International Law and Changing Perceptions of Security : Liber Amicorum Said Mahmoudi [1 ed.] 9789004274587, 9789004274570

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International Law and Changing Perceptions of Security



Said Mahmoudi

International Law and Changing Perceptions of Security Liber Amicorum Said Mahmoudi Edited by

Jonas Ebbesson Marie Jacobsson Mark Klamberg David Langlet Pål Wrange

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data International law and changing perceptions of security : liber amicorum Said Mahmoudi / edited by Jonas Ebbesson, Marie Jacobsson, Mark Klamberg, David Langlet, Pål Wrange.   pages. cm.  Includes index.  ISBN 978-90-04-27457-0 (hardback : alk. paper) -- ISBN 978-90-04-27458-7 (e-book) 1. International law. 2. Security, International. 3. International law and human rights. I. Wrange, Pål, editor. II. Ebbesson, Jonas, editor. III. Jacobsson, Marie, 1955- , editor. IV. Klamberg, Mark, editor. V. Langlet, David, editor. VI. Mahmoudi, Said, 1948- , honouree.  KZ3410.I5757 2014  341--dc23 2014024418

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-27457-0 (hardback) ISBN 978-90-04-27458-7 (e-book) Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. Brill has made all reasonable efforts to trace all rights holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyright holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. This book is printed on acid-free paper.

Contents Preface vii List of Abbreviations x Academic Writings of Said Mahmoudi xii About the Contributors xviii The Use of Force under the un Charter Modification and Reform through Practice or Consensus 1 Ove Bring Regulating Private Military and Security Companies 14 Iain Cameron The Mandate of the United Nations Security Council in a Changing World 39 Hans Corell Who is Responsible and for How Long? Final Disposal of Spent Nuclear Fuel and the Obligation to Prevent Proliferation of Nuclear Weapons—A Swedish Perspective 59 Per Cramér Social-Ecological Security and International Law in the Anthropocene 71 Jonas Ebbesson Nonviolent Geopolitics Law, Politics, and 21st Century Security 93 Richard Falk The Progression of International Law in Fostering the Extraterritorial Prosecution of Child Sex Tourist Offences 106 David I. Fisher Margin of Appreciation and National Security 116 Pär Hallström Syria and the Issue of Chemical Weapons A Snapshot of a Legal Time-Frame: The United Nations Security Council Resolution 2118 (2013) and the opcw Executive Council Decision 134 Marie Jacobsson

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International Law in the Age of Asymmetrical Warfare, Virtual Cockpits and Autonomous Robots 152 Mark Klamberg Climate Change and International Security 171 Timo Koivurova Law of Sustainable Development in the Jurisprudence of the International Court of Justice 189 Abdul G. Koroma Minerals as Scarce Resources The Quest for Secure and Sustainable Supply 202 David Langlet The Security Council, the African Union and the International Criminal Court Anatomy of a Problematic Relationship 225 Phoebe Okowa Off-Shore Wind Energy Development in International Law 244 Tullio Scovazzi and Ilaria Tani The Human Security of Endangered Peoples Indigenous Groups Living in Isolation and First Contact 259 Dinah Shelton Towards an International Human Rights Judiciary? 296 Geir Ulfstein Intervention in National and Private Cyberspace and International Law 307 Pål Wrange Human Rights before Security in Kadi and Beyond 327 Inger Österdahl Index 347

Preface With this book we, the editors and contributors, convey our appreciation of Professor Said Mahmoudi as a scholar, colleague and friend. We highly value his capacity to combine quality, consistency and clarity in his scholarly work with the virtues of integrity and generosity. Said graduated as doctor of law from the University of Stockholm in 1987 with a dissertation on the law of deep sea-bed mining and was appointed associate professor of international law at Stockholm University the following year. He has been a professor of international law at the same university since 1999. Between 2009 and 2011 he also served as dean of the Faculty of Law. Before academia, between 1974 and 1981, he served as a diplomat at the Iranian Embassy in Stockholm and at the Iranian Ministry of Foreign Affairs. Said is a member of several organizations and societies, including: the International Advisory Board of the Law of the Sea Institute, University of California, Berkeley; Conseil européen du droit de l’environnement (cede), the International Council of Environmental Law (icel), the International Jury for the Elizabeth Haub Prize for Environmental Law, the Board of the Swedish Branch of International Law Association; the Stockholm Center for Inter­ national Law and Justice. He is also a member of the editorial boards of the following journals: Atoms for Peace: An International Journal; Scandinavian Studies in Law; Aegean Review of the Law of the Sea and Maritime Law. He is the chairman of the board of the Stockholm Environmental Law and Policy Centre and the Stockholm Center for the Rights of the Child. Said’s interest in the broad spectrum of international peace and security is also evidenced by his engagement and work to ensure that Stockholm University benefits from lectures and presentations by the most prominent international lawyers such as Members of the International Court of Justice, well-renowned scholars and practitioners. Besides his academic writing, Said has been much engaged in public debates on the events associated with Palestine and the Arab–Israeli conflict, the Gulf War 1990–1991, the attacks in New York and Washington on September 11, 2001, the 2003 invasion of Iraq, the Russo-Georgian war of 2008 and the Russian illegal annexation of Crimea in 2014. In relation to these events he has been able to provide the public with clarity, reason and logic. **** This Liber Amoricum is organized around the theme ‘International law and changing conceptions of security’. This choice of theme reflects Said’s

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involvement and interest in a diversity of issues relating to security and international law, such as the use of force, international environmental law, human rights and the law of the sea. It is conventional wisdom that the traditional conception of security as national security against military threats has changed. Even if the core objects have remained the same (the people, institutions, values and resources of a state), the perceived nature of the threat has changed greatly (terrorism, organised crime, disease, certain forms of migration, environmental hazards, etc.) and so has the perception of the sources of the threat (non-state actors, individuals, nature, etc.). In addition to that, it is no longer just the state that is to be protected, but also individuals (human security), societies (societal security), the environment as such and the whole globe (global security). Concerns for security underlie much of the development of international law, but while the notion of security has changed since the Second World War, it is debatable how much the concept of security has changed in legal terms. The term security appears 34 times in the un Charter, but it is not defined. While the drafters in 1945 were focused on traditional military wars, succeeding generations have broadened the concept. Nevertheless, what is covered by contemporary conceptions of security is still dealt with under discreet rubrics in international law – the use of force, the law of the sea, human rights, international environmental law, international humanitarian law, etc. Said’s contributions in the field of the law of sea have been very significant, not least through his doctoral thesis, a seminal analysis of the then new regime for deep sea-bed mining. Later he has taken a strong interest in the protection of the marine environment as well as in issues relating to maritime boundaries and the utilization of maritime zones for economic and military purposes. Said’s profound interest in environmental protection and the intersection between environmental law and other fields of law has spurred many valuable publications, most notably on various aspects of eu environmental law, but also on topics such as protection of the environment during armed conflict. In recent years Said has focused on the relation of international law to common values and principles (e.g. peace, sustainable development and human rights) and to global resources (e.g. oceans, climate and biological diversity) and the relation between Islam and international law. He has also written a number of articles on the use of force and on international humanitarian law. Not least importantly, Said has authored a number of textbooks on public international law as well on environmental law, including the main textbook on eu environmental law in Swedish. ****

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We would like to thank Brill Publishers and Lindy Melman for their great interest in the book. Thanks also to Bea Timmer, at Brill, for her kind assistance in the process of preparing the manuscript for publication. The editors have benefited greatly from the swift editorial assistance of Reb Kerstinsdotter. Emil Heijnes Stiftelse has given a generous grant for costs relating to editorial assistance, for which we are sincerely thankful. Stockholm, 10 May 2014 Jonas Ebbesson, Marie Jacobsson, Mark Klamberg, David Langlet, Pål Wrange

List of Abbreviations aosis Alliance of Small Island States au African Union cat Committee against Torture ceacr  i lo Committee of Experts on the Application of Convention and Recommendations cerd Committee on the Elimination of Racial Discrimination cescr Committee on Economic, Social and Cultural Rights cjeu Court of Justice of the European Union cna Computer Network Attacks crc Convention on the Rights of the Child cwc United Nations Chemical Weapons Convention echr European Convention of Human Rights ECtHR European Court of Human Rights elc European Landscape Convention eu European Union Euroatom European Atomic Energy Community gatt General Agreement on Tariffs and Trade hrc Human Rights Committee hr Council Human Rights Council iachr Inter-American Commission on Human Rights icc International Criminal Court iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights icidi Independent Commission on International Development Issues icj International Court of Justice ICoC International Code of Conduct for Private Security Service Providers icrc International Committee of the Red Cross iczm Protocol Protocol on Integrated Coastal Zone Management in the Mediterranean igo Intergovernmental Organization ilo International Labour Organization ihl International Humanitarian Law ihrl International Human Rights Law ila International Law Association ilc International Law Commission ipcc Intergovernmental Panel on Climate Change

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itlos International Tribunal for the Law of the Sea lars Lethal Autonomous Robotics loac Law of Armed Conflict Mercosur Mercado Común del Sur nafta North American free-trade Agreement ngo Non-Governmental Organization npt Non-Proliferation Treaty oecd Organisation for Economic Co-operation and Development opcw Organisation for the Prohibition of Chemical Weapons pace Parliamentary Assembly of the Council of Europe pkk Kurdistan Workers’ Party pmsc Private Military and Security Companies R2P Responsibility to Protect rtas Regional Trade Agreements snf Spent Nuclear Fuel ssm Swedish Radiation Safety Authority – Strålsäkerhetsmyndigheten ucav Unmanned Combat Air Vehicle udhr Universal Declaration of Human Rights un United Nations unccd United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa unced United Nations Conference on Environment and Development unclos United Nations Convention on the Law of the Sea undp United Nations Development Programme undrip un Declaration on the Rights of Indigenous Peoples unep un Environment Programme unfccc United Nations Framework Convention on Climate Change unga United Nations General Assembly unmil un Mission in Liberia unprofor United Nations Protection Force unsc United Nations Security Council unts United Nations Treaty Series vpd Vessel Protection Detachments wced World Commission on Environment and Development wmd Weapons of Mass Destruction wmo World Meteorological Organization

Academic Writings of Said Mahmoudi This list of Said Mahmoudi’s academic writings gives a picture of his areas of interest. It is not complete; a number of publications are not included in the list, for example books that he has co-edited with others, reviews and open editorial letters. The Law of Deep Sea-Bed Mining: A Study of the Progressive Development of International Law Concerning the Management of the Polymetallic Nodules of the Deep Sea-Bed (Almqvist & Wiksell International 1987). 2. Deep Sea-Bed Mining and the Nordic States (1988) 10 Marine Policy Reports 1–5. 3. Customary International Law and Transit Passage (1989) 20 Ocean Development and International Law 157–174. 4. Swedish-Soviet Boundaries in the Baltic Sea in Retrospect (Svensksovjetisk gränsdragning i Östersjön – en återblick) (1989/90) 2–3 Juridisk Tidskrift 286–310. 5. Delimitation of Maritime Zones between Sweden and the Soviet Union: An Appraisal (1990) 34 Scandinavian Studies in Law 151–180. 6. Some Remarks on Diplomatic Immunity from Criminal Jurisdiction in Festskrift till Lars Hjerner, Studies in International Law (Norstedts 1990) 327–361. 7. Some Private International Law Aspects of Transboundary Environ­ mental Disputes (1990) 59 Nordic Journal of International Law 128–138. 8. Passage of Warships through the Strait of Hormuz (1991) 15 Marine Policy: The International Journal of Ocean Affairs 338–348. 9. Modification of Part XI and the Balance of Interests in Issues in Amending Part XI of the los Convention (University of Virginia 1991) 185–193. 10. The Kuwait Crisis and International Law: Some Afterthoughts in (1991– 1992) Juridisk Tidskrift 562–572. 11. Sweden’s Economic Zone (1993) 8 International Journal of Marine and Coastal Law 524–529. 12. The ec Membership and More Stringent National Environmental Measures (eg-medlemskap och strängare nationella miljöåtgärder) (1993) 78 Svensk Juristtidning 419–448. 13. Recognition of States: the Case of Former Yugoslav Republics in Current International Law Issues – Nordic Perspectives: Essays in Honour of Jerzy Sztucki (Norstedts juridik 1994) 135–159. 1.

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14. The Öresund Agreement: Some International Law Reflections (Öresundsbroavtalet – några folkrättsliga reflektioner) (1994) Förvaltningsrättslig tidskrift 21–36. 15. Judgment of the ec Court in the So-called Environmental Guarantee Case (1994/95) 3 Juridisk Tidsskrift 534–537. 16. The United Nations Environment Programme: An Assessment (1995) 5 Asian Yearbook of International Law 175–198. 17. Prompt Release of Vessels and Crews and the 1982 United Nations Convention on the Law of the Sea (1995/96) 3 Juridisk Tidsskrift 712–725. 18. Foreign Military Activities in the Exclusive Economic Zone in Essays in Honour of Hugo Tiberg, Professor of Maritime Law (Juristförlaget 1996) 485–511. 19. A New World Order? (En ny världsordning?) in Lex Ferenda (Juristförlaget 1996) 135–145. 20. Subsidiarity and the Environment (1996) 6 The Finnish Yearbook of International Law 505–539. 21. Foreign Military Operations in Exclusive Economic Zone (1996) 10 International Journal of Marine and Coastal Law 365–386. 22. The International Court of Justice and Nuclear Weapons (Internationella domstolen och kärnvapen) (1996/97) 1 Juridisk Tidsskrift 92–107. 23. Legal Protection of the Persian Gulf’s Marine Environment (1997) 21 Marine Policy: The International Journal of Ocean Affairs 53–63. 24. The Baltic and the North Sea in Manual of European Environmental Law (2nd edn, Cambridge University Press 1997) 360–371. 25. eu:s Environmental law after the Treaty of Amsterdam (eu:s miljörätt efter Amsterdamfördraget) (1997/98) 2 Juridisk Tidsskrift 399–409. 26. The Treaty of Amsterdam: Changes in eu:s Environmental Policy (Amsterdamfördraget: Förändring av eu:s miljöpolitik) (Naturvårdsverket 1998). 27. Realease of Pesticides in the Market (Utsläppande av växtskyddsmedel på marknaden) 1999 1 Europarättslig tidskrift 173–179. 28. Protection of the European Environment after the Amsterdam Treaty (2000) 39 Scandinavian Studies in Law 123–137. 29. The ec Court and the Question of Waste (eg-domstolen och frågan om avfall) 2000 Svensk Juristtidning 47–60. 30. The Pinochet Cases – International Law and Swedish Law (Pinochetmålet – folkrätten och svensk rätt) with Lars Hjerner and Ove Bring (2000) Svensk Juristtidning 325–339. 31. Common Heritage of Mankind, Common Concern of Humanity in Jean-Pierre Beurier, Alexandre Kiss and Said Mahmoudi (eds),

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32. 33. 34. 35. 36. 37. 38. 39. 40.

41. 42. 43. 44. 45. 46.

Academic Writings of Said Mahmoudi 

New Technologies and Law of Marine Environment (Kluwer Law Inter­ national 2000) 215–223. The Barsebäck Case and the Requirement on Environmental Impact Assessment (Barsebäcksmålet och kravet på mkb) (2000/01) 1 Juridisk Tidsskrifttidskrift 215. On Crime and Punishment in Iran (Om brott och straff i Iran) with Ali Chahandeh (2001) Svensk Juristtidning 347–396. Local Authority of Västerås v Republic of Iceland (2001) 95 American Journal of International Law 192–197. Swedish Environmental Law Cases Decided by the ec Court (Svenska miljörelevanta mål som prövats av eg-domstolen) (2001) Festskrift till Ulf Bernitz, Juridisk Tidskrift 59–67. Passage of Ships through the Strait of Hormuz in Passage of Ships through Straits (Defence Analyses Institute 2001) 43–49. Case Study of Sweden in Erik Franckx (ed), Vessel-Source Pollution and Coastal State Jurisdiction (Kluwer Law International Law 2001) 323–336. The ec Court Practice Relating to Environmental Impact Assessment in Fågelperspektiv på rättsordningen: Vänbok till Staffan Westerlund (Iustus 2002) 491–504. ec Court Environmental Cases During 2001 (eg-domstolens miljörelevanta avgöranden under 2001) (2002) Europarättslig Tidskrift 484–497. Commentary on Article 170 and Annex IV of the los Convention in Myron Nordquist, Satya Nandan and Shabtai Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary Vol VI (Martinus Nijhoff Publishers 2002) 509–525; 756–820. On Honor Killings (Om hedersmord) (2002/03) 1 Juridisk Tidskrift 242–247. Introduction in Myron Nordquist, John Norton Moore and Said Mahmoudi (eds), The Stockholm Declaration and Law of the Marine Environment (Brill/Nijhoff 2003) 3–8. More Stringent Protective Measures According to the So-Called Environmental Guarantee Clause (Strängare nationella skyddsåtgärder enligt den s.k. miljögarantiklausulen) (2003) 6 Europarättslig Tidskrift 835–934. Country Report – Sweden in Yearbook of International Environmental Law (Oxford University Press, yearly reports 1995–2003). International Use of Force: Quo Vadis? (2003–2004) Juridisk Tidsskrift 341–358. Fundaments of Environmental Law: Swedish and European Rules in an International Perspective (Miljörättens grunder : svenska och europeiska regler i ett internationellt perspektiv) with Stefan Rubenson (Norstedts juridik 2004).

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47. The Shari’a in the New Afghan Constitution: Contradiction or Complement? (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 867–880. 48. Chronique nationale – Suède in Revue européenne de droit de l'environnement (yearly reports 1997–2004). 49. The Islamic Perception of the Use of Force in the Contemporary World (2005) 7 Journal of the History of International Law 55–68. 50. Self-Defence and International Terrorism (2005) 48 Scandinavian Studies in Law 203–213. 51. Protection of the Environment During Armed Conflict in Rachel Carrell and Hugh Wilkins (eds), Dialogue Among Civilizations Bulletin: A Summary Report of the International Conference on Environment, Peace, and the Dialogue among Civilizations and Cultures, International Institute for Sustainable Development (2005) 108(1). 52. Environmental Protection and Free Movement of Goods, Cases C-463/01 and C-309/02 (Miljöskydd och fri rörlighet av varor, mål C-463/01 och C-309/02) (2005) 8 Europarättslig tidskrift 535–544. 53. Capri Marine Ltd v Chief State Prosecutor – Swedish Supreme Court decision on jurisdiction to impose pollution fees on owners or operators of ships operating in the exclusive economic zone (2005) 99 American Journal of International Law 472–478. 54. The International Use of Force under International Law (Inter­ nationell   våldsanvändning och folkrätt) with Ove Bring (Norstedts juridik 2006). 55. Integration of Environmental Considerations into Transport in Richard Macrory (ed), Reflections on 30 Years of eu Environmental Law: A High Level of Protection? (Europa Law Publishing 2006) 183–195. 56. Environmental Protection and Intra-Community Free Trade in Pour un droit commun de l'environnement: Mélanges en l´honneur de Michel Prieur (Dalloz 2007) 767–776. 57. International Law in Transition (Folkrätt i omvandling) in Claes Peterson (ed), Juridiska fakulteten 1907–2007: En minnesskrift (Juridiska fakulteten, Stockholms universitet 2007) 314–335. 58. Grisbadarna Case in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2008). 59. Gut Dam Claims in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2008). 60. Kronprins Gustaf Adolf and Pacific Arbitration in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2008).

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61. Transit Passage in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2008). 62. The Second Lebanon War: Reflections on the 2006 Israeli Military Operations against Hezbollah in Law at War: The Law as it Was and the Law as it Should Be, Liber Amoricum Ove Bring (Martinus Nijhoff Publishers 2008) 175–190. 63. Public International Law as a Legal Science: Reflections on the Swedish Reaction to the Crisis in Georgia (Folkrätt som rättsvetenskap: reflektioner över Sveriges ställningstagande i Georgienkrisen) (2008) 20 Juridisk Tidskrift 985–989. 64. European Union Energy and Environmental Policies: Possibilities and Limitations of the Integration Principle (Energipolitikens miljöanpassning inom eu – integrationsprincipens möjligheter och begränsningar) in Per Cramér, Sverker Gustavsson and Lars Oxelheim (eds), eu and the Global Climate Problem, The eu Perspective (eu och den globala klimatfrågan) (Santérus förlag 2008) 107–135. 65. New Technologies and Law of the Marine Environment (2009) 39 Environmental Policy and Law 87–90. 66. Organization of the Islamic Conference (oic) in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2010). 67. Documents in International Law (Folkrättsliga texter) (Norstedts juridik, 1st edn 2006, 2nd edn 2008, 3rd edn 2011). 68. eu Environmental Law (eu:s miljörätt) with David Langlet (Norstedts juridik, 1st edn 1995, 2nd edn 2003, 3rd edn 2011). 69. Sweden and International Law (Sverige och folkrätten) with Ove Bring and Pål Wrange (Norstedts juridik, 1st edn 1997, 2nd edn 2001, 3rd edn 2007, 4th edn 2011). 70. Islam and Human Rights – Some Reflections in Festskrift till Pär Hallström (Iustus förlag 2012) 243–256. 71. Islamic Approach to International Law in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2012). 72. Swedish Courts and the Question of Immunity (Immunitet i svenska domstolar) in Rebecca Stern and Inger Österdahl (eds), International Law in Swedish Courts (Folkrätten i svensk rätt) (Liber 2012) 165–187. 73. State Immunity: A Swedish Perspective in International Courts and the Development of International Law: Essays in Honour of Tullio Treves (tmc Asser Press 2013) 77–89.

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74. The Baltic Straits in David D Caron and Nilufer Oral (eds), Navigating Straits: Challenges for International Law (Brill Nijhoff 2014) 125–137. 75. Editor to and Introduction in Hans Blix and the World Order: A Liber Amoricum (Hans Blix och världsordningen – En vänbok) (Jure förlag 2014) 5–10. 1.

2.

Contributions to Swedish Government Official Reports (sou) The Legal Protection of the Marine Environment of the Baltic Sea and the North Sea: Applicable International and European Rules (Det rättsliga skyddet av den marina miljön i Östersjön och Nordsjön: Gällande internationella och europeiska regler) with David Langlet, sou (Swedish Government Official Reports) 2008:48 ‘En utvecklad havsmiljöförvaltning’, Annex 4, 441–531 (Fritzes 2008). Planning the Swedish Marine Areas – Possibilities and Limitations According to International Law and eu Law (Planering av Sveriges havsområden – de folkrättsliga och europarättsliga möjligheterna och begränsningarna) with David Langlet, sou (Swedish Government Official Reports) 2010:91 ‘Planering på djupet – fysisk planering av havet’, Annex 2, 415–468 (Fritzes 2010).

About the Contributors Ove Bring Professor Emeritus of International Law at Stockholm University (su) and the Swedish National Defence College (sndc). Former Professor of Public International Law at Uppsala University (uu) and before that Legal Adviser at the Swedish Ministry for Foreign Affairs (mfa). Main areas of expertise include diplomatic protection of foreign investment, the law of the un Charter, peace keeping operations, the law of neutrality and occupation, international humanitarian law of armed conflict, international criminal law and human rights. Iain Cameron is Professor in Public International Law at the University of Uppsala, where he teaches international law and constitutional law. He was previously lecturer in public law at the University of Hull. His research interests lie in human rights/ civil liberties, international criminal law and international police/security cooperation. He has served as an expert to a number of Swedish government commissions of inquiry proposing legislation and written major reports for the Swedish government, the Council of Europe and the European Parliament on targeted sanctions. Since 2005, he has been one of the two Swedish members of the Commission on Democracy through Law (Venice Commission, the advisory body of the Council of Europe on constitutional law and international law). Hans Corell Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations 1994–2004. Ambassador and Under-Secretary for Legal and Consular Affairs in the Swedish Ministry for Foreign Affairs 1984–1994. Legal Adviser (1972–1979), Director (1979–1981), and Chief Legal Adviser (1981–1984) in the Ministry of Justice. Service in the Swedish Judiciary 1962–1972, the last four and a half years as Assistant District Court Judge at Västervik District Court. Appointed Judge of Appeal in 1980. Per Cramér is full Professor of International Law and holds the Jean Monnet Chair in European Integration Law at Göteborg University. He was director of the Centre for European Research, cergu 2005–2009 and is, since 2010, Dean for the School of Business, Economics and Law at the University of Gothenburg. Professor Cramér is a member of the board of the Swedish Institute for European Policy Research, sieps and the efmd Steering Committee. His main areas of

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research concern the external identity of the European Union. He has recently concluded a four-year joint research project analysing the development of regulation for the handling nuclear waste and spent nuclear fuel in the eu. Jonas Ebbesson is Professor of Environmental Law and Dean of the Faculty of Law, Stockholm University. He is also Chairperson of the Aarhus Convention Compliance Committee, and Director of Stockholm Environmental Law and Policy Centre. His research interests include public participation in decision-making and access to justice in environmental matters, environmental responsibility of trans­national corporations, the impact of law on the resilience of social-ecological systems, and justice considerations in environmental law and policy. Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Research Fellow, Orfalea Center of Global Studies. He was also the United Nations Special Rapporteur on Palestinian human rights 2008–2014. He has served as a member of the Human Rights Inquiry Commission for the Palestine Territories appointed by the United Nations and on the Independent International Commission on Kosovo. His most recent book is (Re)Imagining Humane Global Governance. David I. Fisher is Professor of International Law at the Faculty of Law, Stockholm University. He has particularly taken an interest in human rights in East Asia. Pär Hallström is Professor of Law Emeritus at the department of law of Umeå University. He has previously been at Copenhagen Business School and Stockholm University. His main research and publications are within the fields of European Law, Public International Law (wto), and Human Rights Law. Marie Jacobsson is Ambassador and the Principal Legal Adviser on International Law at the Swedish Ministry for Foreign Affairs (mfa). She is an Associate Professor of International Law at Lund University, Sweden and, since 2007 a Member of the United Nations International Law Commission (ilc). The focus of her work at the Ministry for Foreign Affairs is on international peace and security matters, international humanitarian law, law of the sea, polar law, boundary delimitation and regional security affairs.

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About the Contributors 

Mark Klamberg (lld, llm) is a senior lecturer at Uppsala University and fellow at Stockholm Center for International Law and Justice (scilj). He has previously been a lecturer at Stockholm University. He is the author of several publications on international criminal law and electronic surveillance law. He has also taken interest in issues relating to use of force, human rights and refugee law. Timo Koivurova is a Research Professor and the Director of the Northern Institute for Environmental and Minority Law, Arctic Centre/University of Lapland. He is also a Docent of International Law at the Faculty of Law, Economics and Business Administration/University of Eastern Finland and at the Faculty of Law/University of Turku. Timo Koivurova has specialized in various aspects of international law, especially those pertaining to environmental protection and resource exploitation, indigenous peoples and human rights law in general, maritime issues and the Arctic. He has been involved as an expert in several international processes globally and in the Arctic region and has published on the above-mentioned topics extensively. Abdul G. Koroma is a former Judge of the International Court of Justice (icj) (1994–2014). He is a member of the Institute of International Law. He is a very senior and leading international lawyer and arbitrator. He has served as the Chairman of the un General Assembly 6th Committee (Legal); a member of the International Law Commission, which he has chaired; the Ambassador of Sierra Leone to the United Nations and to several countries; as well as on a broad range of other prominent international bodies and organisations. He is an honorary bencher of Lincoln's Inn. David Langlet is currently on leave from a position as associate professor at Stockholm University to hold the 2013–2014 Stockholm Research Fellowship at the Faculty of Law and Christ Church College in Oxford. He has previously been senior lecturer at the School of Business, Economics and Law, Univer­ sity of Gothenburg. David’s research spans a number of topics in the areas of environmental and energy law, law of the sea, and international economic law. He has particularly taken an interest in issues relating to trade in hazardous substances, energy efficiency and energy infrastructure, carbon capture and storage (ccs), and sustainable management of natural resources.

About the Contributors

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Phoebe Okowa is Reader in Public International Law at Queen Mary University of London. She has previously taught at the University of Bristol and in 2011 she was a Global Visiting Professor at New York University, School of Law. Okowa is the joint editor of Foundations of Public International Law (Oxford University Press) and the Queen Mary Studies in International Law (Brill). She has published extensively on a wide range of topics in public international including the law on state responsibility, use of force, and the protection of natural resources in conflict zones, as well as the relationship between state and individual responsibility in the field of international criminal law. Tullio Scovazzi is Professor of international law at the University of Milano-Bicocca, Milan, Italy. He occasionally acts as legal advisor of the government of Italy or the secretariats of international agreements in meetings and negotiations relating to human rights, law of the sea, cultural properties. Dinah Shelton Manatt/Ahn Professor of International Law, the George Washington University Law School; Member, Inter-American Human Rights Commission (2010–2014); President, iachr (2011). Former professor and director of the doctoral program, Center for Civil and Human Rights, Notre Dame Law School. Widely published in areas of public international law, human rights, and international environmental law. Ilaria Tani is an Italian attorney and doctor of research from University of Milano-Bicocca, Milan, Italy. She occasionally participates as legal advisor of the government of Italy or the secretariats of international agreements in meetings and negotiations relating to the law of the sea. Geir Ulfstein is Professor in International Law and Deputy Director of the Pluri­ Courts   Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo. Ulfstein has previously been the director of the Norwegian Centre for Human Rights. His interests include environmental law, international courts, human rights and international trade law.

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About the Contributors 

Pål Wrange (PhD, llm) is Professor of public international law at Stockholm University and the director of the Stockholm Centre for International Law and Justice. He previously served as principal legal advisor at the Swedish Ministry for Foreign Affairs. He has been a visiting scholar and fellow at Harvard Law School and at the European University Institute. Inger Österdahl is Professor in Public International Law at Uppsala University. She is a member of the International Law Association’s Committee on the Use of Force and a member of the editorial board of the Nordic Journal of International Law. Her research has mainly concerned the international use of force, humanitarian law, human rights, international organizations, constitutional eu law and national constitutional law. Inger Österdahl is currently, 2013–2016, holding a programme professorship devoted to issues of transparency, integrity and democracy. During 2014 Inger Österdahl is director of the Swedish Institute of International Law at the Faculty of Law at Uppsala University.

The Use of Force under the un Charter

Modification and Reform through Practice or Consensus Ove Bring

Part of the present contribution was originally written within the context of a Study Group of un Reform, established by the International Law Association (ila). A brief paper was presented at the Seventy-Fourth Conference of the ila in The Hague (2010). A slightly revised version was presented at the SeventyFifth ila Conference in Sofia (2012). Members of the Study Group were at that point encouraged to update their contributions outside the ila context and within their own academic networks. Since Said Mahmoudi and myself share an analytical interest in the law of the United Nations Charter, the idea struck me that I could usefully carry out such an update within the framework of the planned ‘Festschrift’ to Said. And here it is. International customary law on the use of force coincides to a substantial extent with the relevant provisions of the United Nations Charter. The purpose of the following text is not to address the un Charter law on the use of force as such, but to indicate how that law has been clarified or modified through the practice of un member states and un organs over time, and to suggest that modification through practice or consensus can happen again. Under the terms of the un Charter the use of force between States is severely circumscribed as a legal option. The use of force-prohibition of article 2(4) should, according to a majority opinion, be given an extensive interpretation yielding an absolute prohibition. However, under other provisions of the Charter there would be two exceptions available: (1) the right to individual or collective self-defence under article 51; and (2) the right to act, individually or collectively, on the basis of a Security Council decision under Chapter 7. Another, restrictive and liberal interpretation of the 2(4) prohibition was put forward during the cold-war-era by a number of Western lawyers. It was restrictive in the sense that it restricted the scope of the use of forceprohibition; and it was liberal in its approach to unilateral action. It was argued that a ‘contextual’ reading of article 2(4) would allow unilateral or regional military interventions (humanitarian, pro-democratic or others) which are not directed against another State’s ‘territorial integrity or political independence’, or ‘in any other manner inconsistent with the Purposes of the United Nations’, to use the language of the provision.1 This position is now a minority view 1 Eg Anthony D’Amato, International Law: Process and Prospect (Transnational Publishers 1987) 58f.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004274587_002

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amongst commentators. During the Kosovo intervention of 1999 the debate shifted from contextual rights to universal values; the issue of human rights protection generated the tentative ‘illegal but legitimate’ approach of writers like Simma, Cassese and Franck.2 The underlying thrust of this approach is the notion that international law is not static and that its dynamic potential could result in a value-oriented development from political legitimacy to formal legality. As a matter of fact, the practice of States responds to evolving realities and history has proven that a static vision of the law of the un Charter is untenable.3 The following notes will summarize relevant developments in the past and touch upon the prospects for change in the future.4 1

Modification Developments Since 1945

The law as it was understood in San Francisco has been modified over the years by the institutional practice of the Security Council followed by acceptance of this practice by un member States. In other words, the Council’s handling of a certain situation in concreto has been followed by a state practice in abstracto (through acquiescence or normative statements in the un or other international fora). In some cases events have taken place in reverse order and the concrete practice of some member States has been followed by acceptance by the Security Council. Since in the past state practice (within and without the Security Council) has brought about changes to the law of the un Charter; this could happen again. 2 Bruno Simma, ‘nato, the un and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1; Antonio Cassese, ‘Ex injuria jus oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Measures’ (1999) 10 European Journal of International Law 23. See also Thomas M Franck, ‘Lessons of Kosovo’ (1999) 93 American Journal of International Law 857. 3 Cf the approach of the New Haven school based upon the description of international law ‘as a process of continuous interaction, of continuous demand and response, in which the decision-makers of particular (…) states unilaterally put forward claims (…) and in which other decision-makers (…) weigh and appraise these competing claims in terms of the interests of the world community and of the rival claimant, and ultimately accept or reject them’. Myres McDougal, ‘The Hydrogen Bomb Tests’ (1955) 49 American Journal of International Law 354. 4 Cf in this context Niels Blokker and Nico Schrijver (eds), The Security Council and the Use of Force, Theory and Reality: A Need for Change? (Martinus Nijhoff 2005); Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press 2005).

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Any formal amendments of the Charter concerning the use of force are highly unlikely as a matter of politics, bearing in mind the veto power of the P5 Security Council members. The only form of legal development that seems possible is through state practice, implying an adaptation to evolving needs in line with the purposes of the United Nations. The first Charter modification occurred as early as the period 1946–1950 and concerned ‘the concurring votes’ requirement of article 27(3). A former legal adviser at the us State Department has noted that in 1946, and consistently thereafter, abstentions were treated as ‘concurring votes’. Valid Security Council decisions could materialize irrespective of whether a permanent member of the Council ‘abstained, declined to vote, or was absent’.5 The icj confirmed the new legal situation regarding abstentions in 1971.6 This ‘informal amendment’ has made it easier to authorize the use of force, as was seen at the outbreak of the Korean War in 1950 and after the Iraqi invasion of Kuwait in 1990. A further development was the adoption of the Uniting for Peace resolution of November 1950. This was planned as a recommendatory mechanism for the General Assembly when the use of force was perceived as needed, but has not really been used to bypass (or supplement) the exclusive enforcement competence of the Security Council. The present status of Uniting for Peace, in terms of enforcement action, is unclear. It may constitute a dormant procedure, an option which could be revived at any time. The concept of peacekeeping was introduced during the Suez crisis in 1956. The then Secretary-General Dag Hammarskjöld and his entourage looked upon it as a development under the unwritten Chapter 6½ of the un Charter. It was recognized that peacekeepers could use their weapons in individual self-defence; from 1973 units could also use force to protect the purposes of their mandate, so called mission defence. In 1960, during the peacekeeping operation in the Congo and in the face of slaughter of civilians, Hammarskjöld ordered an immediate ‘humanitarian intervention’ by onuc, although the 5 Michael J Matheson, Council Unbound, the Growth of un Decision Making on Conflict and Post Conflict Issues after the Cold War (us Institute of Peace Press 2006) 21, 330. See also Bruno Simma (ed), The Charter of the United Nations: A Commentary (2nd edn, Oxford University Press 2002) 493–501. 6 The Hague Court noted that the P5 had ‘consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions’. Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] icj Reports 4, 10.

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mandate had not foreseen the eventual need for this and consequently made no mention of the issue.7 The absence of article 43 agreements (member States providing the Council with standing armed forces) means that the Council cannot fulfil the independent and centralized function expressly prescribed for it in the Charter. Article 42, presuming operative political and military leadership by the Council, could not be used during the Korean War or the Gulf War of 1991; its ideal did not reflect reality. Article 42 was too ambitious. In Resolution 687 of November 1990, the Council authorized a coalition of the willing to ‘use all necessary means’ to restore peace and security in the area. The mandate to liberate Kuwait was in effect based upon the unwritten and less ambitious article 41½. In 2001 the terrorist attacks of 9/11 were characterized by the Security Council (in two resolutions) as a threat to international peace and security. The right to individual or collective self-defence under article 51 was confirmed (generically) in that context. The Council later received a report from the usa and the uk, as required by article 51, on their military action against targets in Afghanistan. The Council took note of the report in a way that strongly suggested recognition, under article 51, of the legality of the action taken. The President of the Council summarized the situation thus: ‘The members of the Security Council were appreciative of the presentations made by the United States and the United Kingdom’.8 Article 51 does not exclude actions in self-defence against non-State actors (cf the Caroline case9), but its wording does not allow military measures in response to attacks that have ceased. However, in relation to large-scale terrorist attacks, an interpretation of article 51 that restricts the use of force in self-defence to the time during which the attack is in progress, ‘hardly accords with reality and would leave the target State powerless’.10 It could be argued that the United States was subject to a continuous and ongoing attack (Washington argued ‘an ongoing threat’) which was part of a larger hostile plan and that, consequently, the military response was not, in essence, an ex post facto response. 7

8 9 10

As Hammarskjöld put it in a statement before the General Assembly on 17 October 1960: ‘You try to save a drowning man without prior authorization’. See Ove Bring, ‘Dag Hammarskjöld and the Issue of Humanitarian Intervention’ in Jarna Petmann and Jan Klabbers (eds), Nordic Cosmopolitanism, Essays in International Law for Martti Koskenniemi (Martinus Nijhoff 2002) 515. unsc Presidential Statement 67 (2001) un Doc S/PRST/2001/67. The Caroline Case (1837) 29 British and Foreign State Papers 1137; 30 British and Foreign State Papers 195, 314. Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press 2005) 192.

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In this case the Council seemed to have legitimized a new and flexible interpretation of article 51, adding the possibility of ongoing preventive self-defence against large scale international terrorism (an article 51 plus). Another possibility is that the Council acted sui generis and expressed a one-off view on the facts with no precedential significance. The Council’s position, however it was interpreted, was confirmed by a general attitude of acquiescence in the international community. However, in 2004, when the icj delivered its Advisory Opinion on the Israeli Wall in Palestine,11 it seemed to confirm a traditional strict interpretation of article 51, as did the un High-level Panel Report the same year.12 When the icj touched upon the question of non-State actors in Congo v Uganda in 2005, it saw no need to clarify the issue ‘whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces’.13 The vagueness of the legal situation has to be clarified through state practice, but it is clear that some development in terms of self-defence against terrorism has taken place after 9/11. At the same time, it is clear that neither state practice nor opinio juris has licensed any doctrine of pre-emptive war against international terrorism or, for that matter, against states developing weapons of mass destruction (wmd). 2

Further Clarifications and/or Modifications?

In its Advisory Opinion on the Israeli Wall the icj seemed to suggest that, under article 51, self-defence is only allowed against an armed attack carried out by another state. The formulation in question was not completely clear and seemed incomplete. It was linked to the issue of occupied territory and reached without reference to cases where a non-state actor conducts an armed attack from the territory of a sovereign state. Judge Buergenthal, in his declaration, and Judges Higgins and Kooijmans, in their separate opinions, objected to the majority formulation. The general assessment in legal doctrine seems to be that States legitimately treat the law of self-defence as being applicable to acts by non-State actors.14 11 12 13 14

Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] icj Reports 4 [138]. United Nations, A More Secure World: Our Shared Responsibility: Report of the High-level Panel on Threats, Challenges and Change (United Nations 2004) 63. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] icj Rep 4, Judgment of 19 December 2005, para 147. Eg Thomas Franck, ‘Terrorism and the Right of Self-defense’ (2001) 95 American Journal of International Law 839.

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In 2007 the icj majority view, in its strictest interpretation, was quietly challenged by State practice in the conflict between Turkey and the non-State actor pkk (the Kurdistan Workers’ Party). pkk incursions into Turkish territory from bases in Iraqi Kurdistan highlighted the issue of non-state actors and the use of force in self-defence. The Turkish right of trans-border self-defence against pkk was not denied by other States, although a large-scale Turkish invasion would probably be condemned as a violation of the proportionality requirement of self-defence. The prognosis is that, irrespective of this particular case, state practice will clarify the legal situation in a manner at variance with the icj Wall opinion and more in line with the 2001 view of the Security Council. The use of force in traditional peace keeping operations has, during the last decade, undergone some progressive developments. These include specific mandates to protect civilians (armed intervention ad hoc) and the delivery of aid (humanitarian assistance). For example, in the case of Liberia, the mandate of unmil in Security Council Resolution 1509 (2003) includes protecting civilians ‘under imminent threat of violence’.15 The peacekeepers are mandated to use force in defence of others. But even in the absence of such specific formulations in a mandate, armed protection of civilians could possibly be considered an option under un peacekeeping doctrine and the evolving institutional law of the world organization. All the same, there are indications that the current practice of robust protective mandates will lead to peace operations where civilians are benefitting from an increased willingness to protect. However, at times robust mandates could be problematical since they tend to blur the distinction between peacekeeping and peace enforcement.16 Some Security Council Members are more keen than others on preserving the distinction and most of them would like to know exactly what they are mandating. What exactly did the Security Council agree upon with regard to Libya in Resolution 1973 (2011)?17 There was agreement on aerial military intervention, on coercion to protect civilians, but regime change was excluded as an object and purpose of the nato led operation. How would the need to protect the civilian population be balanced against the need to protect (in the view of some states) national sovereignty exercised by the existing government? 15 16

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United Nations Security Council (unsc) Res 1509 (19 September 2003) un Doc S/RES/1509 (2003) preamble. Cf Ralph Zacklin, ‘The Use of Force in Peacekeeping Operations’ in Niels M Blokker and Nico Schrijver (eds), The Security Council and the Use of Force, Theory and Reality – A Need for Change? (Martinus Nijhoff 2005) 106. unsc Res 1973 (17 March 2011) un Doc S/RES/1973.

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The text of the resolution presumed that a dialogue would be conducted with the beleaguered regime of Colonel Quadaffi, but the outcome of Operation Unified Protector was regime change. Resolution 1973 was historical in the sense that it was the first time an operative Security Council resolution recognized and confirmed the new formula of Responsibility to Protect (R2P). The effect and end result of this was support to both human rights and armed rebellion. This was too much to swallow for two of the Permanent Five. The R2P formula could not be used again with regard to Syria the following year. 3

Responsibility to Protect

In September 2005, at the World Summit in New York, Governments agreed on a reform agenda for the un. Somewhat surprisingly, there was agreement on the inclusion of the concept of the Responsibility to Protect in the Outcome Document.18 R2P was addressed in paragraphs 138–139, in the chapter on human rights and the rule of law (not in the chapter on collective security and the use of force): 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes (…). 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapter VI and VIII of the Charter, to help to protect populations from genocide (…) In this context we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations (…) Thus, the phrasing of the responsibility to react is circumventive and cautious. The text lacks any openings for regional organizations to act on their own, should the Security Council be unable or unwilling to protect ‘human security’, the concept that is recognized in paragraph 143 of the Outcome Document. 18

The World Summit Outcome, unga Res 61/1 (24 October 2005) un Doc A/RES/60/1.

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Again, paragraph 143 is written in language that circumvents the hard issues on when and how to protect, if sovereign States do not use their sovereignty to protect their own populations. In fact, there is only mention of a role for the General Assembly in this context. There is no linkage to the R2P paragraphs nor to the role of the Security Council. In the Report of the Secretary-General of 2009 on ‘Implementing the responsibility to protect’ the language was again very cautious as to the possible use of force.19 In the section on ‘timely and decisive response’ it was noted that a precondition for collective ‘non-peaceful’ action was a finding that peaceful measures were inadequate. This issue, as it relates to article 42 of the un Charter, was referred to in a footnote of the Report.20 The footnote clarifies the use of force option in a way that was not possible to achieve in paragraph 139 of the Outcome Document. Of course, more clear-cut and forceful language could not be expected from any kind of diplomatic negotiation where the values of sovereignty and human rights are pitched against each other, where the spectre of intervention looms over what is perceived as the territorial integrity and national sovereignty of States. At the same time, it is important to point out that R2P does not introduce any new norms of international law. Individual states already have fundamental human rights obligations towards their own populations; and the Security Council, under article 24 of the Charter, already has a ‘primary responsibility’ for the maintenance of international peace and security, including human security as a consequence of modern developments in un practice. Thus, the ‘responsibility to react’ element of R2P works as an operational guidance for the Security Council, it does not indicate a new norm of substance. The Council always has the right to intervene against serious threats to human security. However, new normative developments could not be excluded. The ‘responsibility to react’ element of R2P harbours the embryo of a right to regional humanitarian intervention, should the un Security Council remain passive in a developing humanitarian crisis. As in Kosovo, the argument of necessity may play a role in hard politics. With regard to developments in Sierra Leone there 19 20

unga, ‘Implementing the Responsibility to Protect. Report of the Secretary-General’ (12 January 2009) un Doc A/63/677. Footnote 9 quotes the opening wording of art 42: ‘should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate (…)’ The text concludes that Member States at the World Summit 2005 accepted that the Security Council ‘should not wait until all other possible tools had been tried and had failed before considering more robust collective measures’. ibid (n 19).

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is an example of ecowas-ecomog military action where Security Council approval only materialized ex post facto.21 A development in regional State practice towards an article 53 minus (minus the requirement of Security Council approval for enforcement action) could materialize as a corollary to the Uniting for Peace mechanism. One could expect the argument that if the Council does not live up to its Charter responsibilities to protect, regional bodies would have to act instead. After all, regional organizations have a special role in the collective security system of the un Charter. This is not to say that such a development would not be problematical. It would lead to political divides and tensions. Different views on the relationship between sovereignty and intervention would surface and a further fragmentation of international law would threaten. Would this be an acceptable price to be paid for better protection of human rights? It has been argued that international law could not accommodate a legitimization of ‘humanitarian intervention’ since the use of force-prohibition of article 2(4) is a peremptory norm, jus cogens. No deviations would be possible. The counter-argument, put forward by some scholars, is that only the core content of the rule, ie pure aggression, constitutes jus cogens.22 That argumentation implies a distinction between aggressive purposes and other more benign purposes (to save a State’s own nationals or civilians in general). 4

Cyber Warfare

The new matter of cyber warfare has triggered a lot of conferences, thinking and analysis in a number of academic fields. The international law discussion has mainly focussed on the perspectives of jus ad bellum (the law on resort to the use of force) and jus in bello (the law on behaviour in warfare). We are here not concerned with the latter issue of international humanitarian law (ihl) or the law of armed conflict (loac), but only with the jus ad bellum issue and the attention it has attracted in the literature.23 In fact, a better expression would 21 22 23

unsc Res 1162 (17 April 1998) un Doc S/RES/1162. Lauri Hannikainen, Peremptory Norms ( Jus Cogens) in International Law (Finnish Lawyers’ Publishing Company 1988) 326–340. Early examples are Michael N Schmitt, ‘Computer Network Attacks and the Use of Force in International Law: Thoughts on a Normative Framework’ (1999) 37 Columbia Journal of International Law 885; Walter Gary Sharp, Cyberspace and the Use of Force (Aegis Research Corporation 1999). Also in 1999 the us Naval War College conducted a Symposium on cna and International Law in Newport, Rhode Island, which was later documented in the so called Blue Book series. See in this context contributions by Daniel B Silver, ‘Computer

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be the issue of jus contra bellum, since the purpose of the relevant rules is not the right to wage war, but rather its prohibition. The question then, for our purpose, is how the relevant parts of the un Charter should be interpreted when related to the new phenomenon of cyber operations and (more specifically) computer network attacks (cna). How should the use of force prohibition, the right of self-defence and the interventionist role of the Security Council be assessed when related to the new technology. The following notes more or less correspond to my paper forwarded to the Dubai Seminar on Legal Aspects of Cyber Security of December 2012, a seminar which was arranged by Said Mahmoudi in cooperation with the Dubai Center for International Law Studies. The first issue to be addressed is whether a computer network attack can violate the use of force prohibition of article 2(4) of the Charter, and, if so, when? Article 2(4), of course, is applicable to State behaviour. At the moment, however, the problem of cyber attacks by private individuals and non-State actors (‘hackers’) against Government web sites may be more pressing than the use of cna as an instrument of hostile action by one State against another. Whether cna actually has been used as an instrument of State action is uncertain, but suspected cases are the possible Russian attack against Estonian institutions in 2007, the Stuxnet operations against Iranian centrifuges in 2010, and the possible Iranian attack against Aramco Saudi Arabia through the virus Shamoom in 2012. These attacks could have been State sponsored, even if not conducted by State officials. The difficulty of attributing cna to State action will often be considerable. From a legal point of view, the initial question is to what extent the peacetime use of cna by a State can be characterized as a prohibited ‘use of force’ under article 2(4)? It seems that certain applications are likely to be held to constitute force under the provision, but many other applications are likely not to. But even if ‘force’ is not the appropriate description, an interventionist

Network Attack as a Use of Force under Article 2(4) of the United Nations Charter’, Yoram Dinstein, ‘Computer Network Attacks and Self-defense’, and Horace B Robertson, ‘SelfDefense against Computer Network Attack under International Law.’ All three in Michael N Schmitt and Brian O’Donnell (eds) (2002) 76 International Law Studies. See also the conference volume published by the Swedish National Defence College, Karin Byström (ed), International Expert Conference on Computer Network Attacks, Stockholm, 17–19 November 2004, Proceedings of the Conference (Swedish National Defence College 2005). This volume includes jus ad bellum-perspectives by Thomas C Wingfield and Michael Bothe. A recent contribution is ‘Part I Jus ad bellum’ in Heather Harrison Dinnis, Cyber Warfare and the Laws of War (Cambridge University Press 2012).

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State behaviour could be prohibited under international law anyway, under the general principle of non-intervention,24 but in that case the behaviour in question would probably be seen more as a computer network ‘disturbance’ than an attack. The genuine cna scenario boils down to the question whether a specific cyber operation causes damage which in its effects is equivalent to that caused by military force (through explosive or kinetic energy). If there is extensive property damage, structural damage, or if people are killed, the action should be seen as a prohibited use of force. If there is less substantial damage the action should probably be categorized as unlawful intervention. The matter has to be analysed on a case-by-case basis. The Draft ‘Tallinn Manual’ of 2012 on the International Law Applicable to Cyber Warfare states in its Rule 11: A cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force.25 The phrase ‘scale and effects’ is drawn from the icj Nicaragua Judgment of 1986,26 where the Court discussed the thresholds for use of force and armed attack. However, an analysis on a case-by-case basis does not automatically clarify whether the attacker is a State or a private actor. But a substantial severity of consequences and immediacy of effects could, together with other circumstances, strongly indicate a guilty State actor.27 24

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The 1970 un Friendly Relations Declaration, expressing principles of international law, refers inter alia to ‘the principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter’. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. United Nations General Assembly (unga) Res 2625 (24 October 1970) un Doc A/RES/2625(XXV) (The 1970 Friendly Relations Declaration). The resolution was adopted without a vote. Michael N Schmidt (ed), ‘The Tallinn Manual on the International Law Applicable to Cyber Warfare’ (Prepared by the International Group of Experts at the Invitation of The nato Cooperative Cyber Defence Centre of Excellence, Cambridge University Press 2013). Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] icj Rep 4, Judgment of 27 June 1986 (The Nicaragua case). The factors of severity, immediacy, directness and others have been introduced by Schmitt in 1999 (n 23) as indicators for the existence of a use of force. Some of these factors are also relevant for the assessment of attribution.

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Irrespective of how the affected State or the international community will assess the issue of guilt, the legal norms in question are clear: States are prohibited to intervene in the affairs of other States by means of computer technology, and they are prohibited to attack other States by the same means. States finding themselves as victims of such behaviour may always respond with peaceful countermeasures. If the cna amounts to ‘an armed attack’ against a State as such, and consequently article 51 of the Charter is applicable, the affected State has the right to respond with military force. The right of individual or collective self-defence is not triggered by any use of force prohibited under article 2(4), but only by such use that amounts to ‘an armed attack’. The International Court of Justice distinguished in the Nicaragua case between low level use of force (as equipping and training rebels) and ‘an armed attack’ (requiring substantial physical damage, injury to human beings or threat of vital national interest).28 The 2012 Draft ‘Tallin Manual’ recognizes the right of self-defence in the cyber context and states that ‘[w]hether a cyber operation constitutes an armed attack depends on its scale and effects’ (rule 13). In the first instance, the targeted State will decide for itself whether a cna constitutes an armed attack in the article 51 sense. A severe cyber attack against the national financial system or the national communication structures will probably be seen as legitimizing a military response. The Security Council can overrule such a decision of the target state, but it cannot exclude flexible bona fide interpretations in this regard. In certain situations there is no difference, as to severity of consequences, between an electronic and a kinetic attack. Yoram Dinstein has suggested a limited response of self-defence against a cyber attack, namely recourse to defensive armed reprisals.29 Instead of an immediate counterattack against what may only be the probable source of the cna (the actual source being difficult to verify), the defender could undertake (and delay) forcible countermeasures at different times and places. Through such measured response a full scale war should be avoided. It would give the attacked state an opportunity to review the facts (and determine culpability) while considering options for response. Dinstein points out that ‘defensive armed reprisals against a cna can be performed kinetically even though the original armed attack (justifying them) was executed electronically, and vice versa’. It goes without saying that, in case of a traditional armed attack, the 28 29

Nicaragua case (n 26) 14, 118–119. Yoram Dinstein, ‘Computer Network Attacks and Self-Defense’ in Schmitt and O’Donnell (eds) (n 23) 108.

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defender can choose to respond by electronic means only. Whatever the choice, in all situations, the principle of proportionality will apply. According to article 51 measures taken in self-defence by un Members ‘shall be immediately reported to the Security-Council’. The Council could then, in one way or another, accept the measures as a genuine exercise of self-defence, or abstain from such legitimization. In either case, the Council, in the wording of article 51, retains ‘the authority and responsibility’ to take such action as it deems necessary ‘in order to maintain or restore international peace and security’. This is a confirmation of the overriding importance of article 39 of the Charter according to which the Council should act upon ‘any threat to the peace, breach of the peace, or act of aggression’. The term ‘aggression’ is a much broader and looser term than ‘armed attack’. A computer network attack could more easily be labelled as aggression than as armed attack in the article 51 sense. The Council could then assist the victim of a cna with any means at its disposal (electronic or military) already in a situation which does not amount to an armed attack. Another scenario under article 39 could be the following. The Council may regard the military measures taken by a State in alleged self-defence against ‘cyber aggression’ as an overreaction in the circumstances at the time. The situation would, irrespective of who is basically the ‘good’ or ‘bad guy’, clearly constitute a threat to international peace and security. The Council could then decide on sanctions against the overreacting State, and perhaps also against the other State. Again, if the Council has electronic means at its disposal (eg through of one of the Permanent Five) it could choose to use them. The possibility of Security Council decisive action has been overstated in this theoretical discussion, but the possibility of the un Charter being interpreted as applicable to computer network attacks has not been overstated. The world may have experienced a few cases of state sponsored cnas, but so far we have no responding State practice in this field. Nevertheless we do have an emerging consensus in the international community that the un Charter is applicable to cyber warfare. This paper has clearly indicated that the law of the un Charter is not static but dynamic. The Charter has a potential to respond to new developments and meet new regulatory needs of the international community. But Member States have – through their positions and practice – to be part of any interpretative process, if the end result of such a process should be recognized as legally relevant.

Regulating Private Military and Security Companies Iain Cameron Introduction Said Mahmoudi has over the years devoted much attention, as diplomat, teacher and researcher, to different aspects of international law. His publications have covered wide areas, though he has shown a special interest in international environmental law and the law of the sea. In line with the theme of the present festschrift to Said, changing conceptions of security, I will deal with a topical subject, namely the issue of regulating private military and security companies (pmscs).1 I became interested in this subject in 2009 when the Venice Commission was asked by the Parliamentary Assembly of the Council of Europe (pace) to analyse the feasibility of drafting a treaty for Council of Europe states to regulate private military companies.2 There are three ways of regulating pmscs – through international norms, self-regulation and national norms. I will begin by sketching out the legal problems involved in drafting a treaty to regulate pmscs. These are considerable, and no such treaty has yet been adopted for signature, although a un working group discussing the issue of mercenaries produced the draft of a treaty designed to regulate pmscs in 2010.3 1 International Committee of the Red Cross, ‘The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict’ (Montreux Document) 2008   accessed 21 February 2014, of which more below, defines private military and security companies as ‘private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.’ (Preface (9)(a)). 2 European Commission for Democracy Through Law (Venice Commission), ‘Report on Private Military and Security Firms and Erosion of the State Monopoly on the Use of Force Adopted by the Venice Commission at its 79th Plenary Session (Venice, 12–13 June 2009) on the basis of comments by Mr Iain Cameron (Member, Sweden)’ (29 June 2009) CDL-AD(2009)038. 3 hr Council, ‘Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination’ (2 July 2010) un Doc A/HRC/15/25/Add.5 Annex. Draft of a Possible Convention on Private

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004274587_003

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Instead of a treaty, an innovative and intricate system of self-regulation has come into being since 2010, linking states, pmscs, corporate customers and NG0s. I look briefly at this system of regulation. I then turn to examining developments in national (Swedish) legal regulation in one particular aspect of pmscs’ work, and something of particular relevance to one of Said’s research interests, namely maritime security. I close with a number of concluding remarks.

What are pmscs, What Do They Do and Why is This Problematic?

While some perceive pmscs as a new challenge in international law, people selling military services – mercenaries – are obviously not a new phenomenon. Incorporated bodies selling military services – pmscs – also predate the 1990s, but the business received an upswing with the end of the Cold War, with the result that large armies, at least in Europe, were no longer necessary. Parallel with this major change in world politics, the wave of deregulation which began in the us in the early 1980s, and spread to a number of other Western states also came to make inroads in that most public of services, the armed forces. ‘Leaner’, more flexible, and cheaper, armed forces were wanted and the idea – later hotly contested – was that the private sector could better provide a variety of tasks previously performed by the armed forces themselves. pmscs engage in a wide variety of different services in a wide variety of different contexts.4 Many services provided by pmscs involve day to day support of a state’s own military forces serving abroad in providing food, transport, delivery of weapons and ammunition, training in use of sophi­ sticated weapons systems etc. The bulk of the market for pmscs is in North Military and Security Companies (pmscs) for Consideration and Action by the Human Rights Council (Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination) hereinafter ‘the un Working Group on Mercenaries’ and the ‘un Draft Convention’. For analysis, see Benjamin Perrin, ‘Searching for Accountability: The Draft un International Convention on the Regulation, Oversight, and Monitoring of Private Military and Security Companies’ (2009) 47 Canadian Yearbook of International Law 299. 4 For background generally see eg Peter W Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Cornell University Press 2003); Caroline Holmqvist, Private Security Companies: The Case for Regulation (sipri Policy Paper 9, January 2005); Simon Chesterman and Chia Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press 2007).

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America and Europe, and the provision of such services is not usually politically controversial.5 However, controversy arises in different ways in a variety of different contexts. One of these is where pmscs are used to replace more combat-oriented or security-enforcement functions which national armed forces perform in peace-enforcement operations abroad. Here, for several reasons, the risk of a lack of accountability is large, and the consequences of abuse of power are particularly severe (loss of life, major injury etc). The problems involved are well illustrated by repeated incidents during the us occupation of Iraq, when pmscs killed civilians.6 Even where pmscs are not involved in combat as such, there can still be problems when pmscs perform more ‘passive’ guarding functions. At the same time, states and international organizations often are required to maintain a presence in highly dangerous environments, eg states undergoing civil wars, or failed states, and these states and igos need security. Another is where multilateral corporations operational in another state with ‘weak’ state institutions, or the government of the state in question, contract with pmscs for different functions which, in a state with ‘strong’ institutions would be performed by the state itself. A third is the provision of maritime security against pirate attacks, particularly off the coast of Somalia. There are over 200 companies offering maritime security services.

The Need for International Regulation of pmscs and Existing Legal Regulation

European states regulate the activities of private security companies in their own territories but not, generally speaking, the extraterritorial activities of pmscs. If one recognises the fact that weak state X, for one or other reason, is unable to exercise an adequate level of supervision over the activities of a pmsc incorporated in a European state (Y), then for a lawyer who believes in accountability for the exercise of public power, especially the public power to use violence, the logical consequence of this is to insist that Y step into the 5 This is not to say that the private security industry is unproblematic – far from it. The symbiosis between private policing and public policing on the one hand and between the private security industry and the insurance industry on the other undoubtedly gives rise to serious accountability issues, and must be taken into account in creating regulatory frameworks. See eg Conor O’Reilly and Graham Ellison, ‘Eye Spy Private High: Re-Conceptualizing High Policing Theory’ (2006) 46 The British Journal on Criminology 641; Jean-Paul Brodeur, The Policing Web (Oxford University Press 2010) ch 8. 6 Singer (n 4).

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regulation/enforcement gap and take over at least a degree of responsibility for the pmsc. pmscs are incorporated in one state, but are often multinational enterprises in that they may draw their personnel from other states and act in other states. Where one state chooses to regulate their extraterritorial activities, there is an obvious risk that they will re-locate to a state where they are not regulated, or are less regulated. The logical consequence of this is to seek international regulation by means of a treaty, containing minimum common standards of regulation to be applied to pmscs by the contracting states. It is important to remember the variety of different situations where pmscs can be active, and the degree of state control in practice applying in these, ie the control which is, and can be, exercised by the state (A) which contracts with the pmsc, the territorial state (B) and the home state of the pmsc (C). For example, the government of B may have full control over all of its territory or in practice, no control over parts of its territory. It may be seeking to (re)assert control, or it may have abdicated it to A or to a multinational company which has contracted with the pmsc, or with the pmsc itself, in whole or in part. A and B might share control, in practice or on paper. A may have no physical control over parts of the territory, it may have a degree of control, or it may have ‘full’ military control in the legal sense of bearing responsibility, but engaged in fighting an insurgency and so have only limited control in practice. B may have granted, more or less voluntarily, pmscs full or partial immunity from the jurisdiction of its civil or criminal courts. State C may well have no or only limited diplomatic or other presence in B and so only limited possibilities of finding out what exactly is going on. It is easy to see the accountability problems which can arise, both as regards the variegated framework of applicable law, but above all as regards enforcing whatever legal obligations might exist. There are a number of treaty obligations which states A, B and C may (and often will) have concerning their use of force, including private contractors to use force, and as regards maintaining public order; pmscs thus do not operate in a legal vacuum.7 These obligations are largely under international humanitarian law, international criminal law and human rights law. These obligations are very usefully summarized in part 1 of a document produced in 2008 as a result of a cooperative project between the Swiss government and the International Committee of the Red Cross (icrc), the Montreux Document 7 cf Benjamin Perrin, ‘Mind the Gap: Lacunae in the International Legal Framework Governing Private Military and Security Companies’ (2012) 31 Criminal Justice Ethics 213.

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on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict (Montreux Document).8 Part 2 of the document consists of a list of best practices in regulating pmscs. The Montreux Document is currently endorsed by 49 states.9 Its legal status is, formally speaking, limited, as it is a statement of state practice made by one state (Switzerland) which is unilaterally supported by the other participating governments. Briefly and very simply put, as regards humanitarian law, states are not free to ‘contract out’ of their responsibility by letting private actors handle security and military functions, ie those functions which are delegable at all. However, the security situation in which many pmscs will be operational will not necessarily be sufficiently serious to be governed by humanitarian law, ie the threshold for an internal or international conflict may not have been reached.10 Under general international law, responsibility exists on the part of the contracting state where the pmsc is a de facto organ of the state, or where it exercises elements of governmental authority, or where it is acting on the instructions or under the control of the state, or where the pmsc exercises elements of governmental authority in the absence or default of the official authorities and finally where the pmsc conduct is acknowledged and adopted by a state as its own. However, where these conditions are not fulfilled, a state contracting with a pmsc can argue that it has no responsibility for its’ activities.11 8

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Montreux Document (n 1). For discussion, see eg Corinna Seiberth, Private Military and Security Companies in International Law: A Challenge for Non-binding Norms: The Montreux Document and the International Code of Conduct for Private Security Providers (Intersentia 2013). The Swiss Confederation’s Federal Department of Foreign Affairs, ‘Participating States of the  Montreux  Document’   accessed 21 February 2014. See eg Lindsey Cameron, ‘Private Military Companies: Their Status under International Humanitarian Law and its Impact on Their Regulation’ (2006) 863 International Review of the Red Cross 573. Further material can be found in International Review of the Red Cross 2006, (863) ‘Private military companies’ accessed 28 February 2014. The position taken by the Montreux Document (n 1) pt 1 [7] is that mere contracting with a pmsc does not entail responsibility. However, this does not rule out a state having ‘due diligence’ requirements in certain circumstances to ensure that the pmsc respects human rights. James Cockayne, ‘Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document’ (2009) 13 Journal of Conflict & Security Law 401.

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Human rights obligations can be either under global treaties, in particular, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, or regional treaties. As regards European human rights law, the extent of ‘home’ state and ‘contracting’ state obligations are still not entirely clear. The extent of a state’s obligations for ‘extraterritorial’ activities has been the object of case law from the European Court of Human Rights (ECtHR) and is still developing.12 The Court has stated – controversially – that where activities are formally under the mandate of the un Security Council, then the un bears res­ ponsibility for these activities.13 The same will presumably apply to other international organisations. The ECtHR considers that a European state is responsible for the activities of its own agents14 – which could include its’ contracted pmscs under certain circumstances – but is only responsible to take positive measures to control the actions of others – entities or individuals – in territory over which it has effective military control.15 As legal entities, pmscs bear no direct responsibility under the echr, whether they act in European states or outside of these.

Problems in Producing a European Treaty

If a European treaty could be drafted, should it be open for signature to nonEuropean states? The approach of European states to pmscs varies, from positive to seeing pmscs as a necessary evil. Many African states in particular are, 12

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As regards the situation where a party to the echr is the territorial state (A) and a pmsc from another European state is operational within a part of A’s territory not under A’s control see by analogy ECtHR, Ilascu and Others v Moldova and Russia [gc] echr 2004-VII 179. Behrami and Behrami v France and Saramati v France, Germany and Norway (dec) [gc] App nos 71412/01 and 78166/01(ECtHR, 2 May 2007). Öcalan v Turkey [gc] echr 2005-IV 131. Issa and Others v Turkey App no 31821/96 (ECtHR, 6 November 2004); Al-Skeini and Others v uk [gc] App no 55721/07 (ECtHR, 7 July 2011); Al Jedda v uk [gc] App no 27021/08 (ECtHR, 7 July 2011). For a case in which state responsibility was found for permitting private persons to detain other individuals, see Riera Blum and Others v Spain echr 1999-VII 1. The issue of privately run detention facilities is a large and important topic it its own right. For a summary of the criticism the Committee on the Prevention of Torture (cpt) has made in this area see Hans Born, Marina Caparini and Eden Cole, ‘Regulating Private Security in Europe: Status and Prospects’ (Geneva Centre For The Democratic Control Of Armed Forces (dcaf) Policy Paper No 20, 2007); Confederation of European Security Services and UNI-Europa, ‘Panoramic Overview of Private Security Industry in the 25 Member States of the European Union’ (2008) accessed 21 February 2014.

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understandably, hostile to the idea of regulating and so legitimizing the activities of pmscs. Not surprisingly, bearing in mind the large number of American pmscs, successive us governments have been favourably inclined to pmscs. With such widely different starting points, producing a European treaty which has the potential to attract wide ratification is obviously extremely difficult. For European states, the sub-regional – eu – dimension must also be taken into account. If the treaty contains obligations which are not in accordance with basic principles of ec law, or not compatible with the intentions of the eu cfsp, then it will not be possible, or it will, at least, be very much more difficult, for eu states to ratify the treaty. The eu is the largest aid donor in the world. It has staked out a major, and growing, role for itself in the field of development aid, reform of the security sector, strengthening of state institutions etc. A Council of Europe treaty regulating pmscs but without the participation of eu states would not be meaningful. At the present time, eu law only partially regulates the area of private security companies (PSCs).16 There are considerable methodological difficulties in determining the extent of the private security market. It would appear that the technological equipment side of the industry is largest in terms of turnover.17 While there are some specialised pmscs, a number of pscs, large and small, offer a variety of services, including military-type services.18 It is not easy to draw a dividing line in practice between pmscs and pscs: 16

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Elke Krahmann, ‘Regulating Private Military Companies: What Role for the eu?’ (2005) 26(1) Contemporary Security Policy 103; Anne-Marie Buzatu, European Practices of Regulation of pmscs and Recommendations for Regulation of pmscs through International Legal Instruments (The Geneva Centre for the Democratic Control of Armed Forces (dcaf) 2008; Guido Den Dekker, ‘The Regulatory Context of Private Military and Security Services at the eu Level’ in Christine Bakker and Mirko Sossai (eds), Multilevel Regulation of Military and Security Contractors The Interplay between International, European and Domestic Norms (Hart 2012). Brodeur (n 5) 275–278. As shown above (n 1), the Montreux Document only gives a non-exhaustive (illustrative) definition. The un Draft Convention (n 3) art 2 refers to a pmsc as ‘a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities’. ‘Military services’ in turn refers to ‘specialized services related to military actions including strategic planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities’. ‘Security services’ refers to ‘armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, development and implementation of informational security measures and other related activities’.

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regulating the former cannot be done without encroaching on the regulation of the latter. The provision of private security in an eu state is a service, in principle within the internal market.19 Having said this, private security companies were excluded from the eu Directive for services in internal market.20 The provision of services outside of the eu by pmscs registered in an eu state can, depending on the circumstances, fall partially within other eu regulatory regimes, eg the eu arms exports regime,21 dual use exports22 or arms brokering.23 When eu restrictive measures have been introduced against a state or territory, either autonomous eu sanctions, or eu implementation of un Security Council sanctions, pmscs tend to be covered by the widely formulated restrictions or prohibitions on export of arms/ training services.24

What Would a European Treaty Have to Regulate?

pace expressed the view in a recommendation that certain issues ought to be covered by a treaty. The first of these could be said to belong to the area of constitutional law, namely, a prohibition on outsourcing ‘inherently state/ governmental’ services. The phrase ‘inherently governmental’ comes from applicable us policy, but obviously, even where such an express prohibition on delegation of governmental authority exists in a legal norm, this would not in itself prevent 19

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Case C-114/97 Commission v Spain [1998] ecr I-6717; Case C-355/98 Commission v Belgium [2000] ecr I-1221; Case C-283/99 Commission v Italy [2001] ecr I-4363; Case C-189/03 Commission v Netherlands [2003] ecr I-9289; Case C-171/02 Commission v Portugal [2004] ecr I-5645; Case C-514/03 Commission v Spain [2006] ecr I-963; Case C-465/05 Commission v Italy [2007] ecr I-11091. cf Dekker (n 16) 39–42. Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on Services in the Internal Market [2006] OJ L376/36 art 2(k). Council Common Position 2008/944/CFSP Defining Common Rules Governing the Control of Exports of Military Technology and Equipment OJ L335/99. Council Regulation (ec) 1334/2000 of 22 June 2000, Setting up a Community Regime for the Control of Exports of Dual Use Items and Technology [2000] OJ L159/1. See generally Anna Wetter, Enforcing European Union Law on Exports of Dual Use Goods (sipri Research Report 24, Oxford University Press 2009). Council Common Position 2003/468/CFSP of 23 June 2003 on the Control of Arms Brokering [2003] OJ L156/79. Krahmann (n 16).

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outsourcing. Commentators have considered that the ‘inherently governmental’ test has proven unhelpful in clarifying how to determine whether a particular governmental function is appropriate for outsourcing25 inter alia because everything comes down to who has the competence to interpret the phrase. Where a government body is understaffed, but has onerous responsibilities and where it has money to employ outside contractors then there is no limit to what it will want to contract out. But even where an attempt is made in good faith to identify a core meaning of ‘inherently governmental’, problems arise. For example, is assisting in an interrogation as a translator a governmental function? What if the translator puts questions himself? The approach taken by the un Working Group is to give a non-exhaustive list of things which must be seen as such services together with a permissive rule allowing state parties to add further services.26 The problem is that the us, and probably several other states, have already extensive outsourcing of several of the ‘prohibited’ services, namely ‘espionage, intelligence [and] knowledge transfer with military, security and policing application’. Moreover, while forbidding ‘direct participation in hostilities… [or] combat’ might seem clear and uncontroversial, how this is interpreted will undoubtedly vary from state to state. Even us government officials have taken the view that outsourcing ‘combat’ is forbidden,27 but this did not stop controversial incidents involving us pmscs. The problem is that the line between passive (guarding) and active (seeking out trouble) is not clear in practice. For example, security personnel can be armed with heavy small arms (eg machine-guns) and given patrol 25

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See eg Simon Chesterman, ‘“We Can’t Spy…If We Can’t Buy”: The Privatization of Intelligence and the Limits of Outsourcing “Inherently Governmental Functions”’ (2008) 19 European Journal of International Law 1055. Under art 9 of the un Draft Convention, state parties ‘shall define and limit the scope of activities of pmscs and specifically prohibit the outsourcing to pmscs of functions which are defined as inherently State functions, including direct participation in hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and policing application, use of and other activities related to weapons of mass destruction, police powers, especially the powers of arrest or detention including the interrogation of detainees, and other functions that a State Party considers to be inherently State functions’. See comments by W Hays Parks, ‘The Perspective of Contracting and “Headquarters” States’ (Informal comments offered to the Expert Workshop for the Swiss Initiative with the International Committee of the Red Cross with regard to Private Military/Security Companies, Küsnacht am Zurichsee, Switzerland, January 16–17 2006) accessed 21 February 2014.

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functions in relation to oil installations. Such patrol functions are likely to involve them not only in exchanges of fire with armed groups attacking the installations, but also with pursuing these groups. Minelaying is a combat, or at least, combat-related, function, but what about mine-clearing? Clearing mines is a service performed both by pmscs and humanitarian ngos. Placing heavy machine guns and rocket launchers on tankers and allowing pmsc personnel to open fire first on small vessels approaching the tanker which ignore a warning to keep their distance – is this combat? One can certainly say that ‘combat’ should be the sole concern of the armed forces of a state (and, of course, that these armed forces should be sufficiently well-trained, motivated and led to obey humanitarian law) but the reality in failed, failing or dysfunctional states, is that there is no Gewaltmonopol des Staates. To impose a treaty obligation on states B-F to prohibiting B-F’s pmscs in failed/dysfunctional state A under any circumstances means two things. First, it involves a duty on the contracting states not to licence such activities (which in turn, of course, involves a general duty at national law on pmscs to request licences for all their activities, of which more below) or not to contract with, or allow their nationals to contract with, a foreign, or local, pmsc to provide such services. Second, it involves a duty on contracting states where one of their pmscs has, in fact, breached the terms of the licence not to engage in a prohibited activity, to penalize the pmsc in some way. The main question-mark about trying to list prohibited activities in a recommendation or treaty is that this does not seem to be necessary in order to reach the goals of avoiding contracting pmscs for services where the risk of accountability is large and the consequences of abuse of power are severe. The second broad area the pace resolution had sketched out for a treaty to cover was licensing criteria and standards. pace expressed the view that an attempt should be made to standardise the principles for the use of pmscs, determine criteria regarding the activities, obligations, duties, responsibilities, including accountability for breaches of international humanitarian law and human rights abuses, and the areas of work and competences of pmscs, define criteria that must be applied to authorise pmscs to provide military and security services and introduce a registration and licensing system for pmscs. pace furthermore wanted the setting up of a legal and regulatory framework for pmscs that wish to export their services. The regulatory framework was to include the following elements: an effective vetting and training system for pmsc personnel; an effective oversight and investigatory system; an effective enforcement system, and the protection of social rights of pmscs’ employees. pace envisaged that these standards would in turn be imposed by terms of contract on personnel employed by the pmsc. It would be important that

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licences forbid, or control, sub-contracting, which appears to be a common practice in the field. To begin with, it is clear that strong arguments can be made for pmsc ‘home’ states requiring registration of, and some form of licensing of, pmscs services. At the very least, the Venice Commission considered it advisable that all European states with pmscs engaged in the export of military-type services as a matter of priority investigate the need for national legislation on the issue. Here it should be noted that international law contains – albeit vague – limits on the extent to which a state may regulate the activities of foreign-registered subsidiaries to a ‘parent’ company registered in that state’s territory. As mentioned, pmscs are a multinational phenomenon, and so the development of some type of international cooperation undoubtedly appears sensible in order to avoid inconsistent standards being imposed, and to discourage ‘regulatory flight’ of a pmsc from a strong regulatory regime to a weak one. The treaty proposed by pace would have gone further and sought to impose harmonized registration criteria and licensing standards on European states. Good arguments can undoubtedly be made for such harmonized criteria and this would indeed seem to call for some form of treaty provision. Having said this, it would make it easier to draft such provisions if there were tried and tested national models to build upon. A key issue here in treaty negotiations will be reaching agreement not only on the extent of supervision which is advisable – this will reasonably vary according to the circumstances – but also on the extent which is feasible. Such a treaty provision would obviously require reasonably staffed and resourced national administrative regulatory bodies, with, moreover, a capacity to supervise extraterritorial activities. Here one can note that while all, or almost all, European states have regulated their private security industry, the level and type of regulation varies, as does the level and type of supervision of this.28 There appears to be no European state which has regulated the extraterritorial activities of pmscs as such, although where (as seems common) a psc offers security services within a European state, as well as export of security/military services, it will already have gone through whatever registration, vetting and licensing formalities which exist in the European state in question. Moreover, certain European states include ‘military training’ under the category of services for which an export control licence is granted and so exercise, or at least, have the potential to exercise, a degree of supervision over such extraterritorial activities. The issue of licensing and different options for regulation has been 28

See Born, Caparini and Cole (n 15) and the country reports in Bakker and Sossai (eds) (n 16).

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discussed extensively in recent years in the uk, the European state which, for a variety of reasons, appears to have the largest number of pmscs engaged in extraterritorial sale of ‘military’ services.29 But no legislation has yet resulted from this process.30 Two states which have specifically regulated extraterritorial pmsc activity are the United States and South Africa. Both states’ systems of regulation have been criticized in doctrine as inadequate.31 In the case of the United States, the criticism appears mainly to have been directed at the adequacy of the procurement process, combined with the large numbers of procurements made in a short time for pmsc services in Iraq in particular, and the grave lack of supervision of the fulfilment of contract terms setting minimum standards of behaviour of pmsc personnel – when these were included at all.32 The accountability problems which arose were exacerbated by the immunity which pmscs had, and continue to have in some situations, from the jurisdiction of the Iraqi courts. As regards criteria to take into account before licensing a pmsc, there are obviously national models regarding pscs. Furthermore, one can mention the eu common position on arms exports.33 Some form of obligation regarding information exchange between contracting states would also be necessary, eg regarding compliance with licence conditions. If state A with a large embassy presence in state B comes over information indicating that pmsc X licensed by state D is responsible for human 29

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See Foreign and Commonwealth Office Green [discussion] Paper, Private Military Companies: Options for Regulation, hc 577, 2002, Ninth Report of the Foreign Affairs Committee, Session 2001–02, Private Military Companies, hc 922, Response of the Secretary of State to the Ninth Report of the Foreign Affairs Committee (2001–2002), Session 2001–02, Private Military Companies, hc 922. For a summary and analysis of position under British law, see Kerry Alexander and Nigel D White, ‘The Regulatory Context of Private Military and Security Services in the uk’ (European University Institute, Academy of European Law, National Report Series 01/09). For criticism of the South African statute see Mark Malan and Jakkie Cilliers, ‘Mercenaries and Mischief: The Regulation of Foreign Military Assistance Bill’ (Institute for Security Studies, South Africa, Occasional Paper No 25, 1997); Marina Caprini, ‘Domestic Regulation: Licencing Regimes for the Export of Military Goods and Services’ in Chesterman and Lehnardt (eds) (n 4). For critical analysis of the us system of regulation see Caprini (ibid); Laura A Dickinson, ‘Public Law Values in a Privatized World’ (2006) 31 Yale Journal of International Law 383. See, eg Dickinson (n 31). Council Common Position 2008/944/CFSP of December 2008 Defining Common Rules Governing the Control of Exports of Military Technology and Equipment [2008] OJ L335/99. It can be added that the Montreux document (below) provides examples of best practices in this regard.

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rights abuses in B, then an obligation must be created for A to transfer this information to D, and (at a minimum) an obligation on D to investigate the issue and to inform A of the result of its investigation. The information exchange arrangements in certain eu norms34 can serve as models. These have managed to combine a degree of transparency with a degree of confidentiality. The Venice Commission considered in conclusion on this point that it would be possible to have harmonised licencing standards and criteria. The real problem is in defining the appropriate level of ambition of supervising compliance with these administrative regulations.35 Basic principles of administrative law require for licence termination a determination that the licence has been breached, which in turn requires that there be some sort of body capable of investigating impartially and fully alleged violations of the licence and/or infringements of administrative law. The next issue which pace wanted the treaty to cover was extraterritorial criminal jurisdiction over criminal acts committed by pmscs and their personnel. Most European states can be assumed already to do this, either on the basis of generally applicable rules on the jurisdiction of the courts and the spatial scope of the criminal law, or by virtue of extending laws and rules governing deployment of national military and police forces abroad to pmscs. At the least most states will exercise unconditional jurisdiction (ie not requiring the presence of double criminality) on the basis of nationality over the most serious criminal offences such as murder. A legal problem will only arise if a state has very limited extraterritorial jurisdiction, such as the uk, or provides for only nationality jurisdiction and the pmsc employee has another nationality. The Venice Commission considered it strongly advisable that all European states review their systems of criminal law and jurisdiction in order to determine whether there are gaps in their jurisdictional claims, at the very least as far as nationals are concerned, and if so, to correct these and to provide for extradition arrangements where for some reason, jurisdiction is lacking. The practical problem – which applies to all states – is as regards investigating offences committed outside the territory, where there is no functioning governmental apparatus, or where for one or other reason, no cooperation can be expected from whatever governmental entity is in charge. pace also wanted the treaty to contain a provision introducing specific rules for pmscs in civil law, especially as regards conditions of liability. This proposal was aimed at the difficulties which are caused when pmsc 34 35

See (n 20–22). For a discussion of such problems, see Nigel D White, ‘Due Diligence Obligations of Conduct: Developing a Responsibility Regime for pmscs’ (2012) 31 Criminal Justice Ethics 233.

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personnel injure or otherwise cause harm to individuals in another country, who, for reasons of practicality or law (eg agreements relating to immunity of pmscs) are unable effectively to sue the pmsc in the courts of that country. In some European states, it will presumably already be possible to sue a company incorporated in the state for damages for acts attributable to the company committed in another state. Other states, applying their own rules of private international law, will make this more difficult, or perhaps impossible. A complicating factor here is the question of civil jurisdiction over foreign-incorporated subsidiaries of a pmsc, sub-contracting being a feature of this branch. Another aspect which must be taken into account here is the complicated question of insurance of the pmsc, and permitting claims against the insurer. Nonetheless, as with the criminal law, it is undoubtedly a very undesirable situation if strong grounds exist for suspecting that pmsc personnel have, eg killed or severely injured people, but for one or other reason, the home state of the pmsc does not have jurisdiction to entertain civil claims brought by victims or their relatives against the pmsc. Thus, notwithstanding the complexities sketched out, the Venice Commission strongly advised all European states to begin the process of reviewing their civil law systems to determine whether it is possible at all to make such claims, and if not, to consider enacting appropriate legislation on the issue. The final issue pace wanted a treaty to cover was the issue of parliamentary approval for government use of pmscs abroad. From the perspective of democratic legitimacy, when and if the parliament has achieved full control over the use of military forces abroad (and while most European parliaments have control over this, by no means all have), there is undoubtedly a democratic deficit if it has no insight into, let alone control over, its government’s contracting of pmscs to engage in peace-promotion and peace-enforcement actions. Very good arguments exist for parliaments exerting control over any ‘large-scale’ use of pmscs, to the extent that their existing budgetary control mechanisms do not already allow this. Having said this, the occasions on which pmscs are contracted for large scale and high profile missions by European states are presumably very rare. Most pmscs are engaged in much less politically controversial issues, such as training in weapon systems, supply of services (food, transport, etc) to national troop contingents or foreign armies. And practicalities must be borne in mind. The value of parliamentary approval mechanisms is not simply that the people’s representatives decide, but also that an exhaustive, transparent and informed debate occurs in the most important public forum of the state, the parliament. Such procedures take time, and must take time. This sort of discussion is quite impracticable every time the Foreign Minister travels to a dangerous country where he or she needs an armed escort

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from and to the airport. Where national law, for one or other reason, does not permit that police or military are ordered to fulfil bodyguard functions for government ministers or diplomats when they are in dangerous environments, then this function must be performed by contracting with a pmsc. Bearing in mind the variations in European states’ practice regarding democratic control over the armed forces, the Venice Commission considered that this was not yet an appropriate issue for treaty regulation. In conclusion on the Venice Commission report, the report pointed out that, even if political agreement could be reached on the desirability of some form of international regulation, a treaty would have to deal adequately with a variety of complex issues of administrative, civil and criminal law. Above all, states would have to create well-resourced and effective oversight bodies, with the capability to investigate the extraterritorial activities of pmscs registered in their territories. The Report nonetheless stressed the value of the Montreux Document, and the importance of each state checking whether it complied with its existing treaty obligations and of evaluating its regulatory laws and policies, against the Montreux Document list of best practices. The Committee of Ministers – consisting of governmental representatives from the Council of Europe – contented itself with drawing states attention to the Venice Commission report and asking other Council of Europe bodies, consisting of state appointed experts, to study the suggestions made in it and report back.36 Self-Regulation The difficulties involved in drafting a treaty on the subject, and the risk that such a treaty might undermine existing legal regulation, were one of the reasons behind the initiative of the Swiss government to build on the Montreux document with a system of self-regulation. The Swiss government sponsored conferences involving extensive consultations between representatives of the private security industry and between these and representatives of civil society. The result in 2010 was the International Code of Conduct for Private Security Service Providers (hereinafter, the ICoC).37 The purpose of the ICoC is 36

Committee of Ministers, Council of Europe, ‘Private Military and Security Firms and the Erosion of the State Monopoly on the Use of Force’, Parliamentary Assembly Recommendation 1858 (2009) CM/AS(2010) Rec1858 prov2, cm meeting 23 February 2010. 37 International Code of Conduct for Private Security Service Providers’ (adopted 9 November 2010) < http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF _CONDUCT_Final_without_Company_Names.pdf> accessed 28 February 2014.

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‘to set forth a commonly-agreed set of principles for pscs and to establish a foundation to translate those principles into related standards as well as governance and oversight mechanisms’.38 Signatory companies – 58 initially, and at the time of writing 708 companies – are required under point 6 inter alia: d) to take steps to establish and maintain an effective internal governance framework in order to deter, monitor, report, and effectively address adverse impacts on human rights; e) to provide a means for responding to and resolving allegations of activity that violates any applicable national or international law or this Code; and f) to cooperate in good faith with national and international authorities exercising proper jurisdiction…of violations of international humanitarian law, or of human rights abuses. The ICoC, like the Montreux document, contains material standards of conduct, with the difference that these are written in a way which is meant to be comprehensible by all pmsc personnel. As corporations signing up to the ICoC agree unilaterally to abide by it, this avoids the discussion whether treaty based norms can bind non-state actors. If and when the ICoC is incorporated into the contract between the client – government, igo, ngo or corporation – it will become binding as a matter of private law. But the most important step forward with the ICoC is that it requires signatory companies to accept auditing and monitoring of their work in the field, including reporting, and to create a mechanism to address alleged violations of the Code’s standards. What was still lacking was concrete mechanisms to realize this, and an overarching governance framework. Work continued on this, involving representatives of the industry, civil society, and governments and the result was the Charter of the Oversight Mechanism for the International Code of Conduct for Private Security Service Providers, otherwise known as the ICoC Articles of Association, which was launched in September 2013.39 The Articles of Association create a General Assembly consisting of all members (government, industry and civil society), a Board of Directors, formed with four representatives each from governments, industry and civil society, an Executive Director and a secretariat operating under the Executive Director. The main tasks and competencies of the Association are (a) certification of 38 ICoC point 5. 39 Available  at   accessed 21 February 14.

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companies under the Code attesting that a company’s systems and policies meet the Code’s principles and standards, (b) human-rights-oriented monitoring of company performance and of the impact of security operations, and (c) maintaining a process to support member companies in discharging their commitments to address claims alleging violations of the Code by establishing fair and accessible grievance procedures that offer effective remedies. Under article 11(2)(1), the Board is to define the certification requirements and submit these to the General Assembly for approval. The requirements are to be ‘based on national or international standards and processes that are recognized by the Board as consistent with the Code and specifying any additional information relevant to the human rights and humanitarian impact of operations it deems necessary for assessing whether a company’s systems and policies meet the requirements of the Code and its readiness to participate in the Association’. As the heart of the matter is how pmscs are behaving in practice, it is crucial that there are field missions to check up on them. Article 12(2)(3) provide that ‘The Executive Director may initiate a field based review, unless the Board decides otherwise, (i) where the review of available information or a human rights risk assessment has identified a need for further monitoring within an area of one or more Member companies’ operations, or (ii) on request from a Member of the Association. In each case such field base review shall be aimed at improving performance or addressing specific compliance concerns’. Under article 12(2)(6) the Board ‘shall review performance and compliance issues referred by the Executive Director or at its own initiative’. Under article 12(2)(7), ‘if the Board determines that corrective action is required to remedy non-compliance with the Code, the Board shall request a Member company take corrective action within a specific time period’. Failure to take reasonable corrective action within the period specified by the Board will result in the Board initiating suspension proceedings. As regards complaints, article 13(2)(1) provides that the Secretariat ‘shall receive complaints from individuals or their representatives, which must both (i) contain specific allegations of conduct that, if true, would constitute a violation of the Code, and (ii) allege harm to one or more of those individuals’. The Secretariat is to facilitate access to whatever grievance procedures that exist in the member company. If the applicant alleges that the procedure ‘is not fair, not accessible, does not or cannot offer an effective remedy (…) the Secretariat shall review that allegation’ (Article 13.2.3) and offer its proposals for a solution. The Board may then, after considering the Secretariat’s proposals, ‘suggest that the complaint be referred to another, identified fair and accessible grievance procedure that may offer an effective remedy, and/or recommend

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that the Member company take corrective action within a specified period. This may include cooperation with the Association’s good offices, the provision of a neutral and confidential mediation process, or other arrangements that may assist the Member company to offer an effective remedy’.40 There are, as one can imagine, several criticisms which can be made of the Articles of Association.41 To begin with, the requirements concerning the certification process for membership are still vague. If all that is entailed is a ‘rubber-stamping’ of whatever national registration/authorization procedures that exist, then little is gained, as some states require very little before a psc can begin operation. Even those states which have tough statutory requirements for registration or authorization, may do little in practice to verify that the requirements are in fact met. For the Articles of Association to be meaningful, and as regards follow-up monitoring generally, the integrity, competence and resources of the Secretariat will obviously be crucial. Secondly, field missions can be blocked by the Board. Third, and most seriously, the role of the Association in complaints is largely limited to supervising the pmscs own grievance procedures. Fourth, the sanctions for serious non-compliance with the ICoC or the Articles are suspension or termination of membership. But as agreement could not be reached on the exact conditions for these sanctions during the drafting conference, these were left to the Board of Directors to draw up, subject to the approval of the General Assembly.42 Nothing is said about re-admission for membership. One can say in conclusion that the value of self-regulation in practice will depend upon a number of factors. The main method of informal sanction will be the ‘market’, namely denying future contracts to a pmsc which is not a member of the Association, or which is alleged to have a poor record of compliance with the ICoC, but whose membership of the Association may not – yet – have been suspended or terminated. But in certain circumstances, it may be a sellers’ rather than a buyers’ market. A weakness is that states (or igos) which have endorsed the ICoC have not unequivocally undertaken only to contract with members of the Asso­ ciation. There is a bigger weakness: the ICoC does not as such bind ngos or 40 41

42

Art 13(2)(5). Many of these criticisms can be found in the Civil Society Statement on the Articles of Association of the International Code of Conduct for Private Security Service (15 February 2013)   accessed 21 February 2014. Art 8(1)(5).

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companies. The market for pmsc services is quite large for some industries, eg mining or shipping. To become bound to contract only with members of the Asso­ciation, an ngo or corporation must agree to this policy individually, or, for corporations, through a branch organisations. Alternatively, states which endorse the Montreux Document and the ICoC could introduce national legislation limiting their ngos and corporations’ freedom of contract in this respect. Such a duty might have to contain exceptions: a corporation, ngo or igo may even be able, honestly, to argue that it is obliged, by local law, or in practice, to contract with a locally incorporated pmsc which is not a member of the Association. Without such a duty in national legislation, a multinational company or ngo decides for itself whether it wishes to contract with a pmsc which does not adhere to the ICoC, or has a poor record of complying with it. The ‘penalty’ for this on the ngo or multinational corporation is poor publicity – assuming its contract becomes known. This poor publicity will presumably be sufficient disincentive for a humanitarian ngo, but not necessarily for a corporation.

Sweden, Maritime Security and pmscs

In this article, I will not deal with the general issue of the Swedish regulation of pscs and the extent to which this applies even to pmscs. This is discussed elsewhere.43 Simply put, the Swedish legislation on registration, licencing etc of private security companies is considered to have extraterritorial application.44 The Swedish foreign office has bought security services (bodyguards etc) for its diplomatic missions in certain states, eg Afghanistan and Iraq. However, there are very few corporations registered in Sweden offering services which can be described as ‘military’ in nature, with the exception of training in the use of a weapons system, offered by the manufacturer, ancillary to the export of the weapons system itself. An increase, albeit small, in the number of Swedish pmscs is likely to occur with the entry into force, in July 2013, of an Act on Security on board Swedish vessels.45 The number of deep sea going Swedish flagged merchant vessels is not very large. However, as one Swedish shipping company wished to have armed personnel on its vessels trafficking waters where pirates are active, 43 44 45

Andreas Bergman, ‘Sweden’ in Bakker and Sossai (n 16). Lag (1974:191) om bevakningsföretag; Minutes of the Swedish parliament, answer to written question 2007/08: 1299, as quoted in Bergman (n 43) 296. Lag (2013:283) om bevakning ombord på svenskt fartyg.

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particularly the Gulf of Aden, regulation of this was found to be necessary. The option of using vessel protection detachments (vpd) from the armed forces – the option preferred by the International Maritime Organisation, if armed personnel are to be used at all46 – was dismissed summarily by the government as being too expensive, and technically and organisationally impracticable.47 Using vpds certainly does not exclude the disproportionate use of force. A lot depends upon how well they are trained. But I think it fair to say that disproportionate use of force would be less likely, if the comparatively well-trained Swedish marines, acting within a command structure, are used compared to private security personnel, accountable to only to their employer (and probably more willing to err on the side of caution to avoid a ship-hijacking. The new Act specifies that it is lex specialis; the Act on security companies and the Weapons Act (which is not regarded as having extraterritorial application) do not apply to the provision of armed security services on Swedish vessels. Section 2 of the Act provides for a duty to seek authorisation for the use of armed personnel on board Swedish vessels. Under the Ordinance (2013:284) on Security on board Swedish Vessels, permission is to be granted by the Transport Agency (Transportstyrelsen) after consultation with the police. Permission is to be granted under section 3 only if it can be assumed that 1. 2. 3. 4. 5.

there is a risk the ship could be attacked, the security functions will be conducted in a professional and judicious manner; the firearms and ammunition are designed to protect the vessel, crew, passengers and cargo, and otherwise appear to be suitable for the purpose, security personnel have adequate training and are otherwise qualified to possess firearms and ammunition, and the arrangements made are otherwise satisfactory.

46 The International Maritime Organization (imo) recommends defensive measures (barbed wire, electrification, etc) and that, if armed personnel are to be used at all, they should be in addition to satisfactory defensive measures, rather than as an alternative to these. imo, ‘Piracy and Armed Robbery against Ships in Waters off the Coast of Somalia’ (14 September 2011) 39–40 accessed 21 February 2014. 47 Minutes from the Swedish Parliament, 2012/13:107 Svar på interpellation om bevakning ombord på svenska fartyg (17 May 2012).

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In interpreting these conditions, special attention is to be paid to whether the organization and planning of the security functions have been designed in an appropriate way. A license can be made subject to special conditions regarding the performance of the security function, reporting of incidents and the composition of the security personnel and their fitness, education and skills for the task, as well as conditions relating to point 2–5 and planning and organisation of the security functions in general. There is a duty on the master of the vessel, to have control over and keep records concerning the security personnel, their weapons and ammunition.48 There is a duty on the ship-owner to provide the licensing authority with any information it might request on the performance of the security function and to submit an annual report on this to the licensing authority. The licensing authority has the right to inspect all documents relating to the security function and to have access to the vessels concerned.49 Failure to provide information or explanations, or to allow the licensing authority to consult documents, or to make changes required by the Transport Agency, can result in an order to comply, backed by an administrative fine.50 If the ship-owner gives false information or fails to comply with the requirement to seek permission for armed personnel, s/he can be punished by a fine or imprisonment of up to six months.51 Failure by the master to keep proper records is punishable by a fine.52 Security personnel who take on board unauthorised weapons can be punished by a fine or imprisonment of up to one year, in aggravated cases with imprisonment of at least six months and at most four years.53 Security personnel or others who fail to comply with the conditions set on storage of weapons or ammunition and duties can be punished by a fine or imprisonment of up to six months.54 What can be said about this law? The Act forbids ship-owners to have armed personnel on their ships, except when this is done in accordance with the Act. The idea behind it is that if security is handled by a reputable company, employing reliable and otherwise suitable people, then the risk of abuse is less. It is difficult to argue with this. But, the Transport Agency has no experience whatsoever in evaluating the relative merits of different pmscs, their staff, 48 49 50 51 52 53 54

Ordinance on Security on board Swedish Vessels s 6. Ibid s 8. Ibid ss 9–10. Ibid s 12. Ibid s 15. Ibid s 13. Ibid s 14.

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training, selection of suitable weapons etc. In practice, it will be dependent on the opinion it receives from the police. Secondly, the Swedish police are obviously best able to check up on Swedish pmsc. But there is no requirement in the statute that the company contracted with is Swedish-registered.55 Third, even if the police are able to check up on the company, and its employees, in a satisfactory way, even if the company employs the ‘right’ sort of experienced people, and even if it is, in practice, these people who actually get the job (instead of being substituted for at the last minute by cheaper, trigger happy Russians or British ex-soldiers) abuses and mistakes can obviously still occur. The pirates in the Gulf of Aden are often armed with heavy machine guns and rocket propelled grenades. One can emphasise proportionality and restraint in company policy and rules of engagement,56 but if suspected vessels have to be kept far away from the vessel being protected, eg at a range of 700–1000 meters, then errors in visual identification are not simply possible but likely. Indian and Yemeni fishing vessels have previously been fired upon by security personnel on vessels trafficking the Gulf of Aden. What if there is such an incident, involving a Swedish flagged vessel, resulting in death or serious injury to innocent fishermen? Under Criminal Code (cc), chapter 2, section 3, p. 1, Sweden takes unconditional jurisdiction (ie not subject to double criminality) over offences on board Swedish ships and aircraft, as well as offences committed abroad by a crewman of such a vessel, while in the course of his employment. This provision thus includes offences committed by the captain or crew of Swedish aircraft or ships while in dock, or even on shore leave. Under section 3, p. 7 unconditional jurisdiction is also taken over offences punishable by a minimum of four years imprisonment. There are relatively few crimes in the Code which are punishable by a minimum of four years but these include the offences of murder and manslaughter both of which are extraterritorially applicable.57 As security 55

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As Bergman (n 43) notes, Vesper Group, the pmsc contracted to provide for embassy security in Afghanistan, is not a Swedish psc. If the Act on Private Security Companies is extraterritorially applicable, one can ask whether Swedish government, and Swedish corporations, uses of pmscs abroad is not forbidden, except in accordance with the Act. There are private industry initiatives on codifying rules on use of force, see the 100 Series Rules web site accessed 21 February, supported by inter alia Lloyds insurance. The most likely offences are murder (ch 3 s 1), manslaughter (ch 3 s 2), aggravated arson or devastation endangering the public (ch 13 ss 2 and 3). Whereas incitement to commit, and participation in committing, the above crimes are punishable by similar minimum penalties (ch 23 s 4), this is not the case for attempts, conspiracy or preparation. This is because, in accordance with ch 23 s 2, the minimum permissible penalties for attempt, conspiracy

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personnel have no special authority to use force, the ordinary exculpatory rules on self-defence (cc chapter 24, section 1) and necessity (cc chapter 24, section 4) apply. The problem, however, is not at the level of jurisdiction, or regarding the appropriateness of using the general exculpatory rules to cover situations where people are using heavy weapons, perhaps even before the assumed assailant has opened fire.58 The problem is instead the practical one of obtaining proof that an offence has been committed. That armed force has been used against a suspect vessel, perhaps at long distance, may even be totally denied. An important factor in keeping pscs within the law in democratic states – investigative journalists – are not present on ships out at sea. Unless radio traffic indicating that an armed incident has occurred has been intercepted and recorded there will be no proof that it has. There may be indirect evidence, eg there may be a considerable discrepancy between the ammunition loaded and unloaded later, but even assuming that this is noticed (and it is easy to see how the rules in section 13 can be circumvented), the discrepancy could probably be explained away by the need to expand ammunition on training exercises – which in turn are necessary to maintain a high degree of readiness. I do not believe that the relatively tough penalties for taking on-board unauthorized weapons or large quantities of ammunition can prevent this problem. A ship must after all have enough ammunition and a sufficient number of powerful weapons to beat off a sustained pirate attack, perhaps from several small boats simultaneously. Even if a vessel indicates that it is under pirate attack, and that force is being used in response, by the time naval forces arrive, the incident is likely to be over. It is highly unlikely that there will be any witnesses to challenge the master’s and the security personnel’s version of events that minimal, or proportional, force was used. Swedish police and the (specialist) prosecutor likely to be given the task of applying the law59 can admittedly interview the people concerned, assuming they have not disappeared, but this will occur long after the incident, when all the participants have had ample time to get their

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and preparation can fall below the four year minimum in p. 7. For discussion of relevant jurisdictional provisions and prosecution rules, see Iain Cameron, ‘Jurisdiction’ in Iain Cameron and others, International Criminal Law from Swedish Perspective (Intersentia, 2011). The applicability of these rules to the use of force by Swedish armed forces abroad has been criticized as inappropriate. See Magnus Sandbu, ‘Det straffrättsliga ansvaret vid militära fredsframtvingande insatser’ (2009) Svensk juristtidning 748. See also as regards police use of these rules, Johan Boucht, Polisär våldsanvändning (Iustus 2011). For the Swedish prosecutorial system for extraterritorial crimes, see Iain Cameron, ‘Introduction’ in Cameron and others (n 57).

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stories together. It is difficult to avoid the conclusion that enforcement of the law is almost totally dependent upon the ship’s master telling the whole truth, something which s/he has little incentive to do if he or she has behaved negligently or otherwise wrongfully. The Swedish Minister of Justice more or less admitted this, when she was questioned about the Act in the parliament.60

Concluding Remarks

The traditional structure of international law leaves little room for law-making by non-state actors.61 The inadequacy of the framework of public international law to understand the reality and complexity of the regulation of transnational activities is one reason why new frameworks such as ‘global administrative law’ are being advanced.62 And certainly this should give international lawyers occasion to question the relevance and importance of their subject.63 The case of pmscs shows the interplay between public international (treaty) law, national regulation (administrative law, civil law, criminal law) and self-regulation. It can be seen as something desirable, or undesirable. But I think it is a taste of things to come and a real challenge for the next generation of international lawyers. I (and possibly Said too?) am happy to hand on this troublesome baton to the next generation, but I can say a few words of warning. I think we should be sceptical of solutions only, or largely, based on selfregulation. This is demonstrated graphically by the present financial crisis. The financial sector in many states used its muscle to weaken regulatory legislative frameworks on the basis that the unseen hand of the market knew best. But markets are not self-regulating: abdicating responsibility for state regulation 60 61

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Minutes of the Swedish parliament, 2012/13:101 (2 May 2013). cf Daphne Richemond-Barak, ‘Can Self-Regulation Work? Lessons from the Private Security and Military Industry’ (2014) Michigan Journal of International Law (forthcoming). For an analysis of the input of human rights ngos to the law making process and their legal capacity, see Anna-Karin Lindblom, Non-Governmental Organisations in International Law (Cambridge University Press 2005). This is already a large field, see eg Benedict Kingsbury, Nico Krisch and Richard B Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 European Journal of International Law 15; Anna-Sara Lind and Jane Reichel (eds), Administrative Law Beyond the State: Nordic Perspectives (Liber & Martinus Nijhoff 2013). Something which strikes me often when I am abroad is the way an agreement between private actors, namely the major banks regarding reciprocal honouring of their customers’ credit card purchases, has meant, in effect, the creation of an international currency.

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over important issues gives free rein to corruption, abuses of dominant positions, incompetence and greed. The elaboration of the regulatory framework is shifted from the legislature to the business or industry itself, or (as in the case of pmscs) to a network of representatives from governments, self-appointed ngos and figures from industry. But it is incontrovertible that a treaty cannot easily or quickly be negotiated where states political and economic interests are so wide apart. A non-binding framework produced by an industry with ‘soft law’ norms for states is undoubtedly particularly attractive when ‘states are unsure about what they can feasibly implement’.64 When it comes to pmscs, the challenge is the oversight in practice, not so much whether or not states should have in place a regulatory framework to govern extraterritorial activities. Sweden has endorsed the Montreux document, and regulates the activities of pscs on its own territory. The relatively limited private security business in Sweden shows that the maintenance of public security has certainly not been abdicated to the private sector. The Swedish Act on Security on Board Swedish Vessels shows that it was also willing to regulate the use of pmscs on Swedish vessels. But it is incontrovertible that the oversight provided is ‘oversight-lite’ and hoping for the best. Critics might say that this is all that could be expected in the circumstances. I think that once you have accepted the arguments of the shipowner that armed security personnel are necessary, then the Act, or something similar, as probably about the most that can be expected. But this obscures the fact that there were other options available: either to rule out armed personnel on vessels altogether, and to allow only defensive measures, or to insist on vpds, even if these are expensive and difficult to administer. 64

Kal Raustiala, ‘Compliance and Effectiveness in International Regulatory Cooperation’ (2000) 32 Case Western Reserve Journal of International Law 387, 426. See also RichemondBarak (n 61).

The Mandate of the United Nations Security Council in a Changing World Hans Corell 1 Introduction The question of the mandate of the United Nations Security Council in a changing world is closely related to the ongoing work of reforming the un. Such reform must be made in a manner that the Organisation can serve the purposes and apply the principles laid down in its Charter of 1945. This is a major challenge for creating a peaceful world. A key element, if not the most important component in this effort, is to reform the Security Council. This item has been on the agenda of the General Assembly for many years. Over the past 20 years intense work has been devoted to the topic, culminating in a series of intergovernmental negotiations that started in 2009. An obvious element in these negotiations is the changing geopolitical situation since the establishment of the United Nations in 1945. The question is, however, whether the ideas brought forward in the debate – often reduced to mathematical exercises comparing the un membership in 1945 and today with the fifteen-member Security Council – risk missing the core issue in any reform of the Council, namely the manner in which the members of the Council honour the obligations that flow from the mandate entrusted to the Council by the members of the Organisation. In the following these questions will be discussed under the titles: mandate and composition of the Security Council; the present geopolitical situation as compared to the situation in 1945; the performance of Council members; options for reforming the Council; and the manner in which the Charter requires the Council to fulfil its mandate. A concluding section contains a number of caveats and a warning that a reform that overlooks certain key elements in the mandate of the Security Council could cause irreparable damage to the un system of collective security. 1 The views expressed in this article are the personal reflections of the author, based primarily on his experiences as the Legal Counsel of the United Nations from 1994–2004, and as the Legal Adviser from 2008–13 to the Panel of Eminent African Personalities, established by the African Union and chaired by former un Secretary-General Kofi Annan, to assist the Kenya National Dialogue and Reconciliation after the post-election violence in 2007–2008.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004274587_004

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Mandate and Composition of the Security Council

The mandate of the Security Council is laid down in article 24 of the Charter. In this provision, the members of the Organisation ‘confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf’. Most importantly in this context is that this authority is given to the Council ‘in order to ensure prompt and effective action by the United Nations’. The provision further prescribes that in discharging these duties the Security Council is bound to act in accordance with the purposes and principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI–XII of the un Charter. Of particular interest is article 39 in Chapter VII: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. (emphasis added) As it appears from the imperatives in this provision the Council is under an obligation to make decisions for the purpose of maintaining or restoring international peace and security. Under article 25 the members of the un are obliged to accept and carry out such decisions. The composition of the Security Council is regulated in article 23. Originally, the Council consisted of eleven members, among them the five permanent members China, France, the then Union of Soviet Socialist Republics, now the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. Through an amendment to article 23, which came into force on 31 August 1965, the membership of the Council was enlarged to fifteen members, among them the permanent five members. With respect to the decision-making in the Council, except on procedural matters, article 27(3) prescribes that decisions shall be made by an affirmative vote of nine members, including the concurring votes of the permanent members. In other words, the permanent members have the right of veto. Since the subject matter discussed in this article may lead to amendments to the un Charter it is important to recall that in accordance with article 108 of the Charter amendments come into force for all un members when they have been adopted by a vote of two thirds of the members of the General Assembly

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and ratified by two thirds of the members of the Organisation, including all the permanent members of the Security Council. 3

The Present Geopolitical Situation as Compared to the Situation in 1945

With respect to the present geopolitical situation there have been tremendous changes since the un was established. At that time the world population was around 2 billion. Today, we are slightly over 7 billion, and according to the latest prognosis of the United Nations Population Division we will be some 9.5 billion in 2050.2 In 1945, many peoples around the world were not granted self-determination; they lived in colonies. One of the major achievements of the United Nations is the decolonisation through the trusteeship system under the un Charter. Today, 193 sovereign states are members of the Organisation. Among those, maybe some 120 could be defined as democracies at various stages.3 At that time, wars and armed conflicts were fought mainly between states, and the first efforts at un peacekeeping were designed to address such situations. Today, conflicts are primarily non-international and un peace operations are designed accordingly, including for peace enforcement and peacebuilding. The concept of responsibility to protect has been developed and endorsed both by the General Assembly and the Security Council.4 At the same time other threats against humanity have emerged. Rising co2 levels have led to climate change. Melting ices, a rising sea level and desertification will have very serious consequences in the future, in particular since some inhabited areas of the globe risk becoming inhabitable. In those days the international legal system was not as developed as it is today. The progress in this field since then has been significant, notably in areas like human rights and international humanitarian law. Then, very little 2 See un Department of Economic and Social Affairs, ‘World Population 2012 Wall Chart’ accessed 24 April 2014. 3 Standards certainly vary. Reference is made to the Intelligence Unit of The Economist accessed 24 April 2014; the us Department of State, ‘Democracy’ accessed 24 April 2014; the web site of the Nobel Prize, ‘Democracies in the World’ accessed 24 April 2014. 4 See The World Summit Outcome, unga Res 60/1 (24 October 2005) un Doc A/RES/60/1 [138][139]; unsc Presidential Statement 28 (2006) un Doc S/PRST/2006/28.

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could be done to fight the impunity that reigned in connection with conflicts. It is true that the Nuremberg and Tokyo tribunals were established after World War II. But these were unique attempts to bring perpetrators of international crimes to justice. Now the situation is different. Over the last 20 years international or mixed criminal tribunals have been established to address the situations in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia. And there is now an international criminal justice regime established by the 1998 Rome Statute of the International Criminal Court, at present ratified by 122 states.5 Although the concept rule of law is not expressly mentioned in the un Charter, gradually un members have come to realize that this is one of the fundamental elements for creating a peaceful world. Several resolutions have been adopted focusing on the rule of law. Of particular interest in this context is the emphasis on the importance of the rule of law as one of the key elements of conflict prevention, peacekeeping, conflict resolution, and peacebuilding and that justice, including transitional justice, is a fundamental building block of sustainable peace in countries in conflict and post-conflict situations.6 Furthermore, the rule of law is an indispensable component in addressing some other mayor challenges that also threaten international peace and security: terrorism, poverty, disease, transnational crime, and corruption. At the same time there has been tremendous development in the fields of science and technology. Suffice it to mention in this context communications, both through traditional means, and through the Internet. All these factors exemplify elements that – together with the fall of the Berlin Wall in 1989 and the end of the Cold War – must be taken into consideration when the Security Council exercises its mandate under the un Charter and when the need for reforming the Council is discussed. 4

The Performance of Council Members

In analyses of this question a point of departure is invariably that during the Cold War, the Council was unable to fulfil the mandate as laid down in and required by the un Charter. It is true that peacekeeping missions were 5 See icc, ‘The State Parties to the Rome Statute’ accessed 4 may 2014. 6 See eg unga Res 67/1 (24 September 2012) un Doc A/RES/67/1; unga Res 68/116 (16 December 2013) un Doc A/RES/68/116.

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established, and that they contributed to maintaining international peace and security in accordance with their mandates. However, the tensions between the major powers on the Council, in particular the Soviet Union and the United States, were a prohibitive factor in many situations. A major shift occurred at the fall of the Berlin Wall in 1989 and the end of the Cold War. All of a sudden it was possible for the members of the Council to unite around important resolutions. The resolutions establishing the international tribunals for the former Yugoslavia and Rwanda in 1993 and 1994 respectively could be mentioned as examples.7 However, this unity was soon put to the test and major differences developed. The situation in Kosovo in 1998–1999 and the situation in Iraq in 2002–2003 are often mentioned as examples in analyses of this development.8 The dramatic and tragic development in Iraq prompted then un SecretaryGeneral Kofi Annan to deliver his by now famous address about the ‘fork in the road’ to the General Assembly on 23 September 2003. He focused on the threats that must be dealt with, and the need for the United Nations to confront these threats. At the same time he noted the disagreement on how to deal with them. Specifically, he noted that some states seem to argue that they have the right and obligation to use force pre-emptively, even on the territory of other states, and even while weapons systems that might be used to attack them are still being developed. He went on to say that ‘[t]his logic represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years’. He then focused on the adequacy and effectiveness of the existing rules and instruments and continued: Among those instruments, none is more important than the Security Council itself. In my recent report on the implementation of the Millennium Declaration, I drew attention to the urgent need for the Council to regain the confidence of States, and of world public opinion – both by demonstrating its ability to deal effectively with the most difficult issues, and by 7 unsc Res 808 (22 February 1993) un Doc S/RES/808, unsc Res 827 (25 May 1993) un Doc S/RES/827; unsc Res 955 (8 November 1994) un Doc S/RES/955. 8 See eg Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford University Press 2001); David M Malone, The International Struggle Over Iraq: Politics in the un Security Council 1980–2005 (Oxford University Press 2006); Nicholas J Wheeler and Justin Morris, ‘The Security Council’s Crisis of Legitimacy and the Use of Force’ (2007) 44 International Politics 214.

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becoming more broadly representative of the international community as a whole, as well as the geopolitical realities of today. (…) As for the composition of the Council, that has been on the agenda of this Assembly for over a decade. Virtually all Member States agree that the Council should be enlarged, but there is no agreement on the details.9 There is no doubt that there is great support among the members of the United Nations for an enlargement of the Council. And surely, this would add to the legitimacy of the Council, acting on behalf of the members of the Organisation. However, irrespective of the result of such an enlargement there will always be members who are disappointed. Therefore, at the heart of the matter is the manner in which the members of the Council discharge their functions. This is why more attention simply must be paid to this element. In discussing this question, it is important to focus specifically on the limits on the power entrusted to the Council by the un Charter. The general provision in article 24(2) that the Council shall act in accordance with the purposes and principles of the un is not very precise. However, it goes without saying that the Council in its decision-making must observe rules defined as ius cogens and fundamental human rights and international humanitarian law rules. In this context a problem related to the manner in which the Council adopted resolutions in the field of counterterrorism should be mentioned. Specifically, the system of the terrorist listings introduced by resolution 1267 (1999) could be called into question. Concerns were expressed that it may only be a question of time until a regional or national court in Europe arrives at the conclusion that listing people in the way the Council prescribes could amount to a violation of international human rights norms, unless the individual has a remedy that meets the standards prescribed in binding human rights norms. These concerns came true in 2008 through a ruling by the European Court of Justice.10 This author has consistently maintained that indefinite listing of persons in the manner that is now practiced requires that the persons listed have access to an independent and impartial court as a last resort.11 9

United Nations, ‘The Secretary-General Address to the General Assembly’ (New York, 23 September 2003) accessed 24 April 2014. 10 See Case C-402/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities Judgment by the European Court of Justice [2008] ECR I-6351 [gc], 3 September 2008, (the Kadi case). 11 Hans Corell, ‘Reflections on the Security Council and Its Mandate to Maintain International Peace and Security’ in Ola Engdahl and Pål Wrange (eds), Law at War – The

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Another question that needs careful attention is the legislative power that the Security Council has assumed through the adoption of generally binding resolutions that do not address a specific situation related to the maintenance of international peace and security. By way of example could be mentioned the discussion in relation to resolution 1540 (2004), in which the Council, acting under Chapter VII of the Charter, decided inter alia that all states shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials and to that end maintain a number of specific measures.12 When this issue was discussed in the Security Council on 22 April 2004 before the adoption of this resolution some states expressed concerns. The following quote from a detailed statement of the representative of India could serve as an illustration: Our recognition of the time imperative in seeking recourse through the Security Council does not, however, obscure our more basic concerns over the increasing tendency of the Council in recent years to assume new and wider powers of legislation on behalf of the international community, with its resolutions binding on all States. In the present instance, the Council seeks to both define the non-proliferation regime and monitor its implementation. But who will monitor the monitors? We are concerned that the exercise of legislative functions by the Council, combined with recourse to Chapter VII mandates, could disrupt the balance of power between the General Assembly and the Security Council, as enshrined in the Charter.13 The discussion has continued thereafter, extending also to other situations, notably resolutions adopted by the Security Council imposing sanctions on Iran.14 This is not the moment to go into detail regarding these aspects of the mandate of the Council. However, the issue requires attention by the members of the Council in their future work.

Law as it Was and the Law as it Should Be: Liber Amicorum Ove Bring (Martinus Nijhoff Publications 2008). 12 unsc Res 1540 (28 April 2004) un Doc S/RES/1540. 13 See unsc, ‘4950th meeting, Thursday 22 April 2004, 9.50 am New York’ un Doc S/PV.4950. 14 See e.g. Daniel H Joyner, ‘The Security Council as a Legal Hegemon’ (2012) 43 Georgetown Journal of International Law 225.

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Finally, a critical element with respect to the performance of the Council members is that they correctly understand their duties as members of the Council and in particular that these duties must be honoured when they define their national interests. 5

The Options for Reforming the Council

The question of reforming the Security Council has now been on the agenda of the General Assembly for some 20 years. Since 2009 there have been several rounds of intergovernmental negotiations based on a series of decisions by the General Assembly.15 The first of these decisions, 62/557, identified five key issues that should form the basis for the intergovernmental negotiations: categories of membership, the question of the veto, regional representation, size of an enlarged Council and working methods of the Security Council, and the relationship between the Council and the General Assembly.16 In 2009, the President of the General Assembly appointed Mr Zahir Tanin, Permanent Representative of the Islamic Republic of Afghanistan, to chair the intergovernmental negotiations on his behalf – an appointment that has been renewed through the years. On 25 July 2012 after the eighth round of intergovernmental negotiations Ambassador Tanin set out in a letter to the member states the state of negotiations to forge a way forward towards a solution which would garner the widest possible political support.17 The letter contained a number of recommendations, among them one that caused some controversy, namely that he be given a mandate to provide a concise working document for the continued negotiations. The main trend in the debate, the latest held in the General Assembly on 7 and 8 November 2013, seems to be that states support an enlargement of the Council in both the permanent and non-permanent member categories.18 15

unga Decision 62/557 (15 September 2008); unga Decision 63/565 (14 September 2009); unga Decision 64/568 (13 September 2010); unga Decision 65/554 (12 September 2011); unga Decision 66/566 (13 September 2012); unga Decision 37/561 (29 August 2013). 16 The decision is available at accessed 24 April 2014. 17 Letter from Ambassador Tanin to Mr Nassir Abdulaziz Al-Nasser (25 July 2012) accessed 24 April 2014. 18 See un Docs A/68/PV.46; A/68/PV.47; A/68/PV.48; A/68/PV.49. Additional comments on the item were made by India, Brazil, South Africa, and Benin in the General Assembly on 21 November 2013. See un Doc A/68/PV.56.

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However, there are extremely diverging views among states with respect to how a reform should be devised. The following quotes from the latest debate could serve as an illustration. St Kitts and Nevis, speaking on behalf of the L.69 group (a diverse group of 42 developing countries from Africa, Latin America and the Caribbean, and Asia and the Pacific, united by a common cause): It was in 1963, 50 years ago, that the most recent expansion enlarged the membership of the Security Council from 11 to 15 – a modest increase of four, in the non-permanent category only. Since then, the membership of the United Nations has increased from 113 to 193. Eighty Members have been added, but that has not altered by an inch the composition of the Organization’s premier body mandated to maintain international peace and security.19 Italy, speaking on behalf of the Uniting for Consensus Group (Canada, Italy, Colombia and Pakistan): We remain absolutely convinced that the creation of new permanent individual members would be a mistake (…) Nobody would benefit from a piecemeal approach or rushed solutions motivated mainly by the desire to increase the number of seats in the Security Council. We should not repeat the mistakes made in the past, when attempts to push through hurried and divisive solutions both failed, and made the entire reform exercise even more complicated.20 Since any amendment to the un Charter requires the approval of the five permanent members of the Security Council it is interesting to note also their positions in the latest debate. The following are quotes from their statements in the order in which they spoke. Russian Federation: Let us not assume that a broader Security Council would be more able to find the appropriate solutions. It would more than likely complicate that process (…) Russia has championed making the Security Council a more representative body. However, such efforts should not affect the Council’s ability to respond to emerging crises and challenges rapidly and effectively, all the more pressing today as we 19 See un Doc A/68/PV.46, 12. 20 Ibid, 13.

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witness a growing number of conflicts throughout the world. We are in favour of keeping the Council as it is, namely compact. Its optimal number should not exceed 20 members.21 United Kingdom: It is an opportunity for us to highlight our clear commitment to reforming the Security Council so that it is more representative of the modern world. We know that the vast majority of member states share that overarching aim (…) The United Kingdom supports broadening Council membership to include permanent seats for Brazil, Germany, India and Japan. We also support the expansion in the non-permanent category of members.22 United States of America: Their contributions [referring to 79 different Member States having served as non-permanent members on the Council since 1993] demonstrate that we need a Security Council that better represents twenty-first century realities and is maximally capable of carrying out its mandate and effectively meeting global challenges of this century (…) The United States is open to modest expansion of the Council in both the permanent and non-permanent categories.23 China: (…) the Security Council must adapt to the changing international situation through reform so that it can better fulfil its sacred responsibility given by the United Nations Charter (…) The priority in reforming the Security Council should be to increase the representation of the developing countries, in particular the countries of Africa, and provide more opportunities for medium-sized and small-sized countries, which constitute the majority of the United Nations membership, to enter the Security Council and participate in its decision-making.24 France: The reform of the Council must take into account the emergence of new Powers that are willing and able to assume the responsibilities of a permanent presence on the Security Council and that are, in accordance with the Charter of the United Nations, able to make a significant contribution to the work of the Council. It is in that context that France supports an expansion in both categories of membership and supports in 21 22 23 24

Ibid, 18. Ibid, 20. Ibid, 22. Ibid, 26.

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particular the candidacy of Germany, Brazil, India and Japan as permanent members of the Security Council, and an increased presence of African countries, including among the permanent members.25 The timing of the reform has also become an issue. Many delegations express firm wishes that the reform could be combined with the 70th anniversary of the United Nations in 2015. However, some delegations categorically warn against a fixed timetable stressing that the substance of the reform is more important than the timing. The following quote from the statement of Mexico could serve as an illustration to the latter position: Cyclical celebrations do not bring magical solutions that are not backed up by broad, solid agreements. As long as the lack of flexibility and political will on the part of some is aimed at privileging a few, no reform is possible. We should concentrate our efforts on the substance and not on the calendar.26 With some exceptions the debate tends to focus completely on the various options for an enlargement of the Council. A common element in the many interventions in the debate is that the Security Council needs to be more ‘representative, accountable, and democratic’. The question of the composition of the Council is of course political, and it is true that the present composition of the Council reflects the geopolitical situation after World War II. It is therefore understandable that the Council membership has become an issue. However, as the present author has emphasized in a letter to the members of the United Nations of 10 December 2008, the composition of the Council cannot be completely delinked from the legal aspects of the Charter and the mandates entrusted to the different un organs.27 With respect to an extended membership, the highest figure proposed that the present author has been able to identify is 31 members.28 However, the Council is designed to be an executive organ, and the question is whether the Council can function if its membership is increased in this manner. If too 25 26 27

28

Ibid, 28. un Doc A/68/PV. 46, 15. Hans Corell, ‘Security Council Reform: Rule of Law More Important than Additional Members’ (Letter to The Government of the Members of the United Nations, 10 December 2008) accessed 24 April 2014. Philippines, in a message to Ambassador Tanin in May 2010, confirmed in the General Assembly on 7 November 2013. See un Doc A/68/PV/47, 25.

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many members are added, there is a clear risk that the Council becomes inoperable. This might very well happen already if its present membership of fifteen is increased and in particular if additional veto wielding members are admitted. Furthermore, with few exceptions, there is not much attention paid in the debate to the effect of an increased membership if it is not combined with a firm commitment on the part of those elected to respect international law and in particular the un Charter, which the Council is set to supervise. The overriding purpose of a Security Council reform must be to see to it that the members of the Council actually honour the trust that the members of the Organisation have conferred on it under article 24 of the Charter. On 22 October 2013 the President of the General Assembly appointed six Permanent Representatives to serve as an Advisory Group to himself, namely the Permanent Representatives of Belgium, Brazil, Liechtenstein, Papua New Guinea, San Marino and Sierra Leone.29 Its purpose is to produce a basis for the start of the intergovernmental negotiations including available options. In early December 2013 the group provided the President with a non-paper capturing what states had suggested so far. By letter of 10 December 2013 the President communicated this paper to the member states through Ambassador Tanin to assist in the organisation of the intergovernmental negotiations, while ensuring that General Assembly decision 62/557 remained the continued basis for the negotiation process.30 Obviously, the geopolitical changes that have occurred since the establishment of the United Nations require a reform of the Security Council, including its composition. However, the question is what is most important: a well-functioning Council or changes in the composition of the Council. The apparent answer to this question is that the Council simply must function in a manner that it can fulfil its mandate under the un Charter. In particular, the members of the Council must respect the principles of the rule of law and, above all, they must bow to the un Charter. At the same time the Council must be maintained as an executive organ in order to fulfil the requirement in article 24 ‘to ensure prompt and effective action’. 29

30

Letter from John W Ashe (22 October 2013) accessed 24 April 2014. Letter from John W Ashe to Mr Zahir Tanin, Permanent Representative of Afghanistan to the United Nations (10 December 2013) accessed 24 April 2014.

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This brings to the forefront the argument advanced in the debate just referred to, namely that the Council must be more representative, accountable, and democratic. It is, however, important to make a clear distinction here between ‘representative’ and ‘democratic’. The first question is where the focus should be. The composition of the Council reflects the situation in 1945. It is obvious that the composition must be revisited in view of the geopolitical development since then. The Council must therefore be more representative. The argument that the Council must be more democratic is, however, a misconception. It misses a very important legal point, namely that a characteristic of an executive body is not that it is ‘democratic’ in the sense that everybody or as many as possible have a say. On the contrary, decisive characteristics of an executive body in any organisation is that it is representative while at the same time very limited in size and that in the exercise of its authority it has to faithfully apply a set of rules. Therefore, any comparison between the size of the General Assembly and the number of Council members, suggesting that the Council should be enlarged simply because the membership of the United Nations has increased substantially over the years misses the very important point that the Council simply must be a functioning executive organ. Consequently, more attention must be given to the manner in which the members of the Council perform their duties. This applies in particular to the permanent five members. It is true that the Council over the years has made great contributions to the Organisation’s work to maintain international peace and security. However, unfortunately, there are also great deficiencies in the performance of the permanent members. And sometimes we have seen clear violations of the un Charter, like the attacks on Iraq in 2003 and Georgia in 2008. If this problem is not properly addressed, any reform of the Council risks becoming meaningless, if not counter-productive. Against this background, the question must be asked if there is a need to change the composition of the Council at the moment. Would it not be better to focus on a more radical reform of the Council’s composition than is presently contemplated and at a time when we have seen the undoubtedly dramatic geopolitical shifts that will occur within the next decade or two? It is also important that democracy and the rule of law are established in more countries so that the proud declaration in General Assembly resolution A/RES/67/1 of 24 September 2012 on the rule of law becomes a reality.31 Such a situation would make it possible to make a more far-reaching reform within the present size of the Council resulting in a composition that reflects the membership of the Organisation in a more reasonable and just mode than is presently the case. 31

See (n 6).

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6

The Manner in Which the Charter Requires the Council to Fulfil Its Mandate

While the Council could be said to be the most powerful organ of the United Nations, the inability of the Council to take action in certain situations when it could and should do so is maybe the weakest link in the fulfilment of the purposes and principles of the United Nations. The latest example is Syria, a sad reminder of the Council’s failure to act in unity to protect a population that is the victim of grave international crimes. I am not for a moment suggesting that the Council should have resorted to the use of force when the events unfolded. But an immediate, determined and unified reaction on the part of the Council would have made a tremendous difference, and maybe the present situation could have been avoided. This shortcoming is addressed in the aforementioned letter to the un members of 10 December 2008: This inability of the Security Council to act in certain situations when it should do so is deplorable. It is all the more sad since the Council is actually in a formidable position to make a difference in the world if its members, and notably the permanent members, joined hands and agreed to adhere strictly to international law and in particular the un Charter. In addition, the permanent members of the Council could make a commitment to use their veto only in situations where their own most serious and direct national interests are affected. They could also agree to take action when in the eyes of a well-informed general public this would be the obvious thing to do. Such steps would send a resounding signal around the globe, in particular to oppressive regimes and presumptive warlords, i.e. those who cause the conflicts that the Council will be faced with unless they are prevented.32 It was against this background that this author proposed and has kept reiterating since then that in the negotiations on the composition of the Security Council all un members engage in a discussion with the five permanent members of the Council whether such commitments on their part might be the way ahead rather than increasing the membership of the Council at present. An alternative solution could be such a step in combination with a very modest increase in the Council’s membership. 32

See (n 27).

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Consequently, irrespective of the outcome of the negotiations on the composition of the Council, the permanent five members should make a solemn declaration of the kind that would be binding under international law along the lines set out in the Annex to the 10 December 2008 letter containing the following four elements:33 • To scrupulously adhere to the obligations that they have undertaken under international law and, in particular, those laid down in the Charter of the United Nations; • To make use of their veto power in the Security Council only if their most serious and direct national interests are affected and to explain, in case they do use this power, the reasons for doing so; • To refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state unless in self-defence in accordance with article 51 of the Charter of the United Nations or in accordance with a clear and unambiguous mandate by the Security Council under Chapter VII; and • To take forceful action to intervene in situations when international peace and security are threatened by governments that seriously violate human rights or fail to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity or when otherwise the responsibility to protect is engaged. It should be emphasized that the intention behind this proposal is to inspire a serious discussion of the issue and that the text of the draft declaration should be regarded as food for thought, rather than an attempt to propose the exact wording of such a declaration. However, interestingly this idea could now be further developed in the light of the proposal by France introduced by President François Hollande in the debate in the General Assembly on 24 September 2013. The following is a quote from his statement: My message is simple. In any domain, whether international security, nuclear proliferation, development or climate change, the worst threat is inaction, the worst decision is to take no decision, and the worst danger is to not see any. And the United Nations bears the responsibility to act. Each time the Organization appears powerless, peace is the first victim. That is why I am proposing that the permanent members of the Security 33

The Annex is attached for ease of reference.

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Council define a code of conduct such that in cases of mass crimes, they may collectively decide to renounce the right of veto.34 This proposal was further developed by Foreign Minister Laurent Fabius in an article in the New York Times on 4 October 2013. Summarizing the proposal he said: Our suggestion is that the five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto. The criteria for implementation would be simple: at the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply. To be realistically applicable, this code would exclude cases where the vital national interests of a permanent member of the Council were at stake.35 As it appears, the French proposal, which was supported by many delegations in the General Assembly debate in November 2013, is founded on the same theory as the declaration proposed in the 2008 letter – a voluntary yet binding undertaking by the permanent five members. Hopefully this idea could be further developed and lead to a positive and constructive result that literally would make a world of difference. Needless to say, if the negotiations result in a future amendment to the un Charter, the elements discussed here could be laid down in the Charter itself. In this context it is also important to focus on the connection between international peace and security and the possibility of bringing perpetrators of genocide, war crimes and crimes against humanity to justice. Here, the Security Council has an important role to play. The fact that the Security Council established the international war crimes tribunals for the former Yugoslavia and Rwanda and initiated the establishment of the Special Court for Sierra Leone testifies to this. And now we also 34 See un Doc A/68/PV.5, 34. 35 See Laurent Fabius, ‘A Call for Self-restraint at the un’ (The New York Times, 4 October 2013) accessed 24 April 2014.

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have the International Criminal Court, established by the 1998 Rome Statute. Under article 13(b) of the Statute the Council is authorized to refer to the Prosecutor of the icc situations in which one or more crimes under the Statute appears to have been committed. This option has been used by the Council in two situations: the Sudan and Libya. However, if the Council avails itself of this procedure it is important that the Council also acts in consequence and vigorously supports the icc. This applies in particular if the evidence in the situation at hand leads the Prosecutor to officials at the highest national level and specifically if arrest warrants are issued.36 This authority vested in the Security Council by the Rome Statute is actually one of the key elements among the resources available to the Council in the execution of its mandate. The primary goal in the work to maintain international peace and security must of course be to prevent conflicts. And the best way to prevent conflicts is to make certain that dictators and warlords are not allowed to act with impunity. The present situation in Syria demonstrates with terrifying clarity that the permanent members simply must engage in a principled discussion on how to cooperate in the future. In particular, the permanent members need to draw a line to signal that, if in a conflict this line is passed, the Council simply must intervene, if necessary by force. Not to send this signal would be to just sit back and wait for the next ‘Syria’ anywhere in the world where democracy and the rule of law are absent. In this context it is pertinent to refer again to the proposal by France just mentioned. It is also crucial that the members of the Council abandon their tendency to apply different standards depending on the political situation analysed in a very narrow national perspective. In an international society under the rule of law the only way forward is that international law is applied to all actors objectively and according to the same standards. Of particular concern in this context is that the us in applying the un Charter uses a completely different yardstick in the Middle East as compared to elsewhere in the world. This behaviour is actually poisoning the atmosphere in the entire un system. 7 Conclusions The question is then what conclusions can be drawn from this reasoning.

36

Hans Corell, ‘International Prosecution of Heads of State for Genocide, War Crimes and Crimes against Humanity’ (2009) 43 The John Marshall Law Review xxv.

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A point of departure must be that the changing geopolitical situation requires that the Security Council be reformed. However, at present the main focus should not be on extending the membership of the Council but on a long overdue reform that could be executed almost immediately and at that without amendments to the un Charter. The focus of this reform should be on the manner in which the members of the Security Council exercise their mandate and in particular the responsibility that rests with the permanent five members of the Council. The guiding principle for this reform should be the need for the rule of law at the national and international levels and the demands on the Council that such a regime entails. At the same time the discussions on the composition of the Security Council should continue with a focus on an even more radical reform than is presently contemplated and within the limits of its present size. In these discussions there is need for statesmanship – in particular circumspection and foresight – when states define their national interests. The message from the InterAction Council of Former Heads of State and Government from 2010 comes to mind: The five permanent members must realize that they are the bearers of a great responsibility and that they represent all nations and not just their national interests.37 If the Council in its present composition demonstrates that it is able to perform its duties in a more unified, objective and effective manner, there is no need for an immediate change of the Council’s composition. In the long-term perspective, it would rather be preferable that any changes in the Council’s composition are decided when the tendencies in the present geopolitical shift appear more clearly and when there are additional demo­ cracies among the members of the United Nations. Needless to say, the working methods of the Council can be addressed at any time as appropriate since they can be improved without amendments to the Charter. To the un membership at large this approach should be acceptable since this would avoid the risk of creating a too large and maybe inoperable Council or a Council that would simply continue on a ‘business as usual’ basis. This approach should be acceptable also to the permanent five members since it would put them in a position to actually deliver. And, again, the question is whether the situation in Syria could have been avoided if the permanent 37

Inter Action Council, ‘Final Communiqué, 28th Annual Plenary Meeting, 18–20 April 2010, Hiroshima, Japan’ accessed 24 April 2014.

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members a few years ago had adopted a strategy along the lines suggested here. If international peace and security is to be ensured for the future, the main responsibility rests with the permanent members of the Security Council. If they fail, there is a clear risk that the un will lose authority and that the Organisation will be at risk. The argument is sometimes advanced that if the un fails it would be necessary to create a new world organisation. This is an extremely dangerous reasoning. We should respect the un Charter and its legacy and always remember that it was produced by a generation that had experienced two world wars. And surely the permanent members realize that if they undermine the authority of the Security Council and thereby the un as a whole, in any new structure they will never ever be given the legal authority that they are accorded under the un Charter – to permanently sit on a body that is authorized to make decisions, including on the use of force, that all members of the Organisation are under a legal obligation to follow. In view of the positions that many states have taken in the ongoing negotiations it can be assumed that they may react negatively to the ideas advanced here. This applies in particular to states that aspire to a more permanent presence in the Security Council, and states in regions that do not have a permanent representation in the Council. By way of example, the fact that Africa does not have such representation is an anomaly. It is, however, of greatest importance that states proceed with caution here. All this must be viewed in a longtime perspective, bearing the interests of coming generations in mind. The lodestar must be to safeguard the system of collective security in the un Charter. There is at present a clear risk that political expediency and an almost frantic focus on extending the membership may result in an inoperable Council. If this happens, the damage to the system of collective security will be irreparable.

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corell Annex to a Letter of 10 December 2008 from Former Legal Counsel of the United Nations Hans Corell to the Governments of the Members of the United Nations

Draft Declaration by the Permanent Members of the Security Council38 We, the permanent members of the Security Council, Mindful of the responsibility of the Security Council under the Charter of the United Nations for the maintenance of international peace and security; Realizing that the ever present threats to international peace and security are now exacerbated by the effects of climate change in combination with a rapidly growing world population; Aware of the fact that failure on the part of the Security Council to act in situations where action is obviously required may cause unnecessary human suffering and may tempt others to intervene, including by the use of force, without the required authorization of the Council; Realizing that such actions by others will undermine the respect for the Charter of the United Nations and may in themselves pose a direct threat to international peace and security; Conscious of the fact that a failure by the members of Security Council to set the example by scrupulously adhering to international law and the Charter of the United Nations will have devastating effects on the efforts to establish the rule of law at the national and international level, Have agreed to make the following solemn undertaking: We pledge • To scrupulously adhere to the obligations under international law that we have undertaken and in particular those laid down in the Charter of the United Nations; • To make use of our veto power in the Security Council only if our most serious and direct national interests are affected and to explain, in case we do use this power, the reasons for doing so; • To refrain in our international relations from the threat or use of force against the territorial integrity or political independence of any state unless in self-defence in accordance with Article 51 of the Charter of the United Nations or in accordance with a clear and unambiguous mandate by the Security Council under Chapter VII; • To take forceful action to intervene in situations when international peace and security are threatened by governments that seriously violate human rights or fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity or when otherwise the responsibility to protect is engaged. [end] 38

I would like to emphasize that the intention behind this proposal is to inspire a serious discussion of the issue and that the text should be regarded as food for thought rather than an attempt to propose the exact wording of such a declaration.

Who is Responsible and for How Long?

Final Disposal of Spent Nuclear Fuel and the Obligation to Prevent Proliferation of Nuclear Weapons—A Swedish Perspective Per Cramér

1 Introduction The regulation for preventing that nuclear technological activities lead to the proliferation of nuclear weapons is relatively complex. It is a multi-level system where the multilateral levels interplay with the regional European and the national Swedish regulatory levels. The multilateral regulation in place establishes obligations for the subordinate regulatory levels that are translated into concrete obligations for individual actors concerning safeguards and physical protection of nuclear facilities. Since its establishment, this structure has, with relative success, been applied to nuclear technological activities of a temporal finite character. Final disposal of Spent Nuclear Fuel (snf) is however a proliferation relevant nuclear technological activity that lacks clearly defined timeframes. From this follows that the responsibility to prevent that snf may be used for the proliferation of nuclear weapons does not have a natural sunset. Sweden’s international obligations to prevent the proliferation of nuclear weapons and unauthorised possession of nuclear materials are directly relevant for the final disposal of snf. Primarily relevant are the Non-Proliferation Treaty (npt)1 and the Control Agreement between the euratom, the NonNuclear Weapon States, Members of the euratom and the iaea on implementation of Article III (1) and (4) of the npt.2 These international obligations are binding for Sweden as a state and have been implemented in national Swedish law through the Act on Nuclear 1 Treaty on the Non-Proliferation of Nuclear Weapons (1 July 1968) 729 United Nations Treaty Series 161. 2 Agreement Between the Republic of Austria, the Kingdom of Belgium, the Kingdom of Denmark, the Republic of Finland, the Federal Republic of Germany, the Hellenic Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the Kingdom of Spain, the Kingdom of Sweden, the European Atomic Energy Community and the International Atomic Energy Agency in Implementation of Article III (1) and (4) of the Treaty on the Non-Proliferation of Nuclear Weapons iaea INFCIRC/193.

© koninklijke brill nv, leiden, 2014 | doi 10.1163/9789004274587_005

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Activities section 3,3 and supplementary ordinances. Thereby a relatively clear division of responsibilities on execution, financing and monitoring of safeguards regarding installations for final disposal of snf is established. In addition, an operator of a repository for final disposal has obligations regarding safeguards according to directly applicable provisions of European Law. Both these parallel regulatory structures have the same objective, to guarantee an efficient compliance with the Control Agreement concluded with iaea in accordance with Sweden’s obligations under the npt. Concerning physical protection of nuclear materials and nuclear facilities the multilateral regulation is limited in scope and detail. Changing perceptions of threat during the last decades have however given rise to arguments for a greater regulative rigor within this area. These arguments have been translated into concrete form through the amendment of the iaea Convention on physical protection of nuclear materials, expanding its scope to also cover the physical protection of nuclear facilities.4 It is expected that this amendment, which by the iaea is envisaged to have a major impact in reducing the vulnerability of State Parties to nuclear terrorism, will enter into force in the near future.5 It seems clear that it will be ratified by both the euratom and the member states of euratom. After entering into force, the amendment will be a part of Sweden’s international obligations that are implemented into the national legal order through the Act on Nuclear Activities section 3. In parallel we can expect a development of directly applicable instruments of European Law implementing the amendment. 3 Act (1984:3) on Nuclear Activities (Lag om kärnteknisk verksamhet). An English translation is available at: accessed 19 February 2014. S 3 reads: ‘Nuclear activities shall be conducted in a way so that the requirements imposed on safety are met and the obligations are fulfilled as prescribed by Sweden’s agreements aimed at preventing the proliferation of nuclear weapons and unauthorised dealings with nuclear material and such nuclear waste that comprises spent nuclear fuel. The Government or the public authority appointed by the Government may issue the regulations necessary to ensure compliance with obligations in agreements referred to in the first paragraph. The Radiation Protection Act (1988:220) contains provisions concerning radiation protection’. 4 iaea, ‘Nuclear Safety – Measures to Protect Against Nuclear Terrorism: Amendment to the Convention on the Physical Protection of Nuclear Material. Report by the Director General’ (6 September 2005) GOV/INF/2005/10-GC(49)/INF/6. 5 The Amendment will enter into force when it has been ratified by two-thirds of the State Parties of the Convention. Concerning the status of the signatures and ratifications of the Amendment to the Convention on the Physical Protection of Nuclear Material see: accessed 19 February 2014.

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At large, this complicated, multi-layered regulatory structure for hindering proliferation of nuclear weapons has been given an effective application in Sweden. The structural parallelism between national and European legal instruments is largely a consequence of that Sweden, after the country’s accession to the eu, successfully has safeguarded the national model for accountability concerning safeguards that was established by the Act on Nuclear Activities in 1983. Nevertheless, there exists a risk that the parallel regulatory structures may lead to uncertainties when allocating responsibilities and demanding accountability. These potential problems are likely to increase if the detailed regulation on European level expands and Sweden simultaneously strives for a high degree of national autonomy when implementing multilateral obligations on safeguards and physical protection of nuclear material and nuclear facilities. 2

The Problem of Defining the Sunset of Responsibility

Concerning the final disposal of snf there exists a specific regulatory problem concerning the foreseeability of the point in time when the responsibilities concerning safeguards and physical protection come to a close. The Swedish example illustrates this problem very well: The Act on Nuclear Activities section 10 obliges the licensed operator of a nuclear reactor to take responsibility for safe handling and final disposal of the radioactive waste and snf that is an outcome of the operation. This obligation includes responsibilities related to non-proliferation and the duty to prevent unauthorised possession of nuclear materials in accordance with Sweden’s obligations under international law. The licensed operator of a nuclear reactor is furthermore under a duty to conduct research and development that is necessary to fulfil this obligation6 and to finance the costs that are, and will be, incurred.7 A repository for the final disposal of snf constitutes in itself a nuclear operation that requires a licence under national law. The reactor operators in Sweden have together established a commonly owned public company; the Swedish Nuclear Fuel and Waste Management Company (skb). The owners have given this company the task to conduct the research and development activities that are necessary for a secure handling of snf and to establish and operate a repository for final disposal of snf in Sweden. skb will be the owner 6 Act on Nuclear Activities s 11. 7 ibid s 13. Act (2006:647) on Financing of Management of Residual Products from Nuclear Activities.

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and licensed operator of a future repository for final disposal and thereby have an independent responsibility under the Act on Nuclear Activities section 10.8 In a closer analysis of the final point in time when the responsibilities concerning safeguards and physical protection of snf come to a close it is accordingly necessary to separate the responsibilities of the reactor operators and the responsibilities of skb as the licensed operator of the repository. 2.1 The Termination of the Reactor Operators’ Responsibility According to the Act on Nuclear Activities section 10, the legal responsibilities of a licensed operator terminate when these have been fulfilled or if the operator is released from its obligation.9 The government, or a public agency empowered by the government, can adopt a decision on the release from obligations under the Act on Nuclear Activities.10 The question concerning the termination of the reactor operators’ responsibilities became actualized by the amendments to the Act (2006:647) on Financing of Management of Residual Products from Nuclear Activities that took place in 2008. An explicit objective with these amendments was to create a parallelism between the licensed reactor operator’s obligation to make contributions to a fund for the financing of a system for final disposal of snf and radioactive waste, the Nuclear Waste Fund, and the termination of the reactor operator’s responsibilities under the Act of Nuclear Activities section 10.11 In the Government’s bill to the Parliament it was stated that the reactor operators’ responsibilities under the Act of Nuclear Activities terminate when the repository for snf is sealed and thereafter the long- term responsibility will be transferred to the State.12 The concrete meaning of, and formalities for, this transferral of responsibility is however not further developed. 8

9 10 11 12

In March 2011, skb filed an application with the Government in accordance with the Act on Nuclear Activities for the establishment of an installation for the final disposal of snf in Forsmark. This application will be assessed in accordance with the Act on Nuclear Activities and the Environmental Code (1998:808). It is presently under scrutiny by the Swedish Radiation Safety Authority and the Environmental Court in Nacka. The application is available in Swedish at: accessed 19 February 2014. Act on Nuclear Activities s 14. Ibid s 14(4). Act on Financing of Management of Residual Products from Nuclear Activities s 11. Government Bill to the Parliament 2005/06:183 Finansiering av kärnavfallets slutförvaring 30: ‘According to the Law on Nuclear Activities section  10, the licensed operator is inter alia responsible for that the residues resulting from the nuclear operations are finally disposed of, which in practice means that these are placed in a sealed repository.

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These uncertainties remain also after the amendments of the Act on Nuclear Activities that entered into force January 1 2011.13 In the new wording of section 10(3), the responsibilities of the licensed operator are specified to include the safe decommissioning and dismantling of facilities in which the operation shall be discontinued until operations at the facilities have ceased and all nuclear material and nuclear waste have been placed in a repository that has been sealed permanently. This rule is primarily addressed to licensed operators of nuclear reactors and its explicit objective is to establish a temporal parallelism to the same subject’s obligation to contribute to the Nuclear Waste Fund.14 It is the Swedish Radiation Safety Authority (ssm) that has been given the responsibility to formulate more precise criteria for definition of the concept sealed permanently and to assess if a licensed reactor operator has fulfilled these. ssm has defined backfilling of tunnels and shafts up to ground surface level.15 When a sealing of the final depository has taken place a safety analysis shall be conducted which covers the time during which effective barrier functions are estimated to be necessary, at least 10 000 years.16 This analysis, conducted by ssm, shall constitute the basis for an assessment if the licensed reactor operator has fulfilled its obligations under the Act of Nuclear Activities section 10.17 Concerning the temporal perspective it should be noted that the final sealing of a repository, and therefore the point of termination of the licensed reactor operators’ responsibility, will take place at least fifty years after the last reactor has been decommissioned.18 2.2 The Time for Termination of skb’s Responsibility There exists a profound uncertainty concerning the point in time when the responsibilities of the licensed operator of the repository, skb, terminate

The long-term responsibility for the final disposal will thereafter be transferred to the State’ (translation by the author). The same conclusion is also stated in a report from the Swedish Radiation Safety Authority on the State’s responsibilities for final disposal of radioactive waste and snf. State Nuclear Power Directorate, ‘Statens ansvar för slutförvaring av använt kärnbränsle’ (ski Report 2007:01) 44. 13 Government Bill to the Parliament 2009/2010:172 Kärnkraften – förutsättningar för generationsskifte. 14 Ibid 39. 15 Swedish Radiation Safety Authority’s General Advice on the Application of the Regulations Concerning Safety in Connection with the Disposal of Nuclear Material and Nuclear Waste (ssmfs 2008:21) 2. 16 Ibid s 10. 17 Act on Nuclear Activities s 16. 18 cf’Statens ansvar för slutförvaring av använt kärnbränsle’ (SKI/SSI Report 2007:01) 50.

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according to the Act on Nuclear Activities. It is clear that the responsibility of the skb most likely does not terminate when the repository has been sealed permanently. The reason for this is that according to Sweden’s obligations as a signatory of the npt, the safeguards with regard to the disposed snf should be maintained according to the Control Agreement concluded with iaea. The obligations under the Control Agreement will come to a close first when the snf stored in the repository is practically irrecoverable.19 Moreover, the obligations concerning safeguards that are established by the euratom Treaty and Regulation 302/2005 (euratom)20 are independently binding for an operator of a repository for snf within the European Union. The responsibilities according to these obligations terminate when the disposed snf in practice is irrecoverable.21 It should also be noticed that an amendment to the Convention on the Physical Protection of Nuclear Materials that concerns physical protection of nuclear installations, not yet in force, obligates the ratifying state to keep up a regulatory framework for effective physical protection as long as there exists a risk for intrusions that may lead to unauthorised possession of nuclear materials.22 It is clear that the licensed operator of a repository, according to the Act on Nuclear Activities and directly applicable European Law has a responsibility to act in order to fulfil these international obligations. Both the responsibility, under the Act on Nuclear Activities, to act in accordance with Sweden’s international obligations to prevent proliferation of nuclear weapons and unauthorised possession of nuclear materials and the obligations under European Law will be finally fulfilled when the repository is sealed in an efficient manner that pre-empts future possibilities to retrieve the deposited snf. Not before then, the responsibilities of the licensed operator of the repository will come to a close.

19

20 21 22

The Treaty on the Non-Proliferation of Nuclear Weapons (n 2) art 11. The assessment if nuclear material placed in a repository is practically irrecoverable shall be made through a common decision by iaea and euratom. Commission Regulation (Euratom) 302/2005 on the Application of Euratom Safeguards (euratom Treaty) [2005] oj L54/1. Ibid art 1(2). Nuclear Safety – Measures to Protect Against Nuclear Terrorism (n 4). It should be noted that the present ssm regulations concerning physical protection of nuclear installations are not applicable to a repository for snf that has been sealed permanently. Swedish Radiation Safety Authority’s Regulations on Physical Protection of Nuclear Installations, ssmfs 2008:12, s 1, appendix 1, 1(2).

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2.2.1 Retrievability after Sealing? It follows from above that the central question when making a prognosis as to when the responsibilities of the licensed operator of a repository for final disposal of snf will terminate according to the Act on Nuclear activities and the Regulation 32/2005 (euratom) is to what extent it is possible to retrieve the snf after the repository has been sealed. It seems clear that the concept of sealing does not by definition mean that the possibilities for retrieval have been effectively pre-empted.23 It should also be taken into account that the concept of retrievability is not absolute. It is rather a question of a sliding scale. The degree of retrievability must moreover be directly correlated to the demands on physical protection and safeguards that have to be enforced. The higher the degree of retrievability in a repository, the higher will the demands be on physical protection and safeguards. The issue of the retrievability of snf from a sealed repository is not regulated in Swedish law. To retrieve snf constitutes in itself a nuclear activity that would require a license under the Act of Nuclear Activities and the Environmental Code. The present national Swedish debate concerning retrievability of snf that has been disposed of in a future repository is inconclusive, featuring an array of arguments pro et contra.24 The main argument presented for continued long-term retrievability after sealing is that future generations should not be denied possibilities to develop improved methods for handling the snf or to make use of the snf as a resource for energy. In a situation when the supply of nuclear fuels is not likely to meet demand in the medium term perspective the last of these arguments has gained weight in the debate. The central arguments against retrievability after sealing are related to long-term security. Retrievability means that nuclear materials are made recoverable. It increases unavoidably the risk for nuclear material being diverted and thereby the risk for nuclear proliferation. From this follows that, the responsibility to implement efficient safeguards in accordance with the control agreement with iaea will continue also after sealing of the repository. Retrievability will also 23

24

According to ssm closure entails: ‘backfilling of tunnels and shafts up to ground surface level in accordance with the safety analysis for the facility’. Swedish Radiation Safety Authority’s General Advice, ssmfs 2008:21 (n 15) 2. An account of the central arguments in this debate can be found in sou 2010:6 Kunskapslägesrapport på kärnavfallsområdet 2010 – utmaningar för slutförvarsprogrammet 43–53. This account is largely based on a report published by Nuclear Energy Agency, ‘Considering Reversiblity and Retrievability in Geological Disposal of Radioactive Waste’, NEA/RWM/RETREV (2001) 2 accessed 19 February 14.

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induce demands for an enhanced rigor concerning physical protection of the repository. Accordingly, retrievability leads to increased demands concerning sustainable control structures. This places an undesirable burden on future generations and presupposes overall social and political stability in a time perspective of extreme length. In a generalized perspective this debate includes a tension between an interest to spare a flexible sphere for future decisions and an interest to establish a situation of foreseeable long-term security according to the best of our present knowledge. Against this background it is important to note that skb, in its report of the programme for research, development of methods for the management and disposal of nuclear waste, presented in 2007, took a position that attempts to satisfy both of these interests simultaneously. Initially skb states that ‘[t]he repository for spent nuclear fuel must be designed in such a way that it does not need to be monitored’.25 As mentioned above, this presupposes a sealing of the repository to the degree that the disposed snf is practicably irrecoverable. In the following sentence it is however stated that ‘[i]f future generations should wish to retrieve the fuel again, this is fully possible’.26 It is clear that these two stated objectives cannot be met simultaneously. A priority has to be made and it seems that skb is giving priority to the second objective before the first.27 In the follow-up report published in 2010, skb is silent on the question of retrievability of snf after closure of the repository.28 However, in the application for establishing a repository that was submitted by skb in April 2012, the contradiction between stated objectives concerning retrievability and the termination of safeguards and controlled physical protection reoccurs. Initially it is stated that ‘[i]f future generations want to retrieve the deposited snf it will be resource consuming but not impossible’.29 Simultaneously skb claims 25

Swedish Nuclear Fuel, ‘RD&D Programme 2007. Programme for Research, Development and Demonstration of Methods for the Management and Disposal of Nuclear Waste’ (Technical Report TR-07-12) 207 accessed 19 February 2014. 26 Ibid. 27 Ibid 208. 28 Swedish Nuclear Fuel, ‘RD&D Programme 2010. Programme for Research, Development and Demonstration of Methods for the Management and Disposal of Nuclear Waste’ (Technical Report TR-10-63), accessed 19 February 2014. 29 Swedish Nuclear Fuel, ‘Application from skb according to the Act Nuclear Activities for the Establishment, Ownership and Operation of a Nuclear Facility for Final Disposal of

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that ‘[t]he repository is designed so that its safety will not be dependent on surveillance and maintenance after it has been sealed’.30 In the application skb furthermore concludes that ‘through sealing skb has fulfilled its legal obligations concerning safe disposal of the snf’.31 Accordingly, the application acknowledges the need for safeguard measures and physical protection only during the operational phase, before sealing, of the repository.32 In this connection skb mentions that the long-term responsibility for the sealed repository is under further investigation by a government appointed committee.33 It seems clear that the sealing of the repository, as described by skb in its application, does not fulfil the criteria of making the snf practically irrecoverable or in practice is irrecoverable. Hence, the conclusion must be that skb’s perception that the company is free from legal obligations under the Act of Nuclear Activities through the sealing of the repository in accordance with the application is neither reflected nor convincing. A possible explanation might be that the focus of the analysis behind the application is put at responsibilities relating to preventing the risks for radiological exposure that can put human health and the environment at risk. The risks relating to proliferation of nuclear weapons and the obligations relating to safeguards and physical protection after sealing of the repository seems not to have been analysed in any depth. From the analysis above follows that the responsibilities of skb according to the Act on Nuclear Activities and Regulation 302/2005 (euratom) will remain for a long time after the repository has been permanently sealed. This seems also to be the conclusion drawn by the Swedish Radiation Safety Authority in the general advice attached to the regulations on control of nuclear materials: ‘When the safeguard measures for nuclear materials placed in a repository does not terminate after it has been permanently sealed, these regulations must clearly state that this is the case’.34



Spent Nuclear Fuel and Nuclear Waste’ (Document) 25. Translation by the author. Available in Swedish at: accessed 19 February 2014. 30 Ibid 26. Translation by the author. 31 Ibid. Translation by the author. 32 Swedish Nuclear Fuel, ‘Kontroll av kärnämne inom KBS-3 systemet’ (Document 1172138, version 2) accessed 21 February 2014. 33 ‘Application from skb’ (n 29) 6. 34 Swedish Radiation Safety Authority’s General Advice on the Application of the Regulations (ssmfs 2008:3) on Control of Nuclear Materials, 2. Translation by the author.

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Neither the iaea, nor the euratom, has defined principles for the longterm responsibility for safeguard measures or physical protection of a repository for snf after sealing. Thus it is connected with a high degree of uncertainty to make a prognosis concerning the temporal duration or the concrete design of such control measures. The more precise meaning of the responsibilities that have to be borne by skb after the permanent sealing of the repository can therefore not be defined with references to the present applicable legal framework. It is also unclear to what extent the reactor operators, as formal owners of the snf, can be said to have a residual responsibility if skb fails to meet its responsibilities after sealing of the repository. 3

Concluding Remarks

With regard to the distribution and temporal duration of the responsibility to uphold physical protection of a sealed repository and safeguard measures concerning the snf disposed therein, there exists a clear uncertainty. According to Swedish law, as it stands today, the termination of the responsibilities borne by skb cannot be determined through an assessment of whether the criteria permanently sealed laid down in the Act on Nuclear Activities have been fulfilled. The clarification concerning the duration of responsibility that was entered into the Act on Nuclear Activities in January 1 2011 is primarily addressed to reactor operators and is not meant to be applied with regard to an operator of a repository. The responsibilities of an operator of a repository under the Act on Nuclear Activities will therefore most likely be brought to termination through a political decision on an exemption.35 The consequence of such a decision would be that skb does no longer have any responsibility to uphold efficient safeguard measures or physical protection of the repository while Sweden’s obligations under international law to implement such measures would continue to be in force. Thus, the Swedish state has to act in order to fulfil these obligations through other organisational structures. This transfer of operational obligations relating to non-proliferation from the skb to the State, is with high probability favourable to intergenerational long term safety and security. The State of Sweden represents a collective political interest and is likely to have a much longer expected institutional lifespan than a privately incorporated commercial entity. 35

Act on Nuclear Activities s 14.

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It shall in this connection be noted that the Swedish government on several occasions has advocated such a transfer of responsibility for a repository for snf from a private operator to the State. This position has however been declared in general formulations with a low degree of precision. In the 1984 Government Bill for the Act on Nuclear Activities it was stated that a future repository would ‘[i]n any case in a longer time perspective after sealing’ be transferred to a State agency.36 When the same question was brought up 20 years later in the Government Bill for a new law on the financing of nuclear waste management the precision had certainly not been improved: Those that have a licence for a nuclear operation are, under the Act on Nuclear Activities section  10, responsible for that rest products from operation are disposed of which in practice means that these are placed in a sealed repository. The long-term responsibility for the final disposal will thereafter be transferred to the State.37 I mean that the present situation is not satisfactory and that there is a need for increased foreseeability and clarity when it comes to the longer-term responsibility for a permanently sealed repository and the snf disposed therein. I would also argue that the application from skb for a license under the Act of Nuclear Activities to establish, own and operate a repository requires that such clarifications are made by the Swedish regulators before a final decision can be taken. If this is not done, the application can hardly be handled in a satisfactory manner. Two issues are in my opinion of special urgency. Firstly, clear and stringent criteria, defining the conditions for a political decision on the termination of the operator’s responsibility and the transfer of operational responsibility to the State, have to be developed. Since this is a future decision of unique character, criteria expressed in generally applicable law are not needed. Nevertheless, these criteria should be made public in order to clarify the conditions under which skb operates. Secondly, it ought to be made clear that the State, in connection with the transfer of responsibility for the sealed repository, also gains ownership rights over the repository and the snf disposed therein. This is necessary in order to pre-empt competing claims to control the snf, claims that could rise in a future situation where the demand for nuclear fuel exceeds the supply thus 36 37

Government Bill to the Parliament 1983/84:60 Ny lagstiftning på kärnenergiområdet 58. Translation by the author. Government Bill to the Parliament 2005/06:183 (n 12) 30. Translation by the author.

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increasing the potential commercial value of the snf and the attractiveness of retrieval.38 The importance of the transfer of the ownership of the snf is naturally related to the degree of retrievability that exists after sealing of the repository. If retrieval is excluded, the snf disposed of in the repository will have no potential commercial value and the question of ownership will become of lesser importance. It could be argued that defining the principles for the transferral of the responsibility for a sealed repository for snf from the commercial operator to the State today, probably more than a century before sealing of the repository will take place, is irrelevant and of no normative importance. It has also been argued that a definition of the principles for the transferral of responsibility to the State would decrease the incentives for the commercial operator of the repository to fulfil the long-term responsibility in accordance with the Act on Nuclear Activities.39 I mean that these arguments are far from convincing. If principles concerning conditions for the transferral of responsibility to the State are formulated today, it is evident that these will have to be reviewed and possibly amended on several occasions before they are to be applied more than a century from now. Thereby the principles for a process of extremely high societal importance will be developed in a dynamic manner that includes possibilities for reflection and adaptation to new technological and social contexts. By formulating a set of principles today this gradual process will be started. The validity of the general hypothesis that this would lead to decreased incentives for the operator to fulfil its long term responsibility is doubtful. This is certainly related to the substance of the principles that are formulated. If the principles include clear conditions that the operator has to meet before a decision on release from responsibility can be taken, a clear incentive to fulfil a long-term responsibility has been created. By filing an application under the Act of Nuclear Activities to establish, own and operate a repository that includes an indeterminacy concerning the responsibilities for safeguards and physical protection after the sealing of the repository, skb implicitly generates a strong pressure on the Swedish regulators to act on these pressing issues. The Swedish example has clear general implications for all states that presently are underway to develop systems for the final disposal of snf. 38

39

It shall be noted that the snf disposed of in a Swedish repository is not covered by the right of option of the euratom Supply Agency according to the euratom Treaty art 57. See Government Bill to the Parliament 1994/95:19 Sveriges medlemskap i Europeiska unionen 286. cf Per Cramér, Thomas Erhag and Sara Stendahl, Nationellt ansvar för använt kärnbränsle (Santérus 2009) 157. This view is clearly expressed in the report by the Swedish Radiation Safety Authority, ‘Statens ansvar för slutförvaring av använt kärnbränsle’ (ski/ssi Report 2007:1) 50.

Social-Ecological Security and International Law in the Anthropocene Jonas Ebbesson The notion of security has changed significantly in international contexts since the United Nations Conference on the Human Environment, in Stockholm 1972, so as to include social-ecological concerns even at the global scale. This change is paralleled by the increasing attention to mankind’s position, impact and responsibility in a global environmental context, even to suggest that we are entering into a new geological epoch where mankind is ‘a major environmental force’: The Anthropocene. In this essay I explore international law and policy for social-ecological security in light of the notion of the Anthropocene and the planetary boundaries.1 1

Environmental and Developmental Dimensions of Security

Several serious concerns for the human environment were raised at the 1972 Stockholm Conference: future exhaustion of non-renewable resources, exceeded capacity of the environment, serious or irreversible damage on ecosystems, hazards to human health, human malnutrition, pre-disaster planning, pest and diseases, water resources, energy, pollution of broad international significance, including climate risks (!), toxic and dangerous substances, and food contamination.2 Yet, none of them was addressed or defined as a security issue. Moreover, little attention, if any, was given to environmental circumstances, such as shortage of freshwater or other resources, as potential triggers of conflicts. Traditional security concerns, as segregation, oppression and apartheid, colonialist and racist domination, nuclear weapons and all 1 This is the third article in a set on law and social-ecological dimensions at a global scale. The other two are Jonas Ebbesson, ‘Planetary Boundaries and the Matching of International Treaty Regimes’ (2014) 59 Scandinavian Studies in Law 259; Jonas Ebbesson and Carl Folke, ‘Matching Scales of Law with Social-Ecological Contexts to Promote Resilience’ in Ahjond Garmestani and Craig R Allen (eds), Social-Ecological Resilience and Law (Columbia University Press 2014). 2 United Nations Conference on the Human Environment, unga Res (15 December 1972) un Doc A/RES/2994 (Stockholm Declaration), principles 5, 6 and 7; Framework for Environmental Action, recommendations 13, 18, 26, 52–55, 57–59; see un Declaration of the United Nations Conference on the Human Environment, un Doc A/CONF/48/14/Rev.1 (1973).

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other means of mass destruction, were indeed highlighted, but not even these matters were characterised in terms of security.3 There is actually not a single reference to ‘security’ in the outcome of the Conference, and the link between environmental destruction and warfare was only superficially considered. Yet, in the midst of the Cold war security concerns and security discourse were essential, although mainly of an inter-state character, focusing on national defence and security, and without references to environmental or ecological concerns. At the Stockholm Conference, the impact of war on the environment was kept off the agenda since the usa did not want to deal with accusations that its modes of warfare in Vietnam at the time were environmentally destructive, and influential states did not want to deal with environmental objections to their testing of nuclear weapons.4 Thus, broader environmental issues were generally kept aside from the security discourse and vice-versa.5 This would soon change. The 1980 report of the Independent Commission on International Development Issues (icidi), ‘North–south: A Programme for Survival’,6 considered numerous security aspects and proposed a ‘new concept of security’. In what was still the Cold war, the Commission argued that In the global context true security cannot be achieved by a mounting build-up of weapons – defence in the narrow sense – but only by providing basic conditions for peaceful relations between nations, and solving not only the military but also the non-military problems which threatens them. And it continued: Our survival depends not only on military balance, but on global cooperation to ensure a sustainable biological environment, and sustainable prosperity based on equitably shared resources.7 3 Stockholm Declaration, principles 1, 15 and 26. 4 Richard Falk, ‘The Second Cycle of Ecological Urgency: an Environmental Justice Perspective’ in Jonas Ebbesson and Phoebe Okowa, Environmental Law and Justice in Context (Cambridge University Press 2009) 39, 45. 5 One of the exceptions was Richard Falk, This Endangered Planet (Random House 1971), who accentuated global management and environmental degradation in the proposal for human survival. 6 Willy Brandt and others, North–south: A Programme for Survival – Report of the Independent Commission on International Development Issues (Pan Books 1980). 7 Ibid 124.

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The report expanded widely on why and how environmental and developmental issues should be integrated with other dimensions of security and survival. The icidi thus profoundly challenged the dominant security approach at the time, which mainly considered national defence and military capacities. As the quotes reveal, the Commission also emphasised the sustainability perspective to environment and security on which the World Commission on Environment and Development (wced) would later build. In its 1987 report ‘Our Common Future’, the wced further developed the integrated notion of security eg by highlighting the link between environ­ mental stress, political tensions and military conflict.8 In the same vein as the icidi, the wced saw in environmental stress both a cause and an effect of political tension and military conflict.9 It identified environmental causes for conflicts, and proposed important elements to promote security and sustainable development, such as co-operative management and early warning systems.10 Echoing the message of the icidi, the wced emphasised the need not to compartmentalise the different aspects of crisis and security: Until recently, the planet was a large world in which human activities and their effects were neatly compartmentalized within nations, within sectors (energy, agriculture, trade), and within broad areas of concern (environmental, economic, social). These compartments have begun to dissolve. This applies in particular to the various “crises” that have seized public concern, particularly over the past decade. These are not separate crises: and environmental crisis, a development crisis, an energy crisis. They are all one.’11 This observation pertains also to global contexts. As a crucial element of sustainability, the wced stressed the integration of environmental and security issues at the global scale as well, in particular with respect to ozone layer depletion and climate change.12 8

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Gro Harlem Brundtland and others, World Commission on Environment and Development, Our Common Future (Oxford University Press 1987) (wced), see in particular 1–41 and 290–307. Ibid 290. Ibid 300–304. For further discussion on security and sustainable development, see Christina Voigt, ‘Sustainable Security’ (2008) 19 Yearbook of International Environmental Law 163. wced 4. Ibid 323–326.

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At the time of the United Nations Conference on Environment and Development, in Rio de Janeiro 1992, the political situation was radically different than 20 years earlier. The Rio Conference took place at a time of huge political changes in Europe and elsewhere, only shortly after the fall of the Berlin wall and the end of the Cold War. These changes influenced, if not transformed, the perception of what are international and national legal issues. A window was opened for new issues of civic society, such as democratisation and environmental human rights, to transcend state borders and expand into international discourse, law and policy-making in a way that had previously not been possible. This also made the broader notion of environmental security, which was not limited to narrow military focus of national security, sensible and politically accepted.13 While it was clear already in Stockholm 1972 that some environmental issues were expanding from rather local transboundary to regional/continental and even global dimensions, this feature was all the more apparent in Rio 1992, and it influenced the perception of environmental security as well.14 The outcome of the Rio Conference, Agenda 21, reflects the expanded notion of security. Agenda 21 addresses food security, social security and related welfare aspects,15 and it calls for ‘environmental security’ considerations in the context of plant species,16 ‘ecological security’ with respect to biotechnologies,17 and actions to provide a ‘secure and healthy future’, including an environment of quality, improved standards of living and access to education and employment.18 This approach to security would remain in the 2002 Johannesburg World Summit on Sustainable Development19 and the 2012 Rio Conference on 13

See Jutta Brunnée and Stephen J Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’ (1997) 91 American Journal of International Law 26. 14 See Günther Handl, ‘Environmental Security and Global Change: The Challenge to International Law’ (1990) 1 Yearbook of International Environmental Law 3. 15 Agenda 21, c 3 [8l]; c 5 [46], [56]; c 7 [1]; c 12 [50]; c 14 [2], [4], [6], [8], [9a], [9e], [9f], [11], [13], [18], [26], [53]; c 16 [1], [4], [6d], [7c]; c 18 [65], c 33 [6], [14c]. Also Forest principles [7a], see unga, ‘Report of the United Nations Conference on Environment and Development’ (12 August 1992) un Doc A/CONF.151/26, Annex II. 16 Agenda 21, c 12 [19b]. 17 Ibid, c 16, [22c]. 18 Ibid, c 25 [3]. 19 See unga, ‘Johannesburg Declaration on Sustainable Development’ (4 September 2002) un Doc A/CONF.199/20 (2002), [12], [18]; United Nations, ‘Plan of Implementation of the World Summit on Sustainable Development’ [7], [30], [31], [40], [45], [47], [62], [67], [92],

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Sustainable Development (Rio+20),20 which highlighted food security and addressed also other security dimensions of sustainable development. Despite general references to peace and security, and a broader view on security, however, none of the conferences on sustainable development paid much attention to the potential of environmental stress and unfair distribution of natural resources as a cause of conflicts and tensions. Nevertheless, the outcomes of the 2002 and 2012 United Nations conferences confirm the changed understanding of security, away from a narrow focus on states’ capacity to defend themselves, towards broader conceptions of sustainability, such as ‘environmental security’,21 ‘ecological security’,22 ‘food security’, and ‘social security’ (referring to social welfare, including ‘old-age security and security of tenure’).23 Literature on environmental and ecological security also includes deliberations of security for humans due to environmental degradation, resource utilisation and human activities causing such negative impacts on the environment,24 and adds further nuances to these overlapping concepts, by proposing ‘human security’, ‘water security’25 and ‘sustainable security’. Food security refers to stability of food supply and access, but also to sustainable agriculture and production, thus including environmental dimensions. Human security, as defined by the United Nations Development Programme, is people-centred, but not state-centred, is concerned with human life and dignity rather than weapons, and includes concerns for environmental

[138]; See unga, ‘Report of the World Summit on Sustainable Development’ (2002) un Doc A/CONF.199/20. 20 See United Nations, ‘Report of the United Nations Conference on Sustainable Development (Rio+20)’ (19 June 2012) un Doc A/CONF.216/L.1 (The Future We Want), [8], [52], [108], [109], [111], [113], [115], [116], [118], [152], [158], [173], [190], [197], [205], [211]. 21 Brunnée and Toope (n 13); Handl (n 14). 22 Alexandre S Timoshenko, ‘Ecological Security: Global Change Paradigm’ (1990) 1 Colorado Journal of International Environmental Law & Policy 127. 23 Voigt (n 10). 24 According to Timoshenko (n 22) 130, ‘[e]cological security is based on an ecosystemic approach and regards environmental degradation as the primary threat to the survival of human civilization’. Thus, it is primarily concerned with preventing destructive anthropogenic impacts on the environment. Brunnée and Toope (n 13) 27, argue that ‘environmental security’, which emphasises the security of the environment per se, can only be achieved through an ‘ecosystem orientation’. 25 Patricia Wouters and others, ‘Water Security, Hydrosolidarity, and International Law: A River Runs Through it…’ (2008) 19 Yearbook of International Environmental Law 97.

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degradation and environmental security.26 Finally, sustainable security has been suggested as a concept to link human security and sustainable development27 (but the term is also used in other contexts as referring to peace keeping and security from terrorism and crimes). The described security approaches overlap a great deal: most importantly they all integrate the human and social situation with environmental and ecological circumstances, and they all go beyond security for states both by pertaining to transnational and even global contexts and by focusing on the impact on non-state actors. The security dimension, while mainstreamed in international policy documents on environment and sustainable development, as revealed by the mentioned United Nations conferences, is less apparent in environmental treaties. Thus, there is no explicit reference to security in the 1992 un Framework Convention on Climate Change, 1992 Convention on Biological Diversity or 2013 Mercury Convention, to take a few examples, whereas the numerous references to security in the 1982 United Nations Convention on the Law of the Sea either pertain to concerns for national security or (in the chapter on environment protection) to financial security with respect to enforcement against vessels. Such a lack of explicit references as such does not prevent the treaty regimes from adequately considering security issues,28 and more important than any explicit reference to security is whether the structures, concepts and principles of international law adequately match the concerns for security. Further below, I will briefly explore how international law can meet the call for social-ecological security, thus adding to the above list of security concepts. In doing so, one can adapt Richard Ullman’s influential ‘redefinition’ of national security to the global setting,29 which fits well with the analysis of the 1982 icidi report. Thus a threat to security would mean:

26 27 28

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United Nations Development Programme, Human Development Report 1994 (Oxford University Press 1994) 22, 25, 28–30. Voigt (n 10). For instance, food security concerns are increasingly considered within the United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 United Nations Treaty Series 10 (unfccc). See Richard Ullman, ‘Redefining Security’ (1983) 8 International Security 129, 133, defining national security as ‘an action or sequence of events that (1) threatens drastically and over a relatively brief span of time to degrade the quality of life for the inhabitants of a state, or (2) threatens significantly to narrow the range of policy choices available to the government of a state or to private, nongovernmental entities (persons, groups, corporations) within the state’.

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An action or sequence of events that (1) threatens drastically and over a relatively brief span of time to degrade the quality of life for the inhabitants of the Earth, or (2) threatens significantly to narrow the range of policy choices available to the international community, governments of states or to private, nongovernmental entities (persons, groups, corporations). Framing the security concern as social-ecological is not to distance it from the other broader security concepts which include human and environmental considerations (‘environmental’, ‘ecological’, ‘human’, ‘water’, ‘food’, ‘sustainable’ security etc). All these approaches somehow take both human and environmental issues into account. Yet, social-ecological security as an overarching concept, underlines that social and human security cannot be separated from environmental and ecological security or vice versa. 2

Enters the Anthropocene

While policy-makers and scholars of law and politics were employed with the environmental and social dimensions of security even at global scale, natural scientists perceived the same circumstances from a geological view point, thus placing the current human impact on the environment in a truly long term context. The past 10–12 thousand years – known as the Holocene epoch – are characterised as a clement geological period with a relatively stable environment, which allowed for agriculture and increasingly complex societies and human activities, including the industrialisation. However, these human activities, it was suggested in 2000, have had such enormous impact on the biosphere that they have driven the world into a new geological epoch: the Anthropocene.30 This new epoch, said to have started in the latter part of the 18th century, is characterised by mankind’s growing impact on geology and ecology, on Earth and the atmosphere at all scales, including global. The following expansions and exploitations by mankind are referred to as supporting the identification of the Anthropocene, as a new, human-dominated geological epoch:31 • The rapid increase, about tenfold, of the human population as such in the past three centuries; • The transformation and exploitation of land surface, eg through agriculture, forestry, dam building, river diversion and urbanisation; 30

Paul Crutzen and Eugene F Stoermer, International Geosphere-Biosphere Programme Newsletter 41 (Stockholm 2000); Paul Crutzen, ‘Geology of Mankind’ (2002) 415 Nature 23. 31 Ibid.

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• The use of more than half of all accessible fresh water; • The release of numerous toxic and in other ways harmful substances (including ozone depleting substances); • The more than 15-fold growth of energy use during the 20th century, resulting eg in 160 million tonnes of atmospheric sulphur dioxide emissions per year, amounting to more than twice the sum of its natural emissions; • The increases of concentration of greenhouse gases by 30 percent (methane) to more than 100 percent (carbon dioxide), reaching their highest levels over the past 400 millennia; • The application of nitrogen fertilizer in agriculture exceeding the amount fixed naturally in all terrestrial ecosystems; • The loss of more than 50 percent of the world’s mangroves; and • The increasing volume of fishery. In aggregate, the listed activities not only affect specific regions, resources or processes, but also the functioning of the Earth system at a global scale:32 mankind has become ‘a major environmental force’.33 Based on this notion, a set of planetary boundaries were presented in 2009 by an interdisciplinary research group in exploring the safe operating space for humanity. The study identifies nine planetary boundary themes: climate change, ocean acidification, stratospheric ozone layer depletion, atmospheric aerosol loading, interference with global phosphorus and nitrogen cycles, global freshwater use, land-system change, rate of biodiversity loss, and chemical pollution. For some of these boundaries, the underlying threshold is driven by systemic global-scale processes (such as climate change and ozone layer depletion), whereas for other boundaries the thresholds may arise at the local and regional scale, but they nevertheless become global concerns at the aggregate level (eg fresh water use, biodiversity loss and land-system change).34 The authors distinguish between thresholds, as the intrinsic features of the human-environmental systems, defined by a position along one or more control variables, and boundaries, which are human-determined values of the control variable set at a safe distance from a dangerous level or from its global threshold. It follows that ‘determining safe distance involves normative 32

33 34

Johan Rockström and others, ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’ (2009) 14 Ecology and Society 32 < http://www.ecologyandsociety.org/ vol14/iss2/art32/>accessed 20 March 2014. Crutzen and Stoermer (n 30); Crutzen (n 30). Rockström and others (n 32).

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judgments of how societies choose to deal with risk and uncertainty’.35 Yet, ‘[t]ransgressing one or more planetary boundaries may be deleterious or even catastrophic due to risk of crossing thresholds that will trigger non-linear, abrupt environmental change within continental – to planetary-scale systems’.36 Boundaries are proposed for most of the boundary themes, and the authors conclude that we have already transgressed three of them: for climate change, rate of biodiversity loss, and changes of the global nitrogen cycle. The suggested boundaries are rough, first estimates only, surrounded by uncertainties and knowledge gaps. Despite possible disagreement regarding the identified planetary boundaries as well as regarding the very concept of the Anthropocene, the described United Nations conferences on sustainable development and the numerous international treaty regimes show the concerns of the international community for most, if not all, of the boundary themes.37 Social-ecological security is threatened by human activities at different scales, in addition to natural incidents, such as earthquakes, tsunamis, droughts and floods. Some such incidents, like droughts and floods, can indeed be triggered by human activities, and sometimes the adverse effects of natural incidents escalate even further due to human performance, as in the case of the 2004 tsunami outside Indonesia where the destruction of mangroves is thought to have worsened the impact of the tsunami. In the Anthropocene the distinction between human-made and other security cases is getting diluted. 3

International Law for Social-Ecological Security

Impact and Relevance of the Anthropocene and Planetary Boundaries for International Law The notion of the Anthropocene and the identified planetary boundaries frame the most significant concerns and challenges for international law, resilience and social-ecological security at the global scale. In examining the impact and relevance of law in a social-ecological system, law can be considered an external driver, which affects the system from outside, but is in itself not affected by what happens in the system. However, where the social-ecological interface as such is of interest, as when studying law and security at the global scale, law is rather an internal (social, normative) part of the examined system. It then appears as a ‘slow (controlling) variable’

3.1

35 Ibid. 36 Ibid, quote from abstract. 37 Ebbesson (n 1).

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of the social-ecological system; a variable which can be used and which may change in response to various external effects and in order to achieve, say, an environmental objective.38 As such, international law is a dynamic element of the system, which may promote resilience and security if adequately structured and developed, so as to ‘match’ the social-ecological context.39 It may also – through its structures and principles – restrain the capacity for the international community to collectively manage ecosystems and remain within the planetary boundaries, and more generally to withstand environmental degradation and shocks, and to sustain after such degradations and shocks occur. In short, law may affect social-ecological systems – and their resilience – positively or negatively, be it in local, regional or global settings. The Anthropocene is a descriptive and analytical rather than normative concept, and it does not as such imply any specific change in the legal system. Neither do the proposed planetary boundaries amount to legal norms, despite the normative element on how to deal with risks, uncertainties and priorities among different interests and objectives.40 Yet, they are legally relevant. The proposed planetary boundaries and the notion of the Anthropocene provide new understanding which may compel us to re-examine and re-construe – and to adapt41 – already established concepts and to reinterpret existing treaty provisions in light of new circumstances. The concerns for the Anthropocene, planetary boundaries, and aggregate effects of mankind also push for new legal approaches, new legal initiatives and new ideas on how to prevent further or anticipated social and ecological degradation and on how to promote common security for the biosphere. As far as existing legal frameworks and regimes are concerned, this responsiveness may work in both ways; ie by developing and defining new rules, principles and measures to be taken more adequately, and by reconsidering which duties and commitments stem from the already existing treaties.42 Thus, the planetary boundaries, if accepted as legitimate levels, may add relevant factual information for the interpretation of the open-ended and 38

Cf Brian H Walker and others, ‘Drivers, “Slow” Variables, “Fast” Variables, Shocks, and Resilience’ (2012) 17 Ecology and Society 30 < http://www.ecologyandsociety.org/vol17/ iss3/art30/>accessed 20 March 2014. 39 The ‘matching’ is further examined in Ebbesson (n 1) and Ebbesson and Folke (n 1). 40 Rockström and others (n 32). 41 On adaptation in international governance and law with global repercussions, see Henrik Österblom and Carl Folke, ‘Emergence of Global Adaptive Governance for Stewardship of Regional Marine Resources’ (2013) 18 Ecology and Society 4 accessed 20 March 2014. 42 Ibid.

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general provisions of existing treaties. For instance, the boundaries with respect to the rather urgent situation of ocean acidification and the interference with global cycles of phosphorus and nitrogen in marine systems43 are relevant for the obligation of states under the 1982 United Nations Convention on the Law of the Sea (unclos) to ‘take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source’.44 The planetary boundary becomes a key fact when considering which measures are necessary to take in order to prevent, reduce and control such pollution, and also when considering what ‘prevent, reduce and control’ actually oblige. In the same vein, the proposed boundary concerning climate change, if accepted, matters when applying the 1992 United Nations Framework Convention on Climate Change (unfccc), since the parties should:45 take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.46 Here too, the planetary boundary is a critical fact when determining the scope of measure needed; the more urgent the situation becomes, the more precautionary measures can be requested by the parties to anticipate, prevent or minimise the causes and effects of climate change. Similarly, some of the other proposed boundaries, again if accepted, should be taken into account when 43

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For ocean acidification, a planetary boundary ‘where oceanic aragonite saturation state is maintained at 80% or higher of the average global pre-industrial surface seawater’; and for interference with global phosphorus (P) and nitrogen (N) cycles, for anthropogenic P inflows to the oceans ‘tentatively placed