning Jessen, Die Rechtsprechung des WTO-Streitbeilegungsgremiums im Jahre 2001, GYIL, vol. 44, 679, 686–688; Gall/Jessen (Anm. 47), 365–372. Zur kritischen Auseinandersetzung mit den SCM-Entscheidungen der WTO-Panel und des Appellate Body siehe J. Michael Showalter, A Cruel Trilemma: The Flawed Political Economy of Remedies to WTO Subsidies Diputes, Vanderbilt Journal of Transnational Law, vol. 37, 2004, 587–630; zum SCM-Übereinkommen allgemein z. B. Tobias Bender, § 12 (Subventionen), in: Hilf/Oeter (Anm. 20), 235, 239 ff.; Christian Pitschas, Das Übereinkommen über Subventionen und Ausgleichsmaßnahmen, in: Prieß/Berrisch (Anm. 55), 429–478.

848

Frank Bayer und Henning Jessen

Im Berichtszeitraum zeigte sich zum einen, dass die Streitbeilegungsorgane die Klärung „systemischer“ Fragen im rechtlichen Verhältnis zwischen AoA und SCM scheuen und stattdessen (zumindest teilweise) prozessökonomische Gesichtspunkte zur Vermeidung komplexer Querschnittsprobleme heranziehen. Zum anderen wurde deutlich, dass ein volkswirtschaftlich weit fortgeschrittenes („agrar-industrielles“) Schwellenland wie Brasilien, das nach den Grundsätzen der Selbstdesignation und im Umkehrschluss zu Artikel XI: 2 des WTOÜbereinkommens in welthandelsrechtlicher Hinsicht weiterhin als Entwicklungsland angesehen werden muss, das Ende der „Friedensklausel“ des AoA umfassend für sich zu nutzen wusste. Die schleppende und schrittweise Liberalisierung des globalen Agrarhandels erfährt auf diese Weise durch die Ergebnisse der WTO-Streitbeilegung zumindest mittelbar einige „Reformimpulse“, auch wenn diese (noch) nicht den von Seiten der Entwicklungsländer seit Jahrzehnten geforderten verbesserten Marktzugang im Agrarbereich und eine umfassende Disziplinierung des globalen Agrarhandels im Rahmen des GATT 1994 bedeuten.58 a) United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada Mit dieser ersten Entscheidung des Appellate Body im Berichtszeitraum wurde ein vorläufiger Schlusspunkt unter die sog. lumber disputes gesetzt.59 Dieser Abschluss gilt jedenfalls für diejenigen Verfahren, in denen es allein um die Zulässigkeit amerikanischer Ausgleichsabgaben für Weichholz aus Kanada

58 Vgl. hierzu – im Kontext der beiden Großverfahren zur Subventionierung von Baumwolle (durch die USA) und von Zucker (durch die EG) – eine Aussage des brasilianischen WTO-Botschafters Luiz Felipe de Seixas Correa, der im Übrigen einer der insgesamt vier offiziellen Kandidaten für die Nachfolge des noch bis zum 31. August 2005 amtierenden WTO-Generalsekretärs Supachai Panitchpakdi ist: “We didn’t bring these cases to interfere with the WTO negotiations, but without them the EU and US would never change their policies.” WTO Rules Against EU Sugar, U.S. Cotton Support (Update 2), Bloomberg.com vom 8. September 2004, zitiert in: Bridges Weekly Trade Digest, vol. 8, No. 30, 15. September 2004, abrufbar unter: http://www.ictsd.org/weekly/ 04-09-15/story1.htm. 59 United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, Appellate Body Report vom 19. Januar 2004, WT/ DS275/AB/R. Vgl. hierzu auch Mavroidis (Anm. 18), 54–55.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

849

ging.60 Inhaltlich ging es u. a. um die Frage, ob die durch die kanadischen Provinzen gewährten Abholzungsrechte (stumpage) – wie nach der Auffassung des US Department of Commerce (USDOC) – WTO-rechtlich als finanzielle Beihilfen im Sinne von Artikel 1.1 lit. a iii) SCM einzuordnen waren. Der mit Luiz Olavo Baptista, John Lockhart und Giorgio Sacerdoti besetzte Appellate Body kam diesbezüglich zum gleichen Ergebnis wie zuvor schon das Panel61 und sah in der Gewährung der Abholzungsrechte eine WTO-rechtswidrige finanzielle Beihilfe gemäß Artikel 1.1 SCM. Die Interpretation des Panel in Bezug auf Artikel 14 lit. d SCM verwarf der Appellate Body hingegen als unter systematischen und teleologischen Gesichtspunkten zu restriktiv.62 Die untersuchenden Behörden könnten zur Berechnung des erlangten Vorteils im Sinne des Artikel 14 lit. d SCM sehr wohl – wie auch der Ansatz des USDOC – andere Daten als ausschließlich den privaten Markt des Ankaufslandes heranziehen.63 Voraussetzung für diese Art der Berechnung sei jedoch die Berücksichtigung von zwei Voraussetzungen: Einerseits müsse die prüfende Behörde feststellen, dass die Preise im Ankaufsland angesichts der dominierenden Stellung staatlicher Anbieter am Markt verzerrt sind. Andererseits müsse die Berechnung gewährleisten, dass sie den aktuell herrschenden Marktbedingungen im Land des Ankaufs hinreichend Rechnung trage (relates or refers to, or is connected with).64 Insofern verwarf der Appellate Body auch den durch das Panel noch gerügten Umstand, dass die Berechnung der erlangten Vorteile und der Ausgleichszahlungen durch das USDOC nicht mit den Vorgaben der Artikel 10, 14, 14 lit. d und 32.1 SCM übereinstimme.65 60

Siehe dazu United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, Panel Report vom 29. August 2003, WT/ DS257/R, dargestellt bei Szodruch/Zoellner (Anm. 1), 681 f.; zuvor auch United States – Preliminary Determination with Respect to Certain Softwood Lumber from Canada, Panel Report vom 27. September 2002, WT/DS/236/R, dargestellt bei Szodruch/Zoellner (Anm. 57), 529 ff. 61 Zur Entscheidung des Panel in diesem Punkt siehe United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada (Anm. 60), Tz. 7.30; sowie die Darstellung der Panel-Entscheidung in dieser Frage bei Szodruch/Zoellner (Anm. 1), 681 f. 62 United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada (Anm. 59), Tz. 69. 63 Id., Tz. 96. 64 Id., Tz. 103. 65 Id., Tz. 121. Diese Einschätzung äußerten bereits Szodruch/Zoellner (Anm. 1), 682, Fn. 50, in der vorjährigen Besprechung des Panelberichts.

850

Frank Bayer und Henning Jessen

Dem Appellate Body sei es jedoch im Übrigen nicht möglich, auf Grund der ungenügenden und unbestritten verfügbaren Fakten eine sofortige Klärung der streitigen Punkte im Sinne von Artikel 3.3 DSU herbeizuführen.66 Daher bezog der Appellate Body keine weitere Position hinsichtlich der Fragen, ob die Berechnung des erlangten Vorteils mit den rechtlichen Vorgaben des Artikel 14 lit. d SCM übereinstimme, bzw. ob die Erhebung von Ausgleichszahlungen mit Artikel 10, 32.1 SCM vereinbar sei. Letztlich sah der Appellate Body – entgegen der Ansicht des Panel – in der unterlassenen Feststellung der ökonomischen pass through-Effekte hinsichtlich der ursprünglichen Zurverfügungstellung für spätere Verarbeiter wie Sägemühlenbetreiber – zumindest in Bezug auf arm’s length sales of lumber – keinen Verstoß gegen die Artikel 10 und 32.1 SCM bzw. Artikel VI: 3 GATT 1994.67 b) United States – Subsidies on Upland Cotton Im ersten der beiden Großverfahren aus dem Querschnittsbereich zwischen AoA und SCM rügte Brasilien die WTO-Rechtswidrigkeit US-amerikanischer Gesetzgebung, die seit 1999 zur internen Unterstützung der verarbeitenden und exportierenden US-Baumwollindustrie (US upland cotton industry) eingesetzt wurde.68 Die innerstaatliche Unterstützung wirke sich seit ihrer Verabschiedung schädigend auf die brasilianische Baumwollindustrie aus und verletze Brasilien daher in seinen WTO-rechtlich garantierten Handelsvorteilen. Gleichzeitig wies Brasilien auf das Schädigungspotenzial weiterer geplanter US-Baumwollsubventionen für den Zeitraum 2003–2007 hin.69 Am Cotton-Verfahren beteiligten sich insgesamt 13 Drittparteien. Unter den Drittparteien waren mit den afrikanischen WTO-Mitgliedern Benin und Tschad z. B. auch solche am wenigsten entwickelte Länder beteiligt, für die der Export von Baumwolle existenz66

United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada (Anm. 59), Tz. 113. 67 Id., Tz. 127. Bezüglich der arm’s length sales of logs bestätigte der Appellate Body allerdings die Entscheidung des Panel. 68 United States – Subsidies on Upland Cotton, Panel Report vom 8. September 2004, WT/DS267/R. 69 Vgl. insgesamt id., Tz. 3.1–3.3; über dieses Argument eines threat of serious prejudice (vgl. Fn. 13 des SCM-Übereinkommens) entschied das Panel jedoch später – angesichts der vorangegangenen Auslegungsergebnisse und aus prozessökonomischen Gründen – nicht mehr gesondert, vgl. dazu Tz. 7.1503.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

851

sichernd ist.70 Am 19. Mai 2003 wurde ein mit Dariusz Rosati, Mario Matus und Daniel Moulis besetztes Panel eingesetzt, das über mutmaßliche Verstöße der USA gegen die Artikel 5 lit. c, 6.3 lits. b, c und d, 3.1 lit. a, 3.1 lit. b und 3.2 SCM, Artikel 3.3, 7.1, 8, 9.1 und 10.1 AoA sowie Artikel III: 4 GATT 1994 zu entscheiden hatte. Allein diese Liste der möglicherweise verletzten und zu überprüfenden Vorschriften der WTO-Rechtsordnung verdeutlicht bereits die Komplexität des Verfahrens. Das Panel entschied, dass insgesamt drei US-amerikanische Exportkreditprogramme in den Anwendungsbereich des SCM-Übereinkommens fielen. Zunächst wurde festgestellt, dass die Bereitstellung sog. Step 2 certificate programme payments (SCGP) per se verbotene Exportsubventionen i. S. d. Artikel 3.1 lit. a und 3.2 SCM seien, die durch die USA gemäß Artikel 4.7 SCM ohne Verzögerung zurückzunehmen seien.71 Die Zahlungen im Rahmen des SCGP ermöglichten zugunsten der verarbeitenden und exportierenden USBaumwollindustrie einen finanziellen Ausgleich zwischen der Differenz der Weltmarktpreise für Baumwolle und den vergleichsweise wesentlich höheren US-Marktpreisen. Das Panel charakterisierte diesen Mechanismus ausdrücklich als „subventionierende Importsubstitution“, die durch die Artikel 3.1 lit. a und 3.2 SCM gerade verhindert werden soll.72 Hinsichtlich der anderen beiden durch Brasilien als WTO-widrig gerügten Exporterstattungsprogramme – sog. product flexibility contract payments (PFC) und direct payments (DP) – hatten die USA argumentiert, dass es sich um eine produktionsentkoppelte Unterstützung handele, da die entsprechenden Zahlungen an die US-Baumwollfarmer unabhängig von deren Ernteerträgen erfolgten.73 Deshalb handele es sich um sog. green box-Subventionen, für die im AoA geringere Grenzwerte hinsichtlich der spezifischen Senkungsverpflichtungen der USA festgelegt worden waren.74 Das Panel qualifizierte jedoch die US70

Id., Tz. 7.54. Id., Tz. 7.1502. Zum Anwendungsbereich und zu den Voraussetzungen des Artikel 3.1 a) SCM vgl. umfassend m. w. N. Frank Wolfram, Staatliche Exportkreditförderung: Ein deutsch-amerikanischer Vergleich im Lichte des WTO-Subventionsübereinkommens, 2004, 213 ff. 72 United States – Subsidies on Upland Cotton (Anm. 68), Tz. 7.741, 7.1018 ff. 73 Id., Tz. 7.360 m. w. N. zur Argumentation der USA. 74 Vor dem Auslaufen der „Friedensklausel“ des Artikel 13 AoA konnte die rechtliche Überprüfung von green box-Subventionen praktisch nicht im Wege der WTOStreitbeilegung erfolgen, soweit die im Zuge der Uruguay-Runde vereinbarten Obergrenzen der Unterstützungszahlungen (ceilings) eingehalten wurden. Diese Voraus71

852

Frank Bayer und Henning Jessen

amerikanischen PFC- und DP-Programme in rechtlicher Hinsicht nicht als green box-Subventionen, da beide Zahlungssysteme die Erstattungsfähigkeit und das konkrete Ausmaß der Zahlungen auch von der Gattung der angebauten landwirtschaftlichen Erzeugnisse abhängig machten. Damit seien sie aber gerade nicht – wie von Seiten der USA behauptet – als komplett produktionsentkoppelt anzusehen, vielmehr seien die entsprechenden Zahlungen handelsverzerrende innerstaatliche Subventionen, die nicht die tatbestandlichen Voraussetzungen der green box-Subventionierungskriterien des AoA erfüllten.75 Das Panel stellte überdies fest, dass eine ganze Reihe weiterer durch Brasilien als WTO-widrig gerügter Exportsubventionen sowie andere interne Unterstützungsmaßnahmen der USA ebenfalls den Anforderungen der „Friedensklausel“ nicht hinreichend Rechnung trugen und entsprechende Verletzungen der Artikel 3.3 und 8 AoA damit nicht über eine Berufung auf Artikel 13 AoA legitimiert werden konnten.76 Hinsichtlich der Frage der ernsthaften Schädigung (serious prejudice) der brasilianischen Baumwollindustrie befand das Panel, dass eine kausale Verknüpfung zwischen preisgebundenen Ausgleichszahlungen der USA (price contingent payments) und einem merklichen Preisdruck (significant price suppression) auf die Baumwoll-Weltmarktpreise bestand, der sich auch in kausaler Weise schädigend und entgegen Artikel 5 lit. c, 6.3 lit. c SCM auf die brasilianische Baumwollindustrie ausgewirkt habe. Nach Ansicht des Panel waren die internen preisgebundenen Ausgleichszahlungen der USA nämlich direkt mit der Entwicklung der Weltmarktpreise für Baumwolle verknüpft, um die amerikanische Baumwollindustrie nicht dem Wettbewerbsdruck der wesentlich niedrigeren Weltmarktpreise aussetzen zu müssen.77 Die kausale Verknüpfung zwischen internen Ausgleichszahlungen und der Schädigung der brasilianischen Baumwollindustrie galt jedoch gerade nicht im Hinblick auf andere, nichtpreisgebundene Zahlungen (non-price contingent payments), wie z. B. die be-

setzungen konnten vor allem die EG und die USA ohne größere technische Schwierigkeiten formal erfüllen, vgl. insgesamt zu green box-Maßnahmen im Rahmen des AoA Jessen (Anm. 55), 336, Rn. 37 ff.; Prieß/Pitschas (Anm. 55), 184, Rn. 52–54; ausführlich Desta (Anm. 56), 413 ff. 75 Vgl. zu dieser Frage insgesamt United States – Subsidies on Upland Cotton (Anm. 68), Tz. 7.386 ff. 76 Id., Tz. 7.337 ff. Die entsprechenden Analysen des Panel können an dieser Stelle auf Grund ihrer Ausführlichkeit und Komplexität nicht umfassend vertieft werden. 77 Id., Tz. 7.1347 ff.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

853

reits oben erwähnten produktionsgekoppelten Zahlungen im Rahmen der PFCund DP-Programme.78 c) European Communities – Export Subsidies on Sugar Das zweite Großverfahren aus dem komplexen Querschnittsbereich zwischen AoA und SCM hatte die WTO-rechtliche Konformität der EG-Zuckermarktordnung zu überprüfen. Nachdem diese bereits in den frühen 1980er-Jahren Gegenstand eines GATT-rechtlichen Verfahrens gewesen war,79 riefen seit 2002 gleich drei der sieben weltweit größten Zuckerproduzenten den DSB an, erneut ein Panel einzusetzen, um die EG-Zuckermarktordnung in weiten Teilen auf ihre Vereinbarkeit mit dem AoA und dem SCM überprüfen zu lassen.80 Das Vorbringen Australiens, Brasiliens und Thailands richtete sich hauptsächlich gegen die Quersubventionierung von sog. C-Zucker. Außerdem machten die drei klagenden Parteien Verstöße der EG gegen die Senkungsverpflichtung von Ausfuhrsubventionen nach Artikel 9 AoA geltend. Die EG habe mit einem Gesamtexport von 4.097.000 Tonnen subventioniertem Zucker im Geschäftsjahr 2001–2002 gegen ihren – in den Verpflichtungslisten, Teil IV Abschnitt II, festgeschriebenen – Höchstexportwert von 1.273.500 Tonnen subventioniertem Zucker verstoßen. Dabei sei es unerheblich, wie der Zucker im Einzelnen durch die EG kategorisiert werde. In der Zusammenschau liege daher ein Verstoß gegen Artikel 3, 8 und 9 AoA sowie insgesamt ein Verstoß gegen das SCM vor. Die EG argumentierte dagegen, dass sich der Höchstexportwert für subventionierten Zucker für die EG aus zwei Komponenten ergebe. Dies sei einerseits der oben genannte Wert in Teil IV Abschnitt II der Verpflichtungsliste und anderseits ein in der Fußnote 1 zu diesem Abschnitt angegebener entsprechender Wert für Zucker aus den AKP-Staaten und Indien.81

78

Id., Tz. 7.1355. Vgl. European Communities – Refunds on Exports of Sugar, GATT Panel Report angenommen am 10. November 1980, GATT BISD 27S/69 ff. 80 European Communities – Export Subsidies on Sugar – Complaint by Australia, Panel Report vom 15. Oktober 2004, WT/DS265/R; Complaint by Brazil, Panel Report vom 15. Oktober 2004, WT/DS266/R; Complaint by Thailand, Panel Report vom 15. Oktober 2004, WT/DS288/R. 81 Siehe hierzu die Reports zu den drei beschwerdeführenden Staaten, id., jeweils Tz. 4.30 f. Dieser betrug in den Jahren 1986–1990 durchschnittlich 1,6 Mio. Tonnen. 79

854

Frank Bayer und Henning Jessen

Anfänglich untersuchte das mit Warren Lavorel, Gonzalo Biggs und Naoshi Hirose besetzte Panel anhand einer Auslegung nach Artikel 31 WVK, in welcher Form Ausfuhrsubventionen nach dem Landwirtschaftsübereinkommen überhaupt möglich sind. Aus Artikel 3 und 8 AoA ergebe sich demnach, dass lediglich die Zahlung solcher Ausfuhrsubventionen gestattet sei, die den Vorgaben des AoA entspreche und zuvor in den spezifischen Verpflichtungslisten der WTO-Mitglieder vereinbart worden sei.82 Anschließend machte das Panel deutlich, dass es der Argumentation der EG bezüglich der Fußnote zu Teil IV Abschnitt II nicht folge. Entgegen der Ansicht der EG erweitere die betreffende Fußnote weder die Summe der Ausfuhrsubventionen von 1.273.500 Tonnen Zucker noch die Summe der Haushaltsausgaben für Ausfuhrsubventionen von 499,1 Mio. Dollar mit Wirkung zum Geschäftsjahr 2000/2001. Die Fußnote sei lediglich als einseitige Erklärung der EG gegenüber den AKP-Staaten und Indien zu verstehen, dass sie die Summe von 1,6 Mio. Tonnen Zucker von der Senkungsverpflichtung ausnehme.83 In der Fußnote sei insgesamt auch keine gebilligte Abweichung der Verpflichtungen der EG aus dem Landwirtschaftsübereinkommen zu sehen. Dies hatte die EG mit dem Hinweis auf den Verlauf der Verhandlungen zu den Verpflichtungslisten behauptet, da sowohl den Beschwerdeführern als auch den übrigen WTO-Mitgliedern die beabsichtigte Bedeutung der Fußnote bekannt gewesen sei, sie diese aber nicht beanstandet hatten. Hiergegen wandte das Panel ein: Selbst wenn die Parteien in Bezug auf die Fußnote während der Verhandlungsrunde geschwiegen hätten – was nicht der Fall war – könne dies nicht als stillschweigende Billigung einer WTOrechtswidrigen Maßnahme gewertet werden.84 Nachdem das Panel festgestellt hatte, dass die EG nur Ausfuhrsubventionen in Höhe der in Teil IV Abschnitt II angegebenen Werte gewähren durfte, stellte sich nunmehr die Frage, ob die EG in der Vergangenheit dennoch mehr als die in ihren Verpflichtungslisten aufgeführten Mengen an Zucker für den Export subventioniert hatte. Zur Beantwortung dieser Frage berief sich das Panel auf die Rechtsprechung des Appellate Body in Canada – Dairy,85 wonach im Falle 82

Id., Tz. 7.134. Id., Tz. 7.183 f. 84 Insofern verwies das Panel auf seine bisherige Rechtsprechung European Communities – Regime for the Importation, Sale and Distribution of Bananas – Complaint by the United States, Panel Report vom 25. September 1997, WT/DS27/R/USA, Tz. 4.13; vgl. hierzu schon Hermes (Anm. 46), 534 f., 539 f., 548 f. 85 Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Recourse to Art. 21.5 of the DSU by New Zealand and the United 83

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

855

des Nachweises der Überschreitung der Verpflichtungsmengen – wie durch die Beschwerdeführer geschehen86 – über Artikel 10.3 AoA eine Umkehr der Beweislast stattfinde. Aus diesem Grund hätte die EG beweisen müssen, dass es sich bei dem Mengenüberschuss um nicht subventionierten Zucker gehandelt habe.87 Nach Auffassung des Panel setzt sich der Überschuss aus dem AKP-Zucker und dem sog. „C-Zucker“ zusammen. Für beide Zuckerarten gelang es der EG nach Auffassung des Panel nicht, den prima facie-Beweis einer WTO-rechtswidrigen Subventionierung zu erschüttern. Die Ausfuhrsubventionen für den AKP-Zucker stellten nach der Rechtsansicht des Panel eine Ausfuhrsubvention nach Artikel 9 Abs. 1 lit. a AoA dar. Bei der Untersuchung der Ausfuhrsubventionen des C-Zuckers im Sinne von Artikel 9 Abs. 1 lit. c AoA kam das Panel zu dem Ergebnis, dass die C-Zuckerunternehmer eine „Zahlung“ in Form einer payment-in-kind erhielten, da sie C-Zuckerrüben zu Preisen unter den Produktionskosten bezögen.88 Diese Zahlungen erfolgten auch „bei der Ausfuhr“, da C-Zucker nach Artikel 13 der EG-Verordnung 1260/2001,89 wenn er nicht in A- oder B-Quoten übertragen wurde, noch innerhalb des jeweiligen Geschäftsjahres ausgeführt werden müsse. Letztlich seien diese payment-in-kind-Zahlungen auch „aufgrund von staatlichen Maßnahmen finanziert“ worden, denn nur die hohen EU-Zahlungen für quotierten A- und B-Zucker hätten es den Produzenten ermöglicht, den C-Zucker zu Preisen unterhalb der Produktionskosten auf den Markt zu bringen. Der C-Zucker werde demzufolge quersubventioniert.90

States, Appellate Body Report vom 18. Dezember 2001, WT/DS103/AB/RW, WT/ DS113/AB/RW, Tz. 72, 74. 86 Nachweislich exportierte die EG seit 1995 jedes Jahr mehr Zucker als nach der Verpflichtungsliste zulässig, namentlich im Geschäftsjahr 2000/2001 4.097.000 Tonnen Zucker, wobei nur 1.273.500 Tonnen erlaubt waren. 87 Siehe hierzu die Beschwerden von Australien, Brasilien und Thailand, European Communities – Export Subsidies on Sugar (Anm. 80), jeweils Tz. 7.227. 88 Id., Tz. 7.269. 89 Verordnung 1260/2001 des Rates vom 19. Juni 2001, Abl. 2001 L178/1. Diese Verordnung über die gemeinsame Marktorganisation für Zucker regelt den europäischen Zuckermarkt. Erstmals wurde eine solche Verordnung, Nr. 1009/67/EWG, am 18. Dezember 1967 erlassen. 90 Beschwerden von Australien, Brasilien und Thailand, European Communities – Export Subsidies on Sugar (Anm. 80), jeweils Tz. 7.294.

856

Frank Bayer und Henning Jessen

Der Überschuss aufgrund des AKP-Zuckers und des C-Zuckers werde somit insgesamt subventioniert und verstoße insofern gegen Artikel 3 und 8 AoA.91 Abschließend soll noch auf eine Besonderheit in der Entscheidung des Panel hinsichtlich der Einhaltung von Verfahrensgrundsätzen hingewiesen werden. Einen unaufgefordert von der Wirtschaftlichen Vereinigung Zucker (WVZ) eingebrachten amicus curiae brief wies das Panel gleich zu Beginn seiner Entscheidung zurück. Zwar seien amicus curiae briefs grundsätzlich zulässig, allerdings wollte die WVZ den von Brasilien erhobenen Vorwurf der Verwendungen von vertraulichen Daten nicht aufklären. In aller Deutlichkeit wies das Panel in diesem Zusammenhang darauf hin, dass nur am Verfahren teilnehmen könne, wer die Verhaltensregeln des WTO-Streitbeilegungsverfahrens einhalte, insbesondere die Regeln über die Vertraulichkeit.92 Interessanterweise waren darüber hinaus im Cotton-Verfahren ebenfalls Probleme hinsichtlich des Erfordernisses der Vertraulichkeit aufgetreten: Die USA hatten Brasilien vorgeworfen, Teile des nur an die Streitparteien zu übermittelnden Zwischenberichts (interim report) an die Öffentlichkeit gebracht zu haben. Daraufhin forderten die USA das streitentscheidende Panel dazu auf, zu den rechtlichen Konsequenzen eines Verstoßes gegen den Vertraulichkeitsgrundsatz Stellung zu beziehen. Im CottonVerfahren entzog sich das Panel jedoch dieser sensiblen Frage mit dem lapidaren Hinweis: “We consider this lack of respect for confidentiality unacceptable.”93 Gegen die Entscheidungen der Panel legten die unterlegenen Beklagten in beiden Verfahren Revision zum Appellate Body ein, so dass im nächsten Be91

Id., Tz. 7.236 ff., 7.332. Dabei ist zu berücksichtigen, dass die Panel-Entscheidung das Recht der EG, ihre Importe aus den AKP-Staaten und Indien zu besonderen Konditionen zu beziehen, nicht berührt. Die EG muss entsprechend ihren Verpflichtungen gegenüber diesen Staaten aus dem Cotonou-Abkommen sicherstellen, dass dieser präferenzielle Zugang zum EU-Zuckermarkt erhalten bleibt. In einer Pressemitteilung bekannte sich die EG bereits „uneingeschränkt zu ihren Verpflichtungen gegenüber den AKP-Staaten und Indien“, nähere Informationen sind abrufbar unter: http://www.europa. eu.int/rapid/pressReleasesAction.do?reference=IP/04/915&format=HTML&aged=0. Einzelheiten zum Vorschlag der Kommission zur Reformierung des Zuckersektors sind abrufbar unter: http://europa.eu.int/comm/agriculture/capreform/index_de.htm. 92 Beschwerden von Australien, Brasilien und Thailand, European Communities – Export Subsidies on Sugar (Anm. 80), jeweils Tz. 7.80; vgl. zu dieser Frage auch die Diskussion von Karsten Nowrot, Watching “Friends of the Court” Digging Their Own Grave? The Impact of EC – Sugar on the Future of Amicus Curiae Briefs at the WTO, TELC Policy Papers on Transnational Economic Law, No. 7, 2004, abrufbar unter: http://www2.jura.uni-halle.de/telc/policy_papers.html. 93 United States – Subsidies on Upland Cotton (Anm. 68), Tz. 6.5.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

857

richtszeitraum mit Spannung erwartet werden kann, in welchem Umfang die Rechtsverstöße der EG und der USA gegen das SCM- und das AoA-Übereinkommen im Rahmen der Überprüfung des Appellate Body aufrecht erhalten werden. 3. Übereinkommen zur Durchführung des Artikel VI des GATT 1994 Die bereits in den Vorjahren deutlich gewordene überdurchschnittliche Repräsentation von Streitbeilegungsverfahren zu Artikel VI GATT 1994 und dem damit verbundenen ADÜ setzte sich auch im Jahr 2004 fort. Trotz einer grundsätzlichen ökonomischen Fragwürdigkeit nehmen die WTO-Mitglieder in Zeiten wirtschaftlicher Stagnation und dem daraus resultierenden Erfordernis immer engerer Kalkulationen weiterhin die – unter Einhaltung der rechtlichen Vorgaben des ADÜ weiterhin bestehende – Möglichkeit wahr, GATT-konforme Antidumping-Maßnahmen zu protektionistischen Zwecken einzuführen. Trotzdem – oder vielleicht gerade deswegen – herrschen zwischen den WTO-Mitgliedern in der Frage einer möglichen Reform des ADÜ sehr unterschiedliche Meinungen.94 a) United States – Investigation of the International Trade Commission in Softwood Lumber from Canada Der seit insgesamt über 20 Jahren zwischen den USA und Kanada schwelende Streit über die Behandlung kanadischen Weichholzes (die sog. lumber disputes) fand 2004 auch in rechtlichen Fragen des Antidumping eine Fortsetzung.95 Maßgeblich war eine neue Entscheidung der US International Trade Commission (USITC) über den Einfluss der kanadischen Weichholzimporte auf den US-Markt. In ihrer Analyse vom 16. Mai 2002 stellte die USITC fest, dass die amerikanische Weichholzindustrie durch gedumpte und subventionierte Importe aus Kanada zwar nicht bedeutend geschädigt werde, wohl aber geschädigt zu werden drohe. Insofern sah die USITC die Voraussetzungen zum Erlass von 94 Siehe hierzu William A. Kerr/Laura J. Loppacher, Anti-Dumping in the Doha Negotiations: Fairy Tales at the World Trade Organisation, JWT, vol. 38, 2004, 211, 216. 95 United States – Investigation of the International Trade Commission in Softwood Lumber from Canada, Panel Report vom 22. März 2004, WT/DS277/R. In diesem Verfahren standen Vorschriften aus dem ADÜ im Vordergrund, auch wenn zusätzlich ähnliche Regelungen des SCM gerügt wurden.

858

Frank Bayer und Henning Jessen

Antidumping-Maßnahmen und Ausgleichsabgaben für kanadisches Weichholz für erfüllt an. Nach Ansicht Kanadas verstießen diese Maßnahmen gegen Bestimmungen des ADÜ und des SCM.96 Kanada begründete seine Rechtsansicht u. a. damit, dass die USITC die Voraussetzungen für die Feststellung der Schädigung nach Artikel 3.2 ff. ADÜ und Artikel 15.2 ff. SCM nicht ausreichend geprüft hätte. Darüber hinaus habe die spezielle Verletzung der genannten Vorschriften zur Folge, dass auch gegen Artikel 3.1 ADÜ und Artikel 15.1 SCM verstoßen werde.97 Außerdem habe die USITC bei der Anwendung von AntidumpingMaßnahmen und Ausgleichsabgaben den WTO-rechtlich vorgegebenen Sorgfaltsmaßstab der Artikel 3.8 ADÜ bzw. 15.8 SCM nicht hinreichend berücksichtigt.98 Das mit Hardeep Singh Puri, Paul O’Connor und Luz Elena Reyes de la Torre besetzte Panel skizzierte zunächst die rechtliche Reichweite der zu überprüfenden Maßnahmen insgesamt. Wie sich aus dem Zusammenspiel des Artikel 11 DSU und Artikel 17.6 ADÜ ergebe und auch bereits durch den Appellate Body entschieden worden sei,99 bestünde weder eine Notwendigkeit noch sei es angemessen, die Entscheidung der USITC in allen einzelnen Teilen detailliert zu untersuchen.100 In der Sache entschied das Panel, dass Verletzungen der Artikel 3.2 ff. ADÜ und 15.2 ff. SCM – entgegen der Rechtsansicht Kanadas – nicht automatisch Verletzungen der Artikel 3.1 ADÜ und 15.1 SCM nach sich zögen. Da Kanada ohnehin nicht ausreichend zu einer spezifischen Verletzung dieser Vorschriften vorgetragen habe, traf das Panel keine Entscheidung über eine mögliche Verletzung dieser Vorschriften.101 96

Id., Tz. 3.1 f. Id., Tz. 4.7. 98 Id., Tz. 4.8. 99 Siehe United States – Transitional Safeguards Measures on Combed Cotton Yarn from Pakistan, Appellate Body Report vom 8. Oktober 2001, WT/DS192/AB/R, Tz. 69, Fn. 42; United States – Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb from New Zeeland and Australia, Appellate Body Report vom 1. Mai 2001, WT/ DS/177/AB/R, WT/DS/178/AB/R, Tz. 106. Zu den Entscheidungen im Einzelnen siehe Bayer/Jessen (Anm. 57), 693 ff., 689 ff. 100 United States – Investigation of the International Trade Commission in Softwood Lumber from Canada (Anm. 95), Tz. 7.17. 101 Id., Tz. 7.24 ff. Mit einer vergleichbaren Argumentation verneint das Panel auch eine Entscheidung zu Artikel 3.8 ADÜ und Artikel 15.8 SCM, siehe Tz. 7.33 ff., sowie zu weiteren Vorschriften, Tz. 8.4. 97

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

859

Im Zentrum des Panel-Berichts stand die rechtliche Auslegung der Artikel 3.7 ADÜ und 15.7 SCM. Grundsätzlich sei es für die Feststellung einer Änderung der Rahmenbedingungen (change in circumstances) nicht erforderlich, ein bestimmtes Ereignis aufzuzeigen. Vielmehr könnten eine ganze Reihe von Ereignissen dieses Erfordernis erfüllen.102 Weiterhin kam das Panel zu dem Ergebnis, dass das Tatbestandsmerkmal consider in Artikel 3.7 ADÜ und Artikel 15.7 SCM in der gleichen Weise auszulegen sei, wie es im Fall Thailand – H-Beams in Artikel 3.2 ADÜ bereits vorgenommen worden war.103 Demnach sei an dieser Stelle nur erforderlich, dass innerhalb der Entscheidung erkennbar werde, welche der in Artikel 3.7 ADÜ und Artikel 15.7 SCM genannten Faktoren die Behörde konkret herangezogen habe.104 Im Ergebnis bejahte das Panel einen Verstoß der Entscheidung der USITC gegen Artikel 3.7 ADÜ und Artikel 15.7 SCM. Dieser sei letztlich darin zu sehen, dass aufgrund der dargelegten Faktoren eine Entscheidung über den wahrscheinlich bevorstehenden beträchtlichen Anstieg der Importe von Weichholz, wie sie von der USITC angenommen wurde, von einer objektiven Untersuchungsbehörde in dieser Form nicht prognostizierend getroffen werden könne.105 Weiterhin musste das Panel konsequenterweise einen Verstoß der USA gegen Artikel 3.5 ADÜ und Artikel 15.5 SCM bejahen, da die dort geforderte Kausalität auf dem Ergebnis der USITC im Hinblick auf Artikel 3.7 und Artikel 15.7 SCM beruhte. Eine kausale Verknüpfung zwischen den gegen das ADÜ und gegen das SCM verstoßenden Untersuchungsergebnissen der USA sei in dieser Form jedenfalls nicht zulässig.106

102

Id., Tz. 7.59. Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or NonAlloy Steel and H-Beams from Poland, Panel Report vom 28. September 2000, WT/DS/ 122/R, Tz. 7.161; vgl. zum Inhalt dieses Verfahrens Gall/Jessen (Anm. 47), 386 f.; Bayer/Jessen (Anm. 57), 697 f. 104 Es müssten aber, entgegen dem Wortlaut in den Artikeln 3.4 ADÜ und 15.4 SCM (shall), nicht alle Faktoren berücksichtigt werden, wie sich aus dem Wortlaut (should) der oben genannten Vorschriften ergebe, vgl. United States – Investigation of the International Trade Commission in Softwood Lumber from Canada (Anm. 95), Tz. 6.67 f. 105 Id., Tz. 7.89. 106 Id., Tz. 7.122. 103

860

Frank Bayer und Henning Jessen

b) United States – Final Dumping Determination on Softwood Lumber from Canada In einem weiteren Verfahren im schier endlos erscheinenden, wechselseitigen Weichholz-Streit zwischen Kanada und den USA wandte sich Kanada gegen die Verhängung von Antidumping-Zöllen durch das USDOC.107 Eingeleitet wurde das Verfahren vor dem USDOC durch diverse US-amerikanische Unternehmen aus der Weichholzindustrie. Kanadas umfangreiches Vorbringen richtete sich bereits gegen die Einleitung des Verfahrens und die daran anschließende Untersuchung des USDOC. Der Antrag enthielt nach Ansicht Kanadas nicht die normalerweise zur Verfügung stehenden Informationen im Sinne des Artikel 5.2 ADÜ, denn die von Seiten der US-Unternehmen vorgebrachten Beweise seien weder genau noch angemessen gewesen. Da somit die Anforderungen des Artikel 5.3 ADÜ nicht erfüllt worden seien, sei auch die Einleitung der Untersuchung selbst nicht gerechtfertigt gewesen. Nach kanadischer Interpretation hätte das USDOC – in Anbetracht der mangelnden Beweise – gemäß Artikel 5.8 ADÜ den Antrag der US-Weichholzunternehmen zurückweisen und die Untersuchung einstellen müssen.108 Weiterhin sah Kanada einen Verstoß gegen Artikel 2.4 ADÜ und Artikel 2.4.2 ADÜ, indem das USDOC bei der Festlegung der Dumping-Spanne auf die Methode des sog. zeroing zurückgegriffen habe. Nach dieser Methode wird der Vergleichswert bei höheren Ausfuhrpreisen als den Normalpreisen – wenn es also zu einer negativen Dumping-Spanne kommt – mit Null gleichgesetzt. De facto würde die negative Dumping-Spanne damit nicht berücksichtigt. Durch diese Methode werde die Dumping-Spanne künstlich aufgebläht. Außerdem verwiesen Kanada und auch Drittparteien wiederholt auf die Panel- und Appellate Body-Berichte im Fall EC – Bed Linen from India.109 In diesen war bereits die Unzulässigkeit des zeroing festgestellt worden, da nach dieser Methode

107

United States – Final Dumping Determination on Softwood Lumber from Canada, Panel Report vom 13. April 2004, WT/DS264/R. 108 Id., Tz. 3.1. 109 European Communities – Anti Dumping Duties on Imports of Cotton-Type BedLinen from India, Panel Report vom 30. Oktober 2000, WT/DS141/R; European Communities – Anti Dumping Duties on Imports of Cotton-Type Bed-Linen from India, Appellate Body Report vom 1. März 2001, WT/DS141/AB/R; letzterer dargestellt bei Bayer/Jessen (Anm. 57), 696 f.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

861

nicht alle vergleichbaren Ausfuhrgeschäfte verglichen werden könnten.110 Außerdem behauptete Kanada, es sei bei der Be- und Verrechnung eines angemessenen Preises für Verwaltungs-, Vertriebs- und Gemeinkosten gegen Artikel 2.2 ADÜ verstoßen worden. Letztlich habe das USDOC bei der Ermittlung der Produktionskosten für Weichholz zu Unrecht den Ertrag durch den Verkauf des Nebenproduktes „Holzschnitzel“ gegengerechnet, so dass der Produktionspreis signifikant reduziert wurde.111 Im Rahmen der ersten schriftlichen Stellungnahme wandten die USA ein, Kanada sei mit seiner schriftlichen Stellungnahme über eine Erörterung der im US-amerikanischen Antrag auf Einsetzung eines Panel genannten Verstöße hinausgegangen. Diese nachträgliche Erweiterung von behaupteten Verstößen stehe im Gegensatz zu Artikel 6.2 DSU. Diese Vorschrift fordere nämlich, dass die mutmaßlich verletzten Vorschriften der WTO-Rechtsordnung genauestens spezifiziert sein müssten. Insofern sollte das Panel die erst im schriftlichen Verfahren genannten Verstöße zurückweisen.112 Das mit Harsha V. Singh, Gerhard Hannes Welge und Adrián Makuc besetzte Panel hatte sich aus diesem Grund zunächst mit seiner eigenen Überprüfungsreichweite (terms of reference) auseinander zu setzen. Dabei berücksichtigte das Panel die Rechtsprechung des Appellate Body im Fall US – Carbon Steel,113 nach dessen Ergebnis Versäumnisse bei der Bestimmung des Panel-Mandats im Verlauf des Verfahrens nicht mehr nachträglich geheilt werden könnten. Allerdings sei es durchaus möglich, weitere Vorschriften zur Bekräftigung des ursprünglichen Vorbringens einzubeziehen.114 Aus diesem Grund entschied das Panel, dass das zusätzliche kanadische Vorbringen hinsichtlich der Artikel 2 (mit Ausnahme von Artikel 2.6),

110

European Communities – Anti Dumping Duties on Imports of Cotton-Type BedLinen from India, Appellate Body (Anm. 109), Tz. 55. 111 Dieses Vorbringen betraf nur die Berechnung des angemessenen Preises der kanadischen Holzunternehmen West Fraser und Tembec, vgl. United States – Final Dumping Determination on Softwood Lumber from Canada (Anm. 107), Tz. 7.298. 112 Id., Tz. 4.27. 113 United Staates – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, Appellate Body Report vom 28. November 2002, WT/DS231/AB/R; dargestellt bei Szodruch/Zoellner (Anm. 57), 538 ff. 114 United Staates – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany (Anm. 113), Tz. 127.

862

Frank Bayer und Henning Jessen

3, 5 (mit Ausnahme der Artikel 5.1, 5.2, 5.3, 5.4 und 5.8), 6.10 und 9 ADÜ nicht zum Mandat des Panel gehöre.115 Daraufhin stellte das Panel allgemeine Überlegungen zur Auslegung des Artikel 5.2 ADÜ an. Generell sei im Rahmen der Anwendung des Artikel 5.2 ADÜ nur zu berücksichtigen, ob der Antragsteller die benötigten, ihm zur Verfügung stehenden Informationen im Hinblick auf eine der in Artikel 5.2 i) – iv) ADÜ genannten Informationen eingereicht habe. Hingegen lasse der Wortlaut von Artikel 5.2 ADÜ a. E. (shall contain such information), nicht den Schluss zu, dass alle zur Verfügung stehenden Informationen eingereicht werden müssten.116 Mit den bei dem USDOS eingereichten Informationen hätten die USamerikanischen Antragsteller die Voraussetzungen gemäß Artikel 5.2 iii) ADÜ erfüllt, ein Verstoß liege demnach nicht vor. Darüber hinaus wiederholte das Panel den Maßstab für die Überprüfung der eingereichten Beweise, der die Einleitung einer Untersuchung im Sinne von Artikel 5.3 ADÜ rechtfertigen könne.117 Demnach kann für die Darlegung über das Vorliegen genügender Beweise im Sinne von Artikel 5.3 ADÜ nicht die gleiche Detail-Intensität gefordert werden wie für die endgültige Entscheidung, ob tatsächlich Dumping vorliege (vgl. Artikel 2 ADÜ).118 Die Prüfungsanforderungen seien im Rahmen der ersten Frage geringer. Das Panel kam damit insgesamt zu dem Ergebnis, dass eine unabhängige und objektive Untersuchungsbehörde aufgrund der zu Recht ausgewählten und eingereichten Beweise zum gleichen Ergebnis wie das USDOC gekommen wäre und demnach kein Verstoß gegen Artikel 5.3 ADÜ vorliege.119 Auch einen Verstoß gegen Artikel 5.8 ADÜ lehnte das Panel ab. Nachdem das USDOC nämlich hinreichende Beweise im Sinne des Artikel 5.3 ADÜ be115 United States – Final Dumping Determination on Softwood Lumber from Canada (Anm. 107), Tz. 7.30. 116 Id., Tz. 7.56. 117 Dieser war durch andere Panels bereits mehrfach in dieser Weise definiert worden, siehe Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, Panel Report vom 24. Oktober 2000, WT/DS156/R, Tz. 8.35; Guatemala – Anti-Dumping Investigation Regarding Portland Cement from Mexico, Panel Report vom 19. Juni 1998, WT/DS60/R, Tz. 7.64, siehe zum Inhalt dieser Verfahren im Überblick Gall/Jessen (Anm. 47), 384 f. 118 United States – Final Dumping Determination on Softwood Lumber from Canada (Anm. 107), Tz. 7.83 f. 119 Id., Tz. 7.127.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

863

jaht habe, konnte es Artikel 5.8 ADÜ nach Ansicht des Panel mit den zu diesem Zeitpunkt verfügbaren Informationen nicht mehr anwenden. Das von Kanada angeführte Argument, auf Grund neuerer Informationen in Bezug auf Weldwood120 hätte das USDOC die Untersuchung einstellen müssen, konnte nicht durchdringen. Artikel 5.8 ADÜ sei nicht so zu verstehen, dass erlangte Informationen, die zwar gegen die Einleitung einer Untersuchung gesprochen hätten, aber erst nach Einleitung einer Untersuchung und nach bereits gesammelten Beweisen für Dumping während der Untersuchung zu Tage getreten waren, zwingend die Einstellung der Untersuchung zur Folge haben müssten.121 Auch bezüglich der übrigen Anklagepunkte konnte das Panel keinen Verstoß seitens des USDOC gegen Vorschriften des ADÜ erkennen. Insbesondere habe Kanada nicht beweisen können, dass ein Verstoß gegen Artikel 2.2.1.1 ADÜ in der Anrechnung von Gewinnen beim Holzschnitzelverkauf zu sehen sei.122 Letztlich liege auch in der Ermittlungsmethode für die Finanzierungskosten von Weichholz, wie sie durch das USDOC in Bezug auf das kanadische Holzunternehmen Abitili verwendet wurde, kein Verstoß gegen Artikel 2.2.1.1 ADÜ.123 Die Untersuchungsbehörden seien insbesondere nicht verpflichtet, verschiedene Ermittlungsmethoden miteinander zu vergleichen, um deren Vor- und Nachteile festzustellen. Lediglich in der Festlegung der Dumping-Spannen mit Hilfe des zeroing sah das Panel einen Verstoß gegen Artikel 2.4.2 ADÜ. Allerdings gab es bezüglich dieser Entscheidung eine dissenting opinion eines PanelMitglieds.124 Beide Parteien legten Rechtsmittel gegen die Entscheidung des Panel ein. Der mit A. V. Ganesan, Luiz Olavo Baptista und Merit E. Janow besetzte Appellate Body befasste sich daraufhin mit drei im Verfahren aufgeworfenen Rechtspro120

Während des Verfahrens vor dem USDOC erlangte dieses Kenntnis davon, dass das kanadische Unternehmen Weldwood dem amerikanischen Unternehmen IP, einem Antragsteller des Verfahrens vor dem USDOC, gehörte und Preisinformationen in Bezug auf Weldwood weggelassen worden waren. 121 United States – Final Dumping Determination on Softwood Lumber from Canada (Anm. 107), Tz. 7.137. 122 Id., Tz. 7.324 ff. Auch hier handelte es sich nur um eine Entscheidung in Bezug auf die kanadischen Holzunternehmer West Fraser und Tembec. 123 Id., Tz. 7.244 f. 124 Id., Tz. 9.12; nach dieser abweichenden Ansicht lasse der Inhalt von Artikel 2.4.2 ADÜ mehrere Auslegungen zu. Hiervon sei auch umfasst, dass das zeroing in diesem Fall möglicherweise mit dem ADÜ vereinbar sein könne. Insofern liege nach Artikel 17.6 ii) ADÜ auch kein Verstoß gegen Artikel 2.4.2 ADÜ vor.

864

Frank Bayer und Henning Jessen

blemen.125 In der Ermittlung von Dumping-Spannen mit Hilfe des zeroing sah auch die Revisionsinstanz einen Verstoß gegen Artikel 2.4.2 ADÜ. Auch stimmte der Appellate Body der Entscheidung des Panel zu, dass in der Berechnung des Produktionspreises durch Abzug der Erlöse für Holzschnitzel kein Verstoß gegen Artikel 2.2, 2.2.1, 2.2.1.1. und 2.4 ADÜ zu sehen sei. Der Appellate Body hob jedoch die Panel-Entscheidung bezüglich der Konformität der Ermittlung der Finanzierungskosten für Weichholz im Falle Abitili auf. Hinsichtlich dieses kanadischen Holzunternehmens habe es an einer ausreichenden Begründung der Ansicht des Panel in Bezug auf verschiedene Ermittlungsmethoden gefehlt.126 Der Appellate Body interpretierte Artikel 2.2.1.1 ADÜ insoweit, dass diese Vorschrift keine starre Regelung enthalte, ob bei Vorliegen verschiedener Ermittlungsmethoden alle Vor- und Nachteile durch die Untersuchungsbehörde ermittelt werden müssten. Vielmehr müsse bei Beantwortung dieser Frage stets eine Entscheidung im Einzelfall erfolgen.127 c) United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular from Argentina Der in diesem Verfahren relevante Fünf-Jahres-Bericht (sunset review)128 des USDOC hatte Antidumping-Zölle gegen argentinische Ölfeldrohre (OCTG) aus dem Jahre 1994 zum Gegenstand. In dem bereits am 7. November 2000 veröffentlichten sunset review war das USDOC zu dem Ergebnis gekommen, dass die Aufhebung der Antidumping-Zölle mit ausreichender Wahrscheinlichkeit ein Anhalten bzw. ein erneutes Auftreten von Dumping herbeiführen würde. Im Juni 2001 gelangte die USITC schließlich zu der Überzeugung, dass ein solches Dumping der einheimischen US-Industrie schaden würde. Aus diesem Grund entschied das USDOC am 25. Juli, die Antidumping-Zölle für Ölfeldrohre aus 125

Final Dumping Determination on Softwood Lumber from Canada, Appellate Body Report vom 11. August 2004, WT/DS264/AB/R. 126 Id., Tz. 132. 127 Id., Tz. 138. Der Appellate Body hob die Entscheidung diesbezüglich nur auf, entschied aber nicht, ob das USDOC gegen Artikel 2.2.1.1 ADÜ verstieß oder nicht. Kanada hatte den Appellate Body nur um Aufhebung der Entscheidung ersucht, Tz. 141. 128 Sunset review ist die Bezeichnung für die Untersuchung einer nationalen Behörde nach Artikel 11.3 ADÜ, die fünf Jahre nach der Erhebung von Anti-Dumping-Zöllen durchgeführt werden darf und in der die Behörde insbesondere untersucht, ob die Aufhebung der Zölle zu weiterem Dumping und einer weiteren Schädigung eines einheimischen Wirtschaftszweiges führen würde.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

865

Argentinien aufrecht zu erhalten. Argentinien sah in der Entscheidung des USDOC und den hierauf beruhenden Gesetzen einen Verstoß gegen Verpflichtungen aus dem ADÜ und dem GATT 1994. Nach erfolglosen Konsultationen im Dezember 2002 beantragte Argentinien die Einsetzung eines Panel. Dieses (mit Paul O’Connor, Bruce Cullen und Faizullah Khilji besetzt) gab seine Entscheidung am 16. Juli 2004 bekannt.129 Zu Beginn beschäftigte sich das Panel mit einem Antrag auf Vorabentscheidung über die von den USA behauptete teilweise Unbestimmtheit des Antrags Argentiniens auf Einsetzung eines Panel. Die USA meinten, dass Teile des Antrages den Anforderungen des Artikel 6.2 DSU nicht standhalten würden. Nach Ansicht des Panel erfüllte der Antrag hingegen die notwendigen Voraussetzungen; er habe den Streitumfang definiert und genüge insgesamt dem übergeordneten Ziel, den Parteien und Drittparteien den Vorwurf des Beschwerdeführers hinreichend präzise zu verdeutlichen. Weitergehend beschäftigte sich das Panel mit den Bestimmungen in Section 751 (c) (4) (B) des Tariff Acts und in Section 351.218 (d) (2) (iii) der USDOC Regulations in Bezug auf die dort geregelten Auswirkungen eines Verzichts zur Übermittlung von Informationen durch sog. respondent interested parties130 auf die Entscheidung der USDOC. Nach Section 751 (c) (4) (B) des Tariff Act soll die Behörde im Falle eines möglichen Verzichts auf Verfahrensmitwirkung durch eine respondent interested party über die tatsächliche Wahrscheinlichkeit der Ausübung dieses Verzichts entscheiden. Ähnliches bestimmt auch die Regelung in Section 351.218 (d) (2) (iii) der USDOC Regulations, wobei hier bereits ein Mitwirkungsverzicht vermutet wird, wenn die respondent interested party keine ausreichend substanzielle Stellungnahme aufgrund des bloßen Hinweises der Einleitung einer Untersuchung abgibt.131 Das USDOC entscheidet auch in diesen Fällen, ohne weitere Informationen einzuholen und ohne die eingebrachte Stellungnahme zu berücksichtigen. In beiden US-Bestimmungen sah das Panel einen Verstoß gegen die in Artikel 11.3 ADÜ normierte Verpflichtung der Untersuchungsbehörde, eine Entscheidung über die Wahrscheinlichkeit eines anhaltenden bzw. erneut auftretenden Dumpings im Sinne dieser Vorschrift zu 129 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular from Argentina, Panel Report vom 16. Juli 2004, WT/DS268/R. 130 Nach amerikanischem Recht sind in diesem Fall ausländische Exporteure gemeint. 131 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular from Argentina (Anm. 129), Tz. 7.83 ff.

866

Frank Bayer und Henning Jessen

ermitteln.132 Aus vergleichbaren Gründen verstoße die Bestimmung in Section 351.218 (d) (2) (iii) der USDOC Regulations auch gegen die sich aus Artikel 6.1 und 6.2 ADÜ ergebenden prozessualen Rechte der respondent interested parties. Auch in Section II.A.3 des sog. Sunset Policy Bulletin (SPB) sah das Panel einen Verstoß gegen die Verpflichtung der Untersuchungsbehörde, unter Wahrung der Vorgaben des Artikel 11.3 ADÜ die Wahrscheinlichkeit eines anhaltenden oder erneut auftretenden Dumpings zu ermitteln: Section II.A.3 des SPB enthält drei Szenarien, welche im Falle ihrer Einschlägigkeit für die Wahrscheinlichkeit eines Mitwirkungsverzichts sprechen. Aus Artikel 11.3 ADÜ ergebe sich, dass beim kumulativen Vorliegen dieser drei Szenarien das USDOC grundsätzlich (normally) die Wahrscheinlichkeit des Mitwirkungsverzichts in seiner Entscheidung hätte annehmen können. Argentinien hatte in diesem Zusammenhang argumentiert, Artikel 11.3 ADÜ enthalte nach der Art und Weise seiner praktischen Anwendung durch das USDOC die unwiderlegbare Vermutung, dass schon bei Vorliegen eines der drei Szenarien die Wahrscheinlichkeit des Mitwirkungsverzichts durch das USDOC angenommen werde. Zur Unterstützung dieser Argumentation hatte Argentinien umfassende Statistiken zu vergangenen Entscheidungen des USDOC eingereicht. Aus diesen ging hervor, dass das USDOC in 35 vergleichbaren sunset reviews bereits bei Vorliegen eines Szenarios die Wahrscheinlichkeit eines Mitwirkungsverzichts bejaht hatte. Das Panel teilte daraufhin die Argumentation Argentiniens dahingehend, dass die Vorschrift somit faktisch eine unwiderlegbare Vermutung hinsichtlich der Frage der Wahrscheinlichkeit des Mitwirkungsverzichts enthalte. Dies sei jedoch mit dem Sinn und Zweck des Artikel 11.3 ADÜ nicht zu vereinbaren.133 Keinen Verstoß gegen Artikel 11.3 ADÜ sah das Panel hingegen in Section 752 (a) (1) und (5) des Tariff Act. In der Entscheidung des USDOC im Hinblick auf den sunset review Argentiniens sah das Panel einen Verstoß gegen Artikel 11.3 ADÜ, da das USDOC im Rahmen seiner Entscheidung unzulässigerweise die ursprünglich von der Ausgangsbehörde ermittelte Dumpingspanne zugrunde gelegt hatte.134 Außerdem sei im OCTG sunset review dem argentinischen Unternehmen Siderca das Recht auf Anhörung aus Artikel 6.2 ADÜ genommen 132

Id., Tz. 7.95, 7.99. Id., Tz. 7.165. 134 Id., Tz. 7.219. Andere Werte konnte das USDOC nicht einbeziehen, da das einzige argentinische Unternehmen, welches den ursprünglichen Wert der Ausgangsbehörde lieferte, den Export in die USA einstellte. 133

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

867

worden. Dieses Recht gelte über Artikel 11.4 ADÜ jedoch auch im Rahmen von sunset reviews. Weitergehende Verstöße gegen die übrigen durch Argentinien gerügten Bestimmungen und die Art ihrer praktischen Anwendung durch das USDOC lehnte das Panel jedoch ab.135 Gleiches galt für sämtliche Behauptungen gegenüber der Entscheidung der USITC. Dessen Entscheidungen in Bezug auf den OCTG sunset review waren nach Auffassung des Panel mit dem ADÜ insgesamt zu vereinbaren. Beide Parteien legten gegen die Entscheidung des Panel Rechtsmittel ein. Der mit Yasuhei Taniguchi, Georges Abi-Saab und A. V. Ganesan besetzte Appellate Body gab seine Entscheidung am 29. November 2004 bekannt.136 Darin bestätigte er im Wesentlichen die Entscheidung des Panel. Lediglich in Bezug auf Section II.A.3 SPB verwarf der Appellate Body die Entscheidung des Panel. In dieser Frage habe es das Panel versäumt, die gemäß Artikel 11 DSU vorgeschriebene „objektive Beurteilung der vor ihm liegenden Angelegenheiten“ durchzuführen. Vielmehr habe sich das Panel allein auf die durch Argentinien im Verfahren vorgelegten übergreifenden Statistiken gestützt. Dennoch hätte das Panel weiterhin die individuelle Entscheidung des USDOC einzelfallbezogen hinsichtlich der Frage überprüfen sollen, ob das USDOC eventuell doch auf der Basis einer hinreichend objektiven Entscheidung gehandelt habe.137 Die Entscheidung des Panel, Section II.A.3 SPB verstoße per se gegen Artikel 11.3 ADÜ, sei aus diesem Grund zu verwerfen. II. Allgemeines Übereinkommen über den Handel mit Dienstleistungen (GATS)

Ähnlich wie im Bereich des globalen Schutzes von Urheberrechten (TRIPS) „ruhte“ in früheren Berichtszeiträumen auch die welthandelsrechtliche Auslegung des GATS, allerdings aus anderen Gründen.138 Im Rahmen des GATS 135

Siehe hierzu id., Tz. 7.237 ff. United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular from Argentina, Appellate Body Report vom 29. November 2004, WT/DS268/ AB/R. 137 Id., Tz. 209 f. 138 Die Zurückhaltung im Rahmen der Einforderung von TRIPS-Verpflichtungen im Wege der Streitbeilegung ist insbesondere durch die besondere Lage der WTOEntwicklungsländer zu erklären, der bislang durch freiwillige Moratorien und handelspolitische Erklärungen Rechnung getragen wurde, vgl. dazu schon die Nachweise bei Szodruch/Zoellner (Anm. 1), 709, Fn. 224. 136

868

Frank Bayer und Henning Jessen

hatten sich die WTO-Mitglieder seit 1995 lediglich durch sog. „spezifische Verpflichtungen“ (specific commitments) zur Vornahme ausgewählter Liberalisierungsschritte im weltweiten Dienstleistungshandel bekannt. Dies führte in der Vergangenheit zu einem bislang relativ begrenzten GATS-rechtlichen „Streitbeilegungspotenzial“. Die bisherigen sechs Verfahren, in denen Vorschriften des GATS bereits interpretiert worden, betrafen in ihrem inhaltlichen Schwerpunkt die Interpretation anderer Handelsübereinkommen, insbesondere den Bereich des GATT 1994.139 Im Rahmen der GATS-rechtlichen Streitbeilegung wurde jedoch im Jahr 2004 in gleich zwei Dienstleistungssektoren welthandelsrechtliches Neuland betreten. Die im Berichtszeitraum veröffentlichten Panel-Berichte zum GATS waren die ersten beiden Streitbeilegungsverfahren, die ausschließlich die WTOrechtliche Regulierung des Dienstleistungshandels zu analysieren hatten. Bereits in den vorherigen Berichtszeiträumen der Jahre 2002 und 2003 hatte sich angedeutet, dass aller Wahrscheinlichkeit nach eine erstmalige Panel-Interpretation des Vierten Zusatzprotokolls zum GATS und damit gleichzeitig eine erstmalige Behandlung von Telekommunikationsdienstleistungen im Rahmen der Streitbeilegung zu erwarten war.140 Außerdem wurde im November 2004 ein erster Streitbeilegungsbericht aus dem Bereich des E-Commerce veröffentlicht, dieser betraf (u. a.) die problematische Auslegung der rechtlichen Reichweite „spezifischer Verpflichtungen“ im Rahmen der innerstaatlichen Regulierung transnationaler Internet-Dienstleistungen. 1. Mexico – Measures Affecting Telecommunications Services Im ersten der beiden GATS-Verfahren rügten die USA die WTO-rechtliche Unvereinbarkeit mexikanischer Regulierungsinstrumentarien hinsichtlich der gesetzlichen Bedingungen für die Zusammenschaltung mexikanischer Telekommunikationsnetze mit ausländischen Dienstleistungsanbietern aus diesem Handelssektor.141 In dieser Sache waren bereits seit dem Jahr 2000 Konsultatio139

Vgl. zu den (Neben-)Inhalten früherer GATS-relevanter Streitbeilegungsberichte z. B. Hermes (Anm. 46), 550; Gall/Jessen (Anm. 47), 395. 140 Vgl. dies bereits prognostizierend Szodruch/Zoellner (Anm. 1), 709. 141 Mexico – Measures Affecting Telecommunications Services, Panel Report vom 2. April 2004, WT/DS204/R; vgl. allgemein zur Regulierung von Telekommunikationsdienstleistungen in der WTO-Rechtsordnung Flemming Moos, Die Bindung der Telekommunikationsregulierung durch das GATS-Abkommen, 2003; Bobjoseph Mathew,

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

869

nen geführt worden. Schon am 26. August 2002 wurde ein Panel eingesetzt. Mexiko hatte den USA ein zwischenzeitliches Angebot zur gütlichen Streitbeilegung unterbreitet, dieses hatte jedoch nicht zur endgültigen Beilegung der Streitigkeit führen können. Daraufhin musste schließlich ein Streitbeilegungspanel das Verfahren entscheiden, an dem Ernst-Ulrich Petersmann, ein ehemaliges Mitglied des Appellate Body, sowie Raymond Tam und Björn Wellenius die beteiligten Mitglieder waren. Da der mexikanische Markt für die großen US-amerikanischen Telekommunikationsunternehmen (z. B. MCI Inc. und AT & T) attraktive und zugleich geographisch unmittelbar benachbarte Expansionsmöglichkeiten bietet, haben die USA ein besonderes Interesse an einer GATS-konformen Einhaltung der Bedingungen für die internationale Zusammenschaltung der betreffenden Telekommunikationsnetze in Mexiko.142 Die WTO-Rechtsquellen, aus denen sich die telekommunikationsrechtlichen Zusammenschaltungsregelungen ableiten lassen, sind die Vorschriften des GATS, das Vierte Zusatzprotokoll als Anlage zum GATS143 sowie die GATS-spezifischen Verpflichtungslisten der WTO-Mitglieder (vgl. dazu auch Artikel XVIII GATS). Für die genaue rechtliche Auslegung der spezifischen Verpflichtungen im Dienstleistungssektor ist wiederum die Bezugnahme auf ein sog. Referenzpapier (reference paper) erforderlich, das die insgesamt 72 unterzeichnenden WTO-Mitglieder – unter Berücksichtigung des individuellen Ausmaßes ihrer spezifischen GATS-Verpflichtungen – zur Einhaltung bestimmter „regulatorischer Prinzipien“ in den sechs wichtigsten

The WTO Agreements on Telecommunications, 2003; Carlos A. P. Braga/Carsten Fink/Bernard Hoekman, Telecommunications-Related Services: Market Access, Deeper Integration and the WTO, Hamburgisches Welt-Wirtschafts-Archiv, Discussion Paper No. 158, 2002, abrufbar unter: http://www.hwwa.de/Publikationen/Discussion_Paper/ 2002/158.pdf. 142 Der Einleitung des WTO-Streitbeilegungsverfahrens liegen Beschwerden dieser beiden US-Telekommunikationsunternehmen beim amerikanischen Handelsbeauftragten (USTR) zugrunde, vgl. zur Verfahrensgeschichte sowie zum gesamten Inhalt des Panel-Berichts die detaillierte Untersuchung m. w. N. durch Detlef Klett/Flemming Moos, WTO-rechtliche Vorgaben für die Zusammenschaltungsregulierung: Eine Analyse des WTO-Panel-Berichts Mexico – Measures Affecting Telecommunications Services, Multimedia und Recht, vol. 11, 2004, 735, 737. 143 In Kraft getreten am 5. Februar 1998, vgl. für die bundesdeutsche Umsetzung: Gesetz zu dem Vierten Protokoll vom 15. April 1997 zum Allgemeinen Übereinkommen über den Handel mit Dienstleistungen vom 20. November 1997, Bundesgesetzblatt 1997-II, 1990.

870

Frank Bayer und Henning Jessen

Bereichen innerstaatlicher telekommunikationsrechtlicher Regulierungsmaßnahmen verpflichtet.144 Die USA rügten die Verletzung einer ganzen Reihe unterschiedlicher GATSVerpflichtungen, die sich aus der mexikanischen Unterzeichnung des Referenzpapiers ergäben (vgl. dessen Abschnitte 1.1, 2, 3 und 5).145 In der Konsequenz bedeute z. B. die ungenügende Kontrolle und Regulierung des mutmaßlichen mexikanischen Hauptanbieters Teléfonos de México (Telmex) sowie die mangelnde Verabschiedung und Durchsetzung von Gesetzen, die einen GATSkonformen Marktzugang sowie Inländergleichbehandlung im Telekommunikationssektor herstellen sollten, eine Nichtbeachtung des Artikel XVIII GATS. Aus der Summe der mexikanischen Handlungs- und Unterlassungsverstöße wurden zusätzliche Verletzungen der Artikel VI, XVI, und XVII GATS geltend gemacht.146 Die Aufgabe des Panel bestand daraufhin vor allem in einer erstmaligen WTO-rechtlichen Auslegung der vielen unbestimmten Rechtsbegriffe, die sowohl im GATS als auch in seinen sektorspezifischen Konkretisierungen zu verzeichnen sind. Zu diesen unbestimmten Rechtsbegriffen zählen im Telekommunikationssektor z. B. die Formulierungen „Zusammenschaltung zu angemessenen Bedingungen“ unter Erhebung „kostenorientierter Entgelte“ und einer „transparenten“, „wirtschaftlich realistischen“ und „ausreichenden“ Entbündelung der Netze (vgl. Abschnitt 2.2 b) des Referenzpapiers). Außerdem ist von „geeigneten Maßnahmen zur Verhinderung wettbewerbswidriger Praktiken durch die Hauptanbieter“ (Abschnitt 1.1 Referenzpapier) und vom Zugang zu allen öffentlichen Telekommunikationsnetzen, einschließlich privater Mietleitungen, zu „angemessenen“ und „nicht-diskriminierenden Bedingungen“ die Rede (vgl. insgesamt die Abschnitte 5 a) und b) der Anlage zur Telekommunikation).147 144

Diese sind die Bereiche (1) der Lizenzierung, (2) der Universaldienstleistungsverpflichtungen, (3) der Zusammenschaltung, (4) der Organisation der nationalstaatlichen Regulierungsinstitution selbst, (5) der Wettbewerbsregeln sowie (6) der Zuweisung und Verwendung knapper Kommunikationsressourcen, vgl. Klett/Moos (Anm. 142), 736. 145 Mexico – Measures Affecting Telecommunications Services, Panel Report vom 2. April 2004, WT/DS204/R, vgl. insbesondere Tz. 4.1 ff. (zu Abschnitt 2 des Referenzpapiers), Tz. 4.253 ff. (zu Abschnitt 1.1 des Referenzpapiers). 146 Vgl. zusammenfassend m. w. N. id., Tz. 3.1. 147 Siehe hierzu die genauere Analyse der verfahrensrelevanten unbestimmten Rechtsbegriffe bei Moos (Anm. 141), 307 ff.; Klett/Moos (Anm. 142), 737 ff.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

871

Im Ergebnis befand das Panel, dass Mexiko lediglich im Hinblick auf eine einzige seiner spezifischen Verpflichtungen nicht gegen GATS-rechtliche Bestimmungen verstoßen hatte.148 Diese bezog sich auf die Einräumung angemessener und nicht-diskriminierender Bedingungen für den Zugang ausländischer Anbieter zu privaten Mietleitungen (cross-border telecom services supplied on a non-facilities basis in Mexico), da Mexiko hinsichtlich dieser privaten Mietleitungen keine spezifischen Verpflichtungen unterzeichnet habe.149 In allen anderen Einzelfragen der WTO-rechtlichen Bedingungen für die Zusammenschaltung der öffentlichen Telekommunikationsnetze, die durch die Identifikation von Telmex (als mexikanischer Hauptanbieter)150 lediglich zu „nicht-kostenorientierten Entgelten“ und unter Anwendung wettbewerbswidriger Praktiken gewährt worden war, entschied das Panel zugunsten der USA.151 Dieses Ergebnis ergab sich vor allem aus der Feststellung des Panel, dass die praktische Anwendung der mexikanischen Gesetzgebung geradezu final dazu führe, dass die ausländische Konkurrenz und der internationale Wettbewerb auf dem inländischen Markt reduziert werde und somit jedenfalls nicht von „geeigneten Maßnahmen“ zur Verhinderung wettbewerbswidriger Praktiken die Rede sein könne.152 Im Rahmen seiner Bewertung beseitigte das Panel dabei die teilweise zuvor zu konstatierende Rechtsunsicherheit und entwickelte einige – bisher nicht existierende – rechtliche Präzisierungen (z. B. hinsichtlich der Auslegung des GATS-rechtlichen Begriffs der „kostenorientierten Entgelte“ im Telekommunikationssektor).153 Die diesbezüglichen Präzisierungen des Panel könnten im Rahmen zukünftiger handelsdiplomatischer Konsultationen

148 Vgl. zur begrifflichen Eingrenzung der non-facilities-based Dienstleistungen im Verfahren, Mexico – Measures Affecting Telecommunications Services (Anm. 145), Tz. 7.22; zusammenfassend zu diesem Auslegungsergebnis des Panel Tz. 8.2. 149 Id., Tz. 7.91, 7.385. 150 Siehe exemplarisch zu dieser Definitionsfrage id., Tz. 7.146 ff. 151 Id., Tz. 8.1. 152 Id., Tz. 7.230–7.276. 153 Beispielsweise verlange der Begriff „kostenorientierte Entgelte“ einen tatsächlich nachweisbaren Bezug zu den für die Erbringung der Dienstleistung entstandenen Kosten. Eine Überschreitung der Kostenobergrenze um mehr als 75 % sei grundsätzlich nicht mehr als „kostenorientiert“ anzusehen. Als Orientierungsmaßstab seien die Entgelte für vergleichbare nationale Zusammenschaltungen zulässig, vgl. insgesamt, Tz. 7.174–7.177, 7.191. Die Begriffe „angemessen“ und „wirtschaftlich realistisch“ hätten dagegen einen lediglich deklaratorischen Charakter, Tz. 7.183; siehe insgesamt auch Klett/Moos (Anm. 142), 738 f.

872

Frank Bayer und Henning Jessen

möglicherweise zur Verhinderung weiterer telekommunikationsrechtlicher Streitbeilegungsverfahren führen. Folglich wurde im Ergebnis in Mexiko der Marktzugang für USamerikanische Telekommunikationsanbieter nicht zu „angemessenen“ und „nicht-diskriminierenden Bedingungen“ im Sinne der Artikel 5 a) und b) der Anlage zur Telekommunikation gewährt. Diese erste telekommunikationsrechtliche Streitigkeit der WTO-Rechtsordnung konnte durch den insgesamt überaus überzeugenden und detaillierten Bericht des Panel bereits erstinstanzlich beendet werden, da sich Mexiko und die USA nach dessen Veröffentlichung und der Auswertung seines analytischen Ansatzes bilateral auf eine 13-monatige Umsetzungsfrist der Auslegungsergebnisse des Panel einigen konnten.154 Der DSB nahm den Bericht des Panel daraufhin in seiner Sitzung vom 1. Juni 2004 an. 2. United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services Der sog. Gambling Dispute zwischen den USA und dem karibischen Inselstaat Antigua und Barbuda (Antigua) ist das erste E-Commerce-Verfahren in der Geschichte der WTO-Streitbeilegung. Im Zuge volkswirtschaftlicher Reformen hatte Antigua die gesetzgeberischen Voraussetzungen dafür geschaffen, zu einem „Steuerparadies“ für sog. Offshore-Firmen zu werden. Auf Grund der äußerst geringen bürokratischen Anforderungen inkorporierten sich bis zum Jahr 1999 auch ca. 120 sog. „Online-Casinos“ nach antiguanischem Recht und boten Plattformen für transnationale Internetspiele und Online-Wetten aller Art an. Die lückenhafte Finanz- und Steuergesetzgebung Antiguas bot jedoch auch Möglichkeiten für internationale Geldwäsche und andere Formen der organisierten Finanzkriminalität. Als die USA und Großbritannien ausländische Investoren schließlich ausdrücklich vor solchen Transaktionen warnten, an denen antiguanische Finanzinstitutionen beteiligt waren, sah sich Antigua gezwungen, die innerstaatlichen Transparenz und Notifikationsvoraussetzungen seiner gesellschaftsrechtlichen Gesetzgebung zu verschärfen. Der daraufhin zwischen 1999 bis 2003 in Antigua festzustellende Rückgang an Einnahmen und Arbeitsplätzen im Bereich des Internet-Dienstleistungshandels betrug zwischen 400 %

154

Anderer Ansicht Mavroidis (Anm. 18), 56, Fn. 40.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

873

bis 750 %.155 Insbesondere die USA, die den weltweit größten Markt für internetbasierende Geschäfte stellen, blockierten mit Beginn des Jahres 1999 z. B. Kreditkartenzahlungen als wichtigsten Finanzierungsweg der aus Antigua angebotenen Online-Spiele und Internetwetten. Vor diesem ökonomischen Hintergrund sah sich Antigua durch verschiedene, die Bereitstellung von Internetspielen und -wetten unterbindende US-Gesetzgebungsinstrumente der Bundes- und Landesebene, die zum Teil bereits lange vor Gründung der WTO verabschiedet worden waren,156 in seinen konkreten Handelsvorteilen verletzt. Antigua rügte dabei Verstöße der USA gegen die Artikel VI: 1, VI: 3, XVI: 1, XVI: 2, XVII: 1, XVII: 2, XVII: 3 und XI: 1 GATS.157 Insbesondere war Antigua der Ansicht, dass sich die USA in Sektor 10.D ihrer „spezifischen Verpflichtungen“ durch die dort befindliche Formulierung other recreational services zur transnationalen Liberalisierung und Bereitstellung von Internetspielen- und wetten verpflichtet hatten.158 Eine völkerrechtlich bindende Definition der Dienstleistungsform der other recreational services befinde sich im sog. Provisional Central Product Classification System (CPC) der Vereinten Nationen.159 Die Verwendung des Begriffs other recreational services im CPC schließe danach auch internetbasierte Spiele und Online-Wettdienstleistungen ein.160 Die USA wandten gegen diese Vorwürfe eine vierstufige Verteidigungsstrategie an: Erstens habe Antigua keinen prima facie-Fall vorgetragen, da Antigua die gerügte US-Gesetzgebung nicht hinreichend genau spezifiziert habe.161

155

Vgl. zu den rückgängigen Wirtschaftsdaten: United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, First Submission of Antigua and Barbuda vom 1. Oktober 2003, WT/DS285, 9–12. 156 Siehe zur betreffenden US-Gesetzgebung United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Panel Report vom 10. November 2003, WT/DS285R, Annex E und F. 157 Id., Tz. 6.2. 158 Id., Tz. 6.36 ff. m. w. N. 159 Vgl. ausführlicher United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, First Submission (Anm. 155), 51. 160 Vgl. dazu auch Uruguay Round – Group of Negotiations on Services – Services Sectoral Classification List, 10. Juli 1991, MTN.GNS/W/120, Abschnitt 96492. 161 Siehe dazu United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Second Written Submission of the United States vom 9. Januar 2004, WT/DS285, 1: “Antigua fails in any event to make out claims as to the

874

Frank Bayer und Henning Jessen

Zweitens widerspreche die Bezugnahme auf das UN-Klassifizierungssystem völkergewohnheitsrechtlichen Auslegungsgrundsätzen, da sich die WTOMitglieder explizit darauf geeinigt hätten, das CPC gerade nicht zur Auslegung der spezifischen Verpflichtungen heranzuziehen und die USA das CPC innerstaatlich nicht umgesetzt oder anderweitig angenommen hätten.162 Drittens seien die GATS-Vorschriften zur Inländergleichbehandlung (vgl. Artikel XVII GATS) nicht anwendbar, da es Antigua nicht gelungen sei, den handelstechnisch vergleichbaren Charakter von ortsgebundenen Spiel- und Wettdienstleistungen und nicht-ortsgebundenen Online-Spiel- und Wettdienstleistungen als like services zu etablieren. Als letzten „Notanker“, dessen Prüfung jedoch nach Ansicht der USA auf Grund der bereits genannten Argumente nicht mehr notwendig sei, beriefen sich die Amerikaner schließlich auf die Ausnahmen der Artikel XIV a) und XIV c) GATS, da die US-Gesetzgebung zur Einhaltung der öffentlichen Moral und zur Einhaltung von Gesetzen „erforderlich“ i. S. dieser beiden Ausnahmevorschriften sei.163 Zum später deutlich und öffentlich zum Ausdruck gebrachten Befremden der USA lehnte das mit B. K. Zutshi, Virachai Plasai und Richard Plender besetzte Panel nacheinander alle Argumente ab, die eine Verletzung des GATS durch die USA ausgeschlossen hätten.164 Auf Grund der WTO-rechtlichen Anwendbarkeit des CPC und den Verpflichtungen der USA gemäß Artikel XVI: 4 WTOÜbereinkommen umfasse die Positivliste der spezifischen US-amerikanischen GATS-Verpflichtungen mit dem Begriff der other recreational services auch solche Spiel- und Wettdienstleistungen, die durch nicht-ortsgebundene Dienstleistungserbringer im Internet angeboten würden.165

existence of relevant commitments or the inconsistency of specific U.S. measures with particular provisions of the GATS.” 162 Id., 3–4. Diese Argumentation erscheint übrigens auch unter einem anderen Gesichtspunkt konsequent: Während der Aushandelung der Uruguay-Runde hatte das Internet einen vollkommen anderen Wirtschaftscharakter und entwickelte sich erst nach 1995 in einer nicht vorhersehbaren Form geradezu „explosiv“ weiter. 163 Id., 24–39; vgl. hierzu auch Steve Charnowitz, The Moral Exception in Trade Policy, Virginia Journal of International Law, vol. 38, 1998, 689, 694 ff. 164 Vgl. dazu insgesamt United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (Anm. 156), Tz. 6.148 ff. 165 Der Frage, ob die streitgegenständlichen Spiel- und Wettdienstleistungen like services i. S. d. Artikel XVII GATS seien, wich das Panel jedoch aus prozessökonomischen Gründen aus, vgl. id., Tz. 6.426.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

875

Das Panel kam auf diese Weise in letzter Konsequenz zu dem Ergebnis, dass die USA derartige Online-Dienstleistungen gleichsam implizit in ihre spezifischen Verpflichtungslisten aufgenommen hätten. Das Panel sei sich zwar der Sensibilität der Rechtsproblematik vollauf bewusst gewesen, sein Auslegungsergebnis müsse aber selbst dann gelten, wenn die USA den Einbezug der streitgegenständlichen Internet-Dienstleistungen subjektiv überhaupt nicht gewollt hätten, da es nicht die Aufgabe des Panel sei, nachträglich den damaligen Willen der USA zu „erraten“.166 Die Berufung der USA auf die Ausnahmevorschriften der Artikel XIV a) und c) GATS, die bemerkenswerterweise zum ersten Mal in der Geschichte der WTO-Streitbeilegung durch ein Panel angesprochen wurden, lehnte das Panel mit der Begründung ab, die USA hätten ihre diplomatischen Möglichkeiten auf der bilateralen Ebene nicht vollständig ausgeschöpft.167 Die amerikanische Verbotsgesetzgebung sei deshalb jedenfalls (noch) nicht „erforderlich“.168 Das Panel habe damit jedoch keineswegs grundsätzlich entschieden, dass die WTO-Mitglieder die betroffenen Internet-Dienstleistungen nicht regulieren und verbieten dürften.169 Insbesondere über die Ausführungen des Panel zur Auslegung der Artikel XIV a) und c) GATS waren die USA em-

166

Id., Tz. 7.3: “We note in this regard that the United States may well have inadvertently undertaken specific commitments on gambling and betting services. However, it is not for the Panel to second-guess the intentions of the United States at the time the commitment was scheduled. Rather, our role is to interpret and apply the GATS in light of the facts and evidence before us.” 167 Id., Tz. 6.522 ff. (insbesondere Tz. 6.531–6.534). 168 Zur diesbezüglichen Argumentation des Panel vgl. insgesamt Tz. 6.443 ff. An dieser Stelle sei die Bemerkung erlaubt, dass die diesbezügliche Argumentation des Panel hochproblematisch erscheint, da die USA während des gesamten Verfahrens versucht hatten, mit Antigua eine handelsdiplomatische Einigung auf bilateraler Ebene zu finden. Das Panel hatte den Streitparteien zudem – allerdings nachdem es ihnen das voraussichtliche Ergebnis seines Berichts mitgeteilt hatte – eine weitere Frist bis zum 23. August 2004 gewährt, um die Streitigkeit doch noch gütlich beilegen zu können. Im Zuge der darauf geführten Verhandlungen war diese Frist sogar mehrfach verlängert worden (bis zum 28. Oktober 2004). Den USA kann insgesamt nur schwerlich eine mangelhafte Ausübung bilateraler Konsultationen mit Antigua vorgeworfen werden. 169 Id., Tz. 7.4: “We have not decided that WTO Members do not have a right to regulate, including a right to prohibit, gambling and betting activities. [...] We so decided, not because the GATS denies Members such a right but, rather, because we found, inter alia, that, in the particular circumstances of this case, the measures at issue were inconsistent with the United States’ scheduled commitments and the relevant provisions of the GATS.”

876

Frank Bayer und Henning Jessen

pört und stuften den Panel-Bericht insgesamt als „tiefgreifend fehlerbehaftet“ (deeply flawed) ein.170 C. Ausblick Der Berichtszeitraum brachte vor allem rechtliche Präzisierungen in komplizierten Detailfragen der WTO-Rechtsordnung. Diese waren einerseits teilweise grundsätzlich geeignet, die Sprengkraft stark politisierter Streitbeilegungsverfahren zu entschärfen, andererseits mussten jedoch auch viele weiterhin offene Fragen in das Jubiläumsjahr der WTO-Streitbeilegung übernommen werden. Die praxisorientierte GSP-Entscheidung des Appellate Body konnte dazu beitragen, im überaus sensiblen Überschneidungsbereich zwischen Handel und Politik ein ausgewogeneres Verhältnis zwischen notwendiger Rechtssicherheit und handelsdiplomatischer Flexibilität zu bewahren. Ebenso wurden die Rechte der agrarindustriell bzw. primärwirtschaftlich geprägten WTO-Mitglieder jedenfalls insofern gestärkt, als nach dem endgültigen Auslaufen der „Friedensklausel“ des Artikel 13 AoA wettbewerbsverzerrende Agrarbeihilfen der USA und der EG erstmals durch WTO-Panel als rechtswidrig identifiziert werden konnten. Obwohl eine endgültige Klärung diesbezüglicher Einzelfragen erst im Jahr 2005 durch die entsprechenden Berichte des Appellate Body erfolgen wird, lieferten z. B. die Ergebnisse des Panel im Verfahren Export Subsidies on Sugar weitere Argumente gegenüber der EG, die bereits langjährig geforderte Reformierung ihrer protektionistischen Zuckermarktordnung konsequent weiterzuführen. Andererseits offenbarten die deutlichen handelsdiplomatischen Stellungnahmen der USA nach der Veröffentlichung des Berichts im sog. Gambling Dispute abermals eine bereits frühzeitig erkannte Schwäche und Gefahr für die globale Akzeptanz der WTO-rechtlichen Streitbeilegung: Es scheint zwar sehr unwahrscheinlich, dass der Appellate Body in diesem Verfahren die Interpre170

Vgl. hierzu Auszüge aus einer Stellungnahme des USTR-Sprechers Richard Mills: “This panel report is deeply flawed. [… I]t defies common sense that the United States would make a commitment to let international gambling operate within our borders. […] WTO members were already restricting gambling and other activities affecting public morals and public order long before they created the WTO […]. Nothing in any WTO agreement requires Members to seek approval from their trading partners before exercising those rights”, abrufbar unter: http://www.ustr.gov/Document_Library/ Spokesperson_Statements/Statement_from_USTR_Spokesman_Richard_Mills_ Regarding_the_WTO_Gambling_dispute_with_Antigua_Barbuda.html.

Die Rechtsprechung des WTO-Streitbeilegungsgremiums 2004

877

tation des Panel tatsächlich bestätigen wird.171 Anderweitig wäre bedauerlicherweise zu befürchten, dass die USA die für sie negativ ausfallenden Auslegungsergebnisse ignorieren werden, da sie sich durch den Bericht des Panel in ihrer völkerrechtlichen Souveränität und Handlungsfreiheit verletzt fühlen. Das ca. 76.000 Einwohner zählende Antigua könnte bei Eintritt dieser Konstellation die USA nicht durch handelspolitische Gegenmaßnahmen zur Einhaltung der Streitbeilegungsergebnisse „motivieren“, da diese keine spürbaren Auswirkungen auf dem US-Markt zeigen könnten. Antigua würde sich volkswirtschaftlich vielmehr sogar selbst schaden. Gerade im Verhältnis zwischen Industrie- und Entwicklungsländern scheint somit eine Verbesserung der Umsetzungsfrage weiterhin eines der schwierigsten Problemfelder der WTO-Streitbeilegung zu sein.172 Bereits seit der IV. Ministerkonferenz haben sich die WTO-Mitglieder gemäß Absatz 30 der Ministererklärung von Doha zu improvements and clarifications des DSU bekannt. Nachdem jedoch die WTOMitglieder bislang ihre individuellen Reformvorschläge lediglich in Einzelstellungnahmen vorgetragen haben und die Verhandlungsfristen deshalb zum wiederholten Male verlängert wurden,173 muss dem Arbeitsauftrag von Doha – insbesondere angesichts der vom 13. bis zum 18. Dezember 2005 in Hongkong bevorstehenden VI. WTO-Ministerkonferenz – nunmehr effektiv(er) Rechnung getragen werden.

171

Vgl. zur Kritik an der Methodik des Panels auch Mavroidis (Anm. 18), 59. Vgl. in diesem Zusammenhang auch die Kritik einiger am wenigsten entwickelter Länder des afrikanischen Kontinents, in: Negotiations on the Dispute Settlement Understanding – Proposal by the African Group, 25. September 2002, TN/DS/W/15, Tz. 6: “[R]ealities are such that developing-country Members cannot practically utilise this ultimate sanction, as individual countries, against developed country Members. They would probably suffer further injury if they adopted retaliatory measures. As the DS is the linchpin of the multilateral trading system, this handicap of developing-country Members means that the system is skewed against them.” Vgl. auch Naboth van den Broek, Power Paradoxes in Enforcement and Implementation of WTO Dispute Settlement Reports, Interdisciplinary Approaches and New Proposals, JWT, vol. 37, No. 1, 2003, 127–162; Mavroidis (Anm. 18), 53 und 59–60. 173 Siehe z. B. die letzte Zusammenfassung des Verhandlungsstands im Berichtszeitraum Special Session of the Dispute Settlement Body – Report by the Chairman, Ambassador David Spencer, to the Trade Negotiations Committee, 9. Dezember 2004, TN/DS/11. 172

Awards and Decisions of ICSID Tribunals in 2004 By Richard Happ* and Noah Rubins** A. Introduction This report covers publicly available awards and decisions of arbitral tribunals of the International Centre for the Settlement of Investment Disputes (ICSID) rendered or dispatched to the parties between December 2003 and November 2004. It is a direct follow-up to the report published in this yearbook last year.1 2004 has been nearly as busy a year for ICSID as was 2003. 20 new cases have been filed with ICSID, and six more with ICSID’s Additional Facility, bringing the total number of registered disputes to 85. Eight of the new cases have been filed against Argentina and four against Mexico. The remaining cases were filed against Ukraine, Estonia, Poland, Hungary, Slovenia, Indonesia, Tunisia, Egypt, Congo, Gabon, Chile, Ecuador, Venezuela and Mongolia. It is likely that nearly all of this year’s cases have been filed on the basis of bilateral and multilateral investment treaties. The claim in Alstom Power Italia SpA and Alstom SpA v. Republic of Mongolia arises out of alleged violations of the Energy Charter Treaty (ECT), with arbitral jurisdiction founded on the dispute resolution provisions of the ECT’s Article 26.2 *

Dr. iur., German lawyer (Rechtsanwalt), Luther Menold, Hamburg. Attorney (New York, District of Columbia, Texas), International Arbitration and Public International Law practice groups, Freshfields Bruckhaus Deringer, Paris. 1 Richard Happ, Awards and Decisions of ICSID Tribunals in 2003, German Yearbook of International Law (GYIL), vol. 46, 2003, 711. 2 The Energy Charter Treaty, 17 December 1994, reprinted in: ILM, vol. 34, 360, is a multilateral treaty with 46 Contracting Parties which, inter alia, protects investment in the energy sector. It has a dispute settlement clause (Art. 26) which is comparable to those of modern bilateral investment treaties. For an overview of the investment protection provisions and the dispute settlement mechanism, see Richard Happ, Dispute Settlement under the Energy Charter Treaty, GYIL, vol. 45, 2002, 331–362. **

Awards and Decisions of ICSID Tribunals in 2004

879

This report covers thirteen awards and decisions. Four more cases were settled by the parties, including the case of SGS v. Pakistan.3 The following nine decisions on objections to jurisdiction and four awards are described below: Azurix v. Argentina (B.), Enron Corporation and Ponderosa Assets (C.), SGS v. Philippines (D.), CDC Group v. Seychelles (E.), Tokios Tokeles v. Ukraine (F.), LG&E Energy Corp. and others v. Argentine Republic (G.), Waste Management v. United Mexican States (H.), MTD v. Chile (J.), Soufraki v. United Arab Emirates (K.), PSEG Global Inc. et al. v. Turkey (L.), Siemens v. Argentina (M.), Joy Mining v. Egypt (N.) and Salini Construttori S.p.A. and Italstrade S.p.A. v. Jordan (O.). B. Azurix Corp. v. The Argentine Republic (Case No. ARB/01/12) The Tribunal in Azurix Corp. v. The Argentine Republic rendered its decision on jurisdiction on 8 December 2003.4 While not in fact rendered in 2004, the Azurix award became publicly available only after the end of 2003 and was therefore not included in last year’s summary of ICSID decisions. The Tribunal consisted of Dr. Andrés Rigo Sureda as President and Sir Elihu Lauterpacht and Dr. Daniel H. Martins as Members of the Tribunal. I. The Dispute

In 1996, the US company Azurix Corp. participated in the privatization of the water supply service for the Province of Buenos Aires. It ultimately acquired the concession to operate the drinking and sewage water supply in the Province for a bid of nearly US$ 440 million. To carry out its concession in compliance with local regulations, Azurix set up two Argentine operating companies, OBA and AAS Azurix owned OBA indirectly through two tiers of Cayman Islands subsidiaries, while it owned AAS indirectly through another US subsidiary.

3

For a summary see Happ (note 1), 734–738. Azurix Corp. v. The Argentine Republic, ARB/01/12, Decision on Jurisdiction of 8 December 2003, available at: http://www.asil.org/ilib/azurix.pdf (Azurix Decision). 4

880

Richard Happ and Noah Rubins

In 2000 and 2001, Azurix apparently experienced certain difficulties in maintaining necessary water pressure and quality.5 Azurix complained that Argentina had prevented Azurix from charging rates for water service according to the tariff specified in its concession, and further that it had failed to deliver necessary infrastructure. These two factors, the company contended, affected its ability to raise financing and to serve its customers. In September 2001, Azurix filed a claim against Argentina under the United States-Argentina Bilateral Investment Treaty (BIT),6 claiming the violation of a number of the treaty’s substantive protections. II. The Decision

Argentina objected to the Tribunal’s jurisdiction on a number of grounds. First, it argued that through the forum-selection clauses in contractual documents related to OBA’s concession, Azurix had waived its right to bring an ICSID claim based upon its investment in OBA, and had agreed to litigate any disputes in the Argentine courts. In particular, Argentina pointed to explicit waivers of jurisdiction which it alleged had been included in light of ICSID awards in the Lanco and Vivendi I cases. Second, the Respondent pointed to a “fork-in-the-road” provision of the US-Argentina BIT. It argued that this clause barred Azurix’s ICSID claim, since a number of administrative appeals had been submitted in connection with the OBA concession. Finally, Argentina argued that Azurix lacked ius standi, because it was a mere shareholder of OBA, and could not directly maintain a claim for harm to OBA’s investment. The first issue addressed in the decision was that of Azurix’s standing to bring a claim in light of its status as an indirect investor in Argentina. It was clear to the Tribunal from the definitions section of the applicable BIT that OBA’s concession contract was an investment controlled by Azurix and therefore the proper subject of a claim brought by Azurix.7 More generally, the Tribunal held 5

The Azurix Decision provides almost no details of the merits of the dispute. The facts presented here can be found at http://www.watertechonline.com/news.asp?mode= 4&N_ID=19637. 6 Treaty between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment, 14 November 1991, available at the UNCTAD homepage at: http://www.unctadxi.org/templates/ DocSearch____779.aspx. 7 Azurix Decision (note 4), para. 62.

Awards and Decisions of ICSID Tribunals in 2004

881

that “[p]rovided the direct or indirect ownership or control is established, rights under a contract held by a local company constitute an investment protected by the BIT.”8 The protection of indirect investments made through local subsidiaries is an essential part of BIT coverage. The arbitrators reasoned: “The objective of the definition of investment in the BIT is precisely to include this type of structure established for the exclusive purpose of the investment in order to protect the real party in interest.”9 In finding that Azurix had standing to pursue claims for damage to its indirectly-held investments, the Tribunal rejected the precedential value of the ICJ judgment in Barcelona Traction.10 Not only had commentators “criticized [the decision] as being an incorrect statement of customary international law,”11 but the case was inapposite: “The issues before this Tribunal concern not diplomatic protection under customary international law but the rights of investors, including shareholders, as determined by treaty, namely, under the BIT.”12 The Tribunal next turned to the effect of forum selection clauses in a range of documents connected to OBA’s water concession. The arbitrators noted the unusual language of the waivers that accompanied each of at least three forum selection clauses in favor of the courts of the city of La Plata: in addition to agreeing to that body’s “exclusive jurisdiction […] for all disputes that may arise,” the operating companies “waiv[ed] any other forum, jurisdiction or immunity that may correspond.”13 Argentina contended that this waiver distinguished this case from a series of ICSID decisions finding contractual forum selection clauses ineffective to bar an arbitration claim based on BIT violations.14 8

Id., para. 63. See also CMS v. Argentina, ARB/01/8, Decision on Objections to Jurisdiction of 17 July 2003, ILM, vol. 42, 2003, 800 et seq., para. 51. 9 Azurix Decision (note 4), para. 64. 10 ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February 1970, ICJ Reports 1970, 3. 11 Azurix Decision (note 4), para. 71. 12 Id., para. 72. 13 Id., para. 26. 14 See Compania de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic, ARB/97/3, Award of 21 November 2000, available at: http://www.worldbank. org/icsid/cases/ada_AwardoftheTribunal.pdf (Vivendi I); Salini Construttori S.p.A. et Italstrade S.p.A. v. Kingdom of Morocco, ARB/00/4, Decision on Jurisdiction of 23 July 2001, Journal du Droit International, vol. 129, 2002, 196 (Salini v. Morocco); Lanco Int’l Inc. v. Argentine Republic, ARB/97/6, Preliminary Decision on Jurisdiction of 8 December 1998, ILM, vol. 40, 2001, 457 (Lanco).

882

Richard Happ and Noah Rubins

The Tribunal disagreed, holding that “[t]he scope of the jurisdiction and waiver of any other forum clauses […] indicates that such clauses relate to disputes under the terms of the document concerned and between the parties to that particular document.”15 Since Azurix had not asserted any ICSID claim against the Province or any other party to the concession contracts, the forum selection clause was ruled inapplicable. With regard to the additional waiver language, the Tribunal cited a number of early 20th-century arbitration cases16 for the proposition that such waivers could only affect contractual claims. Since the Azurix claim was international in nature and derived from state-to-state treaty commitments, it could not affect Claimant’s right to invoke the BIT against Argentina.17 Finally, the arbitrators tackled the issue of the “fork-in-the-road” clause contained in the US-Argentina BIT. Here, the Tribunal relied on Benvenuti and CMS in adopting a rule that the present claim could be said to have been submitted to “the courts or administrative tribunals” of Argentina within the meaning of Article VII para. 2 lit. a of the treaty only “where there was identity of the parties, object and cause of action in the proceedings pending before both tribunals.”18 The Tribunal noted that “contractual claims” submitted in Argentina “are different from treaty claims” at issue in the ICSID dispute,19 and that neither of the parties was a party to any local court proceedings in Argentina,20 and found that the “fork-in-the-road” provision had not been triggered. Having rejected all three of Argentina’s jurisdictional objections, the Tribunal concluded that Claimant “has shown that, prima facie, it has a claim against Argentina for breach of obligations owed by Argentina under the BIT,” that Azurix had ius standi and that the dispute fell within the scope of ICSID jurisdiction.21

15

Azurix Decision (note 4), para. 77. Woodruff v. Venezuela, R.I.A.A., vol. 9, 1903, 213; North American Dredging Company of Texas v. United Mexican States, R.I.A.A., vol. 4, 1926, 26. 17 Azurix Decision (note 4), para. 85. 18 Id., para. 88 (citing S.A.R.L. Benvenuti and Bonfant v. People’s Republic of Congo, ARB/77/2, Award of 8 August 1980, ICSID Reports, vol. 1, 1993, 340). 19 Azurix Decision (note 4), para. 89 (citing CMS v. Argentina (note 7)). 20 Azurix Decision (note 4), para. 90. 21 Id., para. 102. 16

Awards and Decisions of ICSID Tribunals in 2004

883

C. Enron Corporation and Ponderosa Assets, L.P. v. The Argentine Republic (Case No. ARB/01/3) Enron v. Argentina involves two claims. The Tribunal issued its Decision on Jurisdiction in the Claimants’ favor on 14 January 2004.22 A second Decision on Jurisdiction, with regard to the Claimants’ ancillary claim, was rendered on 2 August 2004.23 The Tribunal consisted of Francisco Orrego Vicuña as President, Héctor Gros Espiell and Pierre-Yves Tschanz as Arbitrators. I. The Dispute

American companies Enron Corporation and Ponderosa Assets, L. P. made investments in the gas industry in Argentina, participating in the privatization program that the Government of the Argentine Republic undertook after 1989. Enron’s participation particularly concerned the privatization of Transportadora de Gas del Sur (TGS), which owns one of the country’s largest networks for the transportation and distribution of gas produced in the provinces of southern Argentina. Enron acquired a total of 35.263 % of TGS through a chain of locally incorporated companies, which in turn invested in TGS. Enron’s claims were founded on the alleged violation of the US-Argentina BIT.24 The primary claim concerned a Stamp Tax assessment imposed by certain Argentine provinces. The ancillary claim, which was the subject of the 2004 Decision, involved Argentina’s freezing of gas transport tariffs and the “pesification” of gas transport contracts. II. The Decision

In connection with Enron’s ancillary claim, the Argentine Republic raised a number of objections to the jurisdiction of the Centre and the competence of the

22 Enron Corporation and Ponderosa Assets, L.P. v. The Argentine Republic, ARB/ 01/3, Decision on Jurisdiction of 14 January 2004, available at: http://www.asil.org/ilib/ Enron.pdf (Enron Decision I). 23 Id., Decision on Jurisdiction of 2 August 2004, available at: http://ita.law.uvic.ca/ documents/Enron-DecisiononJurisdiction-FINAL-English.pdf (Enron Decision II). 24 See, supra, note 6.

884

Richard Happ and Noah Rubins

Tribunal. These objections were the same as those raised and rejected in Enron Decision I. The first objection was based on Claimants’ lack of ius standi. The Argentine Republic claimed that the measures directly affected only TGS as a separate legal entity, while Enron was not directly affected as a minority indirect shareholder.25 Enron argued that their claims were direct, as they were made in its own right as a United States investor, and not on behalf of TGS.26 After consideration, the Tribunal referred to its conclusions in Enron Decision I, and held that neither international law nor the ICSID Convention27 prevent shareholders from maintaining claims independently from the investment vehicle, even if the shareholders have neither a majority stake nor control.28 As in the Enron Decision I, the Tribunal recognized the danger of allowing an endless chain of parent corporations in bringing ICSID claims. In the earlier decision, the arbitrators had noted that there is a cut-off point at which claims are simply too remotely related to the investment.29 Here, however, Claimants had been specifically invited by the Government of Argentina to participate in the privatization of TGS, and had decision-making authority in TGS’s management. Therefore, the Tribunal found that Claimants fell within the scope of Argentina’s consent to arbitration.30 In the Enron Decision II, the Tribunal reiterated that “successive claims by minority shareholders that invest in companies that in turn invest in other companies” could result in “claims that are only remotely connected with the measure questioned.” However, “there is a clear limit to this chain in so far as the consent to the arbitration clause is only related to specific investors.”31 In the case at hand, the Tribunal found that Argentina had given its consent. The treaty language and the parties’ intent were held to be sufficiently specific to extend protection to minority and indirect shareholders.32 In particular, the Tribunal 25

Id., para. 17. Id., para. 18. 27 Convention on the Settlement of Investment Disputes, 14 October 1966, UNTS, vol. 575, 159 (ICSID Convention or Washington Convention). 28 Enron Decision II (note 23), paras. 19–20; Enron Decision I (note 22), para. 39. 29 Enron Decision I (note 22), para. 52. 30 Id., para. 56. 31 Enron Decision II (note 23), para. 20. 32 Id., para. 29. 26

Awards and Decisions of ICSID Tribunals in 2004

885

took care to distinguish the Mondev decision, which in fact upheld Claimant’s North American Free Trade Agreement (NAFTA) action on condition that Claimant demonstrate that it had in fact suffered direct loss in connection with its investment.33 The Vacuum Salt case was also ruled inapposite. There, Claimant was a local corporation, with only a minority Greek shareholder in the investment vehicle. The Enron situation was found to be entirely different. “There are specific foreign investors, who were invited by the Argentine Government to participate in the privatization process and required to organize locally incorporated companies to channel their investments. At all times this was a foreign investment operation.”34 Argentina also objected that the parties’ dispute should be considered to be purely contractual and that the contractual choice of forum provisions contained in TGS’s concession documents should apply to exclude ICSID jurisdiction. Claimants argued that the dispute related to the violation of the investors’ rights under the BIT. The Tribunal considered that a treaty claim and contract claim could be considered the same only where there is identity of the parties, object and cause of action.35 The arbitrators rejected Argentina’s argument, since “although there are no doubt questions concerning the Contract between the parties, the essence of the claims […] relates to alleged violations of the Treaty rights.”36 The Tribunal concluded by rejecting all of Argentina’s objections and affirming its jurisdiction over the ancillary claim.37 D. SGS Société Générale de Surveillance S.A. v. Republic of the Philippines (Case No. ARB/02/06) Of particular interest is the Decision on objections to jurisdiction in the case of SGS v. Philippines of 29 January 2004.38 Last year’s award in the SGS v. Pa33

Id., paras. 33–35; Mondev International v. United States of America, ARB(AF)/ 99/2, Decision on Jurisdiction of 11 October 2002. 34 Enron Decision II (note 23), paras. 43–44; Vacuum Salt Products Ltd. v. Republic of Ghana, ARB/92/1, Decision on Jurisdiction of 16 February 1994. 35 Enron Decision II (note 23), para. 49–50. 36 Id., para. 51. 37 Id., para. 52. 38 SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ARB/ 02/6, Decision on Objections to Jurisdiction of 29 January 2004 (SGS v. Philippines Ju-

886

Richard Happ and Noah Rubins

kistan case, which was based on a comparable dispute, reached a different result. The Tribunal in this case consisted of Dr. Ahmed El-Kosheri as President and Professors James Crawford and Antonio Crivellaro as Members of the Tribunal. I. The Dispute

The facts of the dispute relate to an agreement entered into in 1991 by the Swiss company SGS Société Générale de Surveillance S.A. and the Republic of the Philippines. Pursuant to that agreement, SGS had to provide comprehensive import supervision services (CISS), including verification of the quality, quantity and price of imported goods prior to shipment to the Philippines. SGS was required to maintain a liaison office in the Philippines and to provide certain assistance, inter alia training courses for various Philippine agencies. The government of the Philippines was to pay SGS a certain fee depending on the value of the goods. The CISS contract contained the following dispute settlement clause: The provisions of this Agreement shall be governed in all respects by and construed in accordance with the laws of the Philippines. All actions concerning disputes in connections with the obligations of either party to this Agreement shall be filed at the Regional Trial Courts of Makati or Manila.

After two extensions, the agreement ended on 31 March 2000. SGS submitted a claim for allegedly outstanding fees in the amount of approximately US$ 140 million. The claim was initially disputed by the Philippines, but then reviewed by a team consisting of SGS and the Philippine Bureau of Customs. The report of that team concluded that approximately 95 % of this sum was in fact due. On 14 December 2001, the Philippine Department of Finance issued a press statement accepting the report and expressing an intent to negotiate with SGS to spread out the payments over time due to the tight budgetary situation. With the exception of a small payment of about US$ 20,000, no payments were ever made. On 26 April 2002, SGS submitted its request for arbitration to the ICSID, based on the 1997 BIT between the Swiss Confederation and the Philippines. It

risdiction). The text of the decision (and of many others) is available via the ICSID homepage at: http://www.worldbank.org/icsid/cases/awards.htm.

Awards and Decisions of ICSID Tribunals in 2004

887

alleged that the government’s failure to pay violated certain provisions of the Swiss-Philippines BIT.39 II. The Decision

The Philippines raised several objections to the jurisdiction of the Tribunal. Firstly, it argued that the dispute was purely contractual and therefore governed by the choice of forum clause in the CISS agreement.40 In the opinion of the Philippines, SGS had not complained of any genuine breaches of the BIT. The Philippines further submitted that the dispute was not related to an ‘investment’ within the territory of the Philippines, as the main service was performed outside its territory and constituted only the performance of a service in exchange for a fee.41 Lastly, the Philippines argued that any jurisdiction could only extend to breaches that occurred after the BIT entered into force on 23 April 1999.42 Having analyzed these objections and SGS’s response, the Tribunal identified five main issues to be resolved.43 It briefly recapitulated the decision of the Tribunal in SGS v. Pakistan,44 as each of the salient issues was also discussed there. It noted that it could not “in all respects agree with the conclusions reached by the SGS v. Pakistan Tribunal on issues of the interpretation of arguably similar language in the Swiss-Philippines BIT.” However, it further noted that the binding force of ICSID awards is limited to the parties to the particular dispute and that in international law there is neither a doctrine of precedent nor any hierarchy of tribunals.45 Consequently, it turned to the analysis of those five issues.

39 Id., para. 44, referring to Accord entre la Confédération suisse et la République des Philippines concernant la promotion et la protection réciproque des investissements, 31 March 1997, available at UNCTAD homepage (note 6). 40 Id., para. 51. 41 Id., paras. 57–59. 42 Id., para. 59. 43 Id., para. 92. 44 SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, ARB/ 01/13, Decision on Objections to Jurisdiction of 6 August 2003, summarized in: Happ (note 1), 734–738 (SGS v. Pakistan). 45 SGS v. Philippines Jurisdiction (note 38), para. 97.

888

Richard Happ and Noah Rubins

The Tribunal first addressed the question whether the CISS agreement constituted an investment.46 The focal point was the provision of a reliable inspection certificate. These certificates were issued in the Manila Liaison office of SGS. In the opinion of the Tribunal, this was sufficient to amount to an investment. The Tribunal held irrelevant the fact that for tax purposes SGS’s services were treated as performed outside of the Philippines, since local tax law was a regime distinct from the BIT. The Tribunal reviewed earlier ICSID decisions on the question whether an investment was made “in the territory” of the host state, but rejected Gruslin, Fedax and CSOB as inapposite. Instead, the arbitrators agreed with the reasoning of the SGS v. Pakistan Tribunal and concluded that SGS had made an investment “in the territory” of the Philippines. The second issue identified by the Tribunal was whether the so-called ‘umbrella clause’ in Article X para. 2 of the BIT gave it jurisdiction over purely contractual claims. It had been SGS’s principal jurisdictional submission that by not paying fees allegedly due under the CISS agreement, the Philippines had breached Article X para. 2 of the BIT. That provision reads as follows: “Each Contracting Party shall observe any obligation it has assumed with regard to specific investments in its territory by investors of the other Contracting Party.” In the Tribunal’s view, the wording of this obligation was clear: “[E]ach Contracting Party shall observe any legal obligation it has assumed, or will in the future assume, with regard to specific investments covered by the BIT.”47 It further held that the object and purpose of the BIT supported an effective interpretation: “It is legitimate to resolve uncertainties in its interpretation so as to favour the protection of covered investments.”48 It rejected the argument of the Philippines that the umbrella clause should be limited in scope to obligations under other international law instruments, since “such a limitation could readily have been expressed.”49 The Tribunal noted that its provisional conclusion was directly contradicted by the decision of the Tribunal in SGS v. Pakistan. Reviewing the reasons given by that Tribunal, it found them unconvincing when applied to the case at hand.50 In contrast to the broad and somewhat vague formulation of the Swiss-Pakistani 46 47 48 49 50

Id., paras. 99–112. Id., para. 115. Id., para. 116. Id., para. 118. Id., paras. 120–126.

Awards and Decisions of ICSID Tribunals in 2004

889

BIT, which in the opinion of the SGS v. Pakistan Tribunal was “susceptible of almost indefinite expansion” to cover even legislative commitments, Article X para. 2 was limited to obligations assumed with regard to specific investments. Secondly, the SGS v. Pakistan Tribunal had relied on the general principle of international law that a breach of contract by the state is not in itself a breach of international law. On that basis, it had argued that there was no clear intent of the parties to the BIT to create an obligation “where clearly there was none before.”51 The Philippines Tribunal simply considered that a treaty clause might require a state to observe provisions of internal law and that this was a mere question of interpretation of a BIT “not determined by any presumption.”52 While the Tribunal shared the concern that a BIT should not override dispute settlement clauses negotiated in particular contracts, it did not accept that this followed from a wide interpretation. After rejecting the Pakistan Tribunal’s structural argument, the Tribunal further held that the previous panel’s interpretation of the umbrella clause was far from clear. The Tribunal explained its understanding of umbrella clauses as follows: It does not convert non-binding domestic blandishments into binding international obligations. It does not convert questions of contract law into questions of treaty law. In particular it does not change the proper law of the CISS Agreement from the law of the Philippines to international law. Article X (2) addresses not the scope of the commitments entered into with regard to specific investments but the performance of these obligations, once they are ascertained.53

As the Tribunal further explained, “this obligation does not mean that the determination of how much money the Philippines is obliged to pay becomes a treaty matter. The extent of the obligation is still governed by the contract, and it can only be determined by reference to the terms of the contract.”54 The issue of how much was payable to SGS thus needed to be determined by the proper law of the CISS agreement, i.e. the law of the Philippines. The Tribunal affirmed its authority to apply national law under Article 42 para. 1 of the ICSID Convention. Whether it should actually do so, however, was ruled to be dependent on the meaning given to the exclusive jurisdiction clause. Before turning to address that question, the arbitrators reviewed a third issue: whether the Tribunal also had jurisdiction over purely contractual claims, irre51 52 53 54

SGS v. Pakistan (note 44), para. 166. SGS v. Philippines Jurisdiction (note 38), para. 122. Id., para. 126 (emphasis added). Id., para. 127.

890

Richard Happ and Noah Rubins

spective of any breach of the BIT. It considered the answer to be potentially relevant for the application of the BIT to claims arising before its entry into force.55 Looking at the wording of the dispute settlement provision, “disputes with respect to investments,” the Tribunal found the answer to be clearly affirmative. It did not concur with the interpretation to the contrary put forward by the SGS v. Pakistan Tribunal.56 Only then did the Tribunal turn to analyze whether the exclusive jurisdiction clause in the CISS agreement was overridden by the BIT or by the ICSID Convention.57 The arbitrators determined that it was not, considering that the BIT as a general framework treaty should not trump specific jurisdiction clauses negotiated between the state and a foreign investor.58 It rejected SGS’s argument that Article 26 of the ICSID Convention had an overriding effect and proceeded to analyze the effect given to exclusive jurisdiction clauses in arbitral practice, examining, inter alia, Woodruff,59 North American Dredging Company of Texas60 and Vivendi Annulment.61 The Tribunal concluded that the exclusive jurisdiction clause did affect the admissibility of SGS’s claim: But the Tribunal should not exercise its jurisdiction over a contractual claim when the parties have already agreed on how such a claim is to be resolved, and have done so exclusively. […] Until the question of the scope or extent of the Respondent’s obligation to pay is clarified – whether by agreement between the parties or by proceedings in the Philippine courts as provided for in Article 12 of the CISS Agreement – a decision by this Tribunal on SGS’s claim to payment would be premature.62

Since it found that the “present dispute is on its face about the amount of money owed under a contract” and SGS had not raised a BIT claim which could be decided independently of the contract claim, the Tribunal concluded that SGS’s claims were temporarily inadmissible.63 The Tribunal decided not to dismiss the 55

Id., para. 129. Id., para. 134. 57 Id., paras. 136 et seq. 58 Id., para. 141. 59 Woodruff v. Venezuela (note 16). 60 North American Dredging Company of Texas v. United Mexican States (note 16). 61 Compania des Aguas de Aconquija S.A. and Vivendi Universal (formerly Compagnie Générale des Eaux) v. Argentina, ARB/97/3, Decision on Annulment of 3 July 2002, ILM, vol. 41, 2002, 1135 et seq., paras. 97–102 (Vivendi Annulment). 62 SGS v. Philippines Jurisdiction (note 38), para. 155. 63 Id., paras. 156–164. 56

Awards and Decisions of ICSID Tribunals in 2004

891

claim, but to stay the proceedings pending a decision as to the amount due but unpaid. E. CDC Group plc. v. Republic of the Seychelles (Case No. ARB/02/14) The dispute between CDC Group plc. and the Republic of the Seychelles is a “classical” ICSID case, as it did not arise out of a bilateral investment treaty. Rather, the parties had included an ICSID arbitration clause in their contract. The sole Arbitrator Sir Anthony Mason rendered his award on 17 December 2003.64 I. The Dispute

The dispute arose out of two guarantee agreements which the Republic had concluded with CDC. The Republic had guaranteed the punctual payment of all principal sums and interest due and payable under two loan agreements signed by the Public Utilities Corporation (PUC), a statutory corporation incorporated in the Republic of the Seychelles. PUC subsequently failed to meet its obligations and defaulted. When CDC demanded payment under the guarantees, the Republic refused to comply. II. The Decision

From the viewpoint of international law, the CDC decision has little to offer the reader. During the course of the proceedings, the Republic withdrew its objections to jurisdiction. The guarantee agreements were subject to English law, and the sole arbitrator found that the defenses raised by the Republic were unconvincing. He ordered the Republic to pay to CDC the full amount outstanding under the guarantees, together with interest and costs. On 30 April 2004, the Republic initiated annulment proceedings against the award. At the time of writing, the annulment proceedings were still pending. 64

CDC Group plc. v. Republic of the Seychelles, ARB/02/14, Award of 17 December 2003, available at: http://ita.law.uvic.ca/documents/CDCvSeychellesAward_001.pdf.

892

Richard Happ and Noah Rubins

F. Tokios Tokeles v. Ukraine (Case No. ARB/02/18) The decision on jurisdiction of 29 April 200465 represents a rare instance in arbitral practice: It was signed only by the party-appointed arbitrators Professor Piero Bernardini and Daniel M. Price. The presiding arbitrator Professor Prosper Weil dissented and later resigned from the Tribunal. I. The Dispute

The dispute arose on the basis of the BIT between Lithuania and Ukraine.66 Claimant, Tokios Tokeles, is a business enterprise established under the laws of Lithuania. It is owned and controlled by Ukrainian nationals, which hold 99 % of the company’s outstanding shares. In 1994, Tokios Tokeles created Taki spravy, a wholly owned subsidiary established under the laws of Ukraine. Taki spravy engages in advertising, publishing and printing, and related activities, in Ukraine and outside its borders. Tokios Tokeles alleged that, beginning in February 2002, governmental authorities in Ukraine engaged in a series of actions with respect to Taky spravy that breached Ukraine’s obligations under the BIT. It further alleged that the authorities took these actions in response to Claimant’s publications in January 2002 of a book that favorably portrayed a leading Ukrainian opposition politician. After having tried unsuccessfully to settle the dispute through negotiations with the Ukrainian government, on 14 August 2002 Tokios Tokeles filed its request for arbitration with ICSID. II. The Decision

Ukraine launched several objections to the jurisdiction of the Tribunal. None of them, however, was successful. The first objection concerned the nationality of Claimant.67 Article 25 of the Washington Convention limits jurisdiction to 65 Tokios Tokeles v. Ukraine, ARB/02/18, Decision on Jurisdiction of 29 April 2004, available at ICSID homepage (note 38) (Tokios Tokeles Award). 66 Agreement between the Government of Ukraine and the Government of the Republic of Lithuania for the Promotion and Reciprocal Protection of Investments, 8 February 1994. 67 Id., paras. 21–71.

Awards and Decisions of ICSID Tribunals in 2004

893

disputes between “a Contracting State […] and a national of another Contracting State.” Furthermore, the dispute settlement provision of the BIT also provided for arbitration only of disputes “between an investor of one Contracting Party and the other Contracting Party.” Ukraine argued that Tokios Tokeles should not be considered a “genuine national” of Lithuania, since it was predominantly owned and controlled by Ukrainian nationals and also had no substantial business activities in Lithuania. To find jurisdiction, Ukraine argued, would be tantamount to allowing claims of nationals against their own governments and incompatible with the object and purpose of the ICSID convention.68 The Tribunal began its analysis by noting that the ICSID Convention did not regulate the matter of corporate nationality. The arbitrators therefore turned to the BIT, under which Claimant’s incorporation in Lithuania was sufficient to qualify it as an “investor” of Lithuania. The Tribunal refused to apply a further “control” or “substantial business activity” test. It noted that some other BITs include an express “denial of benefits” provision and considered the lack of such a clause in the applicable treaty to be a deliberate choice of Ukraine and Lithuania. Accordingly, Tokios Tokeles was held to be an “investor” under the terms of the BIT.69 The Tribunal then turned to Article 25 of the ICSID Convention.70 Ukraine had asked the Tribunal to apply Article 25 para. 2 lit. b to create an exception to the state-of-incorporation rule of nationality. The Tribunal found no support in the text of the Convention for such an approach. It considered the object and purpose of Article 25 para. 2 lit. b to be expansion of jurisdiction, rather than limiting it.71 The Tribunal also refused to apply the doctrine of ‘piercing the corporate veil.’ While it acknowledged that the doctrine formed part of customary international law and that Barcelona Traction72 was the seminal case affirming that proposition, it noted that Ukraine had not demonstrated that the requirements for veil-piercing had been met.73 The Tribunal then found that its conclusions were consistent with earlier ICSID awards and the views of ICSID scholars.74 68 69 70 71 72 73 74

Id., para. 22. Id., para. 38. Id., paras. 42–52. Id., paras. 46–49. Barcelona Traction, Light and Power Company, Limited (note 10). Tokios Tokeles Award (note 65), paras. 53–56. Id., paras. 58–70.

894

Richard Happ and Noah Rubins

The second jurisdictional objection concerned the question whether Claimant had made an ‘investment.’ Ukraine argued that the invested capital fell outside the scope of both the BIT and the ICSID convention, as its source was not Lithuanian, but Ukrainian. The Tribunal noted that the ICSID convention did not define the contours of an ‘investment.’ It then found that Claimant clearly had made an ‘investment’ in Ukraine, and that nowhere was it stated that capital must be non-Ukrainian to be considered an ‘investment.’ The Tribunal affirmed that its conclusion harmonized with Article 25 of the ICSID Convention: “In our view, the ICSID Convention contains no inchoate requirement that the investment at issue in a dispute have an international character in which the origin of the capital is decisive.”75 In its last jurisdictional objection, Ukraine argued that the dispute did not arise out of an investment. The Tribunal quickly rejected this objection, as well as the three further objections to the admissibility of the claim related to compliance with the BIT’s six month “cooling off” period.76 Consequently, the arbitrators decided by a 2-to-1 majority that the dispute was within the Tribunal’s jurisdiction. III. Dissenting Opinion77

The presiding arbitrator, Professor Prosper Weil, issued a stern dissenting opinion. He considered that the deference the Tribunal had given to the BIT’s definitions ignored the limits of jurisdiction set by the ICSID Convention. He noted that “the approach taken by the Tribunal on the issue of principle raised in this case for the first time in ICSID’s history is in my view at odds with the object and purpose of the ICSID Convention and might jeopardize the future of the institution.”78 Professor Weil criticized the majority’s assumption that the origin of invested capital was not decisive, denouncing this approach as “flying in the face of the object and purpose of the ICSID Convention and system.” Relying inter alia on the preamble of the Convention and the Report of the Executive Directors on the Convention, he noted that “[T]he ICSID mechanism and remedy are not meant for investments made in a State by its own citizens with 75 76 77 78

Id., para. 82. Id., paras. 87–104. Id., Dissenting Opinion of Professor Prosper Weil of 29 April 2004. Id., para. 1.

Awards and Decisions of ICSID Tribunals in 2004

895

domestic capital through the channel of a foreign entity, whether preexistent or created for that purpose.”79 Professor Weil concluded by noting that the majority decision “might dissuade Governments either from adhering to the Convention or, if they have already adhered, from providing for ICSID arbitration in their future BITs or investment contracts.” Subsequently, he resigned from his post as presiding arbitrator and was replaced by Michael Mustill. G. LG&E Energy Corp. and Others v. Argentine Republic (Case No. ARB/02/1) The Tribunal in the case of LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc. v. Argentine Republic rendered its decision on objections to jurisdiction on 30 April 2004.80 The Tribunal consisted of Tatiana B. de Maekelt as President and Franzisko Rezek and Albert Jan van den Berg as Members of the Tribunal. I. The Dispute

The three Claimants (LG&E) are U.S. companies which hold shares in three gas distribution companies in Argentina. The dispute is one of the many disputes which arose out of the Argentine financial crisis. In 2002, Argentina dismantled the post-privatization tariff regime pursuant to which energy tariffs were calculated in U.S. dollars before being converted into pesos, and also abolished the 1:1 relationship between the peso and the dollar. LG&E claimed that by these actions Argentina violated the U.S.-Argentina BIT.81 From the decision it is unclear whether LG&E entered into mandatory negotiations before resorting to arbitration. On 28 December 2001, ICSID received the request for arbitration, which was based on the BIT. LG&E claimed, inter alia, that it had been treated unfairly and inequitably, that it had suffered discrim-

79

Id., para. 19. LG&E Energy Corp. and others v. Argentine Republic, ARB/02/1, Decision on Objections to Jurisdiction of 30 April 2004, available at: http://ita.law.uvic.ca/ documents/LGE-DecisiononJurisdiction-English.pdf (LG&E Jurisdiction). 81 See, supra, note 6. 80

896

Richard Happ and Noah Rubins

ination and that its investment had been indirectly expropriated. That request was supplemented by an Additional Request by letter of 24 January 2002. II. The Decision

Argentina raised six objections to the jurisdiction of the Tribunal, most of which related to the fact that LG&E was only a shareholder in the Argentine operating companies.82 Interestingly, the Tribunal chose not to deal with each objection separately in the order presented by Respondent, but only examined them to the extent that they related to the jurisdictional requirements of Article 25 of the ICSID Convention. The first objection was that LG&E, as a minority shareholder, lacked ius standi. The Tribunal dismissed this objection. It considered the shares held by LG&E to be an investment protected by the BIT, which did not differentiate between majority and minority shareholders. The Tribunal discounted the fact that the gas transportation licenses provided for submission of all disputes to the administrative courts of Buenos Aires. Relying, inter alia, on the decisions in CMS Gas Transmission,83 Vivendi84 and Lanco,85 it held that the contractual jurisdiction clause could not bar the jurisdiction of the Tribunal and that LG&E was a foreign investor for the purposes of the BIT and the ICSID Convention.86 The Tribunal noted that since LG&E had based its claim on alleged breaches of the BIT, there clearly was an investment dispute.87 It had no difficulty finding that both Argentina and LG&E had consented to submit the dispute to ICSID. Argentina had given its consent in the BIT, and LG&E provided its consent by submitting its request for arbitration.88 The Tribunal considered it irrelevant that no negotiations had taken place with respect to the Additional Request, since the six-month waiting period had elapsed before the Additional Request was filed.

82 83 84 85 86 87 88

Id., para. 29. CMS v. Argentina (note 8). Vivendi I (note 14). Lanco (note 14), 457 et seq. LG&E Jurisdiction (note 80), paras. 48–63. Id., paras. 64–68. Id., paras. 69–78.

Awards and Decisions of ICSID Tribunals in 2004

897

The Tribunal thus held that the dispute fell within the scope of its jurisdiction, dismissed all objections to its jurisdiction and ordered that the proceedings should continue. H. Waste Management v. United Mexican States (Case No. ARB(AF)/00/3) In the case of Waste Management, Inc. v. United Mexican States, the award was dispatched to the parties on 30 April 2004.89 The case arose on the basis of NAFTA Chapter 11, and the Tribunal consisted of Professor James Crawford as President and Benjamin R. Civiletti and Eduardo Magallón Gómez as arbitrators. I. The Dispute

The dispute arose out of a concession for waste disposal services in the Mexican City of Acapulco. A concession agreement had been concluded in 1995 between the City of Acapulco and the Mexican company Acaverde, which was a wholly-owned subsidiary of Claimant, a Delaware corporation. Under the concession agreement, Acaverde undertook to provide – on an exclusive basis – waste disposal and street cleaning services in the concession area, a part of Acapulco. The City undertook to enact any regulations necessary to prevent others from providing such services in the concession area. An ordinance to that effect was passed. In August 1995, Acaverde began providing services under the concession agreement. However, the exclusivity arrangements were not honored and the respective ordinance was not strictly enforced. Acaverde also complained that the City failed to provide the land to be used as a landfill, contrary to its promise under the agreement. Furthermore, the City did not fulfil its obligation to pay the invoices Acaverde presented to it, such that about 80 % of the invoices remained unpaid. Although the Mexican public development bank Banobras had issued a guarantee for the payment obligations, for various reasons it had paid only a few of the invoices. The City, on the other hand, complained that Aca89 Waste Management, Inc. v. United Mexican States, ARB(AF)/00/3, Award of 30 April 2004, available at: http://ita.law.uvic.ca/documents/laudo_ingles.pdf (Waste Management II).

898

Richard Happ and Noah Rubins

verde had failed to keep the streets of the concession area consistently clean. Acaverde brought Mexican federal court proceedings against Banobras for nonpayment under the bank guarantee. These claims were dismissed. The company also commenced contractual arbitration under the concession agreement against the City of Acapulco, but later discontinued these proceedings. Waste Management commenced its first NAFTA Chapter 11 arbitration while legal proceedings between Acaverde and the City of Acapulco were still pending in Mexico. The first NAFTA Tribunal dismissed Waste Management’s claim because it had failed to formally abandon the Mexican domestic proceedings as required by NAFTA. After Acaverde’s claims in Mexican courts had been dismissed, Waste Management re-submitted its NAFTA claims before ICSID. II. The Decision

1. Jurisdiction The Tribunal first dealt with Mexico’s jurisdictional objection.90 Mexico denied that Claimant had the status of an investor for purposes of NAFTA, since Acaverde’s direct holding company was registered in the Cayman Islands. It was only at the time of the conclusion of the concession contract that the holding company was acquired by an U.S. investor, which later merged with another company to become Claimant. The Tribunal considered that NAFTA Chapter 11 allowed for claims where the investment was controlled only indirectly, i.e. through an intermediate holding company, and that the nationality of that holding company was irrelevant. The extent of the damage suffered by the investor was a matter of quantum, not of merits. It thus rejected Mexico’s jurisdictional objection.91 2. Merits Waste Management submitted two claims: that Mexico had breached its obligation under Article 1110 of NAFTA (expropriation) or, in the alternative, under Article 1105 para. 1 NAFTA (fair and equitable treatment). 90 91

Id., paras. 77–85. Id., para. 85.

Awards and Decisions of ICSID Tribunals in 2004

899

As a preliminary consideration, the Tribunal observed that NAFTA Chapter 11 did not give jurisdiction over mere contractual breaches and that NAFTA lacked an ‘umbrella clause,’92 so that it would not be sufficient to prove that Acapulco had breached the concession agreement. It furthermore considered whether the conduct of Banobras as a majority-state-owned development bank was attributable to the state. The mere fact that a separate entity was owned or controlled by the state would not make it ipso facto an organ of the state. The Tribunal finally concluded, however, that the actions of Banobras were attributable to the state.93 a) Fair and Equitable Treatment The Tribunal first examined the meaning which should be given to Article 1105. It reviewed in detail the holdings of prior tribunals, including ADF and Loewen, and summarized their conclusions.94 On the basis of this review, the Tribunal rejected the Article 1105 claims in their entirety.95 Neither the actions of Banobras nor those of the Mexican federal state had breached the standard identified by the Tribunal. As for the conduct of Acapulco, the Tribunal came to the conclusion that, by not paying the invoices, the City might have been in breach of the contract. However, such non-payment could not constitute unfair or inequitable treatment as long as the respective obligation was not repudiated outright and as long as some remedy remained open to the investor.96 Turning to the Mexican legal proceedings Acaverde had initiated, the arbitrators 92

On the Umbrella Clause, see Anthony C. Sinclair, The Origins of the Umbrella Clause in the International Law of Investment Protection, Arbitration International, vol. 20, 2004, 711–734; Thomas Wälde, The Umbrella (or Sanctity of Contract/Pacta sunt Servanda) Clause in Investment Arbitration: A Comment on Original Intentions and Recent Cases, Transnational Dispute Management, vol. 1, October 2004, available at: http://www.transnational-dispute-management.com/. 93 Waste Management II (note 89), para. 75. 94 Id., para. 98: “[T]he minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety – as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candour in an administrative process.” 95 Id., paras. 100–140. 96 Id., paras. 115–116.

900

Richard Happ and Noah Rubins

noted that neither the arbitration proceedings nor the legal proceedings against Banobras (which the City had joined on the side of Banobras) constituted a denial of justice. The Tribunal did not consider relevant the fact that the City had used obstructive litigation tactics: “The point is that a litigant cannot commit a denial of justice unless its improper strategies are endorsed and acted on by the court, or unless the law gives it some extraordinary privilege which leads to a lack of due process.”97 b) Expropriation The Tribunal then considered the claim that Acaverde’s enterprise in Acapulco had been expropriated.98 As before, it first reviewed the standard implied in Article 1110 of NAFTA and the previous NAFTA awards upon which Claimant relied. The Tribunal noted that none of Acaverde’s physical assets had been taken, nor had there been any direct or indirect expropriation of the enterprise as such: “Acaverde at all times had control and use of its property. It was able to service its customers and to collect fees from them.”99 The City’s breach of the contract in failing to pay Acaverde’s invoices did not amount to an expropriation, since the City had never unilaterally repudiated or tried to terminate the contract by exercising legislative authority.100 Next, the Tribunal analyzed whether the persistent and serious breach of contract by the city might constitute at least an expropriation of Acaverde’s contractual rights.101 Reviewing several precedents, it concluded: “Non-compliance by a government with contractual obligations is not the same thing as, or equivalent or tantamount to, an expropriation.” Breach of contract might only amount to an expropriation if the breach was committed in the exercise of governmental power or if it was accompanied by a foreclosure of the right of the investor to seek remedy with the courts.102 These requirements had not been fulfilled, and the Tribunal concluded that no expropriation had taken place. The Tribunal thus dismissed Waste Management’s claims in their entirety. 97

Id., para. 131. Id., paras. 141–178. 99 Id., para. 159. 100 Id., para. 161. 101 Id., paras. 163–178. 102 Id., paras. 174–175. 98

Awards and Decisions of ICSID Tribunals in 2004

901

J. MTD Equity Sdn. Bhd. and MTD Chile SA v. Republic of Chile (Case No. ARB/01/7) The MTD Tribunal rendered its award on 25 May 2004.103 The Tribunal consisted of Andrés Rigo Sureda as President and Marc Lalonde and Rodrigo Blanco as Members of the Tribunal. It is noteworthy that this was the second Tribunal composed in this case: The first Tribunal, composed of James Carter Jr., Professor Michael Reisman and Guillermo Aguilar Alvarez, resigned when the parties did not accept their proposed rate of fees. I. The Dispute

The dispute arose out of the pre-investment conduct of Chilean state authorities. The Malaysian company MTD Equity Sdn. Bhd. undertook the first steps to invest in Chile in 1996. The idea was to develop land in the town of Pique as a residential community. Although the land was zoned for agricultural use, the landowner suggested to MTD that the land could easily be re-zoned. However, MTD did not apply due diligence in this regard. After MTD and the landowner had signed the contract, the Chilean Foreign Investment Commission (FIC) approved the planned investment of US$ 17.136 million. The FIC was composed, inter alia, of the Minister of Economy and the Undersecretaries of Finance, Planning and Cooperation. A respective Foreign Investment Contract was signed on 18 March 1997. Subsequently, MTD initiated the investment and submitted an application for the necessary zoning changes in March 1997. After nearly one and a half years of negotiations with the competent ministry, MTD was informed in October 1998 that the project violated the government’s development policy for the Santiago area and that the project would not be approved. The Minister for Housing and Urban Development formally rejected the project on 4 November 1998.

103 MTD Equity Sdn. Bhd. and MTD Chile SA v. Republic of Chile, ARB/01/7, Award of 25 May 2004, available at: http://www.asil.org/ilib/MTDvChile.pdf (MTD Award).

902

Richard Happ and Noah Rubins

On 2 June 1999, MTD notified Chile that an investment dispute existed under the Malaysia-Chile BIT.104 Although the parties agreed to prolong the threemonth negotiation period by 30 days, they did not reach a settlement. II. The Decision

The Tribunal had no difficulty affirming its jurisdiction. Concerning the merits of the case, it found that Chile had breached its obligation to provide MTD fair and equitable treatment. It rejected all of MTD’s further claims and awarded only a portion of the damages requested. In defining the standard of ‘fair and equitable treatment’ under the BIT, the Tribunal relied primarily upon the description of the concept in Tecmed v. Mexico: “[T]o provide an international investments treatment that does not affect the basic expectation that were taken into account by the foreign investor to make to investment.”105 The Tribunal concluded that the FIC’s approval of an investment that was against the Government’s urban policy constituted a breach of the obligation to treat investors fairly and equitably.106 The arbitrators held that the conduct of the FIC and of the ministry in rejecting the project could be attributed to the Chilean state, and found the state’s behavior to be contradictory. While it agreed that MTD should have found out by itself what the Chilean policies were, it held that “Chile also has an obligation to act coherently and apply its policies consistently, independently of how diligent an investor is. Under international law (the law this Tribunal has to apply to a dispute under the BIT), the State of Chile needs to be considered by the Tribunal as a unit.”107 However, the Tribunal observed that MTD had acted without due diligence, and that BITs were not an insurance policy against business risk. The Tribunal rejected MTD’s additional claim that Chile had violated the BIT by breaching foreign investment contracts. It found that Chile was not obliged under these contracts to grant necessary permits for the project and that they 104

Convenio entre el Gobierno de Malasia y el Gobierno de la Republica de Chile sobre la Promocion y Proteccion de las Inversiones, 11 November 1992, available at: http://www.foreigninvestment.cl/Bilateral_Investment/bits.asp. 105 Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, ARB (AF)/ 00/2, Award of 29 May 2003, para. 154. Cf. summary in Happ (note 1), 724–728. 106 MTD Award (note 103), para. 166. 107 Id., para. 165.

Awards and Decisions of ICSID Tribunals in 2004

903

were only the “initiation of a process to obtain the necessary permits.”108 It also held that the refusal to re-zone the Pique area had not been discriminatory.109 Another of MTD’s claims was based – by way of the most-favored-nation (MFN) clause – on the Chile-Croatia BIT.110 Pursuant to Article 3 para. 2 of that BIT, once Chile admitted investment to its territory, it was obliged to grant any necessary permits in accordance with its laws and regulations. The Tribunal considered that “said provision does not entitle an investor to a change of the normative framework of the country where it invests. All that an investor may expect is that the law be applied.”111 Since granting the permits for the project would have required re-zoning, the Tribunal rejected MTD’s claim. It also rejected MTD’s claim that its investment had been expropriated by the refusal to re-zone the project, since MTD had no right to make Chile change its laws.112 As regards the damages to be paid to MTD, the Tribunal held that the Chorzów Factory standard should be applied.113 Since MTD had acted without due diligence, the Tribunal considered that it should bear part of the damages suffered and estimated that share to be 50 % after deducting the residual value of the investment. That residual value was expressed in an offer that the land owner had made for the shares of MTD in the joint venture. The Tribunal further considered that the LIBOR interest rate would be appropriate and that each party should bear its own expenses and fees, as well as 50 % of the costs of ICSID and the Tribunal.

108

Id., para. 188. Id., para. 196. 110 Agreement between the Government of the Republic of Chile and the Government of the Republic of Croatia on the Reciprocal Promotion and Protection of Investments, 28 November 1994, available at UNCTAD homepage (note 6). 111 Id., para. 205. 112 Id., para. 214. 113 Id., para. 238. In Case concerning the Factory at Chorzów, Judgment of 13 September 1928, Series A, No. 17, 47, the Permanent Court of International Justice held that compensation should “wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that had not been committed.” This is also the standard under ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), 43, 51, Art. 31. 109

904

Richard Happ and Noah Rubins

K. Hussein Nuaman Soufraki v. United Arab Emirates (Case No. ARB/02/7) The award114 in the case of Hussein Nuaman Soufraki v. The United Arab Emirates was rendered on 7 July 2004. The Tribunal consisted of L. Yves Fortier as President and Judge Stephen Schwebel and Dr. Aktham El Kholy as Members of the Tribunal. I. The Dispute

The case arose on the basis of the BIT between Italy and the United Arab Emirates115 (UAE). At the heart of the dispute was a Concession Agreement between the Dubai Department of Ports and Customs and Claimant, dated 21 October 2000. The Concession Agreement awarded Claimant a concession for a period of 30 years for the purpose of developing, managing and operating the Port of Al Hamriya and its surrounding area, after which the facility was to revert to the Dubai Department of Ports and Customs. The exact cause of the dispute is unclear, but on 16 May 2002 Claimant filed a request for arbitration with ICSID, claiming that the UAE had breached its obligations under the BIT. II. The Decision

The respondent challenged the jurisdiction of the Tribunal, arguing that Claimant was not a national of Italy under Italian law and, in the alternative, that he did not possess effective Italian nationality under international law so as to entitle him to invoke the BIT. Both parties agreed that Claimant was an Italian national prior to 1991. In 1991, however, he had taken up residence in Canada and acquired Canadian nationality. As a consequence, Soufraki automatically lost his Italian nationality. The decisive question for the Tribunal was whether he had reacquired Italian nationality afterwards. 114

Hussein Nuaman Soufraki v. United Arab Emirates, ARB/02/7, Award of 7 July 2004, available at: http://ita.law.uvic.ca/documents/Soufraki.pdf (Soufraki Award). 115 Tra il Governo della Repubblica Italiana e il Governo degli Emirati Arabi Uniti sulla Promozione e Protezione degli Investimenti, 22 January 1995, available at UNCTAD homepage (note 6).

Awards and Decisions of ICSID Tribunals in 2004

905

The Tribunal first had to decide whether the documents submitted by Claimant constituted conclusive proof that he was an Italian national.116 As proof of Italian nationality, Claimant had submitted Certificates of Nationality issued by the Italian authorities, his passports, and a letter from the Italian foreign ministry. The Tribunal considered itself not bound by these documents. It noted that under international law an international tribunal faced with a challenge to a person’s nationality was authorized to decide for itself whether that person was a national of that state.117 While it agreed with Professor Schreuer that certificates of nationality should be given appropriate weight, it noted that such documents did not preclude a contrary decision by the Tribunal.118 Analyzing the submitted documents in detail, the Tribunal found no evidence that the Italian officials who issued the certificates were aware that Claimant had lost his Italian nationality. In cross-examination, Claimant also had to admit that he had not informed any Italian official of his loss of nationality, since he himself did not believe that he had lost it. Consequently, the Tribunal held that Claimant could not rely on any of these certificates or on the letter of the Italian foreign ministry.119 The Tribunal was therefore compelled to determine for itself whether Claimant reacquired Italian nationality after 1991. Italian law provided for that possibility, requiring only the taking up of residence in Italy for a period of not less than a year. Reviewing the evidence submitted, it found that Claimant could not prove that he had fulfilled this requirement and thus concluded that he was not an Italian national.120 As a result, the Tribunal decided that the dispute was outside its jurisdiction. L. PSEG Global Inc., The North American Coal Corporation, and Konya Ilgin Elektrik Üretim ve Ticaret Limited Sirketi v. Republic of Turkey (Case No. ARB/02/5) The Tribunal in PSEG Global Inc., The North American Coal Corporation, and Konya Ilgin Elektrik Üretim ve Ticaret Limited Sirketi v. Republic of Turkey

116 117 118 119 120

Id., paras. 53–68. Id., para. 55. Id., para. 63. Id., paras. 66–68. Id., para. 81.

906

Richard Happ and Noah Rubins

rendered its decision on jurisdiction on 4 June 2004.121 The Tribunal consisted of Professor Francisco Orrego Vicuña as President and L. Yves Fortier and Professor Gabrielle Kaufmann-Kohler as Members of the Tribunal. I. The Dispute

The dispute in PSEG arose out of a project to build a coal-fired electric energy production facility in the Turkish province of Konya. After initial approval of the project contracts, additional analysis revealed that costs would be significantly higher than previously estimated. As a result, PSEG sought revision of the project to change certain fundamental terms. Most important in this regard was the capacity of the plant, which PSEG insisted had to be increased in order to recoup the additional expenses it would incur in construction. II. The Decision

Turkey raised four jurisdictional objections. First, it insisted that there had been no ‘investment’ within the meaning of the US-Turkey BIT,122 since the parties to the concession contract had never reached accord on fundamental commercial terms, and there had not been any “meeting of the minds” as necessary to create a binding contract.123 The Tribunal disagreed, distinguishing Mihaly v. Sri Lanka and Zhinvali v. Georgia as cases where far less progress had been made towards the conclusion of an investment contract.124 The Tribunal found that the concession contract itself provided for the revision of commercial terms and therefore could not be said to be incomplete merely as a result 121 PSEG Global Inc., The North American Coal Corporation, and Konya Ilgin Elektrik Üretim ve Ticaret Limited Sirketi v. Republic of Turkey, ARB/02/5, Decision on Jurisdiction of 4 June 2004, available at: http://www.asil.org/ilib/psegdecision.pdf (PSEG Decision). 122 Treaty between the United States of America and the Republic of Turkey concerning the Reciprocal Encouragement and Protection of Investments, 3 December 1985, available at UNCTAD homepage (note 6). 123 Id., para. 67. 124 Id., para. 103; Mihaly International Corp. v. Democratic Socialist Republic of Sri Lanka, ARB/00/2, Award of 15 March 2002, available at ICSD homepage (note 38); Zhinvali Development Ltd. v. Republic of Georgia, ARB/00/1, Award of 24 January 2003, summarized in Happ (note 1), 721–722.

Awards and Decisions of ICSID Tribunals in 2004

907

of the disagreement over plant capacity and other elements.125 The arbitrators concluded with the rhetorical question, “if the parties did not intend to bind themselves by means of a Contract, why would they then have signed, submitted for approval and executed a Contract?”126 The Tribunal dismissed the objection, stating pointedly: “A contract is a contract.”127 Turkey next objected that the dispute did not arise “directly out of an investment” as required by the BIT and Washington Convention. The Respondent contended that since there was no “investment agreement” or authorization, there could be no treaty rights associated with an investment.128 The Tribunal quickly disposed of this objection. Since it had held that the concession contract was valid and binding, it constituted an “investment agreement” and the permits PSEG had acquired were likewise investment authorizations.129 The Tribunal concluded that “the dispute concerned arises directly out of an investment in terms of the interpretation and application of the Contract and the investment authorization, as well as in terms of Treaty rights connected to this investment that could have been compromised.”130 Turkey’s third objection related to its notification pursuant to Article 25 para. 4 of the Washington Convention. Turkey had notified ICSID in 1989 that “only the disputes arising directly out of investment activities which have obtained necessary permission in conformity with the relevant legislation of the Republic of Turkey on foreign capital and that have effectively started shall be subject to the jurisdiction of the Centre.”131 Turkey argued that this qualification represented a narrowing of ICSID jurisdiction applicable to all of the country’s investment treaties and that, since construction of the plant had never actually begun, there could be no valid ICSID claim.132 PSEG countered that notifications under Article 25 para. 4 are for information purposes only and cannot alter the scope of jurisdiction under the Washington Convention or the terms of consent contained in a BIT. The Tribunal agreed with Claimants, concluding that 125 126 127 128 129 130 131 132

PSEG Decision (note 121), paras. 94–96. Id., para. 103. Id., para. 104. Id., para. 107. Id., paras. 114–123. Id., para. 124. Id., para. 125. Id., para. 126.

908

Richard Happ and Noah Rubins

“notifications under Article 25 (4) do not have a life of their own and are wholly dependent on the consent mechanism.”133 Next, the Tribunal examined Turkey’s objection that the applicable BIT required Claimants to exhaust any previously agreed dispute settlement procedures before resort to international arbitration.134 Turkey alleged that an ICSID arbitration clause was deleted from the final version of the concession contract and that this was done on the understanding that Turkey’s administrative court – the Danistay – had exclusive jurisdiction over disputes concerning Concession Contracts under Turkish law.135 The Tribunal found that the deletion of an ICSID clause from the contract did not constitute an agreement to the Danistay’s exclusive jurisdiction. “Otherwise treaties would be subject to unilateral derogation by one party.”136 The Tribunal also briefly discussed the distinction between treaty claims and contract claims, noting that even had there been a forum selection clause, it was not clear that BIT claims would have been excluded as a result.137 Finally, the Tribunal addressed the question of Claimants’ ius standi. Turkey argued that the North American Coal Corporation (NACC) and the Turkish operating company lacked standing. NACC was not a signatory to the concession contract, and its rights arose out of a related but ancillary transaction to operate the coal mine that would fuel that power plant.138 According to Turkey, the operating company, meanwhile, was not a U.S. company as required by the BIT. Under the treaty, a company incorporated in Turkey must have existed before the events giving rise to the dispute for it to be considered a national of the United States. The operating company had been formed two years after the disputed events occurred.139 Claimants countered that NACC owned a 25 % interest in the operating company and all of its assets, including the concession contract. As to the operating company, Claimants insisted that it was formed after long 133

Id., para. 139. Id., para. 149; US-Turkey BIT (note 122), Art. VI para. 2 (“dispute shall be submitted for settlement in accordance with any previously agreed, applicable dispute settlement procedures”). 135 PSEG Decision (note 121), para. 151. 136 Id., para. 164. 137 Id., paras. 169–173. 138 Id., paras. 175–176. 139 Id., para. 177. 134

Awards and Decisions of ICSID Tribunals in 2004

909

negotiations with Turkish officials and that many of the events in question occurred after incorporation.140 With regard to the Turkish project company, the Tribunal noted that it was long intended to be the government’s interlocutor and that incorporation was delayed due to disagreements as to the proper corporate form.141 In its previous form as a branch office, the local company was closely linked to the transaction, and “whatever rights or interests the branch office had were transferred to the new company as its successor in law and business.”142 However, the Tribunal’s conclusion as to the status of NACC was different. It found that NACC’s shareholder status was essentially a mere option to acquire equity and that the company’s role was mainly as a mere service provider to the operating company under a separate agreement.143 The Tribunal rejected a legal opinion submitted by Rudolph Dolzer to the effect that the treaty definition of investment refers to any right, even one that can be exercised in the future.144 “Any interest, which the investor [PSEG] may eventually have, may accrue, in part, to NACC, if the latter still has an ongoing equity participation in the investor company. But this is a matter which concerns only intra-corporate arrangements that are separate and distinct from any Treaty connection between NACC and the Respondent.”145 The Tribunal concluded with a reference to the Enron case, stating that “the corporate linkages can be recognized for the purpose of the jurisdiction of an arbitral tribunal to the extent that the consent to arbitration is considered to extend to a given entity, but not beyond. NACC is beyond the reach of the consent to arbitration as far as the Respondent is concerned.”146 The Tribunal dismissed NACC from the arbitration, while affirming its jurisdiction with regard to the other two Claimants.147

140 141 142 143 144 145 146 147

Id., paras. 178–180. Id., paras. 183–184. Id., para. 184. Id., paras. 188–189. Id., para. 190. Id., para. 192. Id., para. 193; Enron II (note 24). PSEG Decision (note 121), para. 194 et seq.

910

Richard Happ and Noah Rubins

M. Siemens A.G. v. The Argentine Republic (Case No. ARB/02/8) The Tribunal consisted of Dr. Andrés Sureda as President and Judge Charles Brower and Professor Domingo Janeiro as Members. It rendered its decision on jurisdiction on 3 August 2004.148 The dispute arose on the basis of the GermanArgentine BIT.149 I. The Dispute

The dispute arose out of a contract to establish a system of migration control and personal identification. Siemens had participated in the bid through a local corporation (SITS) and had been awarded the contract, which was signed in 1998. The contract had a term of six years, with the possibility of two extensions of three years each. After a new government came to power in December 1999, it suspended the contract in February 2000, allegedly because of technical problems. The contract was finally terminated by Respondent on 18 May 2001. SITS filed three administrative appeals against the termination, all of which were rejected. On 23 July 2001, Siemens notified Respondent of a breach of the BIT. Negotiations during the six-month cooling-off period were unsuccessful. On 23 March 2002, Siemens initiated ICSID arbitration proceedings. II. The Decision

Argentina presented eight objections to jurisdiction, all of which were rejected by the Tribunal. The first objection was that “Siemens had breached factual and temporal requirements of the Treaty.” The objection related to the question whether Siemens could rely – by operation of the MFN clause in the BIT – on the 148 Siemens A.G. v. The Argentine Republic, ARB/02/8, Decision on Jurisdiction of 3 August 2004, available at: http://www.asil.org/ilib/Siemens_Argentina.pdf (Siemens v. Argentina Jurisdiction). 149 Treaty between the Federal Republic of Germany and the Argentine Republic concerning the Reciprocal Encouragement and Protection of Investments, 9 April 1991, German Federal Law Gazette (BGBl.), vol. 1993-II, 1244.

Awards and Decisions of ICSID Tribunals in 2004

911

Argentine-Chile BIT150 to avoid a requirement that the dispute be submitted to local courts before an ICSID claim could be filed. The BIT contained provisions on MFN treatment in Articles 3 para. 1, 3 para. 2 and 4 para. 4. The Tribunal first held that the MFN clauses in Article 3, which related to ‘treatment,’ did not limit the treatment to be provided to transactions of a commercial and economic nature. Rather, ‘treatment’ referred to treatment in general.151 Although the clear wording of the MFN clauses in Article 3 referred only to ‘investments’ and not to ‘investors,’ the Tribunal concluded: The Treaty is a treaty to promote and protect investments, investors do not figure in the title. Fair and equitable treatment would be reserved to investments, and denial of justice to an investor would be excluded. While these considerations may follow a strict logical reasoning based on the terms of the Treaty, their result does not seem to accord with its purpose. More consistent with it is to consider that, in Article 3, treatment of the investments included treatment of the investor and hence the need to provide for exceptions that refer to them.152

The Tribunal further concluded that access to dispute settlement mechanisms was part of the ‘treatment’ of foreign investors and investments, and thus could be imported through operation of an MFN clause. The arbitrators thus concurred with the findings of the Tribunal in Maffezini.153 It further held that an investor could “pick and choose,” i.e. that claiming a benefit by the operation of the MFN clause did not trigger the application of all provisions of the treaty invoked.154 The Tribunal thus rejected the first objection to jurisdiction. The second jurisdictional objection directly related to the first. Argentina argued that if Siemens could rely on the Chile BIT, then the “fork-in-the-road” clause in that treaty applied and – since the dispute had been submitted by SITS to the administrative tribunals – the Tribunal was without jurisdiction. The Tribunal again rejected an understanding of the MFN clause which would mean that claiming one benefit by way of an MFN clause would mean importing the whole treaty: 150

Tratado entre la Republica Argentina y la Republica de Chile sobre Promocion y Proteccion Reciproca de Inversiones, 2 August 1991, available at UNCTAD homepage (note 6). 151 Siemens v. Argentina Jurisdiction (note 148), para. 85. 152 Id., para. 92. 153 Id., paras. 102–103. Cf. Emilio Agustin Maffezini v. The Kingdom of Spain, ARB/ 97/7, Decision on Objections to Jurisdiction of 25 January 2000, available at ICSID homepage (note 38), para. 60. 154 Siemens v. Argentina Jurisdiction (note 148), para. 109.

912

Richard Happ and Noah Rubins

This understanding of the operation of the MFN clause would defeat the intended result of the clause which is to harmonize benefits agreed with a party with those considered more favourable granted to another party. It would oblige the party claiming a benefit under a treaty to consider the advantages and disadvantages of that treaty as whole than just the benefits.155

The Tribunal therefore rejected the Respondent’s second jurisdictional objection. In its third and fourth jurisdictional objections, Argentina argued that Siemens lacked ius standi, since the BIT required a direct relationship between investor and investment, but Siemens was not a direct holder of the shares. Argentina insisted that shareholders have no standing to claim for damages suffered by the company in which they own shares. The Tribunal responded that, in its opinion, shares held by a German company in an Argentine company constituted protected investments under the BIT.156 It did not agree with Argentina’s argument that a particular provision in the BIT concerning expropriation of assets in which an investor holds shares was an indication that indirect claims would not be allowed under other provisions of the BIT.157 The arbitrators noted that this conclusion was in line with its understanding of previous ICSID jurisprudence and that Siemens thus had ius standi.158 The Tribunal next held that the dispute arose directly out of an investment159 and was not merely hypothetical.160 The Tribunal also found no merit in the further objection that Claimant had never properly notified Argentina of the dispute.161 Nor did the Tribunal consider relevant the forum selection clause of the contract, which provided for the submission of disputes to the Federal Administrative and Contentious Courts of Buenos Aires. The Tribunal concurred with decisions of previous ICSID Tribunals, and especially the Vivendi Annulment Tribunal, that treaty claims and contract claims can be differentiated and that only contract claims are subject to contractual forum selection clauses. It found that the “dispute as formulated by the Claimant is a dispute under the Treaty”162 and rejected the eighth objection to jurisdiction. 155 156 157 158 159 160 161 162

Id., para. 120. Id., para. 137. Id., para. 140. Id., para. 144. Id., para. 150. Id., para. 160. Id., paras. 170–173. Id., para. 180.

Awards and Decisions of ICSID Tribunals in 2004

913

The Tribunal concluded by finding that it had jurisdiction and decided to proceed to the merits of the case. N. Joy Mining Machinery Ltd. v. Arab Republic of Egypt (Case No. ARB/03/11) The Tribunal in Joy Mining Machinery Ltd. v. Arab Republic of Egypt rendered its award on jurisdiction on 6 August 2004.163 The Tribunal consisted of Francisco Orrego Vicuña as President and C. G. Weeramantry and William Laurence Craig as Members of the Tribunal. I. The Dispute

The dispute in Joy Mining arose out of a 1998 transaction between the British claimant corporation and an Egyptian state-owned company, IMC, related to IMC’s ongoing management of the exploitation of phosphate resources in the Egyptian desert.164 Under the terms of the primary contract, IMC was to purchase mining equipment from Joy Mining, and Joy Mining provided bank guarantees which the buyer could hold until satisfied with the quality of the equipment supplied. The contract also included a dispute resolution clause, submitting disputes related to the quality of the equipment to arbitration by the United Nations Commission on International Trade Law (UNCITRAL) in Cairo, Egypt. Not long after delivery, IMC experienced problems with the equipment. Joy Mining insisted that any failings were due to geological conditions at the site and the buyer’s substandard maintenance. Because of this dispute, IMC refused to release the letters of quality guarantee that it received under the contract. Ulti-

163

Joy Mining Machinery Ltd. v. Arab Republic of Egypt, ARB/03/11, Award on Jurisdiction of 6 August 2004, available at: http://www.asil.org/ilib/JoyMining_Egypt.pdf (Joy Mining Decision). 164 Commentary on Joy Mining can be found in Nick Gallus, No Joy for British Mining Company at ICSID, Oil, Gas & Energy Law Intelligence, vol. 2, 2004, available at: http://www.gasandoil.com/ogel/; Farouk Yala, La notion d’investissement, Les cahiers de l’arbitrage, vol. 15, 2004, 7–19.

914

Richard Happ and Noah Rubins

mately, Joy Mining brought a claim against Egypt under the U.K.-Egypt BIT,165 alleging breach of a range of substantive protections including free transfer of funds, national treatment, full protection and security, and fair and equitable treatment, as well as the ‘umbrella clause’ requiring observation of undertakings. Egypt objected to the jurisdiction of the Tribunal on three grounds. First, it argued that the forum selection clause in the contract should be respected, excluding all ICSID claims falling within its scope. Second, Egypt insisted that the state could not be held responsible for IMC’s actions, and therefore there were no breaches of the BIT that could be subject to ICSID arbitration. Finally, the Respondent took the position that Claimant had no ‘investment’ within the definition of the BIT and the Washington Convention.166 II. The Decision

Addressing the initial issue of the burden of proof on questions of jurisdiction, the Tribunal appeared to take a somewhat stricter approach than in some previous cases. It held that while the Tribunals in Maffezini, CMS, Azurix and others required only a prima facie showing that all jurisdictional requirements were satisfied, “[i]f […] the parties have such divergent views about the meaning of the dispute in the light of the Contract and the Treaty, it would not be appropriate for the Tribunal to rely only on the assumption that the contentions presented by the Claimant are correct.”167 The Tribunal then tackled the question whether Joy Mining owned an investment within the meaning of the BIT and the Washington Convention. The Egypt-U.K. BIT, in its Art. 1 lit. a, contained a broad and non-exhaustive list of assets considered to be ‘investments.’ The arbitrators considered whether a bank guarantee such as Joy Mining had given to IMC fell within the scope of this definition. Without a great deal of explanation, the Tribunal concluded that a “contingent liability” such as a bank guarantee cannot be seen as an “asset,” and that to do so would “go far beyond the concept of investment, even if broadly 165

Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Arab Republic of Egypt for the Promotion and Protection of Investments, 11 June 1975, available at UNCTAD homepage (note 6). 166 Joy Mining Decision (note 163), para. 26. 167 Id., para. 30.

Awards and Decisions of ICSID Tribunals in 2004

915

defined.”168 The Tribunal then considered whether the guarantee could be considered a “pledge” or “claim to money or to any performance under contract having a financial value,” to other investment types specified in the BIT. The answer was negative: “Even if a claim to return of performance and related guarantees has a financial value it cannot amount to recharacterizing as an investment dispute a dispute which in essence concerns a contingent liability.”169 Although it had already determined that Joy Mining’s guarantee letters did not fall within the scope of BIT protection, it examined the scope of ICSID jurisdiction as well. The Tribunal reaffirmed the objective nature of ICSID jurisdiction, insisting that “[t]he parties to a dispute cannot by contract or treaty define as investment, for the purpose of ICSID jurisdiction, something which does not satisfy the objective requirements of Article 25 of the Convention.”170 The arbitrators listed these objective criteria as duration, regularity of profit and return, an element of risk, a substantial commitment, and contribution to the host state’s development.171 The Tribunal found the Joy Mining transaction lacking in several of these areas: The duration of the commitment was short, with the purchase price paid at an early stage; there was no regularity of return; and the risk involved was purely commercial in nature.172 The transaction was therefore found to be outside the scope of ICSID jurisdiction, because it did not constitute an ‘investment’ for purposes of Article 25 of the Washington Convention. The second objection to jurisdiction Egypt raised was that Joy Mining had presented no claims based on treaty breaches attributable to Egypt, since the case was based on a breach of contract by IMC. First, the arbitrators canvassed cases such as Wena, CMS and SGS v. Pakistan to distinguish between actionable and non-actionable contract breaches for treaty purposes. They noted that in SGS, the Tribunal had referred certain aspects of contractual claims to local ju-

168

Joy Mining Decision (note 163), para. 45. Id., para. 47 (distinguishing Fedax N.V. v. Republic of Venezuela, ARB/96/3, Decision on Jurisdiction of 11 July 1997, ILM, vol. 37, 1998, 1378). 170 Id., para. 50. 171 Id., para. 53; Christop H. Schreuer, The ICSID Convention: A Commentary, 2001, 140; Noah Rubins, The Notion of “Investment” in International Investment Arbitration, in: Norbert Horn (ed.), Arbitrating International Investment Disputes, 2004, 283, 297–300. 172 Joy Mining Decision (note 163), para. 57. 169

916

Richard Happ and Noah Rubins

risdiction, while retaining jurisdiction over treaty-based claims.173 “In the present case,” the Tribunal explained, “the situation is rendered somewhat simpler by the fact that a bank guarantee is clearly a commercial element of the Contract.”174 According to the decision, none of the treaty breaches alleged could be distinguished from the merits of the commercial dispute over the quality of the mining equipment. The arbitrators added that the presence of an ‘umbrella clause’ in the applicable BIT could not alter this conclusion. The Tribunal interpreted the ‘umbrella clause’ of the BIT more narrowly than some other ICSID Tribunals, holding that it could not be held that an umbrella clause inserted in the Treaty, and not very prominently, could have the effect of transforming all contract disputes into investment disputes under the Treaty, unless of course there would be a clear violation of the Treaty rights and obligations or a violation of contract rights of such a magnitude as to trigger the Treaty protection, which is not the case.175

Finally, the Tribunal addressed the effect of the UNCITRAL arbitration clause in the equipment supply contract. In light of its decision that Joy Mining’s complaint amounted to a simple breach of contract claim, the Tribunal found the situation to be precisely that envisaged in the Vivendi Annulment Award, where the ad hoc panel theorized that “[i]n a case where the essential basis of a claim brought before an international tribunal is a breach of contract, the tribunal will give effect to any valid choice of forum clause in the contract.”176 Joy Mining protested that IMC and Egypt would defy the UNCITRAL clause and default on any award rendered by such an arbitration tribunal. The Tribunal rejected this argument, relying upon official statements made by IMC and the government of Egypt during the ICSID proceedings to the effect that IMC would consent to contractual arbitration and abide by any resulting award.177 The Tribunal considered that such declaration was binding under international law and provided sufficient assurance to Joy Mining that it would have resolution of its dispute with IMC in an arbitral forum if it so desired.178 173

Id., para. 77; SGS v. Pakistan (note 44), para. 162. Joy Mining Decision (note 163), para. 78. 175 Id., para. 81. 176 Id., para. 90 (citing Vivendi Annulment (note 61), para. 98). 177 Id., para. 95. 178 PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 April 1933, Series A/B, No. 53, 52; ICJ, Nuclear Tests Case (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, 253. 174

Awards and Decisions of ICSID Tribunals in 2004

917

O. Salini Construttori S.p.A. and Italstrade S.p.A. v. Hashemite Kingdom of Jordan (Case No. ARB /02/13) In this dispute (not to be confused with the previously decided dispute brought to ICSID by the same Claimants against Morocco179), the Decision on Jurisdiction180 was rendered by H.E. Judge Gilbert Guillaume as President and Bernardo Cremades and Ian Sinclair as Members of the Tribunal. It is unclear when the decision was rendered or dispatched to the parties, but the arbitrators signed it between 9 and 15 November 2004. I. The Dispute

The dispute arose out of a construction contract. In 1993, Claimants were awarded a public works contract entitled “Construction of the Karameh Dam Project.” The contract was signed between the two Claimant companies as contractor and the Ministry of Water and Irrigation – Jordan Valley Authority (JVA) as Employer. The work was completed in October 1997. Under the contract, Claimants had to submit their claims for payment to an engineer appointed by the Employer. The function of the engineer was to verify these claims and to certify to the employer the amount due. On 22 April 1999, Claimants submitted to the engineer and to the Kingdom of Jordan a draft final statement setting out the total outstanding amount claimed to be due, equivalent to about US$ 28 million. On 25 May 1999, the engineer informed the contractor that, according to his estimate, it was only entitled to about US$ 49,140. Subsequent negotiations between the parties failed, and in late 2000 Claimants were informed that only the sum determined by the Engineer would be paid. In December 2001, Claimants notified Jordan that they considered this to be a breach of the BIT between Italy and Jordan.181 On 8 August 2002, they filed a request for arbitration with ICSID. 179

Salini v. Morocco (note 14). Salini Construttori S.p.A. and Italstrade S.p.A. v. Hashemite Kingdom of Jordan, ARB /02/13, Decision on Jurisdiction of 29 November 2004, available at ICSID homepage (note 38) (Salini v. Jordan Jurisdiction). 181 Agreement between the Government of the Hashemite Kingdom of Jordan and the Government of the Italian Republic on the Promotion and Protection of Investments, 22 July 1996, available at UNCTAD homepage (note 6). 180

918

Richard Happ and Noah Rubins

II. The Decision

The Tribunal first had to decide whether Article 9 para. 2 of the BIT excluded its jurisdiction for claims related to the breach of the contract. That provision reads as follows: “In case the investor and an entity of the Contracting Parties have stipulated an investment Agreement, the procedure foreseen in such investment Agreement shall apply.” The Tribunal analyzed the contract and the role of the JVA under Jordanian law and came to the conclusion that Article 9 para. 2 applied, since the JVA was an entity of Jordan. Thus, also the dispute settlement procedure of the contract applied to the dispute between the parties. The Tribunal rejected Claimants’ additional argument that contractual claims could still be submitted as treaty claims, since this would render Article 9 para. 2 ineffective and useless.182 Also, the contractual dispute did not arise between Claimants and Jordan, but between Claimants and the JVA. Relying on the decisions in Salini v. Morocco183 and RFCC v. Morocco,184 it noted that BIT jurisdiction could not be extended to cover breaches of a contract to which the state was not a party. The Tribunal next had to deal with Claimants’ argument that jurisdiction could be based – via the MFN clause of the BIT – on the investment treaties concluded by Jordan with the United States and United Kingdom, as these treaties contained no clause analogous to Article 9 para. 2.185 The Tribunal began by analyzing a range of international arbitration precedents, including Ambatielos and Maffezini. It shared concerns about possible disruptive ‘treaty shopping’ raised in connection with the Maffezini decision.186 The Tribunal ruled that the scope of application of the MFN clause could not extend to the conditions of dispute settlement. The Tribunal also considered that the scope of the clause could not be extended. Claimants had not submitted any proof (as the Commission of Arbitration had sought in Ambatielos) that the parties had intended to include dispute settlement within the ambit of MFN treatment. Claimants also failed to show that it was the Respondent’s subsequent practice (as had the Tribunal relied on in Maffezini) to conclude treaties without provisions such 182

Salini v. Jordan Jurisdiction (note 180), paras. 92–96. Salini v. Morocco (note 14), paras. 60–62. 184 Consortium RFCC v. Kingdom of Morocco, ARB/00/6, Award of 22 December 2003, paras. 67–69, available at ICSID homepage (note 38). 185 Salini v. Jordan Jurisdiction (note 180), paras. 101–119. 186 Id., para. 115. 183

Awards and Decisions of ICSID Tribunals in 2004

919

as Article 9 para. 2. Thus, the Tribunal concluded that the scope of the MFN clause did not extend to dispute settlement.187 Claimants further argued that Article 2 para. 4188 of the BIT, read together with other provisions, constituted an ‘umbrella clause.’ Therefore, they asserted, the Tribunal had jurisdiction to consider their contractual claims regardless of the effect of Article 9 para. 2. The Tribunal noted that Article 2 para. 4 was formulated differently from the clauses in the SGS v. Pakistan and SGS v. Philippines cases and concluded that the Jordanian treaty language could not be considered an umbrella clause.189 The Tribunal then examined the jurisdictional objections against the treaty claims. Jordan argued that the request for arbitration disclosed no arguable case that there had been a breach of the BIT. The Tribunal rejected this argument and observed that Claimants were free to characterize their claims as they deemed appropriate.190 Mere assertions of a breach, however, would not suffice: The Tribunal would have to be convinced of its jurisdiction with regard to each and every claim. Examining, inter alia, the decisions in the ICSID cases SGS v. Philippines,191 Wena Hotels192 and several ICJ cases,193 the Tribunal sought to “determine whether the facts alleged by Claimants in this case, if established, are capable of coming within those provisions of the BIT which have been invoked.” The Tribunal thus established a duty of substantiation of claims. Since Claimants’ main complaint was breach of contract, the Tribunal started its examination by noting that not every breach of an investment contract could be re-

187

Id., para. 119. That provision reads as follows: „Each Contracting Part shall create and maintain in its territory a legal framework apt to guarantee to investors the continuity of legal treatment, including the compliance, in good faith, of all undertakings assumed with regard to each specific investor.” 189 Salini v. Jordan Jurisdiction (note 180), para. 130. 190 Id., para. 136. 191 SGS v. Philippines Jurisdiction (note 38). 192 Wena Hotels Ltd. v. Arab Republic of Egypt, ARB/98/4, Decision on Jurisdiction of 25 May 1999, ILM, vol. 41, 2002, 881 et seq. 193 ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment of 12 December 1996, ICJ Reports 1996-II, 803; ICJ, Ambatielos (Greece v. United Kingdom), Merits, Judgment of 19 May 1953, ICJ Reports 1953, 10; ICJ, Legality of Use of Force (Yugoslavia v. Italy), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, 481. 188

920

Richard Happ and Noah Rubins

garded as a breach of a BIT. Citing the Tribunal in RFCC v. Morocco, the arbitrators stated: In order that the alleged breach of contract may constitute unfair or unequitable treatment, it must be the result of behaviour going beyond that which an ordinary contracting party could adopt. Only the state, in the exercise of its sovereign authority (puissance publique), and not as a contracting party, has assumed obligations under the bilateral agreement.194

Looking then in detail at the complaints brought forward, it found that Salini’s claim for breach of fair and equitable treatment fell short of this standard: “They present no argument, and no evidence whatsoever, to sustain their treaty claim and they do not show that the alleged facts are capable of falling within the provisions of Article 2 (3).”195 Consequently, the Tribunal concluded that it had no jurisdiction to consider that claim. Claimants had advanced a second treaty claim of discrimination. Allegedly, Jordan had refused to consent to contractual arbitration upon request, while offering such consent to other similarly-situated foreign investors. While the Tribunal observed that this claim was also insufficiently substantiated, it did not rule out the possibility that there might be a breach of the BIT and rejected Jordan’s jurisdictional objection.196 Jordan raised an additional objection concerning jurisdiction ratione temporis, claiming that the parties’ dispute arose before the BIT entered into force. But since the Tribunal had excluded all contractual claims and the alleged breach of fair and equitable treatment from its jurisdiction, it only needed to decide about the claim of discrimination. Since that claim arose after the entry into force of the BIT, the Tribunal found it had jurisdiction ratione temporis to hear the claim for alleged discrimination.197 P. Concluding Remarks 2004 has been an even more interesting year than 2003, especially in the area of jurisdictional issues. There now seems to be a solid trend of jurisprudence in194 195 196 197

Salini v. Jordan Jurisdiction (note 180), para. 155. Id., para. 163. Id., paras. 164–166. Id., paras. 167–178.

Awards and Decisions of ICSID Tribunals in 2004

921

dicating that indirect and minority shareholders can bring claims under ICSID, provided that they qualify as ‘investors’ under the definition of the applicable investment treaty. At the same time, some conflicting decisions have emerged as to an investor’s ability to initiate ICSID arbitration by merely asserting that it has a treaty claim. The decisions in SGS v. Philippines, Joy Mining and Salini v. Jordan indicate that contractual jurisdiction clauses may be given predominant effect and that Claimant could be required to prove the validity of a separate treaty claim as early as in the jurisdictional phase. Siemens v. Argentina and Salini v. Jordan also demonstrate conflicting opinion among tribunals on the scope of MFN clauses. On the substance of BIT protections, there appears to be growing support for the notion that before a breach of contract will amount to a breach of an investment treaty, the state must have acted in the exercise of its sovereign powers, rather than as an “ordinary” contractual partner. Furthermore, the ‘transparency’ standard established in the Tecmed award has been bolstered by the MTD decision and was indirectly confirmed in Waste Management. The overview of this year’s awards and decisions also indicates that ICSID Tribunals cannot be expected to blindly follow prior ICSID awards. ICSID arbitrators are clearly aware of the decisions already rendered on similar issues, but sometimes come to very different and even contradictory conclusions. This trend should be recognized as an asset rather than a drawback of the ICSID system. While in the short run contradictory decisions may produce some legal uncertainty, ultimately it is only through such repeated and critical examination that the standards of international investment law can emerge with clarity and stable coherence, to the benefit of both states and investors.

Die Tätigkeit der International Law Commission im Jahre 2004 Von Sara Jötten A. Einleitung Die 56. Sitzungsperiode der International Law Commission (ILC) fand vom 3. Mai bis zum 4. Juni sowie vom 5. Juli bis zum 6. August 2004 in Genf statt. Die Kommission beschäftigte sich unter dem Vorsitz von Teodor Viorel Melescanu (Rumänien) weiterhin1 mit den Themen „diplomatischer Schutz“ (B.), „Verantwortlichkeit internationaler Organisationen“ (C.) und „anteilige natürliche Ressourcen“ (D.). Fortgeführt wurde auch die Arbeit an den Themen „völkerrechtliche Haftung für Schäden aufgrund nicht völkerrechtswidriger Aktivitäten“ (E.), „einseitige Hoheitsakte“ (F.), „Vertragsvorbehalte“ (G.) und „Fragmentierung des Völkerrechts“ (H.). Änderungen in der personellen Zusammensetzung der Kommission erfolgten in der vorliegenden Sitzungsperiode nicht. B. Diplomatischer Schutz2 Die Arbeit der Kommission an dem Thema „diplomatischer Schutz“ konnte im Jahre 2004 beinahe ihrem Ende zugeführt werden. In erster Lesung verab1

Zur Tätigkeit der ILC im Vorjahr vgl. den Bericht von Björn Elberling, Die Tätigkeit der International Law Commission im Jahre 2003, German Yearbook of International Law (GYIL), vol. 46, 2003, 740–767; Michael J. Matheson/Sara Bickler, The Fifty-Fifth Session of the International Law Commission, American Journal of International Law, vol. 97, 2003, 317–324, sowie den Tätigkeitsbericht der ILC an die Generalversammlung, Report of the International Law Commission on the Work of its Fifty-Fifth Session, UN Doc. A/58/10 (2003) (ILC Report 2003). Die hier zitierten ILC Dokumente sowie weitere Informationen zur Kommission sind abrufbar unter: http://www.un.org/law/ilc/. 2 Report of the International Law Commission on the Work of its Fifty-Sixth Session, UN Doc. A/58/10 (2004), Rz. 38–60 (Kap. IV) (ILC Report 2004).

Die Tätigkeit der International Law Commission im Jahre 2004

923

schiedete die Kommission 19 Artikel, die allgemeine Vorschriften und Prinzipien, Regelungen über natürliche und juristische Personen und über die Erschöpfung des innerstaatlichen Rechtswegs sowie weitere Bestimmungen enthielten. Die Behandlung des fünften Berichts des Sonderberichterstatters Christopher John R. Dugard3 konnte aus Mangel an Zeit nicht abgeschlossen werden. Der Inhalt dieses letzten Berichts floss jedoch partiell bereits in den vierten Teil des angenommenen Konventionsentwurfs ein. I. Behandlung des fünften Berichts von Christopher John R. Dugard

In seinem fünften Bericht beschäftigte sich Sonderberichterstatter Dugard mit dem Verhältnis zwischen diplomatischem Schutz einerseits und funktionellem Schutz durch internationale Organisationen,4 dem Schutz der Schiffsbesatzung durch den Flaggenstaat5 sowie den Menschenrechten6 andererseits. Der Vorschlag des Sonderberichterstatters hinsichtlich des letzteren Aspekts schlug sich in der Annahme des Artikelentwurfs 17 nieder. Zunächst ging Dugard gemäß den Wünschen der Tschechischen Republik und Portugals auf zwei Themengebiete ein, deren Aufnahme in die Kodifikation er jedoch nicht befürwortete: auf das Thema der Delegation des Rechts bzw. von Ansprüchen auf diplomatischen Schutz und auf die Frage nach dem Schutz von Personen auf einem von einem anderen Staat kontrollierten oder besetzten oder von einer internationalen Organisation verwalteten Gebiet.7 Als Ergebnis seiner Arbeit zu dem Verhältnis zwischen diplomatischem Schutz einerseits und funktionellem Schutz durch internationale Organisationen andererseits schlug Dugard die Regelungen der Artikel 23, 24 und 25 vor. Artikel 23 und 24 statuieren lediglich, dass das Recht einer internationalen Organisation, einem Organisationsangehörigen Schutz vor einem rechtswidrigen Akt eines Staates zu gewähren, respektive das Recht des Staates, diplomatischen Schutz gegen eine internationale Organisation auszuüben, von dem Regelwerk über diplomatischen Schutz unberührt bleibt. Dugard brachte somit zum Aus3

Christopher John R. Dugard, Fifth Report on Diplomatic Protection, UN Doc. A/CN.4/538 (2004). 4 Id., Rz. 14–36. 5 Id., Rz. 44–73. 6 Id., Rz. 37–43. 7 Id., Rz. 5–13.

924

Sara Jötten

druck, dass die Klärung der in diesem Bereich strittigen Fragen einer separaten Behandlung durch die Kommission vorbehalten bleiben sollte. Die Notwendigkeit einer saving clause im Sinne des Artikels 24 bezeichnete der Sonderberichterstatter dabei als zweifelhaft und stellte auf die inhaltliche Nähe zu dem Thema „Verantwortlichkeit internationaler Organisationen“ ab. Hinsichtlich des Verhältnisses im engeren Sinne zwischen dem Schutz durch eine internationale Organisation und diplomatischem Schutz betonte Dugard hingegen die Notwendigkeit einer Regelung im vorliegenden Entwurf. Artikel 25 enthält zwei alternative Vorschläge. Zum einen trat Dugard unter Zugrundelegung der Argumentation von Clyde Eagleton8 dafür ein, dem funktionellen Schutz durch die internationale Organisation, jedenfalls im Falle der UN, Vorrang einzuräumen. Sein Alternativvorschlag folgt den Bemerkungen des IGH im Reparations for Injuries-Gutachten9 und stellt die Regel auf, dass kein Schutz grundsätzlich Vorrang habe, sondern die Priorität durch Verhandlung und Vereinbarung im Einzelfall zu ermitteln sei. In dem Reparations for InjuriesGutachten des IGH wurde die Fähigkeit einer internationalen Organisation, Schutz gegenüber ihren Angehörigen auszuüben, entwickelt und auch eine mögliche Konkurrenz zu dem Recht des Nationalstaates auf die Ausübung diplomatischen Schutzes erwähnt. Für diskussionswürdig erachtete Dugard die Problematik einer Vielzahl von Ansprüchen von Seiten der Staaten und internationaler Organisationen. Dieses Problem sei jedoch bereits durch das Prinzip der Nicht-Duplizität von Entschädigungszahlungen erfasst. Des Weiteren stehe die Möglichkeit der Ausübung von Schutz durch eine internationale Organisation auch gegen den Nationalstaat des Angehörigen im Einklang mit Artikel 6 der bereits erarbeiteten Regelungen. Schwierigkeiten bereite die Abgrenzung zwischen funktionellem und diplomatischem Schutz, in besonderem Maße aufgrund der offenen Fragen zu dem Begriff des Angehörigen (agent) und der Kontroverse, welcher Zusammenhang zwischen der Verletzung und der Ausübung von Pflichten durch den Angehörigen bestehen müsse. Im Hinblick auf die Thematik des Schutzes der Schiffbesatzung durch den Flaggenstaat setzte sich Dugard unter Zugrundelegung von Staatenpraxis, in erster Linie der Vereinigten Staaten, und der Äußerungen einzelner Richter des IGH dafür ein, einen Artikel 27 aufzunehmen, der dem Flaggenstaat das Recht 8

Clyde Eagleton, International Organization and the Law of Responsibility, Recueil des Cours, vol. 76-I, 1950, 319, 361–363. 9 IGH, Reparations for Injuries Suffered in the Service of the United Nations, Gutachten vom 11. April 1949, ICJ Reports 1949, 174, 175 ff. (Reparations for Injuries).

Die Tätigkeit der International Law Commission im Jahre 2004

925

einräumt, diplomatischen Schutz gegenüber der Schiffbesatzung ohne Beachtung ihrer Staatsangehörigkeit auszuüben, wenn ihre Verletzung im Zusammenhang mit (in the course of) der Verletzung des Schiffes durch einen völkerrechtswidrigen Akt steht. Dabei bezog er ebenfalls die in der Literatur vertretenen Meinungen, das Saiga Urteil des Internationalen Seegerichtshofs10 sowie den Gedanken eines umfassenden Schutzes der Menschenrechte in seine Überlegungen ein. Eine Erstreckung des diplomatischen Schutzes zu Gunsten der Schiffsbesatzung auch auf Schiffspassagiere, Flugzeugbesatzungen und -passagiere sowie Raumfahrtbesatzungen sei hingegen nicht dem geltenden Recht zu entnehmen. Der Sonderberichterstatter schlug vor, sollte die Kommission die Aufnahme des Artikels 27 ablehnen, wenigstens eine Regelung aufzunehmen, die deutlich mache, dass die vorliegenden Regelungen der Ausübung von Schutz durch den Flaggenstaat zugunsten der Schiffsbesatzung nicht entgegenstehen. Letzterem Vorschlag Dugards wurde dadurch entsprochen, dass die Kommission den Redaktionsausschuss bat, einen Entwurf zu der Verbindung zwischen diplomatischem Schutz und dem Schutz der Schiffsbesatzung auszuarbeiten, und diesen schließlich in erster Lesung annahm.11 Schließlich reichte der Sonderberichterstatter ein Memorandum zu dem Verhältnis zwischen der Clean Hands Doktrin und diplomatischem Schutz ein.12 Aus Zeitmangel wurde dessen Behandlung auf die nächste Sitzungsperiode verschoben. II. Die in erster Lesung angenommenen Artikel 1 bis 1913

Im Jahre 2004 nahm die Kommission 19 Regelungen in erster Lesung an und unterbreitete sie den Regierungen zur Kommentierung. Diese sollen bis zum Anfang des Jahres 2006 eingehen. Wesentliche Änderungen gegenüber den in den Vorjahren erzielten Ergebnissen finden sich dabei lediglich in Artikel 3, den Formulierungen der Artikel 9 bis 13 betreffend juristische Personen, sowie in den Artikeln 17, 18 und 19 des letzten Teils. 10

Internationaler Seegerichtshof, The M/V „Saiga“ (No. 2) (St. Vincent and the Grenadines v. Guinea), Urteil vom 1. Juli 1999, abgedruckt in: ILM, vol. 38, 1999, 1323, Rz. 103–108. 11 Siehe, infra, B. II. 2. 12 Christopher John R. Dugard, Memorandum, UN Doc. ILC(LVI)/DP/CRP.1 (2004). 13 ILC Report 2004 (Anm. 2), Rz. 59–60.

926

Sara Jötten

1. Erster und zweiter Teil: Allgemeine Vorschriften und Nationalität Im ersten Teil des Regelwerkes, Artikel 1 und 2, erfolgt eine Bestimmung des Begriffs „diplomatischer Schutz“ und dessen Umfangs. Hervorgehoben wird der Grundsatz, dass es im internationalen Recht keine Verpflichtung zur Ausübung diplomatischen Schutzes gibt.14 Im ersten Kapitel des zweiten Teils, respektive in Artikel 3, wird der Nationalstaat als Berechtigter zur Ausübung diplomatischen Schutzes bestimmt.15 Diese Vorschrift wurde von dem Redaktionsausschuss in einem allgemeinen Teil den Vorschriften über natürliche und juristische Personen vorangestellt und bezieht sich nun auf den gesamten zweiten Teil, das heißt sowohl auf natürliche als auch auf juristische Personen. Vormals fand sich die Bestimmung in dem zweiten Absatz des ersten Artikels sowie in dem ersten Absatz des vierten Artikels.16 Das zweite Kapitel setzt sich mit der Bestimmung des Nationalstaates einer natürlichen Person auseinander.17 Das dritte Kapitel widmet sich der Ausübung diplomatischen Schutzes zu Gunsten einer juristischen Person.18 Der Redaktionsausschuss entschied in Artikel 9 die Kontroverse hinsichtlich der Bestimmung des Nationalstaats eines Unternehmens dahingehend, dass als Nationalstaat eines Unternehmens derjenige Staat gilt, unter dessen Gesetz das Unternehmen gegründet wurde und in dessen Territorium das Unternehmen registriert ist oder der Sitz der Verwaltung sich befindet oder eine ähnliche Verbindung besteht. Damit kommt der Redaktionsausschuss der Forderung nach der Kombination eines Inkorporationselements einerseits und eines Kriteriums der andauernden Verknüpfung andererseits nach. Artikel 10 bestimmt ganz im Sinne des Vorschlags Dugards, dass derjenige Staat berechtigt ist, diplomatischen Schutz auszuüben, dessen Nationalität das Unternehmen sowohl zum Zeitpunkt der Verletzung als auch zu dem der Klageerhebung hat. Die Klageerhebung kann auf gerichtlichem oder diplomatischem Wege erfolgen.19 Absatz 2 bestimmt, dass dieses Recht auch bestehen bleibt, wenn es zum Zeitpunkt der Verletzung bestand und das 14

Id., 24–28. Id., 29. 16 Victor Rodriguez Cedeño, Diplomatic Protection, Statement of the Chairman of the Drafting Committee, 2–3, abrufbar unter: http://www.un.org/law/ilc/sessions/56/ Diplomatic_protection_statement_final.pdf. 17 ILC Report 2004 (Anm. 2), 29–49. 18 Id., 49–68; siehe auch Elberling (Anm. 1), 741–745. 19 ILC Report 2004 (Anm. 2), 54. 15

Die Tätigkeit der International Law Commission im Jahre 2004

927

Unternehmen aufgrund der Verletzung nach dem Recht des Staates aufgehört hat zu existieren. Der Redaktionsausschuss behält in Artikel 11, der sich mit dem Schutz der Anteileigner beschäftigt, den Grundsatz bei, dass der Nationalstaat der Anteilseigner grundsätzlich keinen diplomatischen Schutz zu Gunsten der Eigner im Fall einer Verletzung des Unternehmens ausüben darf. Lits. a und b konstituieren im Einklang mit dem Barcelona Traction-Urteil des IGH20 zwei Ausnahmen. Diese greifen ein, wenn das Unternehmen nach dem Recht des Staates, unter dessen Recht das Unternehmen inkorporiert war, aufgehört hat zu existieren, ohne dass dies mit der Verletzung verbunden ist, oder wenn das Unternehmen zum Zeitpunkt der Verletzung die Nationalität des Staates hatte, der selbst dessen Rechte verletzte, und die Inkorporation nach dem Recht dieses Staates Bedingung der Aufnahme von Geschäften gewesen war. Artikel 12 enthält die vormals in Artikel 19 statuierte und weitgehend unumstrittene Regel, dass dem Nationalstaat der Anteilseigner im Falle der Verletzung von Aktionärsrechten, die von Rechten des Unternehmens zu unterscheiden sind, das Recht zur Ausübung diplomatischen Schutzes zusteht. Schließlich ordnet Artikel 13 die entsprechende Anwendung der in den Artikeln 9 und 10 enthaltenen Prinzipien auf andere juristische Personen an. 2. Dritter und vierter Teil: Innerstaatliche Rechtsbehelfe und Verschiedenes Der dritte Teil, bestehend aus den Artikeln 14, 15 und 16, befasst sich ohne entscheidende Veränderung der 2003 angenommenen Vorschriften mit der Frage der Erschöpfung innerstaatlicher Rechtsbehelfe.21 Im bislang letzten, vierten Teil des Regelwerkes statuiert Artikel 17, dass der Konventionsentwurf die Rechte von Staaten, natürlichen Personen und anderen Subjekten nicht ausschließe, unter dem Völkerrecht Maßnahmen zu ergreifen, um Abhilfe für eine auf einer völkerrechtswidrigen Handlung begründete Verletzung zu erlangen. Mit dieser Vorschrift soll vor allem ein weiterreichender Schutz der Menschenrechte durch Verträge und Konventionen gewährleistet 20

IGH, Case Concerning the Barcelona Traction, Light and Power Company Limited, Second Phase (Belgium v. Spain), Urteil vom 5. Februar 1970, ICJ Reports 1970, 3, 92. 21 ILC Report 2004 (Anm. 2), 68–85; Elberling (Anm. 1), 745–747.

928

Sara Jötten

werden.22 Mit der Formulierung von Artikel 18 kommt der Redaktionsausschuss der Forderung nach, eine Vorschrift aufzunehmen, die explizit das Verhältnis des Konventionsentwurfs zu bilateralen Investitionsschutzverträgen regelt. Der Artikel bestimmt, dass die Vorschriften des Konventionsentwurfs keine Anwendung finden, wenn und soweit sie nicht mit besonderen Vertragsbestimmungen, insbesondere bilateralen Investitionsschutzverträgen, vereinbar sind. Mit der Annahme zweier separater Vorschriften entschied sich auch die Debatte, ob die Aufnahme einer einzigen saving clause, welche die Aussagen der jetzigen Artikel 17 und 18 vereinigt, nicht vorzugswürdig sei. Artikel 19 behandelt das Verhältnis des Schutzes der Schiffsbesatzung durch den Flaggenstaat zu der Ausübung diplomatischen Schutzes und knüpft damit an die Ausführungen Dugards in seinem fünften Bericht an.23 Der Artikel sieht in Abkehr von dem weiter reichenden Vorschlag Dugards nunmehr vor, dass das Recht des Nationalstaates der Schiffsbesatzung auf Ausübung diplomatischen Schutzes nicht durch das Recht des Flaggenstaates beeinträchtigt wird, zu Gunsten der Schiffsbesatzung unabhängig von ihrer Nationalität rechtliche Maßnahmen zu ergreifen, wenn diese im Verlauf einer Verletzung des Schiffs durch eine völkerrechtswidrige Handlung verletzt worden ist. Durch diese Formulierung erfolgt sowohl eine Anerkennung des Rechts des Nationalstaates der Besatzung, diplomatischen Schutz auszuüben, als auch des Flaggenstaates, Schutz zu gewähren. Dieser Schutz durch den Flaggenstaat ist jedoch von diplomatischem Schutz zu unterscheiden.24 III. Weiteres Vorgehen

Mit der Annahme der Artikel 1 bis 19 durch die Kommission rückt ein erfolgreicher Abschluss des 1996 aufgenommenen Themas „diplomatischer Schutz“ in greifbare Nähe. In der kommenden Sitzungsperiode bleibt die abschließende Behandlung des Verhältnisses zwischen der Ausübung von Schutz durch eine internationale Organisation bzw. der Clean Hands Doktrin einerseits und diplomatischem Schutz andererseits abzuwarten.

22 23 24

Vgl. mit einer Auflistung relevanter Verträge ILC Report 2004 (Anm. 2), 85–86. Siehe, supra, B. I. ILC Report 2004 (Anm. 2), 90–93.

Die Tätigkeit der International Law Commission im Jahre 2004

929

C. Verantwortlichkeit internationaler Organisationen25 Erst seit dem Jahre 2002 beschäftigt sich die Kommission mit dem Thema „Verantwortlichkeit internationaler Organisationen“. 2004 lag der zweite Bericht von Sonderberichterstatter Giorgio Gaja vor.26 Dieser hat die Zurechung von Handeln zu internationalen Organisationen zum Inhalt und folgt damit plangemäß dem Schema des ILC-Entwurfs zur Staatenverantwortlichkeit.27 Gaja betont in seinem Bericht erneut, dass die Kommission aus Gründen der Kohärenz danach strebe, eine Anlehnung an die erarbeiteten Regelungen zur Staatenverantwortlichkeit immer dann vorzunehmen, wenn Parallelität vorliege.28 I. Von der Kommission angenommene Artikelentwürfe 4 bis 7

Gaja schlägt vier Artikelentwürfe, die vorläufigen Artikel 4 bis 7, vor, die sich mit der Zurechnung von Handeln zu einer internationalen Organisation beschäftigen. Dabei wird eine etwaige Zurechnung von Verantwortlichkeit nicht berührt. Damit griff die Kommission im Ansatz auch die strittigen Fragen nach einer Duplizität der Verantwortlichkeit für ein Fehlverhalten auf Seiten einer internationalen Organisation und eines oder mehrerer Mitgliedsstaaten und der daraus resultierenden Folgen auf. Eine solche mehrfache Zurechnung der Verantwortlichkeit an einen Staat und eine internationale Organisation sei aufgrund der vorliegenden Regelungen nicht auszuschließen. Seinen Grund habe dies darin, dass die Artikelentwürfe keine Regelungen für einen Ausschluss der Zurechnung, sondern lediglich für die positive Zurechnung von Handeln vorsehen. So sei zum Beispiel nicht geregelt, dass das Handeln der Streitkräfte von Staaten den Vereinten Nationen nicht zurechenbar sei, wenn die Staaten vom Sicherheitsrat autorisiert wurden, alle notwendigen Maßnahmen außerhalb der UN-Kommandostruktur vorzunehmen.29

25

Siehe dazu insgesamt id., Rn. 61–73 (Kapitel V). Giorgio Gaja, Second Report on Responsibility of International Organizations, UN Doc. A/CN.4/541 (2004). 27 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), 43. 28 Gaja (Anm. 26), Rz. 5. 29 Id., Rz. 6–8; ILC Report 2004 (Anm. 2), 100–103. 26

930

Sara Jötten

Die Artikelentwürfe wurden an den Redaktionsausschuss verwiesen und im Folgenden in überarbeiteter Form von der Kommission in Verbindung mit Kommentierungen angenommen. 1. Artikel 4: Allgemeine Regel für die Zurechnung von Handeln zu einer internationalen Organisation Abweichend von dem Vorschlag Gajas bestimmt Artikel 4 in seinem ersten Absatz, dass dasjenige Handeln eines Organs oder Angehörigen einer internationalen Organisation, das in Ausübung der jeweiligen Funktion des Organs oder Angehörigen stattfindet, als Handeln der Organisation gilt. Die Zurechung erfolgt unabhängig von der Position des Organs oder Angehörigen in Bezug auf die Organisation. Der Begriff des Angehörigen soll gemäß Absatz 2 Bedienstete (officials) oder andere natürliche oder juristische Personen umfassen, durch welche die Organisation handelt. Mit der Verwendung des Begriffs des Angehörigen nahm die Kommission Bezug auf die Rechtsprechung des IGH, vor allem auf das Reparations for Injuries-Gutachten.30 Zur Ermittlung der jeweiligen Funktion der Organe und Angehörigen sollen gemäß Absatz 3 die Regeln der Organisation, die im folgenden Absatz näher bestimmt werden, hinzugezogen werden. Bei deren Definition, die eng an die Formulierung in dem Wiener Übereinkommen über das Recht der Verträge zwischen Staaten und Internationalen Organisationen oder zwischen Internationalen Organisationen von 198631 angelehnt ist, lässt die Kommission bewusst die Möglichkeit bestehen, auch solche Funktionen als bestehend anzusehen, die nicht auf Grundlage der Gründungsinstrumente übertragen wurden.32 2. Artikel 5: Handeln eines einer internationalen Organisation von einem Staat oder einer anderen internationalen Organisation zur Verfügung gestellten Organs oder Angehörigen Die praktische Bedeutung des folgenden Artikelentwurfs wird sich vornehmlich auf die Zurechnung des Handelns von Peace-keeping-Truppen und auf 30

ILC Report 2004 (Anm. 2), 104–106; Reparations for Injuries (Anm. 9), 177. Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21. März 1986, UN Doc. A/CONF.129/15 (1986). 32 ILC Report 2004 (Anm. 2), 107. 31

Die Tätigkeit der International Law Commission im Jahre 2004

931

ähnliche Konstellationen konzentrieren, in denen das Organ oder der Angehörige, welches oder welcher der Organisation zur Verfügung gestellt wurde, immer noch in einem gewissen Maße auch als Organ des entleihenden Staates oder der entleihenden Organisation auftritt, z. B. indem der Entsendestaat sich die Kontrolle über disziplinarische Maßnahmen und strafrechtliche Angelegenheiten vorbehält. Sonderberichterstatter Gaja beschäftigte sich in seinem Bericht mit der Praxis der Staaten und der Vereinten Nationen sowie mit den erbetenen und eingegangenen Kommentaren zu dieser Frage.33 Im Ergebnis sieht der fünfte Artikelentwurf vor, dass die Zurechnung des Handelns von Organen oder Angehörigen, die einer Organisation zur Verfügung gestellt wurden, zu der Organisation nicht die ausschließliche Kontrolle der Organisation, sondern lediglich die Ausübung der effektiven Kontrolle über das Handeln voraussetzt. 3. Artikel 6: Überschreitung der Befugnisse oder Zuwiderhandlung gegen Anweisungen Das Handeln eines Organs oder eines Angehörigen einer internationalen Organisation soll auch dann als ein Handeln dieser Organisation angesehen werden, wenn das Organ oder der Angehörige in seiner Funktion (capacity) handelt und wenn sein Handeln seine Befugnisse überschreitet oder im Widerspruch zu Anweisungen steht. Obwohl der Wortlaut der Regelung nur den Fall beschreibt, in dem das handelnde Organ oder der handelnde Angehörige seine Befugnisse überschreitet, ist ein ultra vires-Handeln der Organisation selbst notwendigerweise ebenso erfasst. Das Kriterium, dass das Organ oder der Angehörige in Ausübung seiner Funktion handelt, grenzt zurechenbares Handeln von privatem Tun oder Unterlassen des Individuums ab. Die Regelung in Artikel 6 steht im Einklang mit dem Certain Expenses-Gutachten des IGH.34 4. Artikel 7: Von einer internationalen Organisation als eigenes anerkanntes und angenommenes (acknowledged and adopted) Handeln Der siebte Artikel sieht schließlich im Falle, dass ein bestimmtes Verhalten nicht bereits aufgrund der Artikel 4 bis 6 der Organisation zuzurechnen ist, die 33

Gaja (Anm. 26), Rz. 29–44; siehe auch ILC Report 2004 (Anm. 2), 111–114. ILC Report 2004 (Anm. 2), 116–117; IGH, Certain Expenses of the United Nations, Gutachten vom 20. Juli 1962, ICJ Reports 1962, 150, 168. 34

932

Sara Jötten

Zurechenbarkeit auch dann vor, wenn und soweit die internationale Organisation Handeln als eigenes anerkennt und annimmt. Die Regelung stellt das Äquivalent zu Artikel 11 des ILC Entwurfs zur Staatenverantwortlichkeit dar, da keine Gründe für eine anderslautende Regelung sprechen. Die Beantwortung der Frage nach der Kompetenz der Organisation zur Anerkennung und Annahme des Handelns bleibt der Organisation und ihren internen Regeln überlassen.35 II. Ausblick

Der dritte Bericht des Sonderberichterstatters Gaja wird sich im kommenden Jahr vertiefend mit der Verantwortlichkeit einer internationalen Organisation in Verbindung mit dem rechtswidrigen Handeln eines Staates oder einer anderen Organisation beschäftigen. Weitere Themen werden der Verstoß gegen eine internationale Verpflichtung sowie Rechtfertigungsumstände (circumstances precluding wrongfulness) sein. Damit schließt sich die Kommission in ihrem geplanten Vorgehen wiederum dem Schema des ILC-Entwurfs zur Staatenverantwortlichkeit an. D. Anteilige natürliche Ressourcen36 Die Kommission führte im Jahre 2004 die im Vorjahr begonnene Arbeit an dem Thema „anteilige natürliche Ressourcen“ fort. Der Sonderberichterstatter Chusei Yamada legte seinen zweiten Bericht vor,37 in dem er sich ausschließlich dem Teilaspekt der grenzüberschreitenden Grundwasservorkommen widmete. Er stellte ein Gerüst für das weitere geplante Vorgehen vor und unterbreitete erste Vorschläge für Artikel des Regelwerkes. Der von Yamada vorgeschlagene Aufbau des Entwurfs orientiert sich stark am UN Übereinkommen über das Recht der nicht die Schifffahrt betreffenden Nutzung internationaler Wasserläufe von 1997.38 Dieses Vorgehen Yamadas war bereits in der Vergangenheit auf Kritik gestoßen, deren Berechtigung Yamada teilweise anerkannte. Er hielt je35

ILC Report 2004 (Anm. 2), 120–122. Siehe dazu insgesamt id., Rz. 73–157 (Kap. VI). 37 Chusei Yamada, Second Report on Shared Natural Resources: Transboundary Groundwaters, UN Doc. A/CN.4/539 und Add.1 (2004). 38 Convention on the Law of the Non-Navigational Uses of International Watercourses, 21. Mai 1997, abgedruckt in: ILM, vol. 36, 1997, 700 (Konvention von 1997). 36

Die Tätigkeit der International Law Commission im Jahre 2004

933

doch daran fest, dass die Konvention von 1997 als Basis des Entwurfs dienen solle.39 Die sieben vorgeschlagenen Artikel decken den Einführungsteil (Teil I.) sowie die allgemeinen Prinzipien (Teil II.) ab. Jedoch seien die Artikel keinesfalls zur Vorlage beim Redaktionsausschuss, sondern vor allem als Anregung gedacht.40 Alle weiteren Artikel sollen 2005 als Entwürfe der Kommission vorliegen.41 I. Vorschlag eines Regelwerks, Artikel 1 bis 742

In dem Entwurf des ersten Artikels wird das Regelwerk auf die Nutzung grenzüberschreitender Grundwasservorkommen (aquifer systems) und auf andere Aktivitäten, die Einfluss auf diese Vorkommen haben oder haben können, sowie auf deren Schutz-, Erhaltens- und Verwaltungsmaßnahmen für anwendbar erklärt. Die Qualifizierung der Grundwasservorkommen als abgeschlossen (confined) wurde dabei aufgrund ihrer Doppeldeutigkeit fallen gelassen.43 Eine parallele Anwendung des Regelwerks neben der Konvention von 1997 könne somit nicht mehr ausgeschlossen werden, da der Anwendungsbereich der Konvention von 1997 sich ebenfalls auf nicht abgeschlossene Grundwasservorkommen erstrecke. Das Verhältnis der beiden Regelungen zueinander müsse daher in einer Vorschrift geregelt werden. Jedoch traf die Aussicht einer Überschneidung der neuen Regelung mit der Konvention von 1997 auch auf Ablehnung.44 In der Diskussion in der Kommission fand die Auffassung Yamadas, auch in der Zukunft nutzbare Systeme sollten erfasst sein, Zustimmung und wurde in den Entwurf übernommen.45 Außerdem verkündete Sonderberichterstatter Yamada, auch Zufluss- und Abflussgebiete (recharge und discharge areas) sollten aufgrund ihrer Schutzbedürftigkeit von dem Regelwerk erfasst werden.46

39 40 41 42 43 44 45 46

Yamada (Anm. 37), Rz. 7. Id., Rz. 5. ILC Report 2004 (Anm. 2), Rz. 87. Siehe dazu id., Rz. 82–103; Yamada (Anm. 37), Rz. 10–34. Yamada (Anm. 37), Rz. 13. ILC Report 2004 (Anm. 2), Rz. 107, 117. Id., Rz. 127–128, 147. Id., Rz. 97.

934

Sara Jötten

Während der Diskussion in der Kommission wurde bezüglich des zweiten Artikels, in dem die relevanten Begriffe definiert werden, angemerkt und im weiteren von Yamada befürwortet, eine Definition des Begriffs ‚grenzüberschreitend‘ aufzunehmen.47 Bei der Formulierung des dritten Artikels, der die Leitprinzipien aufzeigen soll, erbat der Sonderberichterstatter die Hilfe der Kommission. Er verwies auf die Grundsätze der Konvention von 1997: die angemessene und vernünftige Nutzung (equitable use, reasonable utilization) sowie die Teilnahme der Staaten in einer angemessenen und vernünftigen Art und Weise. Diese Grundsätze sah er jedoch als nicht auf den vorliegenden Fall abschließend übertragbar an und begründete dies unter anderem damit, dass Grundwasservorkommen auch nicht erneuerbar sein können und daher deren Nutzung anderen Kriterien unterliegen müsse.48 In der Diskussion in der Kommission wurde die Meinung geäußert, auch der Grundsatz des Schutzes wichtiger menschlicher Bedürfnisse solle zur Anwendung kommen.49 Der vierte Artikel beschäftigt sich mit der Verpflichtung beteiligter Staaten, keinen Schaden anzurichten. Der erste Absatz behandelt die Verursachung von Schäden durch Nutzung, der zweite durch sonstige Aktivitäten. Die Zerstörung der Grundwasservorkommen ist Gegenstand der Regelung in Absatz 3. Es wurde vorgeschlagen, diese jedoch aufgrund ihrer engen Verbindung mit dem Thema der Erhaltung der Vorkommen im vierten Teil des Regelwerkes einzuordnen. Debattiert wurde an dieser Stelle über die Eingriffsschwelle des significant harm, die sich an der Konvention von 1997 orientiert.50 Dem vierten Absatz liegt, trotz Hinweisen auf die internationale Verantwortlichkeit für Schäden und die Frage von Entschädigungen, der Gedanke der Prävention zugrunde. Er bestimmt, dass im Falle der Verursachung von significant harm der verursachende Staat alle Maßnahmen zur Beseitigung oder Minderung des Schadens ergreifen muss. Der Vorschlag des Sonderberichterstatters, Haftungsfragen der Kommission zur Bearbeitung im Rahmen des Themas „Haftung für Schäden aufgrund nicht völkerrechtswidriger Aktivitäten“ zu überlassen, fand in der Kommission nur teilweise Zustimmung.51 Artikel 5 legt eine Kooperationspflicht fest; Artikel 6 den regelmäßigen Austausch von Daten und Informationen. Schließlich behandelt der siebte Arti47 48 49 50 51

Id., Rz. 149. Yamada (Anm. 37), Rz. 21–23. ILC Report 2004 (Anm. 2), Rz. 132. Id., Rz. 136, 153. Id., Rz. 139; Yamada (Anm. 37), Rz. 24–28.

Die Tätigkeit der International Law Commission im Jahre 2004

935

kel das Verhältnis zwischen den verschiedenen Nutzungsmöglichkeiten der Grundwasservorkommen. Von diesen soll keine Vorrang haben, solange keine gegenteilige Vereinbarung oder anderslautende gewöhnliche Praxis besteht. Ein Konflikt zwischen den verschiedenen Nutzungsmöglichkeiten solle unter besonderer Beachtung der Erfordernisse wichtiger menschlicher Bedürfnisse erfolgen.52 II. Weiteres Vorgehen

Sowohl der Bericht Yamadas als auch die Diskussion in der Kommission ließen die Frage offen, wohin die Bearbeitung dieses Themas führen soll. Aufgrund des offensichtlichen Mangels an relevanter Staatenpraxis und einer nur schwachen Resonanz von Seiten der Staaten auf Anfragen käme neben der Erarbeitung einer Konvention auch das Erstellen von Richtlinien in Frage. Daneben wurde die Auffassung geäußert, bei dem Thema handele es sich um ein Projekt der progessiven Rechtsentwicklung und nicht mehr um einen Versuch der Kodifikation bestehenden Rechts. Zustimmung fand aber auch die Auffassung des Sonderberichterstatters, diese Frage vorerst offen zu lassen.53 Des Weiteren wurde auf Anregung der Kommission das Augenmerk des Sonderberichterstatters auf regionale Abkommen und Praktiken gelenkt. Als ein Beispiel wurde das Guarani Aquifer genannt, das die Staaten Argentinien, Brasilien, Uruguay und Paraguay teilen und dessen Nutzung und Schutzes sie sich mit Hilfe des MERCOSUR annehmen. Ins Blickfeld wurde außerdem gerückt, dass es sich bei den behandelten Ressourcen um Gegenstände handelt, die der Souveränität eines Staates unterfielen.54 E. Völkerrechtliche Haftung für Schäden aufgrund nicht völkerrechtswidriger Aktivitäten (Völkerrechtliche Haftung für grenzüberschreitende Schäden aufgrund risikoreicher Handlungen)55 Bei der Fortführung der schon im Jahre 1978 aufgenommenen Beschäftigung mit dem Thema „völkerrechtliche Haftung für Schäden aufgrund nicht völker52 53 54 55

Yamada (Anm. 37), Rz. 29–34. ILC Report 2004 (Anm. 2), 122, Rz. 109. Id., Rz. 112–115, 144. Siehe dazu insgesamt id., 143–217 (Kap. VII).

936

Sara Jötten

rechtswidriger Aktivitäten“ konzentrierte sich die Kommission im Jahr 2004 auf den Aspekt der internationalen Haftung für solche Schäden. Als Ziel dient die Ausarbeitung eines Systems der Schadenszuteilung. Dieser Aspekt war von dem anderen Teil des Themas, der Verhinderung grenzüberschreitender Schädigung aufgrund risikoreicher Handlungen, abgespalten worden, dessen Bearbeitung im Jahre 2001 seinen Abschluss in der Verabschiedung von 19 Artikelentwürfen gefunden hatte.56 Der zweite Bericht des Sonderberichterstatters Pemmaraju Sreenivasa Rao57 wurde besprochen, woraufhin eine Arbeitsgruppe acht Prinzipienentwürfe erarbeitete, die in erster Lesung zusammen mit Kommentierungen von der Kommission angenommen wurden. I. Der zweite Bericht von Pemmaraju Sreenivasa Rao und der Bericht der Arbeitsgruppe58

In seinem zweiten Bericht beschäftigte sich Sonderberichterstatter Rao mit den Kommentaren der Staaten im sechsten Komitee der Vereinten Nationen, analysierte diese und schlug schließlich vor diesem Hintergrund 12 Prinzipienentwürfe vor. Die Kommentare der Staaten59 behandelten, wie bereits in den Vorjahren die Diskussion in der Kommission selbst, den Umfang der Haftung und insbesondere die Frage der Abgrenzung der in Rede stehenden Haftung zur Staatenverantwortlichkeit für völkerrechtswidriges Verhalten. Es wurde vorgeschlagen, den Anwendungsbereich der Regelung entsprechend dem der bereits erarbeiteten Entwürfe zur Verhinderung solcher Aktivitäten zu definieren. Thematisiert wurde auch eine mögliche primäre Haftung der für den Betrieb der gefährlichen Aktivitäten verantwortlichen Personen (operators) sowie eine finanzielle und zeitliche Begrenzung dieser Haftung.

56

Id., Rz. 158–165; vgl. auch Report of the International Law Commission on the Work of its Fifty-Third Session, UN Doc. A/53/10 (2001), Rz. 78–98; Christian J. Tams, Die Tätigkeit der International Law Commission im Jahre 2001, GYIL, vol. 44, 2001, 705, 714–716; Nathalie L.J.T. Horbach/Pieter H. F. Bekker, State Responsibility for Injurious Transboundary Activity in Retrospect, Netherlands International Law Review, vol. 50, 2003, 327. 57 Pemmaraju Sreenivasa Rao, Second Report on the Legal Regime for the Allocation of Loss in Case of Transboundary Harm Arising out of Hazardous Activities, UN Doc. A/CN.4/540 (2004). 58 Report of the Working Group, UN Doc. A/CN.4/661 und Corr. 1 (2004). 59 Rao (Anm. 57), Rz. 3–35.

Die Tätigkeit der International Law Commission im Jahre 2004

937

Rao zog aus diesen Kommentaren die Schlussfolgerung, dass die Entwicklung eines generellen Systems mit Auffangcharakter erforderlich sei, das der Formierung spezifischer bilateraler oder regionaler Abkommen flexibel und offen gegenüberstehe. Dabei könne die Balance zwischen dem Anspruch des Opfers darauf, keine Lasten zu tragen, und dem des Betreibers, finanziell nur begrenzt zu haften, mit Hilfe von Fonds erreicht werden. Strittig blieb weiterhin die Frage nach einer etwaigen subsidiären Haftung desjenigen Staates, der allen Verpflichtungen zur Verhinderung grenzüberschreitender Schädigungen nachgekommen ist, oder einer Verpflichtung des Staates zur Einrichtung eines und/oder Beteiligung an einem Fond. Ebenfalls ungeklärt blieb der Aspekt der Haftung für Schäden an den global commons sowie des Haftungsumfangs für Umweltschäden.60 Rao entschied, nicht zuletzt aufgrund erheblicher inhaltlicher Kontroversen, die in seinem Bericht nachfolgenden Vorschläge in Form von 12 Prinzipienentwürfen zu präsentieren.61 Die darauffolgend von der Kommission eingesetzte Arbeitsgruppe erarbeitete unter dem Vorsitz Raos und unter Zugrundelegung seiner Vorschläge Entwürfe für acht Prinzipien, die an den Redaktionsausschuss verwiesen wurden. II. In erster Lesung angenommene Prinzipienentwürfe 1 bis 8 sowie deren Kommentierungen und Präambelentwurf62

Die Kommission nahm diese acht Prinzipienentwürfe in erster Lesung an und leitete sie an die Regierungen zum Zwecke der Einholung von Kommentaren weiter. Der Entwurf spiegelt die Auffassung wider, ein solches System der Schadenszuteilung lasse die relevanten Regelungen zur Staatenverantwortlichkeit unberührt. Die Haftung greift ohne Ansehung der internationalen Verantwortlichkeit beziehungsweise in den Fällen ein, in denen ein Staat seinen Verpflichtungen gemäß dem Entwurf zur Verhinderung von Schäden aufgrund nicht völkerrechtswidriger Aktivitäten nachkommt und es dennoch zu Schädigungen kommt.63 Die Kommission stimmt Rao in seinen Schlussfolgerungen dahingehend zu, dass ein solches System einen generellen und Auffangcharakter 60 61 62 63

Id., Rz. 36–37. Id., Rz. 38. ILC Report 2004 (Anm. 2), 153–217. Id., 157–160, 167.

938

Sara Jötten

haben solle und dass das Thema der global commons einer separaten Behandlung bedürfe. Die Präambel setzt die folgenden Grundsätze in einen Kontext mit Prinzipien 13 und 16 der Rio Erklärung64 sowie den Artikelentwürfen zur Verhinderung grenzüberschreitender Schäden. Das letzte, achte Prinzip enthält schließlich Vorschriften zur Implementierung des Entwurfs und ein Diskriminierungsverbot bei der Anwendung des Entwurfs und seiner umsetzenden Vorschriften. 1. Prinzip: Anwendungsbereich Das erste Prinzip besagt, dass sich der Anwendungsbereich der folgenden Prinzipienentwürfe auf grenzüberschreitende Schäden aufgrund nicht völkerrechtswidriger Aktivitäten, die das Risiko eines bedeutenden grenzüberschreitenden Schadens durch ihre physischen Folgen einschließen, erstreckt. Der Anwendungsbereich dieser Arbeit spiegelt somit den der Artikelentwürfe zur Verhinderung grenzüberschreitender Schädigungen aufgrund risikoreicher Handlungen wider und enthält zudem eine Abgrenzung zu der Verantwortlichkeit für völkerrechtswidrige Aktivitäten. Hinsichtlich der Bedeutung der einzelnen Kriterien bezieht sich die Kommission auf die Kommentierung zu Artikel 2 des Entwurfs zur Verhinderung grenzüberschreitender Schädigungen oder nimmt eigene Definitionen im folgenden zweiten Artikel vor.65 2. Prinzip: Begriffsbestimmungen Im darauf folgenden Prinzip erfolgt die Definition der wichtigsten Begriffe. Von grundlegender Bedeutung ist dabei die Bestimmung des Schadensbegriffs (damage), die auch die Höhe der Eingriffsschwelle festlegt, ab der eine Haftung eintritt. Ein Schaden ist durch faktische und objektive Kriterien sowie durch eine wertende Beurteilung zu bestimmen. Im einzelnen ist ein Schaden im Rahmen des Regelwerkes ein bedeutender Schaden (significant damage), der einer Person, Eigentum oder der Umwelt zugefügt wurde. Der Eigentumsbegriff umfasst dabei auch das Kulturerbe. Ausgeführt wird des Weiteren hinsichtlich eines Schadens der Umwelt, dass als ein solcher der Verlust oder Schaden durch 64

Rio Declaration on Environment and Development, 14. Juni 1992, abgedruckt in: ILM, vol. 31, 1992, 874. 65 ILC Report 2004 (Anm. 2), 162–169.

Die Tätigkeit der International Law Commission im Jahre 2004

939

eine Beeinträchtigung (impairment) der Umwelt sowie die Kosten angemessener Maßnahmen (reasonable measures) zur Wiederherstellung der Umwelt gelten. In Absatz b bekennt sich die Kommission zur Anwendung eines weiten Umweltbegriffs, der die natürlichen biotischen und abiotischen Ressourcen und die charakteristischen Aspekte der Landschaft einschließt. Erfasst als Schaden ist auch der Verdienstausfall aufgrund von Tod, Verletzung oder Eigentumsschäden, ebenso wie der wirtschaftliche Verlust, der nicht mit einem solchen Schaden einhergeht.66 Schließlich bestimmt Absatz e, dass diejenige Person sich als für die Durchführung der gefährlichen Aktivitäten verantwortlich darstellt, die das Kommando oder die Kontrolle über die fragliche schädigende Aktivität zum Zeitpunkt des Geschehens hat (operator). 3. Prinzip: Zielbestimmung Drittens bestimmt der Entwurf als Ziel der Regelung, natürlichen oder juristischen Personen, die Opfer grenzüberschreitender Schäden geworden sind, eine rasche und angemessene Entschädigung (prompt and adequate compensation) zu sichern. Daneben werden in der Kommentierung noch weitere Ziele aufgezählt, wie die Schaffung von Anreizen für die Betreiber, solche grenzüberschreitenden Schäden zu verhindern, die Förderung einer Kooperation zwischen den Staaten in der Klärung von Entschädigungsfragen sowie die Erhaltung und Förderung der Realisierbarkeit wirtschaftlicher Aktivitäten, die für das Wohlergehen der Staaten und Völker von Wichtigkeit sind. 4. Prinzip: Rasche und angemessene Entschädigung Im folgenden Prinzip wird dieses Ziel der raschen und angemessenen Entschädigung der Opfer näher bestimmt und ausgestaltet. Grundsätzlich habe zunächst einmal jeder Staat sicherzustellen, dass eine Entschädigung denjenigen Opfern grenzüberschreitender Schäden zur Verfügung steht, deren Schaden durch risikoreiche Aktivitäten, die in seinem Territorium stattfanden, verursacht wurde. Damit wird die wichtige Rolle des Staates, von dessen Territorium die fragliche Aktivität ausging, bei der Verwirklichung des Ziels einer raschen und angemessenen Entschädigung unterstrichen. Die Art und Weise der Erreichung dieses Ziels überlässt der Entwurf durch die Verpflichtung zur Ergreifung not66

Vgl. Prinzip 2 lits. a (i)–(iii); ILC Report 2004 (Anm. 2), 173–175.

940

Sara Jötten

wendiger Maßnahmen (necessary measures) den Staaten selbst. Die Staaten sind dabei zu einer Zahlung nicht verpflichtet. Das polluter pays-Prinzip widerspiegelnd schließen diese Maßnahmen zur Sicherstellung einer Entschädigung ein, dass die Haftung dem Betreiber auch ohne die Erforderlichkeit eines Beweises seines Verschuldens angelastet wird. Dieser Heranziehung einer strict liability liegt zu Grunde, dass zum einen die Anspruchssteller einer ungerechten und unangemessenen Beweislast enthoben und zum anderen den Betreibern risikoreicher Aktivitäten Anreize für besseres Management gegeben werden. Jede Bedingung oder Beschränkung dieser Haftung sowie Ausnahmen von ihr dürfen die Verpflichtung zu einer raschen und angemessenen Entschädigung nicht aufweichen. Absatz 3 bezeichnet als eine weitere zu ergreifende Maßnahme des Staates, die Betreiber zu verpflichten, für finanzielle Sicherheit zu sorgen, zum Beispiel mittels Versicherungen, Anleihen oder anderen Garantien. Wenn angemessen, soll auch die Schaffung von Fonds durch einen Industriesektor auf nationaler Ebene in Betracht gezogen werden. Sind diese Maßnahmen unzureichend, soll der Staat sicherstellen, dass zusätzliche Ressourcen bereitgestellt werden. Er wird jedoch nicht zur Bildung eines Fonds aus staatlichen Mitteln verpflichtet.67 5. Prinzip: Reaktionsmaßnahmen (response measures) Das fünfte Prinzip verpflichtet im Hinblick auf die Minimierung grenzüberschreitender Schäden in erster Hinsicht Staaten, aber auch die Betreiber, schnelle und effektive Reaktionsmaßnahmen, wie rasche Notifikation, Konsultationen und Kooperationsmaßnahmen, zu ergreifen. Dabei soll es gerade nicht zu einer Minderung der Verantwortlichkeit des Betreibers kommen; die vorherrschende Rolle des Staates hinsichtlich dieses Aspektes entspringt seiner Verpflichtung, die Verursachung grenzüberschreitender Schäden durch Aktivitäten, die sich innerhalb seiner Zuständigkeit und unter seiner Kontrolle befinden, zu verhindern.68 6. Prinzip: Internationale und innerstaatliche Rechtsbehelfe Durch die Bereitstellung angemessener Rechtsbehelfe werden im sechsten Prinzip die Staaten verpflichtet, die in Prinzip 4 aufgestellte Verpflichtung zur 67 68

ILC Report 2004 (Anm. 2), Rz. 194–206. Id., Rz. 207–209.

Die Tätigkeit der International Law Commission im Jahre 2004

941

Entschädigung der Opfer umzusetzen. Dabei beschreibt der zweite Absatz, dass diese Rechtsbehelfe den Zugang zu internationalen Verfahren der Beilegung von Ansprüchen einschließen können, die schnell zum Erfolg führen und ein Minimum an finanziellen Ausgaben beinhalten. Absatz 3 enthält die Verpflichtung, dass die innerstaatlichen Organe und Institutionen die zur Verwirklichung der Zielbestimmung notwendigen Kompetenzen haben und den Opfern effektive Rechtsbehelfe zur Verfügung stehen müssen. Des Weiteren sieht die Bestimmung die Verpflichtung vor, Opfern den gleichen Zugang wie Angehörigen des verpflichteten Staates zu diesen Mechanismen und Rechtsbehelfen einzuräumen. Außerdem ist ihnen ein angemessener Zugang zu Informationen über die Ergreifung dieser Maßnahmen zu gewähren. 7. Prinzip: Entwicklung spezieller internationaler Regime Das siebte Prinzip bestimmt die Pflicht der Staaten zur Kooperation in der Entwicklung angemessener internationaler Abkommen auf globaler, regionaler oder bilateraler Basis, die Bestimmungen hinsichtlich der Verhinderung grenzüberschreitender Schäden treffen. Ebenso können sie Reaktionsmechanismen bezüglich einer bestimmten Kategorie risikoreicher Aktivitäten sowie Fragen der Entschädigung und auch finanzieller Sicherungsmaßnahmen zum Inhalt haben. Der zweite Absatz sieht zudem die Schaffung verschiedener, durch die Industrie und/oder den Staat finanzierter Entschädigungsfonds vor, die ergänzend zur Anwendung kommen oder innerstaatliche, durch die Industrie finanzierte Sicherungen ersetzen. F. Einseitige Hoheitsakte69 Obwohl die Kommission das Thema „einseitige Hoheitsakte“ bereits seit 1996 bearbeitet, ließen sich auch im Jahre 2004 keine nennenswerten inhaltlichen Fortschritte feststellen. Der Bitte der Arbeitsgruppe des Vorjahres entsprechend listet der siebte Bericht des Sonderberichterstatters Victor Rodríguez Cedeño70 in möglichst umfassender Weise Staatenpraxis in Bezug auf einseitige 69

Siehe dazu insgesamt id., Rz. 177–247 (Kap. VIII). Victor Rodríguez Cedeño, Seventh Report on Unilateral Acts of States, UN Doc. A/CN.4/542 (2004). 70

942

Sara Jötten

Hoheitsakte auf. In der darauf folgenden Diskussion in der Kommission offenbarten sich eine Vielzahl von Kontroversen und Zweifeln. I. Siebter Bericht von Victor Rodríguez Cedeño

Sonderberichterstatter Cedeño unterteilte in seiner Darstellung einseitige Hoheitsakte, die er vorläufig definiert als Akte und Deklarationen, die eine Rechtswirkung erzeugen, in drei Kategorien. Erstens gebe es Akte, mit denen der Staat Verpflichtungen übernehme (Versprechen und Anerkennung). Zweitens könne der Staat mittels eines Aktes auf ein Recht oder einen Anspruch verzichten (Verzicht); und schließlich könne er ein Recht oder einen Anspruch nochmals bestätigen (Protest). Die Einordnung der Notifikation sei demgegenüber zweifelhaft.71 Ein separater Teil des Berichts beschäftigt sich mit den Verhaltenweisen oder Prinzipien Schweigen, Zustimmung und Estoppel, die ähnliche Rechtsfolgen wie einseitige Hoheitsakte hervorrufen können. Zu Versprechen und Anerkennung führt Cedeño aus, dass diese in Form einer unilateralen Deklaration eines Staates oder einer kollektiven Deklaration mehrerer Staaten vorliegen können, mittels derer Verpflichtungen anerkannt werden oder anderen Staaten, internationalen Organisationen oder anderen Subjekten Rechte zugesprochen werden. Ein Versprechen ist dabei eine öffentlich geäußerte unilaterale Willensäußerung eines Staates, die eine besondere Absicht und einen speziellen Zweck verfolgt und eine Reaktion auf Seiten der Staaten, die sich für betroffen erachten, erzeugt. Die Anerkennung gründet oft auf einer bereits existierenden Situation und schafft diese nicht erst. Nach herrschender Ansicht in der Literatur wird die Anerkennung als Manifestation desjenigen Willens angesehen, mit dem das Völkerrechtssubjekt eine bestimmte Situation zur Kenntnis nimmt und seine Absicht ausdrückt, diese in Betracht zu ziehen. Ihr kann mit einer impliziten oder expliziten, schriftlichen oder mündlichen Erklärung Ausdruck verliehen werden, und sie beeinflusst die Rechte, Verpflichtungen und politischen Interessen des anerkennenden Staates. Die Anerkennung entfaltet keine Rückwirkung.72 Der Bericht erwähnt die Anerkennungspraxis im Zusammenhang mit den neuen Staaten auf dem Balkan sowie den Mangel einer Praxis bezüglich der Anerkennung von Regierungen.

71 72

Id., Rz. 170–178. Hierzu ILC Report 2004 (Anm. 2), Rz. 200.

Die Tätigkeit der International Law Commission im Jahre 2004

943

Aus der Spruchpraxis internationaler Gerichte leitete Cedeño bezüglich der Behandlung des Verzichts her, dass nicht vermutet werden dürfe, ein Staat habe auf seine Rechte verzichtet. Schweigen oder Hinnahme genüge für die Wirksamkeit eines Verzichts nicht.73 Ein Verzicht sei nur dann anzuerkennen, wenn er das Ergebnis eines unmissverständlichen Aktes sei.74 Der Protest sei eine Handlung, mit welcher der protestierende Staat bekannt gibt, dass er die Rechtmäßigkeit des Handelns, gegen das der Protest sich richtet, oder die Situation, die durch dieses Handeln begründet wurde oder begründet zu werden droht, nicht anerkenne. Der Protest habe daher einen der Anerkennung gegenteiligen Effekt. Er könne aus sich wiederholenden Akten bestehen und müsse auf den Einzelfall gerichtet sein, es sei denn, es liegen schwere Verstöße gegen internationale Verpflichtungen vor oder der Protest fußt auf zwingenden Normen des internationalen Rechts. II. Diskussion in der Kommission75

In der Diskussion in der Kommission wurden erneut sowohl inhaltliche Differenzen als auch Uneinigkeit bezüglich der weiteren Vorgehensweise offensichtlich. Wiederholt wurden Zweifel hinsichtlich der Geeignetheit des Themas für die Kodifizierung überhaupt oder in Form von Artikelentwürfen ausgedrückt. Die Kommission kritisierte zum einen die induktive Herangehensweise des Sonderberichterstatters, zum anderen das Fehlen einer Analyse der Gründe für einseitiges Hoheitshandeln. Weiter vermisste die Kommission eine Untersuchung der Gültigkeitskriterien einer ausdrücklichen oder stillschweigenden Verpflichtung von Staaten. Angemerkt wurde auch, dass die Umstände und Bedingungen einer Änderung oder Rücknahme unilateraler Verpflichtungen in dem Bericht keine Berücksichtigung fanden. Auch die vorgenommene Kategorisierung stieß auf Kritik; die Kategorien seien nicht klar umrissen und es sei zweifelhaft, ob die Anerkennung von Staaten und Regierungen überhaupt von 73

IGH, Case Concerning Rights of Nationals of the United States of America in Morocco (France v. USA), Urteil vom 27. August 1952, ICJ Reports 1952, 175. 74 Ständiger Internationaler Gerichtshof (StIGH), Case of the Free Zones of Upper Savoy and the District of Gex (France v. Switzerland), Urteil vom 7. Juni 1932, PCIJ Ser. A/B, No. 46, 95. 75 ILC Report 2004 (Anm. 2), Rz. 210–237.

944

Sara Jötten

dem Mandat der Kommission erfasst sei. Es wurde unter anderem vorgeschlagen, sich auf einseitige Hoheitsakte strictu sensu zu konzentrieren, auf den Aspekt der internationalen Rechtsbindung abzustellen oder eine Liste von Subkriterien zu erstellen. Des Weiteren wurde die Frage aufgeworfen, ob nicht ein Teil der in dem Bericht herangezogenen Hoheitsakte politische Akte darstellten. Diskutiert wurde auch über das mögliche Kriterium der Widerruflichkeit des einseitigen Hoheitsaktes und über die Bedingtheit (conditionaliy) als bedeutenden Faktor für die Motive der Formulierung eines einseitigen Hoheitsaktes. Der autonome Charakter eines einseitigen Hoheitsaktes gewähre die Abgrenzung zu solchen Akten, die innerhalb eines gesetzlichen Rahmens oder im Zusammenhang mit Völkergewohnheitsrecht vorgenommen würden. Stimmen wurden auch dafür laut, Schweigen, Estoppel und Duldung (acquiescence) in die Betrachtung einzubeziehen und der Reaktion auf einseitige Hoheitsakte vermehrte Aufmerksamkeit zu schenken.76 Schließlich trat ein Teil der Kommission dafür ein, erneut eine Arbeitsgruppe einzusetzen, die sich mit der weiteren Vorgehensweise beschäftigen und Staatenpraxis sammeln solle. Eine Auseinandersetzung mit dem Aspekt der Gültigkeit, der Änderung und der Rücknahme einer einseitigen Verpflichtung eines Staates und die Analysierung ausgewählter Beispiele unilateralen Hoheitshandels solle ebenfalls Aufgabe der Arbeitsgruppe sein. III. Schlussbemerkungen des Sonderberichterstatters77 und Wiedereinsetzung der Arbeitsgruppe78

Der Sonderberichterstatter betonte in seinen Schlussbemerkungen einmal mehr, dass sein siebter Bericht lediglich einen Überblick habe geben sollen und dass der nächste Bericht sich mit den Fragen der Entwicklung, Lebensdauer und Gültigkeit dieser einseitigen Hoheitsakte beschäftigen werde. Er kündigte an, bei der Frage der Einordnung eines Akts auf den Willen des erklärenden Staates abzustellen. Die Kommission setzte erneut eine Arbeitsgruppe ein, die sich damit einverstanden erklärte, eine Reihe von Beispielen einseitiger Hoheitsakte von Grund auf zu analysieren und eine Liste von Kriterien, wie Autor, Form, Inhalt, Ziel, Empfänger und dessen Reaktion, zur Verfügung zu stellen. Son76 77 78

Id., Rz. 222. Id., Rz. 238–244. Id., Rz. 245–247.

Die Tätigkeit der International Law Commission im Jahre 2004

945

derberichterstatter Cedeño wird im kommenden Jahr die Aufgabe zufallen, die Studien der Arbeitsgruppe sorgfältig zu prüfen, um dann auf dieser Grundlage in seinem achten Bericht zu sachdienlichen Schlussfolgerungen zu kommen. G. Vertragsvorbehalte79 Hinsichtlich des Themas „Vertragsvorbehalte“ nahm die Kommission fünf Richtlinien, die sich mit der Reichweite von Vertragsvorbehalten sowie der Modifikation und Rücknahme interpretierender Erklärungen beschäftigen, vorläufig an. Die Kommission verwies zwei Richtlinien, die sich mit Einsprüchen befassen, an den Redaktionsausschuss und beschäftigte sich mit dem neunten Bericht des Sonderberichtserstatters Alain Pellet.80 Weiterhin offen bleiben damit die umstrittenen Fragen nach der Gültigkeit von Vertragsvorbehalten sowie nach den Auswirkungen von Einsprüchen gegen Vorbehalte. Pellet kündigte an, sich im kommenden Jahr mit der Gültigkeit von Vertragsvorbehalten zu befassen. I. In erster Lesung angenommene Richtlinienentwürfe zur Reichweite von Vertragsvorbehalten sowie zur Modifikation und Rücknahme interpretierender Erklärungen81

Im Jahre 2004 nahm die Kommission fünf der im vergangenen Jahr von Sonderberichterstatter Pellet vorgeschlagenen Richtlinienentwürfe in erster Lesung und ohne wesentliche Änderungen im Vergleich zum Vorjahr an. Zum einen zählt hierzu die Richtlinie 2.3.5, die sich mit der Änderung eines bereits existierenden Vertragsvorbehalts zum Zwecke der Erweiterung seines Anwendungsbereichs beschäftigt. Die Richtlinie sieht vor, dass diese Situation denselben Regelungen unterfällt wie die verspätete Formulierung eines Vertragsvorbehalts, dass heißt den Richtlinien 2.3.1 bis 2.3.3. Wenn Einspruch gegen diese Erweiterung des Anwendungsbereichs des Vorbehalts erhoben wird, so bleibt der ursprüngliche Vertragsvorbehalt erhalten. Diese Annahme war noch vereinzelt Kritik ausgesetzt, die sich auf einen Widerspruch zu dem Wiener Überein79

Siehe dazu insgesamt id., Rz. 248–295 (Kap. IX). Alain Pellet, Ninth Report on Reservations to Treaties, UN Doc. A/CN.4/544 (2004). 81 Siehe dazu insgesamt ILC Report 2004 (Anm. 2), 268–280; ILC, Reservations to Treaties, UN Doc. A/CN.4/L.649 (3. Juni 2004); vgl. auch Elberling (Anm. 1), 751–752. 80

946

Sara Jötten

kommen über das Recht der Verträge82 sowie eine gegensätzliche Handhabung des Europarats berief. Im Hinblick auf interpretierende Erklärungen bestimmt Richtlinie 2.4.9 respektive 2.5.12, dass ihre Modikation in Abwesenheit einer gegenteiligen Vertragsbestimmung beziehungsweise ihre Rücknahme jederzeit möglich ist. Die Regelungen, welche bedingte interpretierende Erklärungen betreffen, lassen erkennen, dass diese den Vertragsvorbehalten gleich gestellt sind. So wird in Richtlinie 2.4.10 die Einschränkung und Erweiterung des Anwendungsbereichs einer bedingten interpretierenden Erklärung der Regelung unterworfen, die auf die teilweise Rücknahme und die Erweiterung von Vertragsvorbehalten Anwendung findet. Eine solche Modifikation kann somit nur vorgenommen werden, wenn sie nicht auf den Widerstand einer der anderen Vertragsparteien stößt. Die Rücknahme der bedingten interpretierenden Erklärung ist in Richtlinie 2.5.13 ebenfalls den Regeln unterstellt, welche die Rücknahme eines Vertragsvorbehalts zum Inhalt haben. Dieser Verweis bezieht sich, solange die Frage nach der Gültigkeit von Vertragsvorbehalten und interpretierenden Erklärungen noch offen ist, vorerst lediglich auf die Richtlinienentwürfe 2.5.1 bis 2.5.9. II. Behandlung des neunten Berichts zu Einsprüchen gegen Vertragsvorbehalte83

In seinem neunten Bericht, eigentlich eine Ergänzung des achten Berichts aus dem Vorjahr, widmet sich Pellet erneut der Bestimmung des Einspruchs zu einem Vertragsvorbehalt. Diese Berichtigung des Berichts des vergangenen Jahres erachtete Pellet ob der geübten Kritik in der Kommission für erforderlich. Die bereits zum zweiten Mal überarbeitete Definition des Begriffs ‚Einspruch‘ trägt dem Bedenken Rechnung, die Definition dürfe die Frage nach der Gültigkeit von Einsprüchen nicht präjudizieren. Dies erreicht sie, indem sie die Frage nach den möglichen und zulässigen Auswirkungen eines Einspruchs offen lässt. Ein Einspruch ist demnach eine einseitige Stellungnahme eines Staates in Antwort auf einen Vorbehalt eines anderen Staates, mit dem der Einspruch erhebende Staat bezweckt, die von dem Vertragsvorbehalt erwarteten Effekte im gegenseitigen Verhältnis zu ändern, zu verhindern oder auszuschließen. Dabei steht eine internationale Organisation einem Staat gleich. 82

Vienna Convention on the Law of Treaties, 23. Mai 1969, UNTS, vol. 1155, 331 (WVK). 83 Vgl. Pellet (Anm. 80); ILC Report 2004 (Anm. 2), 275–293.

Die Tätigkeit der International Law Commission im Jahre 2004

947

Richtlinienentwurf 2.6.2 erklärt darüber hinaus, dass auch der Einspruch gegen einen verspäteten Vertragsvorbehalt oder gegen die Erweiterung des Anwendungsbereichs eines Vorbehalts von der Definition des Einspruchs erfasst wird. Während der Debatte in der Kommission richtete sich grundsätzliche Kritik gegen die Notwendigkeit einer Definition des Einspruchs sowie gegen deren Formulierung vor der Klärung der Frage nach den Auswirkungen eines Einspruchs. Es wurde vorgebracht, dass das Resultat eines Einspruchs gewöhnlich nicht die Änderung der von dem Vertragsvorbehalt erwarteten Wirkungen sei. Eine Definition sollte sich daher nicht nach der Absicht des Einspruch erhebenden Staates richten. Außerdem seien im Einklang mit Artikel 23 Absatz 1 WVK die Staaten zu benennen, die Einspruch erheben dürften. Es wurde des Weiteren angeregt, auch die Einsprüche zu erfassen, die darauf abzielten zu verhindern, dass ein Vertragsvorbehalt seine Wirkung entfaltet. Sonderberichterstatter Pellet wies in seinen abschließenden Anmerkungen darauf hin, dass die Frage nach dem Zeitpunkt der Erhebung des Einspruchs und nach den Staaten und internationalen Organisation, die in der Lage sein sollen, Einspruch zu erheben, hoch komplex und daher separat zu behandeln sei. Im Anschluss an die Vorstellung des Berichts und die Debatte in der Kommission leitete diese die zwei Richtlinienentwürfe an den Redaktionsausschuss weiter. Entwurf 2.6.1 enthält dabei die Definition des Einspruchs. Der weitgehend unumstrittene Richtlinienentwurf 2.6.2 stellt diesem den Einspruch gegen die verspätete Formulierung oder gegen die Erweiterung des Anwendungsbereichs eines Vertragsvorbehalts gleich. H. Fragmentierung des Völkerrechts: Schwierigkeiten, die sich aus der Diversifizierung und der Ausdehnung des Völkerrechts ergeben84 Nachdem im Vorjahr fünf Teilbereiche des Themas „Fragmentierung des Völkerrechts“ Mitgliedern der Arbeitsgruppe zur Bearbeitung zugewiesen worden waren, legten diese im Jahre 2004 ihren vorläufigen Bericht bzw. ihre outlines zum weiteren Vorgehen vor. Die wiedereingesetzte Arbeitsgruppe besprach die Berichte und kündigte an, bis zum Jahre 2006 ein Sammeldokument als Ergebnis ihrer Arbeit der Kommission vorzulegen. Dieses Dokument soll die 84

Siehe dazu insgesamt ILC Report 2004 (Anm. 2), Rz. 296–358 (Kap. X).

948

Sara Jötten

Inhalte der verschiedenen Berichte und die Diskussion in der Arbeitsgruppe vereinigen und aus zwei Teilen bestehen: einer materiellen Untersuchung der Themen sowie einer präzisen Zusammenfassung, die Ergebnisse und gegebenenfalls auch Richtlinien enthalten solle. Für Diskussionen sorgte erneut die Frage, welchem Ziel die Arbeit der Kommission an diesem Thema diene. Skepsis gab es hinsichtlich der Absicht, Richtlinien oder ein ähnliches normatives Werk zu erstellen. Einigkeit bestand jedoch wenigstens dahingehend, dass bereits die Analyse des Themas durch die Arbeitsgruppe und die Erarbeitung eigener Ergebnisse nutzbringend sei.85 I. Vorläufiger Bericht zur Funktion und zum Umfang der lex specialis-Regel86

In dem ersten Teil seines vorläufigen Berichts widmet siche Martti Koskenniemi wie bereits im Vorjahr der Funktion und dem Umfang der lex specialisRegel. Ausgehend von den drei im vergangenen Jahr festgelegten Formen, in denen Konflikte entstehen können, die sich aus der Aufspaltung des Völkerrechts ergeben,87 hob Koskenniemi sechs Punkte hervor. Einleitend betonte er, dass der Rückgriff auf die lex specialis-Regel eng verbunden sei mit der Vorstellung des Völkerrechts als eines Rechtssystems. Die Regel löse einen Konflikt zwischen aufeinander treffenden Standards zum einen durch eine Auslegung des speziellen Rechts im Lichte des allgemeinen Rechts und zum anderen durch die Aufstellung eines Rangverhältnisses im Sinne eines Unterliegens des allgemeinen Rechts. Die Charakterisierung einer Regel als eine lex specialis-Regel sei dabei keinesfalls in abstracto vorzunehmen, sondern bestimme sich immer vor dem Hintergrund ihrer Einbindung in ein Rechtssystem. Eine Regel könne daher immer nur im Verhältnis zu einer anderen Regel spezial sein. Zweitens hob Koskenniemi hervor, dass die lex specialis-Regel eine traditionelle und weithin akzeptierte Interpretationsregel darstelle, deren Überzeugungskraft daraus erwachse, dass sie eine pragmatische und klare Anwendung 85

Id., Rz. 298–302. Martti Koskenniemi, Preliminary Report on the Study on the Function and Scope of the lex specialis Rule and the Question of Self-contained Regimes, UN Doc. ILC (LVI)/SG/FIL/CRD.1 (2004); ILC Report 2004 (Anm. 2), Rz. 304–313. 87 Siehe dazu ILC Report 2004 (Anm. 2), Rz. 303; ILC Report 2003 (Anm. 1), Rz. 429; Elberling (Anm. 1), 763. 86

Die Tätigkeit der International Law Commission im Jahre 2004

949

auf den Einzelfall ermögliche, die dem Willen der Parteien Geltung verschaffe.Des Weiteren unterschied der Berichterstatter zwischen vier Situationen, in denen die lex specialis-Regel die Bestimmung des Verhältnisses unterschiedlicher Regelungen in der Fallpraxis vornehme. Aufgezählt wurde die Regelung des Verhältnisses zweier Vorschriften in einem Dokument oder verschiedener Vorschriften in zwei verschiedenen Instrumenten sowie zwischen einer vertraglichen und einer nichtvertraglichen Regelung und zwischen zwei nichtvertraglichen Regelungen. Der vierte Vorschlag Koskenniemis, die Anerkennung einer gerade nicht formellen, sondern informellen Hierarchie im Völkerrecht, die darin bestehe, dass die spezielle Regelung einer generellen vorgezogen werde, stieß auf Zweifel innerhalb der Arbeitsgruppe.88 Nach Ansicht des Berichterstatters drücke diese pragmatische Hierarchie, die als ein natürlicher Aspekt rechtlicher Logik auftrete, die einvernehmliche Grundlage des Völkerrechts aus. Im nächsten Punkt stellte Koskenniemi auf zwei unterschiedliche Betrachtungsweisen des Verhältnisses zwischen spezieller und genereller Norm ab: die speziellere Norm könne im weitesten Sinne eine Anwendung der generellen Norm darstellen oder aber eine Änderung, overruling oder setting aside, der generellen Regel bewirken. Diese Unterscheidung sei bis zu einem gewissen Grad künstlich hervorgerufen und beide Aspekte seien daher in der Bearbeitung gleichermaßen relevant. Sechstens merkte Koskenniemi an, dass es trotz der überwiegenden Dispositivität des Völkerrechts Fälle gebe, in denen Abweichungen vom allgemeinen Recht nicht erlaubt seien, wie zum Beispiel im Fall von jus cogens. Mit Blick auf das kommende Jahr machte Berichterstatter Koskenniemi darauf aufmerksam, dass er es versäumt habe, in seinem Bericht die Frage der regionalen Rechtssysteme und der Regionalisierung zu behandeln. Die Arbeitsgruppe begrüßte seine Absicht, im Jahre 2005 einen ergänzenden Bericht zu diesen Aspekten zu erstellen. Die Arbeit des Berichterstatters wurde in der Arbeitsgruppe weitgehend befürwortet. Hervorgehoben wurde insbesondere, dass das allgemeine Recht immer im Hintergrund spezieller Regeln und Regimes omnipräsent sei. Ergänzend zu der Ausarbeitung führte die Arbeitsgruppe an, dass eine Unterscheidung zwischen dem Gebrauch der lex specialis-Regel bei der teilweisen Aufhebung und bei der Entwicklung des Rechts existiere.

88

ILC Report 2004 (Anm. 2), Rz. 313.

950

Sara Jötten

II. Vorläufiger Bericht zur Frage der self-contained regimes89

Einleitend zum zweiten Aspekt seines Berichts hob Berichterstatter Koskenniemi hervor, dass die self-contained regimes eine untergeordnete Kategorie von lex specialis seien. Die Bezeichung self-contained regime wurde in drei verschiedenen Situationen benutzt. Der Ständige Internationale Gerichtshof gebrauchte den Begriff im Wimbledon-Fall90 in Bezug auf eine Anzahl von Vertragsbestimmungen zu einem einzelnen Thema. Der IGH wendete den gleichen Begriff in dem Teheran Hostages-Fall91 auf eine bestimmte Anzahl von Sekundärnormen an, die Vorrang vor den allgemeinen Regeln betreffend Staatenverantwortlichkeit verlangten. In der akademischen Debatte und der Praxis wird der Begriff außerdem für die Beschreibung von Rechtsgebieten genutzt, die in der Form funktionell spezialisiert sind, dass dort eigene Regeln und Interpretationstechniken gelten. Alle diese Formen des self-contained regimes seien nicht isoliert und als in sich abgeschlossen zu betrachten. Im Gegenteil sei gerade als Ergebnis vorangegangener Diskussionen festzuhalten, dass es nicht vorausgesetzt werden könne, dass spezielle Regeln völlig isoliert vom allgemeinen Völkerrecht seien und ein Rückgriff auf das allgemeine Völkerrecht nicht möglich sei. Nach Ansicht Koskenniemis sei gerade eine völlige Isolation nicht vorstellbar, da ein regime seine Bindungswirkung immer von (gültigen und verbindlichen) Normen oder Prinzipien, die sich außerhalb des regimes befänden, beziehe.92 Das allgemeine Völkerrecht habe somit eine zweiseitige Rolle in Bezug auf self-contained regimes zu erfüllen: Zum einen gebe es den normativen Hintergrund des regimes und ergänze es, zum anderen greife das allgemeine Völkerrecht ein, wenn das spezielle regime nicht ordnungsgemäß funktioniere. Daher schlug Koskenniemi vor, sich in Zukunft auf die folgenden Aspekte zu konzentrieren: Erstens sei auf die Voraussetzungen der Bildung eines speziellen regimes einzugehen. In diesem Punkt könne auf die Regel, die hinsichtlich einer Abweichung durch lex specialis gelte, zurückgegriffen werden. Zweitens sei die Art und Weise der selbstständigen Arbeitsweise der regimes zu untersuchen. 89

Koskenniemi (Anm. 86), Add. 1; ILC Report 2004 (Anm. 2), Rz. 314–330. StIGH, Case of the S.S. „Wimbledon“ (Great Britain/Italy/Japan v. German Reich), Urteil vom 17. August 1923, PCIJ Ser. A, No. 1, 15, 23–24. 91 IGH, Case Concerning the United States Diplomatic and Consular Staff in Tehran (USA v. Iran), Urteil vom 24. Mai 1980, ICJ Reports 1980, 1. 92 ILC Report 2004 (Anm. 2), Rz. 314–318. 90

Die Tätigkeit der International Law Commission im Jahre 2004

951

Drittens sei der Anwendungsbereich des regimes gegenüber dem allgemeinen Völkerrecht unter normalen Umständen von Interesse. Das Verhältnis des jeweiligen speziellen regimes zum allgemeinem Völkerrecht sei durch Auslegung der das regime bildenden Verträge zu ermitteln. Dabei sei zu beachten, dass kein regime existiere, das die Anwendung des allgemeinen Völkerrechts ausschließe. Im Gegenteil sei es gerade die Eigenart allgemeiner Völkerrechtssätze, dass sie ohne einen Akt der Inkorporation zur Anwendung kommen. Hingegen sei es fraglich, woraus ein Übereinkommen, das den Ausschluss allgemeinen Völkerrechts zum Inhalt habe, seine Bindungswirkung herleite. Viertens seien die Voraussetzungen eines Rückgriffs auf generelle Regeln bei Versagen des regimes zu untersuchen. Die Bestimmung des Versagens (failure) eines regimes sei dabei ungeklärt; die Bedeutung könne jedoch nach einem Vorschlag in der Arbeitsgruppe unter Auslegung der das regime bildenden Verträge ermittelt werden. Koskenniemi bezeichnete als Ergebnis seiner Studie zu den beiden Teilaspekten, dass der gegenwärtige Gebrauch der lex specialis-Regel oder die Entstehung spezieller regimes die Rechtssicherheit, die Voraussehbarkeit oder Gleichheit der Rechtssubjekte nicht gefährdet habe. Die zwei Techniken seien als Ausdruck der Besorgnis um die wirtschaftliche Entwicklung, um den Schutz der Menschenrechte und der Umwelt und um die Regionalisierung zu verstehen. III. Anwendung aufeinanderfolgender Verträge über denselben Gegenstand (Artikel 30 WVK)93

Teodor Melascanu stellte als Berichterstatter des Themas „Anwendung aufeinanderfolgender Verträgen über denselben Gegenstand“ eine outline für das weitere Vorgehen der Arbeitsgruppe vor. In dieser beschäftigte er sich mit der Entstehungsgeschichte und den Bestimmungen des Artikels 30 WVK. Dessen Absatz 4 lit. b sieht vor, dass, sollten nicht alle Vertragsparteinen eines späteren Vertrages auch Parteien des früheren über denselben Gegenstand sein, derjenige Vertrag im Verhältnis der jeweiligen Vertragsparteien untereinander gilt, dem die Vertragsparteien gemeinsam angehören. Lediglich diese Bestimmung des Artikels sei in mehrfacher Hinsicht relevant für eine zukünftige Bearbeitung. 93

Teodor Melescanu, Outlines on the Study on the Application of Successive Treaties Relating to the Same Subject Matter (Art. 30 of the Vienna Convention on the Law of Treaties), UN Doc. ILC(LVI/SG/FIL/CRD.2 (2004); ILC Report 2004 (Anm. 2), Rz. 331–337.

952

Sara Jötten

Zum einen habe der bloße Abschluss eines folgenden Vertrages, der sich mit dem früheren als unvereinbar erweist, nicht per se einen Völkerrechtsverstoß zur Folge, sondern erst seine Anwendung. Vorgeschlagen wurde jedoch in der Diskussion, dass wenigstens in einigen Fällen ein Konflikt bereits mit dem Zustandekommen des Vertrages entstehen könne. Weiter spreche Artikel 30 nicht ausdrücklich die Frage der Gültigkeit zweier unvereinbarer Verträge an, sondern lediglich ihrer Priorität gegenüber dem jeweils anderen. Die Bestimmung regele weder Fragen der Suspendierung oder Beendigung noch der Rechtsfolgen der Verletzung eines Vertrages durch einen anderen. Schließlich hätten die Vorschriften des Artikel 30 Auffangcharakter und seien somit nicht zwingend. Die letztere Schlussfolgerung wurde von einigen Mitgliedern der Arbeitsgruppe jedoch in Zweifel gezogen. Letztlich sei es dem Willen der Staaten überlassen, welchem Vertrag sie Vorrang einräumten. Das Augenmerk der Untersuchung ist nach Ansicht Melascanus und mit Zustimmung der Arbeitsgruppe darauf zu richten, in welchem Maße dieser Wille der Staaten eingeschränkt werden könne. IV. Modifikation mehrseitiger Verträge zwischen einzelnen Vertragsparteien (Artikel 41 WVK)94

Berichterstatter Riad Daoudi nahm sich in einer outline des Aspekts der „Modifikation mehrseitiger Verträge zwischen einzelnen Vertragsparteien“ an. Er stellte zwei in Artikel 41 WVK offen gelassene Fragen besonders hervor: die rechtlichen Auswirkungen einer Verletzung des ersten Absatzes von Artikel 41 sowie die Rechtsfolgen eines Einspruchs, der nach Erfolgen einer Notifikation gemäß Absatz 2 eingelegt wurde. Artikel 60 WVK behandle lediglich die Bedingungen einer Reaktion auf eine materielle Verletzung, ohne eine solche jedoch zu definieren. Das Recht der Staatenverantwortlichkeit umfasse nur die Verletzung des Originalvertrages durch die inter se-Vereinbarung Die Arbeitsgruppe fügte diesen Ausführungen von Daoudi an, dass die Folgen einer unerlaubten inter se-Vereinbarung nicht ausdrücklich in Artikel 41 behandelt würden und im weiteren Verlauf der Untersuchung analysiert werden sollten. Das Verhältnis zwischen dem Originalvertrag und dem inter se94 Riad Daoudi, Study Concerning the Modification of Multilateral Treaties Between Certain of the Parties Only (Art. 41 of the Vienna Convention on the Law of Treaties), UN Doc. ILC(LVI/SG/FIL/CRD.4 (2004); ILC Report 2004 (Anm. 2), Rz. 338–344.

Die Tätigkeit der International Law Commission im Jahre 2004

953

Übereinkommen stellt sich nach Ansicht der Arbeitsgruppe mitunter als das zwischen einem Minimalstandard und dessen Weiterentwicklung dar. Aufmerksamkeit soll in Zukunft den semantischen Unterschieden der Begriffe Modifizierung, amendment und revision sowie der Rolle, welche die Notifikation eines inter se-Übereinkommens bei der Verringerung des Auftretens einer Fragmentierung des Rechts spiele, entgegen gebracht werden. V. Vertragsauslegung im Lichte der ‚in den Beziehungen zwischen den Vertragsparteien anwendbaren einschlägigen Völkerrechtssätze‘ (Artikel 31 Absatz 3 lit. c WVK)95

William Mansfield erstellte eine outline zu dem Thema „Vertragsauslegung im Lichte der ‚in den Beziehungen zwischen den Vertragsparteien anwendbaren einschlägigen Völkerrechtssätze‘. Nachdem der Berichterstatter unter anderem auf die Funktion der Bestimmung insbesondere im Hinblick auf ihren Wortlaut und ihren Gebrauch in der Praxis einging, gelangte er zu einigen vorläufigen Schlussfolgerungen. Die Gelegenheit, einen Bezug zu anderen Völkerrechtssätzen herzustellen, bestehe nicht, wenn die Auslegung des Vertrags unproblematisch sei. Die Notwendigkeit der Anwendung der Interpretationsregel des Artikel 31 Absatz 3 lit. c ergebe sich normalerweise, wenn die fragliche Vertragsbestimmung unklar sei und die Mehrdeutigkeit sich durch einen Bezug zu einer bestehenden völkerrechtlichen Institution zu lösen scheine. Ebenfalls denkbar sei die Anwendung, wenn die in dem Vertrag verwendeten Begriffe eine wohlbekannte Bedeutung im Völkergewohnheitsrecht aufwiesen und vermutet werden könne, dass die Parteien sich auf diese beziehen wollten. Schließlich sei die Auslegungsregel auch hinzuzuziehen, wenn die Bestimmungen des Vertrages ihrer Natur nach offen gestaltet (open-textured) seien und eine Bezugnahme auf andere Quellen des Völkerrechts bei der inhaltlichen Ausfüllung der Vorschrift helfen würde. Des Weiteren bleibe bei der Anwendung des Artikels 31 unter anderem die Frage offen, ob es notwendig sei, dass alle Vertragsparteien des Vertrages, der interpretiert werde, auch Vertragsparteien des anderen, hinzugezogenen Vertrages seien oder es vielmehr ausreiche, wenn nur einige Vertragsparteien seien. 95

William Mansfield, Study on the Interpretation of Treaties in the Light of „Any Relevant Rules of International Law Applicable in Relations Between Parties” (Art. 31 (3) (c) of the Vienna Convention on the Law of Treaties), UN Doc. ILC(LVI/SG/FIL/ CRD.3/Rev.1 (2004); ILC Report 2004 (Anm. 2), Rz. 345–351.

954

Sara Jötten

Die Arbeitsgruppe betonte die Bedeutung der Auslegungsregel für die Harmonisierung des Völkerrechtssystems und diskutierte ausführlich, welche Rechtsquellen, wie andere Verträge, Völkergewohnheitsrecht und allgemeine Prinzipien, durch Artikel 31 Absatz 3 lit. c erfasst seien. Augenmerk solle zukünftig außerdem auf das Verhältnis der Regelung zu anderen Regeln der Vertragsauslegung, insbesondere zu Artikel 32 WVK, gerichtet werden. VI. Hierarchien im Völkerrecht: jus cogens, erga omnes-Verpflichtungen und Artikel 103 der Charta der Vereinten Nationen als Kollisionsregeln96

Zu dem Thema „Hierarchien im Völkerrecht: jus cogens, erga omnesVerpflichtungen und Artikel 103 der Charta der Vereinten Nationen als Kollisionsregeln“ erstellte Zdzislaw Galicki eine outline.97 Einer kurzen Beschreibung von jus cogens, erga omnes-Verpflichtungen und dem Wesen der Verpflichtungen nach Artikel 103 der UN Charta folgte der Aufruf, diese Kategorien in der Zukunft zu analysieren. Im Folgenden bot Galicki einen kurzen Überblick über das Konzept einer Hierarchie im Völkerrecht, die er vor allem als Widerspiegelung des Prozesses der Rechtsentwicklung verstehe. Als solche könne eine Hierarchie sowohl zur Vereinheitlichung als auch zur Fragmentierung des Rechts beitragen. Der Berichterstatter schlug eine Beschäftigung mit der Frage nach der Entstehung normativer Hierarchien vor. Schließlich betonte Galicki, dass sowohl jus cogens und erga omnes-Verpflichtungen als auch Artikel 103 der UN Charta als Kollisionsregeln anzusehen seien und daher ihr Vorrang gegenüber anderen Normen, ihr gegenseitiges Hierarchieverhältnis sowie die hierarchischen Beziehungen innerhalb der Kategorien von Interesse seien. Die Arbeitsgruppe unterstrich, dass die zukünftige Ausrichtung des Themas praxisorientiert sein solle und keine generellen oder absoluten Hierarchien ermittelt werden sollten. Die höchst kontroverse theoretische Diskussion um eine Hierarchie der Völkerrechtsnormen solle dadurch vermieden werden, dass die Arbeitsgruppe sich auf die Funktion hierarchischer Strukturen als Ausdruck logischen Rechtsdenkens konzentriere. Als sinnvoll wurde auch befunden, die Unterschiede zwischen jus cogens und erga omnes-Verpflichtungen sowie die 96

Zdzislaw Galicki, Study on Hierarchy in International Law: jus cogens, Obligations erga omnes, Art. 103 of the Charta of the United Nations, as Conflict Rules, UN Doc. ILC(LVI/SG/FIL/CRD.5 (2004); ILC Report 2004 (Anm. 2), Rz. 352–358. 97 ILC Report 2004 (Anm. 2), Rz. 352–358.

Die Tätigkeit der International Law Commission im Jahre 2004

955

Folgen eines hierarchischen Verhältnisses vor allem im Lichte der Auslösung von Staatenverantwortlichkeit zu analysieren. J. Ausblick Große Fortschritte machte die Kommission im Jahre 2004 bezüglich des Themas „diplomatischer Schutz“, zu dem ein nahezu vollständiges Regelwerk mit 19 Artikeln nunmehr vorliegt. Auch die Arbeit an dem Thema „anteilige natürliche Ressourcen“ konnte inhaltlich entscheidend vorangetrieben werden. Im kommenden Jahr steht zudem das Vorliegen eines vollständigen Entwurfs vorläufiger Richtlinien in Aussicht. Allerdings steht dem entgegen, dass die Ungewissheit in der Kommission hinsichtlich der letztendlichen Form der Arbeit anhält. Diese Diskussion über methodische Fragen spiegelte sich auch bei der Bearbeitung des Themas „völkerrechtliche Haftung für Schäden aufgrund nicht völkerrechtswidriger Aktivitäten“ wider. Zwar konnte ein Prinzipienentwurf verabschiedet werden, die Kommission behielt sich jedoch eine Änderung der endgültigen Form ausdrücklich vor. Entscheidende inhaltliche Fortschritte wurden weder bezüglich des Themas „Vertragsvorbehalte“, bei dessen Bearbeitung strittige Fragen ausgespart wurden, noch hinsichtlich des Themas „einseitige Hoheitsakte“ erzielt. Die Kommission nahm zwei neue Themen in ihr Programm auf. Für das Thema „Ausweisung von Ausländern“ (expulsion of aliens) wurde Maurice Kamto als Sonderberichterstatter eingesetzt, für das Thema „Wirkungen bewaffneter Konflikte auf Verträge“ (Effects of armed conflicts on treaties) Ian Brownlie. In die langfristige Programmplanung nahm die Kommission außerdem das Thema „Verpflichtung zur Auslieferung oder Strafverfolgung (aut dedere aut judicare)“ auf. Die Einbeziehung dieses Themas in das laufende Programm fasste die Kommission schon für die nächste Sitzungsperiode ins Auge und fügte einen Bericht Zdzislaw Galickis als Annex dem Bericht der Kommission bei.98 Die Kommission wird im Jahre 2005 vom 2. Mai bis zum 3. Juni sowie vom 4. Juli bis zum 5. August in Genf tagen.

98

ILC Report 2004 (Anm. 2), 312–321.

BOOK REVIEWS Klaus Beckmann/Jürgen Dieringer/Ulrich Hufeld (Hrsg.): Eine Verfassung für Europa. Mohr Siebeck, Tübingen 2004, 324 Seiten sowie 33 Seiten Anhang. Dem derzeitigen Bedarf an aktueller Literatur zum Europäischen Verfassungsrecht kommt bereits eine Reihe von Monographien entgegen. Genannt sei neben Peter Häberles Europäischer Verfassungslehre (2. Auflage 2004) nur Anne Peters Habilitationsschrift zu den Elementen einer Theorie der Verfassung Europas (2001) oder das von Armin von Bogdandy herausgegebene umfangreiche Sammelwerk zum Europäischen Verfassungsrecht (2003). Nun soll ein inhaltlich anknüpfender Sammelband vorgestellt werden, der sein Thema klar benennt („Eine Verfassung für Europa“) und der sich neben der Durchdringung grundlegender europaverfassungsrechtlicher Fragen insbesondere der Bewertung des Konventsentwurfs zum Verfassungsvertrag verschrieben hat. Dabei sei vorweggenommen, dass der Band aus seiner grundsätzlichen Zustimmung zum Verfassungsvertragsentwurf des Europäischen Konvents kein Geheimnis macht: Sowohl Vorwort als auch die allermeisten Beiträge streiten aus ganz unterschiedlichen Perspektiven – aber stets in großer Gedankentiefe – so überzeugend für die neue Europäische Verfassung, dass man als Leser geneigt ist, auf dem Buchtitel das Ausrufezeichen zu vermissen (bestünde nicht bei solcher Interpunktion die Gefahr, der wissenschaftlich-abwägende Charakter des Werkes würde zu unrecht in den Hintergrund gedrängt). Das spezifische Gewicht und Profil des Sammelbandes zeigt sich bereits bei einem Blick auf den Herausgeber- und Autorenkreis, sind doch die Herausgeber drei Professoren der jungen Andrássy Gyula Deutschsprachigen Universität Budapest, die sich seit dem Jahre 2002 der deutschsprachigen Kultur- und auch Rechtsvermittlung in Ungarn und im ganzen osteuropäischen Raum verschrieben hat. Bereits dieser Hintergrund mag Ursache für den einen oder anderen innovativen Ansatz sein, der zu weiterem Nachdenken einlädt. Unter den Autoren sind neben den Dozenten dieser Hochschule auch Professoren der Universitäten Heidelberg und Tübingen zu finden, sodass eine Reihe äußerst bekannter Europarechtler (Peter-Christian Müller-Graff, Thomas Oppermann, Wolfgang Graf Vitzthum) mit Beiträgen in dem Band vertreten ist. Die Aufsätze sind in vier Abteilungen eingeteilt, die thematisch in Richtung des im Anhang abgedruckten Verfassungsentwurf des Konvents (ohne den umfangreichen Teil III) verlaufen, also von allgemeinen gesamteuropäischen verfassungsrechtlichen Beobachtungen hin zu einer detaillierten Einzelkritik des Verfassungsentwurfs geordnet sind. Der erste Abschnitt des Sammelbandes („Profile“) widmet sich zum thematischen Einstieg dem Portrait zweier ganz unterschiedlicher Europäer. Mit großem Gewinn ist ein Beitrag von Ulrich Hufeld zu lesen, den dieser selbst als „historisch-rechtsvergleichende Miniatur“ bezeichnet und der Vergleiche zieht zwischen Julius Graf Andrássy (1823–1890), Außenminister der Habsburger Monarchie (sowie Namensgeber der

Book Reviews

957

genannten Hochschule), und der Person des künftigen Außenministers der Europäischen Union (siehe Art. I-28 des Verfassungsvertrages und Art. I-27 des Konventsentwurfs), der als Vizepräsident der Kommission die Gemeinsame Außen- und Sicherheitspolitik der Union leiten soll. Hufeld fragt nach informativer Skizzierung des politischen Wirkens von Graf Andrássy in der österreich-ungarischen Doppelmonarchie pointiert: „Stellen wir uns Graf Andrássy als Anwärter auf das Amt des europäischen Außenministers vor“ (13), und führt sofort das Geflecht von institutionellen Regelungen und (schon) gremienstrukturellen Abhängigkeiten vor, denen der künftige Außenminister unterworfen sein wird. Insgesamt eine lesenswerte Miniatur, die den Wert der Verfassungsgeschichte auch für die Einschätzung künftigen Verfassungsrechts eindrucksvoll bestätigt. Eher in vertrauten Bahnen verlaufen dann Bemerkungen zum Leben Carlo Schmids, den KlausPeter Schroeder als einen der Väter der in Art. 24 GG begründeten Konzeption der offenen Staatlichkeit und der strikt normativen Grundrechtskonzeption des Grundgesetzes vorstellt. Unter der großzügigen Überschrift „Geist und Gestalt der europäischen Einigung“ folgen sodann vier Beiträge, die sich den langfristigen Perspektiven der Integration widmen. Wolfgang Graf Vitzthum stellt die „position en sandwich“ (41) der Europäischen Union zwischen den weiterhin politisch und rechtlich notwendigen Nationalstaaten und dem sich wandelnden und wachsenden Völkerrecht dar, die nicht ohne Auswirkungen auf die Europäische Einigung bleiben kann. Daran anschließend erörtert Rüdiger Bubner die Rolle des Volkes bei der künftigen Verfassungsgebung, bei der er entschieden mahnt, Verfassungsfragen nicht nur als Experten- und insbesondere Juristenangelegenheiten, sondern als „ureigenste Sache des Volkes“ (55) zu behandeln: „[O]riginäre Rechtsschöpfung ist kein höherer Verwaltungsakt. Wenn man die europäische Verfassung indes wie einen Schnörkel behandelt, den Honoratioren im Ruhestand malen dürfen, nimmt man sie nicht ernst genug“ (57). Diese in Teilen überspitzt wirkende Kritik wird abgemildert durch besonders lesenwerte Bemerkungen von István M. Fehér, der das Verhältnis zwischen Volk und Verfassung, das untrennbar auch mit dem Gedanken des Vertrages verknüpft ist, historisch-philosophisch mit Bezug auf Herder und Kant ausleuchtet und zeigt, dass im Topos „Verfassungsvertrag“ trotz vorliegender Erörterungen im Schrifttum noch wissenschaftliche Raumgewinne möglich sind. Den über den Verfassungsvertrag in seiner gegenwärtigen Form hinausgreifenden Abschnitt zu den Perspektiven der Europäischen Einigung schließt ein Beitrag von Markus M. Müller ab, der die von Teilen der deutsche Staatslehre jedenfalls bisher als unmöglich erklärte Trennung von Volk, Staat und Verfassung vor dem Hintergrund eines funktionalen Demokratieverständnisses kritisiert und „Mut zur Staatlichkeit“, d. h. nicht mehr und nicht weniger als die Etablierung einer europäischen Staatlichkeit, fordert (insb. 89). Wie auch bei dem Beitrag von Bubner mögen die Schlussfolgerungen im einzelnen dem Leser zu weit gehen; eine kritische Anfrage gerade an die (deutsche und europäische) Rechtswissenschaft, wie es mit den zentralen Werten der Volkssouveränität und der Demokratie denn im Projekt der Europäischen Einigung gegenwärtig bestellt ist, stellen diese Beiträge auf hohem und lesenswertem Niveau allemal dar. Vielfach wird zutreffend der Finger in die entsprechenden „Wunden“ – etwa die allzu leichte Erklärung negativer Volksabstimmungen über die Zustimmung zu europäischen Verträgen in einzelnen Mitgliedstaaten als „Ausrutscher“ – gelegt. Die folgenden beiden Beiträge, die den dritten Abschnitt des Buches („Europäische Verfassung als Prozeß und Institution“) eröffnen, sind aus rechtswissenschaftlicher Sicht wohl die interessantesten, weil sie einen Blick auf Verfassungen überhaupt und die Eu-

958

Book Reviews

ropäische Verfassung im Besonderen werfen, der unter Juristen bei weitem noch nicht üblich ist: die verfassungsökonomische (oder konstitutionenökonomische) Betrachtung. Stefan Okruch und Klaus Beckmann führen jeweils auf engem Raum kompakt durch die Thematik, deren Grundlage die auf Hobbes zurückgehende und von James M. Buchanan (insb. die Grenzen der Freiheit, 1984) vorgenommene ökonomische Deutung der Verfassung als Abschluss eines multilateralen Vertrages zum gegenseitigen Nutzen ist. Viele dogmatische Figuren der Verfassungslehre, etwa der von Okruch untersuchte Komplex Verfassungsänderung versus Verfassungswandel oder die Frage, ob die Europäische Union bereits eine Verfassung besitzt, erscheinen mit einem wirtschaftspolitischen Ausgangspunkt zwar nicht vollständig anders, aber doch in einem anderen – in der deutschsprachigen Wissenschaft wohl zu Unrecht unterbewerteten – Licht. Dies zeigt sich etwa dann besonders, wenn die Funktionen einer Verfassung aus ökonomischer Sicht dargestellt werden (120 ff.). Vergleicht man dies mit den klassischen (juristisch-politologisch inspirierten) Verfassungsfunktions-Katalogen im Schrifttum, so wird viel Verbindendes, aber auch einiges Neue sichtbar: Die Einbeziehung dieses Ansatzes dürfte noch erheblichen Ertrag für die deutsche und europäische Verfassungsdiskussion bringen. Nach diesen tiefdringenden theoretischen Gedanken steuert der Sammelband dann in seiner zweiten Hälfte auf die Darstellung und Bewertung der Arbeit des Verfassungskonvents hin. Wer neben den theoretischen Grundlagen an den „hard facts“ zur neuen Verfassung interessiert ist, wird bezüglich der Vorgeschichte des Verfassungskonvents, Zusammensetzung, Arbeitsweise des Konvents (insb. Thomas Oppermann) solide informiert und kann sich an den sauberen und nachvollziehbaren Bewertungen zum Konventsentwurf (von Heribert Franz Köck) orientieren. Inhaltlich werden nahezu alle Kernfragen der neuen Verfassung angesprochen. Ein Bewertungsraster für den Verfassungsvertrag liefert dazu Peter-Christian Müller-Graff, der aus Sicht der Europarechtswissenschaft die Quadriga der verfassungstheoretischen Anforderungen an eine Verfassung formuliert: konzeptionelle Klarheit, funktionelle Realitätsfähigkeit, Systemrationalität und Reduktion von Komplexität (211 et seq.). Mit diesem Bewertungsraster im Hinterkopf lassen sich dann die ausgebreiteten Einzelprobleme der neuen Verfassung und ihres Entstehungsverfahrens durchdenken. So wird der These nachgegangen, dass die Konvents-Methode eine sehr viel breitere Einbeziehung der Öffentlichkeit ermöglicht hat und so auch der Prozess der Verfassungsgebung insgesamt dem Entstehen der vieldiskutierten „europäischen Öffentlichkeit“ einen erheblichen Antrieb gegeben hat (Martin Große Hüttmann, insb. 164). Der nach gängiger Auffassung festzustellende stetige Bedeutungsverlust der nationalen Parlamente durch die Europäische Einigung wird erforscht, das versuchte Gegensteuern des Konvents durch das neue Subsidiaritätsprotokoll bewertet (Jürgen Dieringer). Jürgen Gündisch analysiert die Veränderungen im Bereich der Grundrechte und des Rechtsschutzes durch die Einbeziehung der Grundrechte-Charta in den Verfassungsvertrag. Neben diesen nahe liegenden – und auch in der öffentlichen Diskussion zentralen – Punkten des Verfassungsvertrages werden aber auch immer wieder Fragestellungen aufgeworfen, die zu einer tieferdringenden Betrachtung über den Text des Verfassungsentwurfes hinaus anregen, etwa wenn Thomas von Danwitz die Grundfragen einer Verfassungsbindung der Europäischen Union diskutiert, Josef Ruthig fragt, ob nicht schon die künftige Verwendung des Begriffs „Gesetzgebung“ im Verfassungsvertrag „eine kopernikanische Wende im Gemeinschaftsrecht“ sei (292) oder Ulrich Hufeld abschließend Chancen, Gefahren und Innovationen einer Europäischen Verfassungsgebung kompakt zusammenfasst.

Book Reviews

959

Insgesamt gelingt diesem Sammelband damit trotz einiger wohl unvermeidlicher Doppelungen, etwa bei den Darstellungen zum Verfassungskonvent, der Spagat zwischen einer reinen Darstellung und Analyse der Konventsarbeit einerseits und der Einordnung des evolutionären verfassungsrechtlichen Geschehens in die zentralen gegenwärtigen Fragestellungen des Verfassungsbegriffs auf der anderen Seite. An vielen Stellen zeigt er Perspektiven auf (etwa in Richtung des Europäischen Außenministers oder der zukünftigen Europäischen Gesetzgebung) oder stellt kompakt weiterführende Ansätze für eine wissenschaftlich gewinnbringende Analyse auf (Stichwort: Konstitutionenökonomik). Gleichzeitig bietet er umfassende Informationen, solide Kritiken und gedankenreiche Argumente, die hoffentlich auch in den aktuellen Diskussionen zum Ratifizierungsverfahren Gehör finden werden. Eine solch gelungene Mischung ist selten: Dieser Sammelband wird – wie die anderen eingangs erwähnten Werke – hoffentlich seinen Platz in der Grundlagenliteratur zur europäischen Verfassungsdiskussion finden. Joachim Schwind

Eileen Denza: The Intergovernmental Pillars of the European Union. Oxford University Press, Oxford 2002, xxxv + 387 pages. In general, European Law has proven itself to be one of the fields of law which is extremely well covered. Numerous books have been published on all kinds of different matters related to the European integration process. The focus of the vast majority of that work, however, has been on Community issues. In direct contrast, the Common Foreign and Security Policy and the Provisions on Police and Judicial Cooperation in Criminal Matters – the so-called Second and Third Pillar of the European Union – have never attracted the same amount of attention. These areas of European law were first introduced into the European legal order by the 1992 Maastricht Treaty. They feature forms of cooperation and coordination among the Member States that considerably differ from the ones used in the First Pillar. In particular, the decision-making process takes place under quite different institutional rules. Instruments adopted in these two fields of European integration cannot create Community law, they are only binding under international law and do not have direct effect in the Member States. Therefore, the cooperation among the Member States in these areas clearly stands outside the general Community legal framework and is commonly described as being intergovernmental. The institutional rules governing these areas are a strong reminder of the very early ways that led to the establishment of the European Communities in the first place. Still, these two intergovernmental pillars also cover legally complex areas that are politically highly sensitivity. They reflect a very different approach on matters of Common European interest from the one usually taken in the First Pillar. In her book “The Intergovernmental Pillars of the European Union,” Eileen Denza addresses a great number of interesting legal questions arising in this context. The book offers a full and impressive examination of the methods used in the two pillars that are already known from the public international law sector, and their close relationship with the Community methods. Before going into detail, it cannot be stressed enough that the presentation of the topics, the overall structure and especially the division of her book

960

Book Reviews

into 11 chapters proves to be very reader-friendly. After an introductory chapter, two chapters on the evolution of the two pillars are presented. The next four chapters deal with the achievements and weaknesses of the chosen approach and the changes brought about by the 1997 Amsterdam Treaty. General questions, mainly judicial and parliamentary control of the pillars and the possibilities of increasing consistency among the adopted measures, are finally addressed in the last four chapters. In the First Chapter, “Two Legal Orders: Distinguishing Features of the Intergovernmental Pillars,” Eileen Denza explores the underlying reasons for the evolution and the present institutional structure of the Second and Third Pillars. They can be described as mainly of a political nature. Moreover, she offers a full comparison of European Community law with Public International law with regard to a great variety of different aspects, e.g. the Negotiation of Further Law, the Role of National Parliaments, the Uniformity of the Law. However, the existing differences between these two legal orders do not prevent them from cross-fertilization. The author gives a number of examples for this process that works in both directions. Most notably, the establishment of the two intergovernmental pillars very clearly shows the inter-dependence of the two systems. In the Second Chapter, “Evolution of European Political Cooperation and Formation of the Second Pillar,” the author first gives a useful background overview of the developments leading to the Maastricht Treaty. The main focus is quite understandably on the British interests involved. This makes this chapter even more interesting for readers from other national backgrounds. Her next general starting point – the concept of state sovereignty – makes quite understandable the strong and continuing refrains of Member States from further integration in some areas regulated by the Second Pillar. Additionally, the overall importance of the establishment of the two intergovernmental pillars becomes even more clear in the light of the so-called Maastricht-Judgement of the German Federal Constitutional Court. In her Third Chapter, “Evolution of Cooperation in Justice and Home Affairs and Formation” on the Third Pillar, the author explores the reasons for the reluctance of most Member States to bring cooperative procedures on justice and home affairs within the competence of the EC. Not only do concerns of infringements on state sovereignty play a role, but so do major political interests. Additionally, the continuing differences between the national legal orders in this respect prove to be much greater than in other areas. The international law method used under the Third Pillar pays tribute to these strong national interests, but also offers an important opportunity to reach agreement in these sensitive areas. After a comprehensive presentation of the developments leading to the establishment of the Third Pillar, Denza provides a description of the differences from the Second Pillar. Finally, the author deals with the strong criticism expressed with regard to the Third Pillar. Even though she agrees with the point that the “Third Pillar bore signs of some hasty jerry-building” (83), she still stresses that its establishment reflected the “extent of public and parliamentary readiness at that stage to integrate asylum, immigration, police, and judicial cooperation into the EU” (84). The Fourth Chapter, “CFSP Achievements and Weaknesses,” first identifies the differences between CFSP and the foreign and security policy of a single state. Then an overview on specific action, e.g. with respect to Russia, is given. The list of measures adopted is quite impressive. Still, in the evaluation that follows, Denza argues that major constraints on CFSP under the Maastricht Treaty were lack of powers, money and manpower (122).

Book Reviews

961

The Fifth Chapter, “The Second Pillar under the Treaty of Amsterdam,” deals with the different recommendations that were first given for the further development and the actual changes finally brought about by the adoption of this treaty. Then the author gives a full overview of the different instruments that are available for European international relations management and the improvements that have come about so far. The Sixth Chapter, “Achievements and Weaknesses of Justice and Home Affairs Cooperation,” starts with a description of what was achieved under the Third Pillar. In the field of asylum, the Dublin Convention Determining the State Responsible for Examining Applications for Asylum deserves special attention. This Convention aims at preventing asylum-seekers from shopping for the most favorable forum within the Community. In this context the lack of a common approach to the 1951 Convention on Refugees and differing state practice turned out to be major obstacles for a common policy. Another issue of great interest, a common approach to the concept of temporary protection and “burden-sharing” with regard to the distribution of asylum-seekers, turned out to be an unfulfilled objective. As with asylum policy, the Member States also agreed on restrictive measures in the field of immigration policy. Most measures were non-binding instruments, but compliance was generally good. The Amsterdam Treaty transferred both policy fields into the First Pillar. With respect to developments on Judicial, Customs, and Police Cooperation, the author points out that the Third Pillar structures made possible a totally new level of cooperation among the Member States (233). However, the remedies available against measures taken under this pillar fall short in comparison to the ones granted on the domestic level, an infringement of civil liberties therefore seems more likely to happen. The Seventh Chapter, “The Residual Third Pillar under the Treaty of Amsterdam,” first deals with the inadequacies of the Third Pillar instruments and working methods and then sums up the reforms put into action by the Treaty of Amsterdam. The aim was to achieve a more balanced development of the collective measures and to strengthen the protection of individual freedoms and rights (241). The set objectives for police and judicial cooperation became much clearer. At the same time, it also became obvious during the reforms of the Third Pillar that the Member States are not putting the highest priority on harmonization of their national legal orders (287). The Eighth Chapter, “Cross-Pillar Action: The Struggle for Consistency,” addresses the very important issue of ensuring the consistency of the growing number of actions taken under the two intergovernmental pillars. The author concludes that “the institutions are becoming familiar with cross-pillar techniques and are now able to use their various powers in a consistent and convincing manner” (309). The problems related to “Judicial Control of the Pillars” are addressed in the Ninth Chapter. In the past, the European Court of Justice had almost no jurisdiction on matters of the intergovernmental pillars. This, however, has changed with the adoption of the Amsterdam Treaty, which has introduced a limited jurisdiction. Still, the European Court of Justice is far from playing a similar role in these two pillars to the one it already plays in the First Pillar. If the confidence of the more reluctant Member States in the work of the European Court of Justice increases, an expansion of ECJ jurisdiction will be more likely. The Tenth Chapter deals with “Parliamentary Control of the Pillars.” As with judicial control, democratic control of the decisions and instruments adopted under the two pillars was initially very limited. Still, the role played by national parliaments should not

962

Book Reviews

be underestimated. Both the role of the European Parliament and of national parliaments has been strengthened by the Amsterdam Treaty. Even though full democratic control is far from being established, the more detailed contributions of the different democratic bodies have more influence than might appear at first glance (339). In the final Eleventh Chapter “Security and Defence Policy,” Eileen Denza describes the first attempts to include issues of European security into the European legal order. Not very surprisingly, the purpose and common aims of European security and defence are not easily defined. The approaches and policies of the Member States are just too different, the neutrality of some Member States creates even more problems. Therefore it can be assumed that issues of security and defense will remain intergovernmental for the foreseeable future (361). Denza convincingly concludes that the forms of cooperation established under the two intergovernmental pillars have proven to be quite effective. Most notably, some of the fields of law formerly regulated by the Second and Third Pillars have already found their ways into the First Pillar. However, the intergovernmental approach has also shown considerable weaknesses, e.g. in relation to the attempt to formulate a common asylum policy. In the light of the last enlargement of the European Union in 2004 and the general process of constitutionalism that is taking place, the institutional rules established in the Second and Third Pillars deserve our on-going attention. They can still offer ways out of situations in which the Community method fails because of gaping differences in interest among the Member States. Therefore, this book can continue to be recommended to everyone interested in the European integration process. Even two years after initial publication of “The intergovernmental Pillars of the European Union,” most valuable lessons can be learned from the cross-fertilization between Community methods and public international law methods to reach agreement. Hanna Goeters

Yoram Dinstein: The Conduct of Hostilities under the Law of International Armed Conflict. Cambridge University Press, Cambridge 2004, xx + 275 pages. The importance of and the difficulties for international humanitarian law or the law of armed conflicts have grown in the new millennium. The major wars following 11 September 2001 have exposed new problems, the immense media coverage has led to an increase in public interest. A new entrant to the field of international humanitarian law trying to address the current problems and therefore searching for a book providing a good overview of international humanitarian law would be rather disappointed. Sooner or later, one would find the original ICRC comments of 1960 on the Geneva Conventions and of 1987 on the Additional Protocols to the Geneva Conventions – good research sources for detailed problems which appeared before the drafting of these conventions. However, it was hard work to gain an overview from a general work, and the problems of today could only be looked at from the point of view of the past. Consequently, it was time for a general study on international humanitarian law, prepared and written in this millennium, addressing its problems. The question this book review tries

Book Reviews

963

to answer is whether Yoram Dinstein’s “The Conduct of Hostilities under the Law of International Armed Conflict” is that work. In his book, Dinstein takes a rather practical point of view as his “book is designed not only for international lawyers but also as a tool for the instruction of military officers.” (2) This is probably based on the vita of the author who was professor for international law at the U.S. Naval War College for two terms. The question therefore is what impact the author’s experience has on his presentation of the sometimes confusing field of international humanitarian law. As the title of the book suggests, not all subjects of that law are addressed. Yoram Dinstein takes the view of a soldier on international humanitarian law and considers only the rules and restrictions concerned with actual fighting. Or, as the introduction says, the book “will concentrate on the Conduct of Hostilities.” (2) Furthermore, the author excludes the internal armed conflict, a topic of significance in the present time, which admittedly is not of much interest for the ‘western army’ soldier, but of great importance to today’s international lawyers. This approach leads not only to the exclusion of important classical topics of international law, such as the treatment of prisoners of war, but also excludes some current problems like new developments in the Israel-Palestine conflict from the scope of the book. Even if this limitation reflects the will of the author, it still is a reason for regret, simply because working with this book on the subjects the author has included is more than satisfying. In other words, there are many advantages to the approach taken by Yoram Dinstein. The most obvious positive effect is the strict adherence to the rule that one should begin with general considerations and then turn to the more special ones. For example, the First Chapter out of a total of nine gives an overview of the general framework of international humanitarian law, its sources, the definition of inter-state armed conflicts, as well as general discussions of military necessity versus the main considerations behind international humanitarian rules and on the relationship between international humanitarian law and human rights. This chapter, written for beginners in international humanitarian law, also shows one main advantage of Dinstein’s book, because each subsequent chapter, like the book as a whole, begins with a description of the general terms and mechanisms that are of importance for the understanding of that chapter. Even if this sounds very basic, in the confusing field of international humanitarian law with its sometimes conflicting, sometimes complementary treaties, norms and terms, it is crucial for the beginner to understand the basics and the framework. It is thus necessary to give an overview of the relevant humanitarian treaties, to show the differences between the Hague and the Geneva law and to explain in what situations international humanitarian law becomes applicable. But looking at the subjects in the First Chapter, it becomes clear that the book cannot be reduced to a general overview on international humanitarian law. Seeing that, e.g., the relationship between humanitarian law and human rights is also addressed, the more experienced humanitarian lawyer knows that the book also includes considerations on highly specific and controversially discussed issues. Probably even more important is the fact that such problems are discussed in a substantial way. In the case of the relationship between humanitarian law and human rights, Yoram Dinstein describes the relevant human rights treaties, compares their content with humanitarian law, and then takes a look at the derogation clauses (Art. 4 of the International Covenant on Civil and Political Rights and Art. 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) and at how they deal with war related problems and situations of armed conflict. It is interesting and convincing when Dinstein argues that most of the

964

Book Reviews

apparent inconsistencies between the two laws are no match for their relationship, because most human right norms can be derogated in times of war. Those few problematic collisions which remain between the non-derogable human rights, such as the right to life in the covenant, and humanitarian law can be solved by the lex specialis rule (23). Because of its approach, certain subjects are discussed in this book that cannot be found at all in other general works on international humanitarian law. For example, the definition of civilians in international humanitarian law is closely related to the definition of combatants because according to Art. 50 Protocol Additional to the Geneva Conventions of 12 August 1949, a civilian is defined as a person who is not a combatant. In a negative way, the definition of combatants includes that of civilians. Therefore, as in almost every book on international humanitarian law, Dinstein discusses the status of combatants first, in Chapter Two, before addressing the protection of civilians and civilian objects at large in a later chapter, Chapter Five. In other books, the consequence of this order is that there is no special room for the definition of civilians. Yoram Dinstein’s book, following the afore-mentioned rule, begins with the general issues and addresses the definition of civilians, even if implicitly also included in the chapter on combatants, before covering the protection of civilians and civilian objects. Thus, Dinstein is able to address every aspect of that definition and thereby, in contrast to nearly all other general works on international humanitarian law, even manages to cover the so called “civilians accompanying the armed forces” found in Art. 4 A para. 4 of the Third Geneva Convention. By doing so, Dinstein can address the fact that, contrary to the interpretation of many U.S. sources, states can grant a right to prisoner of war status to those civilians accompanying their force by granting them an identity card, but without altering their status as civilians. The United States sources often qualify their status as something between combatants and civilians (e.g. Joint Chiefs of Staff, Joint Pub. 4-0, Doctrine for Logistic Support of Joint Operations, 2000, 12) thereby causing unrest in the legal community, where the question is raised whether there has to be a third category of persons in international humanitarian law, apart from combatants and civilians, a question to be answered with a clear no. (See Jean de Preux, Protocol I – Art. 43, in: Yves Sandoz/Christophe Swinarski/Bruno Zimmermann (eds.), ICRC-Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987; and Michael E. Guillory, Civilianizing the force: Is the United States crossing the Rubicon? – Role of civilians under the laws of armed conflict, Air Force Law Review, vol. 51, 2001, 111, 112). Accordingly, the approach of this book to begin with the general followed by the special rules helps give an overview of international humanitarian law, but sometimes even allows for often missed in-depth coverage of special problems. The attempt to cover even special problems is also indicated by two subchapters named “A case study.” Here Dinstein discusses two problems of importance for the modern humanitarian lawyer in depth. In the Second Chapter on Lawful Combatancy, he reserves four pages (47 et seq.) for the discussion on the status of Taliban and Al Quaeda fighters under international humanitarian law and the impact of that discussion on their detention in Guantanamo Bay. In Chapter Seven on the protection of the environment in armed conflicts, he reserves six pages for discussion of the Iraqi practice of setting fire to oil wells in the Gulf War of 1991 (91 et seq.). Even if Yoram Dinstein’s book is not the overall work introducing every aspect of international humanitarian law, it indeed gives a very good and in-depth overview of the basic and most important aspects of that law, which indeed are mostly related to the con-

Book Reviews

965

duct of hostilities. In addition, the book covers many of the special problems in this field of law. Maybe there could never be a well-structured book introducing every aspect on international humanitarian law including full coverage of all its problems. Dinstein’s approach of exclusion may therefore be the only possible way to introduce international humanitarian law in an appropriate manner. To reassure seekers of a general overview one last thing has to be said. The distance from the law covered by this book to that not included is not that far. Thus, even if not all aspects of international humanitarian law are discussed, one can easily use Yoram Dinstein’s book to cover general questions and then start further research from this excellent work. Nicki Boldt

Oliver Dörr: Kompendium völkerrechtlicher Rechtsprechung. Mohr Siebeck, Tübingen 2004, xiii + 806 Seiten. Oliver Dörrs „Kompendium völkerrechtlicher Rechtsprechung“ enthält eine Zusammenstellung von Entscheidungen des Internationalen Gerichtshofes (IGH) und dessen Vorgängers, des Ständigen Internationalen Gerichtshofes (StIGH), die – mit nur relativ geringen Kürzungen – im (englischen) Originaltext abgedruckt sind. Das Buch füllt damit eine Lücke auf dem Markt der völkerrechtlichen Ausbildungsliteratur und trägt der Tatsache Rechnung, dass das Völkerrecht weit mehr als das innerstaatliche Recht Fallrecht ist. Das Kompendium beschränkt sich – wie bereits erwähnt und anders als der Titel möglicherweise vermuten lässt – auf Entscheidungen des Ständigen Internationalen Gerichtshofs und des Internationalen Gerichtshofs. Entscheidungen der internationalen Schiedsgerichtsbarkeit oder anderer spezialisierter internationaler Gerichtshöfe, wie etwa der Internationalen Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda oder des Streitbeilegungsgremiums der Welthandelsorganisation, wurden nicht einbezogen. Da das Buch mit 806 Seiten aber ohnehin schon recht umfangreich ausgefallen ist, erscheint eine Begrenzung aus Platzgründen notwendig; und da die Hauptrechtsprechungsorgane von Völkerbund und Vereinten Nationen auf die Entwicklung des Völkerrechts im Allgemeinen wohl den größten Einfluss genommen haben, erscheint auch das für die Begrenzung gefundene Kriterium sinnvoll. Die Auswahl der dargestellten 41 Entscheidungen aus der Gesamtheit der weit über 100 Urteile und Rechtsgutachten von StIGH und IGH ist ebenfalls gelungen. Zu den Urteilen, die keine Berücksichtigung finden konnten, zählen insbesondere Grenzstreitigkeiten und solche betreffend die vorgängigen prozessualen Einreden, die vorwiegend Fragen des IGH-Prozessrechts aufwerfen. So werden z. B. weder der Streitfall betreffend Monetary Gold Removed from Rome in 1943 (Preliminary Question) noch der Fall betreffend Certain Phosphate Lands in Nauru (Preliminary Objections) abgedruckt, in denen sich der Gerichtshof mit den Auswirkungen der fehlenden Zustimmung eines Drittstaates auf seine Zuständigkeit befasste. Allerdings ist das East Timor-Urteil abgedruckt, in dem sich diese Frage gleichfalls stellte, und Dörr verweist in seiner „Dogmatischen Einordnung“ des Falles auch auf den Monetary Gold-Fall. Mit etwa der

966

Book Reviews

Zuständigkeits- und Zulässigkeitsentscheidung des IGH im Fall betreffend Military and Paramilitary Activities in and against Nicaragua oder dessen Gutachten betreffend Western Sahara sind überdies auch weitere Entscheidungen, die sich mit grundlegenden IGH-prozessrechtlichen Fragen beschäftigen, in das Kompendium aufgenommen worden. Außerdem entspricht es auch der Gewichtung in der völkerrechtlichen Ausbildung, in der das IGH-Prozessrecht eine eher untergeordnete Rolle spielt, dass bei der Auswahl der abgedruckten Entscheidungen Sachentscheidungen der Vorzug gegeben worden ist. Die einzelnen abgedruckten Entscheidungen sind chronologisch geordnet mit dem Ende 2003 ergangenen Urteil im Fall betreffend Oil Platforms (Merits) als letztem. Zunächst fasst Dörr jeweils den Sachverhalt auf Deutsch zusammen und verweist gegebenenfalls auf vorangegangene Entscheidungen in derselben Rechtssache, wie etwa möglicherweise ergangene einstweilige Anordnungen. Der im Anschluss wiedergegebene Originaltext der Entscheidungen ist mit den Seitenzahlen bzw. Randnummern des Originals versehen, so dass – äußerst praktisch – direkt aus dem Kompendium zitiert werden kann. Jeder Entscheidung folgt schließlich eine „Dogmatische Einordnung“, in der die wesentlichen Gesichtspunkte des Urteils oder Gutachtens auf 1–4 Seiten zusammengefasst werden. Diese „Dogmatischen Einordnungen“ sind sehr übersichtlich gegliedert und verweisen auch auf die Seiten bzw. Randnummern der Entscheidung, auf bzw. in denen der jeweilige Gesichtspunkt erörtert wird. Daneben finden sich Verweise auf Literaturstellen oder andere Urteile – auch solche anderer Gerichte –, in denen der jeweilige Gesichtspunkt ebenfalls erörtert wird. Dörr weist sogar darauf hin, wenn eine von StIGH oder IGH aufgestellte Regel inzwischen Eingang in eine völkerrechtliche Kodifikation gefunden hat. Es bietet sich daher geradezu an, sich die Entscheidungen von den „Dogmatischen Einordnungen“ aus zu erarbeiten, die für das Verständnis der einzelnen Entscheidungen wirklich überaus hilfreich sind. Im Anschluss an die „Dogmatischen Einordnungen“ folgen dann jeweils noch, mitunter recht umfangreiche, Hinweise auf Besprechungen der jeweiligen Entscheidung in der Literatur. Am Ende des Buches finden sich eine Liste aller bis Ende 2003 ergangenen Urteile und Rechtsgutachten von StIGH und IGH, aus der auch hervorgeht, welche in dem Kompendium abgedruckt sind und welche nicht, sowie ein Stichwortverzeichnis. Letzteres ist insbesondere demjenigen eine große Hilfe, der wissen möchte, ob und in welchen Entscheidungen sich der IGH oder dessen Vorgänger zu einer bestimmten Rechtsfrage geäußert haben. Noch anschaulicher wäre das Stichwortverzeichnis dabei freilich, wenn es nicht nur auf die jeweilige Seite des Kompendiums verweisen, sondern auch die jeweiligen Entscheidungen benennen würde. Das „Kompendium völkerrechtlicher Rechtsprechung“ ist voll und ganz zu empfehlen, und zwar nicht nur für Studierende, sondern auch für Praktiker, da die (zitierfähige) Zusammenstellung der wichtigsten Entscheidungen von StIGH und IGH in nur einem einzigen Band die Arbeit mit deren Rechtsprechung doch ganz erheblich vereinfacht. Zwar ist das Buch mit 39,00 Euro jedenfalls für Studierende nicht ganz preiswert, aber es lohnt sich, dieses Geld zu investieren. Vanessa Klingberg

Book Reviews

967

Emeka A. Duruigbo: Multinational Corporations and International Law. Accountability and Compliance Issues in the Petroleum Industry. Transnational Publishers, Ardsley/New York 2003, xxiv + 254 pages. Multinational corporations are not only powerful economic entities, but are also – through their participation in the law-making and law-enforcement processes – to an increasing extent influential political actors in the current international system. Their growing importance results in chances for, but especially also risks to, the promotion of community interests, also known as global public goods, such as the protection of human rights and the environment, as well as the enforcement of core labor and social standards, which are increasingly regarded as constituting the central aim of the contemporary international legal order. Taking into account this ambivalent potential of multinational corporations with regard to the promotion of community interests, it is hardly surprising that there is currently an intensive debate in the international legal literature as to whether these non-state actors, in addition to their de facto significance, are also in a normative sense – as subjects of international law – integrated into the international legal order, and thus under an obligation to contribute to, inter alia, the protection of human rights and the environment. Despite the enormous amount of literature already published on this contentious issue, the value of the work reviewed by Emeka A. Duruigbo, Adjunct Professor of Law at Golden Gate University, lies not only in its comprehensive and up-to-date overview of the current debate concerning international legal obligations of non-state actors. Rather, by also providing a wealth of new and thought-provoking ideas, Multinational Corporations and International Law can be regarded as a notable contribution to which recourse will surely be had in the future course of the ongoing discussion. Taking the oil and gas industry, to which a number of the world’s leading multinational corporations belong, as the empirical background of his analysis, Duruigbo begins his examination by giving a detailed outline of the existing international legal regulations with regard to the environmental aspects of oil trade and shipping. Contrary to the current predominant approach of addressing the respective international obligations exclusively to states, the author also explores and strongly favors – in line with the overall scheme of his work – the alternative or rather supplementary approach of also subjecting the oil and shipping companies as the “primary players in international oil trade” (51) directly to the observance of the international environmental regulations, thereby adding further implementation and compliance mechanisms and thus an increased effectiveness to the existing legal regime on the protection against oil pollution. Based on these findings on oil trade and shipping, Duruigbo devotes the second part of his work to a more general discussion and evaluation of the numerous current approaches to regulating the behavior of multinational corporations at the international level. Following an extensive analysis of the various codes of conduct adopted by international organizations, government initiatives, NGOs and individual enterprises, as well as an inquiry as to the advantages and limits of these, in a strictly legal sense nonbinding, regulatory instruments, the author draws the conclusion that the “current practice of depending on corporate codes and voluntary initiatives to promote corporate accountability is clearly inadequate” (147). While considered as a step in the right direction, the UN Global Compact still suffers – in the author’s view – from the same structural weaknesses as codes of conduct due to its voluntary nature (152), and Duruigbo

968

Book Reviews

rightly identifies the “perennial issue” (188) of whether international legal personality can be attributed to multinational corporations as constituting the central question of the discussion on international corporate accountability. The final part of Duruigbo’s treatise is devoted to an in-depth analysis of the possibilities of considering multinational corporations as having acquired the status of subjects of international law. Following an overview of the historical development of the ambiguous concept of legal personality under international law, the author provides a detailed account of the ongoing discussion in the legal literature with regard to the international subjectivity of this category of non-state actors. One can readily agree with Duruigbo’s well-argued plea for an enhanced international legal status of multinational corporations. In light of the well-known statement by the International Court of Justice in Reparations for Injuries, that the development of the international legal order has always been dependent upon close conformity with the realities in the international system (an assertion which could have been more comprehensively relied upon by the author), it is indeed an “unrealistic” feature of the current international legal order “not to accord adequate recognition” to the fact that “multinational corporations, with the exception of a handful of States, are the most powerful and influential actors in the world today” (203). Regardless of whether the author’s concluding proposal to adopt a comprehensive agreement defining the obligations and rights of multinational corporations under international law (204–208) is going to materialize in the near future, Duruigbo’s work, because of its well-structured and intellectually challenging analysis of this important issue of international law, proves to be a valuable addition to the existing literature. It is thus warmly recommended to anyone interested in the area of international corporate accountability. Karsten Nowrot

Eilís Ferran: Building an EU Securities Market. Cambridge University Press, Cambridge 2004, xxi + 304 pages. In the light of the serious economic problems some of the EU Member States are currently facing, the need to focus more closely on issues relating to the internal market becomes quite obvious. Even though some general and substantial doubts can be raised as to what extent legal regulations do have an actual impact on the overall economic development at all, they can still establish an environment that supports the free movement of capital among the Member States. In addition, other factors, such as environment, could also have a positive impact on economic growth in the EU. Furthermore, a strong securities market can increase the attractiveness of the Union marketplace for issuers and investors from abroad. Therefore, the European Union as the world’s most prominent example of regional economic integration has shown a strong interest in building a properly integrated financial market. Already in the 1970s the integration of the different European securities markets appeared on the policy agenda for the first time. However, a totally new level of building an integrated securities market was reached with the Financial Services Action Plan (FSAP). This five-year Action Plan adopted by the European Commission in 1999 sets out the general objectives and specif-

Book Reviews

969

ic measures to improve the single market for financial services. It was supposed to be the main starting point for the necessary adjustments to the challenges of the monetary union and to capitalize on the potential benefits of a single market in financial services. With the FSAP nearing completion, it is the appropriate point in time to take a closer look on the achievements and failings of this very ambitious project as well as on unsolved problems in this context. In her book “Building an EU Securities Market,” Eilís Ferran deals with some of the fundamental issues with regard to the legal framework that has been established to support a single EU securities market. As her very comprehensive presentation shows, the FSAP fundamentally changed the securities market regulation in such ways that not only new laws but also new law-making processes were introduced. The success as well as the failure of these approaches is taken into account by the author, who also addresses challenges that lie ahead. As the emphasis is clearly on regulations in the FSAP, the author questions this strategic approach as the appropriate one. Because of the general nature of some of the questions raised by her, this book should be of great interest not only for readers with a corporate and securities law background, but for anyone concerned about the possible future developments of the integration process. The lessons that can be learned in the particular field of the EU securities market might just be translated into other areas as well. The book is divided into seven chapters, each of which starts with an overview of the issues dealt with in every chapter. In the First Chapter, “Overview and introduction to terminology,” Eilís Ferran starts by putting her topic into a somehow larger perspective. The general background and developments that led to the FSAP are covered in detail. After identifying the question of how the new legal framework will affect issuers’ access to the primary and secondary securities market as her main topic (2), she looks first at some of the underlying general difficulties. With regard to the establishment of a panEuropean securities regulatory and supervisory agency, the author already voices concerns about transparency, accountability, efficiency and effectiveness (2). Finally, this First Chapter also introduces several important terms and their specific meanings. This approach proves to be very helpful for readers who are not that familiar with the general development of EU securities law, and the fact that the author herself explicitly states the difficulties that come from “the bewildering array of acronyms” (5) is quite encouraging in this respect. As an example of such terms she then identifies the “Lamfalussy” law-making process and the Committee of European Securities Regulators (CESR). In the Second Chapter, “Law’s role in the building of an integrated EU securities market,” two issues relating to the development of an integrated EU securities market are mainly considered. Firstly, the policy objectives that were formulated in the FSAP are dealt with in detail. The author convincingly argues that there are significant linkages between financial market development and economic growth (13). As different sources, finance banks and securities markets have both played important roles in generally supporting economic activities. Because of the more recent shift away from the traditional bank-based financing to a heavier reliance on the securities market (15), the need to build an integrated EU-wide securities market is easily established. However, fragmentation still persists in some aspects of EU securities market activity (21) and the set objective has not been fully achieved. Furthermore, the author focuses on the different agents of change that have made it easier to use the securities market. Close attention is paid to the role and contribution of EU law with regard to the development of securities market activity within the EU. The author concludes that the existing uncertainty of

970

Book Reviews

the linkages between law and securities market development still has implications for the shaping of EU policy choices (41). Generally, the regulation is a much favored EU policy tool as it offers the possibility of easily establishing a certain level of harmonization. With regard to the EU securities market, however, Ferran raises two main questions: Firstly, whether this approach has also proven to be appropriate in the field of security markets, and secondly, whether there should be some necessary and fundamental changes in the strategic approach towards a stronger emphasis on supervision and enforcement than on additional regulation. With regard to the necessary level of harmonization, she finally concludes that “there are, of course, benefits in more uniformity but they come at a cost, in terms of rigidity and loss of a useful stream of feedback about regulatory innovations which have been tested out at national level” (55). The Third Chapter, “The regulatory process for securities law making in the EU,” pays close attention to the European policy-making in the field of the integrated securities market. As the author states, “the lack of definitive guidance on how law matters to the development of securities markets suggests that there could be dangerous uncertainty in the regulatory process, involving strong risks of counterproductive policy decisions” (58). The Lamfalussy model is an attempt to overcome the inadequacies of the existing regulatory process and to ensure cooperation between the different European institutions. The allocation of regulatory responsibilities among the different institutions under the Lamfalussy process leads to a strong position of the Council (74). In addition to the role that EU committees, namely the ESC and the CESR, and other bodies play in the development of EU securities regulation, the author also describes the influence of powerful private interest groups on the regulatory process. Furthermore, she deals more closely with the role of the European Commission under the Lamfalussy process. In this context Eilís Ferran describes the existing danger that “if the Commission’s capacity is overstretched, this raises other potential concerns: the real centre of power could be elsewhere and the Commission could be at risk of being captured by interest groups pressing the case for legislation designed to protect their private interests” (88). In particular the evolving relationship between the Commission and the CESR should be watched closely, and issues of consultation and transparency must be dealt with. The development and management of dialogic webs can enhance the quality of EU securities law and the overall legitimacy and accountability of the regulatory system. In the author’s opinion, an open and early consultation by the European Commission is “likely to be insufficiently robust to insulate the legislative process from political distortions” (95). With regard to the legitimacy question she states that “the signs are fairly positive” (97), but also makes clear that excessive use of consultation could prove counterproductive (99). After an even more detailed analysis of the role of the different institutions, the author describes the inherent limitations of the overall process and its dependence on the continuing support of the Member States. An alternative model for securities rule making and supervision would be to abandon the Lamafalussy process in favor of the establishment of an EU securities regulatory agency. In addition to serious legal and practical obstacles in the path towards the establishment of such an agency, the existing fragmentation of the different financial markets is also not sufficiently taken into account by such a model (121). The Fourth Chapter, entitled “The centrality of disclosure as a regulatory strategy,” is supposed to serve as an introduction to the remaining chapters. Eilís Ferran examines the emerging new EU framework for the regulation and institutional oversight of issuer disclosure. In this introductory chapter, she already gives several reasons why issuer dis-

Book Reviews

971

closure deserves such special attention and is regarded as a fundamental tenet of the EU approach to the regulation of the securities market (127). Issuer disclosure requirements are important components of the overall strategy because they can improve the accuracy of securities prices and address corporate governance agency problems (129). Therefore, however, the existing need for regulatory intervention can be addressed differently. Besides attempts to find solutions for defined agency problems, the EU has also tried generally to promote the accuracy of securities prices (130). Such an ambitious and broad approach is linked with the high risk of regulatory mistakes. Furthermore, a closer examination of the new EU issuer disclosure rules provides a good opportunity to take another look at the Lamfalussy process. Eilís Ferran then focuses on the institutional oversight of issuer disclosure and its possible improvements. Finally, she raises the question whether the EU has gone too far in its exclusion of stock exchanges from the regulatory scene. After addressing the changing commercial positions of exchanges, the author points out that such an inclusion would not necessarily undermine the general goal of market integration (133). The Fifth Chapter “Issuer disclosure” examines the legislative background and the newly introduced legal regulations. A comprehensive, standardized disclosure regime comes at the expense of loss of opportunities for competition between the Member States. The author concludes that “by imposing maximum harmonization, the EU has deliberately forgone a mechanism that could have alleviated deficiencies in its laws, namely intervention by Member States to exceed the general EU-wide standards” (144). After expressing some scepticism about maximum harmonization, she then focuses on the Transparency Directive that does not adopt the same maximal approach as the Prospectus Directive. She views “the non-maximal character of the Transparency Directive as having been driven more by pragmatism than by principle” (146). Therefore, it seems very likely that “the periodic disclosure aspects of the issuer disclosure regime within the EU might eventually also be switched over onto a maximal basis” (146). The potential implications of such a change in strategic approach are then examined with regard to the development of financial markets and the interests of EU issuers as well as non-EU issuers. The author notes that it is not quite clear that “the EU has in fact paid the right price for improvements in information standardisation” (160). Another challenge to the standardization principle is presented by the multilingual character of the EU. The political sensitivities of the Member States about their official languages are reflected by the language schemes adopted. Even though there is no fixed list of acceptable European languages, the chosen approach surely reinforces the dominant role of English as the language for international securities market documentation (165). Eilís Ferran then addresses the possibilities of adapting the prospectus and periodic disclosure regime for specialist debt securities markets. The impact of the new regime for prospectuses and periodic disclosures on smaller/younger issuers are also dealt with. There is a strong political interest to widen access to investment capital to these groups. Still, their interests differ considerably from those of larger companies. The legislative process quite clearly reflects these competing views and as a result the disclosure regime “is inconsistent and verging on uncertainty in some important aspects” (180). Especially, in the light of recent failures in the operation of disclosure regimes some attention must be also paid to the mechanisms for ensuring compliance with the requirements. Without an appropriate degree of convergence in practice, disclosure rules are practically meaningless. The author shows that the existing EU strategies for promoting compliance cannot be considered as sufficient (193) and concludes that in a number of areas the rules

972

Book Reviews

adopted could be counterproductive in their application to foreign issuers. She states that “rather than helping to build an international market, it could in fact damage the very segment of it that was already the most international in its orientation” (206). The Sixth Chapter deals with questions of the “Institutional supervision of issuer disclosure within the EU.” Supervision of the established regulatory regime is of crucial importance for the credibility of the EU securities market integration project. As the author makes clear, “persistent lack of uniformity in supervision across the EU could be a source of difficulty in external relations with the rest of the world” (211). After outlining recent developments, she deals with the EU’s interventionist approach and the powerful influence of US regulation as a catalyst for change. With regard to regulatory spill-over from the US, it becomes obvious that harmonization is not the only mechanism that can produce a common approach. Strong economic interests in some Member States and innovation by one country can also result in copy-cat actions in other countries (233). With regard to the development of a truly pan-European regime for securities, Ferran points out that there must be mechanisms that ensure “that the benefits and burdens of a collective approach remain balanced in favour of Member States” (235). In the Seventh and last Chapter “Regulatory competencies: the end of exchangebased regulation and supervision of issuers in the EU?” the author considers the role of stock exchanges in performing regulatory and supervisory functions. Their role has changed significantly (239), and the new shareholder-value orientation of exchanges intensifies the debate about their willingness to carry out regulatory responsibilities. The boundaries between market-related issues ruled by the States and matters left for private ordering between exchanges and issuers are not fixed. Even though there are quite some potential benefits of exchange involvement in the oversight of issuers, the market integration considerations generally point towards reducing the role of exchanges (259). For the sake of increased market efficiency and investor protection, a clear trend towards a very detailed and standardized EU legal framework can be observed. Still, an over-regulated EU financial market would quickly lose its attractiveness. As the author correctly points out, “decisions should be based more on empirical evidence of exchanges’ performance than on preconceived notions of the capabilities or incapabilities that flow from the adoption of new organizational forms” (266). This highly recommendable book is a very comprehensive introduction to the EU Securities Market and provides a large number of interesting and stimulating general ideas. Hanna Goeters Jasper Finke: Die Parallelität internationaler Streitbeilegungsmechanismen – Untersuchung der aus der Stärkung der internationalen Gerichtsbarkeit resultierenden Konflikte. Duncker & Humblot, Berlin 2004, 399 Seiten. Jasper Finke’s monograph addresses a subject-matter that has been treated in numerous publications in recent times: the parallelism of international dispute settlement mechanisms. Due to the fragmentation and decentralization of international law, the increasing number of international courts and tribunals established in the framework of different international or regional organizations or multilateral treaty systems may lead

Book Reviews

973

and has, in fact, led to conflicts and collisions. In contrast to the existing publications, Finke tries to categorize the reasons for possible collisions, to examine their effect on dispute settlement mechanisms and to provide possible solutions for overcoming conflicts of jurisdiction. The author begins by exposing the reasons for the increasing number of dispute settlement institutions (Part 1), which, of course, is a consequence of the growing density of rules in international law accompanied by the creation of dispute settlement organs. As examples of recently established international courts and tribunals, the author refers in particular to those under the Law of the Sea Convention, international economic law, where he concentrates only on WTO and NAFTA, as well as those of the international human rights sector and international criminal jurisdiction. Conflicts between the jurisdiction of different courts and tribunals are due to the fact that international law is a decentralized legal system in which, however, different sectors are interconnected. The interdependence between different areas of international law is demonstrated with regard to international commercial law and environmental law. The author refers in this context on the one hand to the provisions of WTO concerning environmental aspects, i.e. the Committee on Trade and Environment, GATT, Art. XX and Art. III; the TBT-Agreement, the SPS-Agreement and TRIPS; on the other hand he presents provisions relating to commerce in agreements on environmental matters, i.e. the Convention on Biodiversity, the Cartagena Protocol and the Kyoto Protocol. The possible consequences and conflicts arising from these in case of disputes are thoroughly and systematically analyzed with a view to existing jurisprudence and pending cases. On the basis of this analysis he arrives at the conclusion that there are five possible categories of conflicting jurisdiction which, however, already demonstrate that “true” conflicts will arise only in very particular constellations. The first category is the one in which different courts or tribunals interpret the same legal provision in a different way in unrelated proceedings. Such a situation arose with regard to the “test of control” in the Nicaragua case before the ICJ and the Raji and Tadi cases before the ICTY, and also in the Southern Bluefin Tuna (SBT) arbitration when compared to the decision of the Law of the Sea Tribunal in the MOX Plant case. Under the second category, the author places those cases in which non-identical provisions, which however have essentially the same content, are divergently interpreted by different courts or tribunals, as for example the declaration of submission to the jurisdiction of the court and its reservations in the Loizidou case before the ECHR and the relevant decisions of the ICJ. The third category comprises the possibly differing interpretation of the same provision in inter-related proceedings; an example in this category is the interpretation of Art. 36 1 (b) of the Consular Convention by the ICJ and the InterAmerican Court on Human Rights. The fourth category concerns cases of parallel proceedings resulting from parallel provisions in different agreements on the same subject-matter, as in the SBT case and the MOX Plant case. Such situations also may arise under WTO and NAFTA provisions as well as in cases before the ECHR and the UN Human Rights Committee. The last category regards cases in which parallel proceedings may emerge on the basis of parallel applicable agreements on different subjectmatters, as in the Swordfish dispute or in measures concerning environmental protection of commercial relevance. Although the elaboration of these categories is worth reading merely for its learned presentation of the complicated situations, it is restricted to only a presentation of the situations without any analysis. The author concludes that conflicts of jurisdiction on the basis of parallel competencies of dispute settlement organs are

974

Book Reviews

limited in the final analysis to two alternatives, namely conflicting jurisdiction/competence of several courts and conflicting interpretation of the same, or essentially the same, legal provision, in other words procedural and subject-matter conflicts. Part 2 of the monograph is dedicated to the conflicts of jurisdiction, which are more complicated and numerous than conflicts of interpretation. In this part the author delves into questions of treaty law, harmonizing interpretation of treaties, questions of priority in international law exemplified in particular with regard to WTO and environmental agreements, in order to find solutions to overcome conflicting jurisdiction on the basis of general international law. The author analyses the problem of subject-matter parallelism before different dispute settlement organs with regard to GATT provisions and provisions of the Law of the Sea Convention, i.e. the Swordfish case, the SBT case and the Shrimp case, because these cases are good examples for demonstrating the obligations of co-operation resulting from the different agreements. These examples are of particular importance to the author because co-operation becomes a key element in his later analysis. Those ideal but rare treaties which provide for preventing situations of conflicting jurisdiction are also mentioned, namely Art. 35 of the ECHR and Art. 281 and 282 of the Law of the Sea Convention. For the large number of treaties not containing such provisions and where conflicts of jurisdiction may arise, the author tries to find out whether principles of international private law could also be applicable in public international law, such as the principle of double litispendence and of connected proceedings. Again, this part does not offer answers, but only poses the material bases for the proposed solutions in Part 4 of the book. As to conflicting interpretations, the subject-matter of Part 3, the author finds that these may arise only where we are concerned with provisions of a comprehensively regulated, “closed” subject-matter, such as the WTO and the law of sea, which the author examines in more detail, but also in diplomatic and consular law, the law of treaties, the law on State succession and the law on State responsibility as well as humanitarian law, so that it may be said that such closed subject-matter areas are not rare and are constantly increasing. After having thus laid the substantive bases in a very detailed and learned manner, the author then, in Part 4 of the book, turns to the possible solutions. This is certainly carried out in a very systematic manner, however, the reader may have preferred to find the author’s proposed solutions previously, in the context of presentation of the possible conflicting situations. As the material which is so skillfully presented by the author is nevertheless rather complex, and as the reader is reflecting on possible solutions while following the author’s presentation, it would have been preferable to have the author’s results earlier, which, for conflicts of jurisdiction, means at the end of Part 2, and for conflicts of interpretation, at the end of Part 3. The fact, however, that the author comes to the result that conflicts either of jurisdiction or of interpretation should be solved on the basis of an obligation to co-operate explains why he chose to treat the possible solutions together in one final part of the book. This reviewer has some reservations with regard to the proposed solution. According to Finke, each situation of conflict should be solved by co-operation, co-operation not simply as an expression of good will, but successful co-operation as he believes is exemplified by the US–Shrimps case of the WTO Appellate Body. However, it may be asked whether this case – and whether one case alone – can be invoked for this view, because a clear distinction must be made between the obligations of co-operation found to exist by the Appellate Body with regard to the parties, and such an obligation binding

Book Reviews

975

courts or tribunals. Although co-operation is, of course, a basic principle of international law, it lacks any definition as to its concrete contents. This is not surprising because different situations require different forms of co-operation so that the principle of cooperation is part of the wider concept of good faith. Although there exists a general obligation to co-operate, such an obligation does not comprise successful co-operation. To plead for an obligation to successfully co-operate with regard to international courts and tribunals is even more debatable. Since any court or tribunal, be it national or international, is characterized by its independence, the acceptance of an obligation of cooperation would at least need definition. That international courts and tribunals owe each other due respect is not in doubt, however, any further-reaching obligation seems questionable. Finke is, of course, aware of these objections and therefore tries to elaborate factors to concretize the obligation to co-operate. With regard to conflicting jurisdiction, he refers to the principle of litispendence which he restricts to cases brought by the same parties and concerning the same subjectmatter. Such situations, which in international private law can be solved by principles like forum specialis or forum non conveniens, need different solutions in international law. The only situation which in international law is as unproblematic as in private international law is that of res iudicata which is, however, restricted to cases involving the same parties and the same subject-matter. The really problematic situations concern cases brought before different courts involving the same parties with non-identical but inter-related subject-matters, as e.g. in the Swordfish case. According to the author, in such cases the court seized of the matter later has an obligation to suspend the proceedings until the decision of the court sized earlier has been made. Beside the fact that there is no sanction whatsoever in case of disregard of such an obligation, there are some general difficulties following from this obligation: Will the second court be bound by the decision of the first court or may it review that decision? These questions are correctly answered in the negative by the author so that the suspension of the case can neither prevent nor solve the conflict. The author, thus, cannot offer a convincing solution to inter-related cases brought before different courts, even in the context of so-called closed systems such as the WTO or the law of the sea. Certainly, a solution could be reached by co-operation between the parties to such cases, as well as between the courts seized, not as a legal obligation to reach a result, but only in a good faith attempt to find a solution. The only effective solution, however, would be the inclusion of provisions preventing conflicts of jurisdiction in the respective treaties. The proposed solution for cases of conflicting interpretation refers in the first place to the known considerations such as the use of the ICJ as a court of revision or reference or by using its advisory competence. In accordance with the general appreciation of such proposals the author stresses that they all are not very promising not only for legal reasons such as the requirement to amend the ICJ Statute, but also for practical reasons, such as, inter alia, the overloading of the ICJ. The solution which the author proposes instead is in fact new: he favors the stare decisis principle known from the common law system to be transferable and applicable to international jurisdiction. In the present reviewer’s view, this solution raises more problems than it solves. Although the author is right in stating that international courts and tribunals only in exceptional cases deviate from prior jurisprudence, and thus accept de facto the principle of stare decisis, the step from this to a de jure acceptance of the principle of stare decisis does not seem as easy as the author believes, and it also cannot be deduced from the obligation to co-operate. Even if, as the author proposes, such a binding effect were to be

976

Book Reviews

restricted to decisions rendered within a closely-related period of time – for he also sees the obstacle which the generally binding character of decisions would have for the development of international law –, this opinion seems highly problematic: who, for example, would define what a closely-related period of time is? Moreover and more importantly, the application of the stare decisis principle to international jurisdiction seems hardly compatible with the independence of international courts and tribunals, which can only be bound to take decisions of other courts or tribunals into consideration, but not to accept them without proper examination. This is all the more valid because it is possible that international decisions are not “right,” so that at least the review of the decision of another court must be admissible. The author’s view of stare decisis may be helpful with regard to the interpretation of a provision in a closed system such as the Law of the Sea Convention; here, the decision of one organ can be binding upon the alternative dispute settlement organs under the same system, i.e. the interpretation of a provision of the Law of the Sea Convention by the Law of the Sea Tribunal can be considered binding on the ICJ or the arbitral tribunals when called upon to interpret the same provision of the Law of the Sea Convention. This can, however, hardly be accepted for dispute settlement organs of different systems. If, for example, the Inter-American Court of Human Rights had found that Art. 36 1 (b) of the Consular Convention does not give an individual right for consular assistance, should the ICJ really have been prevented from reaching another solution? Although conflicting interpretations are clearly prejudicial to the international legal order, they are inherent in the system as it stands today, which does not contain any obligation other than that each international court owes due respect to the activity of other courts. This may be regrettable, but while overcoming the deficiencies of a legal system is certainly desirable, this can only be achieved by means compatible with that system. Although the present reviewer cannot share the conclusions of the author, this does not diminish the merit of the monograph, which lies in the excellent and intelligent analysis of the complicated field of conflicting jurisdiction and its underlying reasons flowing from the characteristics of international law. The author refers to the only feasible alternative to explicit provisions for the prevention of conflicts, namely the obligation of co-operation, although such an obligation of co-operation cannot be understood as an obligation of result. The monograph is not only worth reading, but will undoubtedly contribute to stimulating the discussion on conflicting jurisdiction in international law and enhancing the search for practicable solutions, which supposedly will, in harmony with the international legal system, primarily be found in including adequate provisions into the respective treaties. Karin Oellers-Frahm Malgosia Fitzmaurice/Dan Sarooshi (eds.): Issues of State Responsibility before International Judicial Institutions. The Clifford Chance Lectures, vol. 7, Hart Publishing, Oxford 2004, vi + 236 pages. The adoption, in 2001, of the ILC’s Articles on State Responsibility has prompted a flood of new literature on an already much-discussed topic. While, curiously, an easily

Book Reviews

977

accessible and comprehensive account of the modern law of State responsibility is still missing, commentators have addressed most aspects of the ILC’s text in depth. Still, the collection of papers edited by Professor Malgosia Fitzmaurice and Dr. Dan Sarooshi provides a new angle. As its title indicates, it focuses on questions of State responsibility that have arisen before international dispute settlement bodies. The volume comprises a brief preface by the editors and 12 lectures by academics and practitioners of international law presented in the course of a conference held in London in October 2002. Of these, three contributions (Higgins, Brownlie, Shaw) assess the jurisprudence of the International Court of Justice, while five others focus on State responsibility before specialized dispute settlement mechanisms such as the European Court of Human Rights (Conforti, Evans), the CCPR supervisory organs (McGolddrick), non-compliance procedures (Loibl) and the UN Compensation Commission (Elias). The remaining four presentations analyze the questions of responsibility for violations of ICJ interim orders (Mendelson) and for decisions of national courts (Greenwood), and provide more general perspectives on the role of good faith (Goodwin-Gill) and rights and interests in the law of responsibility (Craven). It is evident that only some of the many interesting issues raised by these contributions can be touched upon here. As regards general and special aspects of the ICJ’s role, Higgins’ and Brownlie’s introductory presentations (1–9 and 11–18 respectively) are brief but noteworthy. Although focusing on the Court’s case law, both clarify a number of central features of the law of responsibility. Having treated the leading ICJ cases, Brownlie notes the “quasi-constitutional role” of responsibility and very convincingly demonstrates that fault cannot be considered a general condition of responsibility (12–13). Higgins explains why the Court, in its more recent jurisprudence (and in territorial disputes in particular), has been unwilling to entertain claims aimed at separate and free-standing findings on responsibility. In her view, these findings are usually unnecessary, as responsibility follows necessarily from the Court’s declaratory statement about the (il)legality of a certain conduct (5–8). Mendelson’s contribution deals with a very specific issue, namely responsibility for breaches of ICJ interim orders, but does so in depth. In particular, the author is among the first to go beyond a critique of the Court’s LaGrand Case. Instead, he assesses possible implications of that judgment and warns that even though the Court has now settled the issue of bindingness, it is unlikely to “add ‘teeth’[… notably in the form of specific remedies] to interim measures in the near future” (52). The different presentations dealing with specialized dispute settlement mechanisms evidently treat a host of very different problems. However, it is interesting how each of them reflects on the role of general principles of State responsibility within their respective regimes. As regards environmental law, Loibl notes the innovative nature of noncompliance procedures. But his presentation also shows that even under elaborate treaty regimes, the general rules of State responsibility may retain an important role. While the Kyoto Protocol, with its enhanced enforcement branch, might signal a new era, most treaty-based enforcement mechanisms so far have existed alongside traditional forms of dispute settlement, governed by the general regime of State responsibility (cf., e.g., 216–217). Whether the same holds true with respect to human rights law has long been a matter of controversy. Criticizing the skeptical approach of many human rights lawyers, Meron once famously observed that “the principles of State responsibility have often remained terra incognita for human rights lawyers” (ASIL Proceedings, vol. 83, 1989, 373; quoted in this book by McGoldrick, 162). In the present volume, the skepticist’s role is taken

978

Book Reviews

up by Professor Evans, who puts forward a very neat distinction between ECHR human rights law on the one hand, and State responsibility on the other. In his view, “the [European] Convention should not really be seen as being about holding States to account as a matter of international law” (154–155; emphasis in the original). General rules of State responsibility thus are said to be relevant mainly to solving questions of imputability. But this narrow approach to State responsibility seems difficult to defend, both conceptually and empirically. If State responsibility indeed plays a “quasi-constitutional” role (see the above quotation by Brownlie), it is not quite clear why, conceptually, it could be strictly separated from human rights law, which after all is one of the central and most value-laden areas of modern international law. Perhaps more importantly, McGoldrick’s excellent presentation shows that empirically, human rights law may owe more to State responsibility than Evans had suggested. McGoldrick’s detailed analysis reveals that many of the major aspects of the modern law of State responsibility are reflected in the work of the UN Human Rights Committee. According to him, human rights lawyers, without always realizing it (just like Molière’s Monsieur Jourdain, who had not noticed that he had been speaking prose all along), have “operationaliz[ed] the principles of State responsibility all of the time” (199). It does not seem far-fetched to suggest that the same could be true for ECHR law. At least from a State responsibility perspective, it is beyond doubt that judgments of the Strasbourg Court have had a marked influence on many aspects of the ILC’s text. Lastly, of the various contributions assessing general perspectives on specific problems raised by the ILC’s work on State responsibility, Dr. Craven’s contribution deserves special mention. While not concerned with international judicial institutions proper, Craven discusses a related topic, namely the ILC’s attempts to clarify the legal rules governing the invocation of responsibility. In the course of his analysis, he dissects two of the most complex provisions of the ILC’s text, Articles 42 and 48 (112–114). In addition, Craven also makes a number of highly interesting observations about the role of damage (which he considers to re-appear interstitially in Parts II and III of the ILC’s text: cf. 123–125), the difference between legal and sociological reciprocity and their respective roles within the law of State responsibility (115–117), and the limits of classifying multilateral obligations (121–123). These and other points make his contribution one of the most insightful comments on one of the most controversial areas of the law of State responsibility. As appears from the foregoing paragraphs, the different contributions combine academic expertise with the experience of renowned practitioners. They raise a host of interesting issues, which will no doubt soon be explored in the more specialized literature. Due to the diversity of topics treated, the volume does not provide a systematic and coherent treatment of the law of State responsibility (nor does it claim to do so). However, it illustrates the breadth of State responsibility issues that have arisen, and are likely to arise, before international courts and tribunals, thus underlining the immense practical relevance of the topic. It is an important addition to the existing literature and can be warmly recommended. Christian J. Tams

Book Reviews

979

Walter Frenz: Handbuch Europarecht. Band I: Europäische Grundfreiheiten. Springer-Verlag, Berlin 2004, 1236 Seiten. Mit dem Mitte 2004 erschienenen ersten Band des von Walter Frenz verfassten Handbuchs zum Europarecht dürfte in der deutschsprachigen europarechtlichen Literatur nicht mehr und nicht weniger als ein Quantensprung zu verzeichnen sein. Diesen Eindruck belegt zunächst ein Blick auf den vom Verfasser im Vorwort dargelegten künftigen Gesamtumfang des Handbuchs Europarecht. Geplant sind neben dem ersten, jetzt vorgelegten Band zu den Grundfreiheiten fünf weitere Bände, und zwar zu den Wettbewerbsregeln (einschließlich des Beihilfenverbots), den Grundrechten, zu Rechtssetzungsund Rechtsschutzmöglichkeiten, zu den Institutionen und zu den Einzelpolitiken. Die Bände sollen etwa alle zwei Jahre erscheinen; angesichts des Umfangs des ersten Bandes mit seinen 3019 Randnummern auf 1236 Druckseiten ein allemal außergewöhnliches Gesamtprojekt. Wenn die übrigen Bände im Umfang dem ersten entsprechen, so wird das vollständige Handbuch im Jahr 2014 komplettiert sein, etwa 7416 Druckseiten umfassen und mit etwa 12 kg Gesamtgewicht eine vollständige wissenschaftliche Durchdringung des Europarechts aus deutscher Sicht und – was das bemerkenswerteste ist – aus einer Feder verfasst darbieten. Damit dürfte dann eine Darstellung des geltenden Europarechts in einer Ausführlichkeit vorliegen, die nach Hans Peter Ipsens Werk „Europäisches Gemeinschaftsrecht“ aus dem Jahre 1972 einen weiteren Meilenstein in der deutschsprachigen Europarechtswissenschaft setzen wird. Inhalt des nun erschienenen ersten Bandes sind allein die Grundfreiheiten des Unionsrechts. Schon angesichts des gewaltigen Buchumfangs lohnt zunächst ein Vertrautmachen mit der Struktur der von Frenz gewählten Darstellung, die durchgängig logisch und sinnvoll nachvollziehbar ist und dem Leser an jeder Stelle des umfangreichen Textes die notwendige Orientierung ermöglicht. Frenz hat den Stoff in fünf Teile geteilt. Ein knapp über 200 Seiten reichender erster Teil, der die allgemeinen Lehren zu den Grundfreiheiten umfasst, eröffnet die Darstellung. Daran schließt sich in ähnlichem Umfang die Erörterung der Warenverkehrsfreiheit an. Knapp 500 Seiten sind dann im dritten Teil den Personenverkehrsfreiheiten (Arbeitnehmerfreizügigkeit und Niederlassungsfreiheit) gewidmet, was vor allem am umfangreichen Sekundärrecht in diesem Bereich und den zu erörternden Details, etwa im Hinblick auf die Kompatibilität der unterschiedlichen Sozialsysteme in den Mitgliedstaaten, liegt. Knapper werden dann im vierten Teil die Dienstleistungs- und Kapitalverkehrsfreiheit auf je etwa 100 Seiten erörtert. Den Abschluss bildet ein kürzerer fünfter Teil, der das gegenüber den Grundfreiheiten in der Regel subsidiäre allgemeine Diskriminierungsverbot des Art. 12 EGV (Art. I-4 Abs. 2 VV) und das mit der Unionsbürgerschaft verbundene allgemeine Freizügigkeitsrecht des Art. 18 EGV (Neufassung in Art. I-10 Abs. 2 lit. a VV) dogmatisch konsequent nach Erörterung der einzelnen Grundfreiheiten behandelt. Bereits der erste Teil des Buches, der es unternimmt, die allgemeinen Lehren zu den Grundfreiheiten, ihre Strukturen und Parallelen geschlossen darzustellen, liest sich mit großem Gewinn. Die Grundfreiheiten werden zunächst als „Grundlage und Zielgröße“ (Rz. 22) des Binnenmarktes in den Gesamtzusammenhang des Integrationsprozesses und den zugrunde liegenden Wirtschaftstheorien gestellt; auf den Mittelcharakter der Grundfreiheiten (siehe insb. Art. 2, 3 Abs. 1 lit c. EGV/ Art. I-3 Abs. 2, I-4 Abs. 1 VV) wird wiederholt bei der Argumentation von Einzelproblemen Bezug genommen. Beim systematischen Vergleich zwischen Grundfreiheiten und Grundrechten betont Frenz zunächst die

980

Book Reviews

vielfältigen Gemeinsamkeiten; sodann werden die Unterschiede gründlich und mit Bezug auf die Rechtsprechung des EuGH herausgearbeitet. Unter dem Stichwort „Geltungsgehalte“ werden sodann die verschiedenen Funktionen der Grundfreiheiten erläutert. Angenehm ist, dass dabei stets die strukturelle Verwandtschaft zu den Grundrechten des Grundgesetzes betont wird. Die von den deutschen Grundrechten vertraute Systematik wirkt so als gemeinsame Analysefolie zwischen Autor und Leser und erleichtert das Verständnis und die vergleichende Betrachtung zwischen den deutschen Grundrechten und den europäischen Grundfreiheiten. So werden die Grundfreiheiten nacheinander als subjektiv-öffentliche Rechte in ihrer Ausprägung als Gleichheitsrechte, Freiheitsrechte, Teilhaberechte und Verfahrensrechte untersucht. Darüber hinaus wird die von den Grundrechten bekannte Diskussion um Schutzpflichten und um die Gewinnung von originären Leistungsrechten aus Grundrechten aufgenommen. Schließlich bejaht Frenz überzeugend auch einen feststellbaren objektiven Gehalt der Grundfreiheiten: Diese enthalten neben den ihnen zu entnehmenden Gestaltungsaufträgen auch objektive Wertentscheidungen für die gesamte Unionsrechtsordnung (Rz. 212 ff.). Bei der ebenfalls grundfreiheitenübergreifenden Erörterung der Frage des Kreises der Grundfreiheitsberechtigten werden alle kritischen Zweifelsfälle ausführlich dargestellt, der Schutz der Tätigkeit öffentlicher Unternehmen (insbesondere der Schutz der kommunalen erwerbswirtschaftlichen Betätigung, Rz. 236 ff.) wird gedankenreich und vielfältig analysiert und diskutiert. So finden sich etwa Überlegungen dazu, ob eine funktionale Ausdehnung der Grundfreiheitsberechtigung von bestimmten juristischen Personen in grundrechtstypischer Gefährdungslage (wie vom BVerfG für Rundfunkanstalten, Universitäten und Religionsgemeinschaften angenommen) notwendig ist. Auch die schwierigeren Fragen der Reichweite der Grundfreiheiten bei fehlendem grenzüberschreitenden Bezug (Stichwort: Inländergleichbehandlunsgebot) oder die Frage der sog. Korrelarberechtigten (Personen, die nicht selbst in den Begünstigtenkreis der Grundfreiheiten gehören, sich aber u. U. dennoch auf diese berufen können) werden stets präzise und auf den Punkt behandelt. Ebenfalls kompakt und gut lesbar werden die Fragen der Verpflichteten der Grundfreiheiten erörtert. Ein Schwerpunkt liegt hier vor allem auf der Erörterung der äußerst strittigen Frage der Bindung Privater an die Grundfreiheiten, wie dies der EuGH insbesondere in den Fällen Walrave und Bosman angenommen hat. Nach einer differenzierten Analyse der Rechtsprechung des EuGH und der Diskussion einer Reihe systematischer Argumente kommt Frenz letztlich zu dem überzeugenden Schluss, dass eine generelle unmittelbare Drittwirkung der Grundfreiheiten nicht erforderlich ist, weil ein Konzept der staatlichen Schutzpflichten und der – ebenfalls aus der Grundrechtsdogmatik vertrauten – mittelbaren Drittwirkung die Geltung der Grundfreiheiten auch im Privatrechtsverkehr ausreichend sicherstellt (Rz. 342). Nach diesen Fragen der Geltung widmet sich Frenz vertieft der Struktur der Grundfreiheiten, für deren Prüfung er wie bei der Grundrechtsprüfung ein dreistufiges Schema mit den Ebenen Schutzbereich, Beeinträchtigung und Rechtfertigung empfiehlt. Dieses Aufbau- und Prüfungsschema ist in den Erläuterungen der einzelnen Grundfreiheiten konsequent durchgehalten und überzeugt trotz (und wegen) der nicht immer eindeutigen Rechtsprechung des EuGH vollauf. Hilfreich sind weiterhin die umfangreichen Ausführungen zu den oftmals nicht ganz einfachen Fragen der Abgrenzung der Schutzbereiche verschiedener Grundfreiheiten (Rz. 358, insb. Rz. 368 ff.), die in den weiteren Kapiteln stets grundfreiheitsspezifisch vertieft werden. Bei allen strukturellen Streitfragen argumentiert Frenz nachvollziehbar und überzeugend, so etwa, wenn er darlegt, dass die zwingenden Erfordernisse im Sinne der Cassis-de-Dijon-Rechtsprechung –

Book Reviews

981

gegen beachtliche Auffassungen im Schrifttum – eben keine Schutzbereichsbegrenzungen der Grundfreiheiten darstellen, sondern (schon wegen der Bedeutung der Grundfreiheiten für den Binnenmarkt) als ungeschriebene Rechtfertigungsgründe zu behandeln seien (Rz. 401). Bezüglich der zumeist an der Warenverkehrsfreiheit vom EuGH entwickelten Rechtfertigungsmöglichkeiten und -schranken erfolgt stets nicht nur der Vergleich zur deutschen Grundrechtsdogmatik, sondern es wird auch der z.T. wenig diskutierten Frage der Übertragbarkeit dieser Rechtsprechung auf die anderen Grundfreiheiten nachgegangen. Insgesamt gelingt Frenz bereits mit dem ersten Teil seines Buches damit eine klar strukturierte und übersichtliche Zusammenfassung der Grundlagen und Strukturen der Grundfreiheiten, die ihrem selbst gesetzten Ziel (Rz. 1), einer zu starken Zerfaserung der Dogmatik vorzubeugen, voll gerecht wird und dennoch an den notwendigen Stellen auch ausreichend Raum für die in den folgenden Kapiteln notwendigen Differenzierungen lässt. Ebenso überzeugend wird im zweiten Kapitel die Warenverkehrsfreiheit (einschließlich eines eigenen Abschnitts zur Zollfreiheit) erörtert. Dank der eingangs erörterten allgemeinen Fragen kann sich die Darstellung hier sogleich auf die spezifischen Inhalte der Warenverkehrsfreiheit konzentrieren. Immer wieder überzeugt die klare Darstellung mit Bezug auf das deutsche Recht, etwa der Hinweis auf § 248c StGB („Entziehung elektrischer Energie“), wenn es um die Frage geht, ob Strom eine Ware im Sinne des EGV darstellt (Rz. 650). Bei besonders schwierigen Themen (Abgrenzung von Warenverkehrsfreiheit und Dienstleistungsfreiheit) werden umfangreiche Einzelfälle aus der Rechtsprechung des EuGH jeweils gründlich dargestellt und abschließend in einer übersichtlichen Tabelle benutzerfreundlich zusammengefasst (Rz. 687). Auch aktuelle Fragen wie die Einschränkung des gemeinschaftsrechtlichen Warenbegriffs aus ethischen Gründen, etwa für embryonale Stammzellen (Rz. 702), werden genau wie die Frage der unmittelbaren Drittwirkung der Warenverkehrsfreiheit im Zusammenhang mit entsprechenden Selbstverpflichtungen der Wirtschaft (Rz. 725 ff.) stets kompakt dargestellt und auf den Punkt argumentiert. Die klassische Streitfrage, in wie weit der Warenverkehrsfreiheit neben dem Diskriminierungs- auch ein Beschränkungsverbot zu entnehmen ist, wird zunächst mit Hilfe der Einzelanalyse der Urteile des EuGH, dann mit Rückgriff auf den klassischen Auslegungskanon in beispielgebender Weise argumentativ ausgebreitet (Rz. 749–768) und im Ergebnis von Frenz bejaht. Immer wieder werden durch systematische Bezüge auf das deutsche Recht unterschiedliche Ausgangspunkte in beiden Rechtssystemen verdeutlicht, etwa wenn bei der Diskussion des Verbraucherschutzes als ungeschriebener Rechtfertigungsgrund darauf hingewiesen wird, dass die EuGH-Rechtsprechug vom Bild eines mündigen, sich informierenden Verbrauchers geprägt wird, während dem deutschen Verbraucherschutzrecht oft das Bild des flüchtigen Durchschnittsverbrauchers zugrunde liegt (Rz. 1007, prägnant bereits am Urteil zum deutschen Reinheitsgebot für Bier nachzuvollziehen). Auch die im nächsten Kapitel folgende Erläuterung der Personenfreizügigkeit folgt der vorgestellten Grundstruktur und geschieht in entsprechender Tiefe. Besonders positiv zu bemerken ist, dass die Darstellung des einschlägigen Sekundärrechts jeweils passgenau an den entsprechenden Stellen im Prüfungsaufbau der jeweiligen Grundfreiheit erfolgt. So wird die Frage der unmittelbaren Drittwirkung der Arbeitnehmerfreizügigkeit ausführlich unter Berücksichtigung der FreizügigkeitsVO geklärt. Umfangreiche Bemerkungen etwa zur praktisch bedeutsamen Rechtsstellung der Arbeitnehmer aus assoziierten Staaten (insbesondere der Türkei) mit Blick auf das deutsche Ausländerrecht (Rn. 1285 ff.) oder die Erörterung der Bereichsausnahme des Art. 39 Abs. 4 EGV/

982

Book Reviews

Art. III-134 VV in Verbindung mit den deutschen Verbeamtungsbestimmungen (Rn. 1365 ff.) überzeugen den Leser einmal mehr von der Praxistauglichkeit der Erörterungen. So überrascht es auch nicht, wenn man bei der Diskussion der sozialen Begleitrechte der Freizügigkeit, insbesondere der von Art. 42 EGV/ Art. III-136 VV geforderten Koordination der Sozialversicherungssysteme, nicht nur Einzelheiten zum DocMorrisUrteil, sondern auch zur europarechtlichen Zulässigkeit der sog. Riester-Rente findet (Rz. 1570 f.). In einem eigenen Abschnitt wird den aktuellen Entwicklungen zur Fortentwicklung des Raums der Freiheit, der Sicherheit und des Rechts durch den Verfassungsvertrag nachgegangen und die Perspektiven eines europäischen Arbeits- und Sozialrechts aufgezeigt (Rz. 1739 ff. und 1780 ff.). Beides sprengt zwar streng genommen den Rahmen der Grundfreiheiten, erscheint aber thematisch durchaus sinnvoll und bestätigt eindrucksvoll das Bild einer wirklich umfassenden Darstellung der gesamten relevanten Rechtsprobleme im Bereich der Grundfreiheiten. Auch bei der Erörterung der Niederlassungsfreiheit wird das geltende Recht konsequent anhand der entwickelten Systematik dargestellt. Stets werden mit Bezug zum deutschen Recht die Funktion und Auswirkung der Grundfreiheit verdeutlicht, wenn etwa bei der Frage der Schutzbereichsbegrenzung des Art. 45 EGV (künftig Art. III-139 VV) differenziert auf die Rechtsfigur des Beliehenen eingegangen wird (Rz. 1999 f.). Auch die klassische Frage der Vereinbarkeit der Sitztheorie des Gesellschaftsrechts einiger Mitgliedstaaten mit der Niederlassungsfreiheit wird auf mehr als vierzehn Seiten mit mustergültig getrennter Darstellung und Bewertung der relevanten Urteile des EuGH analysiert. Die Diskussion, ob sich aus der Niederlassungsfreiheit auch Freiheitsrechte ergeben, wird in einem eigenen Abschnitt wiederum unter Trennung von Rechtsprechung und Argumentation anhand der allgemeinen Auslegungskriterien nachgezeichnet. Abschließend wird der Blick von der reinen Darstellung der Niederlassungsfreiheit erweitert zu einer Betrachtung des europäischen Gesellschaftsrechts, dem ein eigener Abschnitt gewidmet ist. Hier werden die europäischen Gesellschaftsformen einschließlich der 2001 geschaffenen Europäischen Gesellschaft (Societas Europea, SE) erläutert, Abbildungen zum Aufbau der SE ergänzen die gelungene und kompakte Darstellung. Das nächste Kapitel des ersten Bandes des Handbuchs fasst im gleichen hochinformativen Schreibstil die Dienstleistungs- und Kapitalverkehrsfreiheiten zusammen. Dabei wird zunächst der Dienstleistungsbegriff systematisch und detailliert dargestellt. Beispielsweise wird bei Tätigkeiten, die über das Internet angeboten werden, in neun verschiedenen Kategorien unterschieden und sauber zwischen entgeltlichen und unentgeltlichen Leistungen getrennt, um dann zur Warenverkehrsfreiheit dogmatisch sauber abgrenzen zu können (Rz. 2474 ff., 2536). Auch andere Abgrenzungsfragen, wie etwa bei der gewerbsmäßigen Entsendung von Arbeitskräften, werden differenziert und stets überzeugend dargestellt. Den Schluss der Einzeldarstellungen der Grundfreiheiten bilden Erörterungen zur Kapital- und Zahlungsverkehrsfreiheit. Wegen der oftmals schwierigen Abgrenzung zu den andern Grundfreiheiten wird auch hier exakt die Entstehungsgeschichte des Vertragsrechts nachgezeichnet und sodann die Entwicklung handhabbarer Abgrenzungsformeln zu den anderen Grundfreiheiten unternommen. Frenz misst der Kapital- und Zahlungsverkehrsfreiheit eine „Grundlagenfunktion“ für die anderen Grundfreiheiten zu und empfiehlt bei Beschränkungen des Kapitalverkehrs, die auch den Tatbestand anderer Grundfreiheiten erfüllen, eine Prüfung beider betroffener Grundfreiheiten. Nur die Kapital- und Zahlunsgverkehrsfreiheit sei dann betroffen, wenn andere Grundfreiheiten nur mit unwesentlichen Folgewirkungen berührt seien. Dienten Geldtransfers

Book Reviews

983

dagegen lediglich der Realisierung anderer Grundfreiheiten, so seien allein diese zu prüfen (Rz. 2789 ff.). Nach dieser systematischen Einordnung der Zahlungsverkehrsfreiheit erfolgt wiederum die Erörterung aller relevanten Einzelfälle, etwa die Frage der sog. goldenen Aktien, insb. des VW-Gesetzes, oder die Vereinbarkeit von Bestimmungen, die den Erwerb von Zweitwohnsitzen verhindern sollen. Trotz des großen Umfangs überzeugt der konsequente und klar an der Prüfungsdogmatik der Grundfreiheiten orientierte Aufbau des Buches. Viele aussagekräftige Zwischenüberschriften helfen bei der Strukturierung des Stoffes; klare und übersichtliche Prüfungsschemata sowie vereinzelte Grafiken und Tabellen erleichtern die fallbezogene Arbeit mit dem Buch. Über das 45 Seiten lange und umfangreiche zweispaltige Register findet man schnell zur gesuchten Thematik; zuverlässig ist dort jeweils die einschlägige Rechtsprechung und die deutschsprachige Kernliteratur zum jeweiligen Problem zu finden. Die Nachweise sind erfreulicherweise auf das Notwendige beschränkt; alle inhaltlichen Erörterungen finden sich im stets gut verständlichen Text. Inhaltlich gelungen ist auch die schwierige zweigleisige Darstellung mit einem allgemeinen Teil zu den gemeinsamen Strukturen aller Grundfreiheiten und den dann folgenden jeweiligen Erläuterungen zu den einzelnen Grundfreiheiten. Gerade an dieser Stelle dürfte es sich als großer Vorzug erwiesen haben, dass das gesamte Werk von einem einzigen Autor mit durchgängiger einheitlicher dogmatischer Grundposition verfasst worden ist. Besonders aufgefallen ist, dass alle in der Rechtsprechung und Literatur umstrittenen zentralen Fragen der Grundfreiheiten stets in mustergültiger Trennung von Darstellung und Bewertung erörtert werden; erst sodann wird zumeist anhand des klassischen Auslegungskanons mit Hinweis auf Wortlaut und Telos nachvollziehbar und ausgewogen argumentiert und abschließend geurteilt. Positiv ist auch, dass Frenz sich den Raum nimmt, die einzelnen Grundfreiheiten immer wieder in den Gesamtzusammenhang der Rechtsentwicklung der europäischen Integration zu stellen. Daneben ist als großer wissenschaftlicher Gewinn die konsequente Darstellung der Grundfreiheiten mit Bezug auf das deutsche Recht zu nennen. Bereits die strukturelle Orientierung an den Grundrechten des Grundgesetzes hilft beim Erkennen von Verbindungslinien und Unterschieden und schöpft das wissenschaftliche Potential in der dogmatischen Erforschung der Grundfreiheiten voll aus. Für die Frage der Vereinbarkeit des deutschen Rechts mit den Grundfreiheiten wird ebenfalls viel geleistet; das konsequente Eingehen auf deutsche Besonderheiten und die einfachgesetzlichen Bestimmungen hilft bei der Entscheidung von Kompatibilitätsproblemen im Einzelfall. Nicht zuletzt sorgt die konsequente, auch inhaltliche Einbeziehung des noch nicht in Kraft getretenen Verfassunsgvertrages (allerdings in der Konventsfassung) für Perspektive und Aktualität. Insgesamt gelingt es Frenz damit vollauf, die bereits durch die eingangs geschilderten äußeren Dimensionen des Projektes geweckten Erwartungen auch inhaltlich in jeder Hinsicht zu erfüllen. Vergleichbar ist das Werk Frenz schon heute wohl nur noch mit dem fünfbändigen großen Werk zum deutschen Staatsrecht von Klaus Stern – ein Vergleichsobjekt, das kein Rezensent leichtfertig heranzieht. Nachdrücklich ist zu wünschen, dass den Autor auf dem noch etwas längeren Weg der Komplettierung des Handbuchs weder Mut noch Zeit verlassen noch dass andere Frustrationserfahrungen (etwa das beständige Erleben der Aktualisierungsbedürftigkeit) den Abschluss des großen Gesamtwerkes verhindern – die weiteren Bände werden dringend erwartet! Joachim Schwind

984

Book Reviews

Christof Heyns (ed.): Human Rights Law in Africa. Martinus Nijhoff Publishers, Leiden/Boston 2004, 2 vols., xviii + 1736 pages. “Contrary to popular belief, there is a vast body of law dealing with human rights in Africa in existence today.” With these words, editor Christof Heyns opens the introduction to the publication “Human Rights Law in Africa.” Indeed, the huge number of pages of this work proves that the body of law dealing with human rights in Africa must indeed be vast, inasmuch as it is the editor’s basic aim to introduce, reproduce and to present the primary documents in this field. In so doing, the unresolved problem of inaccessibility of human rights provisions in Africa shall, in the editor’s view, be solved. According to the introduction, the book is intended to enable judges, practicing lawyers, academics and other researchers, law reformers, NGOs activists and students to ascertain and assert human rights in Africa. It shall have a positive impact on the development of an African way of human rights jurisprudence that is enriched by being based on local practices, experience, history, or culture. First of all it has to be admitted that the editor’s goal of presenting the primary documents dealing with human rights law in Africa has been achieved. It is impressive in how much detail and how comprehensively all kinds of documents in this field have been collected and commentated in this work. Due to the lack of space in a review like this, it is impossible to provide a complete list of all fields that are covered by the book. Therefore I need to make a selection presenting only the main chapters and outstanding sections on topics of special importance – although at least in the field of human rights every topic should be considered to be of special importance. Volume I covers the field of international human rights law in Africa. This includes chapters on the United Nations and human rights in Africa, the Sierra Leone Special Court, the International Criminal Court, international humanitarian law, regional protection of human rights in Africa, sub-regional inter-governmental organizations and human rights, other inter-governmental organizations with an African membership, NGO and other documents on human rights in Africa, and an overview of selected African human rights issues, such as refugee protection, HIV/AIDS, or the rights of women. Each chapter starts with an introduction that gives an overview of the topic and which can range from only a few lines up to 20 pages or more. Here the respective author gives information on the documents concerned, the structure of treaty bodies, or the political or historical background under which a treaty was drafted or a document came into existence. These introductory remarks are quite valuable for the reader to be informed of the problems associated with a certain topic and to gain insight into the special aspects of the field concerned. In most chapters the introduction is followed by a compilation of documents related to the chapter’s or section’s topic. Here the authors demonstrate how detailed the work for this book was. The majority of the documents are presented in a full text English version. If this is not the case, e.g. UN reports concerning human rights in African countries are only listed but not printed; the reader may find them by using the document numbers or bibliographical references that are provided by the authors. Each compilation is well selected and enables the reader to a well-founded study of sources. Again it is not possible in a review like this to give a complete list of all kinds of documents that are presented. But specially worth mentioning is the chapter on the UN and human rights in Africa, which not only provides extremely detailed information on UN treaty bodies, reservations, interpretative declarations and objections

Book Reviews

985

to UN human rights treaties, as well as the status of ratification, and a list of UN Depository Libraries in Africa. It also contains informative explanations on the background, the creation, and the work of the ICTR, and the law applicable. Also outstanding is the chapter on the regional protection of human rights. Here the reader may find introductory remarks on the AU/OAU, the African Economic Community (AEC) and the New Partnership for Africa’s Development (NEPAD). Again one also gets information on the status of ratification of AU/OAU human rights treaties as well as reservations, interpretative declarations and objections. The texts of human rights and related continental treaties, model legislation in the field of human rights, or documents adopted by the assembly of heads of state and government of the AU/OAU are reprinted. Special attention must be given to the section on the African Commission on Human and Peoples’ Rights, which contains almost a complete commentary of the rights guarantied by the African Charter as well as a well-founded report on the work of the commission and the related documents. The chapter on sub-regional inter-governmental organizations and human rights deals with the structure and objectives of e.g. the Arab Maghreb Union, the East African Community, the ECOWAS or the Southern African Development Community. Again, the relevant documents are reprinted. While reading the chapter on Other Inter-governmental Organizations with an African Membership, information can also be received concerning e.g. the Commonwealth of Nations, or the Francophonie. In Volume I the authors have indeed achieved their goal of publishing a work that gives a source for dealing with every aspect of international human rights law in Africa to all kind of users. Students may find a way of approaching to this material. Academics and other researchers as well as practicing lawyers and judges will surely like the compilation of documents to get profound insight into the background of human rights development in Africa to find solutions for the cases they are dealing with, or to use it as a start for research work. There is hardly any case imaginable that is related to human rights in Africa to the solution of which this book cannot provide any assistance. Finally, what is especially valuable for the practicing lawyer is that the publication provides postal addresses and a large number of internet links through which e.g. treaty bodies, international organizations, or courts may be contacted or further information may be obtained. Volume II covers the field of domestic human rights law in Africa. The authors present an analyzation of each of the 54 African states with regard to their human rights situation. This includes an introduction where basic facts are given on geographical, political, economic and social issues etc., usually followed by a Country report providing e.g. information on the state’s historical background, the status of international human rights law in its domestic legal system, legislative provisions (other than the constitution) dealing with specific human rights issues, or important human rights decisions of the domestic courts. Each chapter is continued by a compilation of domestic law provisions, such as the relevant parts of the country’s constitution, peace agreements or acts establishing human rights monitoring bodies or truth commissions. Finally, at the very end of each chapter the reader’s attention is called to an internet link leading to the webpage of the Centre for Human Rights at the University of Pretoria where a special bibliography on human rights in the respective state may be found. After the outstanding work that is presented to the user in Volume I on international human rights law in Africa, Volume II very well rounds off this work. While publications on human rights usually focus only on the situation under international law, this

986

Book Reviews

book goes further and delivers to the reader a second tool, which is necessary to deal with human rights in Africa in depth. Only with the help of Volume II can a jurist working in the field of human rights in Africa get all information needed to understand the specific problems arising in connection with human rights cases in a certain African state. Therefore, this publication closes a gap. One is no longer forced to undertake time consuming searches to find relevant domestic law provisions or facts; all the information is available in one source. All in all, this is perhaps the main value of this publication. The combination of Volume I and II, of international and domestic human rights aspects, presents the first complete work on the human rights situation in Africa. Therefore, the aim editor Christof Heyns propounds at the very beginning, to provide a work that is appropriate to make the vast body of human rights law in Africa accessible to all persons involved or interested in this field, can only be achieved through an approach like this. The language used is clear and may be understood not only by professional jurists. Finally, one obstacle in the way to make all relevant human rights law in Africa accessible to at least all interested persons not only in theory but also in practice may be the price of 300,00 or US$ 405,00, which is quite high if one tries to imagine the average salary even of a professional jurist in Africa. Whether the second aim the editor presents in the introduction, to make a positive impact on the development of an African way of human rights jurisprudence, can be reached through this publication cannot be examined in a book review. But making relevant facts and law available is always an adequate starting point for development of the law. And this is achieved perfectly by “Human Rights Law in Africa.” Alexander Behnsen

Silke von Lewinski (ed.): Indigenous Heritage and Intellectual Property. Genetic Resources, Traditional Knowledge and Folklore. Kluwer Law International, The Hague/London/New York 2004, xvii + 409 pages. As Head of the International Law Department of the Max Planck Institute for Intellectual Property, Competition and Tax Law, Silke von Lewinski directed the project on Indigenous Heritage and Intellectual Property which led to this publication. Seven further experts on intellectual property law working for different German institutions contributed to the final report. The protection of indigenous peoples’ genetic resources, traditional knowledge and folklore has gained interest in the international community in the last decade. It is not only in relation with intellectual property rights, but also in the fields of human and indigenous rights, environmental and agricultural law and cultural rights, that the topic of indigenous heritage protection has been discussed – especially in the context of the World Intellectual Property Organisation, whose Intergovernmental Committee on Intellectual Property and Traditional Knowledge, Genetic Resources and Folklore is expected to announce in June 2005 whether to negotiate new international treaties on the protection of traditional knowledge and folklore, and which also currently deals with the protection of genetic resources. But these topics have also been evaluated, e.g., in the context of the

Book Reviews

987

Biodiversity Convention, the UNESCO Convention on Intangible Cultural Heritage and the TRIPS Council. Developing countries, as well as industries in general, have become more aware of the potential commercial value of indigenous resources. Numerous ways of exploiting expressions of folklore, traditional knowledge in the medical, agricultural and ecological field, as well as concerning genetic resources, can be imagined. But the fair distribution of benefits has not been regulated. Besides commercial interests, indigenous populations’ moral, religious and spiritual interests also need to be considered. Also, issues concerning indigenous populations in general have gained increasing attention in recent years. Indigenous Heritage and Intellectual Property not only examines the international legal situation, but also considers regional and national attempts dealing with the indigenous peoples’ issues named. Each section also goes far beyond describing only intellectual property related aspects. After a brief introduction of the general topic in Part I, Part II provides a general overview of indigenous peoples, related aspects of human rights law, environmental law, recent international developments in various fora such as WIPO, WTO, CBD, FAO, UNCTAD and WHO, policies on the national and regional level and the needs as expressed by indigenous populations. This survey demonstrates the complexity of indigenous heritage protection by introducing all different areas affected. The reader gains initial insights into common challenges in all fields of indigenous resources. In Part III, the different areas of indigenous resources are presented and evaluated. This part is divided into four sections: traditional knowledge, genetic resources, traditional names and designations and folklore. Each section first defines on a factual level the specific indigenous resources described. Second, existing legal provisions on the international, national and regional level are described and evaluated. Each of the chapters is subdivided into evaluations of intellectual property regimes and of rights outside of intellectual property regimes. Furthermore, each section analyzes draft laws and other models. The final conclusion of each section summarizes the evaluation and provides for an outlook on further possible developments. The division according to the different indigenous resources is very beneficial as the international discussion uses the same distinction. At the same time, the recurring structure in each section allows an easy comparison between the different issues. All in all, this part provides a systematic presentation of all aspects concerned. In the final Part IV, general considerations and recommendations round off the comprehensive analysis, offering a variety of options how to deal with the issues. This part considers the needs expressed by indigenous peoples and the possible protection of these needs by intellectual property regimes and beyond. Furthermore, the need for legally binding and non-binding instruments and practical measures is briefly explained. Silke von Lewinski and her contributors, Anja von Hahn, Michael Hassemer, Roland Knaack, Annette Kur, Matthias Leistner, Agnès Lucas-Schloetter and Peter-Tobias Stoll, provide a very extensive survey. They give a comprehensive overview of all kinds of achievements concerning the protection of indigenous heritage and of further possibilities for dealing with these questions. Legal requirements on different levels are considered as well as the interests of all relevant parties. Furthermore, each subdivision is supplemented by thorough and up-to-date bibliographies which allow further reading on the various topics. The method of putting together several distinct contributions by

988

Book Reviews

various authors permits extensive research and more detailed analyses by experts in the relevant field. For example, Anja von Hahn, who recently completed her doctoral thesis on this subject (Traditionelles Wissen indigener und lokaler Gemeinschaften zwischen geistigen Eigentumsrechten und der public domain, 2004), contributed to the section on traditional knowledge. Moreover, this method provides for a complete overview of different viewpoints on similar issues. Unfortunately, only Western scholars who work for German institutions contributed to this publication – the analysis of an insider, in this case a member of an indigenous community, cannot fully be substituted by attempts of Western legal scholars to feel like an indigenous person dealing with indigenous resources. Then again, this way the publication remains as objective as possible and does not include emotional or biased statements. To sum up, Indigenous Heritage and Intellectual Property is a valuable transparent and comprehensive study of indigenous peoples’ protection in regard to genetic resources, traditional knowledge and folklore, which could well serve as a basis for further developments in this field. Jana Schlinkert Manfred Nowak: Introduction to the International Human Rights Regime. The Raoul Wallenberg Institute Human Rights Library, vol. 14, Nijhoff, Leiden et al. 2003, xv + 365 pages. Theodor Schilling: Internationaler Menschenrechtsschutz: universelles und europäisches Recht. Mohr Siebeck, Tübingen 2004, xiii + 302 Seiten. Given the enormous relevance of international human rights law, there are surprisingly few general introductory texts. Of course, nearly all modern textbooks of international law contain sections on human rights, and there is an ever-increasing amount of specialized literature analyzing specific human rights agreements (such as the CCPR, the ECHR or CEDAW) or specific human rights guarantees (such as the prohibition against torture). However, students as well as teachers of human rights courses looking for an up-to-date and well-structured guide through the maze of human rights norms (preferably at a reasonable price) so far did not have many options to choose from. The two books by Nowak and Schilling both seek to fill this gap. Interestingly, however, the two authors approach their topic(s) in a very different way. Nowak’s book (which is the English translation of “Einführung in das internationale Menschenrechtssystem,” published in 2002) focuses on the institutions and mechanisms involved in the process of safeguarding human rights. The information provided can be divided in three parts of unequal size. Chapters 1 to 3 (1–72) provide a historical introduction to human rights and outline the basic concepts and specificities of international human rights law, including issues such as ‘horizontal effect,’ ‘human rights and State responsibility,’ or ‘rules of interpretation.’ Chapters 4 to 11, by far the largest of the three parts (73–263), describe the main bodies and mechanisms involved in the process of human rights protection. They deal with a variety of institutions, among which the United Nations and regional organizations like the Council of Europe or the Organization of American States are the most prominent. But Nowak also introduces lesserknown organizations such as the Arab League and the Organization of the Islamic Conference, assesses the OSCE’s relevance and devotes considerable attention to the

Book Reviews

989

role of human rights in the internal and external relations of the European Union. Last but not least, a short chapter (Chapter 11) provides a very balanced account of the role of NGOs in the process of safeguarding human rights and developing the human rights regime. Finally, Chapters 12 to 16 (265–338) assess attempts to secure compliance with international human rights law. Nowak begins by giving a very concise overview of traditional mechanisms of human rights protection, namely state reporting, inter-state complaints, individual complaints as well as inquiries and fact-finding procedures. This is immediately followed by a critical evaluation, which lists the shortcomings of traditional human rights enforcement. Amongst other things, Nowak notes that human rights law provides a host of overlapping mechanisms and procedures, which have grown “haphazardly, in reaction to concrete international or regional threats, problems and challenges of the past fifty years” (265). As a consequence, the traditional means of human rights protection are “essentially reactive” (276); in addition, the need to reach political compromises has meant that they are often weak and ineffective. The subsequent chapters therefore move beyond traditional means of enforcement and assess new forms of securing compliance with human rights norms. Three of these tendencies are singled out for a more detailed treatment. Chapter 14 traces attempts to establish a ‘culture of prevention,’ inter alia describing the UN Preventive Mission in Macedonia or the work of the OSCE High Commissioner on National Minorities. Chapter 15 analyzes the move towards individual criminal responsibility for human rights abuses; it surveys both national and international attempts to hold individual perpetrators responsible and outlines the recent proceedings against Augusto Pinochet and Hissein Habré. Lastly, Chapter 16 addresses the relation between human rights and international peace and security, providing a brief analysis of the Security Council’s role as well as a number of case studies on past interventions in Tanzania (1979), Somalia (1992/1993), Kosovo (1999) and Afghanistan (2001). As appears from this brief outline, Nowak covers an enormous range of topics and demonstrates how much human rights have already permeated wide areas of modern international law. The information given about the respective institutions and mechanism is reliable and accurate, usually followed by well-balanced evaluations which help readers to see beyond the thicket of human rights norms. Nowak’s analysis is also relatively up-to-date, taking note for example of the debates about fundamental rights within European Union law, or the detention of terror suspects at the Guantanamo Bay Naval Base (although at the time of Nowak’s writing, these suspects had only been detained for one and a half years, which may seem short in retrospect). Throughout, one gains the impression that this is not a quickly-written text, but an expert’s well-balanced account of human rights law, based on decades of experience. On a more critical note, towards the end of his book (and especially Chapters 15 and 16), Nowak’s reliance on case studies seems exaggerated; here a more systematic treatment of issues such as individual responsibility of human rights enforcement outside the UN context might have been preferable (and more in line with the overall approach adopted in the book). This in particular because much of the information about specific cases or disputes is presented in text boxes, which many readers (including the present reviewer) may find confusing. Interestingly, despite the broad scope of his analysis, there is one huge area of international human rights law that Nowak deliberately does not cover: the substantive human rights guarantees enshrined in international treaties. This precisely is the main focus of Schilling’s book, which thus approaches human rights law from a completely different perspective. Based on classes taught at the Humboldt University, Berlin, it ad-

990

Book Reviews

dresses a German audience and largely deals with international human rights relevant within the German national system, namely those protected under the ECHR and CCPR. Admittedly, Schilling also introduces the main admissibility requirements of complaints and briefly describes the supervisory procedures established under CCPR and ECHR. However, the bulk of his analysis (30–215) deals with substantive human rights provisions, including minority rights and the right of self-determination. Divided into 19 sections, each of which is devoted to one specific human rights guarantee, Schilling’s analysis presents the central features of international human rights law and identifies the major differences between CCPR and ECHR. Just as in the case of Nowak, the information is reliable and generally well-structured. What is more, even where Schilling pursues technical detail, his analysis is well-written and holds the reader’s attention. Still on the positive side, Schilling covers an impressive amount of human rights jurisprudence (mainly from the Strasbourg organs and the Human Rights Committee, but with occasional references to the jurisprudence of the African and American Commissions as well as specialized treaty bodies), thus underlining his conviction that modern human rights law is largely court-driven (cf. the Preface, iii). Readers are thus provided with a comprehensive account of substantive international human rights protected by the ECHR and CCPR. For future editions, Schilling might want to consider expanding the sections on minority rights and the right of self-determination, which at present touch upon rather than analyze the respective provisions. (For example, there is no reference to the European Framework Convention, and Schilling’s attempt to explain, in a mere 18 lines, which groups of persons qualify as a “people” in the sense of Article 1 CCPR fails to reflect the complexity of the problem.) As regards the structure of Schilling’s analysis, the present reviewer was surprised to see cases like Bankovic or Loizidou discussed in the section on the admissibility of individual complaints (237–239); in his opinion, they might have fitted more smoothly into the section on “jurisdiction” in the sense of Article 1 ECHR and Article 2 CCPR. Finally, it might also be objected that Schilling treats less than the title and subtitle of his book suggest. For example, despite the broadly formulated title of the book, no serious attempt is made to go beyond first generation human rights. Readers who are interested in economic, social, cultural or peoples’ rights (which undisputably form part of the universal and regional protection of human rights that Schilling – according to the title of his book – purports to analyze) will thus have to look elsewhere; the same is true for those seeking to learn more about the linkages between human rights on the one hand, and global goods such as peace, development, or security on the other. Of course, no author could be expected comprehensively to cover the whole of substantive human rights within the format of an introductory text. But one might have hoped that a book’s title would reflect its focus more clearly than in Schilling’s case. On balance, however, these are minor quibbles that do not affect the overall assessment: Schilling’s wellwritten book is a reliable guide to the human rights guarantees of the ECHR and CCPR. To sum up, Nowak’s and Schilling’s works complement, rather than compete with, each other. Nowak provides a more holistic account of attempts to secure compliance with international human rights norms – an issue that Schilling’s text does not address in depth. Schilling provides an easily accessible analysis of substantive human rights law as protected under the ECHR and CCPR, thus covering ground that Nowak hardly touches. Taken together, the two books provide an up-to-date and well-structured guide to human rights law that so far had been missing. Christian J. Tams

Book Reviews

991

René Provost: International Human Rights and Humanitarian Law. Cambridge University Press, Cambridge 2002, xxxix + 418 pages. International lawyers have grappled for some time with the question of the relation between international humanitarian law on the one hand and human rights law on the other. The issues have been much discussed in the literature (not the least in the pages of this Yearbook: see the Focus Section in vol. 45, 2002, 55–165), but remain controversial, as recent debates about the rules applicable to, for example, the Israeli occupation in the West Bank or the United States’ treatment of unlawful combatants held at Guantanamo Bay show. A pragmatic way out of the dilemma is to assert that whatever the conceptual differences, human rights and international humanitarian law in practice are mutually influential. While some writers continue to claim that one of the two sets of rules qualifies as a strict lex specialis, the prevailing pragmatic approach places great emphasis on terms such as “convergence,” “cross-pollination,” “cross-fertilization” or “(partial) fusion.” Unfortunately, this pragmatism often comes at the price of conceptual clarity, and many discussions leave a feeling of uneasiness about the underlying structural differences of the two areas of law. In the present study, a revised doctoral thesis from Oxford University, René Provost seeks to confront these conceptual problems head-on. It is to Provost’s credit that – while noting the cross-pollination between human rights and international humanitarian law – he does not opt for easy pragmatism. Instead, his goal is to engage in what he labels a “transsystemic analysis” (10), seeking to show that conceptually, the two areas of law are “related but different” (8). To achieve this goal, he evaluates the existing normative framework (Part One, 13–117) and the respective role of reciprocity (Part Two, 121–238). In Part Three of his study, entitled “Application: law and facts” (241–342), he moves on to assess areas of legal indeterminacy and the means of avoiding it. The aim of Part One of the study is to demonstrate that although human rights and international humanitarian law both aim at protecting human interests, the legal rules designed to achieve this goal are constructed very differently. Provost’s analysis centers on the role of the individual; it addresses “Rights and Procedural Capacity” as well as “Obligations and Responsibility.” In both areas, Provost finds the two areas of law to be of considerable difference. At least at the international level, international humanitarian law does not provide individuals with procedural capacity, while human rights treaties clearly do. Also, while human rights are based on the notion of universal rights, international humanitarian law has traditionally sought to protect individuals indirectly, by placing obligations upon States, without however recognizing direct rights of the individual. The picture is reversed as far as obligations and responsibility are concerned: Here, it is international humanitarian law that imposes upon individuals obligations whose breach gives rise to responsibility. Human rights law, in contrast, first and foremost aims at protecting individuals against abuses by the State, while the notion of individual responsibility for human rights violations is of a more recent origin. As far as the normative framework is concerned, both areas of law thus take very different approaches to achieve a common goal: the protection of human interests. On the face of it, the points made in Part One (as summarized in the previous paragraph) may seem rather obvious. However, they are not. Quite to the contrary, Provost’s analysis is highly helpful, as it leads a clear way through the maze of international norms

992

Book Reviews

protecting individuals – a maze in which students, scholars and practitioners all too often get lost. The same applies to Provost’s treatment of reciprocity, contained in Part Two of his study. Reciprocity of course is a highly dubious notion, which is frequently invoked or rejected, but whose many facets are not always easy to disentangle. To take but one example, following an emerging trend in the literature, both human rights law and international humanitarian law are characterized by an absence of reciprocity (and instead motivated by ulterior concerns transcending synallagmatic exchanges of benefits between States). This view (which according to Provost is simplistic) stands in marked contrast to the traditional understanding, pursuant to which reciprocity might be alien to human rights law, but was considered a driving force in the development and application of international humanitarian law. More generally, debates about reciprocity are often overshadowed by major disagreement about the actual content of the notion. It is in this regard that Provost’s analysis (just as in Part One of his study) is most helpful. On the basis of Simma’s earlier writings (as well as his own earlier article on “Reciprocity in Human Rights and Humanitarian Law” in the British Yearbook of International Law, vol. 65, 1994, 383), Provost distinguishes different roles of reciprocity affecting the (i) formation, (ii) application and (iii) sanctioning of international law. This distinction is indeed necessary and enables Provost to present a considerably more accurate evaluation than the simplistic approaches outlined above. For example, Provost highlights the move from so-called ‘immediate reciprocity’ (pursuant to which one State accepted an obligation if and to the extent that other States accepted it as well) to ‘systemic reciprocity’ (under which actors assume obligations because they expect the legal system to guarantee a general pattern of compliance with it), and clearly demonstrates that systemic reciprocity retains its crucial role under both human rights law and international human rights law. This differentiated understanding of reciprocity in turn informs Provost’s perceptive analysis of issues such as reservations to treaties, treaty suspension or countermeasures. On a more critical note, it is to be regretted that Provost does not always spell out why he focuses on some of the traditional reciprocity issues while ignoring others. The section on sanctions, which mainly addresses countermeasures, for example might have been more comprehensive had Provost taken his analysis further and also explored problems of standing before international courts and tribunals. Equally, the division of the material seems at times somewhat artificial: The influence of reciprocity on the law of countermeasures, e.g., is dealt with within the section on sanctions, while reciprocity within Article 60 of the Vienna Convention on the Law of Treaties is treated much earlier – an approach that fails to take into account the close relationship between countermeasures and treaty suspension under Article 60. Also, it was not entirely clear to the present writer why questions of reservations and structural features of obligations formed part of the chapter on the formation of obligations. These criticisms, however, do not put into question the overall assessment of Part Two, which contains a most lucid and comprehensive discussion of the highly complex concept of reciprocity. Unfortunately, the same cannot be said of Part Three of Provost’s study. True, Provost makes perceptive comments on how human rights law and international humanitarian law address problems of legal indeterminacy. However, his approach – unlike in Parts One and Two – is eclectic rather than comprehensive. Singling out controversial notions such as ‘national liberation movements,’ ‘internal armed conflict’ or ‘state of emergency,’ Provost seeks to show how indeterminate legal concepts are filled with concrete meaning. While his analysis exemplifies the extent to which the two areas of

Book Reviews

993

law cross-fertilize each other, it lacks the comprehensiveness and clarity that make Parts One and Two such enjoyable reading. To sum up, it is because of its Parts One and Two that Provost’s study deserves a wide readership. In these two parts, Provost dissects the complex relationship between two of the central areas of modern international law and succeeds in guiding the reader through the maze of rules comprising human rights and international humanitarian law. For this guiding work, he deserves high praise. Christian J. Tams

Constanze Schulte: Compliance with Decisions of the International Court of Justice. Oxford University Press, Oxford 2004, xxxiii + 484 pages. In the next months, the United States Supreme Court will have to deal with the case Medellin v. Dretke, involving the question whether United States federal courts may disregard the 31 March 2004 judgment of the International Court of Justice in the Case Concerning Avena and other Mexican Nationals (Mexico v. USA) and still – the just mentioned ICJ judgment notwithstanding – apply the so-called “procedural default” rule in criminal proceedings. It is this case which – inter alia – underlines the importance of the subject-matter of the book to be reviewed here, i.e. the compliance by parties with decisions of the International Court of Justice. The book contains a comprehensive review and analysis of both the legal framework underlying the obligation to abide by “decisions” of the ICJ (Chapter 2, 18 et seq.) and relevant State practice with regard to such compliance in all cases ranging from the Corfu Channel Case of 1949 to the 2002 judgment in the Case Concerning the Arrest Warrant of 11 April 2000 (Chapter 3, 81 et seq.). In Chapter 4, the author attempts to draw conclusions from this practice. The book is thus of interest not only to international lawyers, but also to political scientists interested in factual compliance with international law, and more particular obligations deriving from judgments of international courts and tribunals. Each of the various questions addressed in Chapter 2 is analyzed in all of its various perspectives and sub-issues. Thus, for example, when addressing the extent of the binding force of ICJ judgments rationae personae, Schulte includes issues such as whether intervening States or States not members of the United Nations are also bound by ICJ judgments. She also deals with the issue of possible enforcement either by the organs of the United Nations or by States unilaterally. One might therefore wonder whether the title of the book should have not also made reference to the issue of enforcement of decisions of the ICJ, since strictly speaking this is more than simple compliance. Yet, as a matter of substance it seems to be more than appropriate to also include that issue into the focus of the author’s overall endeavor. With regard to the analysis of the record of compliance in a given case, the material presented to the reader is more than abundant, including State practice, domestic courts decisions, but also reactions by international organs. In the concluding, most interesting Chapter IV, Schulte attempts to find out whether there are common factors which favor or rather disfavor compliance in a given case,

994

Book Reviews

dealing with both final judgments and provisional measures – the legally binding nature of which, after the holding of the Court in the LaGrand Case, can no longer be questioned. As one can expect from a book published by a publisher such as Oxford University Press, the book contains, apart from a bibliography, a comprehensive table of cases, a list of abbreviations, as well as a well-organized and extensive index. The price of 75 GBP seems to be, when compared with the price of comparable books published by competing publishing houses, quite reasonable. On the whole, one might say that, as far as can be seen, Schulte’s Munich dissertation, written under the auspices of Bruno Simma, now Judge, is the first monograph that covers all issues involved in the compliance with and enforcement of ICJ decisions. It will therefore henceforth serve as one major, if not the reference book on those issues, even more since Shabtai Rosenne’s magnum opus on the International Court of Justice is by now somewhat outdated and (necessarily) only devotes rather limited space to the issue of compliance and enforcement of ICJ decisions. One therefore cannot but recommend to everybody interested in the work of the Court to consult Constanze Schulte’s book whenever such an issue comes up – and hopefully the United States Supreme Court will indeed not only do so when considering its judgment in Medellin v. Dretke, but will also by the same token give full effect to the Avena Judgment of the International Court of Justice. Andreas Zimmermann

Albrecht Weber: Menschenrechte – Texte und Fallpraxis. Sellier European Law Publishers, München 2004, xxii + 1050 Seiten. Die Tatsache, dass Albrecht Webers Buch „Menschenrechte – Texte und Fallpraxis“ in einer völkerrechtlichen Zeitschrift besprochen wird, könnte zu dem Schluss verleiten, das Buch behandele die völkerrechtlichen Menschenrechtsverträge und die ihnen zugehörige Spruchpraxis. Dieser Schluss wäre allerdings nur teilweise richtig. Tatsächlich befasst sich das Buch nämlich mit der Grundrechtsvergleichung und schließt dabei die internationalen Verträge in die Betrachtung mit ein. Dabei will Weber weder die Universalität der Menschenrechte beweisen oder untersuchen noch eine abschließende Betrachtung aller Grundrechtsgewährleistungen vornehmen. Der Universalität der Menschenrechte widmet er gerade mal eine Seite zu Beginn der Einführung (1). Weber will deutschen Rechtsanwendern, also Richtern, Anwälten und Jurastudenten, „durch eine fallbezogene Darstellung der in der westlichen Welt garantierten Menschenrechte, wie sie sich in internationalen und regionalen Menschenrechtsdokumenten und in nationalen Verfassungstexten finden, den Zugang zur Grundrechtsjudikatur anderer Rechtsordnungen erleichtern.“ (5) Die Notwendigkeit dazu scheint sich für ihn aus dem Zusammenwachsen Europas, im engeren (EU/EG) wie im weiteren (Europarat) Sinne, zu einer Grundrechtegemeinschaft zu ergeben. Zwar zieht sich die Grundannahme der Existenz einer solchen europäischen Grundrechtegemeinschaft durch das gesamte Buch, im Rahmen der Einführung reserviert Weber jedoch zusätzlich einen kurzen Abschnitt den Mechanismen, die zu ihrem Entstehen geführt haben. (6 f.) Demnach

Book Reviews

995

ergibt sich gerade aus der Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte und des Europäischen Gerichtshofs auf der einen sowie der Rechtsprechung nationaler Verfassungsgerichte auf der anderen Seite ein Verhältnis der gegenseitigen Beeinflussung, das sich neben der Rechtssprechung letztlich auch in der Normgenese neuer Verfassungen spiegelt. Methodisch versucht Webers Darstellung eine vergleichende Betrachtung der einschlägigen Grundrechtsnormen, indem er diese zunächst kategorisiert und bestimmten Rechten zuordnet. So behandelt etwa das erste Kapitel des Buches die Menschenwürde; Kapitel Zwei das Recht auf Leben und körperliche und psychische Integrität und Kapitel Fünf die Glaubens-, Religions- und Weltanschauungsfreiheit sowie die Gewissensfreiheit. Während die meisten Kapitel jeweils ein Recht und die dazugehörigen Normen zum Gegenstand haben, behandeln einige Kapitel mehrere Menschenrechte als Teil eines größeren Rechtskomplexes. So sieht Kapitel Vier die Meinungs- und Informationsfreiheit, die Pressefreiheit, die Freiheit audiovisueller Medien sowie die Vereinigungsund Koalitionsfreiheit als Teil eines so genannten Kommunikationsgrundrechtes. Schon an der Auflistung dieser wenigen Rechte kann man erkennen, dass Webers Buch sich fast ausschließlich auf die klassischen Freiheitsrechte ‚westlicher Prägung’ konzentriert. Grund- und Menschenrechte der zweiten Generation, also wirtschaftlich und sozial ausgeprägt Rechte, finden sich nur, soweit eine enge thematische Verknüpfung zu den klassischen Freiheitsrechten besteht. Die eigentliche Rechtsvergleichung findet dann auf zwei Ebenen statt. Ausgangspunkt ist zunächst eine semantische Textvergleichung, die den Wortlaut der Verträge neben denjenigen nationaler Verfassungen stellt. Für den reinen Textvergleich, also das Nebeneinander der unterschiedlichen Normtexte, nimmt sich das Buch durchschnittlich neun Seiten Zeit. Neben den Texten der Europäischen und der Amerikanischen Menschenrechtskonvention, dem Internationalen Pakt für bürgerliche und politische Rechte sowie dem für wirtschaftliche, soziale und kulturelle Rechte findet sich auf internationaler Ebene der Text der unverbindlichen Allgemeinen Erklärung der Menschenrechte. Die Europäische Union ist mit dem Text der Europäischen Grundrechtcharta vertreten. Während sich die jeweils relevante Norm dieser internationalen Dokumente bei jedem in Webers Buch behandelten Recht findet, nimmt es bei den nationalen Verfassungstexten eine Auswahl nach Bedeutung und etwaigen Besonderheiten der Norm vor. Bei der Menschenwürde stellt es dabei immerhin die Texte von 25 Verfassungen nebeneinander. Zunächst konzentriert sich das Buch bei seinem Vergleich auf die Verfassungen europäischer Staaten, wobei insbesondere auch die neueren osteuropäischen Texte Beachtung finden. Da es nicht Webers Ziel, ist die Universalität der Menschenrechte zu untersuchen, nimmt er neben den europäischen Verfassungen nur wenige Beispiele aus anderen Regionen der Welt in seine Betrachtung auf. So finden sich Verfassungsnormen der Vereinigten Staaten von Amerika, Kanadas und Südafrikas, die aufgrund ihrer Ausgestaltung und ihrer Entstehungsgeschichte allerdings dem westlichen Rechtskreis zuzuordnen sind und als solche keine Schlüsse auf andere Rechtskreise zulassen. Ein wirklich internationales oder universelles Textbuch müsste darüber hinaus auch islamisch, hinduistisch oder buddhistisch beeinflusste bzw. afrikanische Rechtskreise in seine Studie aufnehmen. Webers diesbezügliche Auslassung ist, betrachtet man die Zielsetzung seiner Arbeit, nur konsequent. Bei englischen oder französischen Verfassungsnormen stellt der Autor der deutschen Übersetzung den Originaltext zur Seite.

996

Book Reviews

Am Ende einer jeden Textvergleichung enthält das Buch noch eine kurze Betrachtung des systematischen Kontextes und der historischen Entwicklung der zu einem jeden Menschenrecht gehörigen Normen, die Parallelen und textliche Abweichungen aufzeigen soll. So können die nötigen Hintergrundinformationen für die eigentliche Textanalyse schon in diesem Teil der Untersuchung erlangt werden. Bei der Untersuchung des Rechts auf Privatsphäre ergibt sich hier, dass es ein umfassendes Recht auf Privatsphäre erst in neueren Verfassungen gibt, während ältere Verfassungen nur Teilbereiche dieses Rechts abdecken. Ein umfassendes Recht lässt sich bei älteren Verfassungen meist nur aus allgemeinen Prinzipien herleiten. Unter diesem Gesichtspunkt ist es dann einleuchtend, dass Art. 2 Abs. 1 des Deutschen Grundgesetzes und Art. 2 der Italienischen Verfassung aufgeführt sind, die eher ein allgemeines Persönlichkeitsrecht enthalten als ein explizites Recht auf Privatsphäre. Dieser Abschnitt gewährt also die Möglichkeit, die grundsätzliche Bedeutung verschiedener Normen für die Entwicklung eines bestimmten Rechts zu erfassen, ohne weiter in die späteren Betrachtungen einzudringen. Die Hauptleistung von Webers Buch findet sich jedoch in der zweiten Ebene der vorgenommenen Grundrechtsvergleichung. Hier setzt ein Vergleich der höchstrichterlichen Urteile an, die in den verschiedenen Rechtsordnungen zu den entsprechenden Normen ergangen sind. Der Schwerpunkt der Auswertung liegt hier natürlich, wie bei den ausgewählten Grundrechtsnormen, auf den Urteilen westeuropäischer und zunehmend auch osteuropäischer Verfassungsgerichte, die aufgrund spezifischer Grundrechtsbeschwerden und gereifter Dogmatik bereits einen hohen Menschenrechtsstandard erreicht haben. Auch hier werden europäische Urteile durch Urteile aus den Vereinigten Staaten von Amerika, Kanada und Südafrika ergänzt. Natürlich ist hier eine Konzentration auf besonders relevante Urteile nötig, anhand derer die unterschiedlichen Gewährleistungsmaßstäbe auf der internationalen Ebene und in den verschiedenen nationalen Verfassungsordnungen aufgezeigt werden können. Verschiedene Herangehensweisen und Lösungen für unterschiedliche Grundrechtsprobleme werden anhand wörtlicher Auszüge aus den Urteilen dargestellt. Neben der Auswahl der Urteile liegt die Leistung des Buches gerade darin, die verschiedenen Urteile zu sortieren und in kurzen Zwischenpassagen die Bedeutung der Urteile und ihr Verhältnis zu den Urteilen anderer Gerichte darzustellen. Die Hauptlast der Problembehandlung belässt Weber jedoch bewusst bei der Darstellung in den Urteilen selbst. Nach einer zugegebenermaßen oberflächlichen Recherche findet sich auf deutscher wie auf internationaler Ebene kein anderes Werk der Grundrechtsvergleichung, das neben der ausführlichen Dokumentation der Verfassungstexte ein solches Gewicht auf die Darstellung wesentlicher Passagen einschlägiger Urteile legt. Wichtig erscheint noch der Hinweis, dass Weber dem Leser bei Urteilen aus dem englischen und französischen Sprachraum die Lektüre des Originaltextes bewusst zumutet und nur solche Urteile aus anderen Sprachkreisen übersetzt. Völkerrechtlern wird relativ schnell klar, welchen praktischen Wert Webers Buch für ihre Arbeit haben kann. Will man die gewohnheitsrechtliche Geltung eines Menschenrechts beweisen, so kann es als Richtlinie für die Betrachtung völkerrechtlicher Menschenrechtsnormen und ihrer Gegenstücke in der nationalen Staatenpraxis, zumindest der westlicher Staaten, dienen. Um den wahren Wert der in diesem Buch vorgenommenen Untersuchung ermessen zu können, muss man jedoch das Ziel betrachten, das der Autor verfolgt, und sich fragen, inwieweit er dieses Ziel erreicht. Nach der Lektüre des Buches scheint es offensichtlich, dass Weber von der richtigen Prämisse ausgeht, wenn er das Existieren einer euro-

Book Reviews

997

päischen Grundrechtsgemeinschaft voraussetzt. Ein interessanter Nebeneffekt der Methode, Urteile verschiedener Verfassungsgerichte und ihr Verhältnis zueinander zur Grundrechtsvergleichung heranzuziehen, ist nämlich die Möglichkeit, die von den Gerichten vorgenommene Rechtsvergleichung selbst zu betrachten. Webers Buch schafft es dabei mit Leichtigkeit zu zeigen, dass Gerichte in der Tat einschlägige Urteile aus anderen Staaten in ihre Überlegungen zur Lösung von Grundrechtsproblemen heranziehen, zumindest innerhalb des westlichen Rechtskreises. Dass internationale Normen und die entsprechenden Urteile die nationale Grundrechtsgewährleistung beeinflussen, sollte in Deutschland spätestens seit dem von Hannover-Urteil des Europäischen Menschenrechtsgerichtshofes aus dem Jahre 2004 bekannt sein. In der Europäischen Gemeinschaft/Union macht schon die Entstehungsgeschichte der Grundrechtecharta, die maßgeblich auch auf der grundrechtsvergleichenden Rechtsprechung des EuGH aufbaut, die Existenz eines einheitlichen Grundrechtsraums plausibel. Ist aber diese Prämisse richtig, so ist auch der Bedarf an grundrechtsvergleichenden Untersuchungen gegeben, da der Rechtsanwender Grundrechtsnormen ausländischer Verfassungen bzw. Urteile ausländischer Verfassungsgerichte in seiner Argumentation berücksichtigen muss – insbesondere wenn unter Umständen auch die Verletzung internationaler Grundrechtestandards im Raum steht. Zwar sind viele ausländische Quellen über das Internet mittlerweile der eigenen Recherche zugänglich, diese wird jedoch durch die Sprachbarriere und die schier unüberschaubare Masse der internationalen Judikatur erschwert. Der Zeitaufwand und der Durchhaltewille, der für eine tiefgehende Recherche nötig wäre, erscheint vielen Rechtsanwendern deshalb überproportional im Vergleich mit dem zu erzielenden Nutzen. Vermutlich unterbleiben deshalb viele Vergleiche mit anderen Rechtsordnungen, die bei der Lösung von Grundrechtsproblemen hilfreich und aufgrund der internationalen Vernetzung auch geboten wären. Webers Buch „Menschenrechte – Texte und Fallsammlung“ könnte diese Probleme lösen, wenn es nur genug Beachtung findet. Durch die gezielte und problembewusste Zusammenstellung der wesentlichen relevanten Entscheidungen nimmt Weber dem Rechtsanwender die Arbeit ab, überwindet die Sprachbarriere und schafft es, die Entwicklungen, den Inhalt und die relevanten Unterschiede der Grundrechtsgewährleistung in den verschiedenen Rechtsordnungen vollständig darzustellen. Durch die Angabe weiterführender Rechtsprechung und Literatur schafft er zugleich die Grundlage für eine weitergehende Grundrechtsvergleichung, wo diese geboten erscheint. Das wichtige Ziel, dem deutschen Rechtsanwender die Grundrechtsjudikatur anderer Rechtsordnungen und damit die europäischen Grundrechtsgemeinschaft näher zu bringen, hat er voll erfüllt. Vielleicht gehen Möglichkeiten des Buches sogar über die Erreichung dieses Zieles hinaus. So kann es dem deutschen Rechtsanwender nicht nur die bestehenden Verflechtungen näher bringen, sondern leistet unter Umständen selbst einen Beitrag zur Verdichtung der europäischen Grundrechtegemeinschaft, indem es die Möglichkeit und die Bereitschaft für die Beachtung ausländischer und internationaler Urteile in Deutschland erhöht. Manchmal hat man bei der Lektüre von Webers Buch sogar das Gefühl, nicht nur Rechtsvergleichung zu betreiben, sondern dem wahren, objektiven Gehalt der Menschenrechte nachzuspüren. Nicki Boldt

BOOKS RECEIVED (Inclusion in this list neither assures nor precludes later review.) Ademola Abass: Regional Organisations and the Development of Collective Security. Beyond Chapter VIII of the UN Charter. Studies in International Law, vol. 6, Hart Publ., Oxford and Portland/Oregon 2004, xxviii + 239 pages. Chittharanjan Felix Amerasinghe: Local Remedies in International Law. 2nd ed., Cambridge University Press, Cambridge 2004, xxxii + 445 pages. Diana Amnéus/Katinka Svanberg-Torpman (eds.): Peace and Security. Current Challenges in International Law. Studentlitteratur, Lund 2004, 419 pages. Anuario de derecho internacional, vol. XIX, Universidad de Navarra, Pamplona 2003, xx + 728 pages. Eyal Benvenisti/Moshe Hirsch (eds.): The Impact of International Law on International Cooperation. Theoretical Perspectives. Cambridge University Press, Cambridge 2004, xiii + 316 pages. Andrea Bianchi (ed.): Enforcing International Law Norms Against Terrorism. Studies in International Law, vol. 4, Hart Publ., Oxford and Portland/Oregon 2004, xxii + 549 pages. Laurence Boisson de Chazournes/Jean-François Quéguiner/Santiago Villalpando (dir.): Crimes de l’histoire et réparations: Les réponses du droit et de la justice. Bruylant, Bruxelles 2004, xii + 401 pages. Éric Canal-Forgues: Le règlement des différends à l' OMC. 2e ed., Bruylant, Bruxelles 2004, 195 pages. Gérard Cohen-Jonathan/Jean-François Flauss (dir.): Droit international, droits de l’homme et juridictions internationales. Droit et Justice, t. 55, Nemesis, Bruylant, Bruxelles 2004, 152 pages. Eric David (dir.): Code de droit international penal. Édition à jour au 1er novembre 2004. Bruylant, Bruxelles 2004, 1532 pages.

Books Received

999

Eileen Denza: Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations. 2nd ed., Paperback, Oxford University Press, Oxford 2004, xxi + 451 pages. Andrew Dickinson/Rae Lindsay/James P. Loonam: State Immunity. Selected Materials and Commentary. Oxford University Press, Oxford 2004, xc + 542 pages. Jean-François Flauss (dir.): Les nouvelles frontières du droit international humanitaire. Actes du colloque du 12 avril 2002 organisé par l’Institut d’études de droit international de l’Université de Lausanne. Droit et Justice, t. 52, Nemesis, Bruylant, Bruxelles 2003, 218 pages. Hazel Fox: The law of State Immunity. The Oxford International Law Library, Paperback ed., Oxford University Press, Oxford 2004, lxiv + 572 pages. Stephan Hobe/Otto Kimminich: Einführung in das Völkerrecht. 8. Aufl., A. Francke, Tübingen, Basel 2004, xxiv + 615 pages. Henrik Horn/Petros C. Mavroidis (eds.): The WTO Case Law of 2001. The American Law Institute Reporters’ Studies, Cambridge University Press, Cambridge 2003, x + 313 pages. Hersch Lauterpacht: International law. Collected Papers. Edited by Sir Elihu Lauterpacht. vol. 5: Disputes, War and Neutrality. Parts IX-XIV. Cambridge University Press, Cambridge 2004, xxiv + 786 pages. Rafaëlle Maison: La responsabilité individuelle pour crime d’État en droit international public. Collection de droit international, t. 56, Bruylant, Bruxelles 2004, xiv + 547 pages. Dominic McGoldrick: From “9–11” to the “Iraq War 2003.” International Law in an Age of Complexity. Hart Publ., Oxford and Portland/Oregon 2004, xv + 380 pages. Dominic McGoldrick/Peter Rowe/Eric Donnelly (eds.): The Permanent International Criminal Court. Legal and Policy Issues. Studies in International Law, vol. 5, Hart Publ., Oxford and Portland/Oregon 2004, xviii + 498 pages. Mike Moore (ed.): Doha and Beyond. The Future of the Multilateral Trading System. Cambridge University Press, Cambridge 2004, xx + 184 pages. Michael Mráz: Völkerrecht im Zivilprozess. Zum möglichen Beitrag von Zivilgerichten zur Entwicklung des Rechts der internationalen Gemeinschaft. Schweizer Studien zum Internationalen Recht, Bd. 122, Schulthess, Zürich, Basel, Genf 2004, xxiv + 179 Seiten. John F. Murphy: The United States and the Rule of Law in International Affairs. Cambridge University Press, Cambridge 2004, ix + 367 pages.

1000

Books Received

Netherlands Yearbook of International Law, vol. XXXIV. Stichting T.M.C. Asser Instituut, Den Haag 2003, x + 530 pages. Andrew Oppenheimer (ed.): The Relationship between European Community Law and National Law: The Cases. vol. 2, Cambridge University Press, Cambridge 2003, xlvi + 685 pages. Federico Ortino: Basic Legal Instruments for the Liberalisation of Trade. A Comparative Analysis of EC and WTO Law. Studies in International Trade Law, Hart Publ., Oxford and Portland/Oregon 2004, xxii + 502 pages. Isabelle Pingel (dir.): Droit des immunités et exigences du procès équitable. Collection Contentieux International, A. Pedone, Paris 2004. 162 pages. Le processus de délimitation maritime. Étude d’un cas fictif. Colloque international, Monaco, 27–29 mars 2003. Institut du droit économique de la mer. A. Pedone, Paris 2004, 400 pages. Christian Reus-Smit (ed.): The politics of international law. Cambridge Studies in International Relations, vol. 96, Cambridge University Press, Cambridge 2004, xiv + 324 pages. Cesare P. R. Romano/André Nollkaemper/Jann K. Kleffner (eds.): Internationalized Criminal Courts. Sierra Leone, East Timor, Kosovo, and Cambodia. International Courts and Tribunals Series, Oxford University Press, Oxford 2004, lviii + 491 pages. Shabtai Rosenne: Provisional Measures in International Law. The International Court of Justice and the International Tribunal for the Law of the Sea. International Courts and Tribunals Series, Oxford University Press, Oxford 2005, xx + 241 pages. Nicolas de Sadeleer/Charles-Hubert Born: Droit international et communautaire de la biodiversité. Ed. Dalloz, Paris 2004, xvi + 780 pages. Constanze Schulte: Compliance with Decisions of the International Court of Justice. International Courts and Tribunal Series, Oxford University Press, Oxford 2004, xxxiii + 485 pages. Gerry Simpson: Great Powers and Outlaw States. Unequal Sovereigns in the International Legal Order. Cambridge Studies in International and Comparative Law, Cambridge University Press, Cambridge 2004, xix + 391 pages. Francis Snyder (dir.): International Food Security and Global Legal Pluralism. Sécurité alimentaire internationale et pluralisme juridique mondial. Travaux du CERIC, Bruylant, Bruxelles 2004, 234 pages.

Books Received

1001

M. Sornarajah: The International Law on Foreign Investment. 2nd ed., Cambridge University Press, Cambridge 2004, xxv + 525 pages. Paul Tavernier (dir.): La France et la Cour européenne des droits de l’Homme. La jurisprudence en 2002. Collection du CREDHO, Bruylant, Bruxelles 2003, 377 pages. Nguyen Hong Thao: Le Vietnam et ses différends maritimes dans la mer de Bien Dong (Mer de Chine Méridionale). A. Pedone, Paris 2004, 334 pages. Anna Ulvsbäck: Standardizing individual environmental protection as a human right. Travaux de la faculté de droit de l’université de Fridbourg, t. 227, Schulthess, Zürich 2004, xliv + 318 pages. François Voeffray: L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales. Puf, Paris 2004, xxii + 403 pages. Erika de Wet: The Chapter VII Powers of the United Nations Security Council. Studies in International Law, vol. 3, Hart Publ., Oxford and Portland/Oregon 2004, xviii + 413 pages. Svetlana Zašova: Macédoine. De la FORPRONU-Macédoine à la FORDEPRENU (1993–1999). L’ONU et les opérations de maintien de la paix, A. Pedone, Paris 2004, xi + 227 pages.

LIST OF CONTRIBUTORS Aznar-Gómez, Mariano J.

Dr. en derecho, Associate Professor of Public International Law, University of València

Bayer, Frank

Dr. iur., Rechtsreferendar, Kiel

Bedjaoui, Mohamed

Dr. en Droit (Grenoble), Member, Institut de Droit International, Former President, International Court of Justice

Behnsen, Alexander

Doktorand, Wiss. Mitarbeiter am Walther-SchückingInstitut, Universität Kiel

Bianchi, Andrea

LL.M. (Harv.), Ph.D. (Milan), Professor of International Law, Graduate Institute of International Studies, Geneva and Catholic University, Milan

Boldt, Nicki

Doktorand, Wiss. Mitarbeiter am Walther-SchückingInstitut, Universität Kiel

Colassis, Laurent

Head, Unit of the Legal Advisers to the Operations, Legal Division, International Committee of the Red Cross, Geneva

Dörmann, Knut

Dr. iur., Deputy Head, Legal Division, International Committee of the Red Cross, Geneva

Durieux, Jean-Francois

Head, Convention Plus Unit, Office of the United Nations High Commissioner for Refugees, Geneva

Geiss, Robin

Dr. iur., LL.M. (NYU)

Groß, René

Cand. iur., Universität Kiel

Goeters, Hanna

Doktorandin, Wiss. Mitarbeiterin am Walther-SchückingInstitut, Universität Kiel

Happ, Richard

Dr. iur., Rechtsanwalt, Luther Menold, Hamburg

List of Contributors

1003

Hofmann, Rainer

Prof. Dr. Dr., Professor für öffentliches Recht, Völkerund Europarecht, Johann Wolfgang Goethe-Universität Frankfurt am Main

Hurwitz, Agnès

LL.B. (Brussels), LL.M. (Cambridge), Ph.D. (Oxford), Associate, International Peace Academy, New York

Jessen, Henning

LL.M. (Tulane), Doktorand, Universität Halle, Rechtsreferendar, Hamburg

Jötten, Sara

Cand. iur., Universität Kiel

Klein, Natalie

LL.B. (Hons) (Adelaide), LL.M. J.S.D. (Yale). Lecturer, Macquarie University, Sydney, Australia

Klingberg, Vanessa

Doktorandin, Wiss. Mitarbeiterin am Walther-SchückingInstitut, Universität Kiel

Klug, Anja

Senior Legal Officer, Office of the United Nations High Commissioner for Refugees, Protection Policy and Legal Advice Section, Department for International Protection, Geneva

Kretzmer, David

LL.M. LL.B. (Hebrew Univ.), Dr. jur. (York), Bruce W. Wayne Professor of International Law, Hebrew University of Jerusalem

Laubner, Tilmann

Ass. iur., Doktorand, Wiss. Mitarbeiter am WaltherSchücking-Institut, Universität Kiel

Leitsch, Heiko

Cand. iur., Universität Kiel

Mavroidis, Petros C.

Dr. iur., LL.M. Eur. (Brussels), LL.M. (Berkeley), Edwin B. Parker Professor of Law, Columbia Law School, New York, Professor of Law, University of Neuchâtel, Switzerland, Center for Economic and Policy Research

Müller, Till

Cand. iur., Universität Kiel

Nowrot, Karsten

LL.M. (Indiana), Doktorand, Wiss. Mitarbeiter am Institut für Wirtschaftsrecht, Universität Halle-Wittenberg

Nyanduga, Bahame T.M.

LL.B. (Hons) (Dar es Salaam), LL.M. (LSE), Member, African Commission on Human and Peoples’ Rights. Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa

1004

List of Contributors

Oellers-Frahm, Karin

Dr. iur., Wiss. Referentin am Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

Ortega Terol, Juan M.

Dr. en derecho, Associate Professor of Public International Law, Universiy of Castilla-La Mancha

Rubins, Noah

Attorney (New York, District of Columbia, Texas), Freshfields Bruckhaus Deringer, Paris

Schlinkert, Jana

Doktorandin, Universität Halle-Wittenberg

Schultz, Alexander

Dr. iur., Rechtsreferendar, Hamburg

Schwind, Joachim

Doktorand, Universität Kiel

Siemen, Birte

LL.M. (Leiden), Rechtsreferandarin, Hamburg

Siehr, Angelika

Dr. iur., LL.M. (Yale), Habilitandin, Wiss. Mitarbeiterin, Humboldt-Universität Berlin, derzeit für ein DFGForschungsstipendium beurlaubt

Steiling, Ronald

Dr. iur., Rechtsanwalt, Graf von Westphalen Bappert & Modest, Hamburg

Strydom, Hennie

Professor in Public International Law, University of Johannesburg, South Africa

Stubbe, Sue

Cand. iur., Universität Kiel

Tams, Christian J.

LL.M. Ph.D. (Cambridge), Habilitand, Wiss. Mitarbeiter am Walther-Schücking-Institut, Universität Kiel

Zimmermann, Andreas

Prof. Dr. iur., LL.M. (Harvard), Direktor des WaltherSchücking-Instituts, Universität Kiel

European Society of International Law / Société Européenne de Droit International Inaugurated: The Inaugural Conference in Florence (Italy) on 13–15 May 2004: “International Law in Europe: Between Traditional and Renewal”. The Society is an impartial, professional, and inclusive organisation openon equal terms to all who are interested in the promotion of international law and the contribution to the rule of law in international relations, in a spirit of co-operation with other relevant international and national associations. Executive Board:

Bruno Simma (President) Francesco Francioni (Vice President) Hélène Ruiz Fabri (Vice President) Mariano Aznar Gomez Andrea Bianchi, Pierre-Marie Dupuy Florian Hoffmann Vera Gowlland Debbas Frédéric Mégret Vaughan Lowe Boldizsar Nagy Iulia Motoc Anne Peters Hanspeter Neuhold Nico Schrijver Jarna Petman Thomas Skouteris Ineta Ziemele

Secretariat:

Gillian Walker

Office:

http://www.esil-sedi.org [email protected]

Joining ESIL: For further information about ESIL and for membership registration forms, please visit our website at www.esil-sedi.org or contact us at [email protected].