Allocation of Law Enforcement Authority in the International System: Proceedings of an International Symposium of the Kiel Institute of International Law March 23 to 25, 1994 [1 ed.] 9783428483358, 9783428083350
The 1994 symposium of the Kiel Institute of International Law, the papers and proceedings of which are hereby made avail
118 76 20MB
English Pages 198 Year 1995
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Allocation of Law Enforcement Authority in the International System
Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel Herausgegeben von Jost Delbrück Institut für Internationales Recht an der Universität Kiel 117
Völkerrechtlicher Beirat des Instituts:
Daniel Bardonnet
l'Universite de Paris ll
Rodoll Bernhardt
Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg
Lucius Caflisch
Institut Universitaire de Hautes Etudes Internationales, Geneve
Antonius Eitel Bonn
Luigi Ferrari Bravo
Universita di Roma
Louis Benkin Columbia University, New York
Tommy T. B. Koh
Washington, D. C.
John Norton Moore
University of Virginia, Charlottesville
Fred L. Morrison
University of Minnesota, Minneapolis
Albrecht Randelzhofer
Freie Universität Berlin
Krzysztof Skubiszewski Polish Academy of Sciences, Warsaw and Poznan
Christian Tomuschat Universität Bonn
Rüdiger Wolfrum
Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg
Sir Artbur Watts London
Allocation of Law Enforcement Authority in the International System Proceedings of an International Symposium of the Kiel Institute of International Law March 23 to 25, 1994
Edited by
Jost Delbrück Assistant Editor: Ursula E. Heinz
Duncker & Humblot · Berlin
Die Deutsche Bibliothek - CIP-Einheitsaufnahme
Allocation of law enforcement authority in the international system : proceedings of an international symposium of the Kiel Institute of International Law, March 23 to 25, 1994 I ed. by Jost Delbrück. - Berlin : Duncker und Humblot, 1995 (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel ; 117) ISBN 3-428-08335-0 NE: Delbrück, Jost [Hrsg.]; Institut für Internationales Recht (Kiel): Veröffentlichungen des Instituts ...
Alle Rechte, einschließlich das der Übersetzung, vorbehalten. Ohne ausdrückliche Genehmigung des Verlages ist es nicht gestattet, das Buch oder Teile daraus in irgendeiner Weise zu vervielfältigen. © 1995 Duncker & Humblot GmbH, Berlin Fremddatenübernahme und Druck: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0720-7263 ISBN 3-428-08335-0 Gedruckt auf alterungsbeständigem (säurefreiem) Papier gemäß der ANSI-Norm für Bibliotheken
Foreword Since its inception by Eberhard Menzel, the series of international and often interdisciplinary symposia organized by the Institute of International Law at the Christian-Albrechts-University at Kiel numbers eighteen conferences including the 1994 Symposium on "The Allocation of Law Enforcement Authority in the International System," documented in the present volume. Five of these symposia were held on the occasion of important dates in the now eighty years of the Institute's existence: On the occasion of the Institute's 50th anniversary, the Institute welcomed about thirty leading international and German scholars, including a good number of former members of the Institute, arnong them Paul Guggenheim, who received an honorary doctorate from the Faculty of Law of the Christian-Albrechts-University together with Max Sörensen at this occasion. In 1974 and 1984, the Institute commemorated its 60th and 70th anniversaries, andin 1989, the Institute bad the honor of hosting again a large nurober of eminent legal scholars on the occasion of its 75th anniversary. The subjects these symposia were devoted to are significant of the wide range of important international legal problems which the Institute has been and still is concerned with. In 1964, the 50th anniversary symposium took stock of the fascinating development that international law bad undergone in the preceding half century. Ulrich Scheuner gave a thought provoking overview of the developments of international law in bis paper "50 Jahre Völkerrecht" (50 years of internationallaw), Max Sörensen spoke on "Völkerrechtlicher Schutz der Menschenrechte" (International Protection of Human Rights), Paul Guggenheim read a paper on "Die Problematik des europäischen Zusammenschlusses" (The Problem of European Integration), and Konrad Zweigert concluded the symposium with a paper on "Internationales Privatrecht und Öffentliches Recht" (Private International Law and Public Law). The 1974 symposium, convened by Wilhelm A. Kewenig, was devoted to the general subject of "Die Vereinten Nationen im Wandel" (Changing United Nations), and the 1984 conference concerned itself under the title "Recht auf Information - Schutz vor Information" (Right to Information - Protection against Information) with the then current problems of a New International Information Order. The 1989 symposium on the occasion of the 75th anniversary, again attended by a large number of international and German international legal scholars and international legal practitioners from the British and the German Foreign Offices, dwelt in depth with the thorny problern of "Strengthening the World Order: Universalism v. Regionalism. Risks and Opportunities of Regionalization," based on papers delivered by Otto Kimminich, Christoph Schreuer, Eibe Riede/, and Christian Tomuschat.
6
Foreword
The 1994 symposium, the papers and proceedings of which are hereby made avai1able to the public, under the title "The Allocation of Law Enforcement Authority in the International System" takes up not only the general theme of the 1989 conference but also continues the discussions pursued during the 1992 symposium entitled "The Future of International Law Enforcement. New Scenarios New Law?" The 1994 symposium also continues the now established tradition of bringing together internationallegal scholars from the United States, on the one band, and Gennany and other European countries, on the other band. The Institute is strongly convinced that the transatlantic dialogue on the burning issue of strengthening the international legal order as part of an ernerging "New World Order" is essential. lt was all the more regrettable that for purely aceidentat reasons the participation, on the European side, by colleagues invited from Poland and other Central and East European countfies could not materialize. The focal point of the 1994 symposium was the question as to whether and to what extent the United Nations as a law enforcement agency can be supplemented by regional arrangements/organizations and the state as a law enforcement agent in the international public interest. The Institute is grateful that high-ranking representatives of the State of Schleswig-Holstein over the years have taken the opportunity to express their great interest in the work of the Kiel Institute. Thus the Institute and the participants in the 1994 symposium were extremely pleased that the State Minister of Science, Research, and the Arts of the Land Schleswig-Holstein, Frau Marianne Ttdick, addressed the participants and the members of the Institute during a festive dinner reception hosted by the Schleswig-Holsteinische Landesbank and the Sparkassenand Giroverband Schleswig-Holstein. The Institute of International Law gratefully recognizes the generous financial support granted for the 1994 symposium by the Fritz-Thyssen-Stiftung, the German Marshall Fund, the Schleswig-Holsteinische Landesbank, the Sparkassen- and Giroverband Schleswig-Holstein, and last but not least the logistic support provided by the local branches of Daimler-Benz and VW corporations. In times of heavy financial constraints, any undertaking like this symposium greatly depends on the willingness and ability of the modern Maecenases to extend their help to the organizers of such scholarly meetings. The lnstitute's sincere thanks also go to the Christian-Albrechts-University which provided for the conference room and other much needed support. Kiel, July 1994
lost Delbrück
Contents Addresses by
Marianne Tulick lost Delbrück
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Centralized and Decentralized Law Enforcement: The Security Council and the General Assembly Acting under Chapters VII and VII1
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The RoJe of Regional Organizations in the Enforcement of International Law
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Comment
Klaus Dicke Discussion
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57 64
Decentralized International Law Enforcement: The Changing RoJe of the State as Law Enforcement Agent
Torsten Stein
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Comment
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The Impact of the Allocation of International Law Enforcement Authority on the International Legal Order
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135 159 197
Abbreviations ACABQ
= Advisory Committee on Administrative and Budgetary Questions
ACHR
= American Convention on Human Rights
CIS
= American Journal of International Law = Australia, New Zealand, United States [Pact] = Aus Politik und Zeitgeschichte = Central Treaty Organization = Commonwealth of Independent States
CSCE
= Conference on Security and Cooperation in Europe
AJIL ANZUS
APuZ CENTO
ECHR
= decision = European Convention on Human Rights
ECOMOG
= ECOWAS Cease-Fire Monitoring Group
ECOWAS
= Economic Community of West African States
EU
= European Union
dec.
IAEA
= Federal Republic of Yugoslavia = German Yearbook of International Law = International Atomic Energy Agency
ICJ
= International Court of Justice
id.
= ibidem
FRY GYll..
IGO
= Inter-govemmental Organization
ILM
= International Legal Materials
NATO
= North Atlantic Treaty Organization
NPT
= Treaty on the Non-Proliferation of Nuclear Weapons
OAS
= Organization of American States
para(s).
= Organization of African Unity = United Nations Observer Mission in EI Salvador = paragraph(s)
PCIJ
= Permanent Court of International Justice
OAU ONUSAL
SC
= resolution = Security Council
SEATO
= South-East Asia Treaty Organization
res.
UNEF UNIFIL
= United Nations Emergency Force = United Nations Interim Force in Lebanon
Abbreviations UNPROFOR
= United Nations Proreetion Force in the fonner Yugoslavia
UNTAC
= United Nations Transitional Authority in Cambodia
UNTS
= United Nations Treaty Series
UNOSOM
= United Nations Operation in Somalia
WEU
= Western European Union
9
Opening Address Marianne Tidick* It is a pleasure for me to welcome you all on behalf of the Government of the Land Schleswig-Holstein. Particularly welcome are our guests from Italy, Great Britain, Aristria and the United States. We are proud that such distinguished experts have accepted Professor Delbrück's invitation to discuss the "Allocation of Law Enforcement Authority in the International System" and to celebrate the 80th anniversary of the Institute of International Law in Kiel.
Among you, I see a person who has particularly strong connections with the Institute: Professor Wolfrum was for 11 years a member of the Christian Albrechts University in Kiel and one of the Directors of the Institute. Last year, with much sadness we saw him move to the Heidelberg Max Planck Institute for Comparative Public Law and International Law. We are pleased, however, that you, Professor Wolfrum, still have ties with the Institute. You will become, for example, a member of the Institute's academic Advisory Board and remain co-author of the revised edition of Georg Dahm's treatise on internationallaw. I feel that this loyalty speaks for both yourself and for the Institute. The success of the Institute is based on a high Ievel of academic authority and an excellent national as weil as international reputation. I consider the distinguished attendance at this symposium proof of this. There is a Iot of other proof. The Institute makes important and recognized contributions to the state and progress of intemationallaw. I would, however, today like to draw your attention to the achievements of the members of the Institute outside their particular areas of expertise. This Institute has in fact produced: - four university rectors (including the founder, Professor Niemeyer and the present director, Professor Delbrück); - a vice-rector (Professor Wolfrum); - two members of constitution-making assernblies (Professor Schücking, Professor von Mangoldt);
* Marianne 1idick, Minister of Science, Research and the Arts of the Land SchleswigHolstein.
Marianne Tidick
12
- a member of the Reichstag (Professor Schücking); - a member ofthe Landtag (Professor von Mangoldt); - a minister of the interior (Professor von Mangoldt); - a senator of the interior and of sciences (Professor Kewenig); - a president of the Wissenschaftsrat (Professor Kewenig); - a judge at the International Court of Justice in The Hague (Professor Schücking);
- a judge at the International Court of Arbitration in The Hague (Professor Delbrück);
- various advisors for international organizations and at international conferences (Professor Schücking was one of five main German delegates at the peace negotiations in Versailles, Professor Woljrum was a member of the German delegation to the Third United Nations Conference on the Law ofthe Sea); - and last but not least, a founder of a philharmonic orchestra. The initiated amongst you know that the founder of the Institute of International Law, Professor Niemeyer, created an association here in Kiel. His frrst and most important aim was to found a philharmonic orchestra. I, as Minister for Science, Research and the Arts, am very pleased that Professor Niemeyer bad success with this project. Without him, we might still have no orchestra or concert hall. The association in fact still exists. lt is called "Verein der Musikfreunde in Kiel" (the Kiel Friends of Music) and plays a very active role in the musicallife of the town. The Institute of International Law then, I am sure you will agree, is a treasure of the University of Kiel, of which we can be very proud. I wish the Institute further success and hope that the symposium continues weil.
Opening Address Jost Delbrück* Ladies and Gentlemen, dear Colleagues, Kiel holds the geographic center between Spitzbergen und Naples. As Kielonians we certainly appreciate this central location, we do recognize, however, that as far as traffic is concerned we are somewhat out fo the center: Thank you all the more that you have come to participate in our 1994 symposium on 'The Allocation of Law Enforcement Authority in the International System" which we hold on the occasion of the 80th anniversary of the Kiel Institute! On behalf of the Institute, I have the honor to extend to you a very warm welcome. I have also been asked by the Dean of the Faculty of Law of the ChristianAlbrechts-University to welcome you on behalf of the Faculty of Law. The Dean very much regrets that he could not attend in person and meet you here. The one or the other of you may wonder why we are celebrating the 80th anniversary of the Institute with this symposium. It may be customary with most people to make the 80th birthday a major festive event. Institutions, however, tend to live considerably Ionger than humans. Cities incorporated tend to celebrate their corning of age but that usually means something like 600 or 750 years in this country. Thus, it may seem inappropriate to even make mention of the fact that the Kiel Institute has reached the age of eighty. The reason, however, is a very simple one. It has by no means been a matter of course that the Institute survived for so long. After its second director, Professor Walther Schücking, had been removed from hispost by the National-Socialist regime, the Institute came close to being moved to Berlin and receive a very "different mandate." Because of the out-break of the war plans of this kind ultimately did not materialize. Hermann von Mangoldt, who became director of the Institute shortly before the end of the war, courageously saved the Institute from its new destiny and preserved the valuable library from being destroyed. The Institute's close escape from destruction has made it very special to the succeeding generations of scholars and students working here who feel very much obliged to the great scholarly contributions made by the Institute's former true directors, particularly Walther Schücking. Thus, it has become a tradition to • Professor Dr. lost Delbrück, Director of the Institute of International Law at the University of Kiel; Visiting Professor at the Indiana University School of Law, Bloomington.
14
Jost Delbrück
recognize every major date in the Institute's history by holding our biennial symposia on these occasions - for some time in a ten year, more recently, however, in a five year sequence. Thank you for joining us! A special welcome and many thanks go to the three extemal speakers at this symposium: Professor Paul Szasz, who was so very kind to take upon him the first report despite his heavy responsibilities as the United Nations Legal Adviser for the Conference on the former Yugoslavia; Professor Fred Morrison, who as an active member of the Institute's Advisory Board- instead of getting an extra benefit - has subjected hirnself to the burden of the second report; and last but certainly not least Professor Torsten Stein who was kind enough tobe our third major speaker. Our thanks also go to the two commentators: Professor Mary Ellen O'Connell who will comment on Professor Stein's paper on 'The Changing Role of the State as Law Enforcement Agent"- a subject that has been Professor O'Connell's special research interest in recent years. Unfortunately, Professor Kunig who was to be the commentator on the ftrst two reports has fallen ill and thus cannot participate. We are very grateful to Dr. Klaus Dicke, who was ready for a last minute rescue operation. Time does not permit me to recognize every one of you. Actually most of you have been here before and thus may already feel almost at home here. In any case, we are counting you "frequent participants" as longstanding friends of the Institute - a fact I need not underline any further. There are, however, two distinguished participants whom I would lik:e to recognize at this moment. One is Sir Arthur Watts who has been serving as the President of the German Moot Court panel for several times. I want to take this opportunity to thank him for his excellent performance for which he has eamed the German Moot Court Teams' highest respect and esteem and our deep gratitude. As an influential and most productive member of the Institute's Advisory Board, of course, he has also become a very good friend of the Institute, as weil. The other distiguished guest and new participant among us is Dean Alfred C. Aman from Indiana University School of Law, Bloomington, whose presence here underlines the intense and close academic relationship between I. U. Law School and the Kiel Law Faculty, from which a host of students have studied abroad and a considerable nurober of faculty members have participated in the academic exchange. That I myself have been granted the opportunity to join the Bloomington Faculty every year is particularly meaningful to me, for one, because I came to Bloomington as a Kiel exchange student about 35 years ago and have retumed time and again; but most irnportantly, because I have been given the chance to meet Dean Aman which led to a true friendship almost instantly. Thank you Dean Aman for coming! This symposium will deal with a very intriguing problem. The extension of the rules of substantive and procedural intemationallaw has been astonishingly wide and also very rapid in the last decades. But the question of how to deal with the effective enforcement of this growing body of international law still is a rather, I
Opening Address
15
should say, unexplored and regrettably unsatisfactory aspect of international law. The 1992 symposium mainly focussed on the question as to whether the new postCold War period with its very different but nonetheless grave challenges to international peace and security could be adequately dealt with by existing international law and, particularly, whether the United Nations freed from the fetters of the Cold War could respond effectively to the new challenges. During the discussions, however, I bad the sense that we were touching all the time on the question of where to allocate the appropriate, adequate law enforcement authority but did not deal with that question in depth. Thus, we decided to have this follow-up symposium and explore this question of the allocation of international law enforcement authority, centralized or decentralized, in some more depth. This will form the subject of the four reports of this symposium and our discussions. The literal - or almost literal roundtable, around which we are meeting, will give us a very suitable forum for fruitful and thorough debates. I hope you will enjoy the two days in Kiel and that we all will benefit from this symposium. Thank you again for coming to Kiel!
Centralized and Decentralized Law Enforcement: The Security Council and the General Assembly Acting under Chapters VII and VIII Paul C. Szasz* I. Some Observations on Methodology Let me start by making a general Observation on methodology, which reflects my vantage as an international official. Mainly I have been a practising international lawyer for the past 35 years, always working within international organizations. Thus my viewpoint is somewhat different from the strictly academic one that most other participants here represent. I would therefore like to start by giving an explanation of how I view the conclusions that can be drawn from the actions of international organizations. Let me first assert two theses: - Although the political organs of international intergovemrnental organizations (often referred to as IGOs) are conscious of the importance of precedents- that is, they often find it easier to do again what they or similar organs have done before rather than to break: new ground, and in doing the latter they will often self-consciously and meaninglessly assert that they are not establishing a precedent - these organs are under no legal obligation to follow precedents, unless these have, most unusually, actually created new law, 1 for example by authoritatively interpreting a constitutional instrument. Nor does a disclaimer of the precedential effect of a particular act mean that it cannot or should not be followed later. Thus, while international organs are very much conscious of the importance of precedents, this term actually means something quite different from the precedents in courts, in particular in jurisdictions following the common law. - IGO political organs are also under no obligation to give reasoned explanations of their acts,2 nor is there any legal requirement that the reasons given be con-
* Paul C. Szasz, Legal Adviser to the International Conference on the Former Yugoslavia and Adjunct Professor, New York University School of Law. t Cf Art. 38(1) of the ICJ Statute, which does not refer to the actions of international organs as sources of international law, and even if they were to be included under sub-paragraph (d), they would at best be characterized as subsidiary means for the determination of the rules of internationallaw. 2 Unlike courts, such as the ICJ under Article 56(1) of its Statute. 2 Symposium 1994
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sistent, complete, or even fully honest - except, perhaps, for the normal requirement of "good faith" in all international transactions. In particular, they have no responsibilities towards the academic community to indicate the precise legal bases - or indeed any such bases - for their actions. These conclusions follow from the following considerations: - In analyzing the scope of the authority of an IGO political organ, the only safe conclusions that can be drawn from past behavior are that the actions that an organ actually took were considered authorized under the prevailing circumstances. It can, however, not be assumed that a failure to act was due to any felt legal inadequacy, since, unlike a court which is almost always so established that it is able to take a decision on any legal question with which it is faced (usually there is an odd number of members, decisions require a simple majority and abstentions arenot allowed- all designed to reduce non liquet situations), political argans (like the General Assembly and the Security Council) often require qualitied majorities for decisions - so that even if such an organ is clearly authorized to act, and a majority would have it act, the special majority required for any particular action cannot be found.
Therefore, in analyzing the action of an international organ, the only safe conclusion that can be drawn from past behavior is that the actions that an organ actually took were thought by a majority of its m:embers to have been authorized by the constitution or charter ofthat organ; thus, if an organ did something, one can assume that a majority thought it did so legally. On the other band, one cannot draw any conclusions from the fact that an organ did not act; such a fact is no indication that its members thought that the organ did not have authority to act. For example, it is useless to seek legal reasons as to why the Security Council took action in the case of Iraq's invasion of Kuwait but not when it earlier invaded Iran, nor in respect of the wars in Vietnam and Afghanistan, as if necessarily there must have been some relevant legal distinction between these several conflicts. Maybe there was, maybe there was not; most likely, the distinction is merely a political one. What happened between Vietnam and the invasion of Kuwait was, of course, that the political situation bad evolved; the Cold War was at least in recess so that the Security Council was suddenly - though perhaps only temporarily - able to act. - Even if the necessary majority can be found to take a certain action, it may not be possible to agree on the basis, or on all the bases, for that action. Thus, the failure to cite a particular reason, or consideration, or source of authority does not mean that it did not actually constitute the basis for the action. Sometimes there may only be one legal basis for an action, even if not mentioned, and sometimes there may be alternative adequate bases, none or all of which may bementioned. It then becomes the province of academic, or rarely of judicial, analysis to determine whether the action ·was, in fact, a legally proper one and, if so, on what basis or bases.
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- As the UN Charter is the constitution of a preeminently political organization, its political organs have interpreted it relatively broadly. Among other things, this means that they have generally not sought to derive their authority from the specific text of a particular Charter provision, but have often been content if their actions were arguably within the four comers of a particular paragraph, article, chapter, or even the Charter as a whole. For example, as I will discuss later, the "Blue Heimet" peace-keeping operations have been said to have been established under "Chapter VI-and-a-half' - a tacit admission that there is no precise Charter basis; other examples are the numerous decisions of the Security Council that are merely specified as having been taken under Chapter VII without reference to any particular article. Nor is there any clear Charter authority for one of the principal UN activities during the past decade: the rendering of technical assistance to states. Another type of example is the recommendation of the Security Council to the General Assembly concerning the continued membership of the Federal Republic of Yugoslavia, 3 which seems to fall under Chapter II of the UN Charter,. without fitting under any of its four Articles. My message therefore is: No matter how tempting, one should be most cautious in trying to establish a formal "jurisprudence" for political organs. II. Actions of the Security Council under Chapters VII and VIII 1. Actions Explicitly Provided for in Chopters VII and VIII
All this was by way of an introduction or rather a foreword. Now let me get briskly to the subject at band. First of all, let us consider the actions of the Secllrity Council under Chapters VII and Vill of the Charter. I will start with a very brief run-through of those Council actions that are specifically foreseen under Chapters VII and Vill. Then I will revert to a few of these that seem to require a bit of further analysis. Action number one: to determine the existence of a threat to the peace, a breach of the peace, or an act of aggression under Article 39.4 This, of course, is a sort of liminal or threshold step that may lead to other actions under Chapter VII. Unless such a determination is made, at least implicitly - and it is not clear that the Council is obliged to do so explicitly - the dispute or situation remains outside Chapter VII, and none of the specific authorizations under Chapter VII can be used. The legal requirements for such a finding is one of the subjects to which I intend to revert. Action number two: to call upon the "parties concemed," pursuant to Article 40, to comply with provisional measures the Security Council may specify. For examSee SC res. 777 (1992) of 19 September 1992. E.g., SC res. 660 (1990) of 2 August 1990 (lraq/Kuwait), 2nd preambular paragraph; SC res. 713 ( 1991) of 25 September 1991 (Yugoslavia), 4th preambular paragraph. 3
4
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ple, after Iraq invaded Kuwait, the Council, having found that this constituted a breach of the peace, promptly set two provisional measures: Iraq was called on to withdraw from Kuwait immediately, and lraq and Kuwait were instructed to start negotiating their differences. 5 The third action, also specified in Article 40, is for the Security Council to tak:e account of any failure to comply with the specified provisional measures. Again, in the case of Iraq, the Council quickly concluded that Iraq bad not complied with the provisional measure of withdrawing from Kuwait, and therefore the Council embarked on further steps.6 Action nurober four: deciding on non-military sanctions pursuant to Article 41. These are mostly embargoes but can include cutting communications as well as diplomatic relations. The first economic sanctions were irnposed on Southem Rhodesia after its Unilateral Declaration of lndependence (UDI); 7 somewhat later, the Council irnposed an arms embargo on South Africa.8 Recently, this tool has been used more frequently, and currently various embargoes are prominently in effect in respect to Iraq,9 Libya, 10 all of ex-Yugoslavia (trading in arms), u and more narrowly the Federal Republic of Yugoslavia (severe economic measures accompa-· nied by others relating to communications and diplomatic relations); 12 there are also others, such as the arms embargoes against Somalia13 and Liberia 14• Action nurober five is to tak:e military measures pursuant to Article 42. I will revert to this. s SC res. 660 (1990), paras. 2 and 3. SC res. 661 of 6 August 1990, para. l. 7 The frrst of a number of these resolutions were: SC res. 216 (1965) of 12 November 1965 (which ca11ed on states not to recognize the new state - and which incidentally contained no Article 39 finding or any reference to either Artic1e 41 or to Chapter VII); SC res. 217 (1965) of 20 November 1965 (para. 1 of which contained an Article 39 finding while para. 8 imposed an economic embargo). Fora full discussion, see Vera Gowlland-Debbas, Collective Responses to lllegal Acts in International Law: United Nations Action in the Question of Souther Rhodesia, 1990. s SC res. 418 (1977) of 4 November 1977 and SC res. 591 (1986) of 28 November 1986. 9 In particu1ar under SC res. 661 (1990) of 6 August 1990, paras. 2- 8 and SC res. 670 (1990) of25 September 1990. 10 SC res. 748 (1992) of 31 March 1992 and SC res. 883 (1993) of 11 November 1993, paras. 3-8. II SC res. 713 (1991) of 25 September 1991, para. 6; SC res. 724 (1991) of 15 December 1991, para. 5. 12 The principal resolutions imposing an economic embargo on the FRY are: SC res. 757 (1992) of 30 May 1992, paras. 3 - 12; SC res. 760 (1992) of 18 June 1992; SC res. 787 (1992) of 16 November 1992, paras. 9- 14; SC res. 820 (1993) of 17 April 1993, part B, paras. 10 - 30. 13 SC res. 733 (1992) of23 January 1992, para. 5. 14 SC res. 788 (1992) of 19 November 1992, para. 8. 6
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Action number six is to conclude, as foreseen in Article 43 (together with Articles 44 and 45), agreements with member states under which these are to hold available military units. As you know, no such agreements have yet been concluded. Indeed, the last activity under this Article was taken in 1947 when, at the request of the Security Council, the Military Staff Committee submitted a report proposing some general principles to govem the organization of armed forces made available to the Security Council by members of the United Nations. 15 However, as the Committee had been severely divided on these proposals, the Soviet Union having voted against almost every paragraph of the report, the Council failed to take any action on it as all possibility of doing so was blocked by the threat of Soviet vetoes. 16 Action number seven: making plans for the application of armed forces. That has, in the sense apparently foreseen by Article 46, never yet been done by the Counci1. 17 Action number eight: to consult, as required by Article 50, with states confronted with special economic burdens as a result of taking preventive or enforcement actions. Such consultations, which were frrst requested by Zambia when sanctions were imposed on Southem Rhodesia, 18 have been demanded - sometimes based on assertions of evidently exaggerated Iosses - by an increasing number of states affected by the serious sanctions imposed on Iraq and the Federal Republic of Yugoslavia. The Council, until now, has done very little except to refer these claims to the respective Sanctions Committees, 19 and these have merely recommended that other member states and competent international organizations take into account the parlous economic situation of some of those observing the sanctions.20 This somewhat cavalier treatrnent has led the General Assembly to UN doc. S/336 of 30 April 1947. See Yearbook of the United Nations 1947-48, 493- 496, "The Military Staff Cornrnittee," and Repertory ofPractice ofUnited Nations Organs ß (1955), study on Article 43. 17 See the studies on Article 46 in the Repertory of Practice of United Nations Organs and its Supplements. 18 See the Zarnbian requests setout in UN docs. S/10865, 10866, and 10869, to which the Security Council responded in SC res. 253 (1968) of 29 May 1968, SC res. 277 (1970) of 18 December 1970, SC res. 326 (1973) of 2 February 1973, SC res. 327 (1973) of 2 February 1973 and SC res. 329 (1973) of 10 March 1973. 19 In respect of the Iraqi sanctions, see SC res. 669 (1990) of 24 September 1990; in respect of the FRY sanctions, see SC res. 843 (1993) of 18 June 1993 (which notes, with approval, that the Sanctions Cornrnittee had already established a working group to exarnine Article 50 requests). 2o E.g., SC res. 253 (1968) of 20 May 1968, para. 15 and SC res. 277 (1970) of 18 March 1970, para. 16, both in relation to the Zarnbian requests referred to in note 18 above. For Zarnbian complaints about the insufficiency of these recornrnendations, see UN docs. SI 8786/Add.2 and S/9853/Add.1, Annex I. For recent recornrnendations re1ating to the sanctions imposed on the FRY, see the quotations setout in para. 3 of GA res. 48/210 of 21 December 1993. 15
16
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take up the "question of economic assistance to States affected by the implementation of the Security Council resolutions imposing sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro)." 21 Action number nine: to take measures pursuant to Article 51 to maintain international peace and security in case of self-defense by a member state against an armed attack. I will come back to this subject. Three action authorizations come under Chapter VIII: to encourage the pacific settling of local disputes through regional arrangements or agencies; to utilize regional arrangements for enforcement actions; and to authorize enforcement actions. As the next speaker, Professor Morrison, will be discussing mostly Chapter Vill, I will not address these actions any further. Now I would like to revisit some of those actions of the Security Council that I have already mentioned but which require some further discussion. a) Finding Threats to the Peace The first such action is the finding of a threat to the peace, a breach of the peace, or an act of aggression. Such findings have indeed been made by the Security Council, mostly in recent years after the Cold War expired and vetoes no Ionger automatically blocked such political determinations. In most of these cases such findings were non-controversial; obviously, when Iraq invaded Kuwait, that was clearly a breach of the peace (it was also an act of aggression but was for some reason not characterized as such by the Counci122). The events in former Yugoslavia certainly constituted both threats to and breaches of the peace. On the other band, some such findings, as those regarding Somalia and Libya, are questionable, though the motives for these were quite different. In respect of Somalia, the Security Council's finding of a threat to the peace was evidently intended for the benefit of that country and its people, by establishing a legal basis for humanitarian intervention. The Council was unable to identify any genuine threat to the peace in any normal sense from the disasters in that country: the collapse of its governrnent, the civil disorders and the consequent starvation not even the type of threat that two years earlier it bad found in respect of the Iraqi governrnent's treatment of the Kurds in the northem part of the country, which had "led to a massive flow of refugees towards and across international frontiers and to cross-border incursions which threaten international peace and security in the region.'m In the case of Somalia, the Council could not make any finding of that
21 22 23
GAres. 48/210 of2l December 1993. SC res. 660 ( 1990) of 2 August 1990. SC res. 688 (1991) of 5 April1991 , third preambular paragraph.
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sort, so it simply stated that the disastraus situation in Somalia constituted a threat. 24 What the Council really meant was that there was no Somali government that could request humanitarian assistance in a situation in which one would expect any extant government to do so. In the absence of any government, and considering that something bad to be done to save the population but perforce not having any official request for assistance which could circumvent the prohibition of interventions in domestic affairs according to Article 2(7) of the UN Charter, the Council decided it bad to provide such assistance under the Chapter VII exception to that Article. It was for this forced reason that it bad to find a threat to the peace, because without such a "threat" the UN was unable to render effective assistance. An analogy rnight be that of an unconscious patient in a hospital, with no one to give consent for an intrusive treatment, in which case the hospital rnight turn to a court and say: ''This is the procedure we would like to use. If the patient were conscious, no doubt he would agree to this because it would save bis life, but we do need some authorization to cover us. Could you, court, please appoint a guardian who can give us the required consent?" In the absence of an analogaus procedure in intemationallaw,25 the Security Council substituted the normally coercive Chapter Vll procedure, which in respect of Somalia required the artificial finding of a threat to the peace, even though there was no threat at all. The question we should ask ourselves, however, is whether in other circumstances such detoumement de pouvoir might not be dangerous. Perhaps such rnisgivings would be uncalled for if it were not for the case of Libya, where a somewhat questionable finding of a threat to the peace was made for entirely coercive purposes. In that case, the Security Council found a threat to the peace merely in the fact that Libya bad not discouraged terrorism, specifically by not extraditing two of its citizens to Scottish or American courts for trial in respect of the destruction of the PanAm flight over Lockerbie. 26 For that to be a threat to the peace is, to my rnind, stretching things somewhat - unless the unspoken implication is that if Libya persists in its obduracy, the aggrieved states rnight take matters into their own hands, thus leading to a breach of the peace. Thus the question arises: Is there any lirnit to what the Security Council can do in the way of characterizing a situation as a threat to the peace? Clearly, of course, finding a threat to the peace, a breach of the peace, or an act of aggression is a political act. Therefore, any judicial review of that is problematic, both in terms of tirning - as speed may be of the essence - and in terms of judicial competence. In the case of Libya, it is possible that eventually there may be a collateral comment by the International Court of Justice on the matter, because Libya has brought suits
SC res. 733 (1992) of 23 January 1992. As a matter of fact, Article 78 of the UN Charter explicitly bars the application of the trusteeship system (which isatype of guardianship) to members ofthe United Nations. 26 SC res. 748 (1992) of 31 March 1992, 4th and especially 7th preambular paragraphs. 24
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under the Montreal Convention against the VIiited States and Britain;27 however, the Court (wisely to my mind) dodged this issue when it frrst came up by reason of a Libyan request for provisional measures (which were probably the real objective of these suits), 28 and the briefing schedule it then set for the rest of the case is so remote that no decision is likely for a long time;29 but eventually the Court might get around to saying something about this finding of a threat to the peace and the consequent imposition of sanctions. As a result of these cases, particularly the Libyan one, concem has been expressed, both in the academic community and in the United Nations, that the Security Council is now out of control. Aside from the rather remote possibility of ICJ action (which would normally have to be based on an advisory opinion requested by either the General Assembly or the Security Council, as states can neither request advisory opinions nor bring a contentious case against the United Nations or any of its organs), there are, however, other checks on the Council: First of all, it should be recognized that the Council is constantly in touch with much of the UN membership. In particular, the non-permanent Council members are elected from specified groups, and these members keep in touch with their respective constituencies; if any of these consider that some proposed action would not be justified, that is reflected at least in the discussions in the Council. It is therefore not true that the permanent members of the Council can simply have their own way; even if none of them abstain, at least four additional votes are needed, and normally every effort is made to secure as close to unanimity as possible. After the invasion of Kuwait, the Security Council took very strong actions, and it was suggested that it did so undemocratically. But was it out of line with the General Assembly? The answer is "No"! In December 1990, a vote was taken in the Assembly on "the situation ofhuman rights in occupied Kuwait," in which 144 members voted against Iraq, opposed solely by the negative vote of that state and no abstentions. 30 Similarly, the General Assembly in effect gave strong support to the anti-Federal Republic of Yugoslavia (FRY) sanctions in two successive resolutions on "the situation in Bosnia and Herzegovina" adopted 102: 0: 57 in December 1992 and by 109 : 0 : 57 in December 1993?1 This suggests that on these issues the Council adequately reflected the views of the world community as a whole, as represented in the General Assembly. Secondly, if actions taken by the 27 Case(s) Conceming Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aeriallncident at Lockerbie (Libyan Arab Jamahirya v. United Kingdom and Libyan Arab Jamahirya v. United States ofAmerica). 28 Orders of 14 April1992, ICJ Reports 1992, 3 and 114. 29 Orders of 12 June 1992, ICJ Reports 1992, 231 and 234, setting 20 June 1995 for the Counter-Memorials of the United Kingdom and the United States. 30 GA res. 45/170 of 18 December 1990. See also GAres. 461135 on the same subject, adopted 155 : 0: 1 on 17 December 1991. 31 Respectively, GAres. 47/121 of 18 December 1992 and GAres. 48/88 of 20 December 1993.
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Council are too far out of line with what most member states consider appropriate, then many of these are unlikely to cooperate in the imposition of sanctions, or the supplying of forces, and so on. In spite of the requirements of Articles 25, 48(1) and 49, in such a situation there is not much the Council can do to enforce sanctions, or rather to force members to enforce sanctions. If critical states do not want to do so and if they receive support from other states, then the sanctions will become ineffective. I, therefore, think the fear of an "out-of-control-Council" is somewhat unrealistic. b) Economic Sanctions With respect to the ever more frequently used or considered economic sanctions, various aspects deserve more detailed exarnination. Incidentally, "economic sanctions" under Article 41 may relate, either exclusively32 or as part ofmore general cut-offs33, to the trade in arms- that is, arms embargoes come under Article 41, rather than being military measures within the meaning of Article 42. An almost constaht feature of sanctions regimes is the establishment of specialized borlies to supervise the implementation of these measures. 34 These Sanctions Committees are plenary subsidiary organs of the Security Council - one for each target country - which meet more frequently, more informally, and at a lower diplomatic level. They monitor compliance by states on the basis of reports from these .states and from the Secretary-General. They also consider and decide on applications for exceptions to sanctions on humanitarian grounds, 35 and on requests by states under Article 50?6 With respect to all comprehensive sanctions, such as those imposed on Iraq and on the Federal Republic of Yugoslavia, the pertinent Security Council resolutions specify that humanitarian items, in particular food and medicines, as well as the financial resources therefor, should not be cut off. 37 However, critics have asserted In respect of ex-Yugoslavia, see SC res. 713 (1991) of 25 September 1991, para. 6. In respect of the sanctions imposed on Southem Rhodesia, see SC res. 217 (1965) of 20 November 1965, para. 8. 34 In respect of lraqi sanctions, see SC res. 661 (1990) of 6 August 1990, para. 6; in respect of the Yugoslav sanctions, see SC res. 724 (1991) of 15 December 1991, para. 5(b), which was originally established in respect of the arms embargo imposed on all of Yugoslavia by SC res. 713 (1991) of 25 September 1991 and whose competence was then extended by SC res. 757 (1992) of 30 May 1992, para. 13, to the general economic sanctions on just the FRY cal1ed for by that resolution; in respect of Libyan sanctions, see SC res. 748 (1992) of 31 March 1992, paras. 3 - 8. 35 E.g., in respect ofthe FRY sanctions, SC res. 760 (1992) of 18 June 1992. 36 See supra, note 19. 37 In respect of lraq, see SC res. 661 ( 1990) of 6 August 1990, end of para. 4, and SC res. 666 (1990) of 13 September 1990; in respect of the FRY, see SC res. 757 (1992) of 30 May 32 33
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that in implementing sanctions, the enforcers, in particular the respective Sanctions Committees (which tend tobe dominated by representatives of the permanent Council members) and military units monitoring or enforcing embargoes and blockades (ditto), have not sufficiently respected the spirit of these humanitarian exceptions, so that children and other vulnerable civilians have in fact been left undermedicated, malnourished and even starving. The pertinent facts are often difficult to establish, and even if it is shown that in a target country the civilian population is badly supplied, this is quite likely to be due to choices made by its own government: It is an invariable and easily explained rule that the needs of the military always receive priority, that men with guns never starve. The question, therefore, arises: Do the strictures of the Geneva Conventions (which may be assumed to be binding as customary law even on the Security Council acting under Chapter VII) against the starving of civilians38 mean that sanctions need always be imposed in such a way that regardless of what priorities target governments impose, civilians must always be sufficiently supplied? An interesting legal aspect of sanctions regimes is that the pertinent Security Council resolutions sometimes explicitly state that they override existing treaties and contracts, for which the implicit authority must be sought in Articles 25, 48(1) and 103 of the UN Charter?9
Finally, it should be noted that occasionally the Security Council has authorized the use of force to help implement sanctions. 40 These measures should be distinguished from actions under Article 42, which imply a finding that economic sanctions were or are clearly likely tobe inadequate to accomplish the Council's purpose in maintaining or restoring international peace and security, and therefore resort must be bad to military sanctions. 41 In other words, military measures to reinforce an economic embargo should be distinguished from Article 42 actions, even if the Council does not always do so explicitly.
1992, para. 7, SC res. 760 (1992) of 18 June 1992, and SC res. 820 (1993) of 17 April1993, paras. 12 and 22(a) and (b). 38 See Article 23 of the 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War; Article 54(1) and (2) of the 1977 Protocol I to the 1949 Conventions; Article 14 of the 1977 Protocol ß to the 1949 Conventions. 39 In respect of Iraq, see SC res. 661 (1990) of 6 August 1990, para. 5, and SC res. 670 (1990) of 25 September 1990, para. 3; in respect of Libya, see SC res. 883 (1993) of 11 November 1993, para. 8 (forbidding public and private claims based on breaches of contracts, etc. that resulted from the sanctions); in respect of Yugoslavia, see SC res. 757 (1992) of 30 May 1992, para. 11. 40 E.g., in respect of Rhodesia, SC res. 221 (1966) of 9 April1966; in respect of Iraq, SC res. 665 (1990) of 25 August 1990; in respect of the FRY, SC res. 787 (1992) of 16 November 1992, para. 12, and SC res. 820 (1993) of 17 April1993, para. 29. 41 Article 42 of the Charter reads in the relevant part: "Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate ...."
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c) Military Measures The application of military force pursuant to Article 42 is clearly the most interesting of the powers of the Security Council under Chapter Vll. Aside from the just-described military measures that may be ordered at the margins of Article 41, we are dealing here principally with Articles 42 and 51. At least three important interrelated questions arise: Is it possible to implement Article 42 at all without frrst concluding Article 43 agreements? Taking into account the answer to this question and the fact that no agreements strictly under Article 43 have yet been concluded, has the Council ever actually attempted to rely on Article 42? Finally, could the Council implement Article 42 by having the United Nations establish and deploy its own military force? Those who answer the first of these questions negatively, that is, deny that Article 42 can be implemented without Article 43 agreements, argue that the only military forces that the Council may deploy pursuant to Article 42 are national armed units made available pursuant to Article 43 treaty undertakings. lmplicitly this denies the possibility of the United Nations raising its own military force, a question to be examined briefly later. Those who take the opposite view, aside from relying on the currently only theoretical possibility of such a truly international force, can do so by making either one or both of the following assertions: (i) The power of the Security Council to require states to comply, pursuant to Articles 25 and 48(1), with military measures it orders is not limited to Article 43 stand-by forces but extends to any and all forces that states actually have available or could mobilize. (ü) Whether or not the former proposition is true, the Council can always mak:e use of troops that are supplied voluntarily on an ad hoc basis, where the Article 43 agreements are replaced by explicit or implicit ad hoc troop contribution agreements of the type used in "Blue Heimet" operations.
In my view, both of the latter arguments are more persuasive than the rigidly formalistic ones on which those who take the negative position must rely. This brings us to the second question, about whether Article 42 has ever actually been implemented - for, evidently, if it has been, the Council itself must have answered the frrst question in the affrrmative; moreover, it must have done so using argument (ü) above, for it is clear that never yet has the Council attempted to require states to provide military forces on any but a purely voluntary basis, nor has it had any UN troops to deploy. To respond, we must frrst of all note that so far the military actions taken by the United Nations have basically been of two types: Blue Helmet operations, and authorizations for states to use force in particular situations and subject to specified requirements. As recalled in my liminal observations, Blue Helmet peace-keeping is said to come under "Chapter VI-and-a-half' of the UN Charter. lt is clearly not under
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Chapter VI (which nowhere deals with the use of military force), but is also not under Chapter VII. One indication to that effect is that the General Assembly itself has established some peace-keeping forces, and in the Certain Expenses case, the International Court of Justice held that that was not improper.42 The touchstone of a Blue Helmet operation is the matter of consent. Required, first of all, is the consent of the state or states directly concemed; a UN force cannot be introduced into a situation where any such state objects, particularly the state(s) on whose territory the force must operate. Even a strong objection from a non-state force like, for instance, the PLO can block a Blue Helmet operation. Secondly, one needs consent from the states that are supplying the troops; they are doing so voluntarily, in response to invitations by the Secretary-General. In the peace-keeping operations of the past several decades, the Security Council has kept monitoring the continued validity of all these consents by authorizing each operation only with a relatively short sunset provision (typically six months, though occasionally somewhat shorter or longer). Only in respect of financing is consent not required, for in most instances these operations are supported by assessed contributions, albeit allocated on a scale somewhat different from that applying to the Regular Budget. By contrast, in acting pursuant to Article 42, all these consent requirements drop away. In particular, the target state is not expected to consent; it is considered the aggressor, which the military forces in question are to subdue. So, the contrast between Blue Helmet operations and those under Article 42 is clear. This then Ieads to the question: Under what Charter authority did the actions against North Korea starting in 1950 and those against Iraq in the Gulf War take place? Under Article 2(4) of the Charter, UN members are generally precluded from using or even threatening to use military force against any state; there are, however, three exceptions embodied in Chapters VII and VIII: Article 42 (collective military action by the Organization); Article 51 (individual or collective selfdefense against an armed attack) and Article 53 (Security Council-authorized action by a regional arrangement). In respect of the Korean and Gulf Wars, Article 53 is evidently inapplicable, leaving but two possibilities: Articles 42 and 51. As the Council, in the pertinent resolutions, did not refer to any specific Charter Articles (as I mentioned above, a privilege of political organs), its choice, if any, will have to be identified by analysis. In deciding how to choose between Articles 42 and 51, it is useful to note first of all the language of the pertinent Security Council resolutions: In respect of Korea, the Council "recommended" that members take action in support of South Korea;43 in respect of the Gulf War, the Council "authorized" action in support of Kuwait.44 Neither of these words suggests reliance on Article 42, for under that 42
Certain Expenses ofthe United Nations (Article 17, para. 2, ofthe Charter), Advisory
Opinion, ICJ Reports 1962, 151. 43 SC res. 83 (1950) of7 July 1950. 44 SC res. 678 (1990) of 29 November 1990, para. 2.
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provision the Council would presumably order members to take specified actions, just as under Article 41 the Council decides what embargo measures members must take. Indeed, an "authorization" suggests reliance on Article 51, which relates to individual or collective self-defense against an armed attack (features of the start of both the Korean and Gulf Wars); although characterizing that as an "inherent right," Article 51 at least suggests that once such defensive actions are reported to the Council - as is required45 - the Council has authority to specify whether and how they may be continued. This apparent contradiction has led to another doctrinaire dispute, namely between those who claim that an inherent right cannot by its nature be subjected to any Substantive restraints and those who argue that the Council must have overriding authority over all military actions that might impact on the maintenance of peace and security. The latter position has gained some support from the continued maintenance in respect of Bosnia of the arms embargo first imposed on the former Socialist Federal Republic of Yugoslavia and then continued in respect of all the successor states, in spite of the Bosnian argument that it is the victim of aggression and therefore has an inherent right to defend itself;46 even if the Security Council were now to Iift that embargo in respect of Bosnia, the point would have been made that it is for the Council and not for the victim state and its friends to decide what measures of armed self-defense are permissible. This, in turn, supports the position that the words "authorize" or "recommend" in the resolutions relating to the Korean and Gulf Wars are at least not inconsistent with an implied reference to Article 51. Nevertheless, both the Korean and the Gulf Wars have long been considered, certainly by the public, as examples of UN collective action. In respect of the earlier conflict, one can also point to the use of the UN flag and the terminology of UN command;47 in the latter, it was the Security Council and not Kuwait and its allies that set the elaborate terms of the cease-fl.re. 48
45 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica), Merits, Judgment, ICJ Reports 1986, 14, 121- 122 (para. 235). 46 See, e.g., para. 3 of the draft resolution (UN doc. S/25997) defeated in the Security Council by a vote of 6 : 0 : 9 on 29 June 1993. lt would appear that a principal motive in Bosnia-Herzegovina beinging an application against the FRYunder the Genocide Convention was to secure from the ICJ a suggestion of a provisional measure to Iift the arms embargo on the ground that that embargo crippled Bosnia's efforts to protect its people from genocide. The Court, however, considered it inopportune to confront the Council on such an important matter within the context of a consideration of preliminary measures - but thereby also suggested that no important inherent right was involved. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal Republic of Yugoslavia), Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, 3; id., Further Requests for Provisional Measures, Order of 13 September 1993, ICJ Reports 1993,325. 47 SC res. 84 (1950) of 7 July 1950, paras. 3 and 5. 48 SC res. 687 (1991) of 3 April1991, see infra, note 54.
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In this light, it might be worthwhile to reexamine the Article 42 alternative and to note that that provision might be considered as embodying two elements: an authorization to those members that are prepared to use force to end an act of aggression to do so in spite of the normal Article 2(4) prohibition; and facultatively also an order that members do so, using forces committed under Article 43 agreements and perhaps others (if Article 43 agreements are not considered to be a precondition for such an order). It could be argued that as long as the victim state and its allies are prepared to supply sufficient forces voluntarily (as was true in both the Korean and Gulf Wars), then the Council could refrain (as it can under Article 48(1)49) from insisting (under Article 42) that non-volunteers must also participate.
The inability to decide, on the basis of either a verbal or a functional analysis, whether the Security Council had meant to act under Article 42 or 51 suggests that either: (i) the Council was actually acting pursuant to one of these provisions, but was successful in hiding its tracks; or (ü) although a sufficient majority agreed on what action was to be taken, some of these Council members were prepared to act under one provision and others under the other; or (iii) at least some and perhaps all the Council members that agreed on what action was to be taken did not consider either Article 42 or 51 to be fully appropriate, but agreed that the action could be taken generally under the broad grant of powers to the Council under Chapter VII.
Finally, a brief mention should here be made of the deployment of UNPROFOR in Croatia and in Bosnia and Herzegovina. Both these actions were originally classical Blue Helmet operations- even though the conflict in ex-Yugoslavia had at its frrst consideration by the Council already been characterized as a threat to international peace and security50 - but on the renewal of the force one year after its establishment the Council explicitly did so pursuant to Chapter VII. 5 1 Clearly this was not done under Article 51, since the troop contributing countfies were not allied with any state in the region. Nor was the new Chapter VII reference intended to require any state to supply troops or even to maintain in place any troops that it had previously supplied voluntarily. Though technically the change had the effect of making it unnecessary to secure the continuing consent of the host states of UNPROFOR, the reason for turning to Chapter VII appears to have been purely psychological: to emphasize the Council's determination and to discourage further attacks on the force. 52 49 The pertinent part of Article 48(1) of the Charter reads: "The actions required to carry out the decisions of the Security Council ... shall be taken by all Members ... or by some of them, as the Security Council may determine." so SC res. 713 (1991) of 25 September 1991, 4th preambular paragraph. st SC res. 807 (1993) of 19 February 1993, last preambular paragraph, and especially SC res. 847 (1993) of 30 June 1993, last preambular paragraph (which makes it clear that only the forces in Croatia and in Bosnia-Herzegovina are under Chapter VII, while other UNPROFOR deployment, such as that in Macedonia, continues as classical Blue Heimet).
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The third question posed at the beginning of this subsection is whether the United Nations could implement Article 42 by establishing its own rnilitary force. This matter has been suggested from time to time, but never formally examined in depth. Here I would simply like to suggest that, in principle, once the competent political organs (the General Assembly and the Security Council) have taken the necessary decisions, the Organization could establish a force by recruiting persons under Article 101, who would be employed as international officials, albeit as rnilitary rather than civilian staff - the Charter not containing any Iimitation. Indeed, the Organization already employs armed and uniformed persons as guards at many of its headquarters and other locations. The required special regulations could be adopted by the General Assembly pursuant to Article 101(1), and the budget for the force would presumably be raised by contributions assessed under Article 17. If the United Nations bad such a force, its deployment under Article 42 would be entirely consistent with the wording ofthat provision (which actually seems to suggest that calling on members for applying rnilitary measures is only a supplementary and optional measure). A small step in this direction has indeed already been taken by deploying some of the aforementioned "guards" in Northem lraq to protect the humanitarian operations for the Kurds. 53 2. Additional Actions of the Security Council under Chapter VII
Having reviewed the actions of the Security Council pursuant to specific authorizations under Chapter VII, I would now like to turn to the still more interesting point that the Security Council has in some of its decisions gone considerably beyond these explicit mandates. Some of the most striking examples are the actions in respect of lraq after it bad been expelled from Kuwait, as part of the cease-fire conditions :54 1. The Council acted to settle the boundary dispute between Kuwait and lraq, first of all by ruling that that boundary was that defined by a 1963 treaty55 - the invalidity of which lraq bad long asserted. This was evidently a political disposition of a matter that rnight better have been subrnitted to an arbitral or judicial body for a binding settlement. The Council could have required both states to s2 It sbould be noted that the "rules of engagement" of UNPROFOR were not cbanged as a result of the new Cbapter VII mandate. 53 See the Annex to the Secretary-General's report in UN doc. S /22663. 54 For the most part, these actions were taken or at least initiated by SC res. 687 (1991) of 3 April 1991, the so-called "Mother of all Resolutions." It sbould be noted that this resolution bad a dual cbaracter: on the one band, it was a decision of the Security Council, binding under Articles 25 and 48(1) of the Charter on the member states addressed (including Iraq); on the other band, it called for acceptance by the lraqi government, wbicb was communicated on 6 April 1991 (UN doc. S/22456), thereby in effect giving the terms of the resolution also the cbaracter of an agreement between the United Nations and Iraq. 55 SC res. 687 (1991) of 3 Aprill991, para. 2.
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make such a submission, as it was clearly acting under its Chapter VII mandate and was thus not restricted to making a recommendation pursuant to Article 36. The Council also caused the Secretary-General to establish the Iraq-Kuwait Boundary Demarcation Commission to actually mark the border.56 2. The Council determined that lraq was "liable under international law for any direct loss, darnage - including environmental darnage and the depletion of natural resources - or injury to foreign governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait,"57 again in effect a judicialtype determination. It also decided that all Iraqi Statements made since 2 August 1990 repudiating its foreign debt were null and void. 58 On the basis of these determinations, the Council then established a fund to pay compensation and a Compensation Commission to administer the fund. 59 3. The Council also required lraq to "accept the destruction, removal, or rendering harmless, under international supervision, of: (a) All chemical and biological weapons ... ; (b) All ballistic missiles with a range greater than one hundred and fifty kilometres ... ;" and "agree not to acquire or develop nuclear weapons or nuclear-weapon-usable material ... [and] to accept ... the destruction, removal or rendering harmless ... of all [such] items ...."60 It also required Iraq to remain or become a party to several specified treaties relevant to these requirements. These several permanent arms control obligations were considerably more severe than internationallaw imposes on states, except by their voluntary agreement. To implement the requirements for inspecting, destroying, or removing of the several types of weapons it thus proscribed for Iraq, the Council, aside from calling on the IAEA to assist in the implementation of the nuclear-related aspects, established yet another Special Commission. 4. Subsequently, when internal lraqi repressions caused an outflow of Kurdish refugees towards Iran and Turkey, the Council condernned these repressions, demanded their end, and insisted that Iraq "allow immediate access by international humanitarian organizations ... and make available all necessary facilities for their operations."61 This forceful humanitarian intervention in Iraq constituted one of the important political precedents later relied on in respect of other types of hurnanitarian actions in Somaliaandin Bosnia-Herzegovina. 56 ld., para. 3; seealso the report by the Secretary-General of 2 May 1991 (UN doc. SI 22592), the Council's response of 13 May 1991 (UN doc. S/2593) and the Secretary-General's Ietter of 17 May 1991 (UN doc. S/22620). 57 SC res. 687 (1991) of 3 Apri11991, para. 16. 58 Id., para. 17. 59 /d., paras. 18 and 19, as well as SC res. 692 (1991) of 20 May 1991 and numerous subsequent resolutions approving ru1es adopted by the Commission. 60 SC res. 687 (1991), paras. 8 and 12, and genera11y paras. 7- 14. 61 SC res. 688 (1991) of 5 April1991.
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There are other examples of the Security Council, actingunder Chapter VII, taking actions with interesting legal implications: - Numerous times the Council has declared that certain legal provisions, such as particular Geneva Conventions, applied to conflicts such as those in the Middle East62, Iraq-Iran63 , Iraq- Kuwait64 and ex-Yugoslavia65 • - Going even further, the Council established the Yugoslav War Crimes Tribunal to adjudge the guilt of those accused of war-related crimes specified and defined by the Council, and to provide for their punishment.66 It should be noted that all these several actions, many of which were implemented or reinforced by the establishment of subsidiary organs of the Council under Article 29, are ones that arenot in any way mentioned in any part of Chapter VII or even clearly derivable from any of its relatively detailed provisions. The Council's attitude has evidently been that once a Chapter VIIsituation arises, it can take any and all actions that it considers useful and suitable for dealing with the situation or with any of its consequences, whether these actions are of a military, administrative, regulatory, or even primarily judicial nature. As the General Assembly has for the most part supported these assertions of the Council's powers, it can be assumed that a considerable majority of the membership accepts them as in accord with the Charter.
Having thus recited a number of assertions of powers that the Security Council has actually made under Chapter VII, I would like to go on to mention another possible power of the Council: the power to legislate, that is, to bring into being abstract rules, i.e., rules not addressed just to a particular state. The immediate impulse for this suggestion arises from some of the Council decisions just recited in respect of Iraq: the prohibition for Iraq to acquire, in perpetuity, certain weapons that are not illegal for other states - prohibitions not specifically related any more tothat country's or govemment's aggression towards Kuwait. Another impulse is the Council's consideration, pursuant to Article X.l of the Non-Proliferation Treaty,67 of North Korea's threat to withdraw from that Treaty. As you know, the latter provides that states may withdraw by giving three months notice to all the other parties and to the Security Council. But what is the purpose of the latter clause? On its face, it simply means a state party must notify the Council three 62 E.g., SC res. 237 (1967) of 15 June 1967; SC res. 446 (1979) of22 March 1979; SC res. 471 (1980) of 5 June 1980; SC res. 476 (1980) of 30 June 1980; SC res. 478 (1980) of 20 August 1980; SC res. 484 (1980) of 19 December 1980; SC res. 497 (1981) of 17 December 1981. 63 SC res. 540 (1983) of 31 October 1983. 64 SC res. 674 (1990) of29 October 1990. 65 SC res. 764 (1992) of 13 July 1992, para. 10. 66 SC res. 827 (1993) of25 May 1993. 67 United Nations Treaty Series, vol. 729, 161, reprinted in: International Legal Materials 7 (1968), 809.
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months before it withdraws, and then the Council can do no more than take note presumably with regret. But assuming this notification requirement was meant to be meaningful, can it be argued that the Council is helpless and in no position to prohibit a notifying state from withdrawing from the Non-Proliferation Treaty? Assuming the Council decided to take action, the most straight-forward ground under the Charter (as distinguished from any power impliedly delegated by the Non-Proliferation Treaty itselt) would seem tobe a determination under Article 39 of the Charter that the threatened withdrawal, or perhaps any withdrawal, constitutes at the minimum a threat to the peace and therefore may not be allowed. Such a determination would certainly be more plausible than the assertion that the failure of Libya to extradite two citizens accused of responsibility for the Lockerbie outrage-rather than trying these in that state (as the government has offered to do) - threatens the peace. If the Council can indeed make such a determination in respect of North Korea, could it do so generally and say that proliferation is a threat to the peace and therefore all states must abide by the Non-Proliferation Treaty - if they are already parties they may not withdraw and if they are not parties they must either join or act as if they bad joined? Could the Security Council declare that any further nuclear tests are a threat to the peace and call for automatic sanctions on any state that violates the Council's ban? I am simply raising this as a point to be discussed in the beliefthat this questionwill arise in practice in coming years. 68
m. Actions of the General Assembly under Chapters Vll and Vlll Passing now to the second part of the subject I have been asked to address: actions of the General Assembly under Chapters Vll and VIll of the Charter. Let me immediately assert that there is no such thing as an action of the General Assembly under Chapter Vll or Vlll. Both these Chapters give specific mandates to just the Security Council to do a number of things that are not in the nature of powers that can be implied, in particular to cause the United Nations to use force or to authorize member states to use force in spite of the generat prohibition in Article 2(4) of the Charter. These mandates are specifically vested in the Security Council, and if that body fails to exercise any of them - either because it decides that under the given circumstances such an exercise would be inappropriate, or because it is unable to do so because of the veto or an inability to secure 9 votes - then no other organ, not even the General Assembly, can act in its stead. Although the Uniting for Peace resolution69 enables the Assembly to act in situations in which Article 12 68 The present author has given a somewhat Ionger explanation of this speculation in a note in: XV Disarmament Times 3 (No. 5, 24 November 1992), "A New Approach to Achieving a CBT." 69 GAres. 377 B (V) of 5 November 1950.
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would ordinarily prohibit it, so as not to interfere with the Security Council's handling of a situation under consideration by the Council, the Assembly under that resolution can only take the types of actions that are within its normal competence. If the Security Council fails for any reason to take any action that is within its special competence, the Assembly cannot substitute itself - even by adopting a resolution that could be interpreted as granting itself such powers. What the General Assembly can do is to make recommendations or establish subsidiary organs. Thus it can, as the ICJ held in the Certain Expenses case, establish a Blue Helmet operation - because such Operations are based on full consent and, therefore, do not force any state to do anything; in effect, the Assembly established an organ and recommended that states contribute military forces thereto and that other states permit it to function on their territories. lt can also make recommendations for the application of economic sanctions, as it did with respect to South Africa,70 but states are not bound to comply with such a recommendation as they are with a Security Council decision under Article 41. So, when the Assembly makes such a recommendation, the General Assembly is not acting under Article 41 or otherwise under Chapter VII, but it is just exercising its powers under Article 11 of the Charter to make recommendations to members. The most one could argue71 is that even though the use of economic force against a state may violate the spirit of Article 2(4)- as suggested by a resolution adopted by the 1969 Vienna Conference on the Law of Treaties72 and by the General Assembly itselc?3 - the use of collective economic force pursuant to a General Assembly recommendation (for example to combat apartheid in South Africa) is exempted from that sort of proscription. However, an Assembly recommendation that members use military force against another would be legally completely ineffective, whether as creating an obligation to use such force or even an authorization to do so contrary to Article 2(4).
Let me, however, raise another type of question in this regard: Could the General Assembly, impotent as it is to act under Chapter VII or Vill, restriet the Security Council in exercising its explicit powers under those Chapters by making use of the Assembly's undisputed and apparently sole power of the purse under Article 17 of the Charter? Could the General Assembly block the Security Council from 1o E.g., GAres. 4l/35B of 10 November 1986, para. 7, and GAres. 4l/39A of 20 November 1986, para. 72. 71 As the present author has donein "Agora: Is the ASIL Po1icy on Divestment in Violation of International Law? Further Observations: The Action Does Not Violate International Law", in: American Journal oflnternational Law 82 (1988), 314, 316-317. n E.g., Declaration on the Prohibition of Military, Political or Econornic Coercion in the Conclusion of Treaties, para. 1, annexed to Final Act of the UN Conference on the Law of Treaties, UN doc. NCONF.39/26 (1969). 73 Declaration on the Inadrnissibility of Intervention in Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA res. 2131 (XX) of 21 December 1965, para. 2. 3•
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taking certain actions that require financing by simply not appropriating the money? Two examples spring to mind: One arose in connection with UNTAG (the Blue Helmet operation to supervise the first free election in Namibia); after the Security Council had after an 11-year delay finally, in the spring of 1989, authorized the operation,74 the matter came to the Assembly for the appropriation of nearly half a billion dollars for UNTAG. Though the Assembly supported the operation in principle, it discussed the appropriation for a number of weeks,75 which ultimately caused a significant delay in the deployment ofthat force and may have contributed to the unfortunate events that marked the very beginning of this ultimately most successful operation. But the very fact that the Assembly could delay the start of an operation also suggests that it could have prevented it altogether by failing to appropriate any funds. Another current example concems the War Crimes Tribunal. In the Statute of that Tribunal,76 the Security Council specified that it be financed from contributions assessed on the usual scale for the regular budget, i.e. not that customarily used for peace-keeping operations. When the Secretary-General submitted to the Assembly, at a reconvened part of its 47th session during the summer of 1993, his estimate that over US $ 30 million would be required for the frrst two years of the Tribunal, the Assembly, on the recommendation of its Advisory Committee on Administrative and Budgetary Questions, largely set aside that estimate and only appropriated a tentative US $ 500,000 for the initial six-month period,77 saying that the Security Council bad had no business telling the Assembly how to assess contributions to cover a particular appropriation. 78 When the Assembly consequently bad to revisit the matter during its 48th session, it still refused on two occasions to appropriate more than six-month's worth of funds. 79 Although the Tribunal was not actually bindered by this reluctant parcelling out of funds, the question again arises: Could the General Assembly have actually blocked the entire Tribunal by not appropriating any money for it? (In fact that was most unlikely, because the Assembly bad earlier supported the establishment of a tribunal and later had participated in the election of judges to the Tribunal. Incidentally, the Assembly could presumably have declined to do so - but that would have raised no Charter issue, and the Council could merely have reformulated the Statute to eliminate the Assembly's role in electing judges.)
SC res. 629 (1989) of 16 January 1989 and SC res. 632 (1989) of 16 February 1989. It finally adopted GAres. 43/232 on 1 March 1989, only 30 days before the massive operation was to start on 1 April. 76 UN doc. S/27504, Annex, Article 32. n GA dec. 47/235 of 14 September 1993, para. 5. 78 See the report of ACABQ (UN doc. A/47/980) and the Secretariat's response (UN doc. A/47/1002), as weil as the debate in the Fifth Committee (UN doc. A/C.5/47/SR.72 of 27 August 1993). 79 GA dec. 48/461 of 23 December 1993, and GAres. 48/251 of 14 April1994. 74
75
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Therefore, perhaps, the Assembly's power of the purse could be used toblock Security Council actions under Chapters VII and VIII to the extent such actions do require funds from the United Nations. Evidently, this would raise a major constitutional crisis - of a type that can arise under many national constitutions where the collaboration of two or more legally independent organs is required for some essential task, such as the adoption of the annual budget. Under the Charter, further questions arise, such as whether and how the Security Council could counter-manoeuvre. Could the Council, when apparently frustrated by the Assembly in establishing a Chapter VII operation (i.e. not a Blue Helmet one such as UNTAG), raise any money therefor by requiring members to make uncompensated contributions in kind (for example military units) or even to pay contributions, relying on the obligatory character of the Council decisions under Articles 25 and 48(1) of the Charter? This would in effect bypass the Assembly's exclusive power under Article 17 of the Charter. Or could it be argued that, precisely because the Charter appears to give a monopoly of financial power to the Assembly, the Council is precluded from raising funds by relying on Article 48(1)? I am simply raising these questions because I think some of them may become of importance, especially in connection with the expressed fears of an uncontrollable Council.
IV. Fundions of tbe Secretary-General under Chapter VII Although my assignment here related solely to actions by the Security Council and the General Assembly under Chapters VII and VIII, as a former Secretariat official I consider it important to remind that the Secretary-General also has important functions in connection with Chapter VII - arguably more important ones than the General Assembly. First of all, in practice it is the Secretary-General who formulates proposals for the use of UN forces, Blue Heimet, or otherwise, and it is those proposals that are the ones that form the basis of Security Council actions in establishing such a force. Only rarely does the Council go ahead and impose on the Secretariat any sort of action or procedure which the Secretary-General has not actually put before the Council as a recornmendation. One exception, of course, are all the measures .that the Security Council included in resolution 687, the Iraqi cease-fire one: for example the establishment of the Arms Control Commission, the Compensation Commission, the Boundary Demarealion Commission, etc. These did not come from Secretariat recornmendations but were developed entirely by the Council - though their implementation required extensive Secretariat action and recornmendations to the Council. But military actions, such as UNPROFOR, have always been based on recommendations of the Secretary-General. This does not mean that such recommendations are a legal prerequisite for Council action, such as its own recommendations to the Assembly in respect of membership matters (Articles 4 - 6 of the Charter) or the appointment of the Secretary-General (Article 97 of the Charter).
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Secondly, it is the Secretary-General who implements all Blue Helmet and similar operations or others such as those under resolution 687. He carries them out pursuant to Article 98 of the Charter. It is the Secretary-General who in effect is the commander-in-chief of UN forces, and it would not seem legally or practically possible to get around him in implementing actions that the Security Council requires the Organization to take under Chapter VII of the Charter. This is an important aspect of the implementation of that Chapter.
The Role of Regional Organizations in the Enforcement of International Law Fred L. Morrison* Recent events have again raised the question of the appropriate relationship of global and regional international organizations in the enforcement of the rules of public international law. Should the global international organization, the United Nations, or regional organizations, such as the European Union (EU), the North Atlantic Treaty Organization (NATO), or the institutions of the Helsinki process (CSCE), play the predominant role? This question has a history of more than half a century. Some would find reassurance in the global enforcement of all international obligations, preferably through the actions of a unified United Nations Organization. Others would prefer the enforcement of international obligations, at least in the first instance, through regional organizations. This paper will examine that controversy. The importance of the issue is emphasized by the fact that this is the second time in five years that this colloquium has addressed issues of universalism and regionalism. 1 Professor Otto Kimminich contributed a significant essay on the peace-keeping function on that issue. 2 On its face, the United Nations Charter provides only an equivocal answer to this question. Chapters VI and VII give the United Nations Security Council a leading role in the resolution of international disputes which may Iead to threats to the peace or to breaches of the peace. The concluding article of these Chapters, however, permits individual nations to engage in "collective self-defense" in case of armed attack, thus opening the way for regional disposition of controversies. The subsequent Chapter VIII gives a special role to regional organizations. The elucidation of these relationships is the subject of this paper. For most of the past 50 years, this controversy has been primarily academic. The effects of the Cold War frequently immobilized the United Nations Organiza-
* Fred L. Morrison, Oppenheimer Wolff & Donnelly Professor, University of Minnesota Law School. ' See Rüdiger WoljTum (ed.), Strengthening the World Order: Universalism v. Regionalism. Symposium held on the occasion of the 75th Anniversary of the Institute of International Law, May 17 to 20, 1989, 1990. 2 Otto Kimminich, Peace-keeping on a Universal or Regional Level, id. , 37.
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tion and often left dispute resolution in the hands of whatever residual organizations were available at the moment, frequently regional ones. With the end of that Cold War, and the possibility of new cooperation, the legal question assumes a new importance. I. lntroduction
The contemporary significance of this question can be measured by the disputes in which it now arises. They involve controversies throughout the world, ranging from the current conflicts in Bosnia, where the European Union, CSCE, and NATO are involved in varying roles, through Liberia, where the Econornic Community of West African States (ECOWAS) has taken a leading role. They have involved seerningly resolved controversies in Cambodia, where a consultative group of states provided support for a transitional regime, and Grenada, where pleas from the Organization of Eastern Caribbean States (OECS) provided one basis for United States involvement. The ethnic disputes in the newly independent republics of the former Soviet Union add an additional and worrisome dimension. lt can also be measured by the emergence of new international organizations and the redefinition of purpose of old ones. The Helsinki CSCE process initially led to a pan-European, indeed pan-Atlantic, con.figuration with claims of providing stability and international order throughout all of the European/North American sphere.3 lts dispute resolution mechanisms has been added to the more traditional and universal mechanisms of the United Nations. At the same time, the regional rnilitary alliances, such as NATO, originally serving purposes of collective self-defense, have been forced to redefine their purposes in alternative terms. Those, like the Warsaw Pact, which have been unable to find such a common rationale have simply expired. And rising and declining empires, the EU and the former Soviet Union, have shown their intention of retaining some special regional role in keeping the peace within and near their own areas. Nor is Europe the only source of such controversy. In West Africa, a regional organization has undertaken the task of beinging order out of the chaos of Liberia, with only slight comment from the rest of the world. Another regional organization, the Gulf Cooperation Council with its ambiguous relationship to the United Nations, formed the core of the Coalition in the Gulf War against Iraq. In the Americas, one need only refer to the experience in Grenada to see the impact which a regional organization, the Organization of Eastern Caribbean States, can have upon a nation. lndeed, the experience of the more general organization in the Western Hernisphere, the Organization of American States (OAS), provides a primary source for study of this subject. 3 Conference on Security and Co-operation in Europe: Final Act (August 1, 1975), reprinted in: International Legal Materials 14 (1975), 1292.
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II. History 1. The Fonnation ofthe Charter
The initial controversy about this question carne in the fonnulation of the United Nations Charter itself. The basic principles regarding the relative priorities can be found in the Charter. 1t is therefore important to understand not only the text of the Charter, but also its underlying history and its subsequent application. As World War ll raged in Europe and Asia, planning was already underway for a post-war world order. In this planning, there was a basic controversy between the "globalists" and the "regionalists." The "regionalists" sought to create a post-war order with three or four major world regions, each headed by a superpower who would maintain a limited hegemony over its area. The "globalists" sought to create an ideal system of true sovereign equality and solely global enforcement. In the United States, this controversy pitted President Roosevelt and mid-level offleials in the State Department, who were "regionalists," against Secretary of State Stimson and senior State Department offlcials, who were "globalists." Roosevelt advocated a "four policemen" approach to a post-war organization, under which each of the "policemen," the United States, Great Britain, the Soviet Union, and China, would infonnally have primary responsibility for the maintenance of order within its own sphere of influence. Stimson and other State Department offleials favored a more global approach, which would vest responsibility in the international organization. In Britain, Churchill supported the regional approach, while Eden, optimistic despite his League of Nations experience, favored the moreglobal version. France was not a player at the time, and China was acknowledged to require temporary buttressing in its area of responsibility. The geographic boundaries of the several regions remained obscure. Churchill apparently desired a unified Europe (presumably under British influence), while Roosevelt recognized the inevitability of some significant Russian role in the postwar order. The questions of occupation and control of the then enemy states were also critical and eventually becarne part of special provisions of the Charter.4 From 1943 through 1945, discussion of the structure of the new world order of that era moved from preliminary discussions through the Dumbarton "Oaks meetings to the San Francisco Conference. The resolution of the question moved progressively away from the regionalist solution toward the approach of global collective security. Indeed, the regional security provisions of the Charter (primarily the current Chapter Vlll) might weil have been dropped from the Charter, but for the insistence of the Latin American states that their existing regional system, then called the Pan American Union, be preserved. 4
Article 53 UN Charter.
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Thus the global solution was the early victor in this contest, although the regional approach retained viability, largely through Chapter Vlll of the Charter.
2. The Cold War
If the global approach was the prevailing view in law, the regional approach soon became the prevailing view in fact. With the emergence of the Cold War and the paralysis of the Security Council, a group of organizations quickly emerged to add to the existing regional groupings in an effort to control disputes and to protect national interests. The "four policemen" quickly formed themselves into the rival forces of bipolarism. The regional organizations fell into several categories. First were the true regional organizations, which sought to control intra-regional disputes. Foremost of these was the inter-American system, both through the lnterAmerican Treaty of Reciprocal Assistance5 (the Rio Treaty), and subsequently through the Charter of the Organization of American States.6 Most of the true regional organizations, however, had few provisions for enforcement of international law, even if they did seek to resolve internal disputes. Second were the more military organizations, aimed at collective self-defense. Included here were NAT0,7 SEAT0,8 CENT09 (when it existed), ANZUS, 10 and others. The Rio Treaty also had a role here. These were justified more in term of Article 51 collective self-defense powers than as an expression of regional Chapter Vlll concerns. 11 They were primarily directed toward the prevention and repulsion of armed attack and not toward the enforcement of law within the membership of the organization. Finally, there were non-organizational regions, like that claimed by the Brezhnev Doctrine, 12 under which the Soviet Union asserted certain authority over the then socialist states, even beyond that formally recognized in the institutional documents of the Warsaw Pact. s Inter-American Treaty of Reciprocal Assistance of 2 September 1945, United Nations Treaty Series (UNTS), vol. 21, 93. 6 Charter of the Organization of American States of 30 April 1948, UNTS, vol. 119, 3. 7 North Atlantic Treaty of 4 April1949, UNTS, vol. 34, 243. s Southeast Asia Collective Defense Treaty of 8 September 1954, UNTS, vol. 209, 28. 9 Baghdad Pact of 24 July 1955, UNTS, vol. 233, 199. IO Security Treaty Between Australia, New Zealand and the United States of America of 1 September 1951, UNTS, vol. 131,83. 11 See, for example, the express references to Article 51 in Article 5 of the North Atlantic Treaty (note 7). 12 Letter from Soviet Politburo to Central Comrnittee of the Communist Party of Czechoslovakia (15 July 1968) ("Warsaw Letter"), reprinted in: Soviet News, 23 July 1968, 39; Nicholas Rostow, Law and the Use of Force by States: the Brezhnev Doctrine, in: Yale Journal of World Public Order 7 (1981 ), 209.
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During the Cold War, there were, indeed, a few instances of global enforcement of international law, but they were the exception and not the rule. Only when the major powers agreed, as in Cyprus and the Congo, was United Nations "enforcement action" possible. The "trouble spots" were commonly on the frontiers between the spheres of influence of the major bipolar powers, not within them. In other instances, the global organization rnight organize peace-keeping contingents and deploy them with the consent of the contesting parties, but resolution of the controversy was accomplished through other means, frequently regional institutions. 3. The New Order The Helsinki process brought the end of the Cold War. It provided a level of security which permitted disengagement of the rnilitary forces of the two powers of the bipolar era. It is perhaps significant that Helsinki itself was not a global agreement, but a regional one, in which only European/North Atlantic states participated. The Helsinki accords themselves have more a political than legal character. They emphasize process and confidence-building, rather than specific rules or rights. In this new dispensation, however, regionalism-in-fact no Ionger stood in the way of globalism-in-law. It was Helsinki which brought new life to the UN, and not vice versa. The fact that Helsinki was a regional and not a global process should not be forgotten in this debate, for the effectiveness of a globallegal order may be dependent upon the stability of an underlying inter-regional consensus. With this historical background, we can now turn to the legal principles which are involved.
ill. The Legal Analysis Before exarnining the application of Charterprovisions and other rules of international law to the problern at band, a quick review of some definitions and of some basic principles of internationallaw is in order. 1. A Definition
It is important to clarify the term "enforcement actions" or "enforcement measures." For the purposes of this discussion these terms refer to any action which would itself be a violation of internationallaw, if taken without either some special "justification" or without the contemporaneous consent or acquiescence of the target state. The concept of "justification" is borrowed from the crirninal law. lt connotes some special authority, such as a Security Council authorization under Article 41 or 42 of the Charter. Thus actionstaken under Chapter VI would normally
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not be "enforcement actions," since their utilization might be unfriendly, but would not be unlawful per se. Decisions under Chapter VII would, in contrast, frequently involve actions requiring this kind of justification to avoid illegality. This is similar to the dassie distinction between "retorsion" and "reprisal." A retorsion is the taking of steps, lawful in themselves, which are detrimental to the target country; it would not be an "enforcement action" in this narrow sense. A reprisal is the taking of steps, which would be unlawful in the absence of some special justification or authorization; it would be an "enforcement action," although a unilateral one. Enforcement actions or measures may be military, but they may also involve economic or other steps, involving blockades, embargoes, etc., which would be unlawful, either under the United Nations Charter or under some other governing internationallaw (e.g., GATI), unless specially authorized by international authority. The alternative of contemporaneous consent or acquiescence is intended to be based both on law and on reality. In law, acquiescence of the target states eliminates any claims that the action itself is a violation of international law and also alleviates any concern that its accomplishment is a threat to the peace. lt thus avoids the need for a formal justification of the type mentioned. (The UNEF forces in the Sinai before 1967 were an example of such consent.) In fact, any effort to take military or other action against a target state, which does not have the contemporaneous acquiescence of that state willlikely meet resistance, military or otherwise, from the affected country. The attempted unilateral or multilateral action may thus itself occasion a "threat to the peace." In the context of peace-keeping, the Charter does not differentiate between legal and illegal threats to the peace. Any threat to the peace is a sufficient ground to invoke Security Council authority under Chapter VII, without regard to the justice or injustice of the claims of the parties to the dispute. The Security Council's function is frrst to keep the peace; only thereafter does it deal with the "justice" of the issue. An individual (or other less-than-universal) response is allowed only in the context of an "armed attack," as provided in Article 51. Both the term "contemporaneous" and "acquiescence" are intentionally chosen. The consent must be contemporaneous and continuing. A prior consent, even a consent contained in a treaty, may continue to be legally binding in theory, but an action taken against a target state on the basis of such a consent may nevertheless endanger international peace and security by engendering a hostile response from the target state. The Security Council's frrst duty would be to maintain or restore peace. Thereafter, the burden of demonstrating the legality of the intervention would be on the intervening party. "Acquiescence" was chosen to emphasize that consent may be given by inaction or acceptance, rather than by formal action.
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2. Basic Principles a) The Sovereign Equality of States The legal analysis of the question must begin with three of the principles articulated in the Charter:
The Organization is based on the principle of the sovereign equality of all its Members (Article 2(1) ofthe Charter). All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered (Article 2(3) ofthe Charter). All members shall refrain in their international relations from the threat or use offorce against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations (Article 2(4) of the Charter). To be consistent with these principles, enforcement actions can only be taken by states which consent, against states which consent, in (or through) the territory of states which consent, unless there is special justification under the Charter. This was a fundamentallesson of the 1967 Arab-Israeli War. Whether one sees the withdrawal of the United Nations force in the Sinai in the days preceding that war as an application of intemationallaw (the General Assembly bad no authority to station troops on Egyptian soil without Egypt's consent) or as an application of international politics (the govemment of lndia did not want its troops tobe militarily engaged), this precedent is an application of the principle of sovereign equality.13 The principle of sovereign equality has repeatedly been reaffinned and rearticulated in declarations of the General Assembly and in other international instruments, such as the Declaration on Friendly Relations, 14 the Definition of Aggression, 15 and the Declaration on the Inadrnissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty. 16 Sovereignty is the "right to make mistakes." 1t is the right to take definitive actions and to bear the consequences of those actions. One of the corollaries of sovereign equality is that grants in derogation of national sovereignty should be construed narrowly. A treaty commitment by a nation to take certain actions does not carry with it a right of other nations to use military 13 United Nations, The Blue Heimets: A Review of United Nations Peacekeeping, 51, 7578 (2nd ed. 1990, UNSales No. E.90.I.18). 14 GA res. 2625 (XXXV) of 24 October 1970. 1s GAres. 3314 (XXXIX) of 14 December 1974. 16 GAres. 2131 (XX) of 21 December 1965.
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force to compel those actions. The International Law Commission's draft articles on State Responsibility clearly prohibit the threat or use of force as a countermeasure to ensure compliance with international obligations. 17 A treaty to engage in peaceful dispute resolution cannot be presumed to grant other nations the right to compel peaceful dispute resolution by rnilitary enforcement actions. Such a grant would violate the ius cogens prohibitions against the use of force and thus be void. 18 b) The Role of International Organizations The traditional international legal system subordinated international organizations to nation-states. This principle is the crux of the present problem. With the exception of the United Nations itself, nation-states are the primary actors in the legal universe of internationallaw. International organizations (whether regional or specialized) are associations of those states. They have a legal personality derived from their own constitutive instruments and only those rights which were conveyed to them by their constituent members. While an international organization may be able to claim to have the necessary powers to carry out its functions vis-avis its own members, it certainly cannot claim to have been granted a right under a "necessary powers" doctrine to engage in activities which would have been positively unlawful for any or all of its member states to undertake. The evidence for this proposition is also substantial. 1t runs from the language of the Charter itself, through Article 34(1) ofthe ICJ Statute, to the exclusion ofinternational organizations from the application of the Vienna Convention on the Law of Treaties. 19 International organizations may be the creatures of intemationallaw, but they are not the personae of it. A corollary of this principle is that an organization cannot be superior to the nation-states which create it, merely because it encompasses a larger geographic area than any of them. The organization has no inherent authority to intervene or to engage in enforcement actions. That authority must expressly be delegated to it. (For the purposes of the present discussion, the United Nations itself will be considered separately.) lt is important to note that this rule may be in a state of change. International organizations clearly are achieving greater autonomy in their constitutional stature. Modem students Iook upon the Reparations for Injuries case20 as self-evident and the arguments to the contrary as anachronisms. Some 17 Draft article 14(1)(a) on State Responsibility (Part 1\vo) as proposed by the Special Rapporteur Gaetano Arrangio-Ruiz in bis fourth report on State Responsibility, UN doc. N CN.4/444/Add.1 of I June 1992, 34. 1s Article 53 of the Vienna Convention on the Law of Treaties, UNTS, vol. 1155, 331. 19 Id., Articles 1 and 3. 2o ICJ Reports 1949, 181.
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regional organizations, such as the European Union, have acquired state-like characteristics, but that single instance cannot be generalized - at least yet. Thus in order to clairn authority to engage in enforcernent actions, an international organization rnust be able to justify that action on the basis of existing law. lf it turns to the Charter, it finds only the limited authority of Chapter VIII (or of Article 51). If it turns to its own constitutive instrurnents, it can have no rnore authority than that possessed and granted by its founders, who were thernselves inherently constrained by Articles 2(1) and 2(4) of the Charter. A group of states cannot collectively convey a power or authority which none of thern originally bad. Nemo dare potest quod non habet. c) The Difficulty ofEstablishing New Regional International Law The difficulty of establishing rules of custornary regional international law was dernonstrated in the Asylum case.21 Newly ernerging (and shifting) regional organizations will find it difficult to establish the kind of consistent regional custorn which the Court required there. Given the shifting and evolving nature of regional groupings, it rnay be difficult to establish any real regional custornary law at all. This problern is exacerbated by the absence of any true defmition of "region." Many states rnay be in two or rnore regions, depending on the purpose in question. There is, for example, no sharp delineation between the ambit of the Organization of African Unity and that of the Arab League, a fact that rnay account for the weakness of both organizations. For United Nations purposes, Israel is aligned with Western Europe. Given its relations with the United States and rnany Latin American states, should Cuba be relegated to dependence upon the American region? d) The Effect of Treaties States have an obligation to abide by the treaties they have signed. Pacta sunt servanda. But does that obligation go so far as to require a state to acquiesce in "enforcernent actions" undertaken against it by other states? In the case of the United Nations Charter itself, the answer would appear tobe clearly "yes." In the case of regional organizations, the answer is apparently the opposite. First, few if any of the regional organizations have treaty provisions which clearly authorize the use of military force against a state, except in the situation of "armed attack" upon a rnernber state. lt is difficult to rnake a convincing case that such activities rnay lawfully be carried on by virtue of a rnere irnplication frorn a treaty text. Second, the initiation of such action by a regional group (and its resistance by 21
ICJ Reports 1950, 266, 276-278.
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a target state) would create a conflict between the regional organization and the target state, which would be a threat to the peace or a breach of the peace in fact. The prohibition on the use of force except as authorized in the Charter of the United Nations is part of the ius cogens from which a mere regional agreement cannot derogate.
3. The Charter Rufes Given this framework of international law, how does the Charter, which is the only applicable generallaw, allocate responsibility between the United Nations as a global organization and regional agencies which would enforce international law? The answer lies somewhere in the chasm between Chapter VII and Chapter vm. The analysis, however, must begin with the well-known dichotomy between Chapters VI and VII. Chapter VI deals with the "pacific settlement of disputes." A careful analysis of its provisions shows that the Security Council is limited to investigation, recommendation, and reference. Such actions are not "enforcement measures" as defined here, although the public persuasion involved may be strongly effective and actions may be taken, so long as they do not violate the international rights of the target state. Chapter VII, in contrast deals with action, specifically "action with respect to threats to the peace, breaches of the peace, and acts of aggression." Here the Security Council may "decide what measures ... are to be employed to give effect to its decisions," (Article 41) and may "take such action by air, sea, or land forces as may be necessary ..." (Article 42). These are the "enforcement measures," the frrst of a non-military, the second of a military kind. The only important procedural distinction between the two Chapters is that a permanent member must abstain in a Chapter VI proceeding if it is directly involved in the conflict, 22 but may vote (and veto) a Chapter VII measure, even if it is involved in the controversy. Until recently, as Secretary-General Hammarskjöld once commented, most action was takenunder "Chapter VI and a half," halfway between the two. Article 51, the concluding provision of Chapter VII, recognizes "the inherent right of individual or collective self-defense if an armed attack occurs." That right subsists until the Security Council "has taken measures necessary to maintain international peace and security." Note that this right comes into being upon the occurrence of an objective fact, "an armed attack," and may be undertaken by nations or groups of nations on their own authority without authorization by the Security Council and may continue until it has acted.
22
Article 27(3) UN Charter.
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The interplay of these provisions is critical: - The United Nations can engage in actions to "maintain international peace and security," which do not amount to enforcement action. That is the gist of Chapter VI. So, of course, can any other nation or group, because the kinds of actions taken under Chapter VI are presumably not themselves prohibited by internationallaw. - The Security Council can also engage in "enforcement actions," as authorized by Chapter Vß, even actions which in themselves would normally violate international law, e.g., by using military force against a state. In certain circumstances, it can authorize or direct others to act. Other nations or regional organizations could not legally do so; to do so would violate ius cogens norms. - Any nation can, however, engage in "individual or collective self-defense," but only if an armed attack occurs, and then only until the Security Council has taken action to restore peace and security. Note the distinction between the preconditions to Security Council action under Chapter Vll and self-defense under Article 51. The Security Council may act whenever there is a "threat to the peace, breach of the peace, or act of aggression" (Article 39). The individual states or groups of states may act independently only when "an armed attack occurs" (Article 51). The "armed attack" is a much narrower concept that a "threat to the peace." Individual and collective responses of self-defense are much more constrained than community efforts to keep the peace. The net result is that enforcement actions involving use of force may be taken only in two sets of circumstances: or
1. When specifically authorized by the Security Council under Article 41 or 42,
2. When the precondition of "armed attack" has been met and the Security Council has not acted under Article 51. Because of the possibility of unilateral veto (and even because of the special majority requirement), there are many situations in which no action of the Security Council is possible. In those cases, the legal resolution defaults to the second option. This situation was especially true in the Cold War era; in the vacuum of inaction, self-defense became the key concept. Applying the same analysis principles to the Chapter Vlll rules Ieads to the following conclusions: Regional arrangements and agencies for maintaining international peace and security are clearly permitted by the frrst paragraph of Article 52: Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided 4 Symposium 1994
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that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. Those "Purposes and Principles" include the ones listed above: sovereign equality, peaceful resolution of disputes, and restraints on the use of force. The parties to these regional "arrangements or agencies" are required to honor them both by Article 33(1) and by Article 52(2). (Is it significant that the requirement to use regional arrangements in Article 33(1) is part only of Chapter VI and is not found in Chapter Vll?) Only the members of the arrangements or agencies are bound to use them; other states, even states in the same region, may presumably ignore them. 23 Nevertheless, according to Article 52(4), the Security Council retains its powers under Chapter VI and presumably under Chapter Vll. The Security Council is repeatedly authorized to refer disputes to the regional organizations and agencies. This power begins in Chapter VI itself (Article 33(1)), and is repeated in Chapter Vill, Articles 52(3) and 53(1). Indeed, the power of the Security Council to use groups of states for enforcement actions is explicitly recognized both in Chapter Vll and in Chapter Vill. Article 43(3) authorizes the Security Council to negotiate the use of military forces not only with individual member states, but also with "groups of Members." Article 53(1) also gives the Security Council specific authority: The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority.... On the other band, the regional organizations themselves are specifically prohibited from engaging in enforcement action without the express approval of the Security Council. The following sentence of Article 53(1) provides explicitly: ... But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, .. .24 Thus a regional organization may legally engage in "enforcement action" only with prior authorization by the Security Council. In contrast, an organization engaged in "collective self-defense" under Article 51 can engage in military action in that regard until the Security Council has acted. The collective self-defense is, however, subject to the precondition that there has been an "armed attack." To parallel the outline given above of the powers of the Security Council and of individual states, the authority of regional organizations in these circumstances can be summarized thus:
Article 52(3) UN Charter. Article 53(1) UN Charter. A subsequent exception is provided in Article 53(2) for actions against the "enemy states" of World War II. 23
24
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- A regional organization can engage in measures to maintain international peace and security which are short of "enforcement measures." This parallels the Security Council's authority under Chapter VI, but even here the regional organization must inform the Security Council of its actions; - regional organization can engage in "enforcement measures" of the kinds described in Chapter VII only if it has express authority from the Security Council; - a regional organization can engage in "collective self-defense" without prior Security Council authorization, but only if an "armed attack occurs" and then only until the Security Council has taken steps to restore peace and security. In reality, the "enforcement measures" and "collective self-defense" may be virtually indistinguishable. The difference depends on the activity Ievel of the Security Council. An active Security Council can engage in "enforcement measures" (or authorize others to engage in them), and thus extinguish any legal right of the target state and its friends to engage in collective self-defense. A passive or immobilized Security Council may be unable to act under Chapter VII, leaving the way open to an expansive but not unlimited collective self-defense under Article 51. In its original, theoretical conception, Chapter VIII was probably thought to be more important than Article 51. Regional disputes would be referred to regional organizations, which would resolve them, using "enforcement measures" if necessary and authorized, all under the watchful eye of the .Security Council. Article 51 was seen only as a short-term remedy, until the Security Council could meet and direct appropriate action. In the Cold War paralysis of the Security Council, the relationship between the provisions changed. Article 51 acquired a greater significance, because under it forcible action could be justified against an aggressor without Security Council authorization, but only if an "armed attack occur[ed]." That collective self-defense could continue until the Security Council ordered otherwise. Because of the paralysis of the veto, the Security Council would remain inactive. As a result, regional organizations shifted their rationale from a collective security rationale appropriate for Chapter VIII to a collective self-defense rationale drawn from Article 51. The predicate for their action was no Ionger the "maintenance of international peace and security" plus Security Council action, but rather an "armed attack" minus Security Council action. In the post-Cold War era, there is again the possibility of Security Council action, which could dramatically change the role and responsibility of regional organizations. In recent practice, this has come primarily through subtle recognitions of regional activities, rather than overt delegations of responsibility. There remains, however, the possibility of other obstructions to action. A plural-member, veto-laden body has proven itself capable of inaction,.even in circumstances which do not involve bipolar tension. In the absence of Security Council authorization, regional organizations have only two lawful possibilities: 4*
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1. Engagement in non-enforcement measures of persuasion, e.g., restrictions on the movement of persons or goods which are not otherwise violative of other provisions of intemationallaw. 2. Collective self-defense, but only if an armed attack has occurred and the Security Council has not acted.
IV. Specific lssues This analysis leaves a number of questions to be answered. How can regional arrangements be established and legally function? Some of those issues may now be addressed.
1. The nature ofregional arrangements. May regional arrangements be defacto, de jure, or both? Article 52(2) provides a substantial part of the answer to this question. It provides: ''The Members of the United Nations entering into such arrangements or constituting such agencies shall ... " The words do not necessarily speak of a formal "agreement" or ''treaty," so informality in the constitution of the arrangement or agency remains a possibility. Indeed, the language of Article 43(3), which refers to "groups of Members," would seem to reinforce the possibility of informality of the arrangements. The ordinary case will, however, undoubtedly remain a formal international organization. Note, however, that the obligation to resort to these arrangements for peaceful settlement of disputes under Article 52 falls only on the members "entering into" the arrangements! Thus, non-members could not be required to use these mechanisms. Without some formal institutional acceptance, it would be difficult to define what nation bad "entered into" the arrangement. In contrast, under Article 53, the Security Council may utilize the regional arrangement for enforcement against anyone, "where appropriate." Thus it remains a possibility that a regional organization could be used to mount an enforcement action against a non-member, if that was otherwise appropriate. The experience of NATO in Bosnia is an example of this.
2. The relationship between the constitution of regional arrangements (tasks, obligations, restraints) and Chapter V/1. Could the Security Council charge a regional arrangement with enforcement measures not provided for under a regional arrangement? For example, could the Security Council authorize NATO to conduct an "out of area" action? This complex question masks a variety of issues, which require disaggregation. First, a Security Council action authorizing enforcement action would remove any claim that the enforcement action was an unlawful "armed attack" against the target state or other violation of intemationallaw. The Security Council has authority
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to call upon the international organization under Article 53, as well as the authority to call upon the members constituting that organization under Article 43. Second, would such an action be "appropriate" under Article 53(1), which indicates that the Security Council may use regional organizations only when appropriate? As a matter of law, the question of appropriateness is probably a discretionary decision left to the political judgment of the Security Council, not reviewable as a question of law. 25 As a question of practice, much would depend on the facts. An "out of area" action rnight well be inappropriate for logistical and other reasons. An action within (or near) the geographic area of a region, even if taken against a non-member, rnight well be appropriate. Third, could the Security Council authorize an international organization to act ultra vires its own constitutive instruments? This tums upon the general law of international organizations. The consequence rnight be to transform the de jure international organization into a de facto "arrangement" for this lirnited additional purpose. The relationship would no Ionger be with the organization itself, but with a "group of members" composed of the same states. That rnight bring into question the legal obligation of its members to provide financial and other support for the activity, as part of their duties toward the regional organization. Fourth, could the Security Council use this device under Article 53 to avoid the lirnitations upon the requisitioning of troops inherent in Article 43? The express language of Article 43, which calls for agreements with members or "groups of Members" would seem to indicate that such action would require the consent (agreement) of the participants. If the basic instrument of the organization perrnitted its governing body to make such decisions, presumably it could enter into such an agreement. If not, the agreements would have to be made directly or indirectly with the participating nations. If such action was ultra vires, the considerations mentioned above rnight come into play. The United Nations rnight well have an agreement with the regional arrangement, but the arrangement rnight have no legal claim upon its members for support in carrying out that arrangement. Coupted with the practice of nearly half a century and the express language of Article 43, it seems unlikely that such a process could avoid the need to obtain the consent of nation states for the participation of their troops in such activities. 3. /s the General Assemb/y a subsidiary authority under Art. 53? /s the Uniting for Peace Resolution an instrument to overcome the Security Council's failure to act under Chapter VIII? The Uniting for Peace Resolution26 is a rnightier sword in acadernic theory than in practice. It authorizes the General Assembly to "recommend" collective mea2S Case Conceming Questions ofthe Interpretation and Application ofthe 1971 Montreal Convention Arising from the Aerial/ncident at Lockerbie (Provisional Measures), ICJ Reports 1992, 114, 126. See alsotheseparate opinions of Judge Odß, id., 129, and Judge Lachs, 138-39. 26 GAres. 337A (V) of 3 November 1950.
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sures. In one way, it can be viewed as an extension of Article 51, organizing unity in support of the victim of aggression in the absence of Security Council action, rather than an application of Article 42 or Chapter Vill. For that reason the formal answer to the question, as stated, probably should be in the negative. Neither the General Assembly nor any other authority may substitute for the Security Council in those circumstances in which it is explicitly named in the Charter. 4. /s there any independent law enforcement through regional arrangements? Consider the case ofviolations ofinternationallaw erga omnes. An international organization is the creature of its creators. It can assert no more authority than they initially possessed and granted to it. Thus, the answer to this question depends on whether an individual state could engage in independent law enforcement against the target nation.
If one speak:s of the most extreme "enforcement authority," i.e., the use of military power, states may engage in such acts without prior authorization only "if an armed attack occurs" (Article 51). Other violations of internationallaw do not justify the use of military force in this manner. 27 The legality of the international organization's response is thus dependent upon the authority of at least one of its member states to react in this manner. This is, of course, the crux of the NATO/Rio Treaty lines of organizations: an attack upon one is an attack upon all. If the alleged violation erga omnes was of a character which would allow a member state to engage in a military response, the organization might respond under Article 51 self-defense. If the alleged violation by the target state constituted a violation of internationallaw erga omnes which was not an armed attack, the international organization would be Iimited to actions which did not involve the use of force both because of the absence of any positive authorization in the Charter and because of the express prohibition contained in Article 53( 1).
5. What is the relationship between regional arrangements under Chapter VIII and collective self-defense? Are these different phenomena or not? The difference is that between "collective security," a pro-active exercise of international power to create peace and security, and "collective self-defense," a reactive response to an "armed attack." The authority of regional arrangements under Chapter Vill is an extension of the Security Council's "collective security" powers. The authority of regional arrangements under Article 51 is an extension of the individual state's inherent right to self-defense. The two concepts have tended to become merged in common thought, but they are quite different. "Collective security" depends upon a subjective, political decision by an international body, the Security Council. "Collective se1f-defense" depends upon the establishrnent by one nation of a (somewhat) objective state of 27
Case Conceming Military and Paramilitary Activities in and Against Nicaragua, ICJ
Reports 1986, 14, 87 - 101.
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facts (the "armed attack") and the absence of a political decision by that same international body. The distinction was well understood in the early days of the Cold War. The Rio Treaty was an instrument different from the Charter of the Organization of American States, primarily because the Rio Treaty was based upon Article 51, while the OAS Charter was based upon Chapter VIII. The institutions of the two organizations were essentially congruent. The same set of offleials met in the same room to make similar decisions, but they bad different nameplates and minute books.28 The distinction was also well articulated in the primary military alliances dedicated to self-defense. The Charter of NATO, for example, makes explicit reference to Article 51.29
V. Conclusions Regional organizations may have a significant role to play in the preservation of international peace and order. They are recognized as important actors in this regard, both explicitly in Chapter VIII and indirectly in Article 51 of the Charter. Their particular role may, however, be dependent upon the evolution of political relations in the post-Cold War era.
If a spirit of cooperation continues in the Security Council, that body will undoubtedly have the predominant role in directing international actions. With cooperation of the major powers, there may be increasing reliance upon the good offices and strong band of regional organizations. Existence of a functioning administrative and military structure, farniliarity with the problems, and ease of access will dictate this result. The regional organizations will then function under the format foreseen in Chapter VIII, both through self-reference and reference from the Security Council. The role of established military organizations within these regional groups may be of great importance, for they give some reassurance that there will be fewer lapses of communication, command, and control. Improvised peace-keeping and peace-making forces from many countries may prove less effective in combat situations. If that spirit of cooperation again breaks down, regional organizations may revert to a role they played during the Cold War era. Their activities may be more frequently justified in Article 51 terms, which will constrain them slightly. The absence of the requisite Security Council votes to condemn these actions would leave a relatively free band, absent intervention from another group. 2s Compare, for example, the references in Article 11 of the Inter-American Treaty of Reciprocal Assistance (note 5) and in Article 59 of the Charter of the Organization of American States (note 6). The Organ of Consultation of one is the Council of the other. 29 Article 5 of the North Atlantic Treaty (note 7).
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The most probable scenario is between these two extremes. The Security Council may cautiously endorse some action or response to a problem, leaving implementation of the particular response to a regional group in less than precise terms. The group will then be able to rely upon that authorization as a license to proceed, at least until the Security Council has taken another affirmative act. Given the inertia inherent in the international legal system in general and in the Security Council voting procedures in particular, the latter decision may be difficult or impossible to reach, leaving the regional organization with a relatively broad claim of authority. In either event, regional organizations will continue to be significant actors.
Comment Klaus Dicke* Thanks to the presentations of Paul Szasz and Fred Morrison we now have a very clear picture of what UN organs are entitled to do with regard to international law enforcement and to what extent regional arrangements under the wording of Chapter VIll of the Charter can contribute to international law enforcement. If one sums up the answer which both presentations give to the leading question of this symposium, this answer reads as foilows: the allocation of law enforcement authority in the international system took place 50 years ago in San Francisco when Chapters VI to VIll of the Charter were established. The Charter essentially provides for a centralized ailocation of internationallaw enforcement authority because, even under Chapter VIll, Article 53 requires the authorization of any enforcement action by the Security Council. The allocation as established by Chapters VI to VIII stood the test of the Cold War, stood the test of "Uniting for Peace," and stood the test of the developments of the international system after 1989 as weil. As a political scientist I feel free to take this view as a starting point for some considerations on the future development of the allocation of international law enforcement authority. Foilowing a weil established UN practice, I understand my mandate to comment in a broader sense as including a mandate to add a supplement as weil. I am urged to do so because on the one band I agree with the legal analysis of Szasz and Morrison - with the exception of their view towards "Uniting for Peace" 1 - but, on the other band, I think that the view as summarized above is nothing less than a "freeze" against any development within the international system towards further decentralization and regionalization of law enforcement authority. In my view, this does not fit into the picture of the international system at least after the end of the East-West conflict. Not only made Secretary-General Boutros Boutros-Ghali a strong move towards the revitalization of regional arrangements and Chapter VIll in bis "Agenda for Peace" report;2 regional organiza-
* Dr. Klaus Dicke, Associate Professor of Political Science at the Institute of Political Science, Johannes Gutenberg University, Mainz. t Cf infra, note 4. 2 An Agenda for Peace. Preventive Diplornacy, Peacernaking and Peace-keeping. Report of the UN Secretary-General pursuant to the Statement adopted by the Surnrnit Meeting of the Security Council on 31 January 1992, UN doc. A/471277 (= S/24111) of 17 June 1992,
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tions themselves are giving up their reluctance to function and tobe acknowledged as regional arrangements under Chapter VIII; in particular, the "new" CSCE is regarded as an attractive model for regional collective security? Any legalistic "freeze" against further decentralization of law enforcement authority - this is the view I want to set forth - would endanger the legitimacy and even the effectiveness of international law enforcement authority as a whole. To develop my argument I will pick up some points made by Szasz and Morrison and will discuss them in the following order: (I) I will turn to the Security Council and the centralization of internationallaw enforcement authority; (II) I will address the question of decentralized law enforcement authority in accordance with the UN Charter. In concluding my comment, I will (III) propose a possible solution to the dilemma between the increasing role of regional organizations in the international system and, on the other band, the centralized allocation of law enforcement authority as established by Chapters VII and VIII and, in particular, by Article 53 of the Charter. I. Let me start with the Security Council. I fully agree with the view put forth by Szasz and Morrsion that the fundamental decision with regard to the allocation of law enforcement authority took place in 1945. The UN Charter vested the Counci1 with the "primary responsibility for the maintenance of international Peace and security" (Article 24).4 On the other band, the Cold War rendered the Council nearly ineffective, with the consequence that enforcement according to the Charter occured only in very few exceptional cases. That this symposium is the second one in three years dealing with international law enforcement5 is due to the fact that after 1989 the Council was enabled to better fulfill its chartered rnission.
But can we take its new found capability to take action for granted? A working group of the UN General Assembly is in the process of preparing a Charter amendment which would enlarge the Security Council to a membership of up to 20 or even 25 states.6 lf it will come to an amendment of the Charter to enlarge the paras. 60 et seq. Cf Georg Nolte, Konferenz in New York über die Zukunft des kollektivenSicherheitssystemsder Vereinten Nationen, in: Zeitschrift für Rechtspolitik 27 (1994), 237, 237. 3 Cf Peter Schiotter I Norbert Ropers I Berthold Meyer, Die neue KSZE. Zukunftsperspektiven einer regionalen Friedensstrategie, 1994. 4 Cf lost Delbrück, [commentary on] Art. 24, in: Bruno Simma et al. (eds.), Charta der Vereinten Nationen. Kommentar, 1991, 364.- Because the Charter vests the Security Council with the primary responsibility it implicitely does not rule out a subsidiary responsibility. Against this background, I take a broader understanding of the "Uniting for Peace" resolution than Szasz and Morrison do. s See lost Delbrück (ed.), The Future of International Law Enforcement. New ScenariosNew Law? Proceedings of an International Symposium of the Kiel Institute of International Law, March 25 to 27, 1992, 1993. 6 For detailed information and analysis of recent efforts to enlarge the number of members of the Security Council, see Klaus Dicke, Die UN-Charta - Ausbau und ungenutzte Möglichkeiten, in: Hanns-Seidel-Stiftung (ed.), Gedanken zur Neuen Weltordnung, 1994,46.
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Council and perhaps even to change its decision-making procedures, one cannot but predict that this will influence its effectiveness in the negative. So, by no means can it be ruled out that we might have to face a new era of Security Council inaction. But even if the structure of the Council were to remain unchanged, its continuing effectiveness cannot be taken for granted. Within the United Nations and with at least a minority of states, the legitimacy of the Council is in decline. As, e.g., the 1992 Djakarta Summit of the Non-Aligned Movement revealed, many deve1oping countries regard the Council as a "flag of convenience for old-time neo-imperialists"7 rather than a modern law enforcement authority. Legitimacy, on the other hand, is one of the most important preconditions of a functioning legal system, as Thomas Franck underlined in his book of 1990.8 Therefore the future of international law enforcement is - to say the least - uncertain. Deadlock cannot be ruled out, while the increase rather than decrease of legitimacy is one of the most important preconditions of success. The Security Council and the centralized allocation of law enforcement authority to the Council, however, is and must remain the cornerstone of the system of collective security as established by the UN Charter. This is true for at least three reasons: (1) The fundamental decision taken in 1945 was the decision that collective security must prevail over unilateral or multilateral self-help. The "just war"-logic of legally or politically and morally justifying the use of military means to enforce international justice was rejected. Instead, Article 2(4) of the Charter in combination with the procedures of Chapters VI to VIII established a system of collective security.9 To keep this system alive any non-collective decision as well as any extra-legal enforcement measures must be ruled out. The same is true for any justification of a generalized title for enforcement action on the basis of Article 51 of the Charter. 10
(2) The rationale of the collective security system as provided for by the UN Charter necessarily includes the concept of law enforcement. This is because collective security under the Charter is embedded into the Charter's broader purpose 7 David D. Caron, The Legitimacy ofthe Collective Authority ofthe Security Council, in: American Journal oflnternational Law 87 (1993), 552, 555. s Thomas Franck, The Power of Legitimacy among Nations, 1990. 9 A broader elaboration of this argument is given by lost Delbrück/Klaus Dicke, The Christian Peace Ethic and the Doctrine of Just War from the Point of View of International Law, in: German Yearbook of International Law 28 (1985), 194; lost Delbrück/Klaus Dicke, Zur Konstitution des Friedens als Rechtsordnung, in: Uwe Nerlich/l'rutz Rendtorff (eds.), Nukleare Abschreckung. Politische und ethische Interpretationen einerneuen Realität, 1989, 797. w Klaus Dicke, Intervention zur Durchsetzung internationalen Ordnungsrechts- Konstitutives Element der neuen Weltordnung?, in: Jahrbuch für Politik 3 (1993), 259, 269 et seq.
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to establish and to further develop an international rule of law. There is no legal system imaginable which can do without both a legal justification and legitimate procedures of law enforcement. With regard to international law enforcement, the Security Council performs exactly this two-fold function: to provide for a legally justified decision-making process to decide the question whether or not enforcement actions are to be taken and to provide for legally legitimized enforcement measures. The Charter determines in a very clear language that the Council has a monopoly in this regard. (3) With regard to states and- as Christoph Sehreuer underlined in bis comment during the last symposium - also with regard to regional organizations, the Security Council has an important controlling function. Article 53 provides for a supervision of any regional action by the Security Council because regional organizations are always in danger of being hijacked by a hegemonic power or because weaker member states can be forced to invite foreign interventions 11 - to mention only two of several problematic aspects of enforcement actions by regional organizations. To sum up: From the point of view of the Security Council, there are strong arguments in favor of a strictly centralized law enforcement authority and for a very careful observance of the requirement of Article 53. Some questions, however, remain: - What happens with international law enforcement in case of a newly arising era of Security Council inaction? Will the international community then simply acknowledge deadlock of law enforcement? - How to strengthen the legitimacy of centralized law enforcement even in times when the universality of international law is challanged by an increasing conscience of regional particularities? Is a reform of the Security Council composition towards a broader representation called for? - And if it is true that collective security includes law enforcement authority, the question arises whether the Charter is not Contradietory in itself when it permits regional organizations of collective security without vesting them with the authority to take enforcement measures on their own, i.e., without authorization of the Security Council. ll. Let us now defend the case of regional organizations. Fred Morrison directed our attention to the contest between the global and the regional approach and to the changing history of this contest. From the point of view of regional organizations, I have some doubts as to whether the global approach really was the "prevailing deal-in-law." My first argument is the very existence of Chapter Vlll. It has not been dropped in San Francisco. According to Article 52, the Charter does not preclude the existence of regional arrangements. Regional organizations of collec-
11
Christoph Schreuer, Comment, in: Delbrück (note 5), 147, 151.
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tive security are permitted under this provision, and because regional organizations of collective security are responsible for the promotion of the development and the observance of, i.a., erga omnes norms one may well conclude that they are also entitled to take enforcement actions of their own. Tom Farer recently argued along that line. 12 Another argument derives from the observation made by Fred Morrison that the Cold War led to the emergence of collective self-defense-oriented regional organizations like NATO, the Warsaw Pact Organization, the WEU, ANZUS and others. The question, however, is: Did that replace the concept of collective security by the concept of peace under the umbrella of nuclear or conventional deterrence? Was the creation of, e.g., NATO a relapse behind collective security and a re-establishrnent of the self-help-based system of mutual deterring alliances? lt is very interesting to note that when NATO was founded UN Secretary-General Lie explicitly pointed to the danger that exactly this could happen. In my view, these fears have proven unfounded. Europe - and I will concentrate on Europe - witnessed the emergence of the Council of Europe, which in the human rights field established a remarkably effective system of law enforcement. Europe witnessed the emergence of the EC and its further development to the European Union. Time and again EU member states make their experiences with the deterrnination of the European Union to enforce European Community Law. And Europe witnessed the emergence and development of the Helsinki process, which was aimed at overcoming the East-West confrontation and which, since the 1989 Vienna Document, developed at least rudimentary forms of a collective security system. Fred Morrison pointed to the success of the CSCE process and its global consequences.
I do not want to over-stress these developments, but they do remind us not to forget regional developments which in sum make up for the non-existence or the incomplete development of elaborated and complex regional systems of collective security. The Cold War not only rendered the Security Council nearly ineffective, it also prevented the establishrnent and further development of complex regional organizations from the "general international organization" type, i.e., organizations of collective security, and perhaps it prevented some kind of a "Uniting for Regional Peace" resolution, too. So the question is whether after the end of the EastWest conflict the time has come to reshape existing regional organizations from collective self-defense-oriented ones towards systems of collective security and consequently - whether to vest them with at least subsidiary law enforcement authority. There are, indeed, strong arguments for vesting regional organizations with law enforcement authority. First, the acceptance of a regional decision is not necessar12 Tom J. Farer, The Role of Regional Organizations in International Peacemaking and Peace-keeping: Legal, Political and Military Problems, in: Winrich Kühne (ed.), Blauhelme in einer turbulenten Welt, 1993,275, 280.
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ily, but can quite possibly be higher than the acceptance of a decision taken by the Security Council. The action taken by ECOWAS with regard to Liberia seems to be a case in point. Second, regional organizations usually have a much better knowledge of and insight into the underlying reasons and the circumstances of a given conflict. They know the options and preferences of the actors concerned. Thus, they appear better prepared to judge the effectiveness of prospective actions than the Security Council, which to a large degree is dependant on reports by the Secretary-General. Third, regional organizations usually have a higher degree of homogeneity with regard to their political and legal culture than the United Nations will ever reach. Thus, even if enforcement measures have been taken, there could be a greater chance to have the violator of international law return to a behaviour compatible with internationallaw. But here questions remain, too: - Who will decide whether a given conflict calls for regional or for global action? - Are the arguments as quoted really in favor of vesting regional organizations with law enforcement authority or are they only pleading for better coordination and cooperation between the Security Council and regional arrangements?
m. In my view, a solution to the dilemma between centralized law enforcement authority according to the UN Charter and the call for a regionalization of law enforcement can be found along the line of this last question. The development of the international system calls for a Solution which does not render Chapter vm meaningless and at the same time avoids to replace or even to challenge the monopoly of the Security Council. A fresh Iook into Chapter Vill allows us to identify the following elements for a solution: (l) Chapter vm as a whole encourages the Security Council to make use of regional arrangements. This includes that regional arrangements must be prepared to be authorized by the Security Council to take action. Additionally, regional arrangements have broad competences in the field of peaceful settlement of disputes including broad enforcement authorities below the threshold of a use of force against a state not consenting.
(2) Even when the Security Council makes use of regional arrangements, Article 54 provides for full information of actions and even of activities only under contemplation. In other words, Article 54 calls for a close cooperation between regional organizations and the Security Council. The crucial question is how this cooperation can be organized. The current practice of the United Nations is to organize it by agreements between the SecretaryGeneral and the regional organization establishing reporting obligations and providing for mutual information which are endorsed by the General Assembly.13 The 13 For the CSCE, see UN doc. N48/185 of 1 June 1993, Appendix, and GAres. 48/19 of 24 November 1993.
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OAU and the Arab League are traditionally engaged in close cooperation with the General Assembly. My proposal is to make the Security Council the focal point of the cooperation between the United Nationsand regional arrangements. This could happen by establishing regional chambers or regional commissions as subsidiary organs of the Security Council. These chambers should be composed of the five permanent members of the Council, the presidency, and the Secretary-General of the regional organization plus three to five other representatives from states members of the regional arrangement. Its functions would be (1) to keep the Security Council informed on the arrangement's policy; (2) with the assistance of the Secretary-General, to prepare reports on conflicts within the region which could endanger international peace and security and to enter into preventive diplomacy; (3) to function as a link between the Security Council and the executive organs of the arrangement; and (4) to draft Security Council decisions dealing with conflicts of the region concerned. I do not want to discuss this proposal in detail, although I know that it faces many problems like, e.g., the question of how to deliminate regions, the problern of overlapping membership in regional organizations, the inclusion of sub-regional organizations, and others. But it seems to me that the proposed solution combines several advantages: 1t does not require a Charter amendment; it will provide for a broader representation of states and regions in the decision-making process of the Security Council; it will further encourage the development of regional organizations in the same direction as the CSCE developed since 1989; it will foster the commitment of regional arrangements to engage in the enforcement of erga omnes norms; it will reduce the burden of the Security Council and the UN SecretaryGeneral in dealing with international conflicts in detail; it will make it moreeasy to reach an authorization by the Security Council which leaves singularities to the regional chamber; and last but not least it would give a new meaning to Chapter VIII of the UN Charter without diminishing the position of the Security Council. In sum, it would reconcile centralized and decentralized international law enforcement. My conclusion, therefore, is that the international system calls for a "move" towards strengthening Chapter VIII rather than a "freeze" - either along the road I proposed or in other ways which possibly will come up in the discussion to follow this afternoon.
Discussion Delbrück (chairman):
I think we could basically structure the discussion around two issues. But I do not want to be very strict, and I know that any indication of this or that course for the discussion is totally without norrnativity. One issue is whether or not the regional arrangements are likely to have a bigger role in the international system. Related to this, another question is whether the arrangement's internallaws need to be changed or is a re-reading of theii constitutions enough,to cover the needs of the international system in terms of law enforcement. The other question which, I think, would be worthwhile going into is the question of the mandatory participation in international law enforcement by regional arrangements as such. We will certainly come to this question again tomorrow when Professor Stein talks about the role of the state as a law enforcement agent, and then the question of the mandatory participation of states is also at issue. But I think, frrst of all, it is the regional arrangement which we should focus on here. 1bis question has been raised in two contributions, Morrison's paper and Dicke's paper, i.e. whether the internal law of a regional arrangement determines what can be done by it within the framework of Chapter Vill. I would like to put it very pointedly. If the internallaw of a regional arrangement or organization ultimately determines what this organization can do irrespective of what the Security Council wants it to do, then I think we can actually forget about Chapter Vill. If the regional arrangement detennines what it can do, there is no authority with the Security Council whatsoever to really use the arrangement, unless there is cooperation by the arrangement. Such cooperation may occur, but this is not the test case at issue. The real test is: Could the Security Council order or call upon a regional arrangement, irrespective of its internallaw, to go and take action? A related question is: How is the case in which the internal law of an arrangement does not cover the action called for by the Security Council related to Article 48 or Articles 42 and 48? These are questions which, I think, should be addressed in the discussion. Lillich:
I want to direct my comments to what Paul Szasz said and also briefly to what Professor Fred Morrison said, but interjecting perhaps a slightly different perspective into this discussion from the point of view of human rights rather than just from the point of view of acts of aggression. The title of the conference is "Allocation of law enforcement authority in the international system"; when you talk
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about enforcement and authority, at least from my viewpoint, you are talking about something that goes weil beyond what we have been discussing this moming under Article 39. So I suggest we consider the use of force in the human rights area, what once was called unilateral or coilective humanitarian intervention, but now embraces UN humanitarian intervention and UN-authorized humanitarian intervention. lt is an enforcement authority; it is a law enforcement authority; and it is being used for human rights purposes. Many of the resolutions that were mentioned by Paul in his discussion this moming attempt to ground their authority upon a threat to peace rationale. That is obviously one way to go about it. We ail know that dates back to the Rhodesian situation in the 1960s. However, there have also been some Suggestions that there is an obligation upon states under the Charter to protect as weil as promote human rights, and that at least gross violations of those rights constitute a violation of Charter obligations, either because the Charter itself should be construed to require member states to live up to certain internationallegal Standards, or because at least the "hard core" principles of the Universal Declaration of Human Rights have been incorporated by reference into it. I would like to foilow up what Paul was talking about. He started off discussing what Tom Franck has called a "runaway Security Council" and whether the Security Council in effect is acting beyond its authority, or at least beyond wbat a wise man or woman would advise it to do. I come to the same conclusion as Paul does. In fact, perhaps I go farther than Paul by suggesting that we are not faced with a "runaway Security Council." I think we are talking about issues that frrst surfaced in January of 1992 at the Heads of State meeting at the United Nations in New York and have been picked up in a Iot of the academic literature but are not really a major concem of states today, although perbaps they sbould be. The reason for this lessening concem is that we bave not bad, at least in my opinion, this kind of runaway action. In fact, one would like, particularly in the former Yugoslavia, to see much more action than actuaily has been taken. So I want to run briefly througb a few examples, and I will do the same thing wben I comment upon regional enforcement as well. Of course, as Paul told us this moming and as Oscar Schachter told the American Society at its annual meeting last spring, we do not bave in the Security Council precedents of a judicial nature, and it is somewhat risky to tease out from various decisions that are taken for a variety of political as weil as legal reasons some kind of precedent. On the other band, as an academic, one wants to try to sort out what major factors have worked to achieve a certain result in order to anticipate wbether the expectation of the parties in the future will be that similar action, or even perbaps greater action, will be taken. Let us just run througb a few examples, most of which were mentioned by Paul. If you take a Iook at the various Security Council resolutions relating to Iraq, it seems an open and sbut case of a proper and legaily justified Security Council response. You had a very obvious violation of 5 Symposium 1994
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Article 39 of the Charter by Iraq: it was not just a threat to the peace, it was an actual breach of the peace, indeed an act of aggression. I would suggest that a good many situations that come before the Security Council are relatively obvious ones, and that a Iot of the other ones, perhaps more subtle, more nuanced, often involving situations that go unredressed, particularly in the human rights area, are situations in which one has no difficulty in categorizing something as a threat to the peace. What constitutes a threat to the peace, of course, raises a definitional question that I will come back to in a moment when I talk about some of the criticism from Third World and other commentators about the "runaway Security Council." If you recall, the late Justice Potter Stewart in defining obscenity said that "I cannot define it but I know it when I see it," and I think the sarne thing applies in identifying situations involving a threat to the peace. The idea has been mooted by some governments and a good many academic scholars that the United Nations should go through the exercise, perhaps in the General Assembly or in the International Law Commission, of defining what is a threat to the peace and what is a breach of the peace or an act of aggression. Of course, we already have witnessed a thirty year exercise in defining aggression, and the very fact that the 1974 General Assembly resolution on the subject has not really carried much weight in the Security Council seems to suggest, to me at least, that it was not a wise expenditure of time, nor would it be so to ernhark now on defining threat to the peace. So, in the Iraq situation, there is no doubt that the Security Council's actions following its initial decision, what Paul was mentioning this morning, are a quite logical extension of its initial response to Iraq, its condernnation of Iraq's invasion and of course the use of force to roll back the Iraqis at least out of Kuwait. Hence, the disarmarnent argurnent, that in effect the United Nations is limiting Iraq's capabilllies and impinging upon its sovereignty in the absence of it accepting treaty obligations to do so, causes me no problems whatsoever. Similarly, with respect to the Border Commission, where my colleague lohn Moore was active on the side of the Kuwaitis, to establish an international tribunal to resolve what was one of the alleged causes of the war seems to me to create no difficulty at all. One could suggest that it might have been desirable to refer this issue to the International Court of Justice, but the Security Council decided they would create their own international tribunal, and I see no difficulties with that action anymore than I see difficulties with the Secretary Council's subsequent creation of the War Crimes Tribunal for the former Yugoslavia. Similarly, Paul mentioned the UN Compensation Commission, a body with which I arn somewhat familiar. Once again, there is no doubt that this decision imposed- supporting Paul's point about internationallawmaking by the Security Council - a regime upon the parties to the conflict, including Iraq, and it created law. The law was initially created by Security Council resolutions, and there are some very nice issues of the relation between the Security Council and the Com-
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mission itself, but I see no difficulties with that at all. It seems to me that everything that was done with respect to lraq falls within Potter Stewart's approach and can be characterized as the exercise of enforcement authority in the broadest context. I also agree with Paul that, in the case of Libya, there is no doubt that the Security Council adopted a very expansive resolution in finding its actions to be a threat to the peace. Once again, Iet me call forth another quotation from another eminent American jurist, Chief Justice Hughes, where he was talking about the US Constitution. In a much quoted statement, he said that the Constitution is what the Supreme Court says it is. To apply that to Article 39 and especially to its threat to the peace language, Article 39 is simply what the Security Council says it is. I think that is good UN constitutional law, despite the fact that Tom Franck and a variety of other people have attempted to tease out of a few separate opinions in the Libya against US/UK case some kind of right of judicial review of Security Council decisions by the International Court of Justice. That idea was rejected in San Francisco, and I doubt very much whether, when the Court actually comes to the substance of the case, which, as Paul indicates, it probably will not for at least several years, the views of those judges will prevail. I will pass over Somalia for a moment because, along with Paul, I believe that to be a practically pure humanitarian intervention situation. In the debate leading up to the resolution, language was used suggesting that the potential and actuality of refugee flows out of the country constituted a threat to the peace, a kind of a fictional threat to the peace, but I view Somalia as an almost classical pure humanitarian intervention, establishing a precedent insofar as you can have precedents in this area. In the case of Yugoslavia, you have got a series of resolutions, none of which obviously go far enough to avoid what has occurred there in the last several years, but you have the Security Council embargo, you have the authorization of the limited use of force, and you have the establishment of the Yugoslav War Crimes Tribunal. All these actions seem to me quite permissible and not really the subject of much doubt.
Finally, you come to one problern country that has not been discussed in detail, and that is Haiti. How does the Security Council get a legal handle on the Haitian situation, which even more than the Somalian situation is almost a pure humanitarian intervention situation? The Council characterized it as a threat to the peace. But where is the threat to the peace? Once again, one could invoke Chief Justice Hughes here. There is no doubt that there is a refugee flow to the United States. There is no doubt that there is a refugee flow to the Dominican Republic, although that has not been articulated, at least in the actual resolution itself. What we do have, and this point was brought up by Paul this morning, is a resolution that authorizes the use of force, but for the limited purpose of enforcing the embargo. It is a very limited authorization indeed because, if the Security Council wanted to 5*
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have effective sanctions against Haiti, it would have to put a line of troops down the border between the Dominican Republic and Haiti, and there is at present no stomach in any of the parties for doing something lilce that. Various governments and other critics of the Security Council cite Haiti as an example of the Council's "runaway" nature, although in my estimation Haiti really cuts in the other direction: it is a situation where, for obvious political reasons, the powers of the Security Council are not being fully invoked where they should be. Four other dassie examples that are always quoted are the Sudan, Mozambique, Liberia, and Angola. Paul, if my notes are correct, indicated that some countries now view the Security Council as a flag of convenience for the major powers, or even, using ColdWar terrninology, a tool of the United States. They apparently believe that the decisional process employed by the Security Council is really no more than a return to the 19th century where the Great Powers simply threatened or employed force in such a way that their wishes were made manifest. I think there is one obvious response to this criticism. 1t is that this arrangement - with use of force decisions made by the Security Council and the Security Council in turn controlled by the five permanent members - is what the Charter dictates. Michael Reisman, I think, makes that point quite clearly in articles he wrote for the American Journal of International Law and the Yale Journal of International Law last year. There were all kinds of other proposals floating around in San Francisco and at the time of the enlargement of the Security Council in the 1960s as weil, but they were all rejected; so what you are getting is what was intended by the original framers of the Charteras is obvious from the Charter's language. Another criticism of the Security Council, one that Tom Franck has mentioned several times, is the so-called legitimacy argument, that what you have here is the Security Council abusing its powers. When you read the debates of January 1992, you see some very thoughtful assertions by African states, by Australia, and by other states that some kind of guidance should be given to the Council, perhaps by the General Assembly, as to what is a "breach of the peace" or a "threat to the peace." I am not sure it is such a major concern today, but the suggestion has even been made that some sort of General Assembly resolution should be adopted, perhaps a "Uniting against Genocide" resolution or a "Uniting against Crimes against Humanity" resolution, that might allow the General Assembly to mount certain operations where you could not get Big Power agreement in the Security Council. The criticism by Franck that basically the Security Council operates by the Americans going to the British, the two of them getting the French aboard, and then trying to co-opt the Russians and hope that the Chinese will go along because the resolution says it is not creating a precedent, and that the Security Council now meets most of the time in closed session without any reported record of its debates, this criticism maintains that this decision-making process constitutes an abuse of powers to which many smaller states are bound to respond. Many of you in the
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room may have heard Franck suggest last year that the possibility was strong that over the next few years 30 or 40 states might walk out of the United Nations if this abuse of power continues. I think that this view represents a strained reading of the situation, to say the least, but it is a respectable viewpoint. Another argument is that the Security Council is non-reflective of the aspirations of the peoples of the world, using the phraseology in the Preamble to the Charter. lt is contended that the non-permanent members' views arenot reflected before the Council and in its decisions. I think Paul indicated this morning that there is a fairly good reflection of the world community's views to be found among the 10 members who are not permanent members of the Security Council. Actually, last week I did some figures that indicate that the 15 members currently on the Security Council represent 38 % of the world's population; granted, half of them are Chinese, but nevertheless, that is a pretty good representation of the world community's views, it seems to me, particularly since those 15 members were only 8 % of the states in the United Nations. So I would have some hesitation accepting the argument that the Security Council - with a mandate that requires certain limitations upon the number of its members and yet must reflect the geopolitical realities of the world community - is non-reflective of the views of the peoples of the world. Lastly, we have to realize that in a good many instances, even though we have not bad the veto exercised in the last several years, the Security Council is in fact restrained by the potential use of the veto either by the Russians, as we see in the case of Yugoslavia, or by the Chinese in most any situation where the use of force is contemplated. Also, a point that was made by Paul, the Council is restrained in effect by the fact that in many instances states may not implement its decisions if they seem tobe strained or somewhat far-fetched. So I do not, in conclusion, view the Security Council as a "runaway" institution. Moving to my second major point, even when a decision is taken and sanctions are imposed by the Security Council, the record of enforcement is somewhat mixed, to say the least. I have had some familiarity with sanctions going back to the days of Rhodesia and South Africa. lt is correct, as Paul pointed out, that there are various ad hoc committees established to monitor sanctions and to report on their implementation, but that is exactly what they are, ad hoc committees. As we see in the case of my own government, with respect to reporting under both the Rhodesian and the limited arms embargo against South Africa sanctions, the reports are very small, indeed often non-existent, and even when there was a major breach by the United States, as was quite obvious when it adopted the Byrd Amendment to allow the importing of Rhodesian chrome during the 1970s, the worst the United States could expect was an annual resolution by the General Assembly condemning it for such violation. Furthermore, military coercion is only rarely authorized to enforce sanctions. We bad it authorized in the case of Rhodesia, later Iraq, then Yugoslavia, and more
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recently Haiti, but that is not generally the rule. It seems to me that is something one has to consider when one talks about effective law enforcement. Basically, if we want to have effective sanctions (which, of course, are not really UN sanctions, that is a misnomer, but UN-authorized sanctions, where the UN delegates to member states their enforcement), they have to be monitored robustly and backed up by the possible use of military coercion. My second point would be that, if we are concemed with law enforcement by the Security Council and by the United Nations in general, since the General Assembly is within the title of our topic here, we have to concentrate on ways of making sanctions more enforceable. Lastly, with respect to regional enforcement, I myself, particularly in the area of human rights, am a strong supporter of regional enforcement. Fred did not run down all the examples that wehavebad in the OAS. I guess he did mention Grenada, but that was not really an OAS operation. We bad the missiles crisis in 1962, we bad the Dominican Republic in 1965, and I suppose, if you Iook at the literature on regional intervention for human rights purposes, most examples are from Caribbean or Latin America areas. As Fred indicated, you have an interpretation question whether you have to have Security Council authorization before a regional organization can act. As we know, the United States at the time of the missiles crisis said, "Well, since the Security Council has not done anything, that silence can be equated to consent and allow us to take the action we are going to take." The same argument was made in the case of the Dominican Republic, except there it was grounded on humanitarian rather than national security concems. With respect to Grenada, we bad the same Situation which we now have in the case of Liberia and Haiti, where I think in one instance the regional arrangement has worked out well, in another it has not really been tried. As I was telling somebody at lunch, at the time of Grenada I had been called to give some advice to one quarter, and my colleague lohn Norton Moore was called to give advice to the US govemment. We were both running around trying to find the text of the charter of the sub-regional organization involved, which was unavailable in our library at the time and which the Legal Adviser in the Department of State apparently was having some difficulty locating. The United States argued that the organization's invitation to intervene for humanitarian purposes justified its invasion. It never even gave the United Nations a chance to act or not. Those three cases do not really give us too much, it seems to me, to build upon. They present the arguments that Fred suggested pro and con, but that is about where they leave it. I willlisten with interest to Rüdiger's comments on Liberia, about which he knows much more than I do certainly. My impression of the situation with respect to ECOMOG's operation, gained from talking to the person who at least last July was administering it, was that there was not really much thought given to the question of whether it needed UN authorization explicitly before intervening. The suggestion was made by Professor Dicke about the Security Council
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monitorlog what is going on in the region, which would be a useful thing, but in general I think the Security Council is quite happy to have the Nigerlaos basically going through the same kind of organization that was utilized by the United States in the Grenada case, a regional economic organization with perhaps even less of a mandate to do what they did. As long as it was operating effectively, that was it. Of course, these was a subsequent resolution endorsing what went on, but that was adopted sometime after the fact. In the Haitian situation, as far as I know, my government at least has not been very active in trying to bring the issue before the OAS, perhaps realizing that it was being handled by the United Nations, and certainly until October it looked like things were moving in the right direction. In general, however, I see many opportunities for the development of the role of regional organizations, particularly in the area of human rights but also in peace-keeping operations. Thus, the Security Council should clarify whether or not thdr operations are enforcement actions requiring its prior authorization. I think perhaps if we bad more focus upon regional organizations, the topic ofFred Morrison's paper, and less discussion about a notional runaway Security Council, we would be moving in the right direction.
Stein: I would like to take up briefly the questions concerning the Security Council, and here I have less a comment than a question, in particular for Fred Morrison. If my notes are accurate, Fred said this morning that the failure of a target state to acquiesce to an enforcement measure would amount to a threat to peace in itself. I have doubts whether we can really say this, because this would give a carte blanche to the Security Council to create Article 39 situations by imposing an absolutely and clearly unjustified enforcement measure upon a given state, and when this state then tries to evade or frustrate the measure, one would have a real Article 39 situation. If we take it for granted that the Security Council will always be a very serious, sensible, and considered body and that such a situation would never occur, then such a carte blanche would be acceptable, but I am just not sure about that. I do not doubt that the Council enjoys very wide discretion in deciding what comes under Article 39, and I do not seriously doubt that there is no real control mechanism for Security Council decisions. But on the other hand, the International Court of Justice can probably not in all cases avoid ioddental control. If it really comes to proceedings on the merits in the Lockerbie case, we might see this. But my main point is that I have some doubts whether we can really say every time a state - irrespective of whether this is justified or not - does not consent to an enforcement measure, we would then have an Article 39 situation. My second brief remark concerning the Security Council relates to a comment or rather a question that Paul Szasz put this morning when asking whether the Security Council could "legislate" under Chapter VII by making abstract rules, like telllog North Korea that there is no way it can withdraw from the Non-Prolifera-
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tion Treaty. Article XI of the Treaty allows withdrawal, and the Security Council could certainly not change that by an abstract resolution. But if one takes certain Statements North Korea has made on the possible use of what they may or may not have in the nuclear weapons field, then the Security Council might find a concrete danger to peace in the sense of Article 39 of the UN Charter and react accordingly. But I would be very reluctant to say that the Security Council could identify abstract dangers to peace and then base binding decisions under Chapter Vll on that fmding. That would amount to allowing nine states out of 180 to mak:e binding law for the other 171. I do not think that this is the way abstract rules are created in international law. Otherwise the Council could say, "The possession of nuclear weapons is an abstract threat to peace and we mak:e the binding decision under Chapter Vll that those things have to be destroyed." This is in any case highly theoretical, because the nuclear powers would certainly veto such a decision. But I doubt in general whether the Security Council, by identifying abstract threats to peace, can then mak:e binding decisions.
Kühne: ECOMOG in West-Africa was mentioned. I would like to take up this case because it is an interesting precedent for future developments between regional organizations and the United Nations when it comes to the use of force or limited force. By the way, I am not speak:ing here as a lawyer. I am speak:ing as a political scientist. That way I do not have to concern myelf too much with legal subtleties. As you may know, ECOMOG is some kind of a West-African UNPROFOR. A number of similarities exist between the two. In 1991, before there was a threat that violence would spill from Liberia into the neighboring countries, ECOMOG went up from 8,000 to now almost 17,000 soldiers, and, as was mentioned, it tumed out to be more successful than UNPROFOR. Africans are very proud of its success. In African joumals after the Geneva peace agreement in July 1993, you find a Iot of comments to this regard. Africans needed this success after all the failure in other fields. A major problern of this process is that it is largely dominated by Nigeria, which provides more than 80 % of the troops. And indeed, the legal basis of this operation is very unclear. Olara Otunnu, President of the International Peace Academy in New York, has put it quite correctly: "lt was called peace-keeping, began more like an enforcement measure, then alternated between peace-keeping and enforcement. There was no consent of the Liberian State because the State had disintegrated." Strangely enough, the Security Council never went sofaras to authorize it clearly according to Article 53, although it tumed into enforcement or into "robust peace-keeping," as I have termed it in my recent book on the "UN in a turbulent world." One wonders why, because the President of the Security Council several times explicitly acknowledged the success of ECOMOG. In resolution 788 of May 1992,
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the situation in Liberia was declared a threat to international peace under Article 39. Economic sanctions and an arms embargo were agreed upon. Yet, the Security Council kept labelling it a peace-keeping operation. A mandate for peace enforcement was never given. I wonder whether Paul Szasz can provide us with an explanation as to why the Security Council did not want to go into that. One reason certainly is that the Security Council did not want to get involved in a case which it considered messy and of marginal importance. The United States, a traditional sponsor of Liberia, bad been asked several times to get involved but refused to do so. Could the behavior of the Security Council mean - and that is the question I would like to raise here - that in future we may have more cases where the Security Council, contrary to the clear wording of Article 53, will say: As we arenot really interested, we will not apply Article 53 strictly, and therefore regional states and regional security arrangements have considerable room for manoeuvre with regard to enforcement. One could, of course, argue that this is West Africa, that this is an exceptional case, but I do not agree. If we turn to another part of the world, to the former Soviet Union, several CIS states have entered into an agreement on joint peace-keeping; the Kiev Agreement of March 1992, the Tashkent Protocol of July 1992, etc. lnterestingly enough, the Tashkent Protocol explicitly states that in peace-keeping force can be used to separate parties. Russian dominated peace-keeping operations in the former Soviet Unionare applying this concept of "robust peace-keeping" in practice, although they are based on bilateral agreements and not directly on the Tashkent Protocol. Russian troops are trained on the basis of this Protocol. Also in the respective documents of NACC, the North Atlantic Cooperation Council, you find similar definitions which go into the grey area between traditional peace-keeping and enforcement. Only the CSCE sticks to the traditional definition. The Security Council will have a hard time handling "robust peace-keeping" and the legal grey area problern that comes with it. So it is not just Liberia, and it would be worthwhile, from the political as weil as the legal point of view, looking at these new cases, which will proliferate in the coming years. Hailbronner:
I have one comment on the concept of threat to the peace. I was prompted by
Lillich's remarks and some of bis examples such as the one relating to refugee
producing behavior and the Haitian case. I wonder whether the analogy to the famous saying that the Constitution is what the judges say the Constitution is, is really a convincing parallel to our issue. The acceptance of a constitutional court decision on the interpretation of the Constitution rests very much on a consensus about an institutionalized decision-making by a court, it rests on the common basis that you have to have somebody having the final word on the basic rules. But is that really the situation with the United Nations Charter? I think that the Security Council, from its development, from its whole organizational structure, has not been entrusted with such a wide power by the world community. One would have
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to go very much into the history, but I doubt very much whether there is really a parallel to that kind of a consensus. If that is true, one has to think about some criteria of delimiting the power of the Security Council to define the concept of threat to the peace or breach of the peace. I would agree that there must be some political margin of appreciation. But I wonder whether the Security Council and the United Nations machinery of Chapter VII is really adequate to cope in substance with a whole range of operations that is now equated with the concept of threat to the peace; human rights violations, refugee producing behavior, non-acceptance of a treaty by contracting states (North Korea). As internationallawyers, we are trained that every state is free to enter into any international agreement. lt would be a completely new situation if a state which is willing to or uses its right to denounce a treaty suddenly becomes the target of a Security Council action. Would France be a possible target for noncompliance with international treaties - apart from the fact that France is a member of the Security Council and would certainly veto any such action? How then can one draw the line between France and North Korea from the mere fact that both will not accept certain treaties considered essential by the rest of the world? Would the machinery really be fit forthat kind of action?
A second objection comes to mind against a too generous interpretation of the concept of a threat to peace from the fact that such an interpretation has immediate repercussions on our issue "regional arrangements." Interpreting Article 39 and Chapter VII in a very wide sense means that - according to the structure of the UN Charter - centralized law enforcement takes place excluding enforcement under regional arrangements, if what we were told by Fred Morrison and Paul Szasz is correct. I wonder whether it is really a sound proposition to extend the competence of the Security Council and whether it would not be more useful to devise alternative regional strategies, although there is certainly a need for enlarged world community action. My second comment, which came to my mind when I listened to both reports, refers to the relationship between collective self-defense and Chapter VII action. Theoretically it is easy to draw the line according to whether an armed attack has occurred, in which case Article 51 applies and collective self-defense can be exercised. But one might argue that a right of collective self-defense under Article 51 should also apply to situations where an armed attack is imminent. Under the principle of proportionality, before an armed attack occurs and before one starts with military intervention, it may be arguable to apply measures under the Iabel "collective security." Speaking de lege ferenda, would it not be much more sensible not to draw such a sharp line as there seems to be between Article 51 and other possibilities, especially of the Security Council under Chapter VII? As to the concept of armed attack: Can one really draw a sharp line between the term "armed attack" and situations which are usually brought under Article 39? If it is true that one cannot draw such a line, then would not the General Assembly in
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certain situations be justified in intervening? Paul Szasz just mentioned that the General Assembly has no authority to engage in that kind of thing, and reading the UN Charter, I agree. It seems to me very convincing, and I also back bis argument on the Uniting for Peace resolution. But still, I think, if one is accepting that a certain type of situation is covered by collective self-defense under Article 51, one could argue that there is no legal problern with the General Assembly giving a recommendation as long as member states are asked, or urged, or called upon, or requested, or whatever to exercise under Article 51 their right of collective selfdefense. I do not think one could object to any General Assembly action in that respect as long as it relates to action under Article 51. Finally, a short comment on the regional arrangements under Article 52: I think more or less the same rule or the same principles apply with regard to Article 53 relating to blocking when no enforcement action is taken under Article 53. What really is "enforcement action" under Article 53? No enforcement action, it says, shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council. First of all, I think Article 53 only refers to actions which are legitimate under Chapter VII. Therefore, Article 53 does not give authorization to the Security Council to engage in whatever type of situation. Only if the Security Council can act lawfully under Chapter VII, is there a blocking of regional enforcement action. Second, I do not think that Article 53 blocks any regional enforcement action as long as a regional enforcement action can in fact be justified under a collective self-defense Article 51 situation. So again, if you are interpreting the collective self-defense concept in a wider sense, then you would have a wider range of activities which could be takenunder Article 51 without the Security Council's power.
Watts: I would just like to offer one or two comments on the "runaway Security Council" problern because I think it is only too easy to take too relaxed a view of the drift which seems to be occurring. I speak very much as a lawyer here. If you like, the political realists, the politicians and diplomats may take a different view. I think our job is to Iook at the problern as lawyers. My starting point, I think, has tobethat law enforcement itself must be in accordance with the law. lt is that which is at the heart of the problem. Let me approach it through one of the issues which, I think, you, Professor Delbrück, put before us at the very beginning of this session. I think, as I understood it, you posed the question whether the Security Council could order a regional agency or organization to do something which it was not authorized to do in its own Charter. I cannot myself see how the Security Council can have the power, in effect, to give to a regional grouping, set up under a treaty between the states concemed, a power which it does not have under that treaty. Article 53 of the Charter does indeed give the Security Council a duty to use regional arrangements, but only where appropri-
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ate. It seems to me that it cannot be "appropriate" if the regional arrangement does not itself have the power to do what the Security Council would like it to do. There might be another line of argument through Article 103 of the Charter, about conflicts of obligations between the Charter and other commitments. But that also does not seem to me to help, because it is not so much a conflict of obligations that is involved here, but an attempt to confer a power which does not otherwise exist. So my conclusion, on the particular point you raised, is that the Security Council does not have the power to order a regional arrangement to take certain enforcement actions if that would be contrary to its own constitutional treaty. But what if the Security Council takes a different view? We have seen over the last few years how the Security Council has taken upon itself to act more boldly in international affairs. This has involved the Council taking decisions on a lot of very delicate matters, as Paul Szasz has reminded us, and some of them have been of a quasi-judicial nature. It has certainly bad to take decisions where it has interpreted the relevant provisions of the Charter. I think the world at large and perhaps all in this room would, generally, think that a good development. Certainly, when one compares it with the days when the Security Council was incapable of acting, it seems to be a step in the right direction. But in that development there are, it seems to me as a lawyer, the seeds of danger, and it is these dangers that cause me concern. Professor Lillich mentioned the problern of "who defines whether there is a threat to or breach of the peace," and he referred to the well-known statement "the Constitution means what I say it means," and Professor Hailbronner said that that was all right when it was being said by a constitutional court or a judge in a constitutional court. lf, however, you take it outside that context, you are invoking what is in effect the Humpty-Dumpty defense: "words mean what I say they mean," a defense which has been beloved of tyrants throughout the ages. In the actual case of the Security Council, I rather agree with Professor Lillich, and I do not think that the Security Council has yet taken an outrageous decision. In reality, it has behaved itself reasonably well. But the danger is still there. The danger is that the Security Council might become an unconstrained power unit on the international stage. I think it was Professor Dicke who mentioned old time neo-imperialism or something like that. There is a legitimate reference back to earlier times. In the 19th century the international community structure was really fairly anarchic, and the Great Powers of the time took it upon themselves to introduce a certain amount of order. They did it because they thought it was right, and a certain amount of order did indeed result. When we come to today, the Security Council is not in that sort of position: internationally, it is not placed within a system which is essentially anarchic. Internationally, it takes its place within a system which is essentially one of legal order, and internally, it is a constitutional creature - the creature of its own constitution,
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namely the Charter. Of course, in taking any decisions, the Security Council has to take a view of what the Charter means. All governments do this: governments have to act, and they have to take a decision as to what the enabling legislation or the enabling constitutional provision allows. So, in that respect the Security Council is no different from the governments with which we are all familiar. The real difference, however, is that most governments - and certainly the governments represented around this table - know that behind them in the background there is the possibility of some kind of judicial control of their actions. It is that which is lacking with the Security Council. There is no effective system of judicial review operating as a matter of normal course - I do not mean as a matter of daily recourse, but as part of the normal course of events. There is, of course, the procedure of advisory opinions. But in the way that the system works in practice, advisory opinions are almost an abnormal way of trying to exercise some control. Indeed they are very seldom used to exercise the kind of control that I am referring to. With all respect to Paul Szasz's colleagues in the Legal Service of the United Nations, that kind of legal advice available to the Secretary-General is not an adequate substitute for external judicial control. Now, this is not- and I forgot who it was who mentioned this - to say that the Security Council cannot act unless it knows that a majority of the United Nations' membership is going to support it, because, from a lawyer's point of view, majorities can be wrong, legally, and not infrequently are; so, that is not really any proper control. I can understand that governments, and particularly those which are permanent members of the Security Council, are very reluctant to limit in any way their ability to exercise the physical power that they think they have. And I accept that governments do believe that they are acting both in the pursuit of policies which they think are desirable and that they are acting in accordance with the law. I do not call into question their good faith at all. But Paul Szasz drew attention to the difficulty which there often is in Security Council resolutions, in identifying, in terms to which all the members of the Council can agree, the basis on which they are acting. That causes me to think a little about the honest belief of governments that they are acting in accordance with the law. At least, if they knew that there was a judicial body looking at what they were doing, experience in other fields, and certainly in the context of the European Community, shows that the knowledge that there is a court looking at the stated reasons why actions are being taken is in fact a very potent force for ensuring that those reasons are legally sound. As people concerned - as I am sure we all here are - with the proper enforcement of the international order, I think we probably all welcome the growth of a bolder Security Council. I think we are also concerned with its credibility and its legitimacy. As lawyers, and especially lawyers with democratic traditions, I think we should be rather worried about the lack of any effective legal control of the exercise by the Security Council of its powers. It seems to me that the very wel-
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come development of a bolder Security Council needs to be matched by some bolder steps in the exercise of control over that Council.
Stein: I have just one addition and would llke to join Sir Arthur Watts in saying that we should be cautious in allowing regional organizations like NATO (ifit is one) tobe engaged by the Security Council, knowing that nothing in the Preamble and no Article in the NATO Treaty is fit to deal with a situation which involves enforcement of law outside the NATO Treaty area. The NATO Treaty contains Article 4, dealing with consultation, but this is it, this and all other Articles relate to the security of the parties or international disputes that they may be involved in, and not third party disputes. We might have to come back to this later.
Rubin: First of all, I will make clear where I am coming from and where I am going. I agree with Kay, and Sir Arthur, who, I thought, was eloquent, and Torsten, and the others that bad severe problems with the approach generally taken by some of our speakers. Now, let me hit some specifics. I get there from a rather different angle. First of all, just rather amusingly, when the Secretary of State of the United States was hunting around for a treaty to cover the action in Grenada and came up with one to which the United States was not a party, and which nobody could find, it seemed to be a llttle bit strange. So I tried to find it myself and actually found it in "International Legal Materials." So it seems that at least two people could have saved themselves a trip to the llbrary - three, including the Secretary of State. Second, I would also take issue with the notion that the Security Council is representative somehow of 38 % of the world's population. Quite apart from the fact that China represents 19 or 21 % of the world's population thus cutting the figure in half immediately, the calculus is simply too simple. States are represented in the Security Council, not people directly. States are not their populations; they are the product of a polltical process. The representation of states is a part of the polltical process in which some people are more represented than others. Third, the notion that states would not implement a strained Security Council resolution does not relleve my anxiety. What you bad going on, for example, during the Libyan fuss, which is not on the back bumer but still simmering away, is not the prospect of many many states ganging up on Libya or many many states blocking a United States', British and French air raid into Tripoll- they would not do it. What you have is the United States, United Kingdom and France erecting a purportedly legal framework for them to take unilateral or trilateral action specifically against Libya on a totally false basis, as far as I can see, legally and polltically. I say polltically because we were told, when they bombed Tripoll the frrst
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time, that that stopped the Tripolitanian or Libyan involvement in terrorism. Then it immediately became clear that it did nothing of the sort, and now we are going to bomb them again to do exactly the same thing again, to have the same effect again which it did not have the frrst time. I see no logic in this at all, I see no political logic in it. I certainly see no legal logic to doing this over an issue of extradition in a case where extradition is, as far as I can see, in no way required by Libyan obligations under international law. There may be other reasons for doing things to Libya, but not the failure to extradite two officials. What it comes down to, it seems to me, is that those who are arguing for a strengthened Security Council role or a continuous role in the current path are really arguing for a modern version of the Holy Alliance. The Holy Alliance is not well known in the United States, possibly because when we were asked to participate in it, the British Foreign Minister, George Canning, changed the terms of the request. The United States openly rejected the Canning proposal and came out with the Monroe Doctrine instead, which is the basis for the OAS Charter. The OAS has very little to do with regional organizations as discussed here. After all, can one talk about the members of the region having particular insight to the problems of the region, and then consider the United States, as the leading member of the OAS, as having particular insight into the problems of Latin America? I am bemused by the analogies being made. It may have been the intention, and probably was in 1945, to create a Holy Alliance, as it were, with five powers, including the one represented by Chiang Kai-shek, ruling the world. I do not think that that conception, if it was the original conception, Iasted for many years. lt certainly did not last through 1962 or 1963 when the United Nations membership was greatly expanded. I Iook at the actions of the Security Council under that conception, and I see it did nothing about the lndia-Pakistan War or the Gulf War between Iraq and Iran, and it did nothing about human rights in East Timor and the Indonesian activities there. The members of the Security Council have been very selective on a political basis in deciding when Article 39 govems anything at all. I think it was wise to make it a political decision, but we must not confuse a political decision with a decision based on clarity in law that somehow requires the Council to apply the clear law to facts. That brings me to the final point and that is the notion that somehow we can dilute the Security Council into more nearly rational action by involving regional organizations under the interesting proposal by Dr. Dicke. There is an assumption there with which I also would disagree. lt comes out of some peripheral knowledge of the OAS and ECOMOG. Regional organizations, in my experience, are not benign. They have their own politics. Nigeria, when it went into Liberia, was not benign. lt was expending its youth and money by intervening in Liberian affairs for Nigerian reasons; nottobring peace to the area for humanitarian reasons, but for Nigerian reasons. The same thing is true when the United States is involved in actions with the OAS. We do it not because we want peace in the hemisphere; we do it for United States reasons. After all, that is the way states behave, states
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being responsible to their own constituents, not to foreigners. They may be farthinking and decide that it is in the interest of their constituents, even though their constituents do not know it, to have peace, stability, security, and so on in the area, but normally they are not so concemed. Normally states are more concemed with the next eiection, the next campaign contributions, the next crisis, and they make their decisions then on other bases. lt seems to me, for those of you who have seen the movie "Star Wars" where Luke Skywalker was actually in a search somehow for a council of ''Jodas," which Sir Arthur might find sits in a judicial capacity somewhere (by the way, I do not find them in the ICJ, which seems to me to have its own agenda, which is not necessarily shared by the world at large), it seems to me that what we are trying to do there is somehow reconstruct an organizational system based upon several false analogies and false assumptions. lt seems to me that, if one really wants to be effective in the world, what one has to do is remind oneself from time to timethat "Joda" is a creature of a film written by a professional film writer who bad a daydream. He (she or it) does not exist in the real world. The United Nations is not the centre of the world, and it was never designed as such. lt was deliberately not designed as such foresightedly, although it might have bad hints of the Holy Alliance in the original design that failed, just as the Holy Alliance failed when it was in Operation from 1818 to 1825 or so. Therefore, I would caution against the assumption that, if we like what they did in this case, it is a good organization and usually takes correct decisions. We are not a council of "Jodas," although maybe the best judges are. Perhaps the best thing to do is put some emphasis on the other Humpty- Dumptyism, that is, the other favorite quotation of law professors. In the play "A Man for All Seasons," an analogy is drawn between law and a forest. The tracks that Iead through the thickets of the law are weil known to lawyers. Then a proposal is made to cut down the trees, ignore the law, to get to the devil. In the play, Sir Thomas More argues against it: "And when the last law was cut down, and the Devil tumed round on you - where would you hide .. . the laws all being flat? . .. Do you really think you could stand upright in the winds that would blow then ?" Magiera:
In a way it may seem strange that we are beginning to worry about the strength of the Security Council, now that it finally seems to work after four decades of stalemate. Still I must agree with Mr Hailbronner and Sir Arthur who have expressed their concem, because we are here to Iook into the future, and if the future is a better functioning Security Council, we have to take this concem into account.
What are the reasons that we might have to worry that the Security Council will become too strong? I think the main reason isthat the United Nations actually is more than a regular international organization. It is in part a supranational organization like the European Comrnunity or the European Union. With regard to the European Union, we have noticed for a long time, because it did work quite weil,
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that we have to find out how to restrain its powers. I think it is only these days becoming an issue of the United Nations. What kind of approach can help to restrain the powers ofthe United Nations? The notion ofbalance ofpowers comes to my mind. I think this notion is not restricted to the state as such, but extends to all kinds of organizations which have powers directly affecting citizens and others. If we take a Iook at the United Nations, we could starttothink about a horizontal balance of powers. We could try to find out whether there is a balance of powers between the Security Council and the General Assembly. Both are composed of representatives of the member states, but there is a difference, and I cannot quite agree that in the Security Council all member states are represented in an equally legitimate way. Some are represented directly, and that means having more power, and the others are only represented indirectly, and that means having less power. Otherwise there would be no discussion about whether the Security Council should be enlarged by Germany, Japan, and other states. But what can the General Assembly actually do? Not very much, as we know. Still the Charter says the Security Council only has the primary responsibility in this area, so that the General Assembly might try to find out how it can be more influential in peace-keeping in general. The power of the purse probably will not work very weil in the United Nations, although it does work in the European Union.
One could also try to find out whether there is the possibility of a vertical balance of powers. If we agree with that, one could say that under this notion the regional arrangements should have a larger share in helping with security problems. We might Iook at the principle of subsidiarity which is now a main principle in the European Union. One could try to strengthen this principle in the relationships between the United Nations and regional arrangements. I agree with Sir Arthurthat the Security Council could not force regional arrangements to take part in operations. On the other band, I think it would be a political necessity that regional arrangements try to organize themselves, so that they can fit into the Security Council system and do part of the work which the Security Council would otherwise have to do. This would only be a political necessity, not a legal obligation for the regional arrangements. The last point is: Why should the Security Council be restricted? I think it has something to do with what Sir Arthur mentioned, namely, the judicial control of the Security Council and the General Assembly and the weak role of the International Court of Justice in the United Nations system. As long as the role of the Court is not strengthened, one should construe the powers of the Security Council in a narrow way, for instance, as Mr Hailbronner pointed out, the notion of threat to the peace. We all know that peace can have a negative and a positive meaning. If we understand it in its positive meaning, there would hardly be any Iimits for the Security Council, and I think this could not be in our interest.
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Delbrück: First, when you just spoke about obligations "not in the legal sense," which certainly is a legitimate position to take, one could, however, raise the question in legal terms again, that is: Could a regional arrangement make itself deliberately incapable of following any United Nations call? Then, I think, the problern really shows itself in another perspective which, however, hints at the same point. The ineffectivity or inefficiency of Chapter Vill really hinders us from discerning how the relationship between the two constitutions, the UN Charter and the constitution of a regional arrangement, ought to be seen.
Schreuer: Before turning to regionalism, Iet me just make a few remarks about the ostensible problern of a "runaway Security Council" or the legal Iimits to the activity of the Security Council. In fact, what I am going to say may sound heretic to some of you. The gist of my argument is that we should not be too concemed with the precise wording of the Charter. If we Iook back at the developments of the last 50 years in the United Nations, we can actually see that in quite a few areas the United Nations organs, specifically the Security Council, have gone considerably beyond the wording of the Charter. "Chapter VI and a half' has been invoked a couple of times today and has nowadays become part of United Nations law. I found it interesting that some of today's speakers were groping foralegal basis in "Chapter VI and a half' and Chapter VTI for a specific action. In other words, we are really quite used to interpreting the Charter extensively. To put it differently: I do not think we should be too concemed with looking back at what the founding fathers of the United Nations in 1945 bad in rnind in specific situations. The way things have developed over the last 50 years basically is that what matters to the Security Council and to other United Nations organs is the object and purpose of the United Nations Charteras a whole, and I may add, as perceived or as reflected in contemporary community expectations. That does not mean that we should scuttle the Charter as such. However, we should not be too narrow about specific authorizations, about finding an authorization for a specific action in a specific Article. The Security Council reaction to the lraqi aggression is a very good example. The Security Council was rather innovative in some respects. But it was supported by the entire world community, and nobody seemed to worry very much at the time. Call it customary intemationallaw, call it living constitution, I do not really rnind very much. But I do not think the traditional instruments of treaty interpretation are an adequate method of dealing with the UN Charter. Let us just quickly recapitulate what the Security Council has done in the last couple of years. It has legislated extensively, especially in resolution 687 with respect to lraq. It has imposed an obligation on Libya to surrender (it did not use the word "extradite") two suspected crirninals. lt moved on Haiti basically to protect democracy. In this case, I do not even think it is a humanitarian intervention in the
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narrow sense. What the Security Council is worried about is the theft of a democratic election by the military. lt has set up an international judicial organ, the War Crimes Tribunal for former Yugoslavia. It has practiced humanitarian intervention in Somalia and on behalf of the Kurds, and I would hope they may actually be moving into the area of nuclear proliferation, perhaps even generally into disarmament. We may be approaching a situation with regard to the Security Council where we are close to an escape from the constraints of consent which is one of the Cornerstones of traditional internationallaw. Those who do not like the idea of giving up the principle of consent as a pillar of contemporary international law will probably continue to try and squeeze whatever the Security Council does under Chapters VI and VII and will stretch Article 39 to encompass all these situations by descibing them as a threat to the peace. Of course, one can also operate with Article 103 and say, "Here we have a Charter obligation. Anything the Security Council does is the Charter obligation which will prevail over any other treaty obligation." That is more an exercise in make believe or, as Sir Arthur said before, a Humpty-Dumpty exercise. My argument is that the evolving regime of the United Nations now goes beyond the sum total of the powers of individual states. In other words, the United Nations is now approaching a situation where it can do more than states could do collectively under traditional internationallaw. The policy justification forthat is the inherent superiority of collective action. The danger of abuse in any enforcement situation, whether it be military or non-military, is dramatically reduced where we do not have unilateral action but collective action. In other words, a regime that is based on collective action by the world community can actually afford to work with a lower threshold for enforcement, including military enforcement measures, than the traditional inter-state regime. I fully agree with Sir Arthur that judicial control of the Security Council would be a very good idea, and that does"not in any way contradict my views. However, looking back at the case law of the International Court of Justice, I do not think that this would put major restraints on the Security Council. lf you Iook at the Reparations for Injuries case and all the various cases in which the International Court has examined United Nations activity, you will see that the International Court of Justice has shown a very high degree of flexibility and has operated very much with the idea of object and purpose. The Lockerbie order of the International Court of Justice is another indication that it is perfectly prepared to accept innovative action by the Security Council. Nevertheless, it is a good idea to have a system of judicial control over the Security Council. A quick word on the reform of the Security Council, that is, the enlargement of the Security Council, the addition of new members. Obviously, in Gennany people are almost hypnotized by the question of new permanent members with a veto. However, we should not forget that adding new permanent members, with or with6*
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out a veto, is only one part of the ideas in the plans for restructuring the Security Council. Another part is to enlarge the Security Council and to make it more representative of the membership of the United Nations as a whole. That, of course, is a concem primarily of the Third World. Such an enlargement would add representativeness to the Security Council and would hence add legitimacy to the Security Council. That is more likely to take care of a perceived "runaway Security Council" than any worries about finding authorization in specific Articles of the UN Charter. I do not believe that the Security Council's use as a flag of convenience for big powers is a genuine threat, but if it is, a more representative Security Council would certainly take care of that. Regionalism: It has been pointed out already that the primacy of the Security Council over regional action has been honoured more in the words of the Charter than in actual practice. Professor Liftich has very quickly recapitulated some of the difficulties that arose in connection with OAS action. I think it was mentioned that the ECOWAS intervention in Liberia was not authorized by the Security Council. It took place before the Security Council took any steps, and it was the Security Council that afterwards authorized it. It subsequently endorsed the intervention that had already happened. Nobody seemed to take any offence at the time. The question, of course, remains: Does the basic concept of superiority of collective action, mentioned just before, also apply in the relationship between the global arena and the regional arena? Is global action necessarily better than regional action because it has a wider basis? Klaus Dicke has demonstrated this morning that this is not necessarily so. We have to Iook at every situation on its specific merits. What we are doing here, basically, is applying the best principles of federalism to intemationallaw. That means that the Ievel which is best equipped for dealing with the particular situation should actually deal with it. There are some situations that are better dealt with on a regional Ievel and some that are better dealt with on the global Ievel. I would add, however, that, where military force is involved, I would strongly favor a global base, notably the Security Council, because, as Klaus Dicke already pointed out, the danger of dominaring regional powers is too large. Mr Magiera just mentioned the principle of subsidiarity. That is basically what should be applied here, too. lf possible, use the Security Council! But if the Security Council is not available for any reason, then go back, go down one Ievel to the regional Ievel! I simply do not think we can afford to do without the regional Ievel or take the forrnalistic standpoint that no regional military action is permissible without authorization by the Security Council. One last remark about the veto in the Security Council. It has been pointed out repeatedly that the Security Council does not seem to use the veto anymore. That picture may be a bit deceptive due to the new methods the Security Council uses in reaching decisions. In fact, my impression is that nowadays, if no consensus can be hammered out among the P-5, no formal decisions are taken. In fact, the vetoes,
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in a sense, take place behind closed doors and informally and do not enter the records of the United Nations. Szasz:
The Germans here will understand when I say: "Zwei Seelen kämpfen in meiner Brust" - in this case the acadernic and the bureaucratic souls. I can see practically both sides of every question; I agree with almost every speaker on almost every point. To take the question of judicial control of the Security Council, we have to recall, of course, that this was specifically tumed down at the San Francisco Conference, not only with respect to the Security Council in particular, but in general with respect to all United Nations organs; the International Court of Justice was not to be the supreme court of the new organization. Since then fifty years have passed, and perhaps it is time to reconsider the San Francisco decision. I agree with Professor Sehreuer that the Security Council has recently not shown itself in a restrained mode, for example with respect to Iraq and Libya. We also see certain instances where the General Assembly has attempted to expand its powers. lt has every time come to a pro-UN, pro-implied powers stance. I also agree that the Court, as now composed, is perhaps not the best possible judicial organ, but all we can say is faute de mieux, that is what we have. lt is difficult to think of a mechanism whereby one could effectuate better judicial control than there is now. Actually, there would be an available mechanism, and that is the already mentioned advisory opinion procedure. The way it rnight work is this: If the General Assembly seriously doubts the legality of some action that the Security Council has taken, it could request an advisory opinion. The Court can respond to such requests very fast, particularly if the General Assembly asks it to. In the recent PLO Mission case, it came up with an answer in about two months, which is practically an on-line, real time reaction for a court on a matter of some importance. So this procedure could be used but, of course, only if the Assembly seriously wished to challenge an action that the Security Council bad taken. As I have pointed out, that rarely happens, in spite of talk of an out-of-control Council, for the Council is largely in tune with the Assembly. There are a few instances in which one rnight claim that the Security Council bad overstepped its lirnits. that is where I personally do not agree with what the Council has done. The imposition of sanctions on Libya is one case. I also have some difficulties, in which I was supported by Professor Lillich, with the decision of the Security Council concerning the Iraqi!Kuwaiti border, because the Comrnission it created was not a judicial organ but merely an administrative one to demarcate a border that the Security Council itself bad fixed. The Security Council bad done so by determining that a particular treaty is in force that Iraq claims is not in force. That, to my rnind, is a legal question which rnight better have been referred to the Court. Once the Court bad determined whether or not the treaty was in force, that would
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establish what the boundary is, and then a boundary commission could go about the business of setting stakes, which is what the Council's Commission actually did. As to the Compensation Commission, I entirely agree that it was a good idea to set it up. I do have some doubts about how it was set up, in particular that Iraq was entirely excluded from the possibility of contesting claims, which in the normal course of a judicial procedure would not have been possible. So, I do not always agree with decisions the Security Council has taken, but I would not characterize those as "runaway" decisions; they simply happentobe ones with which I personally disagree. Turning to the proposal to enlarge the Security Council to increase its "legitimacy": Personally, I do not think that the Council needs more legitimacy. As Professor Li/lieh has already demonstrated, I do not think one can argue that the Security Council is less representative than the General Assembly. In the Assembly decisions can be taken by states that represent only 10% of the world's population and only 2 % of the contributions to the United Nations. In the Security Council that cannot happen. Thus, the Council is in a sense really a more representative organ - unless one believes that, because of their sovereign equality, states qua states are the only entities that deserve being counted. This means, for example, that once the powerfill Soviet Union broke up into 16 parts, these must automatically have 16 times more votes in the General Assembly in order, somehow, to make that organ more legitimate. On the other hand, I can see that there is pressure to improve the functioning of the Security Council, and I agree with Professor Sehreuer that one ought to use the opportunity of the push for restructuring to achieve such improvements. I entirely agree with him that the veto has not disappeared. Like any voting system, one does not have to use it explicitly for it to have its designed effect. For instance, we negotiated for six months on an elaborate and novel decision-taking system for the Third Law of the Sea Conference, and it was finally adopted at the second session; after that, it was never used, except on the very last day of the Conference when in a destructive mood the United States insisted on a vote on the Convention as a whole. But for eight years, the Conference functioned without ever explicitly using the rule, taking countless procedural and substantive decisions. No votes needed to be taken because everyone knew exactly what would happen if one went that route. So, once that is known, usually no one insists that the drama be played out in full. Similarly, generally speaking, once the alignment on a given issue of the Security Council members (particularly the permanent ones) is known, one does not have to force the vote in the Council except to make a point or to force another state to cast a veto. So, the veto is still there, and, to my mind, the veto power is dangerous because it can be used somewhat capriciously. I therefore much favor attenuating the veto - but not necessarily in precisely the area that we are talking about here today. With.respect to Chapter VII of the Charter, one has to maintain the veto. I would like to eliminate it with respect to the election of the SecretaryGeneral and with respect to membership decisions and decisions under Chapter VI
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of the Charter. Certainly I would be unhappy if the Council were expanded and all the new permanent members could exercise a veto with respect to all of these things. If 10 vetoes could be cast in the election of the Secretary-General, you would get even weaker ones than those up to now. So I think the bargain should be either that new permanent members do not get any veto power or get only a dirninished or attenuated power, for example that two of them could jointly cast a veto. But preferably even the present permanent members should be asked to give up some of their veto power, perhaps restricting that power merely to Chapter VII decisions. The last point I would like to cover is legislation by the Security Council. This idea is probably worth elaborating on from my previous presentation. There has already been some reaction thereto, and I was not surprised that it was somewhat negative. Let me repeat the main case for it, that is that the world community needs an effective legislative process. The existing one relies mainly on the multilateral treaty-making process, which is in many ways a very deficient one. The weakness is not so much in the procedure for formulating texts. This takes a long time, but then again it takes a long time to get good national legislation. The US Congress has been wrestling with a recodification of the Federal Criminal Code for about 30 years and still has not completed it. So, it is not surprising that in a multilateral treaty-making process it took some 15 years to achieve the Law of the Sea Convention. It was a most complicated matter that bad to be negotiated among all the states of the world. The real trouble with the international legislative process is not there but comes after a treaty text has been fully formulated and adopted and when it must be accepted by states; for states that do not accept a treaty are bound by it, and, furthermore, those states that do accept it are usually allowed to make all sorts of reservations and exceptions, because when those possibilities of reservations are not allowed, then even fewer states become parties. So, the internationallegislative process ends in producing a patchwork of legislation where many states are not bound at all and others are bound by different obligations. Although this may be tolerable in certain areas, such as human rights, in others, such as arms control, it leads to real difficulties. For example, with respect to the Non-Proliferation Treaty, those states that have actual or latent nuclear ambitions do not become parlies: that is why India and Pakistan are not parties, nor Argentina and Brazil, that is the reason why Israel is not a party. South Africa has only become one now since, under the changed political circumstances there, the former rulers no Ionger want it to be a nuclear power. So, the only way, in effect, to cause recalcitrant states tobe bound by something like the Non-Proliferation Treaty is to force them, and the only mechanism that at this point can do that is a Security Council decision under Chapter VII of the Charter. I would argue that with respect to the Non-Proliferation Treaty or the Test Ban Treaty, it would be legitimate for the Council to do so, because quite clearly proliferation and nuclear tests and so on are threats to the peace in the real sense of the word. One would have greater difficulty making this argument with respect to most environmental
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regimes and especially to human rights, so as to permit the Security Council to impose legislation on the entire world community. Again, this proposal is based onfaute de mieux. I would prefer a better process, and perhaps one could have a process that would also involve the General Assembly, perhaps by requiring an Assembly proposal or approval for the Security Council to legislate on something like the Non-Proliferation Treaty or nuclear test bans. In this connection, it rnight be recalled that the Assembly has again and again almost unanimously voted against the use of nuclear weapons, against nuclear tests, against proliferation. So, if the Security Council were to act on these recommendations, it would in effect be acting as the second step of a practically bicameral legislature. It would be nice to formalize this in some way, that the Council should not legislate unless it had solid support in the Assembly. You see I am simply groping for a solution to the problern of obtaining universally binding internationallegislation with respect to some essential matters and using already existing mechanisms.
Morrison: I have two or three comments that I want to make. The first was the response to the comment that Professor Stein made. I do want to correct the rnisunderstanding. What I intended to say was that, in the case of regional organizations which attempt to engage in enforcement measures without Security Council approval, if the target state objects, it could take measures to preserve or to protect its own legal rights, either by resisting rnilitary efforts or by resisting or breaking a blockade, which it rnight be entitled to do. Then the situation degenerates quite quickly into a threat to the peace, in which each side claims to act in accordance with law; but it is a threat to peace anyway. That is the sense in which I intended the sentence to which you are referring. The consequence ofthat is that it is really necessary to have an authorization by the Security Council before a regional organization takes steps, not only because of Article 53 but also because of Article 39. Then I want to reply to Professor Rubin's comment about Security Council indulgence. What Iwanted to say, paraphrasing Yoda, was, "Agree with him on this issue can I not." The legitimacy of the General Assembly is probably less clear than the legitimacy of the Security Council. So, one cannot attack this, except from the position of a small state saying "I wish I had more power." There are major reasons for re-exarnining that question as well. I want to emphasize that there has been a sense here, when we are talking about the issue of control, that the Security Council is a simple entity; that it has a rnind, that it has a singular presence, and so on. The Security Council that I have observed is a collection; it is a group of forces interacting at the same round table at the same time. But unlike even a government, and certainly unlike a tyrant, it is a group of forces which are directed quite externally to the Council itself. These are political officers who are politically directed. So, it is very difficult to say that the Security Council is of a
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mind to do anything. It is perhaps correct to say that certain members are of a mind to do something. And it is thus much more subject to a multilateral, multidimensional control than even a body like the International Court of Justice. The ICJ is a smaller entity, not in terms of its formal members, but in terms of the number of participants in the effective decision-making process. There are exactly 15 in the ICJ, but in the Security Council you start off with 15 clusters of decisionmakers who are going to be participating in the decision after consultation with their governments and probably with other governments, too. That takes me on to the point about judicial control. It seems to me that judicial review might be a step backwards rather than a step forwards, both in terms of a potential for rather sterile formulations and a potential for a much more closed decision-making process. That brings me finally on to a point about regional organizations. I heard some suggestions that regional organizations are able to operate quite on their own and quite separate and apart from the Security Council's authorization or blessing, either before or after the action. It seems to me that there are several very serious problems with that view. One of them is the disproportionate power that one country actually has in some regional organizations. Another is the danger of conflict stemming from regional activities if they arenot closely controlled. If NATO bad simply charged ahead in Bosnia, how would the Russians have responded? ls not the reality of that situation exactly what makes it necessary to provide for vetoes in the Security Council? Delbrück: I would like to raise another point for those who want the floor afterwards. One of the things which has crystallized from the discussion, a very interesting one, is that about the legitimacy of either regional arrangements or with regard to the Security Council. It is a question which can be considered in the light of traditional state theory, political theory-legitimacy concepts. There was ta1k about the democratic aspect. Whether representation takes place in the Security Council, I think, is an interesting and fascinating subject. Particularly if you look at the Security Council, not from an international but from a global perspective, meaning that the Security Council takes on authority in the public interest (I will talk on this tomorrow), then, of course, the question posed with regard to legitimacy is much stronger than in a more traditional state-oriented set-up, because in such a case we have this arrangement according to the Charter and that is it. I think it was also legal and legitimate in the way it was set up under the then existing circumstances, but there are driving forces that may put a question mark here. The other question also still exists: We have heard here about the question of what powers are actually delegated, mandated, or transferred when the Security Council calls upon or requests a regional arrangement to take action. Has this something to do with the powers of the arrangement? Or is it the technical, institutional set-up which is
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being used in the interest of enforcement, as it has been actually determined in substance by the Security Council? There may be a difference in terms of what is delegated. The execution is delegated, maybe, but not necessarily the powers as such. We will come to this, I think, tomorrow again. I just raise this point. If someone feels like she or he wants to comment on these questions, she or he is invited to do so. Wolfrom:
I would like to come back to the remarks made by Mr Lillich. Mr Lillich recommended that we should concentrate our discussion upon enforcement of human rights and especially enforcement on the regional Ievel. He pointed out, and I agree with him, that enforcement on the regional Ievel has several merits. As Mr Dicke has pointed out, this results from the fact that on the regional Ievel human rights Standards as well as the procedures followed may be rather homogeneous. There is, however, one problern involved. Mr Rubin and Mr Dicke have pointed out that, if a dominant power exists within a regional arrangement, it may be wise occasionally to refer to the universallevel, where the dominance is less dominant, so to speak, rather than to the regionallevel. Mr Chairman, Iet me now come to the question you raised in your frrst intervention as well as at the beginning of this discussion. Your questionwas whether the Security Council may entrust or call upon a regional organization if the law of that regional organization does not provide the latter with the respective function. One may, as you indicated in this respect, distinguish between the function as such and the execution of that function. To that extent, reference can be made to Article 48 of the UN Charter, according to which the Security Council may entrust a certain state or a group thereof to execute certain military functions. In these cases, the states do not have that function, they just exercise that function under the authority and the responsibility of the Security Council. The legitimacy for the use of force flows from the competences of the Security Council. lt is tempting to use this approach for regional organizations. However, this is not feasible. Account has to be taken of the fact that regional organizations or arrangements are created by an international agreement constituting a limited commitrnent of the states involved. Hence, the respective organization or institution would act ultra vires if it would take executive measures which it is not empowered by its member states to take. However, I would like to emphasize what Fred Morrison said. He has given us some good indications how to get around this dilemma. Articles 52 and 53 of the Charter refer to organizations or arrangements and thus are very flexible as far as the structures of the regional organizations are concerned. If the NATO Treaty does not provide NATO with the function to act under the authority of the Security Council as a guarantor of security, then one has to regard the members of NATO as a regional arrangement, and as such they can be mandated by the Security Council. Answering your original question as raised, Mr Chairman, I would like to empha-
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size that the Security Council cannot overrule the intern law of a regional organization. However, Chapter Vill of the Charter provides enough flexibility to circumvent such a problem. Sir Arthur has hinted at a different way of reasoning: Article 103- although he was quite sceptical in this respect. Let me now come to an issue frequently voiced in the political debate nowadays, namely, whether regional organizations may take military actions with a view to restoring peace, not just enforcement actions under the authority of the Security Council but without the respective mandate of the Security Council. Such a case may arise when the Security Council is blocked by veto. Let us assume the following scenario: the Security Council is blocked by the United States' or United Kingdom's veto and, on this basis, NATO decides, since the Security Council is blocked, it can act under its own mandate. 1t is evident that such action would be contrary to the NATO-Treaty. However, Article 53 of the Charter equally forecloses such an approach. Mr Hailbronner has correctly pointed out that Article 53 refers to Chapter VII and as such makes regional organizations' actions dependent upon an authorization of the Security Council. This is true, however, for military enforcement actions only. Economic sanctions and peace-keeping activities may be undertaken by regional organizations without Security Council Iegitimation if the internal law opens such an option. I have to concede that independent regional organizations' economic sanctions are difficult to reconcile with the wording of Article 53 of the Charter. However, since this is common practice, Article 53 has thus been modified by customary law. Paul Szasz will perhaps accept that as a way of reasoning.
Let me come to two further points which have emerged from the discussion. Namely, is it possible for the Security Council to argue, as might become the case with North Korea, that the testing of nuclear weapons or the building of nuclear weapons outside of the Non-Proliferation Treaty is a threat to peace? Such decisions are taken by the Security Council on a case-by-case-basis. However, under today's situation, such a decision would be in conformity with Article 39 of the Charter. I would go a step further than Mr Dicke. In my view, it would be fully within the mandate of the Security Council to decide that any testing of nuclear weapons outside the Non-Proliferation Treaty is a threat to peace with the consequences following from such a decision. I am aware that this has some further implications, since it would mean that the Security Council could force states to ratify the Non-Proliferation Treaty. This, too, would be in line with Article 39 of the Charter. The last point I want to touch upon is whether there should be judicial control of the Security Council. I am not that worried about the Security Council exceeding its functions, at least not more worried than I would be about the involvement of the International Court of Justice. Those who are lawyers often seem to believe that judges will always behave in accordance with the law and will therefore not exceed their functions. Practice does not endorse such an assumption. In any case, there is, from the composition of these two organs and the rules on decision-
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making, no indication that the International Court of Justice would act more responsibly than the Security Council. If such control seems to be warranted, it should be entrusted to the General Assembly, particularly the First Committee. Going back to the legal history of Article 39 of the Charter, however, I have to state that it was very clearly emphasized, when this rule was drafted, that the Security Council was under no legal restraints in pursuing its functions. This was a wise decision, a decision very much taken having in mind the failure of the League of Nations where the system worked differently. Therefore, we should not try to reverse that decision by introducing some fancy arguments taken from some side remarks of the International Court of Justice in several cases. The UN Charter, particularly the functioning of the Security Council, is a system which is based upon the trust that the five permanent members as a group will not only act within the legal framework provided by the Charter, but will be responsive to the aspirations of the world community. Let us hope that this is always the case; there is no valid solution to improve this situation. Tomuschat:
First of all I should like to draw your attention to an inconsistency between Article 53 and the title of the reports which were presented today. Article 53 speaks of enforcement action, and in the title of the reports the word "law enforcement" appears. Now, where is the law? Normally, we proceed from the assumption that, frrst, there is a law enacted by a legislative body and that there is, second, an enforcement agency which then discharges the duty of executing the law. We have got here some combination of powers: The Security Council bases its action on Article 39 of the Charter, which uses a fairly broad formula, focussing on a threat to the peace. This is dangerous, and we as lawyers have to recognize it. As long as peace was defined as the absence of war, the situation was fairly simple. But now the notion of peace has been enlarged to encompass other meanings as weil, including human rights, all imaginable positive states of affairs, enjoyment of amenities, etc. This has, for instance, led to a situation where the Security Council, in the case of Iraq, defined a statute for a defeated aggressor state ex nunc, without being able to rely on pre-existing rules. I would say that, from the viewpoint of the rule of law, this is not a terribly good situation, since we should always try to establish a construction which follows the idea of separation of powers regarding the actions of the organs of the United Nations. This is at present not ensured; so the optimum standards of the rule of law are not met. Nonetheless, we have to accept the present situation, and we should not deny the Security Council the power to enact abstract rules. This was challenged by a number of speakers - Mr Stein started challenging that power and that was supported by Kay Hailbronner and Al Rubin. There are two questions: First of all, there is the question of whether the notion of peace should be understood in a broad sense to include other values, in the
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sensethat peace is more than just the absence of war. Butthereisa second question which is as follows: Is the Security Council confined to taking action only against specific actors in a specific situation which can be defined in terms of territory and time, where there is a precise and concrete conflict? Then, according to our traditional understanding, the Security Council is empowered to act. But I think this construction is not really mandated by the text of Article 39. Article 39 speaks of a threat to international peace. According to my understanding, a threat to international peace can be defined in abstract terms. For instance, we could assume that the production of biotoxin weapons constitutes per se a threat to international peace. So I have no doubts whatsoever that the Security Council can and is empowered, according to the present text of the Charter, to enact abstract rules, but which then should be binding on a1l states, and this should not be done according to specific circumstances, just with respect to one or two states such as, for instance, in the Lockerbie case. If you compare the Lockerbie case with the Airbus case, you could really raise objections and take the view that impartiality did not prevail when the Security Councillooked into the matter. So, maybe the Security Council could separate its fields of activity. It could, on the one band, establish abstract rules and should then ensure that these rules be applied objectively and impartially, and on the other band, it should continue taking action in specific cases. In my view, it should try to separate the two areas in order to create more certainty and foreseeability of the law. But if it formally acknowledges that it is also a world legislative body, then the moment has come when its basis of legitimacy should be enlarged and broadened. In that respect, the objections which have been put forward are not absolutely persuasive. On the one hand, the Security Council is not a Holy Alliance, because the Holy Alliance was a closed club of five powers, whereas the Security Council consists of 15 nations. There arenot only the five permanent powers, there arealso the 10 non-permanent, which also have their role to play, and against the 10 nonpermanent members no vote can be taken. This is simply a fact of life. On the other hand, among the five there is an obvious predominance of Western powers, a situation which in the long run is not acceptable for Third World countries. The representativity of the Security Council must be strengthened by some additional non-Western powers from Third World countries, which should not have a veto power. I agree with that proposition because any additional veto power would really pose a threat to the working capacity of the Security Council. Of course, it would be better totally to restructure the system of the United Nations to have better institutions, but for the time being we have to live with what we have. lt would seem to me that as far as legislation is concerned, we have nothing other than Article 39, and we should try to make use of Article 39 to the greatest extent possible, in particular also in view of situations in the future which may bear grave threats to the survival of mankind. I would draw attention to the fact that in Resolution 687 the Security Council was very cautious in inviting lraq to ratify the biotoxin agreement. lt did not enjoin
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Iraq to accede to that treaty, but it invited Iraq to take that step. Currently, as we have to live with the Security Council under the present circumstances, I have to acknowledge that this is a fonnidable concentration of power in one organ. It is a legislative body according to my construction but is, of course, also an executive agency, and, additionally, it is not subject to any real judicial control. This, in the long run, is an unacceptable situation. On the other band, should the Security Council really be subject to review by the International Court of Justice, those 15 wise men sitting at The Hague? In my view, any control should be very flexible. It has just been pointed out that the 15 members of the Security Council are clusters of people who make an input into the decision-making process, whereas at The Hague you have 15 individuals, and it is by no means certain that The Hague will achieve better results than New York. So, we should not reason in formalistic terms, saying that in each and every situation, there must be a judicial body according to traditional terms. Rather, lawyers should be invited to think about new and constructive methods of controlling the Security Council. One could also envisage, for instance, a legislative process according to which the General Assembly and the Security Council would cooperate where enactment of general abstract rules would require support in the General Assembly and the Security Council. That might probably be the solution of the future. Koch:
Before I come to the principal issue, I would like to mak:e a preliminary comment. I arn surprised by the fact that we are devoting so much time to what has been termed a "runaway" Security Council. If it is correct to say that the Cold War ended in 1989 or 1990, then we are talking about a situation that has Iasted for just four years. Only in that period of time has the Security Council really been able to take up the task for which it was designed in 1945. It has done so very weil in the context of the Gulf War. Most people would feel it has not done so weil in the context of former Yugoslavia. So in my view, at this point it is really not evident that the Security Council is "running away." Rather, it is only now for the frrst time that it has even started to do the business for which it was originally constructed. But Iet me get on to the point that I really wanted to mak:e. I found the two talks and the comrnent today wonderful. They have given me a wealth of insights, particularly useful to someone who is unfortunately no Ionger involved on a daily basis in internationallaw. I would particularly like to latch on to some of the things that my friend, Klaus Dicke, suggested, because I know that he enjoys a good fight and also because he dared to present a practical alternative to what we have. If I understand his proposal correctly, and I find it a very eloquent one, what he is basically saying is that there is a dilemrna here: On the one band, we have problems with regional organizations, because - Herr Wolfrum, you confrrmed that -
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there is always the danger that they are really run by a hegemonic power, as may have been the case in Liberia with Nigeria. On the other band, we also have problems with the United Nations or with the Security Council acting in every case. Doubt has been cast by a number of speakers on the assumption that the good track record of the Security Council during the last years will continue in the future. Therefore, Herr Dicke's solution seems tobe to say that, if we have problems with the Security Council as the universal organization and if we have problems with the regional organizations, then what we must do is to regionalize the universal organization, which, I think, is simply brilliant. Having said that, Iet me throw some stones into the lake and muddle up the water a little bit with three questions I have about that concept. First of all, as somebody who occasionally has the task of explaining the foreign policy of my govemment to people on the street, I have the following problern when, for example, I look at the situation in former Yugoslavia. By the way, I am very surprised that that issue has not played any role at all in our debate. I looked into the records of the symposium of two years ago. At that occasion, everybody referred to the Gulf War, that was really the reference point, and I assumed, travelling here, that the same would be the case during this symposium with former Yugoslavia. It clearly has not. Sir Arthur suggested that the reason might be that the Gulf War was a very "tidy" situation, and I certainly agree that this is entirely different in Yugoslavia, which is anything but a tidy situation. Anyway, if you Iook at the Yugoslav situation, what we have there is a whole host of regional organizations as well as some universal ones all busily walking around. We have the European Union, we have CSCE, we have the Human Rights Commission, we have the WEU, we have NATO, we have UNPROFOR, we have the Arab League. All these people by the thousands are walking about monitoring and supervising, writing reports, keeping the peace. Amidst all this activity, war is going on of a brutality that certainly has not been surpassed in Europe since 1945. Do you really think that adding yet another organizational layer on top of all of this confusion of organizations will make a difference? One thing I can certainly tell you is that it would be very difficult to explain to the proverbial man-on-the-street that such an additionallayer is necessary. Would it not be better to try to perfect some of the organizations that we already have in place? The second point refers to something that Herr Sehreuer also mentioned: the concept of federalization. It seems to me that that is essentially what Herr Dicke is proposing: the federalization of the UN system. However, is it not one of the advantages of the legal Situation that we have right now that the Security Council can, if appropriate, Iook for a regional organization to assume the task of law enforcement but does not have to? In other words, there is a choice: the Security Council can act itself or it can delegate to a regional organization. If Herr Dicke's plan were to go through, one would lose that choice. The result would be that you would be forced to establish regional organizations in contexts which do not really
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support one. What I am suggesting is that it cannot be a coincidence that in Europe, for example, we have a great number of regional organizations, and in other regions we have very few, Asia being an example. In Europe we have a great deal of structure at present, and it would be easy to establish something along the lines proposed by Klaus Dicke. This may also be the case in the Americas, although the question would be raised as to whether North and South America would be together in one organization. But in other regions we do not really have much regional structure. Regional organizations would therefore have very little basis in the political reality on the ground. Also, of course, if you were to force the creation of regional organizations contrary to political reality, you would lose a lot of the advantages of using regional organizations that you have correctly, I think, put forward. With my third point I am going to be a little bit polemic. The argument that you also, Herr Wolfrum, have taken up, that regional organizations are better than global ones, is, of course, one that is very popular because it mirrors one of the basic tenets of political life in Western democracies: Local govemment is good govemment. lt is the town halls that know best. They understand the citizen and take care of his concems and his apprehensions, and a far away govemment is a dumb govemment, to say it colloquially. By extension, government that is in Brussels is intolerably dumb. There is some truth in that, I am not going to deny that view, but I think there are also severe limitations to that idea. Is it really true that the local people know best? I do not see, for example, why Mozambique is supposed to have a better understanding of the situation in Egypt, because they both belong to the Organization of African States, a better understanding of the situation in Egypt, let us say, than Turkey. Another example comes to mind: In Germany after World War II we abolished municipal police because it was considered a disadvantage to have this sort of local connection. It was considered better if a policeman from - I am going to use an extreme example - from Upper Bavaria enforces a law in Kiel, because you do not want a police officer to be too close to the situation with which he has to deal. There is an excellent saying tothat effect: "Farniliarity breeds contempt," and I would add that it also breeds corruption. On the other hand, when Winston Churchill was once confronted with this argument by a colleague - farniliarity breeds contempt - he answered by saying, "Weil, that is true, but remember, without some farniliarity you breed nothing at all !" What I am suggesting is that in many situations you do not want closeness, you want distance, also because that conveys more authority and there is more of an assumption that a judgment made by someone from a greater distance is impartial. Is it really true to say that regional organizations know more than, for example, the Security Council where the large powers are involved with their huge systems of information gathering, their intelligence services, their diplomatic services? All of this, I think, is at least open to doubt. Finally, is it not also true that law enforcement organized by global organizations necessarily is far more awe-inspiring? lt is terribly painful tobe the odd man
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out, to know that the whole world has said you are wrong. Whereas a regional organization is - to speak: colloquially again - just the guys on the block, with whom you deal and wheel all the time, with whom you have cut deals many times, the great United Nations is the world. When they say that you are wrong, that you are to withdraw, that you are to do something, it is the whole world, the whole planet that is speak:ing. All of these are just questions that I wanted to pose. I do not really expect answers, but if I receive any, I would be all the more happy. Aman: lt is a great plesure to be here. It is my frrst time in Kiel and at the Institute. lt is a tremendous opportunity for me to meet all of you and to be a part of this Conference. I appreciate it very much.
I want togoback to the chainnan's fust two questions. The very frrst question was, "Can we work within the Charter as written or are there new provisions or amendments that might be needed ?" Let me say that I am particularly interested in the procedural aspects of our discussion, specifically in Paul Szasz's discussion and description of international administrative procedure. I wonder whether the Charter might not be improved if there were more explicit procedural requirements, not unlik:e some of those found in the US Administrative Procerlure Act. I mak:e this suggestion, not because I believe that something that works in one system automatically will work in an entirely different system, but rather because I think there are some general principles that are relevant to both US and international administration and that they are worthy of reflection. I am particularly struck by the discussion we have had about reasons, the role of reasons, the role of courts, the role of rules, and the possibility of rulemak:ing procedures. I think that there are two trends in American administrative law that are worth noting for our purposes. One is the idea that reasoned decision-mak:ing should govern the resolution of policy disputes at agency Ievel and that the agency's reasoning should be apparent to the public. In the early days of American administrative law, detailed reasons were not necessary for an agency rule tobe valid. Administrative agencies often exercised their rulemak:ing power without being too specific as to why they did what they did. At the same time, however, administrative agencies usually exercised their power primarily in adjudicatory contexts. They rarely used the rulemak:ing powers that they had. Rather, agencies decided specific cases in specific contexts. Over time, however, both of those decision-mak:ing trends changed dramatically. Agencies increasingly used their rulemak:ing power, especially newer agencies such as the Environmental Protection Agency, and courts increasingly demanded more and more elaborate reasons for the rules they issued. This was a good development, but it was not without problems. Reasoned decision-mak:ing has clearly been driven by the courts in the United States, and to a large extent, I think, appropriately so. lndeed, I find myself falling on the side of 7 Symposium 1994
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being pro-judicial review. However, I would also have to recognize, specifically in the United States, that there can be abuses if courts are overly active and power may improperly shift from the political branches to the courts if what is demanded is not only reasons but, in the court's view, reasons with which the court agrees. Quite apart from such potential issues, however, one can still require reasons without necessarily reaching the question of whether there should be judicial control or judicial review. Clearly, it was the courts that drove the trend toward reasoned decision-making in the United States. But let us consider a reason requirement without courts! Such a requirement could, perhaps, be enforced by the court of public opinion. If there were at least a statutory procedural requirement of greater clarity and a more specific Statement of the reasons for actions taken by international organizations, I think a number of very meritorious results might follow. First, there would be additional accountability for the agencies involved and perhaps more legitimacy for agency decisions as well. More importantly, and this is what intrigues me, I think that once you begin to state reasons for your decisions and explain the basis for the actions you have taken, you may be engaged in the process of norm creation, norm re-definition, or the re-enforcement of the basic norms that underly the decision and with which all agree. I think that there is, indeed, an expressive function to all law, and giving reasons makes law expressive in important ways. It is not insignificant to the lawmaking process when an international body expresses itself and engages in this function. Such a process is likely to spur debate and, in the process, add to the richness and the depth of political discourse over international issues. Let us suppose that we leave out the possibility of courts or "Jodas" (I forgot what they were called in the film "Star Wars"). There are other metaphorical courts out there, not the least of which is the court of public opinion. I think that there is a kind of "CNNization" that goes on globally these days. Public discussion, explanation, and debate is not insignificant, particulary if one ties this public discussion to ernerging post-Cold War kinds of issues that will require norm creation, or the articulation of old norms in new contexts. The more public that process is, the more substantive that process becomes, and the more debate that arises (norms are always contentious), the more likely we shall reinforce international law. A procedural provision that requires at least some reasons for decisions made by international organizations would contribute to this process, quite apart from whether courts were or were not involved. I also mentioned a second trend in American administrative law. This has been the shift from adjudicatory decision-making to rulemaking with the result that in some areas there are so many complex rules that administration is difficult if not impossible. Yet, I think it is clear that some rulemaking capacity could add more flexibility to international organizations and, in a sense, more fairness to the overall system. The point was made earlier that it is a good thing if the Charter is interpreted broadly, and its object and purpose is really the only primary area that should constrict. I think rulemilking could actually help in evolving our interpretative approach to the document because it can result in more fairness to the parties
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who might otherwise find themselves subject to retroactive rules that they arguably bad no reason to suspect existed until their case was adjudicated. Rulemaking, by definition, is prospective, and in that sense provides more notice to affected parties. I think the process by which rulemaking occurs can be very democratic. It need not be the fiat of nine countries. If there is notice of a proposed rule, if there is an opportunity for all concerned countries to comment, if there is a decisionmaking process that takes these comments seriously, I think that that is a better way to create new law than what might otherwise result from a form of international common law. To sum up, I believe that there are some possiblities here for procedural reforms short of full fledged judicial review, that would increase participation in the rule and norm creation process worldwide. As we get into post-Cold War issues such as drugs, terrorism, and darnage to the global environrnental commons, it is clear that such problems differ from issues such as when can one country invade another. Such issues are more regulatory in nature and would benefit from an on-going rulemaking process in which the agency gives reasons for its action or non-action. Lagoni:
I must confess that I still feel haunted by the case of ECOWAS in Liberia, to which Mr Kühne referred earlier in this discussion. Let us assume the following situation: There is an internal strife within a state, and because of this internal armed conflict there is no functioning government, and there are grave and massive violations of human rights extending to genocide and "ethnic cleansing." Assume furthermore that there is an extensive flow of refugees across the boarders into the neighboring countries. The Security Council has knowledge of this situation, but it simply turns its back on this situation. I would call this a "turn-away" Security Council, or, alternatively, that the Council includes the case in its agenda but the decision of taking peace-keeping measures is blocked by veto. This could be called a "runaway" Security Council. After all, this was the situation of Liberia in the just mentioned ECOWAS case. It seems to me that, if 10 years ago a regional organization bad taken measures in that situation, the community of states would have hailed that. Nowadays, after the end of the East-West confrontation, intemationallawyers have problems with such actions. Nevertheless, it seems to me that one could square such regional actions with the Charter. No doubt, the ECOWAS operation in Liberia was no selfdefense measure pursuant to Article 51, because - as Mr Morrison mentionedthere was no attack on the neighboring states. Moreover, it was no regional enforcement action under Article 53(1) because it was no collective security measure under Chapter VII. Instead, it seems to me that it was a regional peace~keeping measure for the purpose of the protection of human rights. Therefore, I would call it a "Chapter vm and a half' measure: A measure that is not expressly mentioned in the Charter, but it is also not against the Charter, because the Charter does not 7*
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prohibit it. It seems to me that in particular Article 53(1) does not prohibit such regional action because it is not a collective security measure. I would construct Article 53(1) strictly, and consequently I would consider it as not applicable to this situation. In conclusion, and referring to your request, Mr Chairman, in the ECOWAS case, the regional organization has not operated on the basis of a delegated power but on its own power to intervene in cases of gross violations of human rights which were destabilizing the area. Of course, the question arises, what about the Security Council in this situation? The "tum-away" or "runaway" Security Council is not forfeited in its right to tak:e action on the matter pursuant to Chapters VII and Vill at any time, that means: while the regional organization is operating. The Security Council's action, no doubt, does prevail, if it has tak:en action, over the regional measures. In addition, a micro point: Mr Dicke suggested this monring in his comment the establishment of regional commissions or committees of the Security Council. I think the question remains how this can be squared with the general aim of the United Nations toreform the United Nations by stripping all or most subsidiary bodies. His suggestion would add new ones. Rudolf:
I think that there is agreement that up to now the Security Council has acted within its competence, and that there have been no actions ultra vires; and we agree, too, that Article 39 must be interpreted in a broad sense to maintain international peace and security. But I do not agree that Article 39 should be interpreted in such a way as to give the Security Council lawmaking competence, because a threat to peace cannot be a potential or an abstract threat but always is a concrete, real, and specific threat to the peace. It is impossible that the Security Council should have the competence to make abstract laws. That is not the competence of the Security Council but of the states, because the international society is still based on the states. The second point is federalization, mentioned already by Mr Koch. I think that federalization is a very good idea, but it is quite academic to speak of federalization because in some parts of the world there is no regional organization which would be able to execute what is laid down in Chapter vm. If there are several international regional organizations as there are, for instance, in Europe, I doubt that this would be easier. It may be even more difficult. So one cannot generalize. The next problern is that there are fewer than 10 regional organizations able to maintain international peace and security on a regional level. And there are probably less than five in which one state is the dominant state, such as, for instance, the United States in the Organization of American States. So, one cannot say that it is better to federalize. lt may be better in a concrete case but not in general.
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The next point is that the Security Council is not empowered to control the regional organizations because the Security Council has to act in conformity with the internallaw of the regional organizations, as Sir Arthur already mentioned. There is one case for which I am not sure how to give a legal explanation, and that is the Somalia case. In former days, if a state bad disintegrated, the neighbors, which were some European powers, would have intervened and either established a new authority or occupied it, and this would have been a case of state succession. Nowadays, this seems to be impossible. Does the Security Council have competence to intervene even if there are no refugees, even if there is not a threat to peace? Does it have competence to restore stable authority in a totally disintegrated state? I think: there must be a competence, and this competence can only lie with the United Nations, i. e., with the Security Council. But it is very difficult to find a clear, legal solution for this case. Morrison:
I refer to what I said earlier, except with regard to this last question which I think: both of you raised in different ways arising under either the ECOMOG or the Somalia situation. It seems to me that one of the things that you have to clarify in that series of issues is that regional organizations may in some circumstances have to act "at their own risk." It may be necessary for them to take action before it is possible to obtain an authoritative determination of whether the action is justified. Only after the fact do you then get the blessing of the Security Council or at least the non-curse of the Security Council. I am sorry that lohn Norton Moore is not here today, because I think: I know what he would say. He would take me back to Article 2(4) and he would teil me to read it very carefully. I wonder whether we considered Article 2(4) that carefully. I am not certain that I agree with bis point, but at least the Article is on the table. It does not say that all members shall refrain in their international relations to the threat or the use of force simpliciter. It says something more than that, it says "against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes . . .." And if you put that additional gloss on it in the failed state situation, you m.ight be able to create a justification for intervention, perhaps even by an individual nation-state. One m.ight argue that there is no locus standi for anybody to complain or that it is a special situation not inconsistent with the principles of the United Nations. Sim.ilarly, if you talk about Security Council action, you go down to Article 2(7), which is, of course, the domestic jurisdiction clause. But how does Article 2(7) end? It says that "this principle shall not prejudice the application of enforcement measures under Chapter VII." Remember, Security Council actions are not subject to judicial control but only to political control! That is at least an approach, I am not saying that I endorse it, but it ought to be on the table.
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Szasz:
Let me take the floor on this point: that is precisely why the Security Council did say that the Somalia operation was under Chapter VII, because of Article 2(7) of the Charter. The problern was that to fit under Chapter VII the Council bad to find a threat to peace for which there was no rational basis. Butthis was the approach: Starting from the proposition that something bad to be done and action was only possible under Chapter VII, the findings necessary to activate that Chapter were made. Going back to the frrst part of the argument, we must examine what Article 2(4) prohibits with respect to a disintegrating state. If one reads that provision in the sense that, even though such a state has no political independence, it still has territorial integrity that must be respected, then the use of national force is prohibited because it may not be used against the territorial integrity or political independence of any state. Thus, by intervening with force in an ungovemed state, you would be offending its territorial integrity, even if there could be no offense against the non-existent political independence. In my view, it is most important to read Article 2(4) expansively, that is, to prohibit as much as possible unilateral military actions by states. But that necessarily requires reading Article 2(7) restrictively and therefore Chapter Vll expansively so as to allow the Security Council to take actions that would reduce the temptation of individual interference by states. Somalia happens to be surrounded by a lot of other pretty weH failed states, which are not likely to intervene. This is somewhat different from the situation in Liberia, which is surrounded by several strong states. Basically, what the Security Council was saying is: "If we show weakness here, then we invite national intervention, and that would be worse than our intervention because we are after all representing the world community." Butthereisa danger in this line of reasoning that Chapter VII applies, even if there is only an indirect threat to the peace by the weakness of a country inviting national intervention. Carried just a bit further, something similar can be said about Libya. One can say that Libya constitutes a threat to the peace, not because its failure to renounce terrorism means that it is attacking other states, but because its failure to renounce terrorism will sooner or later cause the United States or France to bomb them again, and to preclude that possibility, the Council should rather impose collective punishment on Libya. Basically, these are all questions and evaluations of infra legem, extra legem, and contra legem, except here we would substitute infra Charter, extra Charter, contra Charter. And we might conditionally agree that, though the Security Council has not yet acted contra Charter in any case, it has acted extra Charter, and my inclination would be not to object to that. I propose that infra Charter is obviously best, even if it requires an expansive interpretation; it is better than extra Charter which is better than contra Charter, and all these may be better than leaving a vacuum which could only be filled by national military actions.
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Finally, a perhaps technical point: In talking about Security Council control over regional organizations, every possibly relevant provision of the Charter has been mentioned, including Articles 48(1), 52, 53, and 103. One, however, that has not been mentioned relates directly to this question, namely Article 48(2), which says that when the Security Council tak:es action under Chapter VII, then member states are obliged to act in such a way, in all organizations, including regional ones, that then conform to the Council's action. Now, that does not overcome Sir Arthur's point, because if an international organization is not authorized to do something, then the members of the organization cannot be required to cause it to act against its own law, assuming that law cannot in any way be interpreted in the desired sense under Article 103 of the Charter. So, although there are limitations, I want to put Artic1e 48(2) into play, because it is one which is directly relevant to one of the questions we are considering. Lastly, one more word on legislation by the Security Council. Let me address simply the point of why a nuclear test or a violation of the Non-Proliferation Treaty is a threat to the peace. Let us tak:e nuclear tests: It is generally considered that the continuation of nuclear testing will lead to proliferation, in one of two ways. The most obvious is that continued testing would almost surely prevent the continuation of the Non-Proliferation Treaty, which will come to the end of its term in 1995 and is then subject to renewal by a decision of a majority of its parties; a majority of parties have said again and again at the quinquennial Review Conferences that they will not renew the Non-Proliferation Treaty if nuclear testing continues. The other way that testing encourages proliferation is that it is generally held that if nuclear testing were prohibited effectively, then new states will simply not become nuclear powers because they will not risk assembling nuclear weapons that they cannot test. Under current US legislation, that country must observe an absolute moratorium until 1996, unless some other state tests. Other states have similar laws or policies. So, it is quite clear that, if there is further testing, then the voluntary or intemal domestic legal bans on testing that many states now observe would fall by the wayside and so would the non-proliferation regime. This combination of circumstances, to my mind, would be enough for the Council to decide that any nuclear testing by anyone constitutes a threat to the peace. lt is like saying that any discharge of a weapon in a neighborhood is a threat to the peace of that neighborhood or, as a Justice of the Supreme Court once put it, the shouting of "Fire !" in a crowded theatre may be prohibited. This was not a statement about "x" shouting frre or doing so in theatre "y" but that shouting in certain circumstances is a danger. Applied to the situation we are discussing, the Security Council can in good conscience tak:e an abstract situation and say that to preserve peace it has to be regulated in a particular way, just as it could say that the withdrawal of North Korea from the Non-Proliferation Treaty, or its non-observance of the safeguards required by that treaty, would constitute a threat to the peace.
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Dicke:
Let me, fll'St, respond to Michael Koch's questions peacefully and postpone the fight until the evening reception. The purpose of my proposal to vest the Security Council with regional chambers was not primarily to prevent a possible paralyzation of the Council by opening ways for regional organizations to act. Rather, my starting point is the following: Wehave many regional organizations already here in Europe and in other parts of the world. In Latin America, in Asia, we are witnessing the emergence of new regional organizations. In this situation, the problern Mr Magiera had in mind is one of the most pressing and, from the point of view of the Charter, a most challenging one: How do we shape these regional organizations in such a way as to make them fit into the picture of Chapter Vill? One of the pros of my proposal is that it induces the adaption of regional organizations to the requirements of Chapter Vill. The question of whether or not regional organizations do better than the Security Council can simply be answered by quoting Article 53: "The Security Council shall, where appropriate, utilize such regional arrangements ..." (my emphasis). The underlying assumption of this proviso says that regional organizations possibly can do better, but that there is no general presumption in their favor. Therefore, the usefulness of enforcement actions by regional organizations has to be decided upon politically and case by case. Take, for example, the case of Myanmar: No one in this room will doubt that gross violations of human rights are taking place there and that there is a civil war which in many instances constitutes an international conflict. But it certainly would make no sense for the Security Council to order a military intervention to enforce international law. Instead it is necessary that the ASEAN states become involved to contain and eventually resolve the conflict. The point Mr Lagoni put forward is really a "micro point." I think in the future we will witness the emergence of yet more regional and other international institutions. Certainly, it seems necessary to strip off many ineffective international organs and institutions, and states should be very careful in creating new ones. But they should create them when necessary! A last remark on the very important subject of international legislation: I agree with Paul Szasz that the world is really in need of improved international legislation in a broad variety of cases, and I agree with Mr Wolfrum's and Mr Tomuschat's Statements that the Security Council has the power to legislate generally. On the other band, I am quite sure that we are in need of institutional arrangements within the United Nations which will control this power of the Council, perhaps by way of a two-chamber system as is evolving in the European Union. But the core question we have to address here is not an organizational, but a more fundamental one: Is Professor Rudolfadequately describing our starting point when he says that "international society" is based on states? Is our discussion here not evidence that we live in an international community which is based on law? In my view, the
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legal community approach is the more adequate one, and I think: that a lot of questions we have to deal with in the context of our symposium is based on the assumption of an ernerging and developing internationallegal community.
Decentralized International Law Enforcement: The Changing RoJe of the State as Law Enforcement Agent Torsten Stein* I. Introduction
Since the end of the Cold War, the world bas witnessed a dramatically increasing number of UN interventions, 1 but bad, at the same time, to take notice of the fact that in all these interventions the United Nations were completely and without exception dependent upon the willingness of a smaller or greater number of its member states "to do the job." In all these instances, and in particular in the second Gulf War, in the case of the protection of minorities in Iraq, and in the "Restore Hope Operation" in Somalia, one could at times get the impression that it was these states whicb decided if, wben, bow, and for bow long the world organization sbould intervene. 1t sometimes appears as if the new role of the state as law enforcement agent is very mucb the same as that of 50 years ago, the only difference being that states are now flying the UN flag.
ß. "Collective" and "Individual" v. "Centralized" and "Decentralized" Enforcement
Before we deal in greater detail with the classical means of international law enforcement, with the role of states as law enforcement agents in their own interest, or for the United Nations, or in some other public interest, and with their respective rigbts and duties, it may be useful to clarify the terms used in that context. The question is, in particular, wbether there is a (legal) difference between "collective" and "individual" (or "unilateral") enforcement of international obligations2 on one band, and "centralized" and "decentralized" international law en-
* Professor Dr. Torsten Stein, Director of the Europe Institute, Saarland University, Saarbrücken. I Cf Lori Fis/er Damrosch (ed.), Enforcing Restraint Collective Intervention in Interna! Conflicts, 1993. 2 Cf. the Colloquium in Commemoration of the 600th Anniversary of the Universtity of Heidelberg, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 47
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forcement on the other. There is certainly much overlap, but there are also some differences. "Individual" or "unilateral" law enforcement denotes that it is, in a given situation, the sovereign decision of a state whether and how to react to a violation of its rights under international law. The question then is only whether the reaction is admissible under international law, not what influence other states or international organizations could have on that decision. "Collective enforcement," on the other band, is not a very clear notion. 3 It may denote universal collective enforcement within the United Nations, regional enforcement within regional organizations or arrangements in the sense of Article 52 of the UN Charter, or collective self-defense. In the latter case we find combined and coordinated individual enforcement, and the states, even under existing treaties, e.g., the NATO Treaty, at the end of the day remain free to decide whether or not to participate.4 Collective enforcement within the United Nations or regional arrangements entails certain obligations for the member states, although (maybe) not if it comes to forcible enforcement. "Centralized" international law enforcement denotes, at least in principle, a decisive influence of a central law enforcement authority on "if," "when," "how," and "for how long" law enforcement efforts should be made. lt may well be that the internationallegal order Iacks a general central Iaw enforcement authority, 5 not because there is no such authority (the United Nations), but rather because it has no teeth, no executive arm. lt is not the United Nations but its member states which enforce embargoes, and until its Secretary-General (who should then have some personal insight into or highly professional advice on how and when to deploy armed forces 6) disposes of a "UN Legion,"7 it will be states which restore peace and security in a given area, notwithstanding that such military enforcement measures may be applied only under the authority of the UN Security Council. But (1987), 1, and Jost Delbrück (ed.), The Future of International Law Enforcement. New Scenarios - New Law. Proceedings of an International Symposium of the Kiel Institute of International Law, March 25 to 27, 1992, 1993, in particular Bruno Simma, Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations erga omnes?, id., 125. 3 Jochen Abr. Frowein, Collective Enforcement of International Obligations, in: ZaöRV 47 (1987), 67. Cf. also Alfred Rubin, Enforcing the Rules of International Law, in: Harvard International Law Journal34 (1993), 149. 4 Article 5 NATO Treaty only obliges a state to take, in case of an armed attack, "such actions as it deems necessary." s Jost Delbrück, A More Effective International Law or a New "World Law"? Some Aspects of the Development of International Law in a Changing International System, in: Indiana Law Journal 68 (1993), 705, 720. 6 "Even for peace-keeping and non-combat peacemaking ... his present operational staff is inadequately manned or trained and therefore ineffective for military enforcement Operations," John M. Lee/Robert von PagenluJrd/Iimothy W. Stanley, United Nations Peace and Security System, 1993, 5. 7 Lee et al. (note 6), 44 et seq.
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the outside world will once and again get the impression that "if nations of the world so decide, they can employ the United Nations for the enforcement of security and peace."8 Tiris phrase is true in a two-fold sense: On the one band, the United Nations can only do what its member states, andin particular the permanent members of the Security Council, allow it to do, and on the other band, it may indeed appear as if states avail themselves of the United Nations from time to time in the pursuance of their own interests. Even if it is highly unlikely that we will soon see a "UN Legion," it might be essential for future ad hoc actions that the direction and command of UN forces be truly and visibly international, not merely an operation by the United States and others with some UN gloss. 9 Another such operation would hardly be acceptable for the United Nations, whose limited control could again become obvious, and for the states which would be asked to engage themselves and later have to bear the blame for the outcome of an Operation which lacked a coherent concept from the very beginning; the intervention in Somalia provides an example. Finally, "decentralized" international law enforcement, if it connotes only the individual state being its own law enforcement agent, 10 would have the same meaning as "unilateral" or "individual" enforcement. I would prefer to reserve the term "decentralized" law enforcement to situations where centralized law enforcement is theoretically called for, but where a given centrallaw enforcement authority Iacks the necessary means to act independently. The enforcement of legal obligations under international law by individual states, be it alone or in coordination with others, was the rule until the end of World War II. International law until that time bad still to be characterized as a rather primitive set of rules, limited to coordination, and, accordingly, each state bad to enforce internationallaw by itself in case of its violation. A central institution which could independently supervise the respect of internationallaw and sanction violations did not exist. Even the League of Nations, at the end of the day, bad to leave possible reactions to the violation of international obligations to the discretion of its member states. Internationallaw was thus enforced only if its violation touched upon the individual interest of a state which disposed of the means to enforce its legal position. Since centralized international law enforcement in the pure sense will remain a merely theoretical option for the forseeable future, at least for the United Nations under Article 42 of the UN Charter, modern international law, in my view, knows of two ways of internationallaw enforcement only: individual (or collective in the sense of combined individual) enforcement and decentralized enforcement in the sensethat it is centralized with regard to its authorization and (preferably) its orga-
8 9 10
Jd., 1. Jd.,4.
Delbrück (note 5), 720.
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nization, but decentralized with regard to the execution. In both cases, states are the enforcement agents.
ßl. Means of International Law Enforcement While the terms "collective" and "individual" law enforcement on the one band and "centralized" and "decentralized" on the other refer to the possible actors on the international stage and to the answer to the question of "who" is entitled to law enforcement, the question remains as to "how" international law can be enforced and how various means are allocated to different actors. The classical means of internationallaw enforcement 11 are recourse to a judicial authority and self-help. Recourse to a judicial authority has so far- with the exceptions of the Nurernberg and Tokyo Trials 12 - been confined to the settlement of disputes among states, concerning their individual rights and obligations, by permanent or ad hoc courts and tribunals. So understood, recourse to a judicial authority belongs to the category of individuallaw enforcement, because it depends upon the acceptance of the jurisdiction of permanent or ad hoc courts or arbitration tribunals by all states involved in the dispute and, therefore, upon their individual decision. It remains to be seen whether the recently established International Tribunal for the Prosecution of Persons Responsihle for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia 13 or any other "International Crirninal Court" with a more general jurisdiction, which has been the subject of a great number of projects and drafts in the past, 14 will become an effective means of international law enforcement in the future. If so, one would have to add a new type to the category of (predorninantly) centralized law enforcement. Some elements of decentralized enforcement will, however, always remain connected to an international crirninal court: The arrest of the accused, bis or her surrender, pre-trial detention and punitive confinement will have to rely on states as law enforcement agents. n Other means of peaceful dispute Settlement, as, e.g., negotiations, mediation, and conciliation (cf Article 33(1) UN Charter) do not fall under the term "law enforcement." The solution found by way of these diplomatic means of dispute settlement is not "enforced," but agreed upon, and its content does not necessarily always correspond to the actual state of international law. 12 Cf Hans-Heinrich Jescheck, Nurernberg Trials, in: Rudolf Bemhardt (ed.), Encyclopedia ofPublic International Law (EPIL), instalment 4 (1982), 50, and Bett V. A. Röling, Tokyo Trial, id., 242. 13 SC res. 808 of 22 February 1993 and Report of the Secretary-General pursuant to Paragraph 2 of SC res. 808, UN doc. S/25704 of 3 May 1993. 14 Cf, e.g., International Law Association, Report of the 64th Conference 1990, 181 et seq.
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Self-help may involve non-forcible means of enforcement as weil as the use of (military) force. Non-forcible self-help ranges from diplomatic protests to massive economic pressure; it can be qualified as retortion or reprisal, 15 depending on whether the measure adopted is legal under intemationallaw or illegal as such, but justified under the circumstances. Each state may take non-forcible law enforcement measures without any prior authorization by, or subsequent participation of, the United Nations if the violation of internationallaw which prompts such a reaction touches upon the individuallegal position of the state concerned. The view, in particular advanced by developing countries, that the prohibition of force under the UN Charter should also extend to forms of massive political and economic pressure, did not gain acceptance. 16 There is less unanimity as to the question of whether an individual state, without authorization by the United Nations, may act as law enforcement agent and take (non-forcible) reprisals in cases where rules of internationallaw are violated which do not create subjective rights ofthat state, andin the affumative, what would then be the limitations to such law enforcement. We will come back to that question. The use of force as a means of self-help under the UN Charter and corresponding general international law is limited to individual or collective self-defense against an armed attack, until the Security Council has taken the measures necessary to maintain international peace and security (Article 51 ofthe UN Charter). In this context we might find the frrst area in which the role of the state as law enforcement agent ("role" understood as "possibilities") has changed in the recent past. 1t has at least been clarified and thus limited by the judgment of the ICJ in the Nicaragua case, which is widely seen as having ruled out self-defense vis-a-vis low-intensity warfare. 17 Two years ago we discussed herein Kiel 18 whether any intervention by the Security Council in an ongoing self-defense situation could preempt the state which has been attacked from continuing to exercise its right to self-defense under Article 51, or whether Security Council action supersedes that right only ifthe Council takes or authorizes measures which can reasonably be deemed to be as effective as any proportionate self-defense options available in the given Situation. I still maintain that the second alternative is the correct interpretation of Article 51, given the fact that Article 51 goes on to say that "[m]easures taken by Members in the exer15 See Peter Malanczuk, Zur Repressalie im Entwurf der International Law Commission zur Staatenverantwortlichkeit, in: ZaöRV 45 (1985), 293; Karl Doehring, The UnilateralEnforcement of International Law by Exercising Reprisals, in: R. St. J. MacDonald (ed.), Essays in Honor of Wang Tieya, 1993,235. 16 Cf., e.g., Knut Jpsen, Volkerrecht, 3rd ed. 1990, 879. 17 W. Michael Reismann, New Scenarios of Threats to International Peace and Security: Developing Legal Capacities for Adequate Responses, in: Delbrück (note 2), 13, 35 et seq. Cf. also Frowein (note 3), 71 et seq. 18 Cf. Delbrück (note 2).
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eise of this right of self-defense . . . shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security." This seems to indicate a ranking pari passu of the "inherent" right of self-defense with the responsibility of the Security Council, rather than an unconditioned hierarchy in favor of the latter. Recent developments show that the authority of the Security Council to take (and one has to add: to maintain) at any time such action as it deems necessary in order to maintain or restore international peace could jeopardize, if not frustrate, the self-defense efforts of a state victim of an armed attack, even if the Security Council has not taken effective measures to bring that attack to an end. If we take the case of Bosnia-Herzegovina and leave aside for amomentother problems connected with that ongoing armed conflict, it cannot be seriously denied that this country, a member of the United Nations, is the victim of an armed attack by one or, at least at times, two other members of the United Nations, Serbia-Montenegro and Croatia. It is also quite beyond doubt that the Security Council has not taken the measures necessary to end that armed attack in the sense of the first phrase of Article 51 of the UN Charter, measures which could take away Bosnia-Herzegovina's right of self-defense. No one hasever claimed that the United Nations was in charge of the situation in ex-Yugoslavia and that, therefore, individual self-defense had to come to an end. Nevertheless, the Security Council maintains an arms embargo 19 against all the successor states of ex-Yugoslavia including the victim, a measure which might be attributed to the second phrase of Article 51. The embargo at least appears to be one which favors the agressor, and which raises interesting questions as to the hierarchy of obligations under the UN Charter: lf the measures so far adopted by the Security Council do not take away Bosnia-Herzegovina's right of self-defense, what could legally prevent other states from joining Bosnia-Herzegovina, at its request, in that defense, turning individual self-defense into collective self-defense? The reasons why this has not yet become reality seem to be political rather than legal. And does the contribution of other states to collective self-defense always have to be the sending of troops, or could it also be the sending of arms? Can the Security Council curtail collective self-defense by adopting arms embargoes which are binding upon UN member states, without at the same time taking effective measures to restore peace ?20 Are states bound by such an embargo only as long as their interest in sending arms to a state engaged in self-defense is merely commerSC res. 713 of25 September 1991. The Republic of Bosnia and Herzegovina has contended before the ICJ that the application of the arrns embargo denies it the means to protect itself from arrned attack and genocide and has claimed that the embargo violates the UN Charter, the Genocide Convention, and general intemationallaw; cf the two Orders of the ICJ of 8 April and 13 September 1993, text in: ll..M 32 (1993), 888 and 1599. 19
2o
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cial or, at best, political, but become "unbound" once they join that state as an ally in collective self-defense? The situation in the Balkan may be extraordinarily complicated, but what would be the answers if one imagines that the same situation occurs with respect to a state that has been a member of the United Nations from the very beginning? In June of 1993, only six members of the Security Council (including the United States) voted in favor of a draft resolution to Iift the arms embargo as applied to Bosnia-Herzegovina; the measure failed for want of the minumum of nine votes required for adoption under Article 27 (2) of the UN Charter, nine members abstained, including all four permanent members other than the United States.Z 1 One would be prepared to accept that decision if it could be argued that sound reasons led the Security Council to decide that preventing additional arms from arriving in that area could dry out the conflict. But there can be no serious doubt that the opposite is true: Bosnia-Herzegovina's opponents dispose of whatever arms they need, the victim does not. lt is certainly the basic philosophy of the UN Charter that the Security Council shall have almost unfettered discretion in how to use Chapter VII of the Charter in order to fulfill its primary task to maintain or restore international peace and security, a task which is- except for extraordinary circumstances - not subject to the control of other organs of the United Nations, including the International Court of Justice. 22 But if it becomes quite obvious that the Security Council's inaction as to effective measures necessary to maintain peace and security on the one band and its inability to make effective provision to allow selfdefense on the other are the result of a Iack of interest on the part of some of its members, of diverging own interests on the part of others, and of their common interest to avoid a veto, this does not seem to be the mixture of motives which could justify the prominent role of the Security Council with regard to international peace in situations where Article 51 of the UN Charter remains applicable. In other words: If the Security Council in its incidental composition at the time, or because of an imminent or actual veto of one of its permanent members, is unable to adopt measures which could reasonably be deemed to restore the security of a member state which has been the victim of an armed attack, the right of self-defense under Article 51 of the UN Charter, in its indivdual as weil as in its collective version, prevails over any decision adopted by the Security Council, even if that decision is generally binding under Article 25 of the UN Charter; again: unless that decision provides an effective equivalent to self-defense. We have so far looked at the classical means of law enforcement and possible changes to their application. If one wants to distinguish this from non-classical, new, or modern means of intemationallaw enforcement, one will have to come to 21 See S/PV. 3247 of21 June 1993, 148; cf. Lori Fisher Damrosh, Recent Security Council Actions Concerning Internal Conflicts: Economic Sanctions, in: ASIL Newsletter January-February 1994, ASIL INSIGHT, Center Insert p. 3. 22 Cf Torsten Stein, Das Attentat von Lockerbie vor dem Sicherheitsrat der Vereinten Nationen und dem Internationalen Gerichtshof, in: Archiv des V6lkerrechts 31 (1993), 206.
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the conclusion that it is not the means which are so different, but the actors which may apply those means, and the circumstances that may give rise to their application. What could be termed "modern" enforcement of international law is "centralized" or "regional" enforcement, by the organization of (practically) all states, the United Nations, or by regional arrangements in the sense of Article 52 of the UN Charter. The means that both could apply are quite the same which are available also to states if they decide to enforce their own rights: complete or partial interruption of economic relations, of means of comrnunication, severance of diplomatic relations, as weil as, if these measures appear or prove to be inadequate, action by military forces which may range from mere demonstrations to combat operations (Articles 41, 42, 52 UN Charter). A number of questions remain: Firstly, are the circumstances under which the United Nations or regional organizations may enforce international law different from the circumstances under which individual states could take enforcement measures? Secondly, since we know that there is, at least at present, no suchthing as "centralized" law enforcement in the pure sense, that it is the states which have to act as law enforcement agents for the United Nations or regional organizations, are the possibilities for the states to enforce international law different if they act for the United Nations from what they would be if they act for them~elves? And thirdly, what are the obligations of states in that respect? Do they have to engage in "decentralized" law enforcement for the United Nations or regional organizations, or do they retain their freedom of choice not only as to "how" but also as to "if' they want to be engaged? What is the amount of international control or guidance they have to accept in case that they actually become engaged in decentralized law enforcement?
IV. The Allocation of Means of Law Enforcement to the Various Actors States may react individually to all violations of their individual rights, be that rights stemming from a treaty or rights under general international law. "Third" states, i.e., states not directly affected by the violation, might react if the violated norm is one which qualifies as an erga omnes norm; we will come back to that. The United Nations, and probably also regional organizations correspondingly, can only move to international law enforcement if the violation of international law relates to the maintenance of international peace and security, in the terms of Article 39 of the UN Charter to ·~any threat to the peace, breach of the peace, or act of aggression." It will then be the states which enforce embargoes or use force, as authorized and demanded by the United Nations. In the recent past, the UN Security Council has broadened the spectrum of possible application of Chapter VII of the UN Charter to the protection of human
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rights and intervention in civil war, and to intervention in order to restore democracy. Examples of the first are the intervention in favor of the Kurds in Iraq and the action in Somalia. The situation in ex-Yugoslavia does not qualify as intervention in a civil war, because the Security Council had recourse to Chapter VII only after the former republics of Yugoslavia had been recognized as independent states. 23 An example of the second is the embargo against Haiti?4 One may very weil debate the legality of the United Nations' intervention in Somalia and Haiti and the respective Iimits of intervention, 25 but the interesting question in our context is whether states, which were cailed upon to execute the measures authorized or ordered by the Security Council in the cases of Somalia and Haiti, could also have acted individuaily or coilectively under comparable circumstances without Security Council authorization, if faced with Security Council inaction for whatever reason. In other words: Has the Security Council, in applying Chapter VII to situations such as those in Somalia or Haiti, also broadened the spectrum for individuallaw enforcement? There can be no doubt that other states were not affected by the Situation in Somalia or Haiti in the sense that their individual rights under international law had been violated, with the consequence that they would have been entitled to law enforcement in their individual right. On the other hand, we find the rather weil established concept of obligations erga omnes in internationallaw, "weil established," however, only as to its mere existence, less well established as to its relation to ius cogens,26 its substantive content, and as to the question of the enforcement of obligations erga omnes. lt is certainly true that it is the enforcement stage which constitutes the moment of truth for the entire concept of obligations erga omnes27 and that the enforcement of rules which embody higher values as do erga omnes rules is not to be left totaily either to the discretion or power of individual states or to the fortuitousness of Security Council action. There seems to be consensus - that erga omnes norms are those which, because of their fundamental value for the international community, are legally binding on ail states, irrespective of any individual manifestation of acceptance; - that this category is composed of the most fundamental rules of inter-state relations, such as the prohibition of force, the respect of sovereignty and territorial
Cf. Europa-Archiv 7/1993, D 143 et seq. SC res. 841 of16June 1993; SCres. 917 of6May 1994. 2s Cf. Mary Ellen O'Connell, Continuing Limits on UN Intervention in Civil War, in: Indiana Law Joumal67 (1992), 903. 26 Jochen Abr. Frowein, Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung, in: Völkerrecht als Rechtsordnung. Festschrift für Hermann Mosler, 1983, 241. 21 Simma (note 2), 136. 23
24
s•
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integrity, the fundamental rules on diplomatic relations, 28 and the rules conceming the basic rights of the human person;29 - that individual reaction by states to the violation of an erga omnes nonn is permissible if it is proportionate, non-violent, and not abused for other (selfish) motives, and that such measures, which can be taken as legitimate reprisals by individual states, may also be coordinated by regional organizations without being authorized by the United Nations?0 Any enforcement of an erga omnes obligation by a state which is not directly affected by its violation touches, however, upon the sovereign equality of states and the principle of non-intervention derived therefrom. Quite a number of authors maintain, therefore, that states may react individually or collectively, but without prior UN authorization, to a violation of an erga omnes nonn only if that violation is open, gross, flagrant and persistent;31 - finally, that the right of states to react to violations of erga omnes nonns individually or collectively does not include the right to use military force, unless there is some pertinent authorization by the Security Council and unless the situation does not at the same time constitute one of self-defense. But what does "authorization" by the Security Council require? Bruno Simma32 said two years ago here in Kiel that "already the first step of Council action, namely the determination of the eristence of one of the three elements enumerated in Article 39 ... legally justifies the (non-military as weil as military) measures taken by member states against the aggressor, regardless of whether these measures are carried out on the basis of a mere Council recommendation or pursuant to a decision." This may have been meant, if read in context, merely to ''upgrade" recommendations to the Ievel of "authorizations." But one has certainly to add that Article 39 does not only speak of acts of aggression but also of threats to the peace. One could perhaps go one step further and say that all that is needed to justify the individual or collective reaction of states to the violation of an obligation erga omnes is the Security Council's determination that such violation constitutes a threat to international peace and security and hence falls under Chapter VII of the UN Charter, even if nothing eise follows. Such a determination by the Security Council would at least underline that states which react to the violation of an erga omnes nonn and thus in a given case intervene in the intemal affairs of another state do not do so exclusively for their own purposes, but in order to pursue a
Cf. the ICJ in the Diplomatie Hostages case, ICJ Reports 1980, 42. Delbrück (note 5), 712 et seq.; Barr:elona Traction case, ICJ Reports 1970, 3, 32; Nigel S. Rodley, Collective intervention to protect human rights and civilian populations: the legal framework, in: Rodley (ed.), To Loose the Bands ofWickedness, 1992, 14. 30 Christoph Schreuer, Comment, in: Delbrück (note 2), 147, 151. 31 Cf. ECOSOC res. 1503 (XLVIll) of 27 May 1970. 32 Simma (note 2), 138. 28 29
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public interest of the international community. We will come back later to the question of whether "own purposes" do play an inevitable role in any decentralized law enforcement. This possible extension of the term "Security Council authorization" has certainly to be qualitied under several aspects: The mere determination of the existence of a threat to international peace and security does not enable states to use force unless the Security Council has expressly authorized it. And subsequent measures adopted by the Security Council after the Article 39 determination, be they recommendations or decisions, should normally preempt states from going beyond those measures, even if their individual (and not erga omnes) right to take reprisals would go further. I said "normally" because there may be exceptions to that normality if the Security Council stays clearly behind what could be regarded as the appropriate and necessary non-forcible reaction of the international community to the violation of an erga omnes norm - staying behind not because the measure adopted is the minimum considered necessary by the Security Council, but because it is the maximum that could still avoid teiggering off a veto. Could states then go further in their reaction and do what the Security Council could and should have done? Could they impose, e.g., a total embargo where the required majority in the Security Council bad supported only a very partial one? I am inclined to answer in the affirmative. It is true that the UN Charter creates a system of collective security and that under this concept reactions to violations of erga omnes norms should belong to the community of states or actors authorized by the community of states, one of the main reasons for this being to prevent abuses in the name of international law. But it may also be argued that another reason why states have created a common organization for law enforcement and have transferred certain of their law enforcement rights to that body is that collective or centralized law enforcement is supposed to be more effective. A system of collective security should provide more, and not less, security. In other words: the right of centralized law enforcement brings a corresponding duty. And if erga omnes obligations belong to those which reside in the penthouse of the international law building, then they deserve at least the same amount of protection through enforcement asthat enjoyed for states' rights. One could perhaps conclude that community response, be it universal or regional, is desirable but not a necessary legal precondition for states to react in a nonforcible manner to the violation of an erga omnes norm, at least in cases where persistent and gross violations are concerned.33 State practice supports that view at least in part: after the hostage-taking of the diplomatic and consular personnel of the US embassy in Tehran, the EEC member states applied economic sanctions against Iran, although a respective draft resolution bad been vetoed in the Security 33
Frowein (note 3), 76 et seq.
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Council. These sanctions, which were individually (and quite differently) implemented by the EEC member states, had been coordinated, however, before in a non-binding manner within the framework of the European Political Cooperation. A legal necessity for that coordination under international law did not exist. 34 It may be that the stronger the coercive actions, the stronger the case would be for community action, 35 but as long as the action remains non-forcible, it is difficult to convert that statement into a legal precondition. The question remains as to whether the threshold for intervention with the aim to enforce obligations ~rga omnes is lower for a community of states than it would be for states in their individual capacity. Technically speaking, the threshold seems to be higher for the United Nations and maybe also for regional organizations, because their intervention presupposes an Article 39 situation, i.e., at least a threat to international peace and security. One can hardly say that every violation of an erga omnes norrn poses an actual threat to international peace. This is even true with respect to gross violations of fundamental human rights, as long as they remain within the territory of one state and affect a population or group of persons which does not have ethnic brothers and sisters on the other side of an international border, and as long as neighboring or other states abide by the doctrine according to which forcible humanitarian intervention, though adrnissible to the community of states, is not open to individual states. Christoph Sehreuer mentioned two years ago36 that Article 39 is probably too narrow to support Security Council intervention under any circumstances, that the concept of obligations erga omnes rnight be a useful starting point, but that to include contract debts as a ground for intervention would clearly go too far. On the other hand, the Security Council has made rather wide use of Article 39 in the recent past, and one rnight ask whether the Council did not exactly do what Sehreuer called "going clearly too far" in the Loekerbie case,37 in trying to enforce not a contractual debt but an obligation stemrning from a multilateral treaty, which as such clearly does not qualify as an obligation erga omnes. So, in practice, the threshold for UN intervention is certainly not insurrnountable. Simma has pointed out38 that legally nothing stands in the way of further steps by which the Council could steer a course toward adopting a still more dynarnic concept of peace and threats thereto by lirniting it to the very values that the notions of ius cogens and obligations erga omnes consecrate in a legal form. He has 34 Frowein (note 3), 74 et seq.; Torsten Stein, Die Gemeinsame Außen- und Sicherheitspolitik der Union unter besonderer Berücksichtigung der Sanktionsproblematik, Bd. 5 der Schriftenreihe des Forschungsinstitutes für Europarecht der Universität Graz, 1993, 1, 16 et seq. 35 Sehreuer (note 30), 140. 36 Sehreuer (note 30), 152. 37 Stein (note 22). 38 Simma (note 2), 143.
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also stated39 that it cannot be excluded that, in addition to the prohibition of aggression, further obligations erga omnes will in future be enforced under the umbrella of Chapter VII. If this is true, this inevitably Ieads us to the question whether every time the Security Council has recourse to Chapter VII a new (if not already existent) erga omnes obligation is bom which could also be enforced by individual states. Can states, e.g., as a consequence of Security Council Resolution 841 of 16 June 1993 on Haiti,40 in the futuregoout and use coercive measures short of the use of force in order to establish or reestablish democracy in another state? Could they, if necessary, even use force tothat end, as Malvina Halberstam suggests,41 without Security Council authorization and, under certain circumstances, even in the absence of arequest for assistance by the freely elected govemment? The answer, in my view, has to be a clear "no," not only because the Security Council has considered the circumstances in Haititobe "unique and exceptional." States cannot do everything the Security Council can do or does, even if there might remain some legal question marks. The more the Security Council interprets Article 39 in a "dynarnic" way, the less the obligations, which become thereby enforceable under Chapter VII, can be automatically equated with erga omnes norms. I have strong doubts whether the "emerging right to democratic governance"42 already corresponds to an obligation erga omnes. I would maintain that, in principle, the enforcement of erga omnes norms by measures other than the use of force is not an exclusive prerogative of the United Nations or of regional organizations, as desirable as a community reaction may be, but that enforcement by states in their individual capacity has to be limited to flagrant violations of erga omnes Obligations, whose qualification as erga omnes norms is beyond reasonable doubt.
V. Do States Have to Engage in "Decentralized" Law Enforcement? I have suggested earlier that the term "decentralized" law enforcement - in cantrast to "unilateral" or "individual" enforcement - should be reserved to situations in which "centralized" law enforcement is called for and, in principle, undertaken, but where states have to do the job. This is, for all practical purposes, the normal situation whenever the United Nations or regional organizations get down to law enforcement. The question then is if and to what extent states are obliged to enld. See now also SC res. 917 of6 May 1994. 41 Malvina Halberstam, The Copenhagen Document: Intervention in Support of Democracy, in: Harvard International Law Journal34 (1993), 163, 167. 42 See Thomas M. Franck, The Ernerging Right to Democratic Governance, in: Arnerican Journal oflntemational Law 86 (1992), 46. 39
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gage in such "decentralized" law enforcement. The answer depends on who is asking, upon the legal basis, and upon which action is envisaged. There can be no doubt that usually all members of the United Nations are bound to carry out measures not involving the use of armed force which the Security Council has taken under Article 41 of the Charter, unless the Council has called only upon some of them under Article 48(1). As far as I can see, the latter has never been the case with respect to non-forcible measures, such as embargoes. The obligation to carry out such measures flows from the Charter itself (Articles 25 and48). The situation is different if it comes to the use of force. There is certainly no obligation for UN member states to participate in peace-keeping operations, since the Charter is silent in that respect. As to military enforcement measures in the sense of Article 42 of the Charter, the first and well-known observationisthat no UN member state has so far entered into a special agreement with the Security Council under Article 43 of the Charter and that this is not likely to happen in the foreseeable future. The prevailing view on Article 43 seems to be that no UN member state shall reject the Security Council's invitation to enter into negotiations for such a special agreement a limine, butthat no state is under the obligation to accept a specific result or content of such an agreement. Notwithstanding the rather general recommendation by the Secretary-General in the "Agenda for Peace"43 that the Security Council should initiate negotiations in accordance with Article 43, the Council has so far never - at least openly - approached one or several member states in that respect, and the Secretary-General has acknowledged that forces under Article 43 are "not likely to be available for some time to come."44 His proposal to utilize "peace enforcement units," something between peace-keeping and Article 43 forces, 45 amounts to the admission that Article 43 is dead Ietter for all practical purposes. On the other band, nothing seems to preclude the Council - even in the absence of any agreement under Article 43 - from calling upon all member states under Article 48 of the Charter to carry out military enforcement measures in the sense of Article 42, or to call upon certain members, who have not previously indicated their readiness to become engaged. Instead, in the few instances where the Council has authorized the use of force, it has called upon "Member States [already] Cooperating with the Government of Kuwait,"46 has welcomed "the offer by a Member State . . . concerning the establishment of an operation to create . . . a secure 43 An Agenda for Peace, Preventive dip1omacy, peacemaking and peace-keeping. Report of the Secretary-Genera1 pursuant to the statement adopted by the Summit Meeting of the Security Counci1 on 31 January 1992, UN doc. N47/277 = S/24111 of 17 June 1992, para. 42 et seq. 44 Id., para. 44. 45 Id. 46 SC res. 678 of 29 November 1990, para. 2.
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environment" in Somalia47 or has invited "the force-contributing States to take ... all appropriate measures to strengthen the security of UNPROFOR" in ex-Yugoslavia.48 It is quite obvious that it were the cooperating, offering, or contributing states which bad decided to become engaged and not the Security Council. If one takes the text as such, Articles 42, 43, and 48 do not necessarily speak of the same situation. It is the almost unanimous opinion, based, inter alia, on the drafting history, that the Security Council cannot oblige states to put troops at its disposal in the absence of a previous agreement under Article 43.49 Without such agreement the Military Staff Committee will not be able to exercise its "strategic direction" according to Article 47 of the Charter. But do states which were called upon under Article 48 to carry out decisions of the Security Council with respect to Article 42 "place armed forces at the disposal" of the Security Council? Article 42 does not become inoperative due to the Iack of agreements under Article 43.5 Can (or does) the Security Council say, if it authorizes states to use all necessary means to restore international peace and security in a specific area: "I do not ask for troops at my disposal, I want a certain result and I want you to reach it"? Is that "deterrnination" then binding according to Articles 25 and 48 of the Charter?
°
To assume that member states would accept as binding a Security Council decision which tells them to become engaged with their troops without having officially or unofficially notified the Council that they are prepared to do so is hardly realistic, to say the least. But unless one can say that the basic philosophy behind Article 43, namely "no rnilitary engagement without prior consent," taints all other provisions of the Charter to the extent to which they could relate to the use of force, it is not excluded per se that the Council could take such a binding decision under Article 48. One could, e.g., imagine that the Security Council is convinced of the necessity of using force in a given situation, that only very few states have expressed their readiness to become engaged, and that the Council hesitates to accept that offer because the self-interest which those states have in the conflict is too obvious. Would it be acceptable if the Council exclusively authorizes Russia or Turkey to intervene rnilitarily in ex-Yugoslavia? One could also imagine that Third World countries are no Ionger prepared to accept that it is always the United States which uses force under Security Council authorization. Even if one has to conclude that the provisions of the Charter which relate or may relate to the use of force were given a somewhat different meaning through subsequent practice, it remains nevertheless apparent from these provisions that, in the intention of the drafters of the Charter, the Security Council should have some freedom of choice in authorizing SC res. 794 of 3 Decernber 1992, para. 8. SC res. 807 of 19 February 1993. 49 Cf. Jochen Abr. Frowein, [comrnentaries on] Art. 42, 43, and 48, in: Bruno Simma (ed.), Charta der Vereinten Nationen. Kommentar, 1991. so Frawein (note 49), [comrnentary on] Art. 42, para. 17. 47 48
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states to use force. lt would certainly add to the credibility of centralized law enforcement if the impression could be avoided that it is only some and mostly the same states which decide whether force will be used in the name of the United Nations or not. Chapter VII of the UN Charter and the possibility of obliging states to engage in decentralized law enforcement has no parallel in treaties establishing regional organizations, organizations whose main purpose is mutual assistance in case of an armed attack on one of the states parties. Even in that case, the primary obligation is qualified since each state remains free to choose such action as it deems necessary. It is an old joke that states could fulfill their obligation under Article 5 of the NATO Treaty by sending a telegram saying "We pray for you." And should NATO become engaged in law enforcement outside the NATO Treaty area -leaving aside the question whether NATO qualifies at all as a regional arrangement in the sense of Article 52 of the UN Charter - this would not in any way relate to the obligation under Article 5 of the Treaty. The question remains as to whether states, apart from their treaty obligations, must engage in decentralized law enforcement under general (customary) internationallaw, in particular if it comes to enforcing obligations erga omnes. States are certainly not obliged to enforce their own individual rights in case of violation. They can decide to turn the other cheek, even if the credibility and authority of international law in general might suffer if violations remain without consequences. But are states under an obligation to react to violations of erga omnes norms? It seems to be widely accepted that certain reactions would be obligatory, like non-recognition of situations or results created by such a violation as being legal, or the obligation not to render aid or assistance to the violating state.51 But there are certainly violations of erga omnes norms where reactions of that kind would be rather meaningless. There is, for exarnple, not much to recognize after gross violations of human rights have taken place. lt might be argued that there is no apparent need for an obligation to enforce erga omnes norms under general internationallaw, since the primary responsibility to react to such violations lies with the United Nations, and the Security Council can oblige states to react by taking a corresponding decision under Chapter VII. But we know that the Security Council might be unable to agree upon such a decision; and we know that, whenever a regional organization calls upon member states to react to the violation of an erga omnes norm which does not constitute the casus foederis under the treaty of alliance, such a call would not be binding.
If one accepts that erga omnes rules are those which embody higher values and that the enforcement stage constitutes the moment of truth for the concept of Obligations erga omnes, one might be inclined to advocate a general international law 51 Frowein (note 3), 77; Sehreuer (note 30), 176; Mary Ellen O 'Connell, in: Delbrück (note 2), 155.
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obligation of all states to enforce erga omnes obligations by non-forcible means. But such an obligation would be without much practical value, because non-compliance would remain without consequences. State responsibility presupposes the violation of a specific obligation, and unless the Security Council has specified reactions to the violation of an erga omnes norm in a decision under Chapter VII, states would at best be obliged under general international law to take such action as they deem necessary. This is hardly an enforceable obligation. There might be a moral duty of all states to react to violations of erga omnes norms, even in the absence of a Security Council decision, and pertinent non-forcible reactions would be justified, but it is at least very difficult to turn that moral duty into a meaningful legal Obligation.
VI. Centralized "Command and Control" over Dezentralized Law Enforcement? We have so far dealt with the question of "if' and under what circumstances states have to engage at all in decentralized law enforcement. Another interesting question in that context is to what extent they have to accept centralized "command or control" over their decentralized law enforcement actions and to what extent they remain free to decide "how" to do the job. lt is an indisputable fact that the international system will for the foreseeable future have to rely on states as the only operational units in that system.52 Ifthe Security Council decides to impose a partial or complete embargo on one or more states, it can only be enforced through the export control mechanisms of all the other states. The Council, however, retains control over "how long" the measure should apply. So the Council imposed an embargo upon Haiti on 16 June 1993,53 suspended it on 27 August 1993,54 and decided to terminate the suspension on 13 October 1993.55 But apart from identifying the goods and services which were to be covered by the embargo, there is not much the Security Council could decide on "how" the embargo is going to be executed. "Deeply concerned about reports of violations" of the [embargo] measures imposed on ex-Yugoslavia, the Council, acting under Chapters VII and VIIT of the Charter, called upon states, acting nationally or through regional agencies or arrangements, to use such measures commensurate with the specific circumstances as may be necessary under the authority of the Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destina52 lost Delbrück, Staatliche Souveränität und die neue Rolle des Sicherheitsrates der Vereinten Nationen, in: Verfassung und Recht in Übersee 26 ( 1993), 6, 20. 53 SC res. 841 of 16 June 1993. 54 SCres. 861 of27 August 1993. 55 SC res. 867 of 23 September 1993.
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tions and to ensure strict implementation of the provisions of Resolutions 713 (1991) and 757 (1992). 56 This resolution, however, quallfies only in part as an example of the Council's control over "how" embargo decisions are implemented. The Council did not call on "all States" or several specific states, but on "States" (and one has to add: "already") acting nationally or through regional agencies or arrangements. These states apparently bad previously notified the Council as to their readiness to move from simply counting maritime traffic to controlling it, if necessary, by using force. If it comes to the use of force, centralized "command and control'' appears to be in generat very limited. We have already seen that the Security Council in practice depends upon the prior consent of one or several states before it can authorize the use of force and reasonably expect compliance with that authorization. Correspondingly, it is not in all cases the Security Council which has control over the duration of forcible decentralized law enforcement. States which bad previously "offered to create a secure environment" in Somalia apparently later on decided unilaterally, if not against the wish of the Secretary-General, to end that engagement at a moment at which there was nothing to indicate that they would leave behind a stable, secure environment.
There should, on the other band, be no doubt that the use of force authorized by the Security Council has to come to an end whenever the Council so decides. The somewhat abrupt termination of the operations of the coalition against lraq in the Gulf War, which some have critizised as having been premature, might as weil have been motivated by political considerations about the future balance of power in that area as by the desire to avoid a Security Council decision withdrawing the authorization. But again, this does not have to be true in all cases. If the Security Council withdraws its authorization under Article 48 of the Charter to use force against an anned attack while the attack is ·going on, the war has not come to an end, and peace and security have not yet been re-established, states, in my view, could continue their operation, now basing their enforcement action on Article 51 of the Charter. This might, of course, entail some limitations: The authorization in Security Council Resolution 678 to restore international security in the area did cover the attempt to reduce Iraq's capabilities for a renewed attack; the right to collective defense would have ended after the last enemy soldier bad been pushed back over the border. Apart from fixing the beginning57 of the authorization to use force, the Security Council so far exercised little, if any, influence upon the way in which states implemented the decision. In Resolution 678, the Council requested the states cons6
SC res. 787 of 16 November 1992.
s1 In SC res. 678 of 29 November 1990, the Security Council authorized the use of "all
necessary means" as of 16 January 1991. In SC res. 794 of 3 December 1992 the Security Council authorized the use of all necessary means "to establish as soon as possible" a certain result ("Secure environment").
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cemed to keep the Council regularly informed on the progress of actions undertaken,58 but did not, as far as I can see, try to influence the operations. In the case of Somalia, the Council authorized the Secretary-General and the member states concemed to make the necessary arrangements for the unified command and control of the forces involved, arrangements "which will reflect the offer" previously made. 59 The offer referred to was the American offer to establish an operation to create a secure environment, and the arrangement then made reflected that offer by designating a retired American admiral as the special envoy of the Secretary-General, besides which the Turkish "UN Commander" never played any decisive role; US troops remained under national command during the entire operation. Apart from that, the Council requested a report on the implementation of its resolution and the attainment of the objective of establishing a secure environment.60 In Resolution 787, which authorized measures necessary to halt and inspect maritime shipping to and from Serbia and Montenegro, the Council requested the states concemed to coordinate with the Secretary-General inter alia on the submission of reports to the Security Council regarding actions taken in order to facilitate the monitorlog of the implementation of the resolution.61 From this it is quite clear that, after authorizing the use of force, the Council never seriously tried to interfere with the operations conducted on the basis of that authorization and the way in which they were conducted. lt appears to be equally clear that states which have agreed to become engaged in decentralized law enforcement would hardly accept such interference. The US Ambassador to the United Nations is quoted as saying 'The larger the US troop commitment to a UN operation, the greater the requirement that US forces be commanded by a US commander. In any event, the President will maintain direct lines of command down to the foot soldier, and American troops will be subject to withdrawal at wi11."62 This probably holds true for other nations as weil. 1t might be desirable that each enforcement operation involving military means should have a UN commander on the scene in order to make that operation truly and visibly international. But tying states engaged in decentralized law enforcement too closely to a detailed mandate and to an operational command which they regard as being "foreign" might risk reducing their readiness to become engaged at all. 1t is perhaps not without reason that the Security Council, when authorizing military operations, has so far used the term "all necessary means," leaving it to the states to decide what is necessary under the prevailing circumstances. What is essential, however, is that the decision to use force as such has to be not the decision of individual states but a decision of the community of states, i.e., a decision of the Security Council. ss SC res. 678 of29 November 1990, para. 4. 59 SC res. 794 of 3 December 1992, para. 12. 60 Id., para. 18. 61 SC res. 787 of 16 November 1992, para. 14. 62 Phillip J. Collins, ASIL Capitol Hill Briefing Heldon U.S. Role in UN Peace-keeping, in: ASIL Newsletter November-December 1993, 15 (16).
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VII. Concluding Remarks
If we take all this - and there are certainly many other aspects which might come under consideration - the role of states as law enforcement agents may be characterized as follows: States have an inherent right to individual or collective self-defense, which is not to be sacrificed on the altar of merely theoretical centralized law enforcement. States have the right to enforce erga omnes obligations by all proportionate means short of the use of force if the erga omnes character of the obligation is beyond reasonable doubt. States are obliged to enforce an erga omnes obligation only if the Security Council takes a corresponding decision under Chapter VII of the UN Charter. States may not use force in order to enforce internationallaw other than in a situation of self-defense, unless authorized by the Security Council. States may theoretically be obliged to engage in forcible law enforcement on the basis of a decision of the Security Council under Article 48 of the Charter, but for all practical purposes such engagement will require their previous consent. States are relatively free in deciding how to conduct an enforcement operation. To sum up, states still seem to enjoy a rather wide freedom to decide according to their own interests whether or not to engage in decentralized international law enforcement. The fact that international law has opened up the possibility for states to enforce, apart from their own rights, also obligations erga omnes, has not converted states into mere "public interest lawyers." To accept also a certain amount of self-interest in the enforcement of erga omnes norms seems to be the price for having decentralized law enforcement at all. To prevent this resulting in a return to unilateralism is the task of the Security Council, a task to be fulfilled by making appropriate use of Chapter VII of the UN Charter.
Comment Mary Ellen O'Connell* As Fred Morrison did, I also want to organize this comment in the form of answers to questions. However, I think: Torsten Stein and I were given not five but rather one question to answer, which is implied in the title of our paper. Our title "Decentralized International Law Enforcement: the Changing Role of the State" implies the question, "Has the role of the state changed in international law enforcement?" Professor Stein gave us part of the answer. He said the role has not changed terribly much: They are flying the UN flag now, yet, in reality, if you look under that flag, the deep picture is not so very different from 50 years ago. I agree with that assessment. On the other hand, if you look at the generat enforcement of internationallaw (and ours was the only paper in the two conferences that does not specifically refer us to Chapter VII or Vill and peace enforcement), you find that the role of the state with regard to peace enforcement has in fact changed much more than in the other areas of law enforcement in international law. I want to show the changing role of the state in peace enforcement by comparing that area of enforcement with the other classical areas of enforcement of international law by states. In addition to the use of force, states enforce international law through the use of countermeasures and by borrowing domestic enforcement means. With regard to the use of force, this has been the area, frankly, of greatest change in the role of the state in law enforcement. The great change was drafted in 1945 in Article 2(4) and in Article 51 of the UN Charter and in the whole scheme of Chapter VII, which gave the Security Council, as opposed to individual states, the responsibility to respond to threats to the peace and acts of aggression by states. Representatives at San Francisco discussed whether the Security Council should not be given an even larger role in law enforcement. 1 They discussed making the Security Council a generat enforcer of the law, but agreed instead not to change the existing law to this extent. Generallaw enforcement would remain with the individual state in the decentralized enforcement system that international law had always had. So while the change at San Francisco was significant for states, it
* Mary Ellen O'Connell, Associate Professor of Law, IDdiana University Schoo1 of Law, B1oornington; Visiting Professor at University of Munich. I Oscar Sclwchter, International Law in Theory and Practice, 1991, 185.
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was not as great as it could have been. Al Rubin told us why two years ago: 2 Outside the European Community, states have simply not been interested in giving up the prerogative to make their own assessment as to what the law is and to respond to violations as they wished. That prerogative was not given up at San Francisco, except in the area of the use of force. States did give up the right to use force to enforce general rights in international law at San Francisco. They had done so under other legal formulas earlier, but it was clear with the adoption of Articles 2(4) and 51 of the UN Charter that states would be restricted to using force to exercise their right of self-defense and other uses were thenceforth excluded. The Security Council was given the authority to respond to acts of aggression and threats to the peace. Due to the veto, as we have discussed so often, that change in how the enforcement picture was supposed to look for states did not really begin to occur until four years ago. Since then the Security Council has finally come on the scene and begun to authorize collective responses to uses of force. lbis package of changes represented by the Charter and its recent effectualization represent a dramatic change for the role of states in responding to violations of the law from earlier times. Nevertheless, I have to agree with Professor Stein that it is not as great a change as should have occurred after 1945. The idea of having troops available to the United Nations under Article 43 has not been fulfilled, and I agree with Professor Stein that it is very unlikely to be fulfilled. The position of the United States seems to make it entirely unlikely. The Clinton administration has come out consistently with past adrninistrations as unwilling to commit troops or to push for the formation of the United Nations legion, as was contemplated originally under the Article 43 agreements. We have not even gone so far as to give command and control of UN operations to the United Nations, as Professor Stein explained, and, again, the United States has to be pointed to as one of the main culprits, if not the main culprit opposing a larger UN role. The United States made it clear that it would not submit to control by officers outside of its own military structure. So we have to conclude, I think, that the ability or the chance of having a truly progressive, community-oriented response to violations of the most important rule of international law, Article 2(4) of the UN Charter, has notchangedas much for states as might have been, at one time, hoped. On the other side of the coin, I think, we should recognize that there has been rather remarkable progress in the last four years. Ten years ago we would never have thought so much would occur. One point where I would take a different position than Professor Stein, however, concerns the change for states in the last four years with regard to self-defense; states must now reckon with the Security Council's new activism. Professor Stein, however, believes that states are free to act regarding their self-defense. I think 2 Alfred P. Rubin, Comment, in: lost Delbrück (ed.), The Future of International Law Enforcernent, New Scenarios- New Law?, 1993, 57 et seq.
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they are free to act, until the Security Council takes effective measures. I think that the words "until the Security Council acts" do have meaning in Article 51 of the UN Charter. The example that Professor Stein gives, the embargo with regard to former Yugoslavia, is a concrete example that the Security Council also thinks that it can take actions even against the will of the victim state. Other examples from the Iraqi invasion of Kuwait reinforce the Bosnian example. For instance, the Security Council put a Iimit on when force would be used as a response to the initial aggression. Kuwait bad to wait, therefore, until January. lt was not free to take enforcement action in November or December. Had it done so, it would have been in violation of the obligations imposed by the Security Council to wait until January_3 Additionally, the Security Council made the decision as to when the war would end. I question whether Kuwait, if it bad decided that it wanted the war to end sooner, could have negotiated for peace without the United Nations. Professor Stein went on to talk about how we know when the Security Council has taken effective measures, as required in Article 51, before a state's freedom of action is suspended. I would suggest that this is another area of Security Council discretion, similar to the Security Council's discretion in Article 39 to determine for itself whether it is responding to a threat to international peace. Whether measures are effective is a discretionary decision. Ironically, Bosnia's case at the International Court of Justice backs up this position because Bosnia, in its provisional measures request, asks the International Court of Justice to find that the Security Council's resolution4 in the case is ultra vires or null and void. Bosnia wants other states to assist in its self-defensive actions against Serbia, either by sending troops, weapons, or other support.5 The implication of Bosnia's request to the Courtisthat Bosnia does not believe, as long as the Security Council resolution remains prima facie valid, that it has the right to make requests for assistance or to obtain weapons on the international market independently of the Security Council, even for its self-defense. Of course, Bosnia has been acquiring weapons in violation of the Security Council's embargo, but I think it would prefer to have the International Court of Justice rule that the embargo is not legally binding. Bosnia believes the Court can find the Security Council resolution invalid or null and void because it believes the effect of the resolution is to aid in genocide by preventing the Muslims from adequately defending themselves. 1t is on this line of argument that Bosnia believes the embargo is no Ionger valid, and not because the Security Council has no right to Iimit Bosnia's self-defense. Finally, regarding the use of force, it may be that the role of states has changed in substantive terms. Professor Stein says that, if the Security Council can now act in a broader range of areas than it could earlier (for example, by adding human See SC res. 678 of 29 November 1990. SC res. 713 of 25 September 1991. s See Case Conceming Application of the Convention on the prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Order of 8 April 1993; Order of 13 September 1993, ICJ Reports 1993, 3 and 325. 3
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rights violations to the category of threats to international peace in the sense of Article 39), do states now also have the right to respond to violations of massive human rights with the use of force? I find it ironic that, as I understood Professor Stein in bis spoken comments, some would argue, because the Security Council is now acting in the human rights area and enforcing human rights, that this would give states a greater right to do so as weil, that they would also be able to respond with the use of force in those cases where the Security Council is not acting effectively. It is ironic because, as I recall the old arguments on humanitarian intervention, they were also effectiveness arguments. They were made in the context that the Security Council, because it was not acting effectively, left to the states the right to use force to respond to important international values. But now that the Security Council is acting in these areas and is more effective certainly than earlier, I would think that we would draw the opposite conclusion: that any old argument based on effectiveness with regard to individual states is finally dead and that states do not have the right to use force even in response to erga omnes violations, except in response to aggression and then only until the Secutity Council acts. I would think that in the human rights area there is no change for states and certainly none in an area such as contract debt. Indeed, I am not really sure why we talked yesterday about the Lockerbie case as supporting the argument of the Security Council going so far as to enforce contract debts. 6 The Security Council was not meant to be a generat law enforcer. It has expanded its enforcement role to the area of human rights but. I think, no further. The Security Council would characterize the Lockerbie case, of course, as a response to state terrorism or use of force, and not as enforcement of generat extradition law or response to violations of international law outside its traditional scope of authority. I wrote some years ago that I thought even in the area of enforcing human rights that the Security Council has not rushed quickly to expand its authority. I think that only Haiti is a clear example where there is no hint of consent to enforcement, no question that the entity is a sovereign state, and where there is no military threat to neighbors, but that, nevertheless, the Security Council has chosen to take action. With Haiti, the Council's role has been expanded, but, also in line with our discussion yesterday, I wonder how often this experiment is going to be repeated by the Security Council. As far as we have seen, the Security Council is running away and not expanding its scope of authority. I think that the Iack of resources available to the Security Council and its Iack of success in Haiti suggest that we will not see much more expansion of the Security Council's scope of enforcement authority. I would argue, a fortiori, that individual states have not gained any greater enforcement rights than the Council itself, and, indeed, they remain within the confines of using force for self-defense. 6 Case conceming Questions of Interpretation and Application of the Montreal Convention Arising from the Aeriallncident at Lockerbie (Libya v. United States ), Order of 14 April 1992 with Regard to the Request for the Indication of Provisional Measures, ICJ Reports 1992, 3 and 114.
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This last observation, however, does not contradict the thesis here that the only major change for states in law enforcement has been with regard to the use of force. After 1945, states were largely confined to the use of countermeasures when they wished to take forceful action to enforce the law. Regarding countermeasures, the changes for states are very minimal as compared to the changes with regard to enforcing against uses of force. I think in fact that the only real change with regard to countermeasures is in the subject matter area. In the last 50 years, states have gained the right to respond to erga omnes violations. I would add, in addition to erga omnes, states are also able to respond to violations of environmental laws to protect the global conunons. Other expansions with regard to countermeasures, I think, have not occurred. The International Law Commission is currently involved in an effort to try to Iimit the ability of states to use countermeasures. (That may be somewhat aimed at the United States.) But countermeasures arealready quite limited in their usefulness. They are limited in terms of procedure: you have to make arequest before you impose them; the substantive area is limited because of the requirement of an injury, and so on. Most of all, countermeasures are limited as a practical matter because very few states have control of assets or other means to really put pressure on second states through countermeasures. The United Stetes is one of the few countries that, because of its trade and control of assets, is in a position to use countermeasures and probably does so more than any other state. The United States would resist any Iimits on its ability to use countermeasures. Countermeasures have not changed very much in 50 years except that states can now use them to enforce erga omnes obligations. I agree with Professor Stein that states do not have any duty to use them to enforce these obligations. Certainly, there is no state practice supporting such an obligation. Would further expansion of the right to use countermeasures be better or worse for the international conununity? Grotius, for example, suggested the idea that every state has the right to engage in assisting any other state that was the victim of a violation of international law. If states that control assets could aid victim states in using countermeasures, we would get a Iot more enforcement of basic principles of international law. On the other band, abuse of countermeasures by states acting unilaterally is the reason given by the International Law Commission for limiting the use of countermeasures.7 Expanding the use of countermeasures risks a more chaotic world, a more contentious world than we already have. This risk will probably continue to Iimit the right of states to aid in third-party enforcement of generat international rules. On the other band, with regard to the last area of enforcement, domestic enforcement, the possibility or the legality of the state aiding in third-party enforcement is much broader than in the area of countermeasures. For example, I believe that domestic courts may aid in the enforcement of judgments awarded to third states.8 7
See Gaetano Arangio-Ruiz, Fifth Report on State Responsibility, UN doc. A/CN.4/453
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Internationalcourtsand tribunals do not have much enforcement capacity. Where the will to comply does not exist, the parties have to turn somewhere eise to actually get enforcement. While the Security Council can enforce ICJ decisions, it never has, often for political reasons. In the pending case of Bosnia v. Yugoslavia, if Bosnia were to win money damages, I wonder whether the Security Council would help with enforcement. Bosnia would be better off going to another state's domestic courts. The new International Criminal Court, too, is probably going to have to rely on domestic enforcement measures to get enforcement. It is in the area of domestic court enforcement that, I think, internationallaw has the greatest chance of achieving some progressive development. To date, as with countermeasures there has been little change and little progress. The possibilities for domestic enforcement were at least mooted in two cases in the last half century, in the Rose Marl and Filartiga 10• F. A. Mann discusses the Rose Mary in an article on delinquencies before municipal courts. He uses the Rose Mary as an example of a court of state A attaching the assets claimed of state B and awarding them to state C because B bad violated international law. This is Stretching somewhat because the Rose Mary was heard in the Court of Aden, a colonial court which is not truly distinct from Britain, which was making the claim against Iran, which bad sailed a ship full of oil into the port of Aden. But the idea that you could actually attach assets in rem and enforce international legal principles through the courts of third parties at least offers an exciting possibility for internationallaw enforcement. In Filartiga, a court in the United States heard a human rights claim by citizens of Paraguay against a Paraguayan govemment official. Similar cases enforcing the rules on nationalization in international law, enforcing judgments, protecting human rights, aiding in non-recognition of international violations through domestic courts all suggest the possibilities for changing the role of the state in enforcement. Domestic courts can avoid the abuse of countermeasures. But we all know only too weil that these cases are few - we do not have regular domestic court enforcement of general internationallaw norms. Domestic courts do enforce most of internationallaw, but we know that that is the enforcement of international law against the court's own citizens or the court's own govemment. 11 Most states have raised burdies in the form of sovereign immunity, act of state doctrine, and so on, to enforcements against foreign govemments. In Germany, for 8 See Mary Ellen O'Connell, The Prospects for Enforcing Monetary Judgments of the International Court of Justice, in: VIrginia Journal of International Law 30 ( 1990), 891. 9 The Rose Mary, Weekly Law Reports 1953, vol. 1, 246. 1o Filaniga v. Pefia-lrala, 630 F.2d 876 (2d Cir. 1980). 11 Although in the case of the United States I am not sure how rnuch international law is ever going tobe enforced against the courts' own state, since the juvenile death penalty cases and the kidnapping cases soggest that United States courts are not going to do very rnuch about enforcing custornary law against the United States govemrnent.
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example, it is not possible to have an in rem action regarding assets that are temporarily located in its jurisdiction. So, the Rose Mary type of case would probably not be possible. The one area where domestic courts seem to continue to do an effective job enforcing generat internationallaw outside the narrow area of a state's own citizens is in the war crimes area. This area of domestic enforcement is getting a new lease on life. Germany is currently preparing an indictment of a Serbian for war crimes in Bosnia. If the International Criminal Court does not hear this case, it will be tried in Germany, just as so many other war crimes trials since the end of World War li. In conclusion, greater expansion of enforcement through domestic courts, while seemingly unlikely, would be a positive development for international law. But until now we have seen little change in the role of the state in law enforcement in the area of domestic enforcement. Nor have we seen change in the rules on countermeasures. Only in the drafting of the Charter and the revival of the Security Council do we see a change in the role of states.
The Impact of the Allocation of International Law Enforcement Authority on the International Legal Order Jost Delbrück* I. lntroduction
Present-day internationallegal and political science Iiterature as weil as political declarations uttered under the authority of the UN Security Council, the UN General Assembly, and major political organs of regional organizations are replete with descriptions of qualitatively new challenges to international peace and security and to the general welfare of humankind. 1 Many of the new conflict seenarios are perceived in global rather than international dimensions.2 As a reflection of these new threat perceptions, a voluminous Iiterature has turned on the examina-
* Professor Dr. lost Delbrück, Director of the Institute of International Law at the University of Kiel; Visiting Professor at lndiana University School of Law, Bloornington. I For an able methodological discussion of scenario building and a proposition of six threat scenarios, see W. Michael Reisman, New Scenarios of Threats to International Peace and Security: Developing Legal Capacities for Adequate Responses, in: lost Delbrück (ed.), The Future of International Law Enforcement. New Scenarios- New Law?, 1993, 13; for a description of future threat scenarios, see also lost Delbrück, Globalization of Law, Politics, and Markets, in: lndiana Journal of Global Legal Studies 1 (1993), 9, 14- 15; Michael Stürmer, Globale Aufgaben und Herausforderungen: Die schwierige Suche nach Weltordnung, in: Aus Politik und Zeitgeschichte. Beilage zur Wochenzeitung Das Parlament (APUZ) B 15- 16/93, 3, 6- 7; seealso the short discussion of a necessary peace research agenda including an enumeration of possible future threat seenarios by Dieter Senghaas/Michael Züm, Kernfragen für die Friedensforschung der neunziger Jahre, in: Politische Vierteljahresschrift 33 (1992), 455. From the point of view of political practice see closing statement of the President of the UN Security Council, the British Prime Minister lohn Major, on the occasion of the meeting of the Heads of States and Heads of Governments of the members of the Security Council on 31 January 1992 (UN doc. S/23500}, which emphasizes sirnilar threat perceptions. 2 See Winrich Kühne, Friedenssicherung durch die Vereinten Nationen in einer Welt ethno-nationaler Konflikte, in: APUZ B 15 - 16/93, 9, 11 - 12; Dieter Senghaas, Zwischen Globalisierung und Fragmentierung. Ein Beitrag zur Weltordnungsdebatte, in: Blätter für deutsche und internationale Politik 38 (1993}, 50; Senghaas/Züm (note 1}, 461; Delbrück, Globalization (note 1), 14- 16; with regard to environmental threats, see Alfred C. Aman, The Earth as Eggshell Victim: A Global Perspective on Domestic Regulation, in: Yale Law Journall02 (1993), 2107.
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tion of existing or required international (or global) authorities which are or would be capable of meeting the various serious challenges of the near and long-tenn future. 3 This latter body of predominantly, but not exclusively, scholarly treatments of the subject4 has focussed on the political capabilities of individual institutions (universal or regional - the UN Security Council, the CSCE). Less frequently, these contributions to the present debate on how to meet the forthcoming challenges of the end of the 20th and the beginning of the 21st century have treated the problern of adequate allocation of international or global authority (lawmaking and law enforcment) in the international system in a comprehensive conceptual framework. Still fewer contributions have addressed the question of what is or will be the impact of the allocation of such authority, and its widening scope, on the nature of the international legal order and specifically on basic concepts of this order, such as the nation-state, state sovereignty, and the basis of the binding force of internationallaw.5 The present symposium has attempted to cope with these problems from the universal (UN), the regional, and the nation-state perspectives. Divergent views have been expressed ·with regard to what the role of international law is, if any, in the process of establishing an internationaVglobal order. This final presentation starts with the premise that meeting the new challenges within the framework of an internationaVglobal order definitely requires a rule of law-based order, i.e. the premise that law does matter in a New World Order.6 Furthennore, this paper is based on the premise that the allocation and development of international authority, and par3 See, for example, Winrich Kühne (ed.), Blauhelme in einer turbulenten Welt. Beiträge internationaler Experten zur Fortentwicklung des Völkerrechts und der Vereinten Nationen, 1993; Wolfgang Heydrich et al. (eds.), Sicherheitspolitik Deutschlands. Neue Konstellationen, Risiken, Instrumente, 1992; with particular emphasis on a new role of forcible intervention by the international community, specifically the United Nations, see Klaus Dicke, Intervention zur Durchsetzung internationalen Ordnungsrechts, in: Jahrbuch für Politik 1993, 260, with further references; lost Delbrück, A Fresh Look at Humanitarian Intervention under the Authority of the United Nations, in: Indiana Law Journa167 (1992), 887; Mary Ellen O'Connell, Continuing Limits on UN Intervention in Civil War, in: Indiana Law Journal 67 (1992), 909. 4 For an example of an important political assessment of the exercise of international and/ or global authority see Agenda for Peace (UN doc. S/24111 of 17 July 1992) prepared by the Secretary-General of the United Nations Boutros Boutros-Ghali on the request of the Summit Meeting of the Heads of States and Governments of the members of the UN Security Council of 30 J anuary 1992. 5 A notable exception is lames N. Rosenau's The United Nations in a Turbulent World, 1992; taking up on Rosenau, seealso Kühne, Friedenssicherung (note 2), 11- 12; for a tentative and short discussion of the implications resulting from the profound changes in the international system for the nature of international law and the concept of the nation-state, see lost Delbrück, Wirksameres Völkerrecht oder neues "Weltinnenrecht"? Perspektiven der Völkerrechtsentwicklung in einem sich wandelnden internationalen System, in: Kühne, Blauhelme (note 3), 101, 128- 131.
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ticularly of law enforcement authority, has a profound impact on the character and basis of the international legal order. Just as Wolfgang Friedmann in bis ''The Changing Structure of Internationallaw" observed that the new social and political needs, wbich he could identify at bis time, led to a two-pronged set of international law - the traditionallaw of state-coexistence and the internationallaw of cooperation7 - today we may be able to discern major structural changes, or a trend towards these changes, in the present internationallaw as a reflection of the qualitatively new needs and problems of an increasingly global international community. Sketcbing out these changes or trends and analyzing them will form the subject of this paper. The paperwill approach this difficult task in three stages: At the outset, the paper will try to take stock of the understanding of the international legal order up to the mid-1980s and the watershed ofthe 1989/1990 political and structural changes in the international system. The second part will then bighlight the process of rethinking some of the basic notions of the international legal order. These will include the process of internationaVglobal lawmaking, the exercise of international law enforcement authority de lege lata, proposals for the exercise of such authority de lege ferenda, and ultimately the impact of the observed changes or trends towards changes on the concept of sovereignty or the traditional nation-state, respectively. In conclusion, I will attempt a summary of the tentative findings as to the impact of the new developments on the nature of internationallaw.
II. The International Legal Order from the Pre-mid 1980s Perspective - The AUocation and Scope of International Law Enforcement Authority in Partiewar
In order to draw clearly visible lines of distinction between stages of social development, one is prone to overstate the specifics of the stages concerned. If one sets out to characterize the momentum of change assumed to take place in a preferred direction, one is likely to emphasize the shortcomings of the earlier stages of development and to get caught by "'imaginative' daydreaming or gullible selfhypnosis" - states of mind wbich are "most distinguished by having been dis6 On the relationship between the rule of law (Rechtsstaatlichkeit) and the building and maintenance of peace, see Dieter Senghaas/Eva Senghaas, Si vis pacem, para pacem. Überlegungen zu einem zeitgemäßen Friedenskonzept, in: Leviathan 20 (1992), 230, 231 - 235; it is also to be remernbered that "peace" is not only a political concept but also a legal status, Jost Delbrückl Klaus Dicke, Zur Konstitution des Friedens als Rechtsordnung, in: Uwe Nerlich/rrutz Rendtorff (eds.), Nukleare Abschreckung. Politische und ethische Interpretation einerneuen Realität, 1989, 797. 7 See Wolfgang Friedmann, The Changing Structure of International Law, in: Richard Falk/Friedrich Kratochwil/Saul Mendlovitz (eds.), International Law: A Contemporary Perspective (Studies on a Just World Order No.2), 1985, 142, andin: The Changing Structure of International Law, 1964, 60.
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proved by two world wars."8 With this "caveat" in mind, Iet us Iook at the postWorld War II period up to the mid-1980s. 1. The Overall Perception of International Law and the International System Prior to the Mid-1980s
Some major structural elements of the post-World War II internationallaw and the international system were already in the making during the last decades of the 19th and the first four decades of the 20th century.9 Such ernerging elements as the creation of international organizations, the increasing acceptance of an international responsibility for peace and security, and the extension of the substantive rules of international law to almost all areas of political, economic, social, and cultural activities signified the end of the so-called classical period of international law. 10 They also became the characteristic features of the era of modern internationallaw, particularly after World War II. 11 The grand design of the post-war international system and its modern legal order was laid down in the Charter of the United Nations 12 and was supplemented by the statutes or constitutions of the other international organizations of the UN family. 13 The post-war international order was conceived in terms of the internationalization of the task to maintain international peace and security, and in terms of the institutionalized international cooperation of states in ever extending fields of state activities. The core innovation of this order was to be a drastic reduction of the scope of state sovereignty through the Security Council's power to issue binding decisions and to see to their - ultimately military - enforcement under Chapter VII of the UN Charter. 14 However, this concept was not puristicly pursued even by the Ietter of the Charter. Whereas state sovereignty under specific circumstances could be drastically curtailed on the one band, sovereign equality of all member states 8 9
§1.
Quoted from Georg Schwarzenberger, A Manual oflntemational Law, 6th ed. 1976,311. See Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, vol. Jll, 2nd ed. 1989,
Dahm/Delbrück/Wolfrum (note 9), 10. id. 12 Charter of the United Nations, signed at San Francisco 26 June 1945, entered into force 24 October 1945, as amended in 1963 (entered into force 31 August 1965) and 1968 (entered into force 12 June 1968), text in: UN Yearbook 1969, 953 ; another amendment (Article 61(3)), increasing the number of members of the Economic and Social Council to 54, was adopted on 20 December 1971 by GAres. 2847 (XXVI). 13 Fora concise survey of these organizations, see Eckart Klein, United Nations Specialized Agencies, in: Rrulolf Bemhardt (ed.), Encyclopedia of Public International Law (EPIL), instalment 8 (1983), 349. 14 See lost Delbrück, [Comrnentary on] Art. 24, in: Bruno Simma (ed.), Charta der Vereinten Nationen. Kommentar, 1991, 364. 10
II
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was one of the core principles of the UN Charter (Article 2(1)) on the other. The very fact of this dichotomy lends the concept of a new modern world order to different interpretations ranging from visionary "world government" dreams to power politics-oriented skeptical "old wine in new bottles" interpretations, the so- called realist approaches. 15 The Cold War never let the UN Charter concept develop to its full potential. For well known reasons, Chapter VII of the Charter, but for a few exceptional instances, remained unused. Sovereignty once again became the leading international legal paradigm for many states, and bipolarity the leading structural paradigm of international relations, thus vindicating much of what power politics adherents bad observed or predicted about the essence of the "new" post-war order. Such assessment of the post-World War li era would, however, be too one-sided and incomplete; for, as will be shown, the bipolar structure in its nuclear dimension inherently transcended the traditional power politics concept and the traditional perception of the role of the nation-state 16 and already pointed towards a global interpretation of the existing international system. The picture drawn ofthe international political and legal system during the postWorld War li period is thus far incomplete. lt does not mention the changing role of states, not just of small and medium-sized powers, but also of the great (super)powers. One may characterize this change by the formula coined by Friedmann, who once said that in the present world to "co-operate or perish" has be-
15 See Hans J. Morgenthau, The Nature and Limits of a Theory of International Relations, in: William T. R. Fox (ed.), Theoretical Aspects of International Relations, 1939, 15; Hans J. Morgenthau, Politics Among Nations, 1948 (German edition: Macht und Frieden. Grundlegung einer Theorie der internationalen Beziehungen, 1963); Georg Schwanenberger, Power Politics. A Study of World Society, 3rd ed. 1964, 4, who states that "if a system of power politics is not actually replaced by an international comrnunity proper bot continues on the same basis as before in the cloak of a community, such a state of affairs may be described as a system of power politics in disguise." From the context it is quite clear that Schwanenberger sees the League of Nations and the United Nations as confederations of states bot not yet as international comrnunities proper. This interpretation is corroborated by Schwanenberger's observation that "[o]n the face of it, internationallaw under the Charter of the United Nations presents a very different picture from dassie international law. Yet, in fact, world order under law exists without major reservations only for the bulk of the members of the United Nations. In relation to the world Powers, internationallaw is still very much where it stood in 1914," quoted from Schwanenberger, Manual (note 8), 309; for a concise summary of the premises and goals of the realist as weil as the neo-realist schools, see Gottfried-Karl Kindermann, Realistische Schule, in: Dieter Nohlen (ed.), Pipers Wörterbuch zur Politik, vol. 5: Internationale Beziehungen (ed. by Andreas Boeckh), 1984,402. 16 An illustrative example of the impact of the nuclear power posture on the changing role and behavior even of the Superpowers is that of the emergence of a set of extra-legal international rules of conduct which became binding on the nuclear powers, particulary in Europe, resulting in a remarkable restraint in the exercise of military and political power projection in the region; see lost Delbrück, Die Entwicklung außerrechtlicher internationaler Verhaltensnormen unter den Bedingungen nuklearer Abschreckung, in: Nerlich/Rendtorff(note 6), 353.
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come a stark fact, not an evangelistic aspiration. 17 An increasing network of institutionalized international cooperation in the military-security, economic, social and cultural fields, particularly focussing on problems of underdevelopment, human rights, and general promotion of human welfare, made individual states and groups of states more interdependent. This has deeply affected "some of the most firmly established concepts concerning both the universality and the reality of international legal relations." 18 On the regional level, this new thrust of the idea of cooperation culminated in the even closer integration of regional state groupings giving rise to whole new notions of functional integration as a means of preserving international peace. 19 From a structural perspective, the integration approach became of particular significance because here we see an opening-up of the bitherto "closed nation-state" to trans- or supranational authorities with law enforcement authority - created by the traditional means of treaty law. Not only did states in integration contexts open up to a superior level of law, but international and supranational law reached far into the nation-states in as much as the individual tended to become increasingly affected by the law created "beyond the nation-state." 20 Thus, seen from this angle, in the period up to the mid-1980s, the "cup of [a modern international) law"21 was not only not empty or half empty, it could be seen also as half full. This is exactly the view taken by Benkin in bis famous book "How Nations Behave."22 Henkin certainly did not close bis eyes to the shortcomings of the then existing international legal order, and he was well aware of the fact that much of the change in the traditional internationallegal system did not occur because of the existence of the United Nations but despite of it. But just like Friedmann 23 some time earlier, Benkin discerned a number of significant structural changes in the international system such as, for instance, the increase of relevant international actors beyond nation-states which led bim to take a hopeful stance towards the increasing role of international law and its enforcement - enforcement, wbich he saw increasingly based on what one may call the enlightened self-interest of states. 24 17 Quoted from the excerpts of Friedmann's article, The RoJe of International Law in the Conduct of International Affairs, reproduced in: Louis Henkin/Richard C. Pugh/Oscar Schachter/Hans Smit (eds.), International Law. Cases and Materials, 3rd ed. 1993,40. 18 Friedmann (note 7), 144. 19 See, for example, Ernst B. Haas, The Uniting of Europe. Political, Social and Economic Forces 1959 - 1957, 1958; Ernst B. Haas, Beyond the Nation-State. Functionalism and International Organization, 1964; for a summary of the various theoretical approaches to the integration of states, see Jürgen Bellers, Integrationstheorien, in: Nohlen/Boeckh (note 15), 214, with references to the works of Karl W. Deutsch, Amitai Etzioni, and Joseph S. Nye. 20 The term is borrowed from the title of Haas' book (note 19). 21 Louis Henkin, How Nations Behave, 2nd ed. 1979,25. 22 /d. 23 See Friedmann (note 7).
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Starting from a different theoretical basis, McDougal and Reisman opened up a perspective of the internationallegal order which - among other important insights - provided us with an understanding of international law which is universal, or rather global. lt thereby indirectly contributes to a more relative view of the traditional dominant subject of intemationallaw, the nation-state: As early as 1959 we read in McDougal and Laswell's ''The Identification and Appraisal of Diverse Systems of Public Order": 25 "Systems of public order are embedded in a larger context of world events which is the entire social process of the globe." They continued: "We speak of 'process' because there is interaction, of 'social' because living beings are the active participants, of 'world' because the expanding circles of interaction among men ultimately reach the remotest inhabitants of the globe." Certainly, the state as one grouping of "participants in the world social process" in concert with others "with whom they share symbols of common identity and ways of life of varying degrees of elaboration" still, in the view of these authors, holds a dominant position. But if we read their works correctly, their concept of the international public order is not an abstract construct. Quite to the contrary, it has its relevance because of its being based on a vigorous sociological analysis of the international, or rather the global, environment. In essence, the result of this analysis is not substantially different from the views of the other authors cited earlier, namely that the post-war international system and its legal order has structurally changed, with new actors coming to the fore and putting the traditionally sole actor in international relations - the nation-state - into a more modest position in relation to other participants in the "world social process." Before we Iook into the effects of these changes in the role and structure of the international legal order on some of the major principles of internationallaw, mention has to be made of two other developments which have so far been left out of the picture. The first is that the UN Charter system of international law enforcement - although rather ineffective most of the time - was indeed effectively used twice during the period in question (Southern Rhodesia (Zimbabwe) and South Africa),26 although only after a painful process of political decision-making. lt is interesting to note, however, that despite the general inefficiency of the United Nations Organization as a peace-preserving organization, the UN concept as such has Benkin (note 21), 320. The article originally appeared in: American Journal of International Law (AJIL) 53 (1959), 1; the quotations are tak:en from Myres S. McDougaVW. Michael Reisman (eds.), International Law in Contemporary Perspective, 1981, 21. 26 On Southern Rhodesia (Zimbabwe), see SC res. 253 (1968) of29 May 1968, extending the previous oi1 embargo of SC res 221 (1966); on South Africa, see SC res. 418 (1977) of 4 November 1977, calling for a mandatory arms embargo against South Africa; for a comprehensive survey of the handling of the Zimbabwe case by the Security Council, see Tobias Stoll, Konflikte, Rhodesien/Zimbabwe, in: Rüdiger Woljrum (ed.), Handbuch Vereinte Nationen, 1991, 501, 503 - 504, and of the South Africa case, see Tobias Stoll, Konflikte, Südafrika, id., 505, 511. 24
25
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never been seriously questioned in principle?7 Secondly, linked to the frrst issue, the UN General Assembly, throughout the years of its existence, has gradually reduced the scope of the principle of non-intervention with regard to the international protection of human rights. 28 These two facts also signal a changing understanding of the role of the sovereign state, and thereby corroborate the finding that the post world war international legal order definitely was more than "old wine in new bottles." 2. The Impact of the Modem Perception of the International Legal Order on Some Major Institutions and Principles of International Law If this rough outline of the overall perception of the international system and its legal order - simplified as it has bad to be in the present context - is taken as correct, how did it affect the meaning, scope andlor functioning of major institutions and principles of internationallaw?
Let us first turn to the internationallawmaking process. According to traditional international law doctrine, the creation and the binding force of norrns of international law were to be derived either from some preexisting principles of natural law or from the will or consent of the sovereign states. 29 It is granted that this is a rather crude summary of the quite diverse spectrum of theoretical explications of the lawmaking process and the binding force of the law created. It must also be accepted that even today there is no universally recognized explanation of how internationallaw is established as binding law?0 But it can be safely stated that the consent or the will of the sovereign state, the consensus of the state community, or some contractual relationship was commonly seen as the basis of lawmaking and the binding force of the law thus created. Even in the post-World War II period of international law development, under consideration here, international law treatises and textbooks- with some exceptions31 - adhered to the voluntarist or con27 This has been pertinently observed by Klaus Dicke, Die UN Charta. Ausbau und ungenutzte Möglichkeiten, in: Hanns-Seide1-Stiftung (ed.), Gedanken zur Neuen Weltordnung, 1994,46, 47 et seq. 2s Fora Iist of cases dealt with in this way, see Felix Ermacora, [Commentary on] Art. 2 Ziff. 7, marginal nos. 15, 16, in: Simma (note 14), 104. 29 See Oppenheim's International Law, 9th ed. (by Roben Jennings/Arthur Watts), vol. I, part 1, 1992, 24; Alfred Verdross/Bruno Simma, Universelles Völkerrecht. Theorie und Praxis, 3rd ed. 1984, 321, 324; Dahm/Delbrück/Wolfrum, (note 9), 34 et seq. 30 See Dahm/Delbrück/Wolfrum (note 9), 34 et seq.; also Jonathan /. Chamey, Universal International Law, in: A.JIL 87 (1993), 529,531. 31 See, for example, Wilhelm Wengler, Völkerrecht, vol. I, 1964, 4 et seq. and 70 et seq., who finds the basis of compliance with certain rules, called law, in the fact that they serve the satisfaction of the human person's interest and, therefore, are "Sollensnormen," i.e. norms based on an "ought."
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sent/consensus-oriented position?2 Increasingly, however, authors tended to point to new developments in the international lawmaking process, which they perceived as improvements of the internationallegal order mitigating the deficiencies of this order due to the consent-based binding force of the law. The substantially increased use of multilateral treaties for the regulation of subject matters of common concern (so-called world order treaties, lawmaking treaties, traites lois) began to be seen as a sign of growing recognition by the international community that, in response to the new political, economic, social, and cultural needs, the lawmaking process bad to cover new ground.33 In effect, this meant a gradual turning away from the strict consent approach - which, by the way, was already hinted at, inter alia, in the Anglo-American common consent doctrine, which postulated the binding force of international law norms accepted by the great majority of the international community but definitely not by all states. 34 A prime example of this gradual change of perspective was the much debated third-party-directed Article 2(6) of the UN Charter - seen by some as a deviation from the pacta tertiis principle, by others as a question that cannot be answered within the framework of the pacta tertiis principle. 35 Another example is the attribution of the character of an objecSee references in the works cited supra, notes 29 and 30. Particularly treaties establishing a so-called objective regime (status treaties) have been viewed as a surrogate for the lacking international legislature. The basis of "legislative" authority exercised by the state parties to such treaties has been explained in different ways. Some authors found this authority in the special role and responsibility of the Great Powers involved in creating objective r6gimes (see Ronald F. Roxburgh, International Conventions and Third States, 1917, 81; also Amold D. MacNair, Separate Opinion to the Advisory Opinion of the International Court of Justice (ICJ) on the Status of Soutb-West Africa, ICJ Reports 1950, 146. Others have referred to a common interest of the international community, regulated by a treaty establishing an objective regime, as the legitimizing basis for the "legislative" authority assumed by the contracting parties. For a detailed analysis of the subject, see Eckart Klein, Statusverträge im Völkerrecht, 1980, 11 et seq. and passim. With regard to the United Nations' competence to impose territorial Settlements with binding effects for states, see Surya P. Subedi, The Doctrine of Objective Regimes in International Law and the Competence of the United Nations to lmpose Territorial Peace Settlements on States, in: German Yearbook oflnternational Law (GYIL) 37 (1995), 162. 34 See Jennings/Watts (note 29), 24; recently Christian Tomuschat, Obligations Arising for States without or against Their Will, in: Recueil des Cours 241 (1993 IV), 195, 282, 290291. 35 There are, of course, many divergent views on the correct meaning of Article 2(6) UN Charter. Some authors still tend to understand the international legal order solely or at least predominantly from the basis of state sovereignty and, therefore, interpret Article 2(6) basically from the point of view of the pacta tertiis principle. Consequently, the legal effects with regard to non-members of the UN are construed on the basis of traditional legal concepts, i.e. that such third states are bound to the international legal principles proteering international peace and security as part of general international law (customary law) rather than by the respective norms of the UN Charter. Thus state consent as the basis for international obligations is kept in place, see Klein (note 33), 200 et seq.; recently, however, Christian Tomuschat (note 34), 252, has convincingly argued that the pacta tertiis principle is an inadequate concept to explain the legal effects of Article 2(6). Rather, he argues, it is the specific 32 33
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tive regime or of an objective status-creating effect to some kinds of multilateral treaties. 36 A third example ofthe modification ofthe consent-approach to the creation and binding force of norms of international law is the spreading acceptance of ius cogens which - once accepted - binds all states independently of their actual consent and does not allow for the consensual creation of norms contradicting it. 37 The seeds for an even more drastic break: with traditional doctrine regarding the basis of lawmaking and the binding force of international norms were sown when the ICJ uttered its famous - but stunningly short - dieturn on the existence of norms of an erga omnes character?8 We shall come back to this later. At this juncture, we can say that the changing character of the international lawmaking process clearly corresponds to and reflects the changing needs of international society as described before. As far as the enforcement of intemationallaw is concerned, a similarly ambivalent picture may be drawn. Since the United Nations did not live up to its original design, i.e., to serve as a limited but still major law enforcement authority, the traditional state-based system of law enforcement continued to play a major role, as has been pointed out quite graphically by Torsten Stein. 39 However, due to the fact that the challenges to international peace and security and to the security of individual states during the Cold War took on proportions which could not be adequately met by the individual states, collective efforts, whether in terms of regional systems of collective security or in terms of collective self-defense, became a dominant feature of the international system.40 It is true - as Stein correctly ob-
cornmon interest aspect enshrined in such nonns which gives thern their special legal effects. Ultirnately, it is the protection of the sovereign equality of states which underlies the "legislative" authority of the international cornmunity represented in the contracting parties. 36 See references in note 33. 37 Tomuschat (note 34), 276, rightly rejects the notion that ius cogens nonns are the only nonns "really endowed with juridically cornpulsory effect" because all nonns of general international 1aw are binding. But the specific effect of ius cogens relevant in this context is that "an overwhelrning rnajority of States is able to produce - and possibly enforce - a new rule of jus cogens against a recalcitrant third State" (307, with reference the declaration of the Chairman of the Drafting Cornrnittee of the Conference on the Law of Treaties). 38 In the Case Conceming Barcelona Traction, Light and Power Company Ltd. (Belgiurn v. Spain), ICJ Reports 1970, 3, 32, the Court stated: "In particu1ar, an essential distinction should be drawn between the Obligations of a State towards the international cornrnunity as a whole, and those arising vis-a-vis another State in the field of diplornatic protection. By their very nature the fonner are the concern of all States. In view of the irnportance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes." With regard to their binding effect on all States "irrespective of any individual manifestation of acceptance," see Torsten Stein, Decentralized International Law Enforcement: The Changing Role of the State as Law Enforcement Agent, in this volume, supra, 107, 115. 39 Stein (note 38), supra, 108. 40 See Dahm/Delbrück/Wolfrum (note 9), 11 - 12.
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served41 - that the proper functioning of theseregional institutions (OAS, NATO et al.) greatly depended on the consent of the individual member states. But there can be little doubt that the political status of the formally sovereign states concerned was considerably affected in the sense that these states, in taking refuge under the umbrella of superpower-led defense institutions, demonstrated that they had more or less lost the capability to protect themselves however much they may have otherwise wished. Just as the sovereign will of states lost ground in the internationallawmaking process due to the pressing need of the international society to establish binding rules serving the common interest, many states lost sovereignty in one of the most vital areas of hitherto exclusive state responsibility, i.e., to provide for national security. International law enforcement authority - at least de facto, but also to some extent de iure - has moved to international institutions which thereby become obliged to fulfill the proteelive function in return for the surrender of sovereignty.42 As a last example of the effects of the changing structure of the international legal order in the post-World War II period, weshall take up the changing scope of the principle of non-intervention. lt was laid down as a check on the powers of the UN organs in Article 2(7) UN Charter but is also deeply enshrined in customary internationallaw.43 The drafting history of the UN Charter tells us that the inclusion of Article 2(7) was held to be necessary because of the widened competences of the (great power-dominated) United Nations Organization.44 Concerns of this kind were specifically enhanced because of the wide political discretion accorded to the Security Council in exercising its powers which were not to be bound by the fetters of law.45 This line of thinking continued tobe a vital guideline in the practice of many UN member states. The principle of non-intervention became one of Stein (note 38), supra, 108. This raises an interesting question with regard to the scope of political discretion of, for instance, the Security Council in determining whether or not to take action in a case of a threat to international peace and security. While there is widespread agreement that the Council possesses a wide political discretion under Article 39 of the Charter, one may weil wonder whether there arealso some Iegallimits to this discretion: As the Charter binds the member states to surrender some crucial sovereign rights to the United Nations - should the latter not be obliged to come to the aid of a beleaguered member state? Or, at the minimum, enable the threatened state to make use of its inherent right to self-defense which in the case of BosniaHerzegowina would have meant to lift the arms embargo with regard to this state, see remarks in the discussion at this symposium, infra, 159, 166, 168, 180. 43 Jennings/Watts (note 29), 428; Ermacora (note 28), marginal no. 10, in: Simma (note 14), 103, calls the principle as codified in the UN Charter a "constitutional principle of the world community." 44 Secretary of State J. Foster Dulles hirnself has pointed to this necessity to curb the wide competences of the organization during the debates at the San Francisco Conference, see United Nations Conference on International Organization, vol. VI, 507 - 508. 45 See lost Delbrück, Peacekeeping by the United Nations and the Rule of Law, in: Robert J. Akkerman et al. (eds.), Declarations on Principles. A Quest for Universal Peace. Liber arnicorum Bert V. A. Röling, 1977, 73, 77; Delbrück (note 14), marginal no. 4. 41
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the pillars of the traditional segment of internationallaw, i.e., according to the terminology of Friedmann, the law of state coexistence. However, the progressive forces underlying the developing "law of cooperation" made themselves felt in the practice of the United Nations soon after the political organs set to work. In the course of efforts to assert international authority over the enforcement of internationally protected human rights, the political organs of the United Nations, in earlier years particularly the General Assembly, continuously rejected claims on the part of states criticized for human rights violations that such occurrences were outside UN jurisdiction. In other words, the question of the proper observance of human rights within member states was considered by the indicted states to be one "essentially within the domestic jurisdiction" of the member states in the sense of Article 2(7) of the UN Charter. Beginning with the debate in the very frrst sessions of the General Assembly on the situation of people of Indian origin in South Africa, the main political organs of the UN - and later the plenary argans of the Specialized Agencies of the UN, as well- have consistently held that at least grave violations of human rights no Ionger constituted "matters ... essentially within the domestic jurisdiction" of the states concerned. 46 However, this claim to international authority for the enforcement of internationally protected human rights has only rarely been followed by effective collective enforcement measures. Except in the two cases cited (South Africa's apartheid policies and Zimbabwe), the UN organs restricted themselves to verbal condemnations of cases of human rights violations. On the other hand, the various human rights monitaring bodies established under the auspices of the United Nations, through some Specialized Agencies, or by the several universal human rights treaties proved able to exercise their limited enforcement powers extensively and - given the political sensitivity of their taskquite effectively.47 Although the relevant rules of procedure of these bodies take great pains to protect the sovereignty of states whose human rights records are subject to examination or who are charged with specific human rights violations, in practice, the monitaring bodies have found effective ways to overcome sovereignty-based obstacles to the exercise of their functions. For example, the local remedies rule, designed to protect states from undue encroachments by international judicial or non-judicial authorities, has been increasingly applied in a rather 46 For an in depth analysis of the earlier UN practice with regard to human rights violations and Article 2(7), see Felix Ermacora, Human Rights and Domestic Jurisdiction, in: Recueil des Cours 124 (1968 II), 371; Ermacora (note 43), 104 - 106; also lost Delbrück, Die Rassenfrage als Problem des Völkerrechts und nationaler Rechtsordnungen, 1971, 104 et seq. 47 For an instructive, concise description of the various means of international human rights protection see Christian Tomuschat, Menschenrechte, Individualbeschwerde, in: Rüdiger Wolfrum (ed.), Handbuch Vereinte Nationen, 1991, 551, and Christian Tomuschat, MenscHenrechte, Staatenberichte, id., 559; Karl losef Pansch, Menschenrechte, Staatenbeschwerde, id., 561; seealso the reports given at the 9th German-Polish Colloquium in: lost Delbrück/Dietrich Rauschning/Walter Rudolfffheodor Schweisfurth (eds.), Der internationale und nationale Schutz der Menschenrechte, 1992, specifically 9 et seq., 31 et seq., 93 et seq.
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restrictive way in cases where the requirements of the rule are not formally met, but a strict application of the rule would amount to a denial of justice.48 On the regional Ievel, during the period considered, one can observe a remarkable activity directed at establishing international and, as in the case of the European Union, supranational authorities to enforce human rights protected either under regional human rights covenants or under the predominantly judge-made law of the European Union. Under the regional human rights covenants (i.a. ECHR, ACHR) just as on the universal Ievel, the effectivness of the enforcement mechanisms ultimately still depends on the-consent of the states to submit themselves to the jurisdiction of the enforcement authorities by periodically renewable declarations.49 In the case of the supranational judicial review within the European Union, state sovereignty as an obstacle to efficient human rights protection has been drastically reduced. This is of particular importance to the citizens of those EU member states whose domestic protection of human rights by courts is less developed in that their constitutions or laws do not provide for individual complaint procedures before a constitutional court. In summary, the finding as to the persistence of sovereignty as a guiding paradigm of state behavior with regard to the application of the non-intervention principle is again ambivalent. On the one hand, we see continued efforts to follow a traditional, sovereignty-oriented line of state behavior. On the other band and quite in line with the unfolding "law of cooperation," we can see, on the part of the states concerned, a voluntary - and in an increasing number of cases not so voluntary - acceptance of international interference with the internal affairs of states where substantial human rights violations are at issue, i.e., an acceptance of an increasingly narrow construction of the principle of non-intervention. Furthermore, the principle of non-intervention seems to take on a new character. lts meaning seems to shift from that of a general prohibitory principle protecting state sovereignty to that of a principle protecting states from abuses by international authorities of a "right" or "obligation" to intervene on behalf of victims of grave human rights violations. While the observed ambivalence of our findings could certainly encourage sceptics to maintain that not much has really changed in the post-World War II period with regard to the critical deficiencies of the international legal order, such evaluation may lose much of its weight when we now turn to the developments of the international legal order in the present era, which began in the mid1980s or with the definite end ofthe Cold War at the end of 1989. For weshall see that the seeds for such developments were sown in the previous period, and these 48 See lost Delbrück, The Exhaustion of Local Remedies Rule and the International Protection of Human Rights. A Plea for a Contextual Approach, in: Jürgen Jekewit;/Karl Heinz Klein/Jörg Detlef Kühne/Hans Petersmann/Rüdiger Wolfrum (eds.), Des Menschen Recht zwischen Freiheit und Verantwortung. Festschrift für Karl Josef Partsch, 1989, 213, 225 et seq. 49 See Article 25(1) ECHR, sentence 1 at the end; Article 45(1) ACHR.
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seeds are exactly those changes in the international legal order which form the innovative part of the then ernerging "law of cooperation."
m. The Post Cold War Period: The Changing Socio-Political and Legal Environment for the Allocation of International Law Enforcement Authority The end of the Cold War not only brought about dramatic structural changes. in the international system, but it also allowed the international community to realize more clearly the dimensions of the grave challenges to humankind, i.e., environmental, economic, and social threats to the survival of all or parts of humankind. The breakdown of the relatively stable bipolar power structure has also added to the sense of insecurity which besets large segments of the international community. Although al1 or most of these challenges existed before the end of the Cold War, their full dimension, specifically their global rather than international dimension, tended to be clouded by the immediate security concerns caused by the BastWest confrontation. This is not the place to describe the now evident threat seenarios in any detail. Suffice it to name them: - threats to international/global peace and security by uncontrolled and possibly uncontrollable nuclear proliferation including the threat of potential nuclear blackmail, environmental pollution as a means of warfare, and mounting severe ethno-nationalist conflicts; - the global challenge of increasing underdevelopment and impoverishment; - the global threats to the environment by depletion of the ozone layer, global warming, water pollution, and by vast devastations of land by nuclear waste; - the global challenge of mass migration, of which we are presently seeing only the proverbial tip of the iceberg.50 Coping with these problems transcends the capabilities of the nation-state as weil as of the now already traditional international agencies. They require global approaches, i.e., the "denationalization," as distinct from further "internationalization" of the matter at issue. While the latter has served and will continue to serve as a means to supplement the evidently insufficient national problem-solving capabilities, the former, i.e., globalization or denationalization of the efforts to solve the problems listed, signifies a change of the guiding paradigm of "national interest" tothat of the "public interest" of the global community.51 What are the impliso See references supra, notes I and 2. 51 Fora detailed explication of the tenns "intemationalization" and "globalizationldenationalization," see Delbrück (note 1), 10 - 11. For a careful analysis of the sociological and legal meaning of the tenn "international community" - which is also relevant to the tenn "global community" used here- see Tomuschat (note 34), 216 et seq.
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cations of these changes for the allocation of internationaVgloballaw enforcement authority equipped with adequate powers, and what, if any, are the changes in the international legal and political system which may allow us to speak realistically about a new era in the development of the international legal and political system? We shall come to these questions in turn.
1. The international Lawmaking Process As we have seen in the description of the post-World War ll period, the process of international lawmaking was marked by an insistence on the sovereign consent of states. But we have also seen that this period was increasingly characterized by a trend toward setting and accepting international norms binding states independently of their actual consent. During the present period, this trend has taken a qualitative leap in that the creation of norms binding all states irrespective of their consent or dissent has received growing support. One example is that of the notion of erga omnes norms, which, because of their specific nature, has Iet the allocation of international law enforcement authority become a major concern of the international community.52
In a recent thorough analysis of the international lawmaking process, Jonathan Chamey53 has shown that the instances where international law has been created in ways other than by the consent of states strictu sensu, which he bad already found in earlier state practice, have increased. He emphasizes that, in view of an "expanding need to develop universal norms to address global concerns" which faces the international community, it may be "necessary to establish new rules that are binding upon all subjects of internationallaw regardless of the attitude of any particular state. For unless all states are bound, an exempted recalcitrant state could act as a spoiler for the entire international community."54 Chamey sees a major change in the international lawmaking process which conforms to the new needs of the internationaVglobal community.55 While traditionally widespread state practice plus opinio iuris were required to establish a new rule of customary s2 On the effect and enforcement of erga omnes norms, see Jochen A. Frowein, Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung, in: Rudolf Bemhardt/Wilhelm Karl Geck (eds.), Völkerrecht als Rechtsordnung - Internationale Gerichtsbarkeit Menschenrechte. Festschrift für Hermann Mosler, 1983, 241 ; Yoram Dinstein, The erga omnes Applicability of Human Rights, in: Archiv des Völkerrechts (AVR) 30 (1992), 16, with Comments by Anos Shapia, id., 22, and Karin Oellers-Frahm, id., 28; lost Delbrück, International Economic Sanctions and Third States, id., 86; Tomuschat (note 34), 365; Claudia Annacker, Die Durchsetzung von erga omnes Verpflichtungen vor dem lnterantionalen Gerichtshof, 1994. S3 Jonathan Chamey, Universal International Law, in: AJll. 87 (1993), 529. S4 Chamey (note 53), 529. ss This need is also the starting point of Tomuschat's Hague lecture on "Obligations Arising for States without or against Their Will" (note 34).
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law, he suggests that the wide use of universal fora for the discussion of needed new law is about to replace or has already replaced this traditional law-creating process. The thorough public debate of new law in these fora, the consensus achieved and the subsequent affirmative behavior of the states allow new law to enter into force within a short period of time. 56 Although the process may still be subsumed under the criteria of the traditional process of creating customary international law, in substance the new law is not fonned by state practice with opinio iuris but it is only afflrmed in the scope and meaning given to the new law by the universal forum from which it emerged. In addition, it possesses, according to Chamey, a greater legitimacy since the states have bad their say in the public debate of the new law.57 Of particular importance in this context is Chamey's assertion that, in this kind of lawmaking process, the objection of some states to the new law is irrelevant to its being binding on all states.58 Although Chamey comes close to the position of those who attribute to international fora, specifically the UN General Assembly, a universallegislative authority, he denies the existence of such authority. All he is suggesting is that "the products of multilateral forums substantially advance and formalize the international lawmaking process. They make possible the rapid and unquestionable entry into force of normative rules if the support expressed in the forum is confmned."59 Are these findings by Chamey "'imaginative' daydreaming" or "gullible selfhypnosis"? A look into state practice and that of international organizations since the mid-1980s actually confmns much of what Chamey has observed. The rapid transformation of parts of the Law of the Sea Convention into binding law prior to its entry into force, 60 a similar process with regard to some fundamental pronouncements of new law at the Rio Environmental Summit, and the somewhat sudden interest in and acceptance of erga omnes norms are facts - however doctrinally construed (consensus, streamlined traditional customary law creation, spontaneous law creation) - which corroborate Chamey's thesis (shared by the author) that the sovereign wilVconsent of states as the basis of international lawmaking is in retreat. New forms of creating law binding all states irrespective of their consent or dissent are coming into use as the adequate means of creating law which is needed to resolve problems of universal or global concem. 56 Chamey (note 53), 547; similar considerations are put forward by Tomuschat (note 34), 269-270. 57 Chamey (note 53), 547 - 548. 58 Chamey (note 53), 539 - 542. 59 Chamey (note 53), 547. 60 See Rudolf Bemhardt, Der Einfluß der UN-Seerechtskonvention auf das geltende und künftige internationale Seerecht, in: Jost Delbrück (ed.), Das neue Seerecht. Internationale und nationale Perspektiven, 1984, 213, 217 et seq.; the rapid transfonnation of parts of the Law of the Sea Convention into customary law as an example of the changing process of international lawmaking is also cited by Chamey (note 53), 548, along with the Principles adopted by the 1972 Stockholm Conference on the Human Environment which "merged as international law in the subsequent period," id. with further references.
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2. The Allocation of International Law Enforcement Authority and the Principle of Non-Intervention
What has just been said about changes in the international lawmaking process is even more true with regard to the problern of international law enforcement which must be seen as a response to the increasing demands for a rule of law based resolution of the pressing problems facing the international community and to the emergence of international norms of such fundamental importance for the wellbeing of humankind ("public interest norm~"61 ) that the question of their enforcement has become a priority. The changes occurring in the field of internationallaw enforcement concern two different aspects of law enforcement: on the one band, the allocation of international law enforcement authority and, on the other band, the scope of such law enforcement authority, i.e., the relevance of the principle of non-intervention for internationallaw enforcement. With regard to the allocation of internationallaw enforcement authority, we may just mention in passing that it is realistic to assume that the enforcement of rights or obligations under international law in the ordinary course of state interaction by the non-forcible "classical" means, available to states without prior authorization by any international authority, will remain legal and basically unaffected by the new developments in the international legal order (individual enforcement as defined by Stein62 ). On the other band, it is also clear that individual (unilateral) enforcement measures by military means are illegal unless justified under Article 51 of the UN Charter.63 Furthermore, legally speaking, there is nothing new with regard to the allocation of international law enforcement authority once it comes to centralized law enforcement: As mentioned above, the core innovation of the UN Charter concept was to create a central, though limited, law enforcement authority - the UN Security Council. In the legal sense, then, the question of the allocation of international law enforcement authority is settled and not different from what has been observed for the previous period. E~en the legitimate question as to 61 There is a variety of terms used to signify what is meant here by the term "public interest norms." 62 Stein (note 38), supra, 108 et seq. 63 At this point it must be noted that Article 51 UN Charter does not grant or recognize a right of states to go to war in the sense of an independent, original ius ad bel/um albeit limited by the purpose of self-defense. Since Article 2(4) UN Charter comprehensively prohibits all use of force in international relations, under the Charter regime, there is no room for any genuine or original ius ad bellum however lirnited. What Article 51 means isthat itjustifies the use of force in self-defense - a use of force which otherwise would be illegal, see Otto Kimminich, Der gerechte Krieg im Spiegel des V6lkerrechts, in: Reiner Steinweg (ed.), Der gerechte Krieg: Christentum, Islam, Marxismus, 1980, 206, 216 - 217; also lost Delbrück/ Klaus Dicke, The Christian Peace Ethic and the Doctrine of Just War from the Point of View of International Law, in: GYIL 28 (1985), 194, 204 - 205, who point out that Article 51 UN Charter does not revive the Doctrine of Just War, bot regards a war of self-defense asjustified by positive law as distinguished from an ethically just war.
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whether the Security Council would be capable of dealing adequately with numerous conflicts around the globe has been theoretically answered by the Charter (Chapter Vill). Regional arrangements may be used to deal with regional/local conflicts by the Security Council, and the regional arrangements may even use forcible means of enforcement, albeit only with the authorization of the Security Council.64 However, for political and, to some extent, legal reasons, questions as to further allocations of international law enforcement authority have been posed. These questions were discussed at length at the previous symposium65 and by Fred Morrison66 and Torsren Stein61 at this symposium. Several major controversial points have emerged from these discussions: First, is there, or should there be, a legal basis for the use of international forcible enforcement power by state groupings independently of the UN Security Council? Second, are states entitled to take measures to enforce erga omnes norms independently of Security Council authorization, and if so, to what extent? Third, is there an obligation for member states of the United Nations or regional arrangements or organizations to participate in enforcement actions, specifically in military enforcement actions? With regard to the frrst question, it seems to be a logical conclusion from the foregoing remarks with regard to the qualitative changes occurring in the international legal order that under certain conditions (Security Council inaction, need for sanctions as a means of coercion for erga omnes norms violations such as massive environmental pollution) a possible gap in the international enforcement system should be filled by allowing regional arrangements/organizations to take even forcible enforcement measures on their own. On the other band, a general title of this kind is likely to weaken the central authority of the UN Security Council - a high price to pay in view of the possibly rare instances where such a need would arise given the possibility to have the UN General Assembly substitute for the Security Council in the role of the authorizing organ under Article 53 based on the Uniting for Peace resolution. 68 With regard to the second point, i.e., whether states should be entitled to take enforcement action in favor of erga omnes norms, the answer is definitely "yes," since the present internationallaw already provides for such title expressly in Arti64 For a more detailed discussion of the role of regional arrangements in the maintenance of international peace and security under Chapter vm of the UN Charter, see lost Delbrück, Regionale Abmachungen: Friedenswahrung und Rechtsdurchsetzung- zum Problem der Allocation internationaler Rechtsdurchsetzungsmacht, in: Konrad Ginther/Gerhard Hafner/ Winfried Lang/Hanspeter Neuhold/Lilly Sucharipa-Behrmann (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität. Festschrift für Karl Zerrumek zum 65. Geburtstag, 1994, 163. 65 See Delbrück (ed.), The Future oflnternational Law Enforcement (note 1). 66 See supra (in this volume), 39. 67 See supra (in this volume), 107. 68 See Delbrück (note 64).
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cle 218 of the UN Convention on the Law of the Sea,69 which can be seen as an expression of a general rule derived from the very nature of erga omnes norms. However, such enforcement action must be limited to non-forcible measures, unless the Security Council decides otherwise.70 The needed allocation of law enforcement authority to decentralized law enforcement agents must not undermine the core principle of the international legal order, i.e., the monopolization, in principle, of forcible enforcement powers vested in the UN Security Council. With regard to the last point, i.e., whether states are bound to participate in forcible collective enforcement action such as decided by the Security Council, the vast majority of states and some scholars seem to assume that such an obligation does not exist.71 I find it hard to discover any support for this view in the Ietter of the Charter. If, for instance, the Security Council calls upon all or some of the member states to carry out a decision of the Council under Articles 42 and 48, it is difficult to find any language in the Charter which would make such a decision by the Council a non-binding one. In support of this reading of the Charter, one may also point to the fact that enforcement action under Chapter Vll concems "public interest norms." Any political discretion on the part of the UN member states as to whether or not to participate in respective enforcement action is incompatible with the very nature of the norms to be enforced. That this obligation of the member states is presently unenforceable because of the non-implementation of Article 43 69 For a detailed analysis of this point, see Doris König, Durchsetzung internationaler Bestands- und Umweltschutzvorschriften auf Hoher See im Interesse der Staatengemeinschaft, 1990. 7o See Stein (note 38), 116. 71 Two sets of questions, however, have to be distinguished here. The frnt regards the controversy as to whether or not only decisions taken by the Security Council under Chapter vn are binding. This position is clearly untenable considering the systernatic place of Article 25 in the UN Charter, seelost Delbrück, [Cornrnentary on] Art. 25, marginal nos. 9 et seq., in: Simma (note 14), 378 et seq. with further references. The second problern concerns the cornpetence of the Security Council to issue a decision binding rnernber states or sorne of thern to ernploy their national rnilitary forces in the execution of a Council decision under Article 42 UN Charter. The reasons why according to rnost authors the cornpetence of the Security Council to issue a binding request under Article 48 UN Charter to the rnernber states is denied, on closer analysis are not based, however, on a general denial of the binding force of decisions taken under Article 48, but arerather based on considerations relating to Article 43. Since no agreernents to rnake rnilitary units available to the Security Council have ever been entered into, it is concluded that the Security Council cannot order rnernber states to use their forces against their will. This rneans, however, that decisions under Article 48 presently are not altogether non-binding. As an authorization of rnernber states to use their forces to enforce a Council decision taken under Article 42 a decision is binding. What it Iacks possibly de iure and certain1y de facto is the binding authority to force rnernber states to ernploy their national rnilitary forces. This, however, is a different problern and certainly not a general argument against the binding force of decisions taken under Article 48. For a thorough discussion of the issues, see Jochen A. Frowein, [Cornrnentary on] Art. 42, marginal no. 16, in: Simma (note 14), 589, and Brun-Otto Bryde, [Cornrnentary on] Art. 48, marginal no. 4, in: Simma (note 14), 607.
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of the UN Charter is a different matter. This controversy will not be pursued any further here since a definite answer to the problern would only be essential to the present argument if such an answer would be prejudicial to the conclusions to be drawn. Such is not the case. Even if we start from the premise which has been put forward by Stein72 that no enforcement action by the Security Council in the post-Cold War era has been taken without the prior consent of the powers executing the Council's decisions, the qualitative change in the pattern of international law enforcement authority remains a fact: The essential element in the authorization of states to carry out enforcement decisions taken by the Council - whether voluntarily or not - is that these states are acting upon a decision taken by the competent international organ after due public debate. The states are acting as agents of the organized international community73 - they are not carrying out war-like measures on their own, poorly disguised by flying the UN flag. 74 The same is true, by the way, of states enforcing erga omnes norms; they act as agents of the community of states in the "public interest." Whether they pursue individual interests at the same time (e.g. protecting their beaches from pollution) is irrelevant from the point view of of existing law. But it is not only the fact that states act as agents of the international community rather than as individual states which is indicative of the change taking place in the international legal order. There is also a substantive point to it: However problematic the question of proper Security Council control over the execution of its decisions may presently be, the fact is that even very powerful states acting as the Council's agent feel "gently" pressed to observe the legal restraints attached to Security Council action by the law of the Charter and by general principles of law such as the principle of proportionality.75 The United States decision n Stein (note 38), 120 et seq. 73 The notion of states acting as agents of the international community is a salient feature of a number of conventions such as the Convention on the Prevention and Punishment of the Crime of Genocide, United Nations Treaty Series (UNTS), vol. 78, 277, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, UNTS, vol. 974, 177, and the European Convention on the Suppression of Terrorism, text in: International Legal Materials (ILM) 15 (1976), 1272. 74 A scathing critique of the myth of a "Security Council in the driving seat" and of the scheme of collective security as envisaged by the Founding Fathers being at work is given by Helmut Freudenschuss, The Changing Role of the U.N. Security Council: Trendsand Perspectives, in: Kühne (note 3), 151; for other critical evaluations of the Gu1f "War" experience of the United Nations, see Oscar Schachter, U.N. Law in the Gulf Conflict, in: AJIL 85 (1991), 452, Eugene V. Rostow, Until What? Enforcement Action or Collective Self Defense?, id., 506, and Bums H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, id., 516; The position taken by the present author has been spelled out precisely and in depth by Thamas M. Franck/Faiza Pate/, UN Police Action in Lieu of War: "The Old Order Changeth," id., 63. 75 The need for such a legal restraint on the Security Council's discretionary powers is emphasized by Tomuschat (note 34), 251; for a more detailed discussion of the substantive legal restraints on the Security Counci1's powers, seelost Delbrück, Staatliche Souveränität
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not to pursue the enforcement action against Iraq to Saddam Hussein's front door was certainly not fonned by military considerations. It was the sense that the international mandate - widely as it was phrased - would not legitimate such extension of the action. 3. The Scope of the International Law Enforcement Authority
There remains to be answered the last question, i.e. that concerning the scope of the international law enforcement authority allocated to the UN Security Council and indirectly to regional arrangements authorized to act by the Council. According to Article 39 of the UN Charter, the Council may take enforcement measures after it has determined that a threat to the peace, breach of the peace, or act of aggression exists. If it has done so, the restraint on the exercise of its powers according to Article 2(7), i.e., the prohibition against interfering with matters which are essentially within the domestic jurisdiction of member states, is removed. Thus, the scope of the enforcement authority vested in the Security Council depends on the Council's construction of the terms "breach of the peace," "act of aggression," and "threat to the peace." If these situations are narrowly defined, the scope of the Council's enforcement powers is commensurately narrow, and the scope of the non-intervention principle correspondingly wide. As has been mentioned before, Article 2(7) of the Charter was meant to be a check on the wide discretionary powers of the Counci1.76 It has, however, also been mentioned that in the course of the United Nations efforts to combat apartheid and racism not only the General Assembly but also the Security Council entered into a course of interpretation of Article 39 which led to a liberal reading of the crucial tenn "threat to the peace.'m The situation in South Africa caused by the apartheid policies was over a period of time gradually determined to constitute a threat to the peace. This was a bold step to take since the tenn "threat to the peace" traditionally was held to relate to an international threat to peace, but not to relate to an intemal Situation, however violent it might be. While this determination of the South African situation - and that of Southem RhodesiafZimbabwe, as weil - remained an exception during the post-World War II period, it served as a- most likely unintendedprecedent for the exercise of the Security Council's functions under Chapter VII in the post-Cold War era. In a rapidly increasing number of cases in the post-Cold War period, the Security Council has determined intemal situations characterized by the use of massive und die neue Rolle des Sicherheitsrates der Vereinten Nationen, in: Verfassung und Recht in Übersee 26 (1993), 6, 20. 76 Supra, 145. 77 See most recently Tomuschat (note 34), 339 with further references; also Delbrück, Wirksameres Völkerrecht (note 5), 103 - 107; Ursula HeindChristiane Philipp/Rüdiger Wolfrum, Zweiter Golfkrieg: Anwendungsfall von Kapitel Vll der UN-Charta, in: Vereinte Nationen 39 (1991), 121, 126.
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force by govemment agencies and other organized groups in civil war-like strifes resulting in gross violations of human rights to constitute threats to the peace. The Council acted accordingly under Chapter VII of the Charter and authorized groups of member states or Blue Helmet units to take appropriate enforcement measures, including the use of military force. Starting with Resolution 688/91 concerning the protection of Shiite and Kurdish minorities in Iraq, the Council decided in this manner in the cases of Yugoslavia and Somalia.78 The facts are weil known and need not be repeated here. The upsbot of these Security Council decisions is that the scope of its enforcement authority has not only been widened quantitatively but also qualitatively. The recognition of intemal situations of grave and organized violence with resulting gross violations of basic human rights as a "threat to peace" means a further restriction of the principle of non-intervention in favor of the enforcement of "public interest norms." It is granted that with this interpretation of recent developments in the law of the United Nations, I may have reached the borderline between sober analysis and '"imaginative' daydreaming." But in support of the above observation, one can point to other developments which seem to indicate a similar trend in the international community. First of all, the Security Council - although with the consent of at times rather tenuously legitimated state representatives - has engaged in broadly defined activities to reconstruct (democratic) govemment in various states (Cambodia, again Somalia, El Salvador, Haiti).79 Secondly, on the regionallevel, state groupings such as the CSCE have solemnly committed themselves to upholding collectively the principles of constitutional and democratic govemment as a basis of enduring peace among the states concemed. 80 Thus, the new reading of the Charter, specifically Chapter Vll, by the Security Council is not a singular and exceptional event as it appeared to be in the previous period with regard to South
78 The most recent case is that of the humanitarian intervention by France into Rwanda with the authorization of the Security Council (SC res. 929 (1994) of 22 June 1994) albeit with the smal1est majority that a resolution of this type has ever received since the adoption of resolution 688 (1991). (The Rwanda resolutionwas adopted by a vote of 10:5); for a more detai1ed account of the other cases cited, see Delbrück, Wirksameres Völkerrecht (note 5),
104.
79 See on the Cambodian case the Agreement at the Paris Peace Conference on Cambodia, UN doc. S/23177 (text in: ILM 31 (1992), 180), and the report by the UN Secretary-General on the measures already taken and to be taken in the future in Cambodia, UN doc. S/23331 ; the UN Transitional Authority in Cambodia (UNTAC) was formally established by SC res. 745 (1992) of 28 February 1992 (earlier resolutions preparing for UNTAC were takenon 31 October 1991 (SC res. 718 (1991)) and on 8 January 1992 (SC res. 728 (1992)). The establishment of a peace-keeping force for EI Salvador (ONUSAL), which included a rnilitary component, was decided by Security Council resolution 693 (1991) on 30 May 1991. On the Haitian case, see SC res. 940 (1994) of 31 July 1994. so See the Charter of Paris, adopted by the Conference of the CSCE Heads of States on 21 November 1990 (text in: ILM 30 (1991), 193), and the Document of the Copenhagen CSCE Meeting on the Human Dimension, adopted 29 June 1990 (text in: ILM 29 (1990), 1305).
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Africa. lt seems, instead, tobe embedded in a general sense of growing commitment to the "public interest" of the international community and a profound reconsideration of the scope and Iimits of state sovereignty or the principle of non- intervention respectively. IV. Tentative Conclusions For political reasons, the post-World War II internationallegal order did not live up to the full potential of a radical redefinition of traditional political and legal structures and concepts. Sovereignty and the state as weil as "national interest" remained a strong reality of international relations. However, the universalization of the state community necessitated a vast extension of the substantive body of internationallaw. Growing interdependence of states in vital areas of hitherto exclusively state responsibility brought a second set of international law and a second paradigm of international relations, i.e., "international cooperation" as distinct from mere state coexistence. At the end of the post-World War II period around the mid-1980s, sovereignty-oriented and cooperation-oriented trends held a balance. This meant that the classical internationallaw definitely was partially replaced by a modern approach to the role and function of internationallaw. After the end of the Cold War, the international community came to realize more clearly that with the disappearance of the dominant bipolar antagonistic power posture all problems bad not been solved. Rather, one came to realize that even greater, global challenges are facing the global society. In response to these challenges and relying on progressive developments during the previous period, new changes in the international legal order are taking shape. These have affected the process of international lawmaking, the quality or character of specific norms (e.g., erga omnes norms or "public interest" norms), the allocation, and particularly the scope of internationallaw enforcement authority. Negatively phrased, the new changes have resulted in a strong restriction on state sovereignty and a corresponding reduction of the scope of the principle of non-intervention. The role of the state as a "go it alone"-actor is undergoing profound changes. What does this mean for the nature of international law? A few tentative answers may be allowed in conclusion. International law used to be characterized as a legal order of coordination among sovereign states. This had particular consequences for the definition of the basis of the binding force of international law. The growing understanding of the global challenges to humankind and the ensuing acceptance of laws binding on all states irrespective of their consent indicate that we are moving towards a new basis of the binding force of internationallaw which is adequate in an era of global threats to the survival of "Space Ship Earth." Internationallaw or globallaw is binding because it is necessary, not only in an empirical sense, but rather in the sense that it is related to a universally shared value judgment, i.e., that law is necessary for the preservation of the survival of human-
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kind. From this basis, the notion of international law binding on all states, e.g., erga omnes nonns, ius cogens, receives its legitimacy. International law is increasingly developing elements of a hierarchical order as is evidenced by the way international law enforcement authority is allocated, and even more so by the way its exercise is conceptualized, i.e., by police-lik:e enforcement of nonns of "public interest." The trend is for internationaVgloballaw to develop into what one may call a World Interna! Law (Weltinnenrecht). 81 I am not suggesting that we have reached that stage, but I am convinced that, meeting the challenges of the future within the framework of an adequate legal order and in conformity with the rule of law, the notion of a World Interna! Law can serve as guideline for the progressive interpretation of existing law and the development of new law.
SI Foramore detailed discussion of the notion of "Weltinnenrecht," see Delbrück, Wirksameres Völkerrecht (note 5), 103 and 128 et seq. with further references.
Discussion Tomuschat:
I totally agree with the criticism expressed vis-a-vis the anns embargo against Bosnia. The right of self-defense is one of the basic norms of international law, one of the corner principles. The Security Council - in my view - is not in a position to deprive a state ofthat basic right. It is an inherent right, as the Charter says, and I would tend to say that to impose an embargo is flatly in violation also of the United Nations Charter. Any state that would supply Bosnia with anns - hopefully there is now a peace process - and also any state that in the past has supplied Bosnia with anns has acted in full conformity with international law and was not in breach of any obligation under internationallaw. I would primarily ask the question whether the existence of ius cogens norms or erga omnes obligations is proof of a new development in the sense that consent does not constitute the basis of internationallaw any more. lost Delbrück referred to ius cogens as proof of bis proposition that indeed consent is in decay and that we need a new basis for international law. He came out with stating that international law exists because it is necessary. However, ius cogens also has to emerge, and ius cogens rules need a basis in international law. In my view, ius cogens arises or crystallizes according to the normal processes of international law. lus cogens norms generally are customary rules of international law. There is no specific process for the emergence of rules of customary law. Therefore, ius cogens is not proof of a new state of affairs of international law, because ius cogens also requires that the two traditional elements of internationallaw, namely practice on one band and opinio iuris on the other, be present. To be sure, there is a slight element of majoritarianism in internationallaw because the doctrine of the persistent objector is not really recognized. It has some faint reference points in two well-known judgments of the International Court, but it is not a well-established and recognized doctrine. Therefore, in the generat traditional theory of internationallaw, there is indeed a slight element of majority rule. But in general, customary law is to a great extent based on consent, consent expressly or tacitly given by states. There are also other clues for assuming that modern international law is developing in a direction which is different from the traditional orientation. It emphasizes consent to a lesser extent than in the past, but the existence of a ius cogens norm does not seem to me to be one of those clues. Let me address one further issue which is the proposition that states act as agents of the international community; that was also one of the theses by lost Dei-
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brück. I like the expression "public interest norms." 1t is, I think, a very telling term. But the question is how to enforce such public interest norms. There exists no specific international mechanism for that purpose. As a kind of substitute, states are called upon, morally at least, to enforce those norms. It is, however, difficult to conclude that states, in so doing, are really acting as agents of the international community. They may pretend to act as such, but in order really to call them agents of the international community, a mechanism established by the international community would be required to ensure that indeed community interests are the main criteria of guidance for those states. Such a mechanism is lacking, and therefore, very often, states purporting to act in the public interest just enforce their own interests. This shows that we need some sort of procedure for exercising a review function. We do not have that as yet. I do not know whether it is possible to enlarge the powers of the Security Council to include other issues as well, not only issues of international peace and security but issues which affect the common interests of humankind- something different from international peace and security. If you interpret "international peace" in a very broad sense, then the common interest of mankind would be included in the notion. But the Security Council is not yet ready fully to endorse that enlargement of its powers. We have heard about its recent practice. There are many clues, there are many points of departure for a new practice. But still the Security Council is not too eager really to embrace the field of activity which would be opened up to it if it really took the view that it is responsible for the common welfare of mankind. We have seen in the Haiti case that it explicitly stated in the preamble of the relevant resolutions that this was an exceptional situation. So the Security Council has withdrawn a bit from its Somalia jurisprudence, if I may use that term, stating in the case of Haiti that, because of the application by the President, by the lawful authorities of Haiti, it could act and impose an embargo. But it is obvious that the Security Council has become afraid of what it said in the Somalia case. Therefore it may again be left to individual states to enforce public interest norms. This creates a somewhat difficult situation, because the substantive public interest norms - safeguarding values of democracy and human rights - are already in existence. Should their protection be comrnitted to individual states? To affirm such a right might be very dangerous in the future, because it could also provide a pretext for a country to enforce merely personal subjective interests while pretending to act for the common benefit of mankind. Schreuer: The question was raised as to whether an obligation exists under Article 42 independently of any agreements under Article 43. In other words: Is there an obligation to participate in Security Council military enforcement action in the absence of agreements to provide troops under Article 43? To put it differently: Are these obligations conditional on such agreements or are these agreements just designed to fill in a preexisting obligation? Apart from thät particular way of posing the question I would like to point out that there is a potential for obligations under
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Article 42 short of providing arrned forces. Think of transit rights, think of provision of bases, of rights of passage or even of putting at the disposal of the United Nations a communication facility! So, not every cooperation with the Security Council under Article 42 necessarily entails the provision of troops. There was some debate as to whether a military action under the authority of the Security Council or of the United Nations is genuine United Nations action or whether it is really action by states under the flag or label of the United Nations. At first sight this may seem a rather academic question, but there are some serious legal implications in answering this question. Let me give you two examples: The first one is: how does a permanently neutral state react to that? If it is indeed state action, a permanently neutral state would feel compelled to stay out of it. If it is a United Nations actio'n, if it is a community action, the situation may be entirely different. In fact, Austria changed its attitude on this particular point a couple of years ago in the context of operation "desert storm," when, against some misgivings in the Austrian political spectrum, new laws were passed that now provide for the non-applicability of various restraints that came with permanent neutrality in the context of aiding the allied action against Iraq at the time. The second implication of this particular question is the applicability of humanitarian law to United Nations action. If it is indeed state action, there is no doubt that the Geneva Conventions apply. If it is United Nations action under the exclusive authority of the United Nations, we have a problern with the applicability of the Geneva Conventions. Of course, it does not make sense to deny the application of the Geneva Conventions to United Nations activities. However, it should be remernbered that there has been a standing debate between the International Committee of the Red Cross and the United Nations, going back several decades, in which the ICRC has repeatedly urged the United Nations to do something on this particular problem, to undertake some formal submission at least to the substantive obligations of the Geneva Convention. The standard answer of the United Nations has always been: "No, we cannot really comply with all the obligations, especially not those that provide for criminal prosecution of offenders." Until recently this did not seem a particular problem. Traditional peace-keeping did not involve combat missions, and, in fact, most blue helmets were not really equipped for doing anything of this kind. The Somalia experience should make us rethink that particular problem. There is now room for strong arguments that the United Nations should make a formal undertaking in this particular direction, not necessarily through a ratification, which is technically impossible; a solemn declaration by the United Nations to that effect would probably do the job. The Lockerbie case was mentioned as a possible case of the Security Council exceeding its mandate in terms of enforcement of obligations. I do not fully agree. Mary Ellen O'Connell has really pointed this out. I think that in this particular case the Security Council stayed squarely within its mandate under Article 39. lt is just unfortunate that the debate and also the phrasing of the Security Council resolutions focused on a relatively narrow point, namely the surrender of these two indi11 Symposium 1994
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viduals. What the Security Council was doing in reality, was taking action against a state, namely Libya, which was notorious in engaging in state terrorism. If you Iook at the various sanctions that were eventually imposed, the connection between state terrorism against aviation and the sanctions is very obvious. The Montreal Convention, which, of course, has been invoked by Libya, is designed to work to its advantage because Libya claimed that it is free to extradite or to prosecute. Of course, as we all know, this argument is a sham, because Libya has no intention to prosecute. But from a purely formal viewpoint, the Montreal Convention works in Libya's favor.
Mary Ellen made some remarks about the role of domestic courts in the enforcement of international law. I do not want to elaborate on that, but I would just like to add that there is still considerable room for improvement in the role of domestic courts in the specific area of cooperation with the United Nations in implementing United Nations decisions, not only in the area of attaching assets or imposing fines and sanctions. Recent Security Council resolutions imposing sanctions have introduced a new provision whereby private transactions between individuals that are contrary to the embargoes are to be unenforceable in domestic courts. These provisions, which have slipperl almost unnoticed into the Security Council resolutions, carry considerable potential. The unenforceability of transactions is a much more powerful weapon than fines which are often only nominal and which can actually be taken into account in the calculation of breaking the sanctions anyway. If you can no Iongerenforce your transactions, you are totally at the mercy of your partner. That probably has a stronger deterrent effect than anything else. lost Delbrück mentioned the words "imaginative daydreaming" a couple of times. I did not take that as a necessarily negative reference, certainly not aimed at myself. I believe that "imaginative daydreaming" is something very important and is the function of an internationallawyer, certainly of an academic. I would call it "vision and perspective for the future." That is what conferences like this one are all about. We have to Iook into the future. We have to Iook for progress. There is no progress without a vision. The only reservation I would make is that we ought to be honest about this. When we declare our policies, when we declare our preferences, we should do this openly and not try to smuggle in our policy preferences under the guise of positive law. That is the only reservation I have in this regard. Szasz: I have a number of comments; two are substantive, and the remainder are procedural. First of all, I entirely agree with Professor Tomuschat in questioning whether erga omnes or ius cogens are sources of law. Jus cogens is simply a way of characterizing certain rules of customary law as being heavier and more important than other international legal rules. Therefore, to my mind, they need more substantial proof of their existence, or at least of their special status, than an ordinary rule of customary law. To say that something is ius cogens means that, nearly universally,
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states accept it as a very important principle for which there is state practice and the belief that this state practice was adopted in compliance with internationallaw. So, I do not consider ius cogens as a source of international law. Erga omnes is, again, just a way of characterizing a particular legal rule, saying that it not only gives a right to a particular country, but it is a right exercisable by any member of the community. lt is simply a different sort of law. But it still has to be adopted either by treaty or by the normal process of creating customary law. I do not see either of these concepts as a new source of international law. They are a way of characterizing customary law and, in some cases, treaty law. In connection with the lawmaking process to which Professor Delbrück in particular referred, I would like to mention one more method of internationallawmaking that apparently has never seriously been considered but that seems to be available: to amend the UN Charter to create substantive law. To amend the UN Charter, what is required is an absolute two-thirds majority of the General Assembly, and then ratification by two-thirds of all member states, including all permanent members of the Security Council, at least the present permanent members. If the Council is expanded, one question will be whether or not that particular power will also be attributed to any new permanent seats. Yesterday, I indicated in the context of powers of the Security Council under Chapter VII that these might in some instances be used to create legislation, but suggested that perhaps the Council should not exercise such a power except with the concurrence of the General Assembly. But amending the Charter is a method of legislating that is also feasible entirely outside of Chapter VII. That is, if the UN Charter were amended, for instance, to say that the Vienna Ozone Protection Convention together with the Montreal Protocol were incorporated into the_ Charter, that could be done and these instruments would then become binding on all UN member states. The only states it would not be binding on are non-members like Switzerland and Tonga, but the rest of the world would be bound. Whether or not a state could withdraw from the United Nations, if it did not lik:e such an amendment, is simply not clear; but probably most states would not. That would seem to be an entirely acceptable legislative process. lt requires, on the one band, the agreement of a great majority of the world community - two-thirds of UN member states voting first in the General Assembly and then ratifying the amendment - and, on the other, agreement from the permanent members of the Security Council, because all of these would have to ratify. I am simply mentioning this as a possible process of adopting internationallegislation. It would not have the faults that I mentioned before with respect to the present legislative process, which creates a very uneven product, because no state has to ratify a legislative treaty, and those that do can join with reservations or exercising various options.
I would lik:e to now discuss the use of military force by the United Nations. Let me try to review some of the history and background and then mention some abstract concepts. Basically the United Nations has bad, up until now, three sorts of military operations: One is exemplified by the Korean and GulfWars, in which the II*
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UN Security Council simply authorized states to take massive military actions against North Korean and Iraqi aggressions. These authorizations could easily fit under Article 51 of the Charter; both cases were clear cases of collective selfdefense, consequent on an invasion of a state by another state. One can also say, as I suggested yesterday, that perhaps "authorized" military action is not precisely under either Article 42 or 51, but still within the ambit of Chapter VII and thus constitutes an exception to Article 2(4). If the Security Council authorizes states to use military force, whether or not this is done under Article 42 or 51, it can do so. The second type of UN-sponsored military actions are the blue helmet peacekeeping operations, the so-called "Chapter VI and a half' operations. I said yesterday, these must be based on consent; first, consent of states in which the operation takes place and with regard to which it takes place; second, consent of the states supplying the troops and of states through which the troops are to pass, etc. These do not fall under Article 42, they do not rely on the Security Council's Chapter VU powers, and can therefore be established by the General Assembly. Up until recently, there were only a few of these operations going on, and so al1 the necessary troops could be secured from nice states, that is the Scandinavians and the Canadians and Fiji and Nepal (which make something of business of doing so), and a few African states, like Ghana and Nigeria, all of which can supply reasonably well-disciplined troops and have no geopolitical interest in the places to where their troops were sent, such as the Middle East, or Namibia, or the Balkans. Consequently, these troops obey UN orders. That is, if the commander named by the Secretary-General were to order the Fijian battalion to take positions in three villages on the Lebanese border, they would do so. If they bad frequent difficulties with their assignments, then the government would inform the Secretary-General that on the occasion of the next rotation period they wou1d not replace their troops. The Secretary-General wou1d express bis regrets and would see about finding some other source, which would normally not be too difficult when only about 10 or 15 thousand troops would be needed at any one time. What units from these countries did not do was to refer to their home governments before responding to orders; they probably informed them, and if a government was unhappy, it would Iet the Secretary-General know. But meanwhile orders were obeyed. This changed, once the UN operations became so massive that these traditional suppliers of troops could no Ionger furnish all the necessary troops or the appropriate heavy equipment. The United Nations bad to start turning to the Big Powers; the French and the British in Croatia and Bosnia, and the Americans in Somalia. These are big democracies with geopolitical interests, and these troops do not necessarily obey UN orders. This changed the nature of the operations, not because of any inherent change in how blue hehnet operations were being run, but simply because they had to rely on different sorts of troops. The Americans, of course, made a great issue that their troops would not serve under any non-American command. The French did not say so explicitly, but when their troop contributions in ex-Yugoslavia exceeded a certain number, they simply told the Secretary-General that Swedish Gen-
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eral Wahlgren was out and General Cot was taking over; General Wahlgren and the Secretary-General were actually informed ofthat change by CNN. Though they arenot quite as blunt about it, the sarne is true when the British send their troops; it is basically quite clear that orders to British units are first checked with their national defense establishrnent. I could teil you of situations in which even the movements of a single plane have bad to be cleared with the national defense ministry, rather than with the United Nations. Although there has not been any change in legal provisions, this important modification carne about simply because the United Nations' demands for troops became too massive for small and medium states to supply. The suggestion was made by Mary Ellen that, as the United States has now clearly said that they will only send troops, or certainly large numbers of troops if these remain under their own command, then other states will also make similar demands. I hope not. I think what may have happened isthat the United Nations got ahead of itself. It moved from 20 thousand lightly armed troops in the field very quickly to over 80 thousand, in part more heavily armed. It should be possible to gradually build up a capacity in the United Nations and the world so that such numbers of troops can be obtained from those states that are willing to provide them under normal UN conditions. The recent sudden build-up may have led to a bit of a set-back, but I believe that over the years we will come back to genuine UN control over the borrowed forces it deploys - and maybe the United States will change its mind about always having to have the command. If it does not - and as long as it remains the only Superpower, perhaps it will not - one can but hope that most of the time the United Nations will be able to act without massive US contributions, so that these problems will not arise. Now we come to the third sort of operation, exemplified by Somalia and by exYugoslavia, •i.e., Croatia and Bosnia, which differ in two ways from classic blue helmet Operations. First of all, they are under Chapter vn. Somalia was established under that Chapter, and although Bosnia/Croatia started off as a regular blue helmet operation, they were renewed about a year later under Chapter Vll. So, in principle, consent was no Ionger a factor. However, the main practical difference was that, for the reasons I havt just explained, many of the troops who were supplied were ones who were no Ionger prepared to unconditionally obey UN orders. I see this as a practical rather than a legal issue and, as I have indicated, I hope that, when we get back on track, Chapter VII operations will be clearly regarded as UN Operations - unlike the Gulf and Korean Wars; these were never UN operations in any sense but rather collective national ones under US command (though, in the case of Korea, nominally under the UN flag). In this connection, the question of the Article 42/43 relationship carne up again, and I agree with Professor Sehreuer that the application of Article 42 is not conditional upon the availability of Article 43 forces. These two provisions are independent; at least to my mind, Article 43 is simply a way of facilitating the implementation of Articles 42 and 48. But still, this is a matter one can disagree on, and this is not merely an academic dispute but
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something that actually has been raised in the United Nations. So far, that question remains unresolved. However, I cannot agree with Professor Stein that Article 43 is a dead Ietter. To my mind, it is a sleeping Ietter. I think the situation will arise when Article 43 may be reincamated or indeed it may be superseded somehow. But there is no need to alter the Charter yet. Let me comment very briefly on the question, which Professor Sehreuer raised, of the applicability of the Geneva Conventions to the United Nations. He was entirely correct in his analysis and he is entirely correct in the remedy he is proposing: that there should be a unilateral formal solemn proclamation by the United Nations, presumably endorsed by the General Assembly andlor the Security Council, that the United Nations will comply with their obligations. The position of the successive UN Legal Counsels has always been that the United Nations is in any event bound; first of all, because the Geneva Conventions constitute customary law, possibly at the Ievel of ius cogens, and therefore, their basic provisions (e.g., protection of civilians, etc.) are ones that cannot be evaded by the United Nations. (That applies, incidentally, also to UN sanctions. As I said yesterday, sanctions always do take account of humanitarian considerations. Whether they do it effectively is another question, but there has never been any attempt to impose or apply sanctions in such a way as to starve civilians.) What the UN Legal Counsels said was that: (a) The United Nations cannot formally become a party to the Geneva Conventions, because that is not foreseen; only states can become parties; (b) an international organization could not fulfil all the Convention obligations, for instance, by trying and punishing criminal violations; and (c) it is unnecessary, because in any event the troops that the United Nations uses are those of states bound by the Geneva Conventions. The question of participation would arise if the United Nations were to use its own troops. At this time, the United Nations does not have any troops of its own - except for the few "guards" that are used in northem Iraq to protect the Kurds, which are, in effect, UN troops. Regarding these, the question could have arisen as to the direct applicability of the Geneva Conventions, because these are not soldiers of any national command that is subject to the Geneva Conventions. Anyway, in principle I agree with Professor Schreuer's analysis and solution. Let me now make a quick remark about Bosnia. As to the arms embargo applied to all of ex-Yugoslavia, including all forces in Bosnia-Herzegovina, I consider that the Security Council can decide to maintain that embargo and thereby supersede any inherent right of self-defense, since the implementation of that right of selfdefense is subject to the Security Council. This is simply the way I read Article 51. But Iet me raise a practical matter: Because of the geographic situation of Bosnia, and in particular of the Moslem part of Bosnia, there is no way of supplying Bosnia with arms except through the neighboring countries of eilher the Republic of Croatia or the Federal Republic of Yugoslavia, as well as through the Croatian or the Serb parts of Bosnia. So, quite aside from any arms embargo, if states do not want to violate the sovereignty of Croatia or the Federal Republic of Yugoslavia,
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they cannot supply Bosnia with arms, simply as a practical matter. Beyond that, of course, as Mary Ellen pointed out, the Bosnians have been getting arms - through smuggling. They are smuggled through the Croatian lines and even through the Serbian lines, as one can do almost anything in the Balkans with sufficient bribes. That is the way that weapons and troop reinforcements have come and could come to Bosnia. That is simply the reality of it. Let me now make some very quick comments on Lockerbie. Mary Ellen appears to have misunderstood the point I made yesterday. I did not suggest that the Security Council is acting outside its powers under Article 39. I was simply saying that it might be considered an abus de pouvoir to say that whatever Libya is accused of realistically constitutes a threat to the peace. I said this is arguable, but I was not suggesting that the Security Council was outside of the powers it could exercise; clearly it acted within Article 39 of the Charter. What I question is whether one can really hold that the Libyan failure to extradite two individuals really directly threatens the peace. Professor Stein suggested that self-defense is a method of law enforcement. I would not so characterize it, any more than I would do so in respect of self-defense in ordinary domestic criminal law. If somebody comes up to me and tries to shoot me, and I hit or shoot back, that is not enforcing the law against assaults. I merely do what I have to do to stay alive until the police come by, and when they do, they will enforce the law. I am just protecting myself, not the law against assaults. But if I attack someone after he has assaulted me, that would not be characterized as legitimate self-defense, but as an illegal countermeasure. Professor O'Connell suggested that the ILC is trying to restriet the right of states to take countermeasures. I do not know whether the ILC is really trying to do that, but I can see that the post-Uruguay Round GAIT system, particularly the new World Trade Organization, will in the economic field considerably restriet the power of the United States to take countermeasures, because there will be a far more effective system of dispute resolution. So, there is a network of economic and other forces that will have the effect of inhibiting unilateral countermeasures, whether the ILC is progressive in that line or not. I think Mary Ellen may have misunderstood what I said about the German court and the Yugoslav War Crimes Tribunal. I did not mean to suggest that because of Iack of funds the War Crimes Tribunal is going to cease operating. There is simply a snit between the General Assembly and the Security Council, but the Assembly has always seen to it that there are just enough funds available, and perhaps now it will adopt a new budget on a long-term basis. What I did mean to say is that, at this point, the German court could not band over any accused Yugoslav war criminals to the War Crimes Tribunal because that Tribunal has not yet indicted these people, as it is not yet in a position to indict anybody. But as soon as a Prosecutor is appointed and the latter finds or receives sufficient evidence against the person charged in Germany, he may draw up an indictment, which would have to be ap-
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proved by a Judge of the Tribunal. As soon as that is done, an arrest warrant can be issued, and presumably, since the accused is known to be in Germany, it would be sent to the German government. Then the question for the Tribunal would be whether it wants to take precedence over the national court. lf it wants to, it has a right to. So, until the Tribunal is fully organized, hopefully yet this year, the Germans have no way of transferring an accused to the Hague. One final point: Professor Delbrück suggested that the General Assembly might, under the Uniting for Peace Resolution, authorize the use of military force by regional organizations under Articles 52 and 53 of the Charter. My own feeling is that the Assembly could not do so - that whatever is assigned by Chapter Vll or Chapter Vill to the Security Council cannot be done by the General Assembly. The authorization to use or permit the use of military force is peculiarly that of the Security Council. As the ICJ held in the Certain Expenses case, the Council does not have an absolute monopoly with respect to the maintenance of peace and security. The Council only has the primary role, and the General Assembly has at least a secondary one. But the authorization to use force is one that is restricted by the structure of the Charter to the Security Council. If it does not exercise it, then it cannot be exercised by anyone eise. The Uniting for Peace resolution does not try to do that. It merely says that when the Council is paralyzed, then the Assembly, in spite of Article 12 of the Charter, may intervene in a situation and do whatever it can do under the Charter. There are certain actions that it can take, like organizing peace-keeping forces, not on an Article 42 basis but based on the consent of everyone concerned. Stein:
I am in agreement with Professor Tomuschat with regard to the Bosnia-Herzegovina embargo and I would like to respond to Professor Szasz's last Statement, that it may weil be that, from a technical point of view, there is no way of bringing heavy arms into Bosnia. But I see this as a matter of principle and not that much as a matter of a specific case. Take any other state and one wou1d have the same problem. I would like to maintain that the right to self-defense is an inherent right, and consequently the Security Council cannot take it away by simply saying: "We do not want anything to be done. Leave it alone." I think otherwise Article 51 would make no sense. If you read Article 51, it is a strange provision anyway. The second sentence does not simply repeat the frrst one. There are different words. There is a certain inherent ranking between the two rights mentioned in that Article, the right of the Security Council and the right to self-defense. Next: I do not think that the applicability of the humanitarian law of armed conflicts in an ongoing UN-sponsored or UN-authorized operation is really a big problern. The disciplinary power over the troops always rests with the sending states, and they are bound by the Geneva Conventions. Therefore, I do not see any problern in whether the United Nations is bound as such or not.
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I agree that Article 43 of the UN Charter might not be dead but simply sleeping, but then it is a deep and sound sleep. If states one day in the future accept the conclusion of an agreement under Article 43, they will most certainly therein retain the ultimate decision to say "go" to their troops. Even under the alliances, military alliances like NATO, there is no automatic engagement of forces. We might see one day some Article 43 type agreements, identifying certain units which might have to be maintained in a certain state of readiness in order that they may be called up very quickly by the Secretary-General. But even then, undersuch agreements, the states will retain the ultimate decision as to whether to release their forces or not. I still have my doubts about the Lockerbie case. Even if the Security Council mentioned terrorism in its resolution, thereby putting some Article 39 gloss on the whole thing, the operative part of the resolution requests Libya to reply promptly and in full to the request made. The request was to extradite, and once Libya would have done that, there was no further action foreseen in the resolution against that "terrorist state" by the Security Council or the members of the United Nations; the obligation to apply sanctions would tenninate immediately. So, I still believe that the greater weight in that resolution lies on the side which appears to enforce a treaty obligation under the Montreal agreement. Maybe the Security Council was right to say that this is an Article 39 situation, because there might be the danger of another air-raid on Tripoll or whatever, and that would clearly constitute an Article 39 Situation, but the Security Council certainly reached the outer limits of its competence with the Lockerbie resolution. O'Connell:
I am sorry that Christoph Sehreuer left. When he started talking about using domestic courts to enforce internationallaw and especially UN decisions, an idea that bad been in the back of my mind yesterday came forward with regard to our discussion of judicial review. I wanted to ask him whether it is likely that a domestic court, when called upon to enforce a UN embargo provision, for example, by enforcing an attachment order on goods that were in transit unlawfully under the embargo, would actually go so far as to look into the legality of the Security Council Resolution which ordered the embargo in the frrst place. That would raise a really exciting new topic of discussion for us about the ranking of legal institutions and the ability to review Security Council actions. I know that American courts would not hesitate. Many of them feel in no way restrained by the august position of the Security Council from looking into the Council's actions- similar to the the trend towards reviewing arbitral tribunal decisions in the United States, despite treaty provisions saying that these decisions were beyond review. That would be an interesting possibility, and I wanted to hear Christoph's comment on it. This idea also leads me to ask Professor Szasz whether, if the Security Council committed an abus de pouvoir, an abuse of power, that would be sufficient grounds for
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a finding by a court, the International Court for example, that a resolution is invalid. Or isthat not a sufficient legal basis? Szasz: That is a good question. O'Connell: In the way you formulated your comment you seemed to suggest that that would not be a basis. Szasz: I am simply distinguisbing between acts within and outside the jurisdiction of the court. As in American law, a judge who acts within bis jurisdiction cannot be sued personally, even if bis judgment is entirely wrong. O'Connell: But if he acts in abuse of power, bis judgment will not be given legal effect by a court of review. Szasz: In that case he cannot be sued personally, but he may be reversed on appeal. O'Connell: The practical question is: Would this not be a basis for the International Court, at some future time, to find a Security Council resolution legally invalid? Szasz: Yes. If it is put to the ICJ, either for an advisory opinion or collaterally in some way, then the Court could say that the Security Council's determination constituted an abus de pouvoir and therefore the determination has no legal consequences. For instance, if somebody violated the Libyan embargo, he could rely for justification on such a holding of the ICJ. Whether a national court could issue a decision based on such a World Court holding would depend, of course, on the jurisdiction of the national court. O'Connell: It rnight assume jurisdiction, for example, based on the presence of goods in transit in the United States, where such an in rem action could be brought. From
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what Professor Rubin told me during the break, it would even be possible for nonUS citizens to bring a case in a US court to stop goods that were flowing from an embargo breaker. Would the court in that case Iook into whether the Security Council resolution was legally valid? Szasz:
Actually it would not come to a US court. What would happen is that the US President would issue an Executive Order to implement the Security Council resolution, and the legality ofthat Executive Order would be at issue. O'Connell:
Right, so the US court would enforce the executive-order-version of the resolution, but if there were goods coming from another country, a ship docking for refuelling for example, would aUS court then take jurisdiction and review? Szasz:
A US court will always Iook at the US Executive Order and see whether it was proper or not, because Security Council resolutions are not self-executing. As you know, in the case of the Rhodesian sanctions, Congress passed a law that these sanctions be disregarded with respect to certain types of metals. That was upheld by a US court on the ground that the congressionallaw superseded the earlier international law, i.e., the Charter and the Security Council action based thereon. But that is not directly answering your point. O'Connell:
A better example would be the case where the executive did not make an embargo order because perhaps the executive had not acted quickly enough, and then the goods came in and the third non-US party tried to stop them.
Li/lieh:
May I interject a factual point? No US courthasever directly applied a Security Council resolution as far as I know. They apply regulationstaken pursuant to executive orders supposed by implementing such resolutions. That fooled a good many of us during the Rhodesian embargo because we were looking at the executive orders and the executive orders looked like they were in full compliance with the resolutions, but in reality, when the courts actually got into it, they entirely ignored not just the Security Council resolutions. They also bypassed the executive orders and for the rule of decision purposes looked at whatever regulations the Commerce Department and the Treasury Department had adopted. And these regu-
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lations, in my opinion, contained so many loopholes that they could not be said to implement the Security Council regulations. Rubin:
About thirty years ago I was Director of Trade Control in the Department of Defense and wrote some of these regulations or at least coordinated with the Treasury, Commerce, and State Departments on their various aspects. Dick is quite right. lt does not work quite as simply as we would like. Nothing ever works as simply as we would like. There is no distinction drawn in the courts between the foreigner bringing a case and the American bringing a case in this kind of context. But what would happen is the case would be brought and the court would not know whom to order to do what. That is, the goods should be stopped by an executive person, not by a marshal of the court, and unless the executive branch were to receive the order and stop the goods in transit, they would not be stopped. lt gets extremely complicated. If I were a shipper, I would get the goods out of there before the complications could be totally unravelled. I think we should better leave it at that. O'Connell:
Actually I wonder if maybe Dick was going to say something more, because I thought at least the basis of the description of the cases that ·he was telling me about during the break, which were direct applications of international law to the detention of assets in the United States against foreigners, would provide the jurisdictional basis for what I was talking about. Sanctions are usually enforced in that way. To me it is an interesting question for US courts whether - if you consider the Security Council embargo order as part of general international law - the courts may take action on these assets, in enforcing international law, where the executive had not made an order. Szasz:
I remernher one case that came up in UNIFIL. There was an Irish unit, and one of its soldiers killed another member of his unit and was shipped back to Ireland to be tried there. The Irish court then requested the United Nations to provide a certified copy of the Security Council resolution under which UNIFIL was established. That then led to difficulties because the United Nations does not prepare unique signed copies of resolutions adopted by its organs - like the signed copies of laws that exist in many national archives. When we so informed the Irish authorities, they said they needed a witness who was there when the Security Council resolution was adopted. As it happened, we were able to find someone who was present at that meeting and who could be sent to testify. However, I did ask them, what if they needed to rely on the Magna Charta - would they require someone who was
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present at Runnymede? But the point is, the Irish court evidently somehow considered the Security Council resolution a direct source of law that was relevant to their ability to convict an Irishinan who bad coounitted a murder outside of Ireland but in UNIFll.. service. Obviously here they were relying on the Security Council resolution directly. O'Connell:
But not examining it. Szasz:
But that was not the point. Presumably they could have examined the resolution. All they wanted was to be sure that the Security Council bad actually adopted it. O'Connell:
Professor Stein has said that there is an inherent right of self-defense. I am not sure whether this really has the force that he is suggesting. Before the adoption of Article 2(4), states bad the inherent right to use force to enforce their legal rights. They gave that inherent right away, or accepted Iimits thereto, with the adoption of the Charter. But I think maybe we will be forever disagreeing on the irnportance of the "inherent right" language. Just briefly regarding your comment about Article 43: I also think that Article 43 is in very deep slumber, but I think there have been a number of plans around about how you would overcome state control of UN forces. Some people are suggesting going sofaras allowing the United Nations to recruit its own individuals, which Paul mentioned, and training them, so they would not come under national control. They would begin to tak:e on the kind of Iook of the French Foreign Legion for example, and would be much more independent from the state governments. In that scenario you could perhaps break the control that states wanted to have over their own troops, but that kind of scenario in March 1994 Iooks, you know, very much farther away than these proposals did in 1993 and 1992. Delbrück:
Let me turn to Mr Tomuschat's objections. I agree that ius cogens may not be the strongest indication of the changes I have been talking about. But on the other band, when have we ever inquired whether the formal criteria on establishing ius cogens have actually been fulfilled? It is a rather spontaneous happening in the internationallegal system that some rule is called ius cogens. Self-determination is a case in point. In the 1960s, we discussed whether self-determination was a legal principle at all. Then almost within months, we were just discussing whether it was ius cogens or not. The debate about whether there was state practice and opi-
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nio iuris just did not happen. Why? Weil, at the time, in the 1960s, we had the decolonization process, and independence and self-determination became fundamental values of the international community universally. So, this process had to be propped up somehow, backed up by a stronger notion of what the right to selfdetermination meant. Thus it was declared ius cogens. I did not in my paper refute the notion that ius cogens is a law which could not somehow be subsumed under the criteria of how customary law is created. But the effect attributed to this law is such that one may wonder how this weightier effect comes about, and why third states are affected so much by this, without having been involved in any practice or having consented to the specific effect of the respective norms. This is why I brought in the notion of ius cogens. But the stronger case I have to make isthat of the erga omnes norms, because we are agreed that these norms are binding on all states, whether they have consented to the norm or not. This, again, is a matter of their effect, not of their creation. Chamey made that case quite convincingly. This is something which is not comparable to the effect of traditional law, where third states are not affected by a law they have not consented to, particularly if erga omnes norms are created by a treaty, which has been suggested could happen and which actually did happen with the human rights covenants. Once these norms are established, we are extending the system of law to the extent that third states are bound by these erga omnes norms, as the Court named them, for example in the Barcelona Traction case. So there is something new going on, this is all that I have been saying. I said I would state the case very pointedly in order to make it very clear what I mean. But here, I think I am also on firm ground, not "dishonestly smuggling something" in. lt is a fact that there are norms which are public interest norms, as I have called them, and which ask for observance by third states who have not participated, either in the lawmaking or in the erga omnes effect-creating process - if one wants to separate the latter from the former. That is what I have fii11lly said. This is a deviation from the traditional consent-based way of making international law binding.
Second, I was glad that Professor Tomuschat accepted the term "public interest norm." But then he somehow qualified the notion because of a lack of an effective mechanism to enforce these public interest norms; states trying to enforce these norms may actually only pretend to act as agents of the international community. I cannot really see why we would need the expressly institutionalized type of mechanism for this. If we accept the notion of public interest norms, or erga omnes norms, if one wants tobe less pretentious, then, I think, the raison d'etre of this category of norms excludes that their enforcement is used as subterfuge for pursuing purely national interests. States may do this at the same time, but basically the whole idea suggests that this public interest notion is overriding, whether some state enforces a public interest norm purely bona fide or not. The enforcement is still in the public interest - a very different setting from what the case would have been before these notions had been invented or brought about. I do not know whether I can make it plain in English: German public law knows an institution or
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procedure to enlist private corporations to execute public duties, to exercise public functions, the so-called "beliehener Unternehmer." The corporation acts as a private entity in terms of how the job is done. It will not neglect profit-thinking or anything like that. It will do its business. But since it is empowered by the state to carry out this particular public task as a private corporation, it does not act as a private, privately interested corporation, but rather as an agent of the state. Analogies are never completely satisfactory, but this is what I am thinking of. We have acknowledged by these norms of public interest a common concern, a global concern, and the norms are reflecting this, and then states are enforcing this public interest as agents of the international community. Can we really say that a state who is taking things seriously and is enforcing the norm is doing this as a normal state would enforce national interests egoistically, selfishly? So, that is what I am hinting at. I think Article 218 of the UN Convention on the Law of the Sea is really a case in point. We ernpower states, coastal states, to enforce environmental norms of that Convention, although they are neither directly affected nor have suffered any damage, just because pollution in the high seas with oil or other stuff is not permitted, and this is apparently a rule erga omnes. So this state is empowered to do this. And this is also an expression of how erga omnes norms and environmental norms coincide. Environmental law is really the rnine from which I can derive my examples; international environmentallaw is one that is very intimately related with the public interest of the international community. Morrison:
May I intetject here. The American expression for that would be that because he performs a public function, the individual has become a "state actor" and is therefore subject to the same constitutional lirnitations as apply to the govemment. I assume what you were saying is that the state has become an "international actor" and is performing an international function. Delbrück:
Yes, in that sense. As to Paul Szasz's objection saying that ius cogens or erga omnes norms are no sources of law, I fully agree and have no exception to make to this; butthat is not what I said. I did not contend that these norms are sources of law. What I was talking about is the scope of the binding force of these norms, which relates to the question of the secondary set of norms, that is different in the case of erga omnes norms. We are used to talking about consent as creating binding law, or about naturallaw principles underlying the law, giving a binding force to the law, public law, and I said that neither is satisfactory in an era of global concern; we need normsthat are binding on all states independently of their consent or any other construct. My basis or proposition was that this binding force, the legitimacy of construing the binding force this way is that law is binding because it is necessary, not in an empirical sense but rather in that the binding force is related
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to the value judgment that the survival of mankind is something which is worthwhile pursuing. This can be done only if we have the relevant international legal order, and its binding force derives from this value judgment. You cannot have the jump from the empirical to the normative, from the "is" to the "ought." This is not what I am doing. I am saying that the "ought" of the international law comes from, stems from, derives from the value judgment that the international community, the international system is worth being preserved vis-a-vis the challenges that we are facing. So, I did not say that these norms as such are sources, but rather I talked about the source behind them from where their binding force and the scope of it come. Let me turn to the erga omnes norms issue. lt is true that erga omnes norms are created possibly by treaty law and in other cases by customary internationallaw. In that sense, consent ad hoc may be there, although I would say that it is not essential anymore if I take the other basis - law is binding because it is necessary from which these norms derive their binding force. Paul, you said that bare consensus or consent was an essential element. But the actual test to that I am referring is not so much how these norms are created. The result, the effect erga omnes, is the essential thing: that other states who did not participate in the process of creating these norms and did not explicitly consent to them, or rather their special effect, are bound. There, I think, is the deviation from the consent principle. Maybe I understand erga omnes wrongly, but taking up my Latin, I understood that erga omnes means "between all." The persistent objector vis-a-vis erga omnes norms would not carry through. The last point: Uniting for Peace! I have, and have always bad, a wider understanding of the Uniting for Peace resolution. The way you construe it, Paul, it amounts to saying that if the Security Council is unable to act in a particular situation where it actually ought to act under Chapter VII, because of blockades in the voting system, then the secondary or subsidiary responsibility of the General Assembly comes about, as the General Assembly can make recommendations under Articles 10, 11 and 12 of the Charter, which are within the ambit of its competence. I cannot see where there is any subsidiary exercise of powers substituting for the Security Council which was to be the effect of Uniting for Peace. The authors wanted to Substitute something for the inactivity of the Council, because the resolution is not only a procedural device to deal with Article 12, to remove Article 12 as a blockade. This Article in its frrst paragraph says that as long as the Security Council is concerned with the matter and does not decide, then the General Assembly cannot make any recommendation on the issue under consideration by the Security Council. By the Uniting for Peace resolution, this blockade will be removed if the Security Council is unable to act on the matter in any conceivable way. In substance, it was the vote for a secondary or subsidiary capability of the organization through the General Assembly to do something. So, from there I see the mandate established under Uniting for Peace; but I think we need not pursue this any further because it is actually just a footnote. I want to indicate, however,
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that the gap between what the Security Council can actually do if it acts, plus the possibility that in all these or most of these cases Article 51 is actually applicable and the case that no action is possible - neither under Article 51 nor through the Security Council - is small. I tried to make it even smaller by saying that we could possibly go via Uniting for Peace with the General Assembly as a substitute under Article 53. But if you do not accept this, I am not unhappy. Still the gap would be small, and I see no reason to undermine the monopoly of the Security Council in exercising enforcement measures by letting other organizations exercise independent law enforcement authority in this case. Rudolf:
I am fully in accordance with Professor Sehreuer arguing de lege lata and de lege ferenda. It was my impression that Professor Delbrück, in the second part of his paper, did not refer to the situation of international law today but that he showed us the tendency of the development of internationallaw in the last decade, and I agree with him. He argued de lege ferenda, but that is the way international law is going forward. As to the lawmaking process, I mean that the 2000-year-old doctrine of customary law is not sufficient because in several cases there is no custom at all. There may be consent but in most cases it may be doubted. So, it is hard to say that what we need is consent because there is no custom. We have to argue, like Professor Delbrück did, that an international norm is necessary for the survival of mankind. What we have to do is overlook the whole theory of sources of internationallaw because the traditional customary law is not helpful in several cases of the survival of mankind. As to the Geneva Conventions and the UN peace forces, what I wanted to say has already been explained by Professor Szasz. It is common opinion that these forces are bound because of their national law and that they are also bound because of customary international law. It may be necessary to reconsider the problern regarding Article 43 in order to wake it up from its sleep. Koch:
I just want to make two brief comments. First, I would like to add to some of the words of praise that have been found for the concept of public interest ,being developed, or having been developed, or being in the process of being developed in the last few years and in the last decade. I want to add to those words of praise and say that I feel that that is a very proper way of describing what has happened at least since the end of the Cold War. I think that perhaps the best example from the !arger political scene is what we are seeing in former Yugoslavia. I think it is important to realize that, let us say, 50 or 70 years ago such a conflict would have been regarded simply as a civil war down there ii:J. the Balkans with no consequence whatsoever to international law or to the international community. It just would have been something about which every once in a while one of the more adventurous12 Symposium 1994
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minded joumalists would report in the pages of the New York Times and that would have been it. Today we hear, with a Iot of justification I would think, a Iot of criticism about the inability of the state community to act with the necessary determination to end the conflict. I think that criticism often tends to miss the point, the point being that there is, not only amongst the political class, but also with the man-on-the-street, in almost all western countries, a feeling that this is a source of shame; that it is not something that you can simply ignore; that something ought to be done. I think this is a very clear expression on a very broad political Ievel of a sentiment of public interest that transcends the individual state. I wonder whether perhaps that eternal revenant Jean-Jaques Rousseau would have something to say about this. Perhaps one can describe this development in terms of a move from a volonte de tous to a volonte general; a volonte de tous in that we have a situation where you have a collection of national interests that sometimes overlap, and then you can achieve some sort of result, but that sometimes do not overlap, thus achieving nothing in a situation where an attempt is made to formulate an interest that is no Ionger just the lowest denominator of a Iot of particular interests but is an interest really common to all the members, in other words, to all states belanging to the international society. The second point is something that was raised in your comment, Professor O'Connell: Perhaps it was an aside and perhaps I misunderstood it, but I found it a little bit disquieting. You raised the issue of the role of domestic courts in international enforcement, and you looked at a specific possibility, namely that a national goes to bis or her domestic courts trying to enforce international law of whatever kind against another state. In other words, to create an example, an American citizen goes to an American court to sue, for example, the federal government of this country claiming that it is in breach of some international obligation.
O'Connell: There is a more exciting case where the national of another country, not a US national, but a German or a Phillipine national comes to the US and sues the third state.
Koch: If you are talking about a German coming to the United States and suing the American Government or an American coming to Germany and suing the German Govemment before a German court, I think that is unproblematic. If you are talking about an American or a German for that matter suing the German govemment before an American court, that I find very problematic. And indeed, I find it so problematic that I would say such a thing simply should not be allowed. I would suggest that otherwise you throw out the principle of state immunity, and this would be dangeraus in the extreme since it would really, to name but one possible repercussion, make it very diffi.cult to conclude any sort of peace agreement or any
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sort of contractual agreement between two states because you could always undo it by way of Iitigation started in another country. But this is something where perhaps, as I said, I may have misunderstood you. O'Connell:
I think you have it exactly right. I argued that the concept of state immunity prevents the effective enforcement of international law in many cases. I take the premise that the courts will properly apply international law and only enforce it when it has been violated by a state. Otherwise, what you are implying is that we cannot trust state courts to effectively implement and enforce international law. That is the argument that has to be faced, but those who want to see more effective enforcement of internationallaw, I think, would take on that. What we hav~ now is very rare enforcement in the case of violations of general international law. We have good compliance; but where compliance fails, we do not have many effective means of enforcement. Professor Tomuschat already acknowledged that courts all the time apply inte1,11ational law. The question is whether it is going to be inherently unfair when you start mixing up the nationalities. At least before the International Court of Justice, we do not seem to think that that is a risk. Is it really going to be a risk if we use national courts to do the same thing? I tend to think that it would be worth it in the long run to use judicial control. We do not apply the same kind of controls and objective analysis to the application of countermeasures, despite the mix of nationalities. We let the states self-judge and apply their own enforcement measures. I tend to think we would be in a better situation, a fairer situation if we used courts, even of the domestic type. But that is the old debate on using domestic courts. When I work further on this chapter, I will try to judge or address your concerns a little more. I do not fear that international law will be abused when it is so enforced. Koch:
I am not concerned about the nationality of the persons. What I am concerned about is the possibility that I can go to a court of one country to sue another country, in other words, to make one country subject to the court of another country. That I find very problematic. Rubin:
First, I want to express enthusiasm for a point raised by Torsten Stein that has been more or less ignored in the discussion. That is the notion that states perhaps ought to have or do have the authority to act for the Security Council when the Security Council appears to have an obligation to act which, for whatever reasons, it cannot discharge; for example, troops may not be made available by member states or the money may not be forthcoming. The most notorious example, of 12*
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course, was the Security Council decision ordering Argentina out of the Falldandl Malvinas Islands. The British went in and got them out. 1t seemed to me that the British were then doing what the Security Council could have done and perhaps should have done. The British preferred it this way, and I see no objection to it. The Argentines bad clearly violated international law with their invasion of the Falldand/Malvinas, not under Article 2(4), which implies something like a judicial determination of property rights or British sovereignty in the Islands, but under Article 2(3). Under that provision of the Charter, a state may not resolve disputes by invading disputed territory. The same thing occurred when Iraq invaded Kuwait. Even if Iraq were correct in its arguments about territorial sovereignty and the validity of some earlier treaty, under Article 2(3) of the Charter, it is no Ionger legally permissible to resolve disputes that way. Reacting to violations of the Charter is a function of the Organization. lt seems to me that this is a neglected authority, one that should be explored further. I did want to correct the point about Bosnia and self-defense. I found it very hard to follow the discussion about self-defense in Bosnia since the Muslim-dominated govemment of Bosnia, at all pertinent times and even today, as far as I know, regards the fighting there as an internal conflict. If it is an internal conflict, it is a govemment defending itself, not a state defending itself. In these cases, it seems to me that the self-defense argument fails. In other contexts, Bosnia has said, "No, the others are obliged to stop fighting here, but we are not obliged to stop fighting"; but any argument on that point, it seems to me, causes some internal contradictions. I have spoken, and I suspect some others have also, with Ambassador Sacerbey about it. If I understood him correctly, he agrees there are contradictions, but the Bosnian authorities argued differently for different audiences. It is perfectly understandable that that is what statesmen do, but it is our function to see through it. As far as domestic enforcement is concerned, I will stay off the point properly raised by Dr. Koch, with whom I agree up to a point. I have written this, but to a very loud silence in the United States, most of my colleagues being overwhelmed by the enthusiasm for the Foreign Sovereign Immunities Act. But I think basically there is more of a point than Americans are normally willing to admit. I expect that we will come to a point in due course when people begin to sue us and apply our approach to the law in their own countries applying the normal rules of reciprocity. Time will take care of that. As to the German arrest of an accused Bosnian Serb war criminal and the problern of what to do with that person, whether to send him to The Hague or to try him in Germany: it seems to methat there is a third alternative which is the one in fact required by the 1949 Geneva Convention whether the situation in former Yugoslavia is legally an Article 2 or an Article 3 conflict, that is, just to band him over to the Bosnian Muslims. Why should Germany try to run a fair trial when Germany has no standing on the case? The defense cannot subpoena evidence; the
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prosecution's evidence is strong but not irrefutable, as far as I can see. The position of a prisoner of war is safeguarded by the Conventions. The accused will, if not tried by the Muslims, have to serve as a prisoner of war for the duration of the conflict and then be tried, and if he thinks that is going to be pleasant for him, he ought to be advised by a better lawyer. I simply do not understand what the problern is on this. After all, being in prison for the duration of the conflict is - in the circumstances in the Balkans, if I read it correctly - Iife imprisonrnent, which is what he would get in Germany if he were guilty of everything with which he was charged. The only difference is that he would get occasional Red Cross visitations which he would probably get anyhow. Why do we, as international lawyers, tend to view every case as requiring new law when the positive law, which has been so painfully negotiated over the years, in fact covers the circumstances pretty well? Where it does not cover them precisely, weil, new law is going to be ad hoc and will not cover the circumstances precisely either. The law works in generalities applied to particulars as the cases arise. Finally, on the question of lawmaking authority: In asenseit seems to methat lawmaking in the international legal order does rest on consent, but consent can be implied, as lohn Locke pointed out, by simply joining in the benefits of society. The previous Kiel Conference got me thinking in ways that I presume conferences are supposed to, although my conclusions might not have been what the conference participants bad expected. They were published in the Harvard International Law Journal about a year ago. The basic pointwas that, because states do not exist in a vacuum, there are obligations that they have, whether they want to recognize them or not. If a state accepts the benefits of international society but refuses its obligations, it ends up isolated. 1t has difficulty in trading, difficulty in maintaining a viable economy. Iran tried it for a while and still tries it from time to time. It is an ancient notion, it is nothing new or original. lt is in Grotius and Vattel. It is a notion that was much perverted by some writings of the 19th century in the heyday of positivism. I think: Joseph Story got it all wrong. It does work. Political pressures are applied to states to force them in their own interest to behave in ways they would prefer to avoid. That is an enforcement process and it contains rules based on virtue-morality. There is a community enforcement process that requires states to behave in ways that their neighbors regard as morally virtuous. Then there are amoral customary rules. When states do not behave according to the way that states have habitually behaved, there are ways of trying to hold them in line. There are many other sources of law, and there are many enforcement processes. The notion that every rule of law must be a rule of positive law has simply never been true. The notion that rules based upon virtue-morality or comity must be enforced by the mechanisms of positive law because we alllive on one small planet and therefore must behave in certain ways simply to survive is simply not correct and has pever been correct. The examples that come to mind to illustrate the interplay of interest, morality, and positive law are things like the Torrey Canyon incident where, despite being threatened with massive pollution, the British did not just
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bomb the Torrey Canyon ship, but searched desperately to find out where they could get the authority to bomb it. The result was an ineffective bornhing and the IMCO - now IMO - Convention on Intervention, whose provisions are in fact codified in the UN Convention on the Law of the Sea, Part XII, Section 6, of which Article 218 is a part. This is not making up the law, this is translating rules of comity into rules of positive law, as statesmen decide in a lawmaking process that a law enforcement process that rests upon positive law is desirable. States may refuse to go along with that positive law enforcement process, in which case it does not mean that they have not violated or are not violating the rules of comity, the rules of natural law, the rules of good neighborliness, etc., but they do not become subject to the positive law enforcement processes. I did want to address briefly the notions of ius cogens and erga omnes. An erga omnes rule is normally taken to be not merely a rule that applies universally. Nearly all rules. of intemationallaw apply universally. Normally, ius cogens is taken to mean rules for which there is universal standing; that enforcement is available universally; that a state not involved in the violation can trigger the enforcement process. I do not know that there is anything, any substance, to the erga omnes notion. The Nottebohm case obviously denies it. The South-West Africa decision of 1966 denies it. Barcelona Traction itself denies it, except in the two paragraphs where the ICJ majority said it does exist, then by a vote of 15 : 1 refused standing to the Be1gians. In fact, the rule has never been applied. As to the examples cited by the Court, piracy, genocide, etc. - I know of not one case that supports the opinion of the Court, not one. I think that in the Iiterature of every reported piracy there is not one case that unequivocally supports that conclusion. As far as genocide is concemed - if you read the convention, the object and purpose was not to forbid genocide but to define genocide and al1ocate enforcement authority. lf you Iook at the allocation of enforcement authority, it is restricted to the state in whose territory the genocide happened - which is very unlikely to charge its own officers with genocide and has never done so - or to an international tribunal if it is ever established with the appropriate authority. I am not sure that such a tribunal will ever be established, but if it is, that is fine. Then you will have a positive law enforcement mechanism. Tomuschat:
We already have one, the Yugoslavia War Crimes Tribunal. Rubin:
I have written a couple of articles on that. In my opinion, there are serious problems with the Tribunal. I will only believe that it will work when it actually works.
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As to ius cogens: the fundamental notion of ius cogens in the Vienna Convention on the Law of Treaties was that there is an international public policy limiting the authority of states to conclude treaties dealing with certain subjects, just as there are national public policies limiting the authority of private persons to conclude treaties dealing with certain subjects. A treaty that violates that policy is simply not a valid treaty, just as a contract between thieves as to how to divide stolen loot is not enforceable as a matter of municipallaw because it violates public policy. I looked to fmd what international public policy they could have in mind and, frankly, I find very little or nothing in the human rights area - a Iot of firmly asserlive Iiterature but no treaties, diplomatic correspondence, or cases. I do find that there are some aspects of international public policy that probably do make treaties invalid. For example, a treaty that forbids action in self-defense would never be observed by any state. Nor can I imagine that any state would be criticized for resorting to force in self-defense regardless of somebody's interpretation ofthe UN Charter including Article 51. It seems to me that if we get to the point of saying the Security Council, under our interpretation of Article 51, can replace the state's right of self-defense and then forbid the state to act in self-defense, we hit against ius cogens whether we like it or not. The state will simply pay no attention to such an interpretation; there is no way of stopping the war; there is no international opprobrium (Verachtung) that will go against the state that acts in self-defense in those circumstances. Similarly, there can be no treaty that forbids revolution. Treaties are not between governments but between states. Governments represent states, and if the government wants to secure its power by forbidding revolution in its own territory, it will find that it has exceeded its authority under international law, whatever its authority might be construed to be by some publicists who sit outside the system, some Mettemich who decides that revolution can be made illegal. There are some other public policy things, they are not normally discussed. I find no examples of human rights in this kind of context, although others will assert that there are. Lagoni:
I have some minor points which are not related to each other. The first one refers to Professor Rubin, who mentioned that Germany has no standing with regard to the Serb war criminals. We have according to our international criminal law standing in cases of genocide, which is prohibited by German criminal law as weil as by international law. Moreover, our courts have standing in cases of murder committed in other countries if we cannot extradite the perpetrator, for example, because capital punishment is expecting him, or because he is a German citizen. Nevertheless, I would agree that we can band over any foreign perpetrator pursuant to Article 49 of the Red Cross Convention.
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The other two minor points are relating to Professor O'Connell's comment on the application of rules of internationallaw in dornestic courts. We had an interesting case in the Bundesgerichtshof. It was a dispute in the context of a civillaw suit on the validity of a private insurance contract for the transportation of Nigerian works of art which, according to Nigerian law, have been illegally exported to Germany. The Court held that the insurance contract was null and void, because it was against the "Guten Sitten," that means: the public policy as mentioned in paragraph 138 of our Civil Code. The Court considered the contract as being against the German public policy because it violated General Assembly resolutions on the protection of cultural property as weil as the UNESCO Convention on the lllicit Movement of Art Treasures of 1970, signed by Germany but not in force then. The Court did not scrutinize the General Assembly resolutions and the mentioned Convention, but it took these as facts in the course of interpreting the German public policy.
In addition, a minor point concerning Professor O'Connell's comment: There is in fact no general in rem jurisdiction for movables in German procedual law. But in maritime law, there is, of course, the possibility of attaching a foreign ship by order of a German court for maritime claims. If the shipowner does not pay, the ship may be sold by auction. Furthermore, I would like to refer to Professor Delbrück's notions on new ways of developing international legal rules. It has been repeated here time and again that the terms erga omnes and ius cogens have to be distinguished, because they mean quite different things. Therefore, I do not want to dwell again on this. But really interesting in the lawmaking process with respect to those rules which you call "public policy rules" is the fact that these rules are rules of customary law. And interesting is also the acceleration in the development of customary law. Take, for example, Articles 192 and 194 of the Law of the Sea Convention which generally prohibit the pollution of the sea. Formerly, there was no general rule prohibiting marine pollution. The main question is, why did a rule of such contents develop into general customary law? The answer seems to me: because the contents of this rule is in the interest of all states. Accordingly, because of this general interest, the consensus on this has been accelerating. Finally, I would like to draw your attention to the widespread practice in the Law of the Sea Convention and other treaties on the law of the sea as weil, which relate to norms and practices adopted by the competent international organizations and which are generally recognized by the states. Such norms do not exactly regulate any matter, but they simply refer to the competent international organizations, mostly to the IMO which, by way of resolutions, adopts practices and norms that are permanently developing the contents of the individual rule. This is indeed a new way of lawmaking which is far away from traditional practice. Professor Delbrück, you also made reference to Article 218 of the Law of the Sea Convention according to which the port state may introduce procedures
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against foreign ships which have violated international rules and standards anywhere on the high seas without causing darnage to or threatening the coasts of the respective port state. It seems to me that this article is not a new way of developing law, but it is a case of an extended jurisdiction. A closer look reveals that it is in line with the traditional Lotus doctrine of the Permanent Court of International Justice. My final point relates to the Pol Pot situation to which you referred in your presentation: Within a country lacking a working government you have massive cases of genocide and the Security Council tums away from it. In this situation, the crucial question seems to be not whether or not a regional group or organization may take measures against this country, but whether a humanitarian intervention is permissible. If a humanitarian intervention may be conducted by one state, it may also be conducted by three or four states of the region. Therefore, I think it is simply the question: Is humanitarian intervention allowed in cases of genocide? Tomuschat:
Let me frrst address two issues raised by Professor Rubin. As far as the war criminal from Serbia is concerned, we cannot simply expel him. He is under arrest and prosecution has been initiated against him. We could extradite him to Bosnia if we received a request for extradition, but under the present circumstances there seems to be no single operating tribunal in Bosnia. Therefore, we cannot expel him; we could only do so on the basis of a formal request for extradition. On the other band, if my recollection is correct, in the Geneva Convention the principle to try or extradite is laid down. Rubin:
No! Or "band [such persons] over for trial to another High Contracting Party concerned." They deliberately avoided the word "extradite" forthat very reason. Tomuschat:
WeH, but I think according to German law, in any event, we could not, simply on the basis of vague accusations or allegations against the person, band him over to Bosnian authorities. So, there is an inherent difficulty. I think Germany is perfectly entitled to try him, but authorities are not particularly happy to do so because it is very difficult; you do not get witnesses easily, and it costs a lot of money. There were reports in our press that the recent trial against a nurober of Kurds, which took place in Düsseldorf, cost the German state 70 million marks, no less than 70 million marks ! This is an unbearable Situation, which simply no nation can afford to deal with, in any event not en masse. In one single case, it may be different, but one cannot continually repeat such an experience.
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As far as genocide is concerned, Article 220a of the German Penal Code provides indeed that a German tribunal has jurisdiction in cases of genocide wherever genocide has been conunitted. Is this consistent with the Genocide Convention? The Israeli Supreme Court in the Eichmann case noted that the clause of the Genocide Convention was not to be interpreted strictly, that it did not prohibit a state from assuming jurisdiction over cases of genocide which occurred elsewhere. This is also the basis of Article 220a of the German Penal Code because otherwise, if indeed one bad to interpret strictly Article VI of the Genocide Convention, our Penal Code would be inconsistent with our international obligations. This may be an open question, but I should recall that, in the Eichmann case, the Israeli Court took the view that Article VI did not prohibit Israel from assuming jurisdiction. Now coming back to the question of ius cogens and erga omnes: I think the two characterizations only tell us something about the specific legal effects of specific classes of norms. One dass of norms prohibits states from concluding bilateral agreements between themselves, even if two states agree that they are bound by the norm. If one characterizes a norm as containing an obligation erga omnes, this provides an answer as to who has the right to respond to a violation of that norm. But the two characterizations do not tell us anything about the way in which those norms come into being. This occurs according to the recognized processes of norm creation. But, of course, we have to Iook into those processes; to refer to Article 38 of the ICJ Statute does not give the full answer in the present circumstances. I fully agree with lost Delbrück. In that respect, the answer is a little bit too simplistic since the processes have indeed evolved to some extent. Mr Lagoni just a moment ago rightly drew attention to the clauses in the Law of the Sea Convention where a dynamic reference is made to standard norms and principles which are commonly recognized - I do not know the exact formula,. which, by the way, changes from clause to clause. It is not always the same in the Law of the Sea Convention. A last point: Michael Koch said that it is a welcome sign of greater alertness of the international community that in the case of former Yugoslavia everyone feels that somebody should do something and something effective - not only talk but act, since it is deeds that count, not words. I just want to draw attention to the fact that this is one example, but there are also many others. Take the case of Sudan and Afghanistan! There are obvious limits to what the international community is prepared to assume because it would have to shoulder a terrible burden. Furthermore, we simply close our eyes to what is happening in Afghanistan. When a group of people has decided to destroy themselves, then- and this seems also to be the lesson from Somalia - the international community really turns away if the situation is different from that in Bosnia, where an element of ethnic or religious persecution is clearly present. In the case of Afghanistan, on the other band, it is the same people, only organized in different bands and gangs, that have engaged in self-destruction. When this happens, the international community responds by saying, "That is their own responsibility." Even the fact that women and children are
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dying and starving does not alter the picture. The world community cannot remedy a situation where people have lost any sense of self-responsibility. Dicke: For a moment, I would like to accept the invitation to daydream because political philosophers claim to be some kind of professional daydreamers in the sense Christoph Sehreuer described it. From the point of view of political philosophy and the history of political ideas, it was quite interesting to observe what happened in our two days of discussions because reference was made to two approaches of dealing with the same problem. The first approach came up when Professor Lillich introduced the Security Council "running out" issue. The second approach came up in lost Delbrück's presentation when he addressed the question of how to found the binding force of international law. The two different approaches come very close to similar ones which were taken in the second half of the eighteenth century. The first one is the approach taken by the American Constitution, by the "Federalist Papers," and, in particular, by Madison. It has its focus on the danger of the tyranny of the majority and seeks to control it by checks and balances. I do not want to elaborate on this approach because it is well-known to everybody in this room. The second approach which came up is contractualism. I think lost Delbrück has this approach in mind. Similarly, Professor Rubin pointed to lohn Locke and his theorem of understanding society as the expression of consent. Finally, Michael Koch pointed to Rousseau and the difference between volonte de tous and volonte genirale. I would like to go one step further in the family tree of contractualism and argue that Kant, in his "Perpetual Peace" and in other writings, tried to find a solution to the very problern the "Federalist Papers" address, namely, the problern of centralized authority or the centralized state. The answer given by both approaches is the rule of law, the rule of law pure and simple. The pragmatic question Madison had posed was how to limit and how to control centralized power; and with the same practical purpose, the contractualists ask how the binding force of law can be justified. Both approaches rule out that this binding force of law could be justified by referring to any kind of majority or volonte de tous, i.e., to any kind of empirical consent. Rather, they demand that this consent must be a legal one, a de iure consent. If I understand lost's presentation from that point of view, his message reads as follows: When we regard Article 2(6) of the UN Charter, when we regard Article 103 of the Charter, when we regard ius cogens and erga omnes norms, we find legal norms which have a different meaning from norms between state A and state B, namely, international constitutional norms or norms of international order. The discussion of the foundation of these norms is another "sleeping Domröschen ": The overall discussion on the foundation of international law came to a preliminary end with the codification of Article 38 of the PCU Statute 75 years ago. lt
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was my feeling that lost Delbrück kissed this second Domröschen and I hope it will keep stay awake. For future discussions on the foundation of the binding force of international law and its institutional implications, both the Madison and the Kant approaches, as different as they are, can serve as focal points and transatlantic bridges of common understanding. Lillich:
I have two points, one in relation to the issue that Professor O'Connell made about domestic courts, and the second with respect to humanitarian intervention, both unilateral and by or through the United Nations. First of all, with respect to domestic courts, this issue was introduced in today's discussion for the first time. I think it really is worthy of another conference here in Kiel. It is a discordant theme, and perhaps it does not blend into the major issues we have been talking about, namely, the use of force and other coercive measures, but it is a very important issue, and I think there is a terrible amount of misunderstanding about it. I do not think Dr. Koch, for instance, has to worry about this lawsuit that uses a purported erga omnes, ius cogens exception to the Foreign Sovereign lmmunities Act to pursue Germany in US courts for actions taken 50 years ago. There are, you know, two other cases that have gone the other way, one having gone as far as the Supreme Court, which in the Amerada Hess case several years ago indicated that the Foreign Sovereign lmmunities Act constituted an absolute bar to a lawsuit unless a specific exception could be found in the statute. Moreover, I am not worried about the United States being sued abroad elsewhere in some similar case, because the United States is sued in other countries all the time, under the Canadian Foreign Sovereign lmmunities Act, the Australian act, the British act, and .similar statutes. Actually, I think foreign sovereigns should probably be sued much more frequently than they have been sued in the past. However, I would just like to bring a little data to the discussion. First of all, lawsuits in the United States raising human rights and other international law issues are not entirely an academic exercise. Judgments have been rendered. To date, admittedly, none have been collected, but within the last six weeks a $ 2 billion - large even by American standards - judgment has been rendered against the estate of Ferdinand Marcos, and the Marcos estate in the United States apparently has substantial funds from which at least a portion of the judgment can be satisfied. The lawsuit, by the way, is a class action, not brought on behalf of US citizens, in fact brought under the Allen Tort Statute. It was brought on behalf of a variety of individuals and their estates of Philippino character. It is a very interesting case, and eventually it will involve the distribution of a substantial fund to at least 2,000 plaintiffs. We have also been talking about Haiti. Haiti has bad many dictators in the past, and many of them are enjoying rather luxurious Iifestyles in other countries. One of them, General Avril, was enjoying life, at least until recently, in the United
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States, where he may have substantial assets. He, too, is the subject of a lawsuit right now in the United States, and I would think that, if it goes to trial and if the allegations in the complaint are substantiated and a judgment is rendered, that ultimately that property will be attached in satisfaction of the judgment. Discovery procedures to ascertain the whereabouts of bis assets are now under way. Additionally, Mr Karadzic, the Bosnian Serb leader, has been served with a summons and complaint in an Allen Tort Statute action by a variety of women groups. He is contesring jurisdiction, but, as far as I can leam, both the United Nations and the United States say that he has no immunity whatsoever. Ultimately, that case will go to trial and perhaps complicate the peace process and require some trumping by the Security Council. So we have a variety of pending cases in the United States that involve the use of internationallaw against human rights violators. One other point concerning domestic courts that I would like to make arises from the fact that it is frequently portrayed in the United States and elsewhere that these lawsuits are a one way street process, that US courts are being used only to sue individuals who committed acts in violation of international law who possess the nationality of another state. That has been true in the past. The short answer to that point is the answer that the Human Rights Commission gave last year when it adopted Theo van Boven's report on compensation and restitution for human rights violations, namely, that all countries should enact statutes like the Allen Tort Statute that would give them the capacity to entertain such actions as we are allowed to do so in the United States. Even absent that, however, the one way street argument is less than persuasive. A very interesting lawsuit has just been brought in the United States by Mr Alvarez-Machain, the Mexican doctor who was kidnapped and brought to the United States by Mexican offleials in connivance with US offlcials. The Supreme Court, as you all know, held by a substantial majority that despite the fact that the kidnapping might have been a violation of international law the United States bad jurisdiction to try him. The case went to trial, and the judge threw it out the first day, saying that it was one of the most outrageous prosecutions he bad ever seen since there was no evidence whatsoever to support the charges. Now the American Civil Liberties Union for Southern California has brought an Allen Tort Statute action on Alvarez-Machain's behalf. He is suing, and he is suing not just the Mexican offleials who are incarcerated in the United States, but also US Govemment offlcials. So there is a lot of what I view as very positive domestic Iitigation going on. The second issue I would like to take up is unilateral or collective humanitarian intervention. We have devoted a lot of time to discussing the status of humanitarian intervention by the United Nations. We have not devoted much time to talk about unilateral or collective humanitarian intervention, although it fits within the definition of our general title. I was struck by Professor Lagoni's Pol Pot example: what do you do when you have massive human rights deprivations going on and for one reason or another the United Nations has not taken any action. Professor
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Stein this morning suggested that, in the absence of some kind of Security Council authorization, there was nothing nation-states could do. I wonder what the views of this group are with respect to a situation like that, or to a situation like Haiti, for instance, which would not take very much in the way of outside intervention to put right alrnost overnight. One begins to wonder, as one sees pictures of people with their faces slashed off by machetes, whether there may not be a role for unilateral or collective humanitarian intervention when the United Nations and the OAS seem unwilling or unable to rectify the situation there. I do not accept Professor Tomusehat's Statement that, if people want to destroy themselves, there is nothing the international cornrnunity can do about it. There is no evidence that people want to destroy themselves in Haiti; there is plenty of evidence that a certain small clique wants to maintain control, and I for one would not want to wash my hands and say, "Sorry, nothing can be done," if a state or states have the capability of doing something unilaterally and if the cost of carrying out the action is not disproportionate to the objective.
Finally, with respect to UN humanitarian intervention or UN-authorized humanitarian intervention, our discussion has focussed, with the exception of Professor Sehreuer, almost exclusively on Article 39. I ran through some of the precedents on that yesterday, which expand the concept of threat to the peace. I have some troubles with expanding that concept, I must say. I, like most of the other 25 international lawyers who attended a conference in the United States about 20 years ago, always assumed the United Nations bad the capacity to intervene for humanitarian grounds when gross violations of human rights were taking place. Obviously, as one of the participants in that conference, Professor and later Judge Baxter pointed out, you have the opportunity to do so through Article 39. But do you not, as Professor Sehreuer suggested yesterday, also have the capacity to do so under some other theory based upon the objects and purposes of the Charter, or under some kind of collective UN erga omnes right or obligation? I would much appreciate, during the time we have left, if our two speakers and anyone eise who wishes to cornrnent on the question of non-Article 39 legal bases for UN or UNauthorized humanitarian intervention would do so. Morrison:
I want to say that one of the things I have heard has been a fairly cornrnon, primarily European theme, searching for an affirmative authorization through what I would call an extension of Uniting for Peace and you rnight call "uniting for law enforcement." But just to follow on what Professor Li/lieh was saying, it seems to me also that there are not only actions which are clearly prohibited and actions which are clearly perrnitted, but ihere is also a rniddle ground in which one must take action on incomplete inforrnation and deterrnine after the fact whether it was justified or not. Moving on to two other interrelated points: Why are we interested in Bosnia at all? Why are we interested in Somalia at all? I would submit to you that we have
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some very changing public perceptions. We are no Ionger interested in these things because of traditional state interests, the kind of traditional state interests that drove foreign policy for the frrst 50 or 75 years of this century. We are interested in these things because of public demand, because of CNN live cable news, and in a sense, because of direct international dialing and fax machines. Technology has made the world smaller. Although the world has become smaller, there are some places that are still out of touch - Afghanistan for example. But as the world has become smaller, the public no Ionger says, "What is happening there? They should do something about it." The public now says, "What is happening here? We should do something about it !" We are facing, I think, a very fundamental change in the relationship between the individual and the international system. It is going to Iead perhaps to an erosion of state sovereignty that will Iimit some of the kinds of things that we are talking about. I would simply draw a parallel to a development in the United States. In the 1930's there were many lynchings in the South. They got reported in small items in the northern newspapers and everyone said, "It is really too bad, that they do that down there." In the 1950's, television became national and we saw southern sheriffs with electric cattle prods doing things that did not seem quite nice. And all of a sudden, we shifted from "they should do something about it" to "we should do something about it," and the federal marshals went in, the National Guard went in, and the nation finally acted. We are seeing that same phenomenon forty years later at another Ievel, that is, the demand for results, the demand for an international resolution. It may be that some of the conceptions of 1945 are going to have to change. Now I want to give you the other side of the coin and a statement of great pessimism. The other side of the coin is that in 1928, when Kellogg-Briand was signed, and in 1945, with the Charter, we prohibited the use of military force except with specific centralized authorization or in some very limited circumstances. We did leave, however, a middle ground of other kinds of countermeasures, economic countermeasures being the primary ones. But there are some others as weil as the even softer diplomatic and political representations, which is a very soft kind of remedy. We have the diplomatic conference, you chat arniably and one side says "No!" With the completion of the Uruguay Round we are going to see an increasing strengthening of the GATT, now WTO, because of the dispute resolution systems that are inherent and internal to GATT and WTO. So it may become impossible to engage in many of the customary countermeasures without violating an explicit treaty obligation. The legitimacy of those countermeasures will be adjudicated by a group that is primarily dedicated to the enhancement of trade without regard to the other issues that may have stimulated the countermeasures. So, on the one band we have an increasing demand, an increasing public demand for effective responses to perceived violations. On the other band we have an increasing Iimitation on the permissible responses to perceived violations. This is the box into which we are squeezed.
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Aman:
I feel a little li.ke the person who, at the end of a very rieb and productive conference, begins bis remarks by saying, "I have little to add but I have much to say." Only kidding ! I want to make a point which is somewhat related to Fred's frrst point. I have been reflecting a bit about domestic law enforcement, particularly in areas having to do with criminallaw, specifically terrorism and drugs. I have been reflecting on this because it strikes me as a rieb irony in the sense that for states, the very exercise of state sovereignty, the essence of state sovereignty is the enforcement of domestic criminallaw. Yet to do this effectively in contexts such as drugs or terrorism, states must cooperate with other states and, in effect, give up a fair amount of their sovereignty if they are to exercise effectively the sovereignty that brought these laws into effect in the frrst place. Though we have spent a good deal of time talking about the military, I think criminallaw enforcement would be an interesting area into which to look, especially given the various kinds of international Cooperation that now exist informally. The other point Iwanted to make is this: I wonder whether there are many informal structures ernerging in which the kind of globalism that Professor Delbrück was pointing to earlier is readily apparent. Issues like terrorism and drug enforcement require states to cooperate with other states if they are going to be effective in proteering themselves in achieving the kinds of ends that those laws seek to achieve. This leads me to suggest that there is a dark side to the public interest in the sense that sometimes states will pursue it for the wrong reasons. States, like all bureaucracies, will cling to their power. They do not want to give up power, they want to be effective players in the global world in which we now all live. To do this, though, states will have to act more globally themselves. I want to suggest that states are increasingly - as they deal with such issues as immigration, the global environment, terrorism, and drugs - coming to the view that they must give up substantial portions of their sovereignty if they are to use and effectively retain that which is left. Stein:
Let me make two very short remarks, the frrst on Fred Morrison's last point, when he said that the permissible reactions, which might have some effect with respect to violations of erga omnes norms, are more and more limited because we have more and more treaties that bind us into economic integration. This can certainly not mean that the use of force is the only effective means which is left over. But I am also not sure that states cannot react by imposing trade embargoes or similar sanctions. It might be true that before those treaties on economic integration a trade embargo was mostly just a retorsion and that now it would be a reprisal. But if there is a clear violation of an erga omnes obligation, states are entitled to take certain reprisals and they do not need any authorization for that. I said this
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morning that the use of force depends upon Security Council authorization, but if states want to respond to violations of erga omnes norms, norms whose erga omnes character is beyond reasonable doubt, and if they want to respond by nonforcible means, they do not need extra authorization. As far as the Haiti case is concemed, I have not seen any clear allegation of gross violations of human rights in the Security Council's Haiti resolutions; the main point was democracy ! The Security Council mentioned in Resolution 841 "the incidence of humanitarian crises, including mass displacements of population, a climate of fear of persecution and economic dislocation," but all this certainly does not amount to a situation of gross and flagrant violations of human rights, as, e.g., described in the Yugoslav and Somalia resolutions. O'Connell:
I think that they do refer to human rights directly, and the embargoes/sanctions resolution says that there is massive human rights abuse in Haiti. Stein:
I am not sure whether we can say that Haiti is a human rights case. That was democracy, unless we say that the threshold for UN intervention in human rights cases has been lowered considerably. I think that the main point was the restoration of democracy. But one can certainly argue about that. O'Connell:
I think Michael Koch's comments need greater response, although I think that they are not inconsistent with Fred Morrison's last point that there is a rising demand for response to violations of international law, but also decreasing options, or at least not growing options of a more flexible kind. I agree with Professor Stein's last point. I think reprisals are still with us. Professors Li/lieh and Lagoni gave us examples of domestic enforcement, so this is not so far beyond the pale, but whether it is really growing into a flexible, additional option that Fred Morrison bad in mind, I think that it is not so clear yet. Delbrück:
Back to erga omnes norms. I was surprised that in two rounds it has been refuted that erga omnes norms tell anything about their mode of creation. I have checked the paper, I have not said anything like that, so it is rather peculiar. What I have been concemed with, in the frrst place, is the effect of the fact that we have erga omnes norms, however brought into being. The more innovative or daring point was that I also referred to their creation, in the sense that a new basis for the binding force of erga omnes norms would much better explain what is going on, bringing us away from the strict consensual/consent theory. I said these norms 13 Symposium 1994
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sometimes appear rather spontaneously. At the last symposium, Simma talked about this, and he had the theory th!!.t they, in fact, do appear spontaneously. It is hard to explain how this is, but they are there, all the time. I think that it is the public interest dimension that gives the legitimacy and binding force to this new kind of norms, however and under whatever doctrinal construction they may come into being. As norms expressing a public interest, they have this kind of effect that we have talked about. I have great respect for those like Al who say that this whole notion of erga omnes is daydreaming in a bad sense. But then let us go back to Article 2(6) and Article 103 of the Charter. In both cases we have third party effects which are, to my mind, not compatible with the traditional strict notion of consent or whatever. lt is no accident that Article 2(6) is one of those examples in point, because this is a rule which is very particularly directed against violations of public interest or ius cogens norms andlor fundamental constitutional principles of the international community. There we have some tangible evidence from which the concept of public interest or erga omnes norms started and, I think, then expanded into the trend that I have tried to show and which, I think, is still visible even after this debate. The next point I would like to retum to is the Pol Pot, the Kampuchea example. I must tell you that this was one of the harrlest parts actually, although it sounded rather casual when I read the paper to you. 1t is the question of whether or not we keep to the monopoly that is envisaged by the Charter, or whether we allow independent forcible enforcement measures by state groupings or even by individual states. I think it was a major violation of the obligations of the international community organized in the United Nations that nothing happened with regard to Pol Pot until Vietnam - of all states - decided to do something. I remind you of my short dieturn that surrendering sovereignty to international law enforcement authority carries with it the obligation on the part of the institution to live up to the authority and to do something. So, if you would construe this surrender of sovereignty in terms of a kind of a trust and assume that the trustee does not not heed his responsibility, then, of course, the entrusting person is usually released from his/her obligations and could pursue his/her interests freely. This very abbreviated analogon actually speaks in favor of this subsidiary, independent public interestoriented enforcement measure. I admit that in the case of Cambodia, or Kampuchea at the time, I would have loved to see - at minimum - strict economic sanctions, even outside the United Nations. The ultimate test is indeed: is independent forcible enforcement permissible? I have my doubts, and I have said that I give priority to the UN monopoly. What I am afraid of is opening up a general title for independent intervention, humanitarian intervention, by state groupings or individual states, which could be so easily abused in a pluralistic international society. Out of frustration over defects in the international enforcement mechanisms, we may be pouring out the baby with the bath. As of now, there are necessarily gaps, unfortunate gaps in the system which I am willing, however, to risk in order to save the central authority concept at the
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basis of all this. But I do agree, if you asked me as a citizen on the background of German history in the 1930s, "Would you have Iet someone go in there and take care ofthe regime?", I would say "Sure!" But as a lawyer I have tobe a little more cautious, being aware of the dire consequences of areturn to individual intervention. But I am certainly open to further arguments that one would have to have this alternative enforcement mechanism. Should this be accepted, then, please, it must be an institutionalized enforcement procedure outside or independently of the Security Council, because what I do not want to accept at any time and place, is unilateral old-styled humanitarian intervention. That, I think, was discussed at our last symposium here, and I think Mr Sehreuer has had the "last word" on this matter. The last point I want to make is that we are witnessing a change in the approach of the international community to events going on around the globe. lndeed, Fred, I agree with you, part of the fact that we can talk, not just as daydreamers, about public interest questions in the international legal order is due to a rising consciousness among people of certain outrageous things that need to be taken care of. Compare the situation of 30 years ago: If you bad asked someone whether he knew of the Declaration of Human Rights, he probably would have known little or nothing. lt is really the work of the many non-govemmental organizations, of CNN and other communication systems that have really transferred the message. This is, I think, part of the sociological basis of what is happening, and it is a part of a process that I feit encouraged to descibe here in part as existing law and in part as a trend - a trend which I think is realistic to be expected in terms of its goal; and the paradigm of public interest is what should Iead us in the interpretation of existing law and the development of new law. That is what the final sentence of my paper is about. In conclusion, I do appreciate all the comments, and I thank you very much for a lively discussion. Morrison:
My comment is not erga omnes but de omnibus, from all of us. lt is a comment to thank Professor Delbrück, to thank all those who were participants in the organizing and carrying out of this conference, the students, the staff, the Institute members, who have made everything go marvellously and smoothly for a most stimulating and interesting programme. You have taken us from the international to the regional to the state. In law enforcement, we have bad two impressive presentations from commentators as well as this outstanding summary which you yourself have put together. Again, on behalf of all of us, Iet me thank you! Delbrück:
Thank you very much, Fred. Let me "retaliate in kind." I am really very grateful that you have attended this symposium, which is the second in a row of a dialogue 13*
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that we try to carry on between our colleagues abroad and those here in Germany and Europe. I feel very much encouraged to continue with this, because I think we leam a Iot from each other. It is my very personal commitment that the dialogue between our colleagues in the States and over here is intense, honest, and fruitful because of all the changes in the relationship between Europe and the United States, Germany and the United States in particular. It is essential to any peace order that is ernerging and that will hopefully be perfected sometime. My thanks go to the staff of the Institute, too. You, Fred, have mentioned this already but it is a matter of course that I want to add to this. Tiris whole undertaking would not have been possible without the help of everyone in the Institute. I select two of the staff, because of their particular responsibility: Stephan Hobe and Christian 1ietje. Thank you very much again, thanks to all at the Institute! All that is left for me to say is "farewell," please have a safe trip home and we will possibly see each other again in two years time!
List of Participants Prof. Alfred C. Aman, Jr., Indiana University, Bloomington, Ind. Priv.-Doz. Dr. Klaus Dicke, Universität Mainz Prof. Dr. lost Delbrück, Universität Kiel Georg Felsheim, Auswärtiges Amt, Bonn
Prof. Dr. Kay Hailbronner, Universität Konstanz
Dr. Michael Koch, Auswärtiges Amt, Bonn Dr. Winrich Kühne, Stiftung Wissenschaft und Politik, Ebenhausen Prof. Dr. Rainer Lagoni, Universität Harnburg Prof. Richard B. Lillich, University ofVirginia, Charlottesville, Va. Prof. Dr. Siegtried Magiera, Hochschule für Verwaltungswissenschaften, Speyer Prof. Fred L Morrison, University of Minnesota, Minneapolis, Minn. Prof. Mary Ellen O'Connell, Indiana University, Bloomington, Ind.; Universität München Prof. Alfred P. Rubin, Tufts University, Medford, Mass. Prof. Dr. Walter Rudolf, Universität Mainz Prof. Dr. Christoph Schreuer, Universität Salzburg Prof. Dr. Torsten Stein, Universität des Saarlandes, Saarbrücken Paul C. Szasz, Germantown, N.Y.
Prof. Dr. Christian Tomuschat, Universität Bonn Sir Arthur Watts, London Prof. Dr. Rüdiger Wo(frum, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg