Strengthening the World Order: Universalism v. Regionalism: Risks and Opportunities of Regionalization. Symposium held on the occasion of the 75th Anniversary of the Institute of International Law Kiel, May 17 to 20, 1989 [1 ed.] 9783428469253, 9783428069255

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Strengthening the World Order: Universalism v. Regionalism

Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel Herausgegeben von Jost Delbrück und Rüdiger Wolfrum Institut für Internationales Recht an der Universität Kiel

111

Advisory Board of the Institute:

Daniel Bardonnet l'Universite de Paris II Rudolf Bernhardt Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg Lucius Caftisch 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 Grigorij Tunkin Moscow State University Sir Artbur Watts London

Strengthening the World Order: Universalism v. Regionalism Risks and Opportunities of Regionalization Symposium held on the occasion of the 75th Anniversary of the Institute of International Law Kiel, May 17 to 20, 1989

Edited by

Rüdiger Wolfrum Assistant Editors: Denise A. Bizzarro Tobias Stoll

Duncker & Humblot · Berlin

CIP-Titelaufnahme der Deutschen Bibliothek Strengthening the world order: universalism v[ersus] regionalism: risks and opportunities of regionalization I Symposium Held on the Occasion of the 75th Anniversary of the Inst. of Internat. Law Kiel, May 17 to 20, 1989. Ed. by Rüdiger Wolfrum. Assistant ed.: Denise A. Bizzarro; Tobias Stoll.- Berlin: Duncker u. Humblot, 1990 (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel; Bd. 111) ISBN 3-428-06925-0 NE: Wolfrum, Rüdiger [Hrsg.]; Symposium Heldon the Occasion of the Seventy-Fifth Anniversary of the Institute of International Law Kiel (1989}; 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 vervielfliltigen. © 1990 Duncker & Humblot GmbH, Berlin 41 Fremddatenübenahme: Berliner Buchdruckerei Union GmbH, Berlin 61 Druck: Werner Hildebrand, Berlin 65 Printed in Germany ISSN 0720-7263 ISBN 3-428-06925-0

Foreword In celebration of its 75th anniversary, the Institute of International Law at the Christian Albrecht University of Kiel held a symposium from May 17-20 concerning the advantages and disadvantages of regionalism. Twenty-five eminent scholars and diplomats met in Kiel and bestowed their knowledge and experience to consider both sides of this topic. Whether the universality of internationallaw should be strengthened or whether the progressive development of internationallaw would benefit from its regional advancement has drawn the attention of international lawyers, especially in the 20th century. The debate still takes place on various, different Ievels. There were and are, for example, internationallaw theory debates as to whether international law means a homogeneaus legal order which is universally applicable or, whether regional internationallaw has its own autonomaus validity. The latter view has been advanced by believers in the pluralism of social and economic systems (adopted by States and their different cultural and historical backgrounds) and its appropriate reflection in an international law system which gives room to regional developments. The opposing view, however, emphasizes that States constitute a legal community based upon universally accepted law. Wehave analyzed these views and taken into account the existing "antagonism" between the Universalist and the Regionalist camps. We have asked whether it is possible to strengthen UN functions with regard to peace-keeping, the protection of human rights, and economic co-operation by regionalizing the relevant international rules of universal applicability. We have posed the question of whether regionalism increases the efficiency of the United Nations. And, we have considered the degree of homogeneity required amongst the members of a region or group, so as to enable them to share common interests. Finally, we have pondered the relationship between international and regional norms. The entire process and the result of our findings are included within this volume, part of the publication series of this Institute. We thank once again the Stiftung Volkswagenwerk, the Ministerium für Bildung, Wissenschaft, Jugend und Kultur des Landes Schleswig-Holstein, the University of Kiel, the Dr. OttoBagge-Gedächtnisstiftung, and the friends and promoters of the Institute, all of whom provided generous grants and without which the organization of the symposium and the publication of its proceedings would not have been possible. Rüdiger Wolfrum

Contents

Opening Ceremonies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

Addresses by

Rüdiger Wolfrum

11

lost Delbrück . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

Albert von Mutius . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Klaus Klinger .. . ... . . . . ... .. ... . .. . .. ..... ..... .. . . .. . . .. ........ ........ . . . . ..

21

Jan Martenson .. ....... .............. .. ... .. .. . .. .... . . .............. . . . . . . . . ..

25

Peace-keeping on a Universal or Regional Level

Otto Kimminich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37

Discussion of Otto Kimminich's Lecture . . .... ,...... . .. . . . . ............ . .... . ...... .

48

Promotion of Economic Development by International Law at the Universal and/or Regional Level

Christoph H. Sehreuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

71

Discussion of Christoph H. Schreuer's Lecture . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .

92

The Progressive Development of International Law at the Universal and Regionat Level

Eibe Riede/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

115

Discussion of Eibe Riedel's Lecture . . . . . .. . . . . . . .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .

145

Universal and Regional Proteerion of Human Rights: Complementary or Conflicting Issues

Christion Tomuschat . ...... .. . .. ... . . . ... .... .. . . . . . . .. . ..... .. . . . .. . . . . ..... .

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Discussion of Christian Tomuschat's Lecture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

198

8

Contents

Closing Address Franz-Jürgen Säeleer . ... ... . . . .. ... ... ... .... .. . .. . ... . .. ... . .. ... ... . . . . ... . . 219

Persönliches Schlußwort Kar/ Josef Partsch . ..... .. . ... . ... ... ... ... . . .. .. . . .. ...... ...... ...... . ... ... . 220

List of Participants

221

Abbreviations = African, Caribbean, and Pacific Countries Annuaire Fran~ais de Droit International = American Journal of International Law = Asociaci6n Latinoamericana de Integraci6n = Asociaci6n Latinoamericana de Libre Comercio = Asian Productivity Organization APO ASDI = Annuaire Suisse de Droit International/Schweizerisches Jahrbuch für Internationales Recht ASEAN Association of South-East Asian Nations Bundesgesetzblatt BGBI. = Berichte der Deutschen Gesellschaft für Völkerrecht BDGVR BYIL = British Yearbook of International Law = The Canadian Yearbook of International Law CanYIL CAP = Common Agricultural Policy CARICOM = Caribbean Economic Community = Caribbean Free Trade Association CARIFTA = Council of Europe CoE = Covenant on Civil and Political Rights CCPR = European Organization for Nuclear Research CERN = Council for Mutual Economic Assistance (COMECON) CMEA = Conference on Security and Cooperation in Europe CSCE = Development Assistance Committee DAC European Communities EC = European Court of Justice ECJ = United Nations Economic and Social Council ECOSOC ECOWAS = Economic Community of West African States = European Currency Unit ECU = European Economic Community EEC = European Free Trade Association EFTA EPA = European Patents Authority EPC = European Political Cooperation = Encyclopedia of Public International Law EPIL ESA = European Space Agency EuGRZ Europäische Grundrechte Zeitschrift ::: European Atomic Energy Community EURATOM EUROCONTROL = European Organisation for the Safety of Air Navigation = Group of 77 G-77 GAOR = General Assembly Official Records (of the United Nations) GATI = General Agreement on Tariffs and Trade

ACPs AFDI AJIL ALADI ALALC

=

= =

=

=

Abbreviations

10 GSP GYD... HII.J HRU IAEA ICJ ICLQ ICSID IDA IFC ll..A

n..c

ll..M

n..o

IMF 10 LAFfA LAIA LDCs MIGA NATO NGO NICs NIEO Nll..R OAS OAU OECD ÖZöRV

PTA RdC RDP RGDIP RJPEM SADCC SARC SEA SEATO SPARTICA UNCTAD UNESCO UNGA WEU ZaöRV

= Generalized System of Preferences

German Yearbook of International Law Harvard International Law Journal Human Rights Law Journal International Atomic Energy Agency = International Court of Justice = International and Comparative Law Quarterly = International Centre on the Settlement of Investment Disputes = International Development Agency = International Finance C01poration = International Law Association = International Law Commission = International Legal Materials = International Labour Organisation = International Monetary Fund = International Organization = Latin American Free Trade Association = Latin American Integration Associatioll = Less Developed Countries = Multilateral Investment Guarantee Agency = North Atlantic Treaty Organization = Non-Govemmental Organization = Newly lndustrialized Countries = New International Economic Order = Netherlands International Law Review = Organization of American States = Organization of African Unity = Organisation for Economic Co-operation and Development = Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht = Preferential Trade Area (for Eastern and Southern African States) = Academie de Droit International, Recueil des Cours = Revue du Droit Public et de la science politique en France et a l'etranger = Revue General de Droit International Public = Revue juridique, politique et economique du Maroc = Southern African Development Coordination Conference = South Asia Regional Cooperation = Single European Act = South East Asia Treaty Organization = South Pacific Regional Trade and Economic Trade Agreement = United Nations Conference on Trade and Development = United Nations Educational, Scientific and Cultural Organization = United Nations General Assembly = Western European Union = Zeitschrift für ausländisches öffentliches Recht und Völkerrecht = = = =

Opening Address Rüdiger Wolfrum • Your Excellency, Herr Abgeordneter, Magnifizenz, Herr Minister, Spektabilitäten, Dear Colleagues, Ladies and Gentlemen: On behalf of the Institute of International Law at the University of Kiel, I want to extend a cordial welcome to all of you and to thank you for participating at this Celebration of the 75th Anniversary of the Institute of International Law. I perceive your participation as an endorsement and encouragement of the Institute's activities, for which I am grateful. Special thanks go to those of you who will address us in the course of this celebration, to the govemment of the State of Schleswig-Holstein for having supported the celebration of our anniversary and the following symposium and to the members of the newly established Advisory Board for their readiness to make their professional experience available to the Institute. The fact that the Institute of International Law Iooks back at a seventy-five year period of activities allows for the casting of a retrospective glance just as it provides the opportunity for a prospective view upon the activities in the future. The Institute was founded at the brink ofthe First World War. It is questionable whether this was a mere coincidence or whether the establishment of the Institute was already guided by the feeling that international relations needed a legal framework rather than leaving its development open for the free run of interests. Theodor Niemeyer, the founderofthe Institute, suggested this idea- undoubtedly under the impression of the First World War - when he described the functions of the Institute in 1916. The First World War, the events which led to the Second World War and the Second World War proved him right. These events, however, have initiated substantive changes in internationallaw, too. The number of actors shaping international relations has changed through the creation of new States and the foundation of international organizations. Equally the realm of international law has broadened. Apart from the preservation of peace, the protection of the environment, the use of the international commons, the communications among States and the economic interdependence of the States have become the major concern of international law. These problems represent a handful of the new challenges to the international community. They require a close co-operation • Prof. Dr. Rüdiger Wolfrum, Director of the Institute of International Law at the University of Kiel.

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Rüdiger Wolfrum

among States which again results in a curtailment of the individual State freedoms with a view of satisfying the interests and needs of the community of States as a whole or at least their interests of neighboring States. The Institute of International Law has dealt in the past with those problems just mentioned and will be confronted with them in the future. Consequently, its activities focus on the problems ofthe preservation ofpeace, the international protection of the environment, the international telecommunication, the protection of human rights, the law of the sea and of the United Nations. One example to this extent is the symposium which will begin this afternoon. lt deals with the question of whether the further preservation of peace, the protection of human rights, economic co-operation and the progressive development of human rights can best be pursued on a universal or a regional Ievel; the question can be put differently, namely whether the integration of States pursued by the United Nations on a universal Ievel has reached its Iimitation. The dealing with the questions mentioned made it necessary for the Institute, too, to alter its methods of work. lt is essential for the Institute to come into and to remain in contact with foreign internationallaw experts. Thus, we are indebted to the University for having concluded various partnership agreements which allow the possibility of scholar exchange programs. Furthermore, it is necessary to maintain close ties with practitioners. The newly established Advisory Board combines both practical and scientific experience. Finally, it is mandatory to seek and to uphold a close Co-operation with other disciplines, a policy which is continuously pursued by the Institute with a view toward the future. lt is a basic premise of the Institute to maintain enough flexibility so as to be in a position to respond to new developments. This is the key to its future success. I hope, that a sufficient foundation has been laid in this respect, so that in 25 years time, the Institute may suitably celebrate its one-hundredth anniversary.

Begrüßungsansprache Jost Delbtiick• Your Excellency, Herr Minister, hochverehrte Festversammlung, Ich darf einen Moment ausschließlich in die Rolle des Rektors der Christiana Albertina schlüpfen und bitte, mir nachzusehen, daß ich ein an sich nach bürgerlichem Recht unzulässiges "Insichgeschäft" vollziehe. Ich gratuliere dem Institut für Internationales Recht sehr herzlich zu seinem 75. Geburtstag im Namen der Universität, von Rektorat und Senat. Mit dieser Gratulation verbinde ich einen ganz herzlichen Dank für die in den vielen Jahren der Existenz dieses Instituts geleistete Arbeit, das nun mit seinen 75 Jahren fast ein Viertel der Existenzzeit unserer Universität mitbegleitet hat bzw. Teil des Ganzen gewesen ist. Wir denken in dieser Stunde mit Dankbarkeit an jene großen Gelehrten, die dieses Institut vor und nach dem 2. Weltkrieg geprägt haben: an' Theodor Niemeyer als Gtiinder und Watther Schücking als engagierten Kämpfer für eine internationale Friedensordnung, die diesen Namen verdient, d. h. eine Friedensordnung unter dem Recht; denn Friedensordnung ist - was heute oft vergessen wird - nicht nur politische Ordnung, sondern eben auch rechtlich geregelte Ordnung! Aber wir denken auch an jene, die nach der schweren Zeit zwischen 1933 und 1945, in der das Institut eher Objekt - um nicht zu sagen sogar "Opfer" - des Regimes gewesen ist, die damals drohende Auflösung des Instituts abgewendet und schon vor dem Ende des Krieges und des Regimes vorausschauend das Institut in seiner Substanz gerettet haben. Hier denke ich vor allen Dingen an Hermann von Mangoldt, der unter schwersten Bedingungen das von der Verlagerung und Zerschlagung bedrohte Institut hier in Kiel gehalten hat und seine Bibliotheksbestände durch eine kluge Auslagerungspolitik gerettet hat. Aber auch an Eberhard Menzel, der mit einer unnachahmlichen Handschrift und einem großen Ideenreichtum nicht nur Generationen von jungen Völkerrechtlern für sein Fach begeistert hat, sondern auch das Ansehen dieses Instituts weit über unsere Landesgrenzen hinausgetragen hat. Der Dank gilt aber auch - und das sei mir verziehen, wenn ich dies hier sage - dem derzeitigen geschäftsführenden Direktor, der dieses Erbe mitgemehrt und getragen hat, insbesoftdere in den letzten Jahren, wo ich ihm allenfalls abends gelegentlich zu einem Gespräch zur Verfügung stand, der die ganze Last der Gestaltung des Instituts und auch der Vorbereitung dieses schönen Festaktes und des Symposiums getragen hat. • Prof. Dr. lost Delbrück, Rektor der Christian-Albrechts-Universität zu Kiel und Direktor des Instituts für Internationales Recht an der Universität Kiel.

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Jost Delbrück

Meine sehr verehrten Damen und Herren, es ist vielleicht ungewöhnlich, wenn ein Teil einer Universität, ein Institut unter etwa 125 Einrichtungen dieser Art in der Universität, sich aus Anlaß seines Jubiläums mit einem Festakt an die Öffentlichkeit wendet, sich ein wenig befeiern läßt, und daß dann auch noch der Rektor als Repräsentant des Ganzen zu diesem Teil spricht. Ich möchte dies ein wenig erläutern, warum es richtig ist, daß das Ganze - die Universität - mit dem Teil, hier dem Institut für Internationales Recht, feiert. Wir haben vor wenigen Monaten die 75-Jahr-Feier des Instituts für Weltwirtschaft begangen - beide Institute sind im selben Jahr gegründet-, und jenes Fest des Weltwirtschaftsinstituts hat schon Anlaß gegeben, darauf hinzuweisen, daß die Teile für das Ganze unverzichtbar sind, daß die Institute ein ganz wesentliches Strukturelement unserer Universitäten bilden, und zwar in zweifacher Hinsicht. Zunächst einmal sind die Institute sozusagen die Frontpositionen der wissenschaftlichen Arbeit, in denen Konzentration von wissenschaftlichen Potentialen stattfinden kann, in der Schwerpunktbildung einer Universität und damit auch Profilbildung für eine Universität möglich ist. Die Einzelforschung ist ein unverzichtbarer und wesentlicher Bestandteil der Universitas der Wissenschaften, aber neben dieser die Grundlage bildenden Einzelforschung ist natürlich auch die Konzentration von Potentialen in gewissen Schwerpunkten ein Erfordernis, nicht nur, um mit besonderer Legitimation Mittel einzuwerben vom Staat, der die Universität ja letztlich tragen muß, sondern auch, um Ansatzpunkte für die unerläßliche Einwerbung von Drittmitteln zu bilden. Aber auch dies sei erwähnt: die Institute als konzentrierte Wirkeinheiten innerhalb der Universität sind wichtige Vermittler der Außenkontakte zu weiteren wissenschaftlichen Institutionen im In- und Ausland. Denn dazu gehört - und das muß man einfach sehr realistisch sehen auch ein gewisser Apparat, der diese Beziehungen pflegen kann. Wir alle können letztlich nicht des technisch-bürokratischen Apparates entraten, wenn wir solche Beziehungen unterhalten. Dies ist der eine Aspekt. Institute sind ein unerläßliches Struktur- und Profilinstrument einer Universität. Aber noch eine weitere, mindestens ebenso wichtige, wenn nicht noch wichtigere Funktion erfüllen die Institute. Die moderne Massenuniversität - so wird vielfach zu Recht beklagt - neigt dazu, den Prozeß der wissenschaftlichen Forschung und auch der Lehre zu anonymisieren. Der Überblick für die Öffentlichkeit über das, was hier geschieht, geht verloren, und der Überblick geht auch verloren für viele derer, die in der Universität tätig sind. Namentlich die Studenten haben es schwer, sich in einer so großen Universität unter 18.000 ihresgleichen zu orientieren und dasjenige Gefühl der Identifikation mit ihrer alma mater zu entwickeln, das die Älteren unter uns noch kennen. Man kannte sich untereinander und kannte auch seine Professoren. Vergleichen Sie nur die Situation dieser Universität im Jahre 1955, als ich hier zu studieren begann. Die Kieler Nachrichten wußten damals in einer fetten Überschrift zu berichten: "Rekordstudentenzahlen in Kiel". Es waren damals knapp 2500. Heute hat die Juristische Fakultät 2500 Studenten. Wir haben einen Wachstumsschub hinter uns und vielleicht

Begrüßungsansprache

15

auch noch vor uns, der es sehr schwer macht, aus der Anonymität herauszutreten, Identifikationen mit der Einrichtung zu entwickeln, in der man seine akademische Ausbildung und vor allem auch Bildung empfängt. Die Institute sind diejenigen Orte, wo die Studenten heute noch eine akademische Heimat finden können und sie tun das. Die Beobachtungen, die ich bei vielen Besuchen quer durch die Universität habe machen können, haben mir gezeigt, daß überall dasselbe Phänomen zu beobachten ist, daß nämlich die Arbeit in Instituten von den Studenten sehr begehrt ist, weil sie zu den engsten Kontakten mit den Lehrern und Forschern an der Universität führt. In diesem Institut, dessen 75. Geburtstag wir heute feiern, besteht eine lange Tradition, Studenten eine akademische Heimat zu geben, einen Platz, wo sie sich ein wenig "zu Hause" fühlen, wo sie sich entfalten können und an den Prozeß der Wissenschaft herangeführt werden. In den Instituten wird das ein bißeben lebendig, von dem wir oft sehr pathetisch sprechen, nämlich von der Einheit von Forschern, Lehrern und Lernenden. Das beginnt damit, daß die Studenten in einem solchen Institut den unmittelbaren Zugang zu ihren Professoren und zu den wissenschaftlichen Mitarbeitern haben, daß sie in das einbezogen sind, was sich an Alltagsleben in einem solchen Institut vollzieht. Sie werden dadurch motiviert, an den Seminarveranstaltungen teilzunehmen, die ja eine Einführung in das forschende Lernen bedeuten, und als wissenschaftliche Hilfskräfte beginnen sie, an der Forschung teilzunehmen, u. a. auch dadurch, daß sie die manchmal banalen Techniken der wissenschaftlichen Arbeit erlernen. Diese Heranführung an die Technik des wissenschaftlichen Arbeitens ist für den einzelnen jungen Studenten ein ganz wesentliches Instrument. Darüber hinaus führt die tägliche Teilhabe an dem gedanklichen Prozeß innerhalb eines Instituts aber auch zur Grundlegung eines wissenschaftlichen Wissens, das zu unserer großen Freude in den letzten Jahren verstärkt einzelnen studentischen Mitarbeitern am Ende ihres Studiums erste Veröffentlichungen in angesehenen wissenschaftlichen Publikationen ermöglicht hat. In diesem Sinne sind Institute wissenschaftliche Sozialisationsorte von erstrangiger Bedeutung, die gar nicht hoch genug eingeschätzt werden können. Schließlich verbinden sie auch über die Generationen hinweg. Wenn ich die Reihe der Gäste betrachte, dann sehe ich viele unter uns, die irgendwann einmal in einen engeren Kontakt mit dem Institut gekommen sind, die noch heute davon sprechen, teils in der Form der liebenswerten Anekdoten über diejenigen, die hier gedient haben- hier denke ich an Herrn Prof. Walter Rudolf, der auch einmal hier Assistent war und über einen ganzen Fundus solcher Erzählungen aus der frühen Nachkriegszeit verfügt; aber auch aus der jüngeren und jüngsten Generation sind heute viele von weither gekommen, um mit uns zu feiern. Ich denke, dies ist ein Stück von Verbundenheit mit der Universität, das durch das Leben am Institut, die Arbeit am Institut vermittelt wird, auf die wir nun wirklich nicht verzichten können in einer Zeit, wo Universitäten drohen, zu Ausbildungsstätten, als wissenschaftliche ,,Produktivkraft" von der Gesell-

16

Jost Delbrück

schaft vereinnahmt zu werden, und nicht mehr das darstellen, was wir eigentlich gerne hätten, die Universitas nicht nur im Sinne der verschiedenen Wissenschaften, sondern auch derjenigen, die darin tätig sind. In diesem Sinne noch einmal einen herzlichen Dank an alle diejenigen, die früher am Institut gewirkt haben, - ich freue mich, daß auch unser früherer Mitdirektor und Kollege, Herr Prof. Wilhelm Kewenig, unter uns ist. Wir sind, so glaube ich, ziemlich vollständig versammelt, die wir in den letzten Jahrzehnten im Institut tätig waren und sind. Ich wünsche dem Institut im Namen der Universität eine weitere fruchtbare Entwicklung und die weitere Sicherung derjenigen Internationalität, deren die Arbeit in diesem Institut so notwendig bedarf.

Festansprache Albert von Mutius • Magnifizenz, Excellenz, sehr geehrter Herr Bundestagsabgeordneter, sehr verehrter Herr Minister, meine lieben Kollegen, sehr verehrte Damen,sehr geehrte Herren, Für die Rechtswissenschaftliche Fakultät der Christian-Albrechts-Universität zu Kiel überbringe ich der Leitung und den Mitarbeitern des Instituts für Internationales Recht die herzlichsten Glückwünsche zum 75jährigen Bestehen. Diese Glückwünsche verbinde ich mit vielfachem Dank für die herausragenden Leistungen des Instituts in Forschung und Lehre, für ·zahlreiche Publikationen und die . intensive Pflege des wissenschaftlichen Nachwuchses - sichtbar in mehreren Habilitationen und einer kaum noch überschaubaren Zahl von Promotionen - , für die intensive fruchtbare Zusammenarbeit mit den anderen Instituten und Lehrstühlen der Fakultät und für das allenthalben beachtete Wirken über die Grenzen des Landes Schleswig-Holstein und der Bundesrepublik Deutschland hinaus! In den Glückwünschen schwingt aber auch Stolz der Fakultär mit, ein solches international herausragendes Institut - das älteste seiner Art in der Bundesrepublik Deutschland - zu den Einrichtungen der Fakultät zählen zu dürfen. 75 Jahre Wirken des Instituts für Internationales Recht an der ChristianAlbrechts-Universität zu Kiel umgreift ganze Epochen einer Entwicklung im nationalen und internationalen Recht, die in ihrer Heterogenität, in der Verschiedenartigkeit ihrer politischen, sozialen, ökonomischen und in den letzien zwei Jahrzehnten auch ökologischen Herausforderung kaum durch einen anderen Zeitraum unserer Geschichte übertroffen wird. Denken Sie nur an die in diesen Zeitraum fallenden Verfassungsentwicklungen im Deutschen Reich, der Weimarer Republik, im Nationalsozialismus, unter der Geltung des Bonner Grundgesetzes oder speziell hier im Lande Schleswig-Holstein. Oder überlegen Sie einmal, welche internationalen Organisationen in diesem Zeitraum entstanden sind, wie der Prozeß des Zusammenwachsens in Europa fortgeschritten ist und welche bilateralen wie multilateralen Kooperationsformen die Bewältigung der ökonomischen, sozialen und ökologischen Herausforderungen der letzten Jahrzehnte erzwungen hat. • Prof. Dr. Albert von Mutius, Prodekan der Rechtswissenschaftlichen Fakultät der Christian-Albrechts-Universität zu Kiel. 2 Symposium 1989

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Albert von Mutius

Dennoch: 75 Jahre Institut für Internationales Recht kennzeichnet auch eine erstaunliche personelle und wissenschaftliche Kontinuität: Stets war Forschungsgegenstand nicht nur das Völkerrecht, also im Kern die Summe der Rechtsregeln, welche die Beziehungen zwischen den Staaten betreffen, sowie das Recht der internationalen Organisationen und die durch Völkerrecht begründeten Rechte und Pflichten der Einzelpersonen, insbesondere die Menschenrechte, sondern auch Fragen im Grenzbereich des internationalen Privatrechts und des internationalen Verwaltungsrechts sowie des Europarechts, die in den letzten Jahrzehnten ständig an Bedeutung zugenommen haben. Stets wurzelte die wissenschaftliche Arbeit aber auch im innerstaatlichen öffentlichen Recht, vor allem im Verfassungsrecht. Nie waren die maßgeblichen Akteure des Instituts auf Wissenschaft im engeren Sinne beschränkt, sondern haben ihre Aufgabe immer anwendungsbezogen verstanden und sich von Staat und Gesellschaft in die Pflicht nehmen lassen. So nimmt es nicht wunder, wenn die Institutsdirektoren in besonderer Weise auch für Ämter in internationalen Organisationen und Beratungsgremien, für leitende Staatsfunktionen und hohe Richterämter bzw. für Leitungsaufgaben im Bereich der akademischen Selbstverwaltung zur Verfügung standen. So war etwa Walther Schücking Mitglied der Weimarer Reichsversammlung und Reichstagsabgeordneter und später Richter am Internationalen Gerichtshof im Haag, Hermann von Mangoldt war Mitglied des Schleswig-Holsteinischen Landtages, Innenminister des Landes und Rektor der Kieler Universität, zudem maßgeblicher Autor der Schleswig-Holsteinischen Landessatzung, Wilhe/m Kewenig war nach seinem Rektoramt Präsident des Wissenschaftsrates, Wissenschaftssenator und schließlich Innensenator in Berlin, und Jost Delbrück übt bis zum heutigen Tage das Rektorenamt aus. Es kann für mich keinem Zweifel unterliegen, daß diese Verknüpfung von Wissenschaft und Praxis sowohl der Forschung als auch der Lehre zugute kommt. Lehrveranstaltungen, die getragen sind von der Vielfalt praktischer Erfahrungen, sind mehr denn je unverzichtbar und durch kein noch so gutes Lehrbuch zu ersetzen. Aber die Beschäftigung mit internationalem Recht und seinen spezifischen Methoden der Ermittlung, Interpretation und Anwendung sowie Rechtsfortbildung, vor allem aber mit seinen vielfältigen interdisziplinären Ansätzen, namentlich in den Bereichen der Politikwissenschaft, der Wirtschaftswissenschaften und zunehmend auch der Naturwissenschaften hat- gewiß, weil ihr die Begrenzung auf die Dogmatik nationalen Rechts nicht anhaftet - immer auch zu einer grundlegenden Liberalität, Weltoffenheit, Innovationsbereitschaft und Anpassungsfähigkeit in der wissenschaftlichen Arbeit geführt. Vieles, was in der nationalen Rechtsentwicklung erst Jahre später einsetzte, konnte hier bereits frühzeitig erkannt und wissenschaftlich ausgelotet werden. Auch dafür liefert die 75jährige Institutsgeschichte vielfaltiges AnschauungsmateriaL Ein Jubiläum dieser Art ist aber letztlich nur ein kurzer Augenblick: der Rückschau, der kritischen Bestandsaufnahme und des Ausblicks in die Zukunft. In der nächsten Woche schon geht auch für das Institut der Alltag in Forschung und Lehre weiter, und dieser wird, wenn ich recht sehe, von zunehmenden

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19

Anforderungen an Leitung und Mitarbeiter geprägt sein. Ich denke nicht nur an die Entstehung des Europäischen Binnenmarktes und damit an weitere Verselbständigungen einer europäischen Rechtsordnung, die immer weniger auf nationale Eigenarten des Rechtssystems Rücksicht nehmen wird, sondern wir sehen uns heute wohl deutlicher mit einer schon praktisch werdenden Entwicklung konfrontiert, die wenige schon vor Jahren vorausgeahnt haben: Die Erhaltung und Weiterentwicklung der natürlichen, ökonomischen und sozialen Lebensgrundlagen der Völker in Ost und West, in Süd und Nord stellen die Staaten mit ihren unterschiedlichen Verfassungsordnungen, Wirtschaftssystemen und Gesellschaftsordnungen vor weitgehend gleichartige, nur noch international durch Kooperation zu lösende Probleme. Gleichartige Probleme erzwingen aber nicht nur gleichartige Problemlösungen, sondern auf Dauer auch eine Anpassung der Organisationsstrukturen in Staat und Gesellschaft, die letztlich zur Bewältigung solcher Aufgaben geschaffen sind. Das internationale Recht in seiner umfassenden Bedeutung sowohl als Völkerrecht als auch als transnational law wird daher mehr denn je in das Zentrum der Überlegungen zur rechtlichen Determination solcher gemeinsamer oder kooperativer Problemlösungen rücken. Daß sich hieraus auch Fortentwicklungen der Dogmatik, der Methodenlehre, der Rechtsquellenlehre, der Kollisionsregeln usw. ergeben, liegt auf der Hand. Ich wünsche dem Institut, daß es in Zusammenarbeit mit anderen Einrichtungen der Fakultät diesen Herausforderungen gewachsen ist und sie weiterhin führend annimmt. Die Fakultät hat in ihrer neuesten Strukturplanung hierzu Zeichen gesetzt, indem sie die bevorstehende Emeritierung von zwei Kollegen zum Anlaß genommen hat, einen deutlichen Akzent zu einer international-rechtlichen Schwerpunktbildung auch im privatrechtlichen Bereich zu setzen. Auf diese Weise soll zugleich die Brückenfunktion, die Schleswig-Holstein namentlich im nord-und osteuropäischen Raum zu erfüllen hat, gestärkt werden. Wir wären sehr dankbar, wenn die Landesregierung dieses Bestreben unterstützen könnte. Lassen Sie mich mit einem Geburtstagswunsch der Fakultät schließen, den ich am besten bildhaft darstellen kann: Für uns, die wir vor nahezu 28 Jahren die Studien an der Kieler Universität aufnahmen, war das Institut für Internationales Recht gleichbedeutend mit dem Hochhaus, also dem Hohen Haus, welches uns Ehrfurcht einflößte, schon aufgrund der Zahl der Stockwerke Distanziertheil vermittelte. Letzteres gab sich dann meist beim Fortschritt der Studien und nach persönlichen Kontakten mit den Assistenten oder gar mit den Direktoren, und immerhin waren damals ja das Institut für Internationales Recht und das Dekanat der noch vereinten, nämlich Rechts- und Staatswissenschaftlichen Fakultät nur durch einige Stockwerke getrennt. Als ich dann vor neun Jahren von Mainz kommend nach Kiel zurückkehrte, waren aus den Stockwerken mehrere hundert Meter räumliche Distanz geworden, und in manchen Sitzungen des Direktoriums des Juristischen Seminars, zu denen die Direktoren des Instituts für Internationales Recht leider nicht gehören, entstand bisweilen- natürlich nur räumlich verstan2*

20

Albert von Mutius

den - der Eindruck, als bildeten Institut und Fakultät eine moderne Kirche, bei der der Architekt den Kirchturm - also das Hochhaus - deutlich vom Kirchenschiff abgesetzt hat. Nun wissen wir, daß auch solche modernen Kirchen nicht nur architektonisch außerordentlich attraktiv sein können, sondern daß sie ihrer Aufgabe als räumlicher und geistlicher Mittelpunkt der Gemeinde durchaus gerecht zu werden in der Lage sind. Nur- und hier setzt der Wunsch der Fakultät zu Ihrem Geburtstag an - wir sollten alles tun, damit es eine Kirche bleibt, damit wir miteinander und wechselseitig die uns gestellten Aufgaben in Forschung und Lehre erfüllen; denn gegenständlich und methodisch wachsen die Rechtssysteme immer stärker zusammen, so daß uns a Ia Ionge in wissenschaftlicher Hinsicht bald wirklich nur noch Stockwerke trennen werden. Und im übrigen: Was ist ein Kirchenschiff ohne Kirchturm, der von weit hin sichtbar das Zentrum der Gemeinde markiert und dessen Geläut über die Grenzen hinaus zu vernehmen ist? Was also ist die Rechtswissenschaftliche Fakultät ohne das Institut für Internationales Recht? In diesem Sinne wünsche ich Ihnen und uns noch viele Jahre fruchtbarer Zusammenarbeit, kritischer Reflektionen und spannender Aktivität in Forschung und Lehre!

Festansprache Klaus Klingner• Das Institut für Internationales Recht feiert heute sein 75jähriges Bestehen. 1914, am Beginn, stand der Krieg, der 1. Weltkrieg. "Sehen wir jetzt 10 bis 20 Millionen Menschen bestrebt, im organisierten Massenmord einander zu vernichten" 1 und "Müßte nicht die ganze Menschheit sinnen bei Tag und Nacht, was geschehen könnte, um künftigen Generationen solche furchtbaren Opfer zu ersparen",2 so schreibt Walther Schücking 1914. Damit war denn auch eine Aufgabe des Instituts bestimmt: Beiträge der Rechtswissenschaft zur Organisation, zur Bewahrung, zur Sicherung des Friedens. Mit den Worten Theodor Niemeyers aus dem Jahre 1916, getragen vom Bewußtsein internationaler Interessen, Solidarität und dem Glauben an das Fortschreiten "und den endlichen Sieg des Gemeinschaftsgedankens, also an die Zukunft des Völkerrechts". 3 Daß erst ein noch schrecklicherer Krieg in Europa folgen mußte, ehe solche Gedanken Platz gewinnen konnten, ist jedenfalls dem liberalen Demokraten Walther Schücking nicht anzulasten, der 1933 sein Lehramt in Kiel verlor. Seine Ideen und Gedanken haben bis heute nichts von ihrer Aktualität verloren. "Und die Politiker aller Nationen werden sich aus der Katastrophe Europas davon überzeugen, daß der Satz si vis pacem, para bel/um eine trügerische Scheinwahrheit ist". 4 Diese Erkenntnis führt mitten hinein in die aktuelle Diskussion, daß Frieden nicht zu errüsten ist. Ein Frieden, der u. a. darauf basiert, daß man bis auf die Zähne gerüstet ist, beiderseits, ein Friede der Abschreckung basierend auf Angst, auf Mißtrauen, auf Furcht, kann weder dauerhaft noch standhaft sein. Schücking: "All das Rüstungsfieber werde noch einen furchtbaren Weltenbrand heraufführen, die Entwicklung der Moral bleibe weit hinter den technischen Errungenschaften des menschlichen Geistes zurück". Es seien aber "die Bahnen des organistarischen Pazifismus" zu beschreiten, "statt des Krieges den Frieden zu rüsten", 5 was denn wohl mit der aktuellen Formel von der zu organisierenden Sicherheitspartnerschaft wiederzugeben ist. • Dr. Klaus Klingner, Justizminister des Landes Schleswig-Holstein. 1 Walther Schücking, Der Weltkrieg und der Pazifismus, in: Walther Schücking, Der

Dauerfriede, Kriegsaffäre eines Pazifisten, Leipzig 1917, 4. 3

lbid. Theodor Niemeyer, Bericht über Aufgaben und Entwicklung des Instituts für Interna-

5

Ibid.

2

tionales Recht an der Universität Kiel, Kiel 1919, 3. 4 Schücking (note 1), 5.

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Klaus Klingner

Der Frieden ist nach wie vor auf vielfache Weise bedroht. Das von Schücking bezeichnete Rüstungsfieber, die moralisch nicht gebundenen Fortschritte der Technik, die er konstatierte, sind keine ferne Erinnerung. Das internationale Recht, das Völkerrecht ist, und bleibt gefordert. Das Denken Europas in der Neuzeit kennt zwei unterschiedliche Begriffe vom Frieden, nämlich den eher formalen Friedensbegriff, den Thomas Hobbes entwikkelt hat, und einen Friedensbegriff inhaltlicher Natur, wie er insbesondere von lmmanuel Kant geprägt worden ist. Hobbes beschreibt eine Staatenwelt, bei der das Mißtrauen gegenüber den Absichten des anderen regiert und eigene Stärke das einzig verläßliche Mittel der Friedenssicherung ist. Hier wird Frieden formal verstanden, nämlich als Zustand, in dem die Staatengewalten frei miteinander umgehen, weil sie es müssen. Anders Kant: Sein Ideal ist, daß das Völkerrecht dazu diene, "den Naturzustand der Staaten in einem Staatenverein in einen gesetzlichen Zustand umzuwandeln, der im Hinblick auf die Idee des ewigen Friedens zu einem wahren Friedenszustand werden soll." 6 Diese Idee vermittelt uns Walther Schücking. In der Sprache des Grundgesetzes, dessen 40. Jahrestag wir uns in der nächsten Woche erinnern: "Der Bund kann sich zur Wahrung des Friedens einem System gegenseitiger kollektiver Sicherheit einordnen; er wird hierbei in die Beschränkungen seiner Hoheitsrechte einwilligen, die eine friedliche und dauerhafte Ordnung in Europa und zwischen den Völkern der Welt herbeiführen und sichern." 7 Westeuropa hat heute seine Gegensätze weitgehend überwunden. Die Vorstellung von einem "gemeinsamen Haus" führt darüber hinaus. Für Europa ist damit die friedliche Zukunft eines über Jahrhunderte zerstritteneo und gespaltenen Kontinents im Bereich des Möglichen. Wir erkennen die konkrete Chance einer wirklichen Gemeinschaft, einer Einheit in Vielfalt: national, politisch, wirtschaftlich, sozial, kulturell. Ich erinnere an Niemeyers Vision vom endlichen Sieg des Gemeinschaftsgedankens, der Zukunft des Völkerrechts. Wenn denn nicht Macht, sondern Recht bestimmend sein soll in einer solchen Gemeinschaft, wie dies in der Europäischen Gemeinschaft schon weitgehend der Fall ist, so würde ein Walther Schücking nicht zürnen, der 1918 unter dem Eindruck des Krieges schrieb: "Alle Spötter und Verächter der Rechtsidee höhnen über den Zusammenbruch des Völkerrechts, und die Geringschätzung, wie sie früher der Arbeit dessen entgegen gebracht, der sich um den Ausbau der internationalen Rechtsordnung bemüht, wandelt sich in ein gewisses Mitleid, das noch schwerer zu ertragen." 8 Denn er resignierte auch damals nicht, sondern sprach sich und anderen Mut zu: ,,Arbeiten und nicht verzweifeln". 9 6 Immanuel Kant, Zum Ewigen Frieden, in: Wilhelm Weisehedei (Hrsg.), Gesammelte Werke von Immanuel Kant, Bd. 6, Frankfurt am Main 1964, 46. 7 Art. 24 Abs. 2 GG. s Walther Schücking, Die völkerrechtliche Lehre des Weltkrieges, Leipzig 1918, 3. 9 lbid.

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Dieses Institut hat gearbeitet, und es arbeitet. Das zeigt sich am nationalen wie internationalen Renommee. Das Land Schleswig-Holstein ist stolz darauf, das das Institut für Internationales Recht an der Universität Kiel, das in diesem Jahr 75 Jahre alt wird, an der Sicherung des Friedens, der Fortentwicklung des Völkerrechts und der Entwicklung des Schutzes der Menschenrechte mitarbeitet. Es wird die Arbeit auch künftig nach Kräften unterstützen. Dank und Anerkennung den Direktoren, allen Mitarbeiterinnen und Mitarbeitern!

Featured Address Jan Martenson • Ladies and gentlemen, Mr. Minister, Excellencies, Prof. Wolfrum: lt is a pleasure and privilege for me to address you on this festive occasion. I extend to you the greetings and best wishes of the United Nations Office at Geneva.

Today your Institute celebrates 75 years of distinguished achievement. I congratulate you and all members of the academic community here assembled at this Jubiläum and thank you forthe opportunity to visit again this beautiful port city on the Baltic Sea, which for me is not only familiar, but also ganz besonders liebenswürdig. The topic of your symposium, "Strengthening the World Order: Universalism v. Regionalism" gives me occasion to make some remarks from the universalist perspective. Admittedly, I feel tempted to address such central United Nations concerns as the maintenance of international peace and security, economic development and the progressive development of internationallaw. But in my capacity as Director of the United Nations Centre for Human Rights, I prefer to Iimit myself today to giving you a bird's eye view of recent developments and current activities in the field of human rights. As you know, present efforts by the international community for the achievement of a world more in keeping with the principles ofthe Charter of the United Nations are taking place at a time of great hope. The improvement of the international climate, particularly the relations between the two major powers, is having a positive impact on the solution of some of the most crucial issues of our time. This relaxation of tension has already shown concrete results in a nurober of fields, for instance in the solution of regional conflicts. Pragmatism, and a spirit of cooperation, rather than confrontation, have characterized deliberations at international meetings and conferences, including human rights. The world faces today a growing nurober of global problems and challenges whose solution cannot be exclusively determined by any single country as it requires by necessity the combined efforts of all. At the same time, and as a consequence, we are witnessing a return to the idea of multilateralism and to a • Jan Martenson, Director General of the United Nations Office at Geneva and UnderSecretary General for Human Rights.

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Jan Martenson

more active multilateral diplomacy, in which the UnitedNations is more effectively utilized. This in turn is opening new avenues for multilateral action within the framework of the world organization, which is increasingly called upon to play an important role in the solution of international problems. We have witnessed encouraging developments in various parts of the world, for instance in Afghanistan, Iran-Iraq, Cyprus, Namibia, Western Sahara and other areas where also the patient efforts of Secretary-General, Javier Perez de Cuellar, have brought about tangible results. The award last year of the Nobel Peace Prize to the United Nations peace-keeping operationswas a symbolically important token of recognition accorded by the international community to the Organization' s unique contribution to the maintenance of international peace and security. If thesepositive trends aretobe sustained, they have to rest upon a solid foundation of respect for human rights and fundamental freedoms. Although violations ofhuman rights continue to occur, much has been achieved in the field of human rights, both with regard to Standard-setting and implementation over the past 40 years. First of all, of course, it was necessary to define human rights, to prepare a catalogue of universally accepted principles. This was the first assignment of the Commission on Human Rights, which it performed with conviction and enthusiasm. Representatives of many cultures and legal traditions came together forty years ago and agreed on the proclamation of the Universal Declaration of Human Rights of 10 December 1948, an achievement that cannot be underestimated. The Declaration is a Magna Carta of the civil, political, economic, social, and cultural rights to which everyone is equally entitled. lt was both a utopian and idealist document, as human rights issues were then considered within the exclusive domain of sovereign nations. Since that time great progress has been made and the Declaration itself later branched out into two intemational covenants, the convention against racial discrimination and 50 other instruments, covering basically all aspects of human endeavour. At the national Ievel the Universal Declaration has been the basis for the human rights clauses of the constitutions of numerous new States and has had an important influence in nationallegislation and judicial decisions. Regionally, it has inspired the African, American and European human rights treaties, as well as numerous other instruments designed to further human rights. Thus, one of the most extraordinary aspects of the Declaration is that it has in fact shown itself to be of universal applicability and relevance to all mankind. As the original 51 members of the United Nations expanded to 159, the peoples of the ernerging nations found themselves and their aspirations reflected in the words of the Universal Declaration, which has truly become the Standards of achievement for all members of the human family. For you as international lawyers the process of creating international law probably generates the most interest. Surely there are still topics for doctoral

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dissertations that your students may want to tackle. But time constraints do not allow me on this occasion to endeavour to analyze the travaux preparatoires of the Universal Declaration, or for that matter, those of many other important instruments that have been drafted since. lndeed, and as the name implies, the Declaration is notamultilateral treaty. It took almost twenty more years to adopt the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the two most important conventions for the promotion and protection of human rights. Other significant codifications include: -

The International Convention on the Elimination of All Forms of Racial Discrimination, 1

-

The International Convention on the Suppression and Punishment of the Crime of Apartheid, 2

-

The Convention on the Elimination of All Forms of Discrimination against Women, 3 and

-

The Convention against Tortore and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. 4

Attention may also be drawn to a number of declarations, including the Declaration on the Right to Development 5, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief6 , the Declaration on Territorial Asylum 7 , and the Declaration on the Rights of Disabled Persans 8 • Draft declarations concerning indigenous rights, the independence of the judiciary, and enforced or involuntary disappearances are under discussion. Some United Nations declarations Iater develop into conventions. Thus, for instance, the Declaration on the Rights of the Child 9 gave rise to the establishment of a Working Group on the Rights of the Child which elaborated the Draft Convention on the Rights of the Child. The meticulously drafted text was adopted by the Warking Group in December 1988 and approved by the Commission on I GAres. 2106 A (XX) of 21 December 1965, in: GAOR 20th Sess., Suppl. 14, 47; in force since 4 January 1969. 2 GAres. 3068 (XXVID) of 30 November 1973, in: GAOR 28th Sess., Suppl. 30, 75; in force since 18 July 1976. 3 GAres. 34/180 of 18 December 1979, in: GAOR 34th Sess., Suppl. 46, 193; in force since 3 September 1981. 4 GAres. 39/46 of 10 December 1984, in: GAOR 39th Sess., Suppl. 49, 197; in force since 26 June 1987. s GAres. 41/128 of 12 December 1986, in: GAOR 41st Sess., Suppl. 53, 186. 6 GAres. 36/55 of 25 November 1981, in: GAOR 36th Sess., Suppl. 51, 171. 7 GAres. 2312 (XXII) of 14 December 1967, in: GAOR 21st Sess., Suppl. 16, 81. 8 GAres. 3447 (XXX) of 9 December 1975, in: GAOR 30th Sess., Suppl. 34, 287. 9 GAres. 1386 (XIV) of 20 November 1959, in: GAOR 14th Sess., Suppl. 16, 19.

J an Martenson

28

Human Rights in March 1989. lt is expected that the General Assembly will adopt the Convention this fall, when it will be opened for signature. Sometimes a draft convention emerges without a prior declaration. This is the case with regard to the Draft International Convention on the Protection of the Rights of all Migrant Workers and their Families. The General Assembly established an open-ended working group in 1979 10 which has met yearly since then to elaborate the convention. The draft is now in the second reading, and it is expected that the forthcoming meeting of the Working Group in New York later on this month will put the fmishing touches on it and forward it to the General Assembly for further discussion and adoption. Another important development concerns the elaboration of a Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition ofthe death penalty. Professor Mare Bossuyt ofBelgium was named Special Rapporteur and by Resolution 1988/22 of 1 September 1988 the SubCommission on the Prevention of Discrimination and the Protection of Minorities transmitted the Draft Second Optional Protocol to the Commission on Human Rights, which by Resolution 1989/25 of 6 March 1989 decided to transmit the draft to the General Assembly for consideration during its forthcoming 44th session. While the legislative infrastructure at the disposal ofthe international community for the promotion and protection of human rights is most comprehensive, I believe that it cannot, in itself, guarantee the universal enjoyment of those rights. The effective implementation of human rights instruments, which is at the heart of the United Nations' efforts in the field of human rights, requires a much greater commitment by all concerned. Over the past two decades, a complex, yet fully operational system has been established by the General Assembly and the Economic and Social Council which is making a real contribution towards the objective of universal implementation of human rights standards. This task is carried out by the Commission on Human Rights and the human rights bodies set up under the Covenants and other international conventions, notably the Human Rights Committee about which I will speak to you in greater detail, the Committee on the Elimination of Racial Discrimination, which meets since 1970, andin which a distinguished German expert sits, Prof. Kar[ Josef Partsch (who is among us today)- the Committee on Economic, Social and Cultural Rights, established in 1985, andin which Prof. Bruno Simma participates as an independent expert - the Committee on the Elimination of Discrimination against Women, established in 1982 and, most recently, the Committee against Torture, which was established in 1987 and has just completed its second session in Geneva in April 1989.

10

GAres. 34/172 of 17 December 1979, in: GAOR 34th Sess., Suppl. 46, 188.

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These monitoring bodies meet regularly to examine States reports in which governments explain what legislative, administrative or judicial measures they have adopted to comply with the obligations undertaken pursuant to the relevant Conventions. These reports are carefully scrutinized and are more and more given publicity by an attentive media. They go through the General Assembly and determine the adoption of resolutions requesting urgent action by member States. The end result of this process is often the corresponding modifications of national legislations and practices. Another, perhaps more immediate, monitoring system consists in examining individual communications, that is, complaints. Every year thousands upon thousands of individual complaints are received and processed by the Communications Section of the Centre for Human Rights in Geneva. In the first four months of this year, we have already received some 200,000 communications. Whereas the bulk of communications are examined under the so-called "1503 Procedure", named after an ECOSOC Resolution of 1970, other communications can be dealt with under the more rigorous procedures established by the Human Rights Committee, the Committee against Torture and the Committee against Racial Discrimination. While the examination of such individual complaints takes place in closed meetings of the relevant bodies, final decisions are made public. I do not exaggerate when I say that exciting things are happening in Geneva and New York with regard to human rights. For instance, Iet me devote a few moments to focus upon the ernerging case-law of the United Nations Human Rights Committee. As international lawyers you are familiar with and closely follow the developing jurisprudence of the regional commissions on human rights, notably the Inter-American Commission and Court of Human Rights and the European Commission and Court of Human Rights. On the regional Ievel these organs have been performing the important function of vindicating the rights of individuals vis a vis States; it is now generally recognized that individuals themselves, not only States, have rights in international law. More recently, since 1976, there exists a global machinery for dealing with human rights violations, the United Nations Human Rights Committee, established pursuant to article 28 of the International Covenant on Civil and Political Rights. To date, 87 States have ratified or acceded to the Covenant, including the Federal Republic of Germany. Under the Optional Protocol to the Covenant, individuals who claim that any of their rights as enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit written communications to the Human Rights Committee for consideration. Forty-three States have accepted the competence of the Committee to deal with individual complaints. The last country to ratify the Optional Protocol was Hungary; the frrst from a East European country. I should like to add that the Soviet Union has made known its intention to adhere to the Optional Protocol and to adjust its laws and practices to international standards. Since the Committee

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Jan Martenson

started its work under the Optional Protocol at its second session in 1977 and up to its thirty-fifth session held in March/Aprilofthis year in New York, 352 communications concerning 28 States parties have been placed before the Committee for examination. Final decisions on the merits have been adopted in 94 cases and violations of various provisions of the Covenant found in 81 of them. These decisions are published in the Annex to the Committee's annual report to the General Assembly andin the new series entitled "Selected Decisions", volume 1 of which was published in 1985. Volume 2 will appear later this fall. The Committee has been fortunate to count among its 18 members some very distinguished legal scholars who co-operate in collegial manner and perform their tasks in a judicial spirit. From 1976 to 1986, Prof. Christian Tomuschat, who will also address this audience, was a pillar of the Committee. lt is our hope that as more and more States ratify or accede to the Optional Protocol, the Human Rights Committee will become much more effective as a monitoring system ofthe international community, thus also moving a step further towards its universality. Already the Committee can Iook back on a number of important decisions that not only interpret and apply the Covenant but can also be said to have further developed or "created" internationallaw.

A Iandmark decision of the Committee concerned, for instance, the scope of article 26 of the Covenant which provides that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law". In Zwaan-de Vries v. The Netherlands (views adopted on 9 April 1987) the Committee found that the principle of non-discrimination constituted an autonomous right applicable not only to civil and political rights but also to economic, social and cultural rights, which are also protected by other international instruments such as the International Covenant on Economic, Social and Cultural Rights. While States parties had argued for a restrictive interpretation of article 26 on the basis that the two Covenants established two different monitoring systems and that provision was made for a individual complaints procedure only with respect to the International Covenant on Civil and Political Rights, the Committee decided that it could examine an allegation of discrimination with regard to social security rights. And while article 26 does not require any State to enact legislation to provide for social security, once such legislation is adopted in the exercise of a State's sovereign power, then such legislation may not discriminate. The Committee further explained that "The right to equality before the law and to equal protection of the law without any discrimination does not mak:e all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26." Following the Zwaan-de Vries decisions, the Committee has examined numerous communications conceming alleged violations of article 26. And whereas

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in some ·cases it has found that the contested differentiation was not based on reasonable and objective criteria, in other cases it has found the differentiation to be compatible with arlicle 26. Significant jurisprudence has also been established inter a/ia with regard to the minimum guarantees of a fair hearing, the rights of ethnic and other minorities and the rights of aliens. Thus, for instance, in the Eric Hammel v. Madagascar case, which concemed the expulsion of a French citizen and human rights lawyer who bad submitted three other cases to the Human Rights Committee on behalf of persons detained in Madagascar, the Committee found that arlicle 13 of the Covenant bad been violated, "because, for grounds that were not those of compelling reasons of national security, Maitre Hammel was not allowed to submit the reasons against this expulsion and to have bis case reviewed by a competent authority within a reasonable time." In the Muftoz v. Peru case, the Committee bad opportunity to reaffirm the old principle that "justice delayed is justice denied." In its views adopted at the 34th session in November 1988, the Committee found that arlicle 14 of the Covenant bad been violated, and explained "With respect to the requirement of a fair hearing as stipulated in arlicle 14, para. 1 of the Covenant, the Committee notes the concept of a fair hearing necessarily entails that justice be rendered without undue delay." Finally, and consistently with the jurisprudence of the European Commission and Court of Human Rights, the Committee during its 35th session in New York in April 1989 expressed the view that quasi-solitary confinement for 10 days and nights as a military disciplinary sanction constitutes a deprivation of liberty within the meaning of arlicle 9 of the Covenant and that the detainee is entitled to have the legality ofhis detention reviewed by a court oflaw. In this connection the Committee explained that "such penalty or measure may fall within the scope of arlicle 9, paragraph 4, if it takes the form of restrictions that are imposed over and above the exigencies of normal military service and deviate from the normal conditions of life within the armed forces of the State parly concemed." I should like to mention, by the way, that this final decision on the merits, adopted by the Committee on 7 April1989, concluded examination of a case that bad been submitted by the author on 31 October 1987. That is, the duration of the examination of questions of admissibility and merits through to the adoption of a final decision was relatively short: one year, five months and seven days. Although the Committee's decisions are, unlike the decisions of the European Court of Human Rights, not legally binding on States parlies to the Covenant, the Committee's recommendations have been largely observed by States parlies. The Committee specially welcomes the cooperation of many States parlies that have implemented its decision by changing their legislation, releasing prisoners and paying compensation or providing other appropriate remedies to victims of human rights violations. These are very significant successes, and we are optimis-

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tic that this cooperation with States parties to the Covenant will increase in the coming years. Thus, human rights are no Ionger viewed as being exclusively within the domain of domestic jurisdiction; the concept of State sovereignty no Ionger precludes international scrutiny of alleged violations of human rights. lndeed, much has been achieved since the proclamation of the Universal Declaration of Human Rights forty years ago. The law of force is gradually being replaced by the force of law internationally. Having described some of the important work of the Human Rights Committee, I should not fail to pay tribute to the editors oftheGerman Yearbook of International Law, who were very prompt indeed in recognizing the importance of the jurisprudence of the Committee and devoted much space in the 1985 issue to a review of the "Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee", thus far the most extensive article devoted to the procedural and substantive pronouncements of the Committee. I am pleased about the publication of this article in the German Yearbook, which is indubitably one of the Ieaders in the field, very much appreciated and frequently cited. Not all situations respond to the efforts of the Committees. Many serious situations of violations of human rights are dealt with by the General Assembly and the Commission on Human Rights. The activities of the Sub-Commission also focus attention on areas of concern. It can truly be said that no part of the world is immune from United Nations scrutiny oftheir human rights performance. With growing frequency the States concerned accept the legitimacy of United Nations special rapporteurs, invite them Jor on-site visits and answer in detail often very critical reports. Reviews and investigations of specific country situations are not the only way the United Nations qm focus attention on violations of human rights and seek to bring about changes. Especially serious phenomena, such as disappearances, torture and summary or arbitrary executions or the issue of religious intolerance are also dealt with by special rapporteurs and when reliable information is received urgent appeals can be made to govemments. I would also like to call your attention to the exercise by the Secretary-General hirnself of bis good offices, inter alia, to prevent executions when minimum standards have not been followed or to reunite families. Let me stress that while international mechanisms are essential in monitorlog compliance with international human rights Standards, strong national infrastructures for the protection and promotion of human rights constitute a major safeguard against violations. Thus, while continuing our efforts to create ever more effective international mechanisms of protection, more of our energy now goes toward building up or strengthening national institutions and attitudes by providing expert advice, training, fellowship programmes to the administrators of justice in many countries. Training courses and workshops were recently held, for instance, in Lome, Lisbon, Kigali, Milan, Tunis, Guatemala City, Moscow,

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Manila, Geneva, San Remo, Conakry, Banjul, and Quito. Additional ones will follow in Buenos Aires, and Manila, among others. The sum total of technical assistance which the Programme of Advisory Services offers, has been made possible not least through the generous contributions from many member countries to the Voluntary Fund for Advisory Services, including the Federal Republic of Germany. In this connection I should like to note, however, that participation in an advisory services project does not exempt a country from simultaneaus review or investigation into allegations of violations of human rights. While the goal is to construct and strengthen national framework for the promotion and protection of human rights, current violations are subject to investigation by the competent human rights organs.

This brings me to another very important issue: giving more publicity to the work of the United Nations in the field of human rights. lndeed, people everywhere must first know their rights in order to be able to realize them. That is why information and education constitute an essential element for the universal realization of human rights and a major priority of the United Nations. In commemoration of the 40th anniversary of the Universal Declaration of Human Rights in 1988, major efforts toward increasing information and education on human rights were undertaken by Governments, the United Nations system and NGO's world-wide. The momentum created by theseinitiatives cu1minated in the launehing by the United Nations of a world-wide campaign for human rights on 10 December 1988. The goal of the world campaign is to build up a universal culture of human rights, one that clearly recognizes that human rights and fundamental freedoms are inherent to the human person as such, without any distinction. Indeed, one of the campaign' s overriding goals is to dispel not only invidious distinctions themselves, but also the false and arbitrary perceptions which foster the evils of racism and racial discrimination. In ordertobe successful, the campaign must reach the public in every country and penetrate the darkest reaches of human rights abuses and violations. In a restructuring of our small secretariat, I have recently established an extemal relations, publications and documentation section within the Centte for Human Rights to coordinate activities in those areas and to be a focal point for the world campaign and to cooperate more closely with the wider human rights community made up not only of Govemments and regional and national institutions, but also of academic and research communities, media, NGOs and concemed individuals. A new and expanded publications programme has been set up which includes such information materials as: The News/etter, Fact Sheets, and the Human Rights Bulletin, etc. In this connection, lhave recently sent a Ietter to the heads of research institutes and deans of law faculties world-wide to explain more in detail the aims and 3 Symposium 1989

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objectives of the world campaign and to call for their support in this global enterprise. I should only be too glad to have a possibility to discuss with you cooperative endeavours between the institutions you represent and the United Nations, not least within the framework of the world campaign for human rights. This morning I have only been able to touch upon some aspects of the United Nations Human Rights programme. Time unfortunately does not allow me to review the implementation of the Programme of Action for the Second Decade to Combat Racism and Racial Discrimination, nor the endeavours of the Organization with respect to the violation of human rights in South Africa, Chile, Iran, in the occupied Arab territories, and elsewhere, nor the important contributions of the many working groups of experts such as those on enforced or involuntary disappearances, indigenous populations, and detention, nor the reports submitted to the Commission and Sub-Commission by the Special Rapporteurs on torture, states of emergency, mercenaries, summary executions, administrative detention without charge or trial, and on the independence and impartiality of the judiciary. On the crucial issue of AIDS and human rights I wish to recall that the SubCommission will· have before it at its forthcoming session a study prepared by one of its members on the protection of HIV-infected people as weil as people affected by AIDS. The right to development, the question of extreme poverty and other important questions of human rights are receiving increasing attention by the competent legislative bodies. As you see, the United Nations Human Rights programme is very vast, indeed. In conclusion, there exists a triangular relationship between the requirements of legislation, implementation and information/education which form the basis of our human rights prograrnme. It is our firm intention to pursue them more effectively in the years ahead in ever closer cooperation with that broader human rights community I referred to before. For while the legislative process is today basically behind us, the priority now is clearly the universal implementation of international human rights norms and standards. At the Centre for Human Rights we fully intend to live up to this challenge, in clear partnership with govemments, international experts, academic and research institutions, the media and the ever crucial non-govemmental organizations. Indeed, the success of the human rights programme, and, more in general, of the ideal of freedom, justice and peace in the world can only be accomplished through the joint endeavours of all concerned.

Today's world of ever-growing interdependence, where one is conscious of the planet's fragility and of the ever-present danger of conflict and nuclear catastrophe, cannot help but fill us with a sense of awe and of challenge. Security, an international security, is dependent upon an ever more complex web of issues and relationships, from the environment to relations between the great powers; from development to trade and commerce. At the heart of these issues lies the cause of human rights; for without respect for the dignity and fundamental rights of women and men the world over, our endeavours cannot hope to succeed.

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Without the universal implementation of human rights, they would have no meaning. This year you celebrate not only the 75th anniversary ofthis renowned Institute, but also the 40th birthday of the Federal Republic of Germany, notably the proclamation of the Grundgesetz (Basic Law). It is fitting to commemorate these important dates, to takestock of what has been accomplished- also academically - and to renew the commitment to principles that inspire not only the academic but also the international community, namely peace,justice, freedom and human rights. I wish continued academic excellence to your Institute and University. Vivat, crescat,floreat! Especially on festive days as today I am reminded of the gaudeamus igitur, that happy student song that has accompanied many a generation. I therefore wish all here assembled - students and professors alike - a successful and productive symposium in the spirit of the gaudeamus. Meine Damen und Herren, ich danke Ihnen für Ihre Aufmerksamkeit.

3*

Peace-keeping on a Universal or Regional Level Otto Kimminich • It is difficult not to yield to the temptation to start this paper by describing the blessings of peace. If peace-keeping is the topic of this short presentation, it seems appropriate to make it clear from the very beginning what we mean by peace, why we strive to keep it and what problems we find in doing so. lndeed, a eulogy in praise of peace cannot be avoided whenever experts in any field come together to discuss international relations in our time and in the future. Experts in internationallaw have been the first ones to realize this necessity, 1 and it is certainly in line with this tradition that the organizers of this symposium have given primary ranking to peace-keeping. But the task of peace-keeping is viewed here within the framework of internationallaw considered to contribute to something which is called World Order. Therefore it is necessary in the frrst place to defme the notion of World Order and in the second place to examine the role of internationallaw within this order. Most probably this will be done by all who have been asked to present a paper and there is an equally high probability that those participating in the discussion will present their own versions of the definiton of World Order. Let us not despair if there should be divergencies. To measure the width of the common ground and to stake out the areas of dispule is precisely the task of such a symposium. The two questions outlined a while ago are necessarily intertwined. Any definition of World Order points to a distinct understanding of the role of international law in it, and, vice versa, any description of the role of law in the World Order indicates the kind of World Order which one has in mind. There is even the extreme position of assuming identity, saying that international law is World Order. By saying that internationallaw contributes to World Order, I have already foreclosed that possibility and I am sure that on this point I am in agreement with the majority of international lawyers. lt is not only modesty that prevents the international lawyer from saying that international law is something. Nor is it anxious precaution or the fear of being made responsible for fatal developments. Rather it is a realistic assessment of • Professor Dr. Otto Kimminich, University of Regensburg; the opinions expressed in this volume are the personal views of their authors only. 1 Cf Edouard Descamps, Le droit international nouveau, in: RdC 31 (1930/1), 393560.

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the ways of this world. We all know that the mere existence of legal norms does not create an order of any kind. Thus the very notion of order implies a voluntaristic element. It may be described with different expressions from the various angles: will and intention as far as individuals are concerned, consent and coercion if you Iook at it from the perspective of the community as a whole, power in political terms. 2 Internationallawyers have used these patterns. Analyzing the concept ofWorld Order, Schwarzenherger starts with the following definition: "Order is a state of affairs in which those passively involved are subject to an essentially factual, rather than normative, apparatus of force and power." 3 But then he goes on to explain the relations between law and order and he asserts that their functions tend to be determined by the character of the group they serve, rather than vice versa. And he makes an important distinction: ''The character of order and law in a society is determined by their overriding purpose.... The typical purpose of a community is to achieve the common good of all, as determined in conditions of an essentially voluntary co-ordination of efforts.... More specifically," he goes on to say "the laws and orders of societies ilre laws and orders of power. If possible, they rely on self co-ordination but, if necessary, on a rising scale of pressures and, in the last resort, force. By contrast, the laws and orders of communities appeal to more sublimated motive powers than those of societies and, in closely integrated communities, enforcement of the law is largely reduced to a background function." 4 Schwarzenberger, well steeped in German sociological research and weil versed in Ferdinand Tönnies' terminology, was able to use such distinctions to great advantage. Other writers use the terms "society" and "community" more loosely. But it is not the expression itself which is of importance here, but the comparison of two forms of the relationship between legal and political order. The frrst model, it would seem, corresponds largely to classic international law, the second one might be associated with the evolving new international legal order taking shape under the impact of the UN Charter and subsequent developments. 2 Myres S. McDougal and Harold Lassweil who are said to have invented the term World Order (cf Rosalyn Higgins, Contending Systems of World Public Order and International Law: An Overview, iri: The Atlantic Community Quarterly 25 (1987), at 146) meant it to include the "basic features of the social process in a community". And "since the legal process is among the basic patterns ofa community, the public order includes the protection of the legal order itself, with authority being used as a base of power to protect authority"- Myres S. McDougal I Harold Lasswell, The ldentification and Appraisal of Diverse Systems of Public Order, in: AJll.. 53 (1959), 1-29 (8). 3 Georg Schwarzenberger, International Law and the Problem of Political World Order, in: Bin Cheng (ed.), International Law: Teaching and Practice, London 1982, 55-66 (56). 4 Schwarzenberger, op. cit., 56, 57.

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Again, sociologists would say that the group of subjects of international law is obviously on its way from a society to a community. Butthat is not what we are concerned with. In legal tenns we are able to describe the progressive development of internationallaw since the time of the League of Nations without having recourse to the notions of society and community. Yet reference to this development brings to light another important factor .which we have to bear in mind when we try to assess the international legal order of today: lt has been changing profoundly and - in historic dimensions - rather rapidly for some time, for decades already, and it will continue to do so for some time to come; the construction of the new system of internationallaw is not yet completed. To avoid misunderstandings let me add that this is not to say that there will ever be a time when there will be no further development. Legal orders, like all human phenomena are changing constantly. But for international law, as all scholars agree, the time since the establishrnent of the League of Nations and even more so since the birth of the United Nations has been a period of restructuring. In such a period the system of internationallaw is characterized by the juxtaposition of old and new rules, a state of affairs which to some observers looks more like disorder than order. Those who understand the whole process of change are able to describe the present state of World Order in tenns of an "international society as a legal community." Hermann Mosler, who coined this phrase, also explained how order can materialize in the seemingly disordered present state of affairs and in this international society of sovereign States. To quote him: "In any legal community there must be a minimum of unifonnity which is indispensable in maintaining the community. This unifonnity may relate to legal values which are considered to be the goal of the community or it may be found in legal principles which it is the duty of all members to realise. It may relate to legal rules which are binding within the community. The whole of this minimum can be called a common public order. The international community cannot dispense with this minimum of principles and rules as without them it would cease to exist." 5 This quotation, taken by itself, raises the old question of the chicken and the egg, a conundrum, as we all know: Do we have an international legal order, because there is an international legal community or is there an international community because a legal order exists on the internationallevel? In the whole of bis lecture at the Hague Academy, from which this quotation is taken, Mosler has shown the interrelationship between the factors detennining the growth of the international community 6 and those shaping the legal order on this level. All 5 Cf. Hermann Mosler, The International Society as a Legal Community, in: RdC 140 (1974/IV), 17-81 (33). 6 The terrn "growth" used in this context is not limited to the number of members of the international community, but refers primarily to the strengthening of community ties. Others have pointed out that there is also an interrelationship between the quantitative growth of the international community and qualitative shifts in internationallegal rela-

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of them contribute, in various fonns and degrees, to the construction of a World Order under law. In recent years, more and more authors have emphasized this point, and the general agreement on it- in East and West, North and South- constitutes a sound basis for the fundamental unity of international law on the global Ievel and thus for universal peace. Among the factors mentioned most frequently in this context is the moral and political will, as evidenced in Professor Tumanov' s remarks which he made at a symposium in Heidelberg a few years ago: "Our epoch has seen enhanced influence of international law on domestic law and legal order. This has been caused not by an expansion of any enforcement arrangements available to international law, but by the latter's growing moral and political authority, which in turn stems from the progressive development of internationallaw on a general democratic basis." 7

lt may be debatable whether the heavy reliance upon the motivating forces of moral conviction is really a unique feature of internationallaw, as compared to domestic legal orders, or whether this is just a question of degree. W eng/er is of the opinion that the first-mentioned alternative is true, "conceiving public international law as a legal order, distinct from other enforcement systems for legal nonns." 8 McDougal and Feliciano have differentiated between minimum order and optimum order. The present World Order, they say, is a "minimum order, in the sense of the prevention of unauthorized coercion. " 9 Hermann Mosler finds "a considerable element of constitutional life in international society" 10 manifesting itself not only in the statutes of international organizations, but also in the "principle of consensus" inherent in the fundamental nonns of public internatiomil. law which Verdross has called "the indispensable constitutional principles of the international legal community." II It would be possible to quote many more authors to the same effect. Their research has brought forth an important tenet occupying a central position in the arguments concerning our topic. It runs as follows: The constitutional elements tions. Cf Atle Grahl-Madsen, International Law and Organization for a New World Order, in: Atle Grahl-Madsen I Jiri Toman (eds.), The Spirit of Uppsala, Proceedings of the Joint UNITAR-Uppsala University Seminar on International Law and Organization for a New World Order, Berlin/New York 1984, 10. 7 Vladimir A. Tumanov, International Protection of Human Rights- Soviet Report, in: Rudolf Bernhardt I John Anthony Jolowicz (eds.), International Enforcement of Human Rights, Berlin/Heidelberg/New York 1987, 21-24 (24). s Wilhelm Wengler, Public International Law- Paradoxesofa Legal Order, in: RdC 158 (1977N). 9- 85 (15). 9 Myres S. McDouga/ lFlorentino P. Feliciano, Law and Minimum World Order, New Haven/London 1961, Preface, VII. 10 Mosler (note 5), 32. 11 Alfred Verdross, Die Quellen des universellen Völkerrechts, Freiburg i. Br. 1973, 20. See also Alfred Verdross I Bruno Simma, Universelles Völkerrecht, 3. Aufl. Berlin 1984, 59.

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of internationallaw which are the "backbone" of our World Order must be global in their validity and acceptance. As far as they are concerned, there can be no dispute between globalism and regionalism. If this is accepted, much of the controversy which has arisen in recent years is being reduced to a quarre} over the merits of regionalism in certain details. Of course, the details are important and they have to be discussed here, but before we start this discussion we should emphasize that which is beyond discussion, namely the global character of the overriding aims of the international community and of the basic norms of its legal order. From this starting point further discussion unfolds along logicallines. Without any difficulty, the overriding aims of the international community in the second half ofthe 20th century as setforthin the United Nations Charterand in numerous declarations can be identified. They are peace, security, national independence, economic well-being, self-determination, human dignity. Oscar Schachter, who has compiled this Iist, is certainly right when he assures us that they are "indisputably the major aims of the community as a whole." 12 He calls them the "shared purposes of States." There might be doubts as to the inclusion of some further aims in this Iist, or as to the rank order of aims following that which has been mentioned in the first place. Butthereis no doubt about the fact that in presentday international law peace ranks first among the overriding aims of the international community. Furthermore, there is general agreement that peace is not only an abstract goal in the sphere of wishful thinking. The duty to keep the peace has normative forceweil beyond Article 2 (4) of the UN Charter. 13 The latter provision gives evidence of a binding norm of international law which has been strengthened by the Charter but which would not cease to exist without the Charter. Above all, the duty to keep the peace comprises much more than the obligation not to resort to war and violence. Long before the Charter of the United Nations was drafted, the term pacigerat positif was coined to describe the sum of activities aiming at keeping the peace. t4 Peace-keeping in this sense is a universal affair. The duty to keep the peace is an obligation erga omnes, even though in specific instances it narrows down to the duty to act or not to act against a certain subject of internationallaw. That is the meaning of the famous words "peace is indivisible." 15 Butthat does not mean that all peace-keeping efforts must be organized on the universal Ievel. 12 Oscar Schachter, International Law in Theory and Practice, in: RdC 178 (1982/ V), 9- 149 (5). 13 Cf Otto Kimminich, Der nonnative Gehalt des Friedensbegriffs und seine Erforschung, in: Boris Meissner I Edgar Tomson (Hrsg.), Internationales Recht und Diplomatie 1972, Festschrift für Rudolf Laun, Köln 1974, 93- 105; Albrecht Randelzhofer, Der nonnative Gehalt des Friedensbegriffs im Völkerrecht der Gegenwart, in: Jost Delbrück

(Hrsg.), Völkerrecht und Kriegsverhütung, Berlin 1979, 13-39. 14 Descamps (note 1), 486.

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Before going into the details of this question, however, one should specify the concept of universalisrn as used in the title of this syrnposiurn. lts opposition to the concept of regionalisrn seerns to rnake it clear that it sirnply rneans "cornprising the whole world." But that is only the beginning of an effort to define. Obviously, universalism is not only a question of geography but also of outlook and normative validity. From ancient times, universal norms were thought to be those which applied to all persons at all places. And they were not mere postulates of philosophers. It was the Romanjurist Gaius who defined ius gentium as the law which all apply and which reason makes binding for all. 16 The "fathers of international law", mernbers of the school of Salamanca, took up this idea and used it as the foundation of their theory of international law. Francisco Suarez epitornized it in the expression totus orbis, which he explained as follows: "Mankind, though divided into numerous nations and States, constitutes a political and rnoral unity bound up by charity and cornpassion.... Therefore they also need sorne common law organizing their conduct in this kind of society." 17 Almost four hundred years later an eminent scholar describes the world as being "interdependent but disunited." 18 Schwarzenherger takes a dim view of this state of affairs and asserts that it is by no rneans a World Order, but at most a global quasi-order. 19 We should not argue about it, because that would throw us back on the problern of defining the concept of order. Since international public law is essentially the law governing the relations between sovereign States, its world is by definition disunited. That States today are willing to accept interdependence is a rernarkable progress as against the "orgy of sovereignty" of previous times culminating, as we all know, in the 19th century and having its effects on the 20th century as well. Universalisrn is associated with the awareness of interdependence. And that seems to be the optimum which international law can achieve; for sovereign equality of the States is still one of the pillars of the international legal' order on which even the Organization of the United Nations is basedas Article 2 (1) of the Charter explicitly says. Article 1 of the Charter calls for collective measures to prevent and rernove threats to the peace and for friendly relations arnong nations and it rnentions international cooperation for various aims. lt does not envisage a World State or a World Federation. 15 Cf Otto Kimminich, Der Friede ist unteilbar, in: Institut für Friedensforschung an der Universität Wien (Hrsg.), Christen und Marxisten im Friedensgespräch, Wien/Freiburg/Basel 1976, 45. 16 Dig. I, 1, 9: Quod vero naturaUs ratio inter omnes homines constituit, id apud omnes peraeque custoditur, vocaturque ius gentium, quasi quo iure omnes gentes utuntur. 11 Franciscus Suarez, Tractatus de legibus ac Deo legislatore, II, 19, 5, as translated by Manfred Lachs, in: RdC 169 (1980/IV), 9-377 (242). 1s Ram Pral«lsh Anand, Sovereign Equality of States in International Law, in: RdC 197 (1986/11), 9-228 (18). 19 Schwarzenherger (note 3), 58.

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Thus, it is clear that universalism under the Charter does not mean striving for a universal Super-State. There are many who believe that peace on earth can only be attained by creating such a universal State. Not so the authors of the Charter. They have heeded Toynbee' s waming that the world peace of a universal State is constantly waging a desperate and hopeless war against the untamed evil spirit of violence within. 20 Universalism in the sense of the Charter means a universal framework of law with equal validity for the separate entities of the global system. Therefore the Charter uses such cautious words like cooperation, collective measures, friendly relations. lt is only in the context of peace in which it uses a stronger word: In the Preamble, the peoples promise "to unite their strength to maintain international peace and security." For this purpose (peace), the Charter does not allow the world to be interdependent but disunited. It requires that it be interdependent and united. And that is the essence of universalism in the sense of the Charter. In this sense one could say that universalism is the only approach to the problems of peace. Its opposite would be parochialism, as Harold Lassweil has pointed out in his introduction to the book on World Order by McDouga/ and Feliciano. The syndrome of parochialism, he reminds us, was species-protecting for hundreds of centuries in pre-civilized life. Under the conditions of modern Iife it has become species-destroying. 21 Consequently the next question to be answered concerns the meaning of regionalism. If it has anything to do with parochialism it is unfit for peacekeeping in accordance with the Charter of the United Nations. That seemingly sweeping statement lies at the very heart of our problem. One could dwell upon it for a long time. To make a long story short, Iet us simply indicate the outlines. There is of course the danger that thinking in regional terms may narrow the outlook of those responsible 'for the decision-making of the regional community. But, so far there is little evidence that this has happened in reality. Rather it may safely be assumed that regional organizations, if properly embedded in an international legal order possessing the necessary universal backbone, can easily avoid any traces of parochialism and that it can add sinews and musdes to that backbone, making the international legal order strong and flexible. As usual, the real problems are hidden in details. To what extent and under which conditions can regional arrangements strengthen and support the universal frarnework? How can the beneficial working of the regional organization be assured? The answers cannot be given generally. The optimal working conditions of each regional regime, organization or arrangement can only be determined by Arnold Toynbee, War and Civilization, New York 1950, 158. Harold Lasswell, Introduction: Universality versus Parochialism, in: McDougall Feliciano (note 9), XXI- XXVI (XXI). 2o

21

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taking into account its specific purpose and its cornposition. The specific purpose in our case is peace-keeping. As for the optimal cornposition of regional systerns serving this purpose, two approaches are possible. One might, ft.rstly, take the existing regional systerns and analyze their efforts to contribute to peace-keeping. One rnight, secondly, start frorn the specific task and ask how a regional systern should be cornposed in order to fulfill its task rnost effectively. This Ieads back to the theoretical problern of defming the region. RudolfDolzer has expressed well-founded doubts whether this concept has acquired "that degree of specificity which makes it usefui· as an element of consideration in legal thinking about problems of world order." 22 But at the same time he deplores that "the pervasiveness of regionalism as a principle of present international cooperation does not find adequate emphasis in current legal thinking." 23 That may be true. But at least the foundations have been laid in a nurnber of works, among them the one by Winfried Lang who has analyzed the various types of regional cohesion: geographic, political, economic. 24 In all of them he sees five dimensions: hornogeneity, similarity of political behavior, institutional ties, econornic transactions and proximity. The latter is emphasized by sorne authors who contend that without the geographic element there is no regionalisrn, but only sectionalism, as for instance in the notions of Islamic internationallaw, or Sodalist international law. Sectional groupings are - according to William Butler "predicated on a theological or ideological community and not geographic contiguity."25 But all authors agree that proximity alone does not make a region 26 which is perfectly true. This is highly important for the question of the feasibility of regional peacekeeping. Peace research has shown that peace - understood not merely as the 22 Rudolf Dolzer, Universalism and Regionalism, in: Grah/-Madsen I Toman (eds.) (note 6), 513-533 (517). 23 lbid. In order to illustrate the proliferation of regional organizations in the ft.rst 25 years of the United Nations Ernst B. Haas, The United Nationsand Regionalism, in: International Relations 3 (1971), 795-815 (795) says that "regionalism is the tail that wags the global dog. Of 121 members of the United Nations 109 belong to at least one regional organization not affiliated with the UN, 72 of them belong to several." 24 Winfried Lang, Der internationale Regionalismus, Wien/New York 1982, 64. 25 William E. Butler, Regional and Sectional Diversities in International Law, in: Cheng (note 3), 45-54 (46). 26 Charles Rousseau (Droit International Public, Paris 1953, at 212) writes: "The concept of regionalism rests both on geographic contiguity and on the community of political interests." Cf also Jean-Ciaude Gautron, Le fait regional dans la societe internationale, in: Societe Fran~aise pour le Droit International (ed.), Regionalisme et universalisme dans le droit international contemporain, Paris 1977, 3 - 44; Bruce M. Russett, International Regionsand the International System, in: Richard A. Falk I Sau/ H. Mendlovitz (eds.), Regional Politics and World Order, San Francisco 1973, 182202; B. Bhoutros-Ghali (Contribution a l'etude des ententes regionales, Paris 1949) distinguishes between necessary and sufficient elements of a regional group. The necessary elements are legal (a treaty for the maintenance of peace), sociological (a treaty based on a particular sociological solidarity embracing racial or ethnic affinities, econo-

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absence of war - is the result of purposeful efforts in many sections of human activity. Consequently, peace efforts must pervade political behavior, institutions, economic transactions, ideology. If a region is defined by homogeneity or similarity of these factors within a group of nations, regionalism may weil be activated for peace-keeping. The decisive element, however, is the intentional orientation of all efforts towards peace. Since peace is the overriding goal of the present internationallegal order, requiring- as we have seen- a universalist approach, regional peace-keeping demands universalism concerning the application and interpretation of all legal norms pertaining to peace. lnternationallawyers recognized this early. "The League of Nations represented the first practical application of the twin principles of universality and regionalism to the organization of international peace. " 27 lt was Schwarzenherger who pointed this out as early as 1936. 28 Friedmann explained why regionalism became ever more important in the wake of the development of internationallaw. He wrote in 1964: "To the extent... that internationallaw expands from what is essentially a set of rules of abstention, to organized international co-operation, it becomes more sensitive to the divergencies of internal systems, as expressed in their political ideology, their legal structure and their economic organisation". 29 Therefore, he argued, international law develops on "different Ievels of universality" some of which can be viewed as regional Ievels. Five years later he analyzed the regional arrangements according to Chapter VIII of the Charter of the United Nationsand called them "the principallink between a world of separate sovereign States... and a centralised international society". 30 A link function of regionalism seems obvious. But the link picture does not show any hierarchy of norms and leaves open the question of precedence. Friedmann answers it by making it clear that in bis vision of a "centralised international society" the regional authorities derive their power from the central organization "which delegates certain powers to its member States as constituent units". 31 Lang points out that there are two formal ways of linkage: Either the universal mic co-operation, mutual defense), geographic (contiguity of member States) and institutional (an international agency of a permanent character). Sufficient elements - which must be added for the . success of the regional organization - are legal equality of member States, free adhesion and "more than five signatories." Necessary and sufficient elements, he says, are interdependent and mutually reinforcing. Cf Ronald Yalem, Regionalism and World Order, Washington 1965, 17-37. . 27 Rafin A. Akindele, On the concepts of "universality," "regionalism" and "reciprocal (multiple) equilibrium" in international organizations for peace and security, in: Revue egyptienne de droit international 28 (1972), 65-97 (81). 28 Georg Schwarzenberger, The League of Nationsand World Order, London 1936. 29 Wolfgang Friedmann, The Changing Structure of International Law, London 1964, 62. 30 Wolfgang Friedmann, General Course in Public International Law, in: RdC 127 (1969/11), 39-246 (86). 31 lbid.

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Otto Kimminich

organization is the sum of its constituent regional organizations or the latter are executive organs of the universal organization within the boundaries of the region. 32 He adds that between those two extremes there are a nurober of what he calls "mixed models." The Charter of the United Nations in my opinion represents such a mixed model. But as far as peace-keeping is concerned it comes closer to the second extreme, as evidenced by Articles 51 and 52 of the Charter. Article 51 of the Charter permits self-defence only "until the Security Council has taken the measures necessary to maintain international peace and security." Article 52 is the basic provision for regional arrangements or agencies dealing with international peace and security, and it permits them "provided that such arrangements or agencies and their activities are consistent with the purposes and principles of the United Nations." The principal witness for the victory of universalism seems tobe Article 27 of the Charter, which ensures that the basic decisions on issues of peace-keeping are made on the universal Ievel. However, it is possible to look at the picture from a different angle, saying that "Arts. 51 to 54 ofthe Chartershow that regionalism was by no means fully rejected in 1945." 33 After analyzing the discussions of the relevant provisions of the Draft Charter in Dumbarton Oaks and San Francisco, 34 Dolzer comes to the conclusion that "the UN Charter was finally phrased in a way which combines elements of universalism and regionalism." 35 He adds that the ambiguities of the Charter made it possible for international lawyers to consider the regional principles as subordinate, autonomaus or even superior as compared with the universalist elements of the Charter. But a closer look reveals a clear result. Since "the United Nations was created to preserve peace", 36 priority must be given to those principles that serve this overriding goal. And that is why Dolzer finally comes to the conclusion "that regionalism was not meant to receive the same weight in the legal structure of the United Nations as universalism. In fact, regionalism was introduced as a subordinate element in the global framework of the Charter, more meant rather to strengthen than to weaken the fundamental decision in favour of universalism." 37 He adds that this view is supported most clearly by Article 53 ( 1) clause 2 of the Charter, according to which enforcement action shall not be taken under regional arrangements without the authorization of the Security Council. 32 33

Lang (note 24), 170. Dolzer (note 22), 515.

34 More details of this discussion are to be found in Lynn H. Miller, The prospects for order through regional security, in: RicluJrd A. Falk I Sau/ H. Mendlovitz (eds.), Regional Politics and World Order, San Francisco 1973, 51 -77 (52, 53). 3S Dolzer (note 22), 514. 36 Bertrand G. Ramcharan, Keeping Faith with the United Nations, Dordrecht/Boston/ Lancaster 1987, 121. 37 Do/zer (note 22), 515.

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Within the scope of peace-keeping, to which Article 53 pertains, this view is absolutely correct. Therefore it is wrong to assume that "the right to collective self-defence has been used to emasculate the world organization in favor of regional organization." 38 Organizations of collective self-defence have been necessary, because the global system of collective security envisaged by the Charter was made unworkable, as we all know, by the use or misuse of Article 27 of the Charter. Organizations of collective self-defence are based on Article 51, which at the same time Iimits their activities and gives priority to the global system of collective security. Moreover, a group claim of self-defence is open to review by the international legal community, just like any individual claim. Without these reservations the internationallegal community could not survive. As Sir Robert Jennings said: "Universality does not mean uniformity. lt does mean, however, that regional international law, however variant, is part of the system as a whole and notaseparate system." 39 Peace-keeping is the one area in which this principle is of crucial importance. The duty to keep the peace stems from a peremptory norm of internationallaw. In the field of peace-keeping there can be no "competing regional systern." 40 All regional arrangements dealing with matters relating to the rnaintenance of international peace must strive for the same universal peace. Therefore, there can be competition between regional systems only in the sense that they all vie for the most effective means for keeping their region peaceful. Thus, regionalism has its merits in peace-keeping, but universalisrn will always retain its priority.

38 Werner Levi, Fundamentals of World Organization, London 1950, 84, as quoted in: McDougal et al. (note 9), 246. 39 Sir Robert Y. Jennings, Universal International Law in a Multicultural World, in: T. M. C. Asser lnstituut (ed.), International Law and the Grotian Heritage, The Hague 1985, 187. Cf also Louis Dubouis, Les rapports du droit regional et du droit universel, in: Societe fran~aise pour le droit international (ed.), Regionalisme et universalisme dans Je droit international contemporain, Paris 1977, 263 - 287. 40 See also Edward McWhinney, United Nations Law Making, New York/London 1984, 8.

Discussion of Otto Kimminich's Lecture· Ginther: Thank you very much for this very interesting and also very instructive paper you have presented to us. I only wanted to ask you, whether you could follow up on giving us a concretisation and exemplification of your main propositions, Iet us say with reference to the European scene: the European regionalism EastWest and inter-regionalism between East and West, and I could imagine if you do so early in the discussion, it might stir up further points to be made. Thank you very much.

Kimminich: lt seems I will have to. I was afraid that this question would be raised. Let me repeat that it is difficult to make any concretisation without going very deeply into many, many details. You now mentioned one region, Europe. Permit me to respond with the question: What is Europe? What do you understand by Europe as a region? As you know, we have the notion of the region of Europe and we mean Western Europe. Many of us even narrow it down to the central part of Western Europe and only lately have we begun to extend it to the North and to the South. Actually, my own question to you was not meant very seriously, because I don 't think you would be prepared to say what you understand by Europe. You want to? Please, yes.

Ginther: For the sake of this discussion, we would narrow it down or define Europe in various ways and I think for the start, I would understand, Europe as defined by the participants of the European Security Conference. Of course, then, we face already the problern that there are non-European powers involved and it shows us that regions are very difficult to define and that we have to make compromises. And taking this into account, we could then go on to discuss "Europe". Presently, very interesting processes can be observed to have Europe narrowed down to Europe proper or some tendencies. This Ieads us to the problems of law in very concrete terms and I think from there some international law questions will then emerge. But I don't want to say more to that for the time being. • The opinions expressed in this volume are the personal views of their authors only.

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Kimminich: I think, here we have two Ievels of problems. One Ievel is the geographic delimitation of the region. It seems to me we have reached the point where we enlarge our vision of Europe in the Bastern dimension to coming back to the old notion of Europe comprising the whole continent. Which raises quite a few very difficult specific questions as to the importance of ideology. To overcome the barriers of ideology will take a long time. We should not hurry, because if anybody would try to do that within a short time, it might be dangerous. We must be very cautious. And therefore I think it is too early to make any specific proposals as far as this new dimension of Europe which is an old one of course, is concemed. The other problern which you mentioned is the comparison of collective security and collective defence. This is an old question conceming Article 51. The idea of collective security has been a global idea from the very beginning. You know that collective security is not a new idea derived from the United Nations. It was bom in the era of the League of Nations' time and even in this time it was thought to be global in character. Article 51 of the UN Charter, which does not use the word collective security, is the centerpiece of a whole system of Charterprovisions giving evidence of the idea of collective security which must be global. When a group of States in East and West Europe and the rest of the northem part of our globe came tagether in Helsinki, the first question to be asked from a legal point of view was, whether it would be in line with the United Nations Charter to create a non-global system of collective security. I think the development of the talks starting from Helsinki up to the last followup conference in Vienna has shown that the regional approach has its merits in many fields, including human rights. But collective security should always be organized on a global Ievel. Any system of collective security limited to a region implies a grave danger, namely that it becomes in the course of time, a system of collective defence. A system of collective defence is pointed toward a certain potential agressor, whereas a system of collective security is not directed against anybody outside the system. And this is the great advantage of collective security, as laid down in the Charter. You object? Excuse me. I think that may be a bone of contention, but in my opinion it is a danger that a regional system of collective security might develop into a system of collective defence. And then it is something else. If you wanted to have this, you could make a system of collective defence in the first place. Therefore, peace-keeping on the regional Ievel should not blur this difference between collective security and collective defence.

Skubiszewski: Thank you, Mr Chairman. First of all I would like to thank the Directors of the Institute for inviting me to this conference and I must add that, as you are celebrating your important anniversary: I have today also my small individual 4 Symposium 1989

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anniversary tbis is tbe 15th year of my attendance at Kiel conferences. In tbis connection, I would like to extend also my tbanks to my distinguisbed neigbbour at tbis table, Professor and former Senator Kewenig, wbo took the initiative in 1974 to invite me to Kiel. Now, Prof. Kimminich, you spoke, at tbe beginning of your paper and in various terms, about tbe absence of conflict between universalism and regionalism. To tbis I would add one caveat. There are imperial concepts of regionalism wbicb tried to impose tbemselves on universal internationallaw, and tben certain conflicts arose. I would say tbat tbis took place until the most recent times. Think of tbe concept of tbe Mitteleuropa before and during tbe First World War. I am not speaking of tbe Mitteleuropa today, wbicb is a very vague notion mainly developed by literary people. Then, you bave bad the Japanese concept of the greater Asia co-prosperity spbere and the German concept of tbe Großraumordnung (large-scale order). Then you bave the Soviet block as a regional block witb all its implications for various States. And you still bave spberes of influence or begemony of different denominations. So I would include tbese facts in your considerations. One may ask tbe question, and it is a question I would direct to you, wbether regional groupings are trying to take over tbe role of sovereignty. Do tbey take over sovereignty from individual States? On tbe otber band, you refer to sovereignty as one of the pillars of tbe wbole dicbotomy: universalism - regionalism. In tbe European Communities the problern of sovereignty or of liquidating some of its elements is now less topical than it used tobe at tbe start of tbe Communities. But still some writers ask tbe question wbetber tbere is a degradation of tbe role of internationallaw witbin economic communities. Is not tbe law of the Communities becoming, among those States, more important tban international law? Is not tbe community law in various economic formations, the European Communities being tbe most important, becoming more relevant? Incidentally, Prof. Kimminich, you referred toSodalist internationallaw. I do not tbink Socialist international law exists. There are certainly some peculiar rules being applied among communist States, especially among the members of the Comecon, but tbat is not a separate body of internationallaw. I would dismiss it from our debate. Today, we all agree witb tbe obvious view that regionalism bas got its place in tbe unity and universality of international law if it respects tbe supremacy and primacy of generat international law. One writer, M. M. Etzioni spoke in tbis connection about compatible regionalism, compatible witb universalism. But universallaw in international relations, this we must remember, is still very far from playing a role wbicb would be similar to tbat it plays on tbe domestic front, inside various States. And, of course, we know very weil tbat according to earlier concepts particularism dominated internationallaw. I am referring, as an example, to tbe writings of one of the best German international lawyers, a first class

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mind in the science of German internationallaw, Heinrich Triepel. I can quote him in German: ,,Der Gedanke des allgemeinen Völkerrechts ist naturrecht/ich" (The generat idea of international law is natural law). That was said 90 years ago. That is, of course, no Ionger true today, but at the present moment it is also often difficult to speak of universal regulation, of universal law, and of unity of international law about which you spoke in such a competent manner. Nonetheless, I do not attach too much importance to the numerical preponderance of particular norms. I would not do it for two reasons. First, the regional or particular norms are often nothing more than applications or adaptations of universallaw which is not functioning on the universal basis, but which is quite well-functioning in smaller groupings, for instance the classical rules on the taking of foreign property. And if in a domain there is no universallaw, there are still universal concepts and universal ideas. The second reason why I would not exaggerate the importance of regional norms is that in several instances various particular rules lend themselves to application by other States, not only by members of a group or of a region. They lend themselves also to the application by all States. Such application does not happen for various reasons, but it would be useless, in this competent group, to dwell on this subject. My last point, Mr Chairman, is the remarks Prof. Kimminich made on the definition of region and regionalism. Prof. Kimminich said that regionalism is not only a question of geography. I would emphasize this point, but at the same time I would say that region in the geographical sense is a safe basis for our debate and at any rate it is a safe starting point for our debate. Because region in the geographical sense is something more than mere territorial contiguity. Territorial contiguity is quite unclear. It may, in a certain sense, embrace, if not the whole world, very large parts of it. As Hans Kelsen rightly observed, there was no answer to the question where the territorial contiguity ended. And this is why I would say that if one speaks of particularism instead of regionalism and if one speaks of particular law and particular organizations, one .avoids the difficulty of defining the term "region" and avoids, I would say, especially the difficulties involved in the various meanings of that term: the geographical meaning, the political meaning, there is also a treaty connotation of the word and some others. Finally, Mr Chairman, I would like to congratulate the rapporteur on bis theoretical approach. Our problern has many practical implications but practice always needs good theory. And we got it in the paper which was read today. Thank you.

Kimminich: Thank you very much, Mr Skubiszewski. There is so much I have to thank you for and I must agree with you but I think I can be very short. First you 4*

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mentioned hegemony. Let me make it clear again that hegemony is not regionalism. One could even say it's the opposite. Regionalism is organized co-operation of equals within a region. You mentioned that the law of the communities is becoming more important than international law. This is a development which we have seen in Western Europe and which we could discuss. All of us are probably in close contact with the experts of European law. And the younger colleagues are experts both in public international law and in European law and they, so to speak, are on both sides. The law of the communities is intended to become more important than constitutional law and even public international law of the old type. lt is a new type of the ordering of relationships between closely related States and it is a development which has been put in motion by our politicians and by the population which has elected these politicians. And we as scholars of international law can only register what is going on. There are of course some who say it is too fast and we should be careful because after all public international law has provided a framework which has worked for many centuries now, while this new law is still very young. But we do hope that it will fulfill its purpose,.and if it does it will supplant public international law. That's the way it goes. lt's what we call European integration. Then you mentioned socialist international law, Iet me point out that I quoted William Butler. He spoke of the difference between regionalism and sectionalism and he mentioned socialist international law as an exarilple of sectionalism. I quoted him. I did not express an opinion on the existence of socialist international law. Thank you for giving us your opinion about this, but I did not express any opinion on it. Then you also mentioned particularism. Particular norms in a specific region: That's what we have been calling particular international law. Regionalism is something different. Regionalism does not concern the validity of particular norms in a specific region. lt is organized cooperation of sovereign States within a region. Of course you are right that particular norms usually are nothing else but universal norms in their interpretation and application in a specific area. And, of course, we have particular norms in a specific region, but that is not regionalism. I think we must make a clear distinction, and therefore I would beg to differ from your opinion, that we should prefer particularism to regionalism. lt is not the same. Then, again I agree with you in your remarks on proximity. Let me repeat that proximity alone does not make a region. But, of course, territorial contiguity is an element, indeed a basic element, of regionalism.

Ferrari Bravo: Thank you, Mr Chairman. I also want to congratulate you for organizing this colloquium and to congratulate Prof. Kimminich for bis introduction. He was wise in giving us a very general statement, I should say, a philosophical one,

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so that the debate can start from these very general ideas and go into the details. Prof. Kimminich hirnself said that. In fact we need to apply on particular cases the general ideas. Weil, I should start by saying that in my mind, maybe I am wrong, one should avoid confusing regionalism with the problern of integration, i. e. integrated systems. I strongly deny that integrated systems are forms of regionalism. They are a completely different thing. They are forms öf overcoming States' sovereignty possibly by temporary application of international law which tums and which is intended to turn into constitutional law or something similar. I would say provisional international law. And the shorter period ·of time that it lasts as international law the better for the purpose, for those who want integration. Regionalism is different, regionalism is what we know according to Chapter VIII of the Charter of the United Nations and the like. Now, on universalism versus regionalism as applied to the problern of peacekeeping, which was the topic introduced by Prof. Kimminich, I think he gave a very general concept of peace-keeping, which in fact includes peace-keeping stricto sensu and also peace-building. Because, you may Iook at the peacekeeping problern from two different angles. The peace-keeping problern is a concept crisis oriented: How tö face a crisis, how to face a risk for peace, how to face a breach of peace? This was the original intent of the Charter of the United Nations, Chapter VII and Article 51 as the bridge between Chapter VII and the following Chapter VIII, which engulfs into the United Nations system something older than the Charter itself. This is peace-keeping stricto sensu. While the tendency in modern times, perhaps because of the crisis of Chapter VII of the Charter, is to change a little bit the focal point, the "Schwerpunkt" (main point) from peace-keeping to peace-building. To change the normative framework which protects peace. And I will come to this because it seems to me that is very important for the topic we are discussing this afternoon. If you Iook at peace-keeping stricto sensu, it is clear (at least it is clear to my mind) that the universal system is paramount imd that the regional peace-keeping system should be put on a lower Ievel under the control as much is possible of the universal system. I mean by this that an intervention to preserve peace by a regional system, a regional organization, should be a very exceptional case and should be in a way admitted only by authorization of the universal body, which is in fact the Security Council of the United Nations. But this being said, the fact is that because of the ·crisis of Chapter VII of the Charter collective security systems were established. You, Prof. Kimminich, you made a good point by saying: collective security yes, collective defence, no. We can quote many doctrines, and many doctrines which have allegedly produced international law: the "Brezhnev doctrine," for instance. I remernher that for many years I was serving as an Italian delegate to a commitee precisely instigated by that doctrine which eventually concluded its work without too much darnage to international law

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(the Non-Use of Force Committee of the General Assembly). But one can also quote on the other side the Truman doctrine, so everybody has bis sins, particularly in the years immediately after the Second World War. But it is a fact of our history that these collective security systems were established. And it may be that in a framework of delegated authority they may be useful in very limited cases, perhaps outside the European continent, in places where there is a strong sentiment of local identity. Local identity based on shared values, which arenot common to other regions of the world. I am thinking for instance of the case of the Islamic world where it may be more fruitful for the cause of peace, for the advancement of the cause of peace, to make use, to a certain extent, of regional systems. So, I am a little bit cautious in turning away this idea which was used and abused for many years just because of the new, welcomed development in Europe. Now, if you turn to the second aspect of the problern of peace-keeping, namely the normative framework, peace-keeping as consisting in creating legal network for the preservation of peace, there you can still imagine that regional systems, regional normative systems, may be useful, again, because of shared values between member States. Take the case of the Council of Europe, which is a regional organization, not an integrated system. There is some work to do regarding the expansion of some ideas developed within the Council of Europe to the other part of Europe. As an example, let's take the case of co-operation which is organized around or within the Council of Europe, in the struggle against terrorism. Certainly the struggle against terrorism is part of today's peace-building system. And the creation ofthe normative framework in different instances whether universal or regional is always useful. Now it turns out that on certain aspects ofthat very complicated problem, you may reach results at a universal level. This was the case of the struggle against terrorist acts against civil aviation or maritime navigation. But there are also cases where you have to start from a regional context because it is easier, and by creating a zone where legal norms are as much as possible similar, you contribute even beyond the geographical area ofthat zone to the strengtherring of peace, to, I don't say total eradication of the evil you want to eradicate, but still to a better situation. Now, it is not always true that what is possible among countfies which share certain social or economic values, or a certain legal aspect of their system, would also be possible with other countries of the world. So you may have a system of, I should say concentric circles: smaller, wider, with different intensity, but all of them orientated to the creation, piece by piece, of this network which in general all in all contributes to the peace-building process. So, you see in my view the problern of universalism versus regionalism as applied to the peace-keeping question is not a black and white picture but it

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contains many grey zones and I think it is worth exploring those facets of this problern and I conclude by apologizing for having been too long. But the matter was really very complicated. Thank: you. Kewenig:

First, I would like to stress that I think it's very useful not only to talk about peace-keeping in a very technical sense, but to talk about maintaining or constructing peace in the broad sense Mr F errari Bravo has developed. As the development of international relations in the last 50 years demonstrates, you can't "do" peacekeeping without regionalism. So I think: you should not talk about universalism versus regionalism. To me regionalism is a necessary part of the universal effort to strengthen and to keep peace. On the other band, every international lawyer is a universalist, of course, because we prefer universal to regional systems. Then, we have clear cut rules of public international law applicable to all areas of the world. But unfortunately, the main law of peace-keeping on a very universal Ievel, the Charter of the United Nations, isn't such a great success. We have lived through the last 50 years being forced on and on to rely more upon regional efforts than really getting something on the global Ievel of the United Nations (looking on a very abstract Ievel). In the last 50 years quite a Iot of regional collective self-defence systems have done more for collective security, for keeping peace than the most beautiful and mostuniversal collective security system of the Charter. And so I think: more important, more interesting than the crisis mangagerneut of peace-keeping in the strict UN-sense is the peace developing work of so many regional organizations. So we should broaden our concept of peace-keeping. Vo/lers:

Mr Kimminich said before that he think:s that regional collective security could deteriorate into mere defence pacts. And obviously he considered that a defence pact is something which is inferior to a region of collective security and I would submit that in a certain way it is just the opposite. Because, what we call defence pacts in reality, in a certain way, to a large extent even, are really regions of collective security. You have it in our own system where there is one State for whose purpose the defence pact was created - in reality to contain this State. You have it in Asia, ASEAN is very largely a pact used to stop quarrelling among the member States and not only to defend against outsiders, and if you Iook at the Balkans: as the Bastern defence pact is a little bit less strong, obviously you see quarrels coming up between the neighbouring States again. So, I would submit that defence pacts are easy to justify because then we all know it 's against a third party. But in reality they are also, and to large extent, used to keep internal peace andin this way, it is a legitimate p!ut of the Charter system.

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Kimminich:

There is not one word of all which Prof. F errari Bravo has mentioned to which I would object or which I would be able to fonnulate in a better way. I can only underscore what he said and I would like to add something. As I mentioned in my reply to Prof. Skubiszewski, one should not confound regionalism with the law of integrated systems because the latter is intended to grow into constitutionallaw. Therefore, I thank you especially for making clear this distinction once again. Also I agree with your idea that peace-keeping and crisis management as described in Chapter VII of the UN Charter belong together, and that we, when we discuss peace-keeping on a regional Ievel, mean much more than crisis mangagement. I bad hoped that I bad made it clear from the outset, but I am very grateful to you that you have emphasized it again. Your word peace-building is very good. Thank you very much for it. Wehave in fact shifted emphasis from crisis management to the effort of peace-building within regional systems. And that may be the very advantage of regionalism because peace-building on a regional scale seems to be more easily achieved than on a global scale. That brings me to what Prof. Kewenig has said. There is no "versus" and I think that was clear from the outset. When I read your fonnulation of the topic at first I thought "versus" means a sort of weighing, but not an opposition. We should try to find out how we can utilize the one and the other. And the more I became familiar with the problems, the more I realized that there never could be a "versus" in the sense of opposition. Now two pictures have been used. Prof. Ferrari Bravo used the picture of concentric circles which I think is very good. I said that regionalism is universalism on a different Ievel. That may be too difficult to explain, because thinking in Ievels is difficult. I think the picture of concentric circles is easier to understand. Our problern is the question how to utilize regionalism for the purpose of peace-keeping including peace-building. But here comes a very important question: Should we utilize existing regional organizations for peace-keeping and peace-building or should we create new existing regional organizations for the specific purpose of peace-keeping? Conceming the latter alternative, I am rather skeptical. I think we should by all means try to utilize existing regional organizations for peace-keeping and peacebuilding, because regional organizations are a fact and we have to accept them. We do that quite willingly. But there is no need to create new ones and again I am coming back to what Prof. Skubiszewski said. He advised us not to exaggerate regionalism. It's good advice. Of course you should not exaggerate anything, but conceming regionalism we have special reasons not to do that. You mentioned the crisis of Chapter VII of the Charter of the United Nations, Prof. F errari Bravo, and you spoke of Chapter VIII. In my opinion the crisis of Chapter VII is at the same time a crisis of Chapter VIII, because Chapter VIII was meant to support Chapter VII. Thus, if Chapter VII doesn 't work you can

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not use the provisions of Chapter VIII as a substitute for those of Chapter VII. I think you would agree. You would have to agree, because you are speaking of concentric circles. And you would have to transplant your picture to the relationship between the two Chapters. This brings me to what Prof. Kewenig said. I repeat that I am in fuil agreement with him. Butthereis no "versus" between regionalism and universalism. Universalism does have priority and as far as I can see everybody is in complete agreement with that. But I did not say that collective self-defence systems are a danger in themselves. Of course they are not. And defence pacts are not inferior I did not say that either. With that I am coming already to the last speaker, Mr Vollers. Let me repeat: Defence pacts are not inferior. But it is a fact that the systems of defence are not the foundation of the structure of world peace as envisaged by the Charter. That means we should try to come back to the Charter. But we should, of course, never dissolve our systems of defence before the system of coilective security is made viable, before it reaily works. And as we have seen it is possible that both systems can work together. But we have to bear in mind that the Charter gives priorty to collective security on a global scale. I think we are in agreement here and agree fully with you that collective defence pacts have been successful and I would never advise to dissolve them. Lang: Thank you very much. At the outset I wish to thank the conveners of this symposium for having invited me. And I wish to thank Prof. Kimminich for bis introductory statement. I'd like to start out by commenting on some of the more recent statements. I personally would believe that restricting regionalism to Chapter VIII of the Charter and Art. 51 is certainly a much too narrow concept. The subjects of our symposium show that this is too narrow. Peace-keeping itself goes weil beyond the Charter, beyond the system of coilective security. I also have some problems to exclude integration processes from the concept ofregionalism. Because finally we have to keep in mind that those integration processes are most important to people in Latin America, in Africa. Take the Economic Community of Western African States, take the Andean Pact. These processes are much more important to the respective States than the OAU or the OAS or whatever classical regional organizations you have there. Therefore I would have serious problems to exclude integration processes entirely from the concept of regionalism. There was a remark, I think it was Prof. Kimminich, who said that hegemony is not regionalism. Weil, I would believe that wehavedifferent types of regionalism. There are regionalisms or regional systems, if you want, in which you have unequal relations among the partners. And there are regional systems in which you have equal relationships. There is sometimes a hierarchy and sometimes there is no hierarchy. I wish to conclude this brief intervention on a more general issue: peace. You said, Prof. Kimminich, that peace includes much

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more than the absence of violence. What does it include? Perhaps you could elaborate on this. Because this certainly is very important for the concept of regionalism and for the concept of regional systems. Secondly, you said that peace is a universal concept. And there I have serious problems again. lt may be a concept but it's certainly not reality. We had at the globallevel peace and at the same time we had wars between Iran and Iraq, we bad a war in Afghanistan. Does this really mean that peace is realistically a universal concept? Perhaps we have to define peace and we have to consider different levels of peace, or various qualities of peace according to different regions. Or rather you establish a continuum: at the one end you have the perfect peace the "ewigen Frieden" (etemal peace) of Kant- and you have at the other extreme pointtotal war, absolute war or whatever you call it. In-between you place every region on a certain point along this continuum. Well, these are a few remarks as regards the problern of peace. Thank you.

Schreuer: Thank you. I just want to comment briefly on two rather specific points of regionalism and the United Nations. If we look at the preparatory works to the UN Charter, it becomes clear that the Charter is based on a very specific concept of universalism. In fact, the regional arrangements in Chapter VIII are not so much based on any political theory but really are a concession to two particular regional groupings at the time, namely the Arab States and the Latin American States. So in a sense there is no generat theoretical framework behind that, that is just a historical coincidence if you like, or political compromise. Secondly, I fully agree with what Prof. Kimminich has said about organizations for collective self-defence not having anything to do with regionalism as provided for in Chapter VIII of the United Nations Charter. In fact, if we look at Chapter VIII it becomes clear that the regional arrangements referred to there, are under the Supervision and control of the Security Council. That of course, is not the case at all with respect to NATO or the W arsaw Pact. In fact, those two organizations have built up a system of mutual deterrence - I rather hesitate to use the word security in this context - which is completely detached from the United Nations system. Finally, a word on the concept of Super-State or World State, which I think has cropped up very briefly. I think that the idea that a Super-State or a World State could serve as a means for peace is a complete misconception. lt simply overlooks the fact that there are civil wars. In fact an American colleague, who is of Soviet origin, once remarked that a World State is a nightmare, because we would have nowhere to emigrate to.

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Riede/: Mr Kimminich emphasized one key sentence and that was peace-keeping as part of ius cogens as a peremptory norm of international law, i. e., that there can be no divisibility of peace, only competition in vying for peace at the universal and at the regional Ievel, and I might possibly add at the sub-regional Ievel, too, that is not the topic of our present symposium. Peace research must in fact take into consideration all these Ievels, as Mr Lang has just outlined. My question is prompted by an experience yesterday aftemoon driving from Marburg to Kiel. On a local radio station I heard between traffic reports and popular music, the news that as additional US troops arrived in the Panama Canal zone, the OAS has been seized with the matter. Would you say that what is actually happening in Panama now is a very good practical example for the kind of peace-keeping in the broader sense that we are thinking of, or is it not so that possibly we have at the universal and regional Ievels a cupboard full of universal and regional mechanisms and States get confused, and as often happens in cases of confusion, they will then ignore it and carry on regardless? And will this not Iead to resorting to provocialism, provocialism as stigmatized by you? How are we to overcome that, and how do we get States also to vie for peace? Isthat one united strategy or could you perhaps indicate the way the peace-keeping mechanisms should go in this very concrete case that we are facing right now?

Seidl-Hohenveldern: I also want to illustrate one concrete case to begin with, the difficulty of defining a region, I wanted just to show a decision of the Austrian Administrative Court rendered a few years ago. Fruit coming from European countries need not submit to certain sanitary inspections. What about fruit coming from Cyprus? Is Cyprus a European country or an Asian country? Actually the decision was that it was an Asian country, but this is a little side point. I wanted to speak mainly on the problern of keeping peace, or more modest even, conflict avoidance rather than peace-building. It is, of course, true that here the regions play an important role and I think a very positive role. Because after an there is the old saying that it is good to keep your quarrels in the family. This certainly has tobe welcomed. Actually, at least as far as ordinarily speaking the European region is concemed, we in the West as weil as in the East can be more or less satisfied with keeping the quarrels in the family over the last 40 years. But we must not forget, of course, that there exist elsewhere a variety of civil wars. Thus, there exist family quarrels. People having been engaged in "family quarrels" know that they can be quite bitter too. That is one point. Then there was the question which has been brought up by my colleague Ferrari Bravo about regionalism and universalism being concentric circles. Weil, as far as peace-keeping stricto sensu goes, that is, not sending soldiers marching, this may be true. But if it comes to common values within a region I think these

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circles may not be one inside the other but may get into conflict. Mr Skubiszweski has already alluded to the concept of property protection. Here I think within the States, let's say of the OECD there seems tobe more or less agreement as to what the Ievel of compensation in case of nationalization is. This may solve a conflict of nationalization, e. g. if a Belgian pipeline is going to be nationalized for the bit which traverses France. But if it comes to the question of determining compensation questions between different regions, that is between States in Africa, for instance, and the OECD, then the shared values and the shared conceptions in one region may enter very weil into conflict with those of another region and there we have the conflict before us. In these cases, if we reaily want to have a peaceful settlement, and of course I am ail in favour of it, we need some high authority which establishes a bridge between the different values shared in one region and those shared in the other region. I wanted to add one last point, although I am not quite sure whether it is reaily strictly inside the terms of reference of what we discuss, but nonetheless it is something which comes up. That is the notion of establishing regions cutting across the borders of national States. It is an exercise which has been for some time promoted by the Council of Europe and also by the EEC. In the back of their mind these organizations have the idea that thereby they may better can overcome nationalistic tensions. But I doubt whether this is really an ideal way out. lt is alright, for instance, to establish the Regio Basilea, which covers the Swiss Canton of Basle, parts of Alsace-Lorraine and parts of Baden-Württemberg. There is no tension right now there. But nonetheless the idea of establishing these regions, which of course sit across various national borders, appears problematic. I, at least, foresee a certain danger, that suddenly instead of having a centralistic France, a centralistic Italy, getting on more or less weil together, we have the old trouble of Lombardy against Burgundy, across national borders, fighting each other as they did at Marignan in the 16th century. So this is somewhat the wrong development of regionalism which I am rather skeptical about. Actuaily, I should have begun by thanking the speaker and thanking the organizers of this coiloquium. Because I believe I am the only one, who was here as a participant when the fiftieth anniversary of the Institute was celebrated. And I wanted to thank everybody for welcoming me back and for this "coming home" to memories of a long time ago, which are dear to my heart.

Wolfrum: The same is true to Mr Kimminich who was also here at the fiftieth anniversary.

Zemanek: I have two remarks to offer. One is theoretical and the other practical. The theoretical first. I doubt that the concept of globally shared values can stand the test of reality. The reason being that the notions which you have mentioned, for instance in Mosler' s Iist of legal aims, like peace, or human dignity have no

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content in law. The content is supplied by religion or a certain philosophical system or ideology. And since these differ in the world, we all abide by the sarne notions, but we may have different ideas what the notions really mean. I think we shall have to go into this when we come to the subject of human rights. But let me give another exarnple. What does peace mean? In certain regions wars of liberation are considered to be totally consistent with keeping peace. Or Iet us think of the controversy which exists since 1945 between the United States of America and the rest of the world, as to what the notion of self-defence means. Wein continental Europe have a much narrower conception of what self-defence means than the Americans, and that bona fide. They believe in their concept and we believe in ours. And we need not talk about what our friends in the East believe. A system of globally shared values may, of course, exist incidentally, where these different ideologies overlap. Like the symbol of the International Atomic Energy Agency, you get a certain care where all the ideologies or philosophies and religions come to the sarne conclusion. But that sphere is rather small. Now to the practical remark. If one considers the last years and takes the word peace-keeping in the broad sense which Luigi Ferrari Bravo has given as peacebuilding, I would say that the most promising efforts to peace-building have been undertaken by structures which do not fit your picture at all. For this reason the notion of sub-regional organization was invented. The most promising efforts in Latin America to solve the Nicaraguan question have been made by Contadora, something which is neither a regional organization nor a self-defence organization. The most promising efforts to end the question of Carnbodia have been made by ASEAN, which again is something which is notaregional organizatiQn. And if we Iook at the last effort to solve the Namibiaquestion a new tool was invented: the two super powers acting through intermediafies in collective action with the so-called frontline States. The problern is that, in the discussion arnong lawyers, we tend to build up a catalogue of possibilities, expecting States to select from that catalogue if they want to take a certain action, while States in reality disregard that catalogue and proceed pragmatically, relying on the lawyers to find a justification for what they have done after the act. Kimminich: Starting with what Prof. Lang said. About hegemony, of course, you can speak the way you did, butthat is only a question of definition. We could say there are regional arrangements and organizations which have an element of hegemony and others which have not. But I think we started out with some notion of regionalism which excludes hegemony. I don't think we should quarre} about it. We could enlarge the definition in order to include everything which you said. Also, I understood your difficulties with including or excluding integration processes in regionalism. Again, it's, I think, the sarne und we should not dwell

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upon it. I don't see any differences between our opinion. lt is only a question of definition. Quoting my remark that peace is more than the absence of violence, you asked about the definition of peace. Much has been written on it and I don't have to repeat it. Let me say that peace demands permanent efforts, at all times, in all walks of life, not only as far as weapons are concerned. And, I am sorry, maybe I am biased, peace is a universal concept. Peace-keeping and peace-building demand different things in different historical Situations between different States or groups of States. Peace between, for example, Austria and Czechoslovakia means certain actions or omissions in Iet us say 1935 and 1995. You are right if you pointout to differences resulting from the different historical and geographic situation of the States involved. Yet there isauniversal concept of peace and it has much bearing on international relations as such. A war between two States or groups of States affects the international community as such. That is our approach from the point of view of international law. And that was the new thing that was brought into the world by the League of Nations. In the Covenant ofthe League ofNations, Article 11 declares that any war, whether it is conducted between two members of the League or not, concerns the League as such. The League at that time was still fighting for universalism and the League was meant tobe the organized international community. That is a new idea of peace-keeping. I am sorry that I simply repeat what I have said already but I think I cannot do otherwise. Prof. Sehreuer pointed out that the Charter is based on universalism and he reminded us that Chapter VIII is the result of coincidence, more or less. Of course he is right. There is no difference of opinion here and I whole-heartedly agree with you, Mr Schreuer, that a World State is not a State of peace. I mentioned Toynbee and I think you will agree with him. Prof. Riede/ asked a very difficult question reminding us of what is happening in the Canal zone. Our colleague Dolzer wrote something in the Frankfurter Allgemeine on the Canal zone. There are treaty rights and I am sorry I would have to read the treaty before I could answer the question: "Is the United States entitled to reinforce the troops in the Canal zone right now?" As far as I can remember, Dolzer pointed to some provisions in the treaty which might entitle the United States to even go into some action if the safety of the Canal zone was in danger by events within the State of Panama, not only a danger from outside. But, I am not an expert on the Canal zone treaty. And you are right that regions can be a source of conflict, too. Wehave not made a circle of discussion in praise of regionalism. I think we are in full agreement here. And Iet me repeat, I thought it was not my task to develop concrete peace plans for any region. I would not be able to do so but we could organize some follow up sessions trying to do so, always Iasting at least one or two weeks for a small region, and not for more than one region at one time.

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Likewise, Prof. Seidl-Hohenveldern pointed to regions as a source of conflict and to inter-regional conflict. Of course you are right that there may be a conflict of shared values between the two regions. There may be shared values within a region which do not coincide if we put those two regions together. But that is precisely what we need universalism for. lt is universalism that international law has aimed at from the very beginning and it has persisted in it in spite of the tremendous change which has been taking place since the League of Nations. Prof. Seidl-Hohenveldern also mentioned quite another concept of regionalism. I was wondering who would introduce this topic. As you perhaps know I happen to be Vice President of an International Institute of Regionalism based in Vienna and Munich, and it is quite a different concept of regionalism. Regionalism may concern not only shared values of States, but also common interests of the inhabitants of regions on a different Ievel, cutting across national boundaries. There is some regionalism on the Ievel of smaller States like the Alpine Community with some members of the Federation of Austria, the Federal Republic of Germany and the Helvetic Federation and some provinces of ltaly and now even Slovenia (for the frrst time part of a socialist country has become a member of this regional community). But then also we have a very strong movement of regionalism which is based on ethnic ties. And probably this is the beginning of a huge tidal wave which might engulf Europe. lt may be the beginning of the breaking up of encrusted structures of nation States. This might be the beginning of a development of which we do not yet know the end. But that is not our topic here. I think it is a different notion of regionalism. Thank you very much for introducing it but it would be a topic for another conference again. The same problern was mentioned by Prof. Zemanek, too. Are there really globally shared values? I agree with you that we must be very careful, but I have ventured to offer the opinion that if peace is a value - I remind you of the book by the Austrian theologian Valentin Zsifkovits entitled "Der Friede als Wert" (Peace as a Value)- then, of course, we do have one globally shared value and that is peace. Does it help very much, does it help us as lawyers? I am not sure, I hope so, but I wouldn't be able to prove it to you right now. We would have to talk about it for a long time. And we would have to address ourselves to those very problems which you have mentioned, for instance wars of Iiberation and the interpretation of the meaning of self-defence in Article 51. I think it is our task as lawyers to find a consensus in legal thinking and we have to continue our discussion with our American colleagues about the concept of self-defence. I have always suffered from this Iack of common definition of self-defence in Article 51. And I haven not given up the hope that in the end we will find some agreement. Peace efforts are required by all actors on the international stage. I think we can say that much. This is the last problern which you mentioned. Regional organizations are only one type of actors on the international stage. You are quite right in pointing out, as Prof. Riede! did, that there

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are many actors including the individual States and other organizations and even transnational or non-governmental organizations. They are becoming actors on the international stage and all of them should work for peace. We are talking here only about one small sector. You should not forget the others. And I thank you for mentioning them.

Morrison: First, I want to compliment the presenter on the thorough and analytical paper which he has given us. I also want to convey my Special thanks to the organizers of this symposium for the invitation to participate. What we have today is an international legal system of peace-keeping which has two elements. One element teils us how to organize peace-keeping on a global international basis. The other element gives us the mechanism by which to do this. The first set of rules is well-known and is fairly successful. The second, however, has suffered from the "Crisis of Chapter VII". That crisis, the failure of the Security Council to operate effectively, has created a vacuum dealing with the process of peace-keeping. Thus we have bad to Iook to other mechanisms. Wehave used the old trick of lawyers, legal fictions, to fmd a way to accomplish peace-keeping when the Security Council cannot act. In many circumstances we have found that we need to have some form of peace-keeping, but that the Security Council cannot act. In order to provide the necessary protection for and encouragement of world peace, we have found the justification in self-defence or in other provisions of the Charter. This is not a challenge to peace-keeping. In the circumstances in which the organ foreseen by the Charter, the Security Council, is unable for political reasons to function, it has nevertheless been necessary to engage in peace-keeping. I suppose I would like to be a little defensive of the American interpretation of Article 51 in this regard. The broad interpretation, which has been criticized here today, can contribut~ to the ability to engage in effective peace-keeping. It can be based in part on collect_ive self-defence as recognized by Article 51 (which is also the underlying theory of the Uniting for Peace resolution) or it can be based on an invitation from the affected country. Unless you accept these legal fictions as a way of accomplishing the paramount purpose of the Charter, to preserve the security of all nations against aggression, frequently the legal rules will only nominally protect the threatened State. The broad American interpretation of Article 51 is, I submit, aimed at preserving not at chanenging - the overriding commandment of Article 2 (4) of the Charter, to provide realistic protection for all States against external aggression.

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Partsch: Mr Chairman, first, I would like to recall that the broad concept of peace in the sense ofpeace-building has been developed in an exemplary way by Walther Schücking in his writings, in which he criticized the activity of the League of Nations. Thus, this is not quite new, but comes from the late Twenlies of this century. Hearing different opinions on the value and the merits of universality and regionalism, it seemed to me that it was not always distinguished between the existence of norms or the establishment of mechanisms. Both cases should really be weil distinguished. It is very weil possible that a mechanism set up in a region and for a region is much better able to implement universal values than the universal mechanisms could do. The most important element is that the initiative in a region can be much stronger than it may be in a universal organization. Mr Zemanek has already mentioned quite a number of such initiatives of a regional character and I would also say even if Contadora itself is not a region, it comes from a region and it reflects the regional elements which have taken up the initiative. And therefore I doubt that the regional mechanisms have delegated power. What cannot be delegated is the initiative. That is the important element. Thank: you, Mr Chairman.

Ginther: Thank you very much. I can follow up on what Prof. Partsch has mentioned. This moming in bis introductory speech, I think it was Prof. Wolfrum who mentioned that there might be Iimits being reached on universalism; I think you said so. Maybe we have reached Iimits as regards universalism. On the other hand, we were reminded that new arenas for universalism have been opened. And it was mentioned that the world has become one and many of the problems have to be solved by taking all efforts in common and the world has grown, has become one world. I would say if this is so, the more we will need regionalism. Because if we reach the Iimits of universalism and the more our world system becomes complex, the more it will develop differentiated forms to deal with the several functions it has to perform. And the two will coincide and be complimentary. With regard to the approach and to what has just been said by Prof. Partsch, I think we should distinguish between the world of ideas and principles which are universal and the world of action and practice. When we ernhark to apply principles which by themselves are universal and when we have to build institutions and mechanisms, then we face certain Iimits in the reality of our world of actions and there we meet the world of interests, interest groups, more powerful States, less powerful States, which reminds me of the American approach of self-defence which is the approach of a very powerful State. It couldn't be taken by Austria or any other State of the same size. So, here we face again certain Iimits on the Ievel of putting ideas into operation. But still I do subscribe to what Prof. Kimminich stressed so much. We still have to strenghthen universalism. 5 Symposium 1989

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But I think it was meant to refer to the universality of principles, so that principal values which we have accepted to be of universal application will not be given up through regional actions. But on the other band, they might undergo a certain development. Today much is being talk:ed about the African Charter of Human Rights. Why should not ideas on human rights, developed on the African regional Ievel, have ultimately an impact also on the development of human rights in general? Prof. Krueger in bis programmatic introduction to the Verfassung und Recht in Übersee already said it might well he that outside Europe new ideas develop which are of universal validity. Hereweare confronted with the development of a world culture characterized by unity in diversity; the more diversity will be acceptable, the more universality will he achieved. This was present in our debate here already. And as regards the Charter of the United Nations, if I remernher correctly, at some stage Churchill wanted the peace system to he established first on a regional Ievel, to try regional collective systems and if they worked then to build on top of it a universal system, which was not accepted by Stalin. And after all, after the United Nations bad heen established the real problern of world security, in the sense in which I understood peace as reported in this afternoon's session, I think Europe was falling totally outside of the mechanism of the United Nations, because it could not be handled there. And then, several regional institutions have heen built in Europe and you might remernher that at some stage the Soviet Union wanted to accede to the NATO in 1954. It was rejected, by identical notes by Britain, France and the United States saying that this was not for the henefit of peace, because the political cleavage was too large (cf Europa Archiv 1954, 6618 et seq.). NATO was, as the Soviet Union said, more than a pure defence pact, but an aggressive pact: If they were not aggressive they would accept us. And the Warsaw Pact offered itself as a collective security system. What you said that collective security systems are good, defence pacts are bad, the USSR has also said: Warsaw Pact is good, NATO Pact is bad. I think you corrected that. After all, no State of Western Europe wanted to accede to the Warsaw Pact, when the Soviet Union at the threshold of the Security Conference invited Western European States to accede. The Council of Europe offers itself today as the institutional framework for the co-operation of European States on the basis of an enlarged regionalism for the purpose of realizing universal ideas of human rights and peace. Sir Arthur Watts: Thank you very much. First of all I should like by way of introduction to note that "regional" is a very flexible concept. One can have a Jot of fun about what happens at the margins of regions. Is Cyprus in Europe or Asia (as Professor Seidl-Hohenveldern noted)? Is Turkey, which is a memher of NATO, really in the North Atlantic area? lt does not really matter, hecause what is primarily significant about the meaning of "regionalism" is what it is not: and what it is

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not is universalism. To define the meaning of "regional" is very difficult, totally in the abstract. lt is much easier to do when you are faced with specific circumstances and you can then deal with regionalism in that particular context. It is a relative concept, it seems to me. Having said that, whatever regionalism means, I am sure every one here agrees - indeed a nurober of people have said so that there is no antagonism between regionalism and universalism. They are complementary. That seems generally accepted. Applying that, however, to the general propositions about intemationallaw which some speakers have advanced is something which I myself would rather leave, I think, to our topics for tomorrow afternoon, when we will be talking about the development of internationallaw. What I would like to do now is to focus a bit more specifically on peacekeeping. And again, we all accept that peace is a good thing. We all want peace. However, how can it be achieved? If a universal procedure which will Iead to peace is available, let's use it; if it is a regionalmeans of achieving peace, let's use that; and if there is some ad hoc procedure to be invented for a particular problem, let's use it. Let's not get worried about the categories: What we all want is peace. It is at that stage that I begin tci have some difficulties, and my difficulties are in identifying, in the abstract analytical discussion which we have had so far, the day to day world in which I operate. We are looking more closely at peace-keeping. I think the frrst thing that strikes one is that the problems of peace-keeping (if you like, "breaches of the peace" and I mean this in the broadest possible sense) are essentially local. They tend to involve next door States. And while occasionally their disputes reflect a world-wide political difference in view, usually they are local disputes, involving local issues. This ought to soggest that the right way to prevent disputes of that kind arising, or solve them when they have arisen, is by some local or regional means. As Professor Ferrari Bravo mentioned, the peace-keeping function through the development of rules which are likely to Iead to the maintenance of peace on the basis of shared values ought to be a prime area for regional activity. And it is, but only to a limited extent. If one Iooks around, and leaving aside a very few special areas, how much of international law really is applied differently on a regional basis from the way it is applied on a universal basis? Not much, not much at all; and yet it ought to be, if the theory is right.

If despite all efforts, peace nevertheless gets threatened, what happens then? This raises a point which I do not think anybody has yet mentioned. Before you get to the stage where you ernhark on peace-keeping in the narrow sense, you should have been trying to settle the dispute. In doing that one would think that what Prof. Ferrari Bravo said about the value of settling disputes within the family, within the local region, would carry great weight. But does it happen very often? In fact, is there not an opposing possibility that those who are close to the two States having the dispute, may, far from being objective, in fact have 5*

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their own interest to promote in helping achieve a settlement of the dispute. Perhaps, therefore, it may be better not to settle the dispule regionally, but to go further afield. The same sort of thoughts are prompted, I think, by the practice, which is beginning to develop, of using chambers of the International Court of Justice. The litigants do not get neighbouring States necessarily, but they may get a Chamber which is composed of judges who, they might think, share their own values. This is certainly one approach to dispule settlement. Burkina Faso and Mali did it; the United States and Canada did it; and the United States and Italy are doing it. But it raises questions which again might be better discussed tomorrow afternoon. When it does happen, since it is a fairly rare occurrence it raises a serious question about the value of regionalism. For it is not normally so much the rules that are developed regionally, but only the settlement of the dispute on a regional or shared value basis. What, then, is left of regionalism? When you go to peace-keeping in the narrow sense even less is left of regionalism. If the peace is broken and fighting occurs (and civil wars I treat the same as international wars for this purpose) we all say: The UN system has broken down! Yes. And so has the regional system. They have both broken down. And if you Iook at how States try to use some kind of peace-keeping force to restore peace (something they do not do very often in comparison to the number of outbreaks of hostilities that there are), they do it at the universal Ievel far more often then at the regional Ievel. And even when it is done at the regional Ievel: Prof. Ginther made the point right at the beginning that there are very few such instances and they, or some of them, are quite controversial. Where then, in practice and in international life, is this regionalism we have all been talking about? Not where ought it to be but where is it in practice? And I will Iook forward to hearing the answer. Thank you.

Konstantinov: The interesting report of Prof. Kimminich concentrated mainly on the relationship of universalism and regionalism. I share bis views and would like to say some words about the perspectives of the development of this relationship. My starting point is that peace is from the view point ofintemationallaw, a universal category. This Statement which is legally reflected in Article 2 (4) of the UN Charter is important for analyzing the relationship of universalism and regionalism in the field of peace-keeping. My second remark is that the main element in this relationship is universalism. From political or sociological points of view, the importance of peace is determined by the fact that peace is a common value and is indivisible. Because of technological development in the military field its ·breach could endanger the existence of mankind. Peace plays a central role in the development of present day international relations. In legal terms, the importance of universalism as

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main element in the relationship to regionalism is translated into the basic principles of intemationallaw, which are laid down in the UN Charter. According to Article 103 of the UN Charter these basic principles have an ius cogens legal character. The universal co-operation (including the regional one) and the peacekeeping measures are developed on this ius cogens legal basis. So, I don't see any antagonism between universalism and regionalism. Regionalism could only be a part of the system of international law. lt has to play an important, but complementary rote. From this point of view, for example, if we take up here the discussion about Sodalist internationallaw, there couldn't be any Sodalist international law outside the system of internationallaw. And the same applies also to the so-called Islamic intemationallaw. Under the present day international law there is no legal possibility to have separate internationallaw system, which are not in the framework of generat international law and which are not in accordance with its basic principles. So, regionalism has a very important complementary character. I would say that not only today but also in the future the significance of universalism will increase. lt will increase because of technological development and increased interdependence. There are more and more new global problems related to peace which could be served only on a universal basis. We can take e. g. ecological protection, economic development, and disarmament. So this conclusion is of great importance for the future development of international law. And I think that this symposium will be a significant contribution in this direction. I have perhaps a question to Prof. Kimminich. Could the implementation of the concept of the "Common European House," seen in the long-term perspective, be regarded as a step in the direction to overcome the regional separation in Europe?

Kimminich: The closing remarks have been spoken by Sir Watts already. I thank him for bis rioging words. I just have to add my thanks to all of you, and especially to the speakers of the last round of discussion. Prof. Morrison I like very much your remarks about a vacuum jar. It is true, we have used Article 51 to fill a vacuum. We have succeeded in doing so. And we should be careful not to throw away this useful tool, which we have used for peace-keeping. And we have used it, we should not forget, within a universal framework. Without this universal framework it would not work. Thank you, Prof. Partsch, especially for reminding us ofthe concept ofnormative universality and the problern of mechanism. This is exactly what I have been trying to say in my paper. I did not succeed as well as you did, when you phrased your remarks in the discussion, but Iet me quote from my paper where I said that regional peace-keeping demands universalism concerning the application and interpretation of all legal norms pertaining to peace. With these words I meant what you said. And also when I spoke about the two different possible

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ways of conceiving of regional organizations. Where do they really get their powers? Are they constituent elements of the whole organizations? Or are they delegated powers? Two possible ways of looking at regional organizations. We always have to bear in mind that there are inherent rights of States, and States delegate their powers to international organizations. But initiative cannot be delegated. It must come from the smaller units. Therefore I share your skepticism about delegated power and I emphasize the fact that initiative must come from the smaller units. In this context the link function of regionalism or regional organizations is very important. I don~t think we have time to enlarge upon it, but I thank you ·once again for your contribution to the discussion. The same to Mr Konstantinov, I thank you especially for emphasizing once again the indivisible nature of peace, which is the centrat point for everything which can be said and must be said about peace. Your question on Europe was, I hope, rhethorical. I am not sure about the future of Europe. We hope that this effort tobring peace to one region of the world might serve as model for keeping and building the peace in other parts of the world, as well. And thank you, Prof. Ginther, for reminding us of those great words on unity and diversity and reminding us how we all agree that regionalism supports and implements universalism. Let me close by quoting a slogan which you might know. lt has been coined in Austria by environmentalists: Think globally, act locally. Thank you very much.

Promotion of Economic Development by International Law at the Universal andlor the Regional Level Christoph H. Schreuer•

Opening Remarks Six-hundred years ago, the poet Geoffrey Chaucer observed that with the appearance of spring people like to go on pilgrimages. A contemporary novelist 1 has pointed out that the modern conference resembles the pilgrimage of medieval Christendom in that it allows the participants to indulge themselves in all the pleasures and diversions of travel while appearing to be austerely bent on selfimprovement. To be sure, there are penitential exercises to be performed. The presentation of a paper, perhaps, and certainly listening to the papers of others. But with this excuse you joumey to new and interesting places, meet new and interesting people, exchange gossip, eat, drink and make merry in their company; and yet at the end of it all, return home with an enhanced reputation for seriousness of mind. Today's conferees have an additional advantage over the pilgrims of old in that their expenses are usually paid, or at least subsidized, be it by a govemment department, a commercial firm or, most commonly perhaps, a university. We are all very much indebted to our hosts for the organization of the pleasures and diversions, so let us now turn to this morning's penitential exercises.

I. lntroduction Economic development of low-income countries and regions is a generally accepted goal in ·contemporary international relations. There are considerable variations in terms of preferred strategies and actual efforts but the commitment in principle towards this goal has become practically universal. Nowadays economic development is even regarded by many as a human right 2 as is evidenced by the 1986 United Nations General Assembly Declaration on the Right to Development. 3 • Prof. Dr. Christoph H. Schreuer, University of Salzburg; the opinions expressed in this vo1ume are the personal views of their authors on1y. 1 David Lodge, Small World, Prologue, London 1984. 2 Georges Abi-Saab, Le droit au developpement, in: ASDI 44 (1988), 9-25; Eibe Riede/, Menschenrechte der dritten Dimension, in: EuGRZ 16 (1989), 9-21.

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At the same time, there is now widespread disillusionment with the shortterm prospects of drastically improving the economic plights of populations in less developed countries. The optimism or euphoria of the 1970s, with its declarations, programmes of action and charters designed to bring about a new international economic order, has given way to a much more sober outlook. Most of the ideas contained in these high-spirited documents, have not been translated into action. Many of the development strategies have either failed completely or have not brought about the desired result. Some of the more radical proposals may even have been counterproductive. The picture has also become more complicated. The Third World is no Ionger a homogeneous group of poor countries. Considerable progress has been made by some, notably the so-called newly industrialized countries (NICs), especially in Asia, while the situation in others, especially in sub-Saharan Africa, is worse than ever with crippling foreign debts and a decline in per capita agricultural production. The blue prints for development are highly controversial, even among experts and few if any have shown clear and consistent results. What then is the role regionalism can play in the efforts towards economic development? The idea of regional co-operation among developing countries is not new. lt has been advocated for some time in the context of "economic Cooperation of developing countries", notably under the Iabel of "collective selfreliance"4 and is tobe found in such documents as the Arusha Programme for Collective Self-Reliance of 1979, the Lagos Plan of Action of 1980, and most recently the Group of 77 Agreement on the Global System of Trade Preferences among Developing Countries of 1988. Global organizations, in particular the United Nations, have not perceived regionalism as a threat to their sphere of competence but have welcomed the relevant work of regional bodies. A number of General Assembly resolutionsS, including the Charter of Economic Rights and Duties of States 6 and the Programme of Action on the Establishment of a New International Economic Order, 7 both of 1974, have endorsed the idea of regionalism in economic development, both inside and outside the United Nations. 3 GAres. 41/128. Richard N. Kiwanuka, The UN Declaration on the Right to Development, in: NILR 35 ( 1988), 257- 272; Danilo Türk, Participation of Developing Countries in Decision-Making Process, in: Paul de Waart et al. (eds.), International Law and Development, Dordrecht/Boston/London 1988, 341-357 (351). 4 For an outline of the history of the concept of "collective self-reliance" see Peter Meyns, Non-Alignment and Regional Cooperation; The Southern African Development Coordination Conference (SADCC), in: Verfassung und Recht in Übersee 15 (1982), 261-297 (262); Guy Feuer, Genese et developpement de Ia theorie de l'autonomie collective, in: RJPEM 19 (1986), 25- 36; Konrad Ginther, The New International Economic Order, African Regionalism and Subregional Attempts at Economic Liberation, in: ÖZöRV Supp. 6, New Perspectives and Conceptions of International Law, Vienna/New York 1983, 59-74. s GAres. 3241 (XXIX), 32/197 and 37/214. 6 GA res. 3281 (XXIX), Art. 12. 7 GA res. 3202 (S-VI), Chapter Vll.

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II. Regions The concept of a region in economic development is not very clear. 8 More than in other areas of international co-operation, its defmition depends on nongeographic factors. The identity of economic problems, similar outlooks as to their solution and, most importantly, a common sense of purpose appear to be decisive. On the other band, geographic proximity cannot be discarded altogether. Not all selective mernbership groups can be described as regional. For instance, the members of the OECD or of the Group of 77 each have important things in cornmon, but the fact that they are widely scattered over the globe would make their description as regional groupings inappropriate. Geography is clearly also an economic factor in terms of communication and transport. But modern technology has drastically reduced its significance as a cost element in international trade. The influence of geography on the homogeneity of a region is far more important in terms of common history, culture and ideology than the economic aspects of proximity. This is probably the reason, why the size of a region is so important for its potential for co-operation. Regions embracing an entire continent have shown relatively little potential for economic co-operation in the case of Africa or America and practically none in the case of Asia. By contrast, Cooperation in smaller units, often referred to as sub-regional, appears to be somewhat more promising. 9 On the universal Ievel, notably in plenary organs of global international organizations, such as the United Nations General Assembly or UNCTAD, there is an established group system with regional elements. The principles of the internationallaw of development adopted by these global bodies, are either shaped through negotiations between these groups or are imposed by the numerically strongest, the Group of 77, which is actually composed of several geographic groups. But propositions adopted by global bodies on the voting strength of the Group of 77 can hardly be accepted as universal in character. They are probably best described as the position of an inter-regional pressure group with common economic interests. The United Nations Regional Economic Commissions occupy an important position between universal and regional bodies. 10 There are now five such Com8 See especially Winfried Lang, Der internationale Regionalismus, Wien/New York 1982, 64 et seq. 9 For an excellent survey see Winfried Lang, in: FriedEsterbauer I Winfried Lang, Integration und Kooperation in Nord und Süd, Bern u. a. 1988, 13- 145. See also Klaus König, Eine ökonomische Bilanz der lateinamerikanischen Integrationsbewegung, in: Manfred Mols (Hrsg.), Integration und Kooperation in Lateinamerika, Paderbom I Wien u. a. 1981, 101. 10 Parley W. Newman,Jr. , Regionalism in Developing Areas: United Nations Regional Economic Commissions and their Relations with Regional Organizations, in: Berhanykun Andemicael (ed.), Regionalism and the United Nations, Dobbs Ferry I New York I Alpben aan den Rijn 1979, 339-395.

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missions, one each for Europe, Latin America, Africa, Asia and the Pacific and Western Asia. Although they work under the general supervision of ECOSOC, they have been able to attain a high degree of independence, and have managed to increase their responsibilities over time. Developing countfies have generally favoured a transfer of activities into Regional Commissions, where they can exercise more direct control over the Organization's activities. These United Nations Regional Commissions not only co-operate with regional borlies but have also actively promoted closer regional integration, sometimes sponsoring the establishment of regional organizations such as the African and Asian Development Banks, the Central American Common Market and the Latin American Free Trade Association.

111. ldeas and ldeologies From the perspective of developing countries, the main grievance with the present economic system lies in what they see as their dependence: 11 dependence on a few raw materials for their export earnings; dependence on their former colonial masters or industrialized States in general in their trade relations, especially in Africa; dependence on the United States in the case of most Central and South American nations; dependence on South Africa for the States of southern Africa; dependence on multi-national enterprises. The answer to these perceived or real inequalities in the international economic system, has been two-fold: a) the demand for affirmative action or preferences in favour of developing countfies as a compensation for historical and present injustices and b) the call for collective self-reliance, that is concerted co-operation between developing countries. As we shall see, both these concepts play an important role in the move towards regionalism. The economic theories underlying both intra- and inter-regional efforts towards development, have shown some variation. Free market liberalism has found its expression in efforts to establish free trade areas and customs unions in less developed regions. Not surprisingly, the United States has strongly favoured this model at the cost of other methods of co-operation, especially in the Central American Common Market. 12 But central planning is exercising a peculiar fascination in the Third World. lts popularity is not so much the consequence of its ostensible success elsewhere but rather the result of distrust and weariness with multinational enterprises which are perceived as the protagonists of Iiberalist II Mark J. Gasiorowski, The Structure of Third World Economic Interdependence, in: 10 39 (1985), 331 - 342; Lang (note 8), 157 et seq.; Lang (note 9), 52; Waldemar Hummer, Regionale Integrationsideologie und innerstaatliche Legitimationsbedürfnisse, in: Dieter Benecke et al. (Hrsg.), Integration in Lateinamerika, München 1980, 213234 (223). 12 Lang (note 9), 110 et seq.

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capitalism. It is doubtful whether eilher model developed in the context of European pre-industrial and industrial economies is appropriate to contemporary Third World needs. 13 What is beyond doubt, is that clashes of ideology have caused difficulties for co-operation both within and between regions. Different political and economic systems are a considerable strain on regional organizations. The failure of the East African Community was caused, not least by the differences between Kenya pursuing a liberal market-oriented approach and Tanzania adopting a socialist concept of economic planning. In the context of the Southem African Development Coordination Conference (SADCC), the fact that two Members, Angola and Mozambique, subscribe to socialist ideas and are closely allied to the Soviet Union, has also caused certain difficulties. 14 In this cmitext, the position of the Council for Mutual Economic Assistance, the regional organization of Eastem European communist countries, towards economic development deserves special comment. 15 It is best described as "solidarity without help". In global fora, such as the United Nations General Assembly, the Soviet Union and its allies have consistently supported the demands of less developed countries. When it comes to deeds, the record of the CMEA is very poor indeed. Financial aid is negligible and constitutes only a small fraction of transfer made by OECD Members. Trade is also disproportionately small and is further hampered by the non-availability of convertible currency and a need to resort to harter arrangements. Moreover, the little aid that is available, is mostly granted to developing countries with socialist systems, such as Vietnam, Ethiopia, Afghanistan, Angola and Mozambique. The primary justification put forward for this strong preponderance of ideological over material support is the assertion that the Third World's economic problems are all a consequence of colonialism which should be taken care of by those responsible for it, the former colonial powers. It remains to be seen, whether President Gorbachev' s recent initiatives to tackle the Third World's debt problems are going to Iead to any fundamental changes.

A comparison of the different legal methods used to promote economic development on the regional and universal Ievels is not easy. On the one hand, this is due to different approaches: On the universallevel, there is a tendency to set out broad general principles, whereas regional efforts tend to be more specific and action-oriented. In some cases, standards developed at the universal Ievel 13 Thiebaut Flory, Les organisations internationales economiques et les integrations regionales economiques du tiers-monde, in: RJPEM 19 (1986), 151-156; lvan L. Head, The Contribution of International Law to Development, in: CanYIL 25 (1987), 29-45 (32); Hummer (note 11), 220 et seq. 14 Lang (note 9), 35, 96, 106, 166 and 126; Meyns (note 4), 275; Peter Meyns, Regionale Zusammenarbeit statt wirtschaftlicher Abhängigkeit, in: Europa-Archiv 10 (1982), 307-314 (312). 1s Hans-Christian Reichet, Die RGW-Staaten und die Entwicklungsländer, in: Außenpolitik 32 (1981), 386- 392.

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serve as a legal framework for action in regions. On the other band, there is also clearly some parallel action such as in the work of the regional development banks and of the World Bank. A comparative evaluation of universal and regional efforts towards development is hampered by the usual difficulties in measuring the economic success of a particular action. In a complex situation governed by a multitude of factors, it is often impossible to ascertain the precise effects of any one measure. It is much easier to point out obvious failures than to trace the complicated and slow path towards success. There is, however, one type of "success" that we should be particularly wary of in discussing international development law. lt is the widespread tendency to invoke high-spirited declarations, programmes of action and agreements as progress in themselves. If we are to take our goals seriously, what matters is not the verbal behaviour of States at conferences or at the United Nations General Assembly, but the impact of concrete measures on the populations of the countries concerned. This is not to suggest that the respective documents do not leave their imprint on the development of international law. Permanent sovereignty over natural resources, the principle of a common heritage of mankind and trade preferences in favour of less developed countries are just a few examples for new legal developments of international law of development. But we have to distinguish clearly between the development of international law and the economic development of the countries on whose behalf these principles are formulated. There has been lively discussion as to whether the positions taken by developing countries on the New International Economic Order which have found entry into various resolutions and other documents, have become part of international economic law. Even if they have, they have ultimately done little to promote economic development. In some instances, they may have actually retarded it. Even if some of these positions have not become part of international law, they may have caused sufficient uncertainty to undermine the stability in some areas of international economic relations, where it is badly needed for development. In other words, the fact that the Group of 77 has in many instances prevailed in various international fora, is not necessarily proof that there has been progress towards a more effective international law of development. Let us now take a closer Iook at four selected aspects of international economic relations. They are trade, commodities, private investment and official capital transfers. IV. Trade In the area of international trade regulation, there has been a consistent trend towards preferential treatment in favour of developing countries.l6 GATT, still 16 Wolfgang Benedek, The Participation of Africa in the General Agreement on Tariffs and Trade (GATT), in: Verfassung und Recht in Übersee 20 (1987), 45-58; Ewa

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the rnost irnportant world-wide frarnework for trade, is based on the principle of equality, that is reciprocity and non-discrirnination, expressed in the MostFavoured-Nation-Clause of Article I. There have been several important moves away from this principle. The frrst was the insertion of Part IV on "Trade and Development" in 1965. Its most important provision (Art. XXXVI para. 8) declares that developed countfies should not expect reciprocity from developing countfies in trade negotiations. After UNCTAD bad been established, a new concept began taking shape. The idea of a Generalized System of Preferences (GSP), 17 first launched in 1964, was formally adopted in 1970 and was endorsed in several General Assembly Resolutions, notably the Charter of Economic Rights and Duties of States and the Program of Action on the Establishment of a New International Economic Order. The underlying idea is that developed countfies should grant unilateral trade concessions in respect of products originating from developing countries. The reaction of GATT was at first a temporary waiver from the Most-Favoured-Nation-Clause in favour of developing countfies for a period of ten years, starting in 1971. In 1979, at the end of the Tokyo Round, the so-called "Enabling Clause" was introduced into GATT. lt is a decision on "differential and more favourable treatment, reciprocity and fuller participation of developing countries" which contains a generat authorization to grant preferential tariff treatment to products originating in developing countfies in accordance with the Generalized System of Preferences. In addition, it exempts regional and global trade arrangements arnong less developed countfies from the rigorous rule of Art. XXIV concerning free trade areas and customs unions, notably the requirement that they cover "substantially all the trade" between the countfies concerned. This provision, therefore, is also an important legal basis for regional co-operation between developing countries. But the GSP as embodied in the GATT's "Enabling Clause" does not even provide for non-discriminatory treatment of developing countries. Under a system called graduation, developing countfies will have privileges withdrawn as they make progress in development and gain in competitiveness. This provision has been applied repeatedly and has gained particular significance for NICs. In actual practice, the GSP, contrary to its narne, has not evolved into an international system but rather into a series of unilateral measures by industrialized countries. This has led to additional differentiations with respect to the beneficiaries, the methods applied and the products covered by it. Several countfies exclude textiles, shoes, steel, petroleuro and other products either generally or those items originating from certain countries. Other proteelive mechanisms include special safeguards or quotas and ceilings as in the case of the EEC. Butkiewicz, Impact of Development Needs on International Trade Regulation, in: de Waart et a/. (note 3), 193 - 201. 11 Kirsten Borgsmidt, The Generalized System of Preferences in Favour of Developing Countries .. ., in: Nordisk Tidsskrift for International Ret 54 (1985) Fase. 3-4, 33-61.

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Today the success of the GSP as an instrument of economic development is subject to serious doubts. The assumption that developing countries are unable to compete in international trade is a self-fulfilling prophecy, the consequence of which is a set-up which tends tobe self-perpetuating. The so-called concessions by developed countfies have very little real value. 18 The preferences are purely discretionary and can be revoked at any time. No legal obligation is involved. It is exactly those exports of developing countries that are relatively competitive which are excluded and are subject to discriminatory non-tariff barriers including quotas. Moreover, any concessions are withdrawn as soon as there arereal signs of progress with respect to a country or certain of its products. In fact, developed countries have introduced a nurober of selective barriers against goods originating from newly industrialized countries in areas where thesecountfies are particularly successful. Textiles and clothing are examples for this phenomenon. It is obvious that such a system constitutes a disincentive to developing countfies to pursue efficient export-oriented policies. The GSP as practised today, should be seen as part of a generat protectionist trend which has been conspicuous in international trade. Ironically, it is the less developed countries which are hardest hit by this erosion of GATT principles. The present picture is characterized by practices which are euphemistically called "voluntary export restraints" or "orderly market agreements", although they are neither voluntary nor orderly. It has been pointed out that for some developing countries, the disadvantages of negative discrimination may already outweigh the benefits ofpositive discrimination. 19 A generat lowering of trade barriers on the basis of reciprocity would probably be to the benefit of developed and developing countries. Less developed countries would therefore fare much better if they were to start actively participating in international trade negotiations, especially in the framework of GATT and strive to get "bound", that is legally binding tariff reductions and the abolition of non-tariff barriers for those goods in which they are interested on the basis of reciprocity and Most-FavouredNation treatment. 2o On the Ievel of inter-regional relationship in the area of trade policies, two groups deserve special attention: The CMEA and the EEC. The Eastern European Countries have endorsed the principle of trade preferences and have pledged to grant preferential tariffs to less developed countries. But in view of the centrally planned economies of these countries, such a move has very little practical effect. In a centrally planned economy, the volume of imports depends on national economic plans and not on import tariffs. Another important difference between 18 Martin Wolf, An Unholy Alliance: the European Community and Developing Countries in the International Trading System, in: Außenwirtschaft 42 (1987), 41-64 (60 et seq.). 19 Benedek (note 16), 56. 20 Bela Balassa I Constantine Michalopoulos, Liberalizing Trade between Developed and Developing Countries, in: Journal of World Trade Law 20 (1986), 3-28.

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CMEA and EEC isthat the former does not have any powers to conduct econornic relations and to enter into agreements with third States on behalf of its members. Any concessions are therefore purely national. 2 1 The EEC, by contrast, has developed a coherent trade regirne towards less developed countries. 22 Apart from its own version of irnplementing the GSP, the Lome Conventions contain important provisions on trade preferences with a group of less developed countries, the ACP group, mainly concentrated in Africa. The trade concessions granted under these provisions are considerably more favourable than under the GSP. Nearly all goods originating from the countries in question are granted entry free of tariffs and quotas and without any reciprocity. The only requirement is Most-Favoured-Nation treatrnent of EEC products and even this does not apply in relationship to other developing countries. The concessions are not discretionary but binding and non-revocable. On the negative side, the Iimitation to five years for each successive agreement drastically reduces the value of the binding nature of these concessions. There have been suggestions to conclude the next Lome Convention on a Ionger-term or even permanent basis. What has been said about the effect of preferences as a disincentive to more effective policies in connection with the GSP, must also apply to Lome, although the fact that the countries concerned here are mostly least developed countries gives a certain justification to affirmative action, ·at least for a certain period of time. Furthermore, the advantages drawn from the Lome trade provisions tend to strengthen the ties to Europe and may thereby weaken the resolve to regional co-operation. 23 Of course, Lome is also another element in the fragmentation of international trade and especially in the erosion of the Most-Favoured-Nation-Clause. Tagether with other preferential agreements with the countries araund the Mediterranean, the EFTA Members and the GSP, this has led to the absurd consequence that for the EEC Most-FavouredNation tariffs negotiated within GATI, apply to no more than seven countries (Australia, Canada, Japan, New Zealand, South Africa, Taiwan and the United States). 24 Regional co-operation among developing countries is directed towards the creation of competitive industries thereby reducing the dependence on the traditional trade partners in the North. Import substitution on the regional Ievel is to Iead to self-sufficiency in at least some areas ofproduction and ultimately towards new export-oriented industries. 25 Many of the integration models, especially the 21 Robert M. Cut/er, East-South Relations at UNCfAD: Global Political Economy and the CMEA, in: 10 37 (1983), 121-142. 22 Wolf (note 18). 23 Lang (note 9), 53, 87. 24 Wolf (note 18), 56. 2s Hanna Keitel, Zur Theorie der regionalen Wirtschaftsintegration\·on Entwicklungsländern, Heidelberg 1982; M. L. Marasinghe Regional Economic Cooperation in Developing Countries, in: Verfassung und Recht in Übersee, 20 (1987), 5- 43; Andrew Axline,

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earlier ones, follow the traditional pattems of free trade areas and customs unions. 26 Typical examples for the classical model transposed into developing regions were LAFfA (Latin American Free Trade Association), the East African Community and CARIFTA (Caribbean Free Trade Association). These efforts at integration through regional free trade have run into serious difficulties arising from a number of structural problems. 27 One of these is a heavy dependence on a limited number of raw materials for export eamings. The markets for these exports are mostly outside the region in the industrialized North. The majority of imports, especially of high-tech products and consumer goods, originate in these same industrialized countries. In other words, the foreign trade of less developed regions is largely oriented towards partners outside the region. These partners are frequently identical with the former colonial powers, with whom there are established trade structures. In the case of Centrat and South America, their place is taken by the United States. In addition, production within regions is frequently not complementary but in competition and there is consequently very little potential for co-operation through exchange. Infrastructures within regions of developing countries are often weak. Not infrequently, communication and transport within such regions is much more costly and complicated than with traditional overseas partners. These costs often more than outweigh advantages from the regional reduction or abolition of tariffs. Conditions in Southem Africa, which is stilllargely dependent on transit through South Africa, are symptomatic for this general problem. The situation in Central and South America is not quite as extreme but it is significant in this context that it is eheaper to ship cargo from Buenos Aires to Harnburg than to Rio de Janeiro. Another structural problern for regional co-operation through free trade arrangements are economic inequalities within the region, especially the different stages of development of its member States. Experience has·shown that differences within a region affect integration much more seriously at lower Ievels of development than in a relatively more developed set-up such as Europe. 28 Distribution of any gains from integration creates considerable difficulties. Relatively advanced countries or locations within the region tend to attract new investments, especially in industry. Poles of growth develop in these places at the cost of the already less developed areas of the region. 29 In order to secure the co-operation Underdevelopment, Dependence and Integration: The Politics of Regionalism in the Third World, in: 10 31 (1977), 83-105. 26 Lang (note 9), 27 et seq., 90 et seq., 103, 131; Douglas G. Anglin, Economic Liberation and Regional Cooperation in Southem Africa: SADCC and PTA, in: IO 37 (1983 ), 681 -711; Waldemar Hummer, Der zentralamerikanische Integrationsprozeß und seine gegenwärtigen Umstrukturierungsversuche in rechtlicher und ökonomischer Sicht, in: Zeitschrift für Lateinamerika 16 (1979), 5- 99. 27 Lang (note 9), 30 et seq., 42 et seq., 85 et seq., 106, 116 et seq., 128, 144. 2s Lang (note 8), 82 et seq., 131 et seq.

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of the less developed countries of a region, the more advanced countries will have to show a certain readiness to co-operate in the redistribution of gains. An entirely different setting exists, where the partners to a plan for regional co-operation have reached completely different stages of development, that is when developed industrialized and genuinely developing countries are involved. 30 Examples are the South Pacific Regional Trade and Economic Trade Agreement (SPARTICA) involving Australia and New Zealand or the Asian Productivity Organization (APO) involving Japan. In these situations, the developed countries in the region are clearly expected to make non-reciprocal concessions or to grant technical assistance and aid in favor of the less developed countries involved. Butthis is a rather atypical form of regional co-operation. It is therefore not surprising that so many of these regional integration efforts based on classical European models have failed. The East African Community, set up in 1967, broke up in 1977. CARIFfA, the Caribbean Free Trade Association, turned out to be a failure and was replaced by CARICOM, the Caribbean Economic Community, in 1974. LAFfA, the Latin American Free Trade Association, led to a sharp imbalance of trade in favor of the more developed countries of the region (namely Brazil, Argentina and Mexico), although it never managed fully to establish a free trade area. It was replaced by LAIA, the Latin American Integration Association, in 1980.31 One suggested method to improve on these disappointing results has been the introduction of rnechanisms for better distribution of integration gains, including active regional development planning. 32 This would involve the allocation of certain industries or plants to certain members in order to avoid the phenomenon of poles of growth and poles of Stagnation. The difficulty with this rnodel is that it involves a considerable amount of State planning and a high degree of political commitment including a readiness of relatively more developed members to make sacrifices. The clearest example for this idea is the sectorial programme of industrialization under the 1969 Cartagena Agreement establishing the Andean Common Market. 33 It involved the metal-mechanic, the petrochemical and the car-manufacturing industries. The scheme ran into serious difficulties and was effectively abandoned in 1983. Simi1ar ideas were pursued in the framework of the Centrat American Common Market and LAIA, but without notable success. 34 29

Lang (note 8), 95.

30 Lang (note 9), 31 et seq., 51 ~ 31 Waldemar Hummer, Die "Lateinamerikanische lntegrationsassoziation" (ALADI)

als Rechtsnachfolger der "Lateinamerikanischen Freihandelsassoziation" (ALALC), in: Verfassung und Recht in Übersee 13 (1980), 361-370. 32 Lang (note 8), 95; Lang (note 9), 29 et seq., 109 et seq., 121 et seq.; Axline (note 25), 87 et seq., 94 et seq. 33 Eliezer Ereli, Regional lndustrial Integration in Developing Countries: The Model of the· Andean Common Market Sectorial Program for the Petrochemical lndustry, in: The International Trade Law Journal 2 (1977), 81-108. 6 Symposium 1989

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Another trend in Third World regional integration has been toset up relatively Ioosely-knit and flexible arrangements providing for Iimited trade preferences and functional co-operation in particular areas of the economy. 35 The "Enabling Clause" adopted within GATT in 1979, has facilitated this type of co-operation, since it has waived the strict requirements of Art. XXIV for regional arrangements among developing countries. A good example for this new flexible approach is LAIA, set up in 1980, in succession to the unhappy LAFfA. Although it envisages a common market as a distant goal, it basically provides for an area of preferences without the sweeping abolition of tariffs, typical of the classical model. This end is to be attained through a series of bilateral and limited multilateral agreements. Special preferences are granted to the weaker members. 36 But, obviously, this arrangement Ieads to a further fragmentation of trade rules within the region. Another example for this new minimalist approach towards regionalism is the Southem African Development Coordination Conference (SADCC), also established in 1980. 37 lt is composed mainly of the front-line States and its primary goal is the reduction of economic dependence on South Africa. lt is basically no more than a framework for the co-ordination of national development plans. Decision-making remains with individual members who co-operate in certain sectorial programmes, such as transport and communication, agriculture or industrial development. Weary of international bureaucracies, the founders have devised a system under which the various programmes are assigned to individual member States tobe administered by them. Another important function of SADCC is the co-ordination of efforts to obtain outside aid for their projects. The EEC, both as a group and through individual members, plays an important role in these efforts. A third example for this loose and flexible approach would be SARC (South Asian Regional Cooperation), established in 1983, embracing Bhutan, lndia, the Maledives, Nepal, Pakistan, and Sri Lanka, which has strong similarities to SADCC. V. Commodities Trade in raw materials including agricultural products is of particular importance to developing countries. Most of them depend very heavily on the export of one or just a few of such commodities. Arrangements conceming the export Hummer (note 31), 368 et seq. Lang (note 9), 30, 76 et seq. 36 Hummer (note 31); Lang (note 9), 140. 37 Konrad Ginther, Völkerrechtliche Aspekte der Southem African Development Coordination Conference (SADCC), in: Jahrbuch für Afrikanisches Recht 5 (1984), 4766; Lang (note 9), 102 et seq.; Meyns (note 4); Meyns (note 14); Ang/in (note 26). 34

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eamings from these products are therefore seen as an important tool for development. However, continued reliance on raw materials as the main source of income, is not going to Iead to qualitative development. The problern is aggravated by notorious price fluctuations, often following unpredictable cyclical pattems. On the global Ievel, a nurober of measures have been taken to strengthen or at least stabilize markets in commodities. Commodity agreements aremultilateral treaties between net exporters and net importers of particular commodities. They are designed to achieve fair and stable prices, thereby offering exporters a certain measure of stability of income. These commodity agreements adopt several different techniques. The most effective but also the most demanding in terms of administration and expenses, is that of buffer stocks designed to intervene in markets in order to stabilize prices within desirable ranges. lt remains to be seen, whether the ignominious financial collapse of the International Tin Council will have any long-term effect on this type of arrangement. UNCTAD has taken a keen interest in commodity agreements as a means of development. lt has adopted an "Integrated Programme for Commodities" in the framework of which an arrangement on a Common Fund for Commodities was concluded. The idea is not only to support buffer stocks financially but also to help with commodity development measures. Commodity agreements have proved their usefulness for producing and importing countries but they have their limitations. Much of their success depends on the participation of the most important traders, which is by no means always secured. Not all commodities are covered, although their nurober has grown over the years. These agreements are invariably only concluded for a limited period of time, usually five years, a fact which seriously Iimits the security that exporting countries can derive from them. A different technique, which has been used on both the universal and regional Ievels, is compensatory financing for shortfalls of export eamings from commodities. As early as 1963, the International Monetary Fund (IMF) established a Compensatory Financing Facility to help members in balance of payments difficulties arising from export shortfalls. But the amount and duration of these loans are, of course, limited. Plans for the supplementation of this system by an additional facility serving the needs of the least developed countfies were discussed and eventually adopted within UNCTAD but received a mixed reception by the developed members. The Stabex system introduced by the Lome Conventions is based on a similar idea. 38 Participating ACP States which depend on certain listed agricultural products for their export eamings are given income guarantees against Iosses caused either by market forces or production shortfalls. Payments are made in 38 Wolfgang Benedek, The Relevance of Inter-Regional Co-Operation (Lome II, Stabex) for the NIEO and for Regional and Subregional Integration in Africa, in: New Perspectives and Conceptions of International Law, Vienna/New York 1983, 75-89.

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the form of soft loans or grants, the latter in the case of least developed countries, the majority of participants. The system has been considerably expanded over the years. In addition to the increase of participating States, the number of commodities was expanded from originally 12 to 48 in Lome III. The available resources have almost tripled from Lome I to Lome III and the conditions for the activation of the system have been made more generous. There is a similar system for mineral exports called Sysmin. In comparison to the global instruments, Stabex has advantages and drawbacks: It only covers a certain range of primary products like the commodity agreements but unlike the IMF facility. It takes care not only of adverse market forces but also of local production shortfalls like the IMF facility but unlike the commodity agreements. lt is limited to five years at a time like the commodity agreements but unlike the IMF facility. Transfers are mostly in the form of non-repayable grants unlike the IMF facility and, of course, unlike the commodity agreements. This brief comparison is enough to show that the universal and regional systems in this particular field do not compete with each other but rather supplement each other. No method is superior. More important than the relative benefits of Stabex compared to other systems are its long-term effects on the development of the countfies concemed. Stabex is an important instrument to ward off economic disaster for countries heavily dependent on export eamings from one or a few primary commodities. But it is not really a tool of development. In a sense, it reduces the incentive for the countries concemed to break away from their dependence on monocultures and contributes to the perpetuation of old structures. It should therefore only be seen as a transitory emergency measure and not as a permanent feature of international trade. Before leaving the EEC and agriculture, a brief remark on the Common Agricultural Policy (CAP) and economic development seems appropriate. The cost of the CAP in terms of consumer prices, subsirlies and storage is frequently criticized. Its adverse effects on the agriculture of developing countfies receives much less attention. The creation of large Community surplusses exported with the help öf high subsidies has serious consequences on world trade in temperate zone agricultural products. In many cases, producers in developing countfies are unable to compete with the artificially depressed prices created by the CAP. This applies not only to world markets but even to the home markets of the developing countries. The CAP therefore is, at least in part, responsible for the inability of developing countfies to establish a profitable agriculture. 39 A recent IMF study confmns the view that a drastic liberalization of the CAP would stabilize agricultural prices, would Iead to substantial expansion of world commodity trade tuming many developing countries into net exporters and would generally benefit these countries. 40 It is paradoxical that the EEC spends large amounts of money 39

Balassa I Michalopoulos (note 20), 18.

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on a policy which is the source of great difficulties. to many developing countries and at the same time spends rnoney on a scherne which is designed to cornpensate these same countries for shortfalls in their export eamings. But it is also syrnptornatic that the pressure to dismantle or at least reduce EEC agricultural subsirlies in the current GATI negotiations does not corne from developing countries but from the United States.

VI. Private Investment In the area of international private Investment in developing countries, there are seemingly Contradietory tendencies. They are the result of conflicting policies arising on the one band from the fear of dependence on multinational corporations and on the other from the fact that there is an urgent need for foreign capital, technology and know-how in developing countries. The respective positions on expropriation of the Group of 77 and of the capital exporting countries are wellknown and need not be restated here. In the United Nations General Assembly, the Group of 77 position has increasingly found expression in successive resolutions, usually under the Iabel of permanent sovereignty over natural resources. 41 lt culminates in the Charter of Economic Rights and Duties of States of 1974 which declares ·compensation for expropriation a matter for national law to be decided by the national courts of the expropriating State. 42 This is not the right place to reopen the debate on whether there ever was a rule of intemationallaw prescribing full, prompt and effective compensation and what has happened to any such rule in the face of its repeated denouncement by a large group of States. Irrespective of the exact legal situation, these resolutions have undoubtedly contributed to a clirnate of insecurity and are probably one of the reasons for the dramatk decline of private Investments in developing countries in recent years. While substantive questions are as open as ever, some progress has been made on the global Ievel in setting up procedures designed to create a more stable and secure investment climate. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States 43 provides a useful framework of dispute settlement at the disposal of the parties without offering any substantive rules. The recently established Multilateral Investment Guarantee Agency 44 offers insurance coverage for private investments in develIMF Survey 18 (1989) at 49. Subrata Roy Chowdhury, Permanent Sovereignty over Natural Resources, in: de Waart et al. (note 3), 59-85 et seq; Jerzy Makarczyk, Principles of a New International Economic Order, Dordrecht et al. 1988, 195 et seq. 42 GAres. 3281 (XXIX), Article 2 (2) (c). 43 ILM 4 (1965), 532-544. 44 ILM 24 (1985), 1598-1605, in force 12 April 1988; lbrahim F. / . Shihata, MIGA and Foreign Investment: Origins, Policies and Basic ·Documents of the Multilateral Investment Guarantee Agency, Dordrecht/Boston/Lancaster 1988. 40 41

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oping countries. lts founding treaty refers to substantive standards for the protection of investments only in the vaguest of terms, such as "fair and equitable treatment and legal protection." This trend away from agreed standards for the protection of foreign investrnents on the universal Ievel has been offset in part by a multitude of bilateral investrnent treaties between developing and capital exporting States. There are over 200 of these agreements which reflect the traditional rule on compensation for expropriation with varying degrees of precision. The same principle of adequate, prompt and effective compensation for expropriation which has been banished with so much clamor on the universallevel, has quietly re-entered through the back door of bilateral agreements. On the regionallevel, there have only been half-hearted attempts to come to grips with private investment. The most spectacular one was the Andean Investment Code, adopted by a group of capital importing South American States in 1970. 45 It is modelled on a number of national investrnent codes enacted by capital importing countries. The idea of investment codes is to exercise national control over the amount, sector and mode of investrnent and over the repatriation of profits, while at the same time retaining some degree of attractiveness to foreign investors by offering a reasonable measure of security. The aim of the Andean Investment Code was to create binding regional standards for all participating States, thereby preventing powerful investors from taking advantage of the competition and rivalry between regional States seeking to attract investrnents. The most important provisions of the Andean Investment Code required gradual divestment or transfer of companies into national majority ownership and Iimits on the repatriation of profits. Its application was neither particularly effective nor successful. The original Code was replaced in May 1987 by a much watereddown version which reflects the eagemess of the Group to attract more investment. 46 Divestrnent requirements have been completely abolished and the Iimits on the remittance of profits have been considerably relaxed. An attempt by the Asian-African Legal Consultative Committee to prepare a regional investrnent protection agreement was not successful. The attitudes of States were too diverse even towards the treatrnent of foreign investrnents within the regiori.. Instead, the Committee bad to resign itself to drafting a number of model bilateral agreements. 47 Inter-regional efforts to promote private investment, as reflected in the Lome Conventions, have not yielded much substance. Lome III contains a chapter on investment; but its provisions are rather programmatic. 48 There are references 45

ILM 11 (1972), 126-146; ILM 16 (1977), 138-158. Ereli (note 33), 93 et seq.;

Lang (note 9), 122.

ILM 27 (1988), 974-988. Biswanath Sen, Investment Protection and New World Order, in: ZaöRV 48 (1988), 419-447 (433 et seq.). 46 47

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to "fair and equitable treatrnent", to "clear and stable conditions", to a "predictable and secure investrnent clirnate" and to "agreements which will irnprove such a climate", an obvious reference to bilateral investment agreements. 49 Otherwise, what is envisaged, is mainly studies, investigations and dissemination of information. However, it is obvious that the benefits offered by the other parts of the Lome Convention are such that arbitrary action by ACP States against private EEC investments are rather unlikely, even in the absence of bilateral investment agreements.

VII. Official Capital Transfers The foreign debt problerns of most developing countfies have reached almost unmanageable proportions. Unfavourable interest rates and a sharp decline in private investment have contributed to this situation. The debt crisis has resulted in an overall net flow of fmancial resources from most developing regions. Paradoxically, the enormous international debt of the Third World has become not only a liability but also a source of strength for the debtors. A major default could spell disaster to Western financial institutions and would undermine the international banking system. The current efforts to find a formula for debt relief are therefore by no means just a sign of generosity on the part of capital exporting countries. Bilateral official development aid has turned out tobe problematical for several reasons. It is frequently tied up with the political preferences of the donor country and is not so much geared to the recipient's need as to its political importance and behaviour. Moreover, donor countries often link the granting of aid to the purchase of goods and services in their own economies. At worst, this can mean that "aid" is little more than a form of export promotion. In many cases, military assistance is included in the statistics on aid. Needless to say that "military aid" has nothing to do with economic development. In addition, the overall volume of official development assistance has generally declined in the 1980s, a phenomenon which is attributed to a widespread "aid fatigue" in developed countries. All this has made the international public lending institutions increasingly important. The role of the World Bank group, including the International Development Agency (IDA) and the International Finance Corporation (IFC), is generally accepted as indispensible to any overall strategy for development. Nevertheless, there has been some dissatisfaction on the part of the borrowing countries with several aspects of the World Bank's work. The funds available to the Bank and even more so to the IDA have generally been regarded as insufficient. A particular 48 Patrick Juillard, Lom~ III et l'investissement international, in: Revue du March~ Commun (1986), 217-221. Cecilia Andersen-Speekenbrink, The Legal Dimension of Socio-Cultural Effects of Private Foreign Enterprise: The Lom~-III Convention, in: de Waart et al. (note 3), 283-294. 49 Art. 240, ILM 24 (1985), 571-688 (633).

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irritant to Third World countries is the voting procedure in the goveming bodies of these institutions which puts decision-making squarely into the hands of the major contributing States. Closely linked to decision-making are the modalities of financing, both in terms of priorities and of conditions attached to loans. This dissatisfaction was one of the main forces in the establishment of regional development banks. There are three majorregional development banks: the InterAmerican Development Bank (established in 1959), the African Development Bank (established in 1964) and the Asian Development Bank (established in 1966). In addition, there is a number of smaller sub-regionallending institutions. 50 The activity and organizational structure of the three large regional lending institutions are remarkably similar to those of the World Bank. They all administer some special funds for concessionary lending to least development countries comparable to the IDA. They either have or plan to establish special resources to supportprivate investment comparable to the IFC. But there arealso important differences between these regional institutions. Two of the main regional banks have financially potent regional members: the United States and Canada in the case of the Inter-American Development Bank, Japan and Australia in the case of the Asian Development Bank. Not so in the case of the African Development Bank. Outside participation has played a major role in the discussion on the "regional character" of these institutions. This has posed particular problems with the African Development Bank. 51 The ideas of self-reliance and regional independence prompted the founders to limit the membership to African countries only. The exclusion of industrialized States meant that there was little chance of mobilizing funds inside or outside the region. This impossible situation eventually prompted the Bank's Board of Govemors to open membership to nonregional States who have joined the Bank in considerable numbers since 1982. At the same time, arrangements were made to preserve two-thirds of the voting power in the hands of regional members. The Inter-American Development Bank was opened to non-regional members in 1979 for similar reasons. The Asian Development Bank never tried to exclude them. The regional development banks have established themselves as important sources of development capital. The combined lending volume of the three big regional institutions is about one-half of the World Bank' s volume. In the area of inter-regional financial aid, the role of the Council for Mutual Economic Assistance is negligible. 52 The volume of aid is only a small fraction of transfers coming from Western industrialized countries. Moreover, there is no regional institution to co-ordinate activities. All aid is therefore strictly speaking bilateral with all the disadvantages mentioned before. 5o Mare Cogen, The Changing Structure of Financial Resources in Regional Development Banks, in: de Waart et a/. (note 3), 247-253. 51 Michael Reiterer, Die Afrikanische Entwicklungsbank und ihr "afrikanischer Charakter", in: Archiv des Völkerrechts 23 (1985), 294-336. 52 Reiche/ (note 15), 388 et seq.

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By contrast, the Lome Conventions between the EEC and the ACP countries provide for substantial fmancial transfers. In view of the fact that the majority of ACP partners fall into the category of least developed countries, most of the transfers are concessionary aid that is either grants or soft loans. This money is administered by the European Development Fund which draws its resources directly from the budgets of member States. The total volume provided for in Lome III amounts to about 7.4 billion ECU. In addition, the European Investment Bank grants loans at favourable rates for investment projects with priority in specific sectors. The tötal volume envisaged for these loans amounted to 1.1 billion ECU. An important aspect is the administration and programming of these fmancial transfers in which recipient States play a full role as equivalent partners - an important concession to their sensitivities.

VIII. Conclusion The picture ernerging from this brief survey is complex and not very clear. It is obvious that neither the universal nor the regional Ievel enjoys a clear overall advantage in terms of effectiveriess for economic development. There can be no question of either universalism or regionalism prevailing. The two Ievels do not represent antagonistic principles. They are not in competition but rather complement each other. In many cases, the smaller unit may be more competent that the cumbersome universal arena. Global sttategies are, however, important in tackling a world-wide problern like economic development. Unfortunately, it is not even possible to make generalized Statements on the optimum allocation of certain functions to the universal or regional arenas. The parallel work of the World Bank and of the Regional Development Banks is an obvious example. Reality is rather complicated: Regional groups play an important role in universal bodies. Universal organizations promote regional cooperation and have set up regional bodies to this end. Regional organizations and groups try to promote economic development through cooperation within the region but also through co-operation with other regional organizations. This inter-regional approach is particularly effective in cases involving highly industrialized regions such as the European Communities and regions of less developed countries. The most promising field for improvement is regional cooperation among developing countries. lt is still very much in its infancy. The main problern there isthat political factors are so dominant. The task of nation-building leaves little room for the transfer of effective power to regional institutions. Regional solidarity involves sacrifice and is particularly difficult to achieve among the poorest. There have been many failures and few clear successes in the area of economic development law, both on the universal and on the regional Ievels and there is certainly no reason for complacency. Butthereis also no reason to despair.

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1. Strategies for economic development are in a state of crisis. The idealistic visions of a New International Economic Order have given way to a more realistic outlook. 2. In economic development, geographic proximity is not the most important factor in describing a region. 3. Conflicting economic theories and ideologies have contributed to the difficulties of co-operation, both within and between regions. 4. Success in the law of economic development should not be measured in terms of the verbal behaviour of States, but in terms of its effect on the situation of the peoples concerned. 5. In international trade, there has been a conspicuous trend away from free market principles towards special concessions in favor of less developed countries (LDCs). 6. The effectiveness of the Generalized System of Preferences (GSP) has been offset by selective discrimination. Its overall benefit to LDCs is doubtful. 7. The trade provisions on the Lome Conventions are more favorable than the GSP. 8. Regional co-operation among LDCs has come up against serious structural obstacles. 9. Free trade models among LDCs generally have not been successful. 10. Recent trends in regional co-operation among LDCs favor looser more flexible models. 11. Dependence on commodities for export earnings remains a serious problern for most LDCs. 12. Commodity agreements, IMF compensatory fmancing and the Stabex system under the Lome Conventions have attempted to secure a stable income from commodity exports. 13. The EEC's Common Agricultural Policy (CAP) is a source of serious problems to many LDCs in their efforts to develop a competitive agriculture. 14. The persistent efforts of the G-77 to reduce the relevance of international law to the protection of foreign private investment have bad a destabilizing effect on the international investment climate. 15. This development has been only partly offset by the establishment of institutions like ICSID and MIGA and by the conclusion of bilateral investment treaties.

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16. The regional approach to private investment in the Andean Investment Code has not been a success and has been largely abandoned. 17. Capital transfers by the World Bank and its affiliated agencies IDA and IFC are controlled by the major contributing members. This has been one of the reasons for the estab1ishrnent of regional development bank.s. 18. Regional development bank.s have been forced to compromise between preserving their regional identity and admitting financially potent extra-regional members. 19. The Lome Agreements provide for substantial capital transfers to ACP countries. 20. Neither the universal nor the regional Ievel is superioras regards economic development. Work on both Ievels is not competitive but complementary.

Discussion of Christoph H. Schreuer's Lecture• Seidl-Hohenveldern: I want to start making some remarks which are rather an addendum on two points. The first one is to the first statement made by Prof. Schreuer. He mentioned the right to development adopted by the General Assembly ofthe United Nations. It is one of these declarations, where, I at least, do not see any possibility of a transformation into a legal binding obligation. It is the announcement of a very generous ideal. Yes, every State has the right to develop. Of course, a State has the right to develop itself. Insofar there is a legal obligation for other States to refrain from preventing a State to develop itself, which has the means to do so. But I do not think that this was really the meaning of the Declaration. The General Assembly intended to say that every State has the right to develop and, at least, by implication, has the right to obtain help to see itself developed. As far as this second interpretation goes, it is based on a very generous intention, but I fail to see a legal obligation to aid to development. I can refer in support of my view to the very recent decision of the International Court of Justice in the case of Nicaragua v. United States, where the stoppage of US aid to Nicaragua was said not to contravene any principle of international law. So there is no legal obligation to help any State to develop. lf States do it, it is to be welcomed, but I contest the legal obligation. That is one point. Then there isanother point much further down on the Iist of topics. Wehave heard that as far as the World Bank and the various regional banks are concerned, that these banks basically are a success, that they do help development. Here is one addendum. The success of these banks is now endangered by the very strong movement inside the General Assembly towards the "democratization" of these very institutions. This means, translated out of the United Nations's language, that these institutions, too, shall be submitted throughout to the "one State one vote" rule. lf ever weighted voting bad any sense, and a moral justification, then in this sphere, at least concerning those decisions of these banks which risk to put in jeopardy the amounts furnished by the various States. Yes, these institutions are international organizations, but, nonetheless, they are also banks, and can anybody of you see a bank being capable of avoiding bankruptcy for only a week if you would put as principle for a bank giving out new loans that the decision, who is going to get what loan, is not to be taken by the people who put in the capital of the bank, but by the people who want the loan. This is what • The opinions expressed in this volume are the personal views of their authors only.

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this demand of democratization of these international bank institutions amounts to. At least as far as decisions are involved which may cause a risk to the capital ofthe bank, I am very strongly opposed to this tendency. Such a "democratization" risks to endanger the rather favourable results which these banks have obtained, and which Prof. Sehreuer has so rightly stated in his report.

Cafliseh: Before I give the floor to the next speaker, I wish to make a suggestion. It would be good if perhaps one of the speakers addressed a point worth bearing in mind, namely, the issues of efficiency and of possible duplication, either on the regional Ievel or on the universal one.

Ipsen: With regard to the general topic of this symposium, you have been absolutely correct, Prof. Sehreuer, in concentrating your excellent lecture on the two Ievels "universalism and regionalism". Could you, however, elaborate a bit further on the problern of whether these two Ievels have to be completed by the third Ievel ofbilateralism? This third Ievel is of some interest, because you mentioned quite correctly, in the framework of the protection of private investments and the protection of capital transfer, the large number of bilateral agreements protecting private investments and promoting capital transfer. These bilateral agreements are typical examples for a restoration of bilateralism, especially with regard to economic development in and by international law. The examples you have given, i. e. the bilateral agreeements between highly developed States and members of the Andean Investment Code, are indeed showing that the position which the members of the already revised Andean Investment Code have realized in bilateral agreements are of quite a different content in comparison with the code. There exists, for instance, such a bilteral agreement between Venezuela and the Federal Republic of Germany showing that both parties agreed upon the old Hull formula with regard to expropriation. They agreed on equal treatment and not on preferential treatment of the developing country. They agreed on international arbitration instead of local remedies, and so on. Could you elaborate perhaps on this problem: How far are the two Ievels "universalism and regionalism" - and I fully agree with your fmdings on the relation between both Ievels - completed by restoration of bilateralism, which has a growing tendency?

Hüfner: Mr Sehreuer fulfilled something which is almost impossible due to the fact that the number of examples he gave can be multiplied. He never had the chance to really go into details, with regard to some of the examples. The interpretation of the last speaker, Mr Ipsen, is a typical case that, of course, the difficulties of

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this dichotomy of universal versus regional Ievel is as bad as the dichotomy we use in economics between maero and miero. It fits everywhere and nowhere. And Mr Sehreuer introduced already a third Ievel when he spoke about the status of OECD or of the Group of 77 by saying both organizations are "in between," and this is something like a third Ievel. Now the fourth Ievel has been introduced by Mr /psen, by saying that we have to divide those regional inter-relations into bi- and multilateral relations. I would add then a division into governmental and non-governmental relations, and so the picture gets even more complex than it has been drawn already by the speaker. I think the major problern we are confronted with, has been posed right at the beginning, namely the question to what extent we need a New International Economic Order. Mr Sehreuer talked about the idealistic vision and thereby I assume that he implied the demands of Third World countries. On the other band, we observed that the old international economic order collapsed in the early '70s. Today we are confronted with quite a number of major problems, the biggest one being the free-floating exchange value of the US dollar, which causes a Iot of problems not only to Third World countries, but to the running of the world economy per se. And the question remains whether and to what extent we need a more realistic new international world order in universal terms, a kind of umbrella under which all kinds of regional arrangements can work and flourish. I think this very important question should be discussed a little bit more in detail during the course of our morning session. In addition, I would like to make just a few minor points in order to draw attention to some of those issues, where I think that some further elaboration might be useful. Mr Sehreuer talked about the Official Development Assistance several times. He mentioned it in connection with the socialist industrialized countries, the CMEA countries, where he talked about the low Ievel of the contribution of those countries. He is right if he argues in absolute terms. He is wrang if he argues in relative terms. lt is interesting to note that the DAC of OECD, (the Development Assistance Committee), was changing its estimates concerning those activities of the USSR and other countfies of Eastern Europe, thereby giving higher percentage points as measured as a share of the GNP. Actually, the USSR is almost reaching now in OECD statistics- which differ from those official statistics of the central planned economies - the relative Ievel of the United States. In absolute terms, of course, one cannot compare those figures because there one will find that the United States, being the riebest country of the world, is, of course, contributing much more. But I think one should be fair and compare not only in absolute but also in relative terms. Then one can also show that there are other regional arrangements such as, for instance, those of the Nordic countries, which have a very high degree, if not devotion, in terms of relative engagement in ODA in favor of Third World countries.

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I do not know why the speak:er mentioned the military assistance being included. According to lhe official DAC statistics military assistance is no Ionger included. The real problern is the problern of comparison between institutions at the micro Ievel. Because there we always enter the trap of counting all World Bank Group activities as an official development assistance. However, in a large proportion, almost 15 % of those World Bank Jending activities are no assistance in OECD terms. They are business activities, lhey are normal banking or capital Jending activities on market conditions. They are no Ionger counted as apart of official development assistance and, therefore, no inclusion should be made. Klein:

We are now discussing the role of public internationallaw for the promotion of economic development. In lhis context we must also have a closer.look at the international institutions and organizations which have to accomplish this task. Taking up the examples you have given us, Mr Schreuer, in your excellent report, the EC on the one band, and lhe free trade associations for example in Africa, Latin America, Asia on lhe other band, and in comparing their successes and failures, we may find that this result is dependent upon lhe political impetus which lhese communities have bad or still have. lf they are only economic communities, if they are only outlined in this dimension, I think they come closer to a quick failure, but if lhey have an inherent political aim to be more than lhat, if they have a dimension which goes beyond lhe border lines of just an economic community, lhen lhere is a good chance that they will attain their aims. Thus, lhe point I want to mak:e, is that communities which are engaged in economic development, and lhis includes economic stabilization, such communities must have a purpose which is more than only an economic one. Schreuer:

Thank you, I will try and be very brief. As to Prof. Seidl-Hohenveldern' s reference to the General Assembly's resolution concerning lhe right to development, I fully agree lhat it is very difficult to read this as a purely legal instrument. In fact, it is, like so many General Assembly resolutions, a political programme. If I remernher correctly, the United States eilher abstained or even voted against it. Eilher way it was not adopted unanimously. I lhink lhe United States, in particular, was afraid that this might imply some immediate right to material assistance. The voting procedure in the development banks is, of course, highly controversial. The basic question here is: Do we see lhem more as international organizations, as the developing countries would, or do we see lhem more as commercial banks like you? That would basically be the conceptual problem. But I agree with you that realistically the voting procedure will have to remain as it is, because otherwise the flow of funds will simply stop or be reduced to a trickle.

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Prof. Ipsen raised the problern of bilateralism. I fully agree with you on its importance. My one and only excuse for largely excluding bilateralism from my presentation, is that it is not the subject matter of this symposium. I am of the opinion that bilateral relations between States are still by far the most important type of international interaction. In fact, in all areas that I have covered today, bilateralism comes first in terms of volume and importance: trade, investments, but also capital transfer. State-to-State capital transfers are still more important in volume than the activities of development banks, both on the universal and on the regional Ievel. So we cannot exclude bilateralism. I would not even say, this is a new trend, but exactly the opposite. Traditional international relations were conducted in the form of bilateral relations and it was only in the course of the 20th century that we turned towards institutionalized multilateralism. So bilateralism is really the core area of international law. Prof. Hüfner has raised the interesting point, whether the "New International Economic Order" has replaced the old order, whether the old order has collapsed. I do not think it has. I do not think the "New International Economic Order" has ever progressed beyond a vision or a grand plan. I do not think there ever was a serious chance or danger of the old international order being replaced if, indeed, there ever was such a thing as an international order. I am rather suspicious of expressions like '~international order". It sounds like a "centrally planned international community" which is neither realistic nor desirable. I am rather puzzled by your statement that the CMEA contributions to the Third World are approaching OECD figures in relative terms. I am not quite sure, relative to what? Hüfner: GNP! Schreuer: I have not seen these statistics. But if you have them, I am interested in seeing them. I know that the CMEA countries themselves publish statistics which Iook considerably different because they have other bases for calculation. There is just one thing I would like to add here: Of course, development does not just depend on capital transfer. Trade is also a very important aspect, and trade is a problematical area, not only capital transfers. As far as military aid is concerned, I did not suggest this is in the DAC statistics, but there are some countries which include military aid in their national foreign aid statistics. Prof. Klein raised the important and interesting question on the relationship of regional, economic and political organizations. I agree with you that generat

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political organizations tend to be more successful, at least in the Third World, than economic organizations. Of course, this depends on your view of success. From our viewpoint, OAU is perhaps not a success, but from their viewpoint things Iook entirely different. But then, on the other band, I would not always separate economy and politics so clearly. International economic co-operation is a very political matter and if successful, it can have serious and very positive political repercussions. Simma: Referring to what you said about the second and third generation, I will talk about the right of development frrst and then refer to the comments of Mr SeidlHohenveldern. I agree with him and with Prof. Sehreuer as weil, that the right to development is certainly not designed to create clear-cut, sharp-edged legal obligations on the part of States. Neither Prof. Seidl-Hohenveldern nor Christoph Sehreuer mentioned the fact that the right of development is designed to be a right of individuals, too, not only of States. I think the debate going on in the West and also in this room, at least the beginning of the debate, creates (forme) a problern of credibility. I think that one of the features that distinguishes the human rights approach of Western lawyers from that of the East (or from the approach which Western lawyers view as the approach of Eastern lawyers) is that we are very proud to base our international human rights on a meta-legal or meta-State foundation, but we tend to forget this meta-Iegal foundation as soon as we leave the field of civil and political rights and enter the field of economic, social and cultural rights or the rights of the so-called third generation. I think, if we believe in any natural law or meta-legal basis of human rights, we have to accept that individuals in the Third World have a right to develop. We cannot just put blinders on, Iet these people rot away and say this is not a problern for a lawyer. Then, as soon as we talk about civil and political rights again, we stress the extra-legal side of human rights. My second remark is very short. Christoph Sehreuer mentioned the fact that the Lome agreements are operative for a relatively short period of time, and I think he expressed it in a negative way, implying that this creates insecurity or a certain instability. I think that in Lome as in probably mostinternational treaties in the field of trade, the fact that they are operative for short periods of time only makes these treaties more readily adaptable to changes, and I think Lome has a distinctive trial and error character which might be responsible for the fact that as soon as you conclude Lome X, negotiations on Lome X + 1 are (more or less) starting. My third remark is on general internationallaw, but of course relates to what Prof. Sehreuer said. He pointed out that what you see in international economic law, is on the one band a certain instability or insecurity in the substance of the law, especially in the field of takings of foreign property, and this instability is 7 Symposium 1989

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counter-balanced by the growth of new institutions for the settlement, including judicial or quasi-judicial settlement, of disputes in this field, and you mentioned ICSID, while one could also mention the Multilateral Investment Guarantee Agency, and so on. This seems to me to appear in sharp contrast with the general picture, the picture of internationallaw outside of the economic law field, because there it is an almost axiomatic point that the instability of the law has led to and is still leading to an "upset" of the role of traditional dispute-settlement institutions. The question then could be, what are the reasons for instability and collapse in the law which Iead to a stronger role for dispute settlement mechanisms? Is it the somewhat different nature of international economic law? Do States view sovereignty differently in the economic field than in the political field? I think it is a fact that equity or considerations of equity have a larger role to play in a dispute settlement mechanism in the economic law field.

Vignes: Merci Monsieur le President. Bien que je ne partage pas toutes les considerations qui ont ete faites, je peux dire que, ayant ont ete pendant une demi-douzaine d'annees responsable de Ia Convention de Lome au Conseil des Communautes, je me suis senti tres concerne par un certain nombre de remarques de Monsieur Schreuer, tout en etant d'ailleurs largement d'accord avec lui. II y a d'abord une omission que je releverais, toutefois sans Ia condamner. Actuellement le problerne qui interesse le plus les pays en voie de developpement, c 'est leur endettement. Certes je comprend qu' il ne I' ait pas cite car ce problerne ne Se prete pas a une Solution regionale, mais C 'est le problerne dont Oll parle le plus. II faut le rappeler. En realite, le terrain d'election majeur pour des mesures regionales c'est le commerce, et cela malgre le tres bon resultat d'une mesure universelle, les Preferences generalisees, le SPG, qui a eu un tres bon resultat pour un certain nombre de pays, le Bresil, Ia Yougoslavie, l'lndonesie, les pays d'Extreme Orient, Ia Coree et d'autres. Evidemment cela a eu l'inconvenient de compartimenter Ia societe internationale: il y a les riches, les nouveaux riches qui ont beneficie du SPG et qui sont un peu instables et puis il y a les pauvres, les irremediablement pauvres qui eux n'en ont pas beneficie. Vraiment c 'est l'inconvenient du SPG d'avoir coupe ainsi en trois les pays du Monde et c'est enorme. A cöte du SPG et avec un habillage regional, il faut mentionner les Conventions de Lome: Lome est au point de vue commercial plein d'interet pour les pays les moins developpes, meme s'il est un peu erode par le SPG et par le GATI: les resultats de leur commerce exterieur le montrent. Je voudrais encore defendre Lome contre ceux qui l'attaquent au nom de Ia politique agricole commune. Certes je suis d' accord que Ia politique agricole peut etre attaquee par Ies communautaires parce qu'elle coilte eher. Je comprend aussi les attaques contre eile des

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Australiens, des Americains, des Canadiens, mais en revanche je ne crois pas a une vraie concurrence faite par les produits europeens de Ia politique agricole aux produits des pays en voie de developpement. Faut-il prevoir des accords de libre echange entre les pays en voie de developpement selon ce qu'il est convenu d'appeler les relations Sud-Sud? Ces rapports entre pays en voie de developpement, on n'en parle uniquement que pour Ia galerie. Je ne crois pas a un accroissement des exportations des pays en voie de developpement parce qu'ils seraient en position de libre echange entre eux. Malheureusement pour eux, ils sont en concurrence sur les quelques produits dont ils sont exportateurs et un systeme de libre echange entre eux n'apporterait rien. Je passe maintenant au systeme Stabex et au reproche de faillite qu'on lui fait. En realite, il marche trop bien mais il manque d'argent car tout le monde veut des credits Stabex. Sans doute, pourrait-on lui reprocher de ne pas avoir provoque, par lui-meme, une remontee universelle des cours des produits de base, mais etait-ce Ia son objectif? En avait-illa possibilite alors que la production ACP est inferieure a 20 % de la production mondiale? Le Stabex est utile aux ACP en ce qu'il aide leur balance des paiements en cas de crise. C'est la son röle et il y reussit. Faut-il reprocher a Lome d'en faire trop peu en matiere d'investissement? En realite pour les ACP, cette question releve plutöt de la Banque mondiale, du MIGA notamment. Dans les instances Lome, les ACP s'en desinteressent, ou plutöt ne s 'y sont interesse que lorsque l 'on ne progressait pas assez a Washington, c'etait le cas en 1983 lors de Ia negociation de Lome m. Avec I' Amerique centrale, I' Amerique andine, I' Asie du Sud-Est et le Golfe arabo-persique, Ia Communaute a quatre accords qui sont interessants comme experiences regionales. En aidant, par exemple, des systemes de standardisation regionale, ces accords doivent etre signales comme une reussite de l'approche regionale. Il y a une seconde reussite de l'approche regionale que je voudrais mentioner au sujet de ces accords, c'est Ia cooperation regionale entre les pays interesses en matiere commerciale, en favorisant par un systeme d 'origine cumulative la transformation des produits au sein de la region et par ailleurs leur vente en commun (y compris leur promotion commerciale). Je voudrais encore signaler dans Lome une petite question specifique: »la Declaration de 1984 sur l'acquis de Lome«. Chaque Convention de Lome dure cinq ans, il ne faut pas que les effets d'une Convention se perdent lors de son renouvellement; aussi par Ia Declaration sur l'acquis, les Parties se sont engagees a maintenir les avantages, voire afaire mieux. Peut-etre s'agit-il d'un engagement plus politique que juridique; cela ne doit pas moins etre signale.

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Lang:

I am very grateful to Prof. Sehreuer for bis statement, because he confirmed the view I expressed yesterday, that integration is the highest form of regionalism, a view which was not shared by some participants at the yesterday's discussion. I briefly wish to draw our attention to the history of economic regionalism among developing countries. In the late '50s and early '60s, there dominated the philosophy of import Substitution: at frrst national import substitutions. In view of the narrowness of national markets countries turned to regional import substitution. Neither worked really. The free trade areas in these regions did not work, because countries do not have complementary, but competing products, and because the lesser developed partners in those associations do not see any gain as they have nothing to exchange for. Secondly, these schemes did not succeed because the second pillar - the first pillar was trade - namely the distribution of industrial locations did not function either as everybody wished to establish the same future-oriented industries and was not willing to stand back and to give precedence to the neighbour next door. There was also failure as regards investment codes, simply because govemments in the same region were competing for foreign investments and tried to outbid each other by better conditions for private investments being attracted to their respective country. In the mid-Seventies we were confronted with a high degree of disillusionment as regards regional integration among developing countries. At the same time there was a brief spell of hope, I would say, called New International Economic Order. This hope vanished after the sixth and seventh special session of the General Assembly and finally after the Cancun summit. In the early Eighties a very serious situation arose: The debt crisis. What was immediately sacrificed, were the regional preferences, because countries could not afford to give up trade with the industrial North, as they bad to buy industrial products from the North. But they were quite ready to raise again customs barriers, quantitive restrictions and whatever against their neighbours in violation of existing arrangements and treaties. Thus, the first international victim of the debt crisis were many regional trade arrangements, which hopefully bad been established in the Sixties and Seventies. Although a very critical feeling prevailed in the early Eighties, this situation was the point of departure for a new kind of economic regionalism, which is much more realistic, much more pragmatic, much more flexible. A major element in these endeavours is the enabling clause adopted within GATI in 1979. One of the frrst examples was LAIA in .Latin America. This new approach is at the origin of new hope, as a consequence of illusions lost during the preceding two or three decades. I consider it most encouraging that all those failures have not led to an entire abandonment of the regional approach, but to an effort to reorganize these integration processes, and at the same time to an effort to link these regional approaches through inter-regional cooperation between ASEAN and the Andean Pact, between CARICOM and ECOWAS etc.

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K onstantinov: In his excellent report, Prof. Sehreuer analyzed the numerous bilateral and multilateral agreements concerning the promotion of economic development. I would like to ask him, how he sees the prospect for a global approach to solve this problern. I think, I missed ·this .aspect in his report and because he is an expert in this field, I would like to hear his opinion on this issue. I think that general internationallaw could create a favourable legal framework for ptomotion of economic developrnent on a universallevel. As to the problern of underdevelopment, I think that all ·the time we are speaking of undetdevelopment, but in reality the issue concerns not only underdevelopment, but also economic development, which is not the same as underdevelopment. It is a global problern and its Solution requires a global approach. I would see the problern of economic development in the same group as the other global issues of our days, like peace, like, for example, protection of environment. From this viewpoint the u,niversal approach is required to solve problems of global character. As far as the socialist States are mentioned in the discussion, you know that nowadays they are concerned by their own problems of economic development and also by the problern of underdevelopment of many countries. I would say that the issue of economic development concerns not only the underdevelopment, but. also the economic development with allits aspects, that means that if we consider this issue, we have to see the economic development of the socialist State, is also an issue which is put in this framework. And the so~ialist States help developing countries within their economic means. The New International Economic Order, as stated by the speaker, is a political conception and, there is even now no right to development which could follow from this conception. But at the same time the political acceptance ofthe idea ofthe New International Economic Order, demonstrates tlle new political significance, not only of this global problem, but also the developing of a whole group of the developing countries in the international decision-making process. This trend has some legal significance, and Prof. Sehreuer mentioned, for example, the concept of the eommon heritage ofmankind, which is closely related to the elaboration of the concept of the New International Economic Order. The eommon heritage of mankind appears in the law of the sea and in the space law and creates some modest, but concrete obligations aim at economic development. I would like to say that it would be very useful that the amelioration of the whole international climate would favourably influence the global approach to economic development. And it is clear, that positive steps in the view of disarmament would Iead to direct means in this field. Schreuer: Prof. Simma mentionedthat the Lome Conventions with their duration of only five years are a flexible instrument. I fully agree with you. But very often you have competing aims in these particular instruments. Flexibility is one goal,

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security of income is another. There are two values which have tobe accommodated, one does not necessarily contradict the other. The fact, that you have more flexibility, should not mean that you miss out on security. One rather interesting point that you raised is the peculiar phenomenon in international investment law, that we have a Iack of substantive rules, but a rush into institutions, which is in a sense the opposite of generat internationallaw. I do not think that this is peculiar to international economic law. There is simply a very deep-rooted disagreement between different groups of States about expropriation of foreign property. This rush into institutions is simply a way to cover up this disagreement. Since we cannot reach agreement on substance, we try to substitute it by institutions. This is a phenomenon that we observe quite frequently in international organizations: If we cannot agree on substance we create a new commission or a new body for dispute settlement. But, of course, the problern is a bit more complicated. There are trends towards substantive rules through these bilateral agreements. I will try and summarize my reply to Prof. Vignes. He has pointed out that the GSP has brought good results for some countries. I do not doubt that. I was talking more about the overall effect of the GSP. lt has a rather selective impact on participating nations. Some countries profit, some do not, and for some, in fact, it has drawbacks. I am more concerned with the long-term effects. Shortterm, it may be profitable to shelter someone from competition. In the long term, I wonder, if developing countrieswill recover, if you put them into a permanent economic nursing home. I rather suspect they are going to stay there at the nursing stage. They are going to rely on these shelters and protections. Similar considerations apply to the Stabex system. I fully agree that the countfies concerned Iove it. Of course, they Iove it, because they get something. But the basic question is: Is the medicine they want always the best medicine? lt tastes good, but it may not be good for the recovery on the long-term. It is nice to get cash at the short-term, but are they going to make the necessary changes to their infrastructures? Is all this not self-perpetuation? I think on the CAP, the Common Agricultural Policy of the EEC, we really basically disagree. Again, on a short-term basis, it may be attractive for developing countries to buy cheap agricultural products from Europe. But what it does to their local agriculture is another question. lt may be more expensive to produce locally, but in the Iongerterm you need a local agriculture. Of course, not all agricultural products from developing countries compete with the subsidized exports from the Community. But there is a lot of importation of agricultural Community surplusses in countries which could easily produce for their own market. As far as regional planning is concerned, which sounds very attractive and is probably a long term goal, the simple answer is: So far, it has not worked. There have been all sorts of ambitious plans, but when the chips are down, as they

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say, the countries concerned very often, simply do not muster the necessary discipline and do not adhere to the rules that they have worked out in advance. That in fact, Ieads to Prof. Lang' s Statement. All I can say is that I fully agree with him on all points he made, which is not all that surprising because most of my wisdoms were drawn from bis publications anyway. I cannot contradict him. In a sense, he is the intellectual mentor of my paper. Mr Konstantinov asked me if I bad a recipe for a global approach to development. My simple answer is, ifi did, I would not be sitting here, but would probably be doing something more important. The problern is so complex and there are so many highly qualified economists who disagree on various points of development policy, that it would be ridiculous to try and give you a generat recipe for development. This is terribly complicated, and it is clearly not a onefactor-question. There are simplifications like the "missing input theories": If only we bad more capital or if only we bad more technology, things would take care of themselves. I do not believe in these single factor analyses. It is not even enough to put all individual factors into an underdevelopment economy. You also have to combine them in the correct way and have to shelter them from distorting influences. That is an extremely complex problem. If anyone knew the answer, the whole topic of this morning would be superfluous.

Yes, common heritage is an interesting concept, but I think, it is a very good example for what I was trying to say before, that we have bad interesting developments in internationallaw, but it is doubtful whether they have contributed anything to development. Common heritage has been introduced into the Law of the Sea Convention, but we all know what happened to it. The common heritage principle, as far as the seabed is concerned, has not helperl any of the developing countries at all. The same applies to the application of the common heritage principle to technology. If we take the position of the Group of 77 on technology seriously it being the common heritage of mankind, then technology probably would not be transferred at all at any rate at the conditions they want to introduce. We do not even need to talk about space law in this context, because it has obviously no immediate bearing on economic development, that is not at this stage.

Wolfrum: I will not yield to the temptation to speak about common heritage of mankind or on the law of the sea. I leave these subjects to Mr Eitel, who is still on the speaking Iist. Mr Schreuer, I quite share your pessimistic view of commodity agreements. There is at the moment only one commodity agreement working on buffer stocks - the natural ruhher agreement, which really works. The cocoa agreement is on the brink of collapsing, and as you have mentioned, tin has collapsed. Thus,

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it is more than questionable if we are going to use this type of commodity agreement in the future inspite of the Common Fund on Commodities. Let me come to my second remark. You looked upon the universalization and regionalization as complementory means to endorse economic co-operation. I totally agree that this is the starting point. Certainly, one can assume that it is easier to achieve early and satisfying results rather on a regional than on a universal Ievel. However, there are certainly two disadvantages, attached to regionalization, both having been touched upon in your paper and by other speakers. First., - and in this respect I may refer to the Chairman - the establishment of too many regional organizations or systems, is likely to result in a duplication of management and administration. Thus, the effectiveness of these systems is in doubt. An example in this respect are the regional development banks. Compared with the universal banks öne may ask about the use they serve which cannot be accomplished by the World Bankor the International Monetary Fund. The second remark is intended to touch upon a more basic concern. If one assumes world economy being regionally fragmented through a variety of regional organizations, such a system would be necessarily result in a preservation of certain regional standards which may be quite different from another. As long as there is no guaranteed interchange between those regional organizations, no means exist to efficiently endorse the economic development on a universal Ievel. This has been - to a certain extent - said by Mr Vignes and by Mr Klein, already and I would like to point out that we have, in this context, to take into consideration: Article, 55 of the UN Charter. If I read it coriectly, this provision calls for an economic development on the universal and harmonized Ievel. I am not intending to deny that regional organizations have their place in the universal economic system, however, does not Article 55 of the UN Charter require the establishment of a network between all those regional organizations and between them and the organizations at the universallevel? Up to now, this function is taken care for by the regional economic commissions, although they are rather detached from the ECOSOC in the moment. They do not have a strong connection amöng themselves, either. Accordingly, they do not really provide for a universalization of the regions. Does not Article 55 of the UN Charter require a reorganization of this system?

Caflisch: I have two points to make and one question to raise. The first point relates to the fact that someone mentioned the idea of a minimalist regional approach. I have examples to offer for such approaches: multilateral treaties, that are concluded around geographical features, usually hydrographic basins. There are very interesting examples in Latin America: the Treaty of Amazonian Cooperation (1978) and the River Plate Basin Treaty (1969). Both are a bit more than river

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basin treaties. There are aspects of regional integration: industrial integration, integration in matters of tourism, and so on. But it must be said at once that those ventures have bad no known effect so far. That would be my first point. My second point relates to the concept of the common heritage of mankind, I am not particularly enthralled by that concept in general, but I think that we are perhaps too quick in burying that unwelcome concept as has become fashionable in our circles. While it is not kicking, the concept is alive. Let us give it the benefit of the doubt for the time being. I would like to add one other thing: The common heritage concept is often seen as a vehicle of the New International Economic Order, but this is not necessarily and always so. It is also the vehicle of something eise, namely, a concept allowing for the distribution and, above all, the preservation of resources. My third point is in the form of a question. I know that I am somewhat out of order because I am addressing abilateral issue. But in appearance only, since there has been some talk about investment protection treaties already. Now, those arebilateral treaties, but their content is, so to speak, a collective phenomenon. I leave it to you to decide whether it isaregional or universal collective phenomenon. The content which I am referring to is the disputes settlement clauses of those treaties. My question is: To your knowledge, are there such clauses that have been effectively invoked, and, if not, which I suspect to be the case, what is the power of deterrence - to use a strategic concept - of the terms of those clauses? And, if they have no such power, if they have not been invoked, have they not achieved the contrary effect, namely, that of eroding the whole formula aimed at the protection of foreign investments? And can the same not be said of investment guarantee insurance schemes? You invest, you insure your investment, and somebody compensates you if your assets are expropriated or nationalized. So, if such clauses and schemes may be an incentive to investment, do they really stabilize the situation, or do they, on the contrary, erode what some of us still consider to be the existing rule in the field of nationalization and expropriation? Delbrück: It may not be a surprise to you that I shall elaborate a little on what Rüdiger Wolfrum has just said. I am somewhat puzzled by the rapidly growing consensus in this colloquy that the two concepts - universalism and regionalism - are complementary. First of all, I l)hQuld like to draw a distinction. Christoph Sehreuer has mentioned the UN regional commissions. We have heard that they are detached from the central UN system, but yet they are an intentional approach to a decentralization of efforts undertaken on the universal Ievel so far, and there I could see a genuine link between the regional and the universal approach, in the sense of being conceived of as intentionally complementary. All the other cases, which have been mentioned as examples of regional approaches, Iook to

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me as rather incidental responses to a failing universal approach. If we Iook into the regional approaches from that perspective, then I would simply wonder, whether we should not Iook into these efforts, not only in terms of their regional efficiency, but also Iook what their impact is on related potential or actual universal approaches, which indeed we also need. For I agree with Mr Hüfner, that, for instance, because the former international economic order has more or less broken down or has become deficient in many ways, we are before long in need to have something as an umbrella over all the regional economic activities which would give some central orientation to the whole, i. e. the world economy. And it seems to me, but that would have to be discussed in more detail by the experts in economic law and economics, that these regional approaches may have diverted a Iot of efforts from the universal Ievel to these rather incidental efforts on the regional Ievel, and I wonder whether some of them have not been rather counter-productive to the very necessary international efforts. So, I should just like to direct your attention to this problern which has not been discussed herein full, while- on the other hand- we have been proceeding on the basis of the consensus developing yesterday, that these two approaches are in no way antagonistic, that they are complementary. If you would want to accept the complementarity of the universal and the regional approaches then it would have to be established that there is something like a strategic design of developing the respective approaches as complementary ones. I am not enough of an expert to really maintain that there is not an intentionally designed strategy, but I also cannot see that we can take complementarity of regional and universal approaches unreflectedly as a given state of affairs. To my mind, there seems to be a dimension at least to some of the regional approaches, which indicates their being counter-productive to the necessary steps tobetakenon the universal Ievel. This is just an Observation on the course of the discussion, but I think it is an important aspect, which we should look into, especially tomorrow morning, when we go into a more detailed discussion of this aspect with regard to the universal and regional protection of human rights. Ginther: Thank you very much. I think, I can continue where Mr Delbrück just stopped, and I wonder whether we should not consider as a notion of universality, of most concern with regard to universalism, the notion of the world market. We speak of universality versus regionalism. The hidden agenda of what I would consider to be Schreuer' s presentation is a strong belief in world market forces, which, when they are allowed to operate most freely, would produce development, which to a certain exient is true. Regional organizations, preferential trade areas, detract from Most Favoured Nationtreatment Some economists say, with regard to regional organizations of the Third World, regional co-operation amongst developing countries can be very detrimental to their future, because they were

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then precluded from the impact of world market forces, and they might develop up to a point of no arrival in gaining an economic status of self-sustaining growth. As regards the idea of preferential treatment among developing countries, the more purist theorists of liberalism say, it was another factor of eroding the global concept of the world market, and that was where the future of economic growth lies. Now, you gave an example, you referred to SADCC. This is an exercise which started from the premise that before there is trade, there must be production. And SADCC is a very interesting exercise of regionalism. If you want to have production, you need capital and technology which comes from outside; and in order to attract it and to have a self-sustaining economy growing, you cannot go it alone. The interesting dimension with regard to SADCC is, that the donor community or at least certain parts of it, feel obliged to induce and support regional co-operation among the SADCC States. Most prominently in this respect is the Nordic Initiative of the Nordic States who coordinate their policy towards SADCC, in particular with regard to private investment of the Nordic countries in SADCC, while at the same time promoting regional co-operation. So I would add here to the dimensions of universalism, regionalism, bilateralism, a dimension of inter-regionalism. If I am weil informed, the OECD DAC adhers since about six years to the principle of regional coordination and cooperation on both sides: on the side of the donor and on the side of the recipient States. A final word in respect to the political dimension. Interestingly, SADCC takes a defensive posture very similar to the regionalization of Western Europe after the Second World War in its defensive posture against the East. The interdependence between the United States and Europe led to a recovery program, very similar to the support of the EEC to the SADCC region, although the connection between the European countries and Southern Africa isanother matter. There is a heavy political dimension, but apart from this SADCC could still serve as an alternative model to the traditional concept of integration on the basis of trade etc.

Graf Vitzthum: Four observations. First: Wehave talked today about economic development only and, as far as I realized, only from the North-South perspective. Wehave almost entirely omitted the West-East perspective, although development and development law would also mark an interesting subject there; nor have we dealt with the West-West perspective, i. e. with all the fascinating aspects of the promotion of economic development within a region which is homogeneaus and already highly developed. If we would broaden our perspective to these two additional areas, we would realize that economic development in the NorthSouth perspective - as Prof. Sehreuer rightly observed - has hardly been a success. In the West-East perspective, however, it is up to today almost not taking place; there is no "comrnon European house" for economic development. In the West-West perspective, finally, if you Iook at the history of the European

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Community, it is a big success. Why? I think we should be aware of the wellknown fact - at least it could be mentioned once in this symposium - that economic development is part and parcel of a broader spectrum of political relations. For the East-West perspective, of course, security aspects are at the forefront In West-Westrelations additional political features come to the forefront like the common democratic and value system. Therefore, economic development should be always discussed in combination with additional strategic and political aspects. To give an example: If you Iook at the environmental protection of the regional European seas, you could find the approach of the North Sea conferences and the attempts of the European Community to help with the state of affairs in the North Sea and to a little extent also in the Baltic Sea, which should be mentioned at any symposium in Kiel; but you could see a different approach - Prof. Vignes is a specialist on this questions - regarding the Mediterranian Sea. There, as far as the protection of the Mediterranian Sea is concerned, the economic and the environmental aspects are closely linked together. This "integrative technique" might be an approach which both for the economic development and the ecological protection of the region might be more helpful than just the better-known sectional approach, which is simply limited to economic questions.

Second observation: I would also like to deal with the concept of the common heritage ofmankind- Oscar Wilde said: "I can resist everything but temptation." Could I please have the answer of our rapporteur to the following question? First, is it really a legal principle, as you said in your presentation? Second, if so- what isthelegal content of this principle? Wehave heard from the Chair interesting remarks on the meaning of this concept, but this might be the point of view of the Chair, .not your point of view. Third question: What is, if any at all, the Iex lata content of this principle, such as it is? . Third observation: The New International Economic Order was called by the rapporteur an idealistic concept I think this thesis could be challenged. I know of some really idealistic concepts, like those Thomas Mann and Albert Einstein drew up in Princeton in 1943/44: altruistic world order visions. The New International Economic Order concept, on the other band~ was an attempt to promote national interests by introducing new legal concepts and by trying to negotiate them on global and regional Ievels. This Ieads me to my fourth and final remark. The concepts we are dealing with the technique to switch froin the universal to the regional Ievel and back to the universal or forward to a subregional Ievel - all this is the attempt to advance national interests. Regionalism, too, is a tool for the promotion of national interests, be it a national interest of those who have not bad economic development yet, be it an attempt of beati possidentes trying to fence off attempts to share in their wealth. Take the example of the Federal Republic of Germany. In the area of high technology, for example, Bonn has the choice either to co-

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operate closer within the European Economic Community, which is the regional approach, or to side by the two universalist economic powers, the United States of America and Japan, and to try to concentrate on this globallevel. Whatever we chose - it is a question of our interests: In which camp are they better served? It is not a question of a fundamental legal or institutional divergency. Regionalism is just an additional tool in the box of instruments for the promotion of national interests.

Eitel: I want to put a simpler suggestion to Prof. Schreuer, who has overwhelmed us, at least me, by his display of material. What a number of operations and institutions! If I leave aside the commercial aspects, concentrating - as our topic asks us to do - on the development, then the result of that international effort seems to be rather minimal. Why? Aren't we witnessing a world-wide struggle between the haves and the have-nots, where the have-nots are putting up demands wherever they see an opening, and where the haves give on the rare occasions only where it does not hurt? In all other cases, that is to say rather often, a way out of this deadlock is needed and, so it seems, is found in establishing procedural machinery to deal with the questions which remained unsolved. This escape into procedural solutions would then explain at least part of the rieb machinery, on the one and its poor result on the other band. This was one observation I wanted to make. Two other remarks, rather brief. One prompted by Mr Vignes, who, if I understood him correctly, doubted that there was a competition in agriculture between the Common Market agriculture and Third W orld agriculture. I think, this may be right as far as cocoa and coffee and bananas are concerned. But there is a commodity where I think this is not true, and which is of great importance, and where the competition really is a scandal, and that is sugar. I think, that our beet sugar helps push out of the market the third world's cane sugar, which result then is partly made up for by some subsidies. A last remark regarding the Law of the Sea Convention: The UN Secretariat has taken note of the fourtieth ratification, 60 are needed, and the Preparatory Commission which is preparing the Convention's entry into force, is scheduling its work to be finished by the end of 1991, because they consider that two years from now there is a fair chance of having arrived at the 20 ratifications which sofarare stilllacking. Weshall have some day, earlier or later, the Convention, whether all States around this table will be part of it or not. As far as the common heritage of mankind principle is concerned, I recall seven, eight years ago a lecture given by the former President of the International Court of Justice, Jimenez de Arechaga, who considered that that principle is already ius cogens, not only a rule of law, but ius cogens. And this in the "Heiligen Hallen" of the Max-

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Planck-Institute in Heidelberg without drawing much opposition (nor applause, for that matter).

Magiera: As we are discussing the topic of "promotion of economic development by international law", which Mr Sehreuer has dealt with so adaequately, I should like to add a few remarks on the specific means of association of developing countries with the European Communities, especially within the Lome process. I do not know, whether this process can or must be regarded as an economic success or failure - that evaluation must be left to the economists. However, I do recognize certain advantages of this association in the field of legal procedure, especially by forcing international negotiations into a legal framework. The successive conventions, which have to be renewed every five years, provide in my opinion - a basic framework for the generally difficult negotiations between developed and developing countries in the area of economic assistance, and that means for a large number of States, indeed for about half of the countries in this world by now. The renewal process every five years may be cumbersome, but it also forces a profound stocktaking periodically of the achieved results and the future possibilities on both sides, that of the developed and the developing States. Most important, it forces all partners, even if they have divergent views on developing the poorer countries, to reach a firm conclusion, a tangible result within adefinite period. No one can say, we want to negotiate forever. I think, that is one great advantage of this specific means of economic development by international law.

Hilf: First of all, I want to give full support to the critical analysis given by Mr Sehreuer, concerning the Generalized Scheme of Tariffs Preferences (GSP). I may refer to an article which has been published in January 1989, by a friend of this Institute, Prof. R. E. Hudee from Minnesota, and he has entitled his article: "Tiger, Tiger in the House." Hudee pleads for a renewal of the universal recognition of the non-discrimination principle. His basic idea is the following: If you offer GSP to a developing country, you offer a little tiger as a pet for the house. And certainly, it is difficult to resist to accepting such a tiger-baby. But what will happen in the future, when the tiger grows? Then, certainly the tiger eats up all the resources in the house, he changes the entire rule of govemment in the house, and when he has finished his business, he runs off and leaves ruins behind. This image, I think, gives support to the critical comments on the GSP, which may be dangerous under political and economic terms. On the Lome-Convention, Mr Sehreuer has raised the question of whether Lome is or should become an international organization. So far, the Community and the Lome-partners have resisted the temptation to create a new international

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organization. Mr Sehreuer has pointed out the danger of "duplication". They have limited their construction to "treaty organs" with a very positive result. lt is open to question whether the failure of the International Tin Council would have been avoided, if one bad not built up an independent new international organization, but would have forced the treaty partners to come together regularly within a "treaty organ" and manage the system during the whole time of its existence. Personally, I am not so skeptical concerning the Iimitation of the LomeConvention for a five years period. It seems to me that this is another very important success of Lome. This clause certainly has made Mr Vignes to be called "Mr Lome": If there bad been only one and final negotiation he would never have received this honorific title. This technique to build structural agreements on a tentative five years basis is positive, because it favours the preparedness of all the partners to agree to political compromises, as these compromises will be valid only for a limited time. One can come back after five years. Especially for developing countries, the feeling of independence, of being accepted as equal partners is important. lt guarantees the possibility to return with new terms. This is a positive institutional element for renegotiating the terms of the agreements which, I think, has influenced and facilitated the conclusion of all the various Lome-Conventions. Great improvement on the various sectors has been achieved. Certainly, one may have doubts as to whether there is a Iack of political security. I do not think so. Under this five years clause, the partners have agreed to a pactum de renegotiando, which certainly is binding as every pactum which exists. Justone example: The Single European Act of 1987 has another five years clause. The integration of the European Political Cooperation has to be renegotiated after five years. This clause compels already now the various governments to make up their mind, what are we going to include in the 1992-renegotiation and which other elements of reform may be attached at this occasion? Finally, I will resist comment upon the apparently unlucky paragraph 13 of the summary of Mr Schreuer. Nurober 13 is not the proper framework of which to speak about the Common Agriculture Policy of the EEC (CAP). I will not deny that I have a nurober of problems with this paragraph, but I am afraid that a deeper analysis of the role of the CAP and its impact on world trade relations is not on the agenda of this symposium.

Hüfner: I think, we all around the table agree that the present overall situation of the world economy is rather bad and quite a nurober of indicators have been mentioned on that crisis. We know that OECD statistics are extremely optimistic: They still show some positive net flows just because they do not include the interest re-payment from Third World countries. Otherwise they would have been much

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worse. We know about the increasing poverty of large segments of populations in different regions of the Third World. We heard about the failures of the Common Fund agreements as well as the buffer stock agreements. And we heard from Mr Schreuer, that there is an increasing trend away from free market principles in international trade. Now, Mr Sehreuer does not like the word "order," I assume he also does not like the word "regime," because he did not use it. Perhaps he prefers rules or mechanisms or procedures or so~ething like that. In any case, no matter what "kind of functioning" is taking place, it must be accompanied by certain measures of internationallaw. And where are they or which measures shall we propose? Even if we accept the market mechanism - and we know about the contradictions of the Sunday speeches of our weslern politicians on one side, and their actual economic policy, trade policy, on the other side - even if we accept the notion of market mechanism, then we also need some international law, some measures of international law in order to secure the functioning ofthat mechanism. And obviously, for the time being, there is a Iack of measures of international law. I think, as a non-lawyer, I am allowed to say that quite explicitly. The conclusion would be that, we first of all, have to make certain policy decisions, because - as it has been mentioned quite often - the economists do not agree upon the best way of how to restructure the world economy. Then we need certain measures of international law in order to guarantee the proper functioning of economic activities at the world Ievel. Now, the Chairman asked for some kind of efficiency analysis or cost benefit analysis. An early result is that no one affered anything. I think it is a good result on the one band, because it shows that it is extremely difficult and very arbitrary due to the Iack of appropriate methodology, and alsodue to the disagreement conceming the nurober of elements on the cost side and on the benefit side to be included. Just to give you two examples: Of course, and there I answer, at least partly, the question of Mr De/brück, one could compare certain regional arrangements with overall arrangements. One could calculate the costs of the common agricultural policy of the EC divided by the nurober of farmers, and then we know the value of each individual farmer within the Community, within this regional arrangement he has. And then Iet us compare the costs of the Stabex system, and divide them by the nurober of farmers of those ACP countries, and then we know the value attached by a regional organization to the rest of the world. Obviously, this will be in contradiction to the overall value of human dignity and of human welfare as laid down, for instance, in a nurober of United Nations documents. Another approach would be, for instance, to compare World Bank Jending volumes with the lending volumes of the regional banks. We heard a figure and we also heard that one of the major reasons for the establishment of the regional banks has been that the World Bank system is mainly controlled by the major

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contributing member countries. Now, one could assure that the Third World countries did this for political reasons, because they did not have enough voting rights of their own. However, I doubt that they founded the regional banks only because of political reasons, because within their regional banks they do the same, they have made voting regulations where the differences between the small countries and the big countries, for instance, in the African Development Bank, are much bigger than in the World Bank-if you compare Nigeria to Upper Volta or some other smaller country. So I think one of the major reasons has not been this question of voting rights, but has been to attract additional financial resources through regional arrangements. And now it becomes difficult to compare, because we do not know what would have happened if those organizations would not have been founded, whether the World Bank system would have increased at a larger scale or decreased. So, one has to analyse ex post the policies and get some approximations which it will be very difficult to estimate. But the present situation isthat the relationship between the World Bank at the global Ievel and the regional devdopment banks becomes more and more complementary, so that the major reason for founding it seems to loosing more and more weight. Schreuer: The only speaker I want to address personally, is Mr Eitel, because he posed a question directly to me. He referred to the minimum result of economic development. The problern is that even that simple Statement is not quite correct. You have to Iook at it in a more differentiated manner. The tantalizing thingisthat some countfies are rather successful in development, the newly industrialized countries. Th.is is not a criticism. lt is just to show how complex the situation really is. You also referred to the world-wide struggle between the haves and the have-nots. Selfishness - you did not use the expression, but I think you meant it - is an important driving force in human nature generally and in international relations in particular. But it is certainly not the only driving force. This would be just another one of these monocausal theories which are only partly correct, but do not embrace the entire truth. It is interesting to see that both directors of the institute expressed a certain degree of alarrn at the acceptance of regionalism in this discussion. Prof. Delbrück called for a central orientation for regional efforts. But what about the beauty in diversity, a centrat theme at this conference. Do we really need a centrat orientation or centrat organization? Prof. Wolfrum criticized the duplication that goes with regionalism, and mentioned the example of the regional development banks. A counter-argument is that smaller units are more manageable. What about the hyper-bureaucracy of the big universal organizations? There are arguments in favor of either model. I think, a more deeply rooted reason for our skepticism towards regionalism is (Mr Kewenig mentioned that yesterday) that 8 Symposium 1989

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international lawyers have a natural preference for a universal rather than a regional set-up. We are looking for a well-structured system of rules, which, of course, is much easier to find or to build in one single universalist system. But I also think that realistically we have to accept that there is a trend towards a more multi-layered system of international relations and of internationallaw. In fact, several of these layers were mentioned in the course of this discussion: There is the univeral Ievel. In fact, we also have a quasi-universal Ievel like the Group of 77 or OECD, groupings that arenot really regional, but arenot universal either. There are genuine regional groupings. There are subregional groupings. There are the nation States. Even below the nation States, we have components or provinces, which to a certain degree also conduct international relations. All these various units and sub-units interact horizontally and vertically. There was some discussion about inter-regionalism today. All this presents a rather complicated system, but it may turn out to be a more stable system. Nowadays, international relations no Iongerare exclusively a function of relations of the representatives of nation States as they used to be in the time of bilateralism. Multilateralism has slowly emerged as a generally accepted phenomenon, and now we are finding that there are more and more aspects and layers to this. Bilaterism, I think, has the serious disadvantage of being a basically fragile structure, it has dangeraus breaking points. The new structure is reminiscent of plywood or Iaminated wood, where you also have more stability through a combination of several layers: A Iaminated theory of international law, if you like.

The Progressive Development of International Law at the Universaland Regional Level Eibe Riedel*

I. lntroduction If you think or expect that after this moming's progressive pilgrimage to Canterbury I might refer to Chaucer' s sources, from where he drew the images for the Canterbury Tales, and take you on the slippery slope of Boccaccio' s Decamerone, I am afraid, you will be disappointed: It is "penitentiary exercises" all the way. Charged with the task of reviewing progressive development of international law, squeezed in between the substantial topics of peace-keeping, economic development and human rights, all of which are topics I would Iove to say something about, but I have been specifically asked not to do that, I feel quite awed.

Y ou are in for a picture full of dry bones, of doctrinal controversy, but you probably expect that after such an excellent lunch.

Amongst the many important issues that the Kiel Institute has taken up in the last decades alone, one of the key concerns has always been the scrutiny of the work of the United Nations. Structure, function, future prospects, and law-making processes of the world organization have been repeatedly analyzed. Much controverted ground has been covered in the symposia of 1974 on changes in the UN, 1 on economic co-operation in 1976, 2 on prevention of war in the context of peaceful change (1978) 3 and on possibilities for and Iimits of reform at the United Nations in 1987. 4 In all of them, standard-setting, legislative or quasilegislative activities of the world organization . have been raised and discussed. • Prof. Dr. Eibe Riede/, University of Marburg; the opinions expressed in this volume are the personal views of their authors only. (All passages placed in brackets [] were not included within the original presentation-Ed.) 1 Wilhelm Kewenig (Hrsg.), Die Vereinten Nationen im Wandel, Berlin 1975. 2 I dem (Hrsg. ), Völkerrecht und internationale wirtschaftliche Zusammenarbeit, Berlin 1978. 3 lost Delbrück (Hrsg.), Völkerrecht und Kriegsverhütung, Zur Entwicklung des Völkerrechts als Recht friedenssichernden Wandels, Berlin 1979. 4 Rüdiger Wolfrum (Hrsg.), Die Reform der Vereinten Nationen. Möglichkeiten und Grenzen, Berlin 1989. 8*

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II. Premises Proceeding from the general to the specific, and from the global to the regional, Iet me start by making a few general remarks. My topic relates to techniques of law-making in internationallaw. And that is beset by at least three shortcomings, when compared with municipallaw, as Dahm, Delbrück, and Wolfrum recently and cogently pointed out 5 that "for one, international law frequently Iacks the necessary rule density; secondly, as far as customary law is concerned, it is unformed and consequently uncertain; and thirdly, where treaties do exist, they often Iack systematic order." I need not dwell on the causes of this situation, and will restriet my comments to saying that it is the product of an international system of coexistence in the process of change towards co-ordination and to slender forms of value integration, and is still largely dominated by sovereign States. As such, international law by its very nature differs from municipal law ·in many important respects that I need not dwell upon here. Suffice it to say that internationallaw is characterized by a wide-spread Iack of effective sanctions, only rudimentary implementation methods, heavy reliance on domestic law execution, on consent and reciprocity rather than on fears of sanctions or habit of obedience by the system participants. lt also relies on recourse to ethical, philosophical, political and other Iegitimation ideas, taking the place of clear-cut decision-making structures at the national Ievel. When the law was still shaped largely by European powers at the turn of the century, it mattered little that the rules of internationallaw were often rudimentary, and haphazard. The system found its stability in the concert of fully sovereign States, free to co-operate or to remain autark if they wanted. That European concert of nations served as the underpinning to a largely hypothetical world order, forebodings of which could, however, be observed at the Hague Peace Conferences of 1899 and 1907. The relatively slender body of internationallaw, conceived of as an extension of municipal law, could be treated in much the same way. Thus, although some dispute existed, there was widespread acceptance of the sources of international law, later reflected in the catalogue of the Statute of the World Court. 6 Treaties could be seen as equivalents oflegislation; customary rules were different, but equalled their municipal counterparts doctrinally; and where these sources failed, recourse might be taken to the general principles of law. There was no urgent need to specify these principles, as they - like the whole system of existing positive legal rules - rested firmly on the traditional s Georg Dahm /lost Delbrück I Rüdiger Wolfrum, Völkerrecht, Bd. V1, 2. Aufl., Berlin/New York 1989, 83 et seq. (83) (translation by this author); seealso Reinhold Thode, International Law Commission, Entstehungsgeschichte, Organisation, Arbeitsweise und Tätigkeit (Dissertation), Kiel 1972, 192 et seq. 6 Cf Michel Virally, The Sources of International Law, in: Max Sprensen (ed.), Manual of Public International Law, London/Melboume{foronto 1968, 116-174 (140); Dahm I Delbrück I Wolfrum (note 5), 31; Otto K imminich, Einführung in das Völkerrecht, 2. Aufl., München 1983, 70 et seq. (77).

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European value system, made up of "civilized nations." Others were "civilized", too, undoubtedly not all were "Barbarians", but the Eurocenteie system prevailed. 7 Two world wars, the radical increase in the number of participating States, and, as a direct consequence, the clash of ideologies and of divergent cultural and legal traditions upset that order fundamentally. Henceforth, every rule of internationallaw bad to stand the test of universality. At the same time, increased communication and the accelerating need for technical and other co-operation in many fields, hitherto the domain of national policies and determination, both at the regional and at the internationallevel, transformed the nation-State system into one where States still play their role, but alongside and also within an international system that increasingly relativized the sovereignty of member States. In this situation, over 100 new States, freed from the fetters of colonialism, and having to meet fierce competition on the world markets, dominated by industrialized countries, jealously guarded their newly-gained sovereignty rights, and were full of suspicion as regards the old value system underlying all internationallaw, particularly as it bad never been rescinded. New principles, rules and standards would have to be developed and shaped in their view, so as to reflect basic political interests of these new nations. And it mattered little, whether the new Standards really served their own interests, as long as their anti-colonialist thrust could be made out. [The almost hallowed principle of self-determination, stemming from the decolonization declaration of 1960, 8 and reiterated a dozen times since, and taken up in treaties such as the UN human rights covenants, bears witness to those endeavours. 9 As far as decolonization is the aim of that principle, no real conflict exists any longer. 10 Problematical remains the second Eibe Riede/, Theorie der Menschenrechtsstandards, Berlin 1986, 243. s Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) of 14 December 1960. · 9 Cf. lost Delbrück, Selbstbestimmung und Völkerrecht, in: Jahrbuch für Internationales Recht 13 (1967), 180-209 (197); idem, Das Selbstbestimmungsrecht der Völker im Völkerrecht der Gegenwart, in: Vereinte Nationen 25 (1977), 6-10 (7); seealso Günter Decker, Das Selbstbestimmungsrecht der Nationen, Göttingen 1955, 338 et seq.; Hermann Raschhofer, The Right of Self-Determination from the Western Viewpoint, in: Selbstbestimmung in Ost und West (1963), 21-32 (29); Muhammed Aziz Shukri, The Concept of Self-Determination in the United Nations, Damascus 1965, 338-350; Mahomed Khader Nawaz, The Encounter between Colonialism and Self-Determination in the Historical and Legal Perspective, in: Ausgewählte Gegenwartsfragen zum Problem der Verwirklichung des Selbstbestimmungsrechts der Völker, Bd. II, München 1965, 4362; U. 0 . Umozurike, Self-Determination in International Law, Harnden 1972, 177 -203; Kar/ Doehring, Das Selbstbestimmungsrecht der Völker als Grundsatz des Völkerrechts (with English Summary), in: BDGVR 14 (1974), 1-56 (47); Rupert Emerson, SelfDetermination, in: AJIL 65 (1971), 459-475; for a summary of the various positions held, cf. Daniel Thürer, Das Selbstbestimmungsrecht der Völker, Bern 1976, passim; Manfred Nowak, UNO-Pakt über bürgerliche und politische Rechte und Fakultativprotokoll, CCPR-Kommentar, Kehl I Straßburg I Arlington 1989, Art. 1, 6 et seq. 10 Walter Schümperli, Die Vereinten Nationen und die Dekolonisation, Bern 1970, 143 et seq., seems to be one of the very few denying that notion of the force of legal validity. 7

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limb of that principle, its scope in relation to self-determination proper. Doubts remained as to what constitutes a "people", under what circumstances rights of secession (external self-determination) and under what conditions merely minority status, or autonomy claims (internal self-determination) would ensue. 11 As decolonization draws to a close at the end of this century, those issues will remain, and might yet upset some of the decolonized nations that bad zealously voted in favor of self-determination, but are now faced with secession claims or original self-determination claims of their own right, such as Morocco in the Western Sahara dispute. 12] Despite obviously hasty law-making efforts, the main lines of policy of the newly independent States took shape: Meeting basic economic needs, creating solidarity obligations for the beati possidentes of the Northern hemisphere, and furthering, hopefully, the establishment of a New World Economic Order and other World Orders in the spirit of distributive justice, as we saw this morning, were the values and battle cries that dominated discussions in many fora of the UN system, and still do. The "haves" of the northern hemisphere find themselves confronted with these claims of "have nots", and with the fact that the poverty gap between rieb and poor increases factually rather than decreases. As the political strategy of the Third World is to grab at any straw that promises economic or social progress for them, even technical topics such as law-making are viewed from this perspective. As a result, new rules, principles or standards will only be agreed upon, if they contribute to this overriding concern. Yet it is one of the peculiarities of the present global system that it proves to be so inter-related, interdependent and co-variant by now that no State can seriously consider to stay outside, or afford to withdraw from it. And this applies to all States, whether developed, underdeveloped or developing. This creates a new need for co-ordination, co-operation and compromise. 13 Old principles and standards are reassessed for their worth, and are built into new formulations of internationallaw. Needless to say, that in this context, the treaty avenue of law-making is still the preferred route, because here, all depends on specifically ad-hoc consented rules.

u Cf Eibe Riede!, Confrontation in Western Sahara in the Light of the Advisory Opinion of the International Court of Justice of 16 October 1975: A Critical Appraisal, in: GYIL 19 (1976), 405-439 (426), with further references. 12 Cf Maurice Flory, L'Avis de Ia Cour Internationale de Justice sur le Sahara Occidental, in: AFDI 21 (1975), 253 -277; Thomas Franck, The Stealing ofthe Sahara, in: AJIL 70 (1976), 694-721; Mark W. Janis, The International Court of Justice: Advisory Opinion on the Western Sahara, in: HILJ 17 (1976), 609-621; Jean-Fram;ois Prevost, Observations sur l'avis consultatif de Ia Cour Internationale de Justice relatif au Sahara Occidental, in: Journal de Droit International 103 (1976), 831-862; B. 0 . Okere, The Western Sahara Case, in: ICLQ 28 (1979), 296-312. 13 Cf generally Wolfgang Friedmann, The Changing Structure of International Law, London 1964, passim; from a political science point of view, cf Clive Archer, International Organizations, London/Boston 1983, 22.

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The kaleidoscope of dashing national interests at the universal Ievel at the sarne time prompted a fundamental change of outlook, affecting the methods and tools of the system. During the League of Nation's period, legal categories and criteria ranked high, whereas nowadays international relations predominantly rely on political strategies. The declining use of the World Court until recently is merely indicative ofthat tendency. But precisely because international organizations, when compared with national legal orders, function so very differently, international relations soon developed a much more subtle, differentiated and integrated system of law-making mechanisms, which proved to be adaptable to the changing structure of the whole system of international law. So one of the main points of my report will be to show that the decreasing legalist approach to problems of the international community was offset in the end by Substitutes, defying clear-cut legalistic categorization, yet fulfilling similar functions. With these much debated and controverted premises in mind, I shall now examine some ofthe law-making processes and mechanisms, said to develop international law "progressively", and I shall not provide you with a definition of what is "progressive."

111. Progressive Development at the Global Level The decline ofthebelief in legislative powers of international organizations, as previously propagated by such eminent jurists as Triepel, 14 Hudson, 15 Schükking, 16 Jenks 17 and many others since, led to the realization that State codification conferences or decision-making by international organizations, despite their undisputed relevance and importance, did not amount to acts of representative organs of world public opinion or of a "world parliarnent" and "international legislator", as Schücking would have us believe. Furtherinore, none ofthe numerous proposals for legislative law-making, such as, for example, Jenks' suggestion of creating an international bureau for draft legislation received support from the community of States, as Klaus Dicke 18 in a thorough analysis recently and rightly pointed out. Moreover, the analogy to legislation at the national Ievel was flawed, owing to lacking democratic procedures and definitely spelled out 14 Heinrich Triepel, Völkerrecht und Landesrecht, Leipzig 1899; see also Luzius Wildhaber, Multilateral Treaties, in: EPIL 7 (1984), 480-484. 15 Manley 0 . Hudson, The Codification of International Law through the League of Nations, New York 1923. I6 Watther Schücking even propagated the League of Nations as a true world parliament, cf. Kar[ Josef Partsch, Die Ideen Wa1ther Schückings zur Friedenssicherung, in: Walther Schücking-Kolleg, No. 3, Kiel 1985, 10. 17 C. Wilfred Jenks, The Need for an International Legislative Drafting Bureau, in: AJIL 39 (1945), 163-179; idem, Law in the World Community, London 1967. Is Klaus .Dicke, Völkerrechtspolitik und internationale Rechtsetzung. Grundlage Verfahren - Entwicklungstendenzen, in: Zeitschrift für Gesetzgebung 3 ( 1988), 193224, with further references. ·

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legislative powers. Viewed from this angle, law-making at the internationallevel, foremost within the UN family, would have to be much less ambitious, at any rate different. Looking at the various modes of developing internationallaw, we can distinguish a number of (1) institutional mechanisms and (2) normative textures. I will be brief on the institutional side. 1. lnstitutional Mechanisms Foremost amongst the institutional mechanisms for the development of international law is the treaty-making process of the traditional type, i. e. conclusion of agreements between subjects of international law on a multilateral, regional or bilateral basis. Their total number is estimated at about 40,000, and nearly 15,000 of them are deposited with the Secretary-General of the United Nations, as Mr Simma has pointed out. 19 These treaties form the stock from which modern international law draws many of its strongest impulses. The contents of those treaties vary so niuch that they defy useful classification. However, for the purposes of this report, it should be kept in mind that those treaties can be innovative, law-creating, too; they may also be declaratory of existing obligations, or merely extending the life-span of their operation; but they can also terminate existing obligations; 20 and frequently, a mix of those functions will be utilized, as Mr Schreuer 21 recently wrote. While any assessment of progressive development at international law should bear in mind this major source, no möre will be said of it in this connection. More institutionalized forms of treaty-making are to be found within the UN family of organizations. Brought up in the main committees of the General Assembly, or in the specialized agencies, they can take several shapes. They may either initiate State conferences for the purpose of codification by intergovernmental delegations, to be effected outside the ambit of the organization, or alternatively, may be organized inside the institutional Setting. In the latter case, the treaty objects will be more suitable for finding international consent, and the contents of the treaties will often be highly technical in nature and 19 Alfred Verdross I Bruno Simma, Universelles Völkerrecht, 3. Aufl., Berlin 1984, 335. zo For this position, and the following remarks, see the thorough analysis by Kar/ Zemanek, Codification of International Law: Salvation or Dead End?, in: International Law at the Time of its Codification: Essays in Honour of Roberto Ago, Milano 1987, 582-601, particular1y at 582 to 599 et seq. 21 Christoph Schreuer, Die Bedeutung internationaler Organisationen im heutigen Völkerrecht, in: Archiv des Völkerrechts 22 (1984), 363-404 (379); idem, The Impact of International Institutions on the Protection of Human Rights in Domestic Courts, in: Israel Yearbook of Human Rights 4 (1974), 60-88 (78) and see genera/ly Jochen A. Frowein, Der Beitrag der internationalen Organisationen zur Entwicklung des Völkerrechts, in: ZaöRV 36 (1976), 147-167 (150).

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cornplicated, yet essentially less controversial. Moreover, the subject-rnatters under review will have strong transnational, intra-organizational or regulatory character. The more technical such treaty matters prove to be, the more likely will be a total delegation of such treaty-making power to one of the established specialized agencies of the world organization, with the attendant effect that unanimity requirements ofthe international treaty-making process will be abated. In fact, talk of quasi-legislative acts has its strongest roots at this level, for majority or weighted voting procedures come close to parliamentary processes here; 22 particularly when internal rules or external acts of the organization itself are at issue. [Robert Riggs 23 has neatly summarized the conditions which have tobe met for States to forego their unanimity trumps as follows:

(i) the organizational function must be highly technical in nature, and dependent on expert advice, readily available in the organization; (ii) the function to be fulfilled must be restricted in scope, covering only a

narrow area of public policy;

(iii) easier periodic revision possibilities rnust be available for the purpose of meeting changed conditions of science and technology, requiring quick normative reaction, much like delegated legislation at the rnunicipal level; (iv) a strong consent basis must support the need for universal application of the subject matter, requiring uniform rules amongst [S]tates so affected; (v) when uniformity is desired, but not strictly necessary, the organization's acts rnay take the form of recornmendations instead.] The most important instrurnent of law-making at the universal Ievel, however, is the codification work of the International Law Commission (ILC). Here again, only cursory remarks will be rnade, as you all are familiar with this institution. 24 22 Cf Derek W. Bowett, The Law of International Institutions, 4th ed., London 1982, 140 et seq., 410; Verdross I Simma (note 19), 404 et seq.; lgnaz Seidl-Hohenveldern, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften, 4. Aufl., Köln 1984, 162 et seq. 23 Robert E. Riggs, The United Nationsand the Development of International Law, in: Brigham Young University Law Review (1985), 411-452 (448). 24 For the following, see Nagendra Singh, The United Nations and the Development of International Law, in: Adam Roberts I Benedict Kingsbury (eds.), United Nations, Divided World, Oxford 1988, 159-191, 175 et seq.; Zemanek (note 20), 582 et seq.; idem, Die Bedeutung der Kodifizierung des Völkerrechts für seine Anwendung, in: Festschrift für Alfred Verdross, München/Salzburg 1971, 565-596. The Significance of International Organizations in Current International Law, in: Law and State 38, 63103, tninslation from the same (note 21) at 69 et seq.; Robert Y. Jennings, The Progressive Development of International Law and its Codification, in: BYIL 24 (1947), 301-329; Hersch Lauterpacht, Codification and Development of International Law, in: AJIL 49 (1955), 16-43; Erik Castren, De Ia codification du droit international, in: Report of the 52nd ILA Conference at Helsinki, London 1966, 11 -25; Richard R. Baxter, The Effects

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The ILC took up its work in 1949, specifically entrusted to carry out the mandate laid down in Article 13 (1) (a) of the UN Charter, namely that "The General Assembly shall initiate sturlies and make recommendations for the purpose of ... encouraging the progressive development of internationallaw and its codification." This task was specified in more datail in the Statute attendant the International Law Commission. Accordingly, for the purpose of that Statute, progressive development means, and here I quote Article 15: " ... the preparation of draft conventions on subjects w hich have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of [S]tates." Codification, by contrast, means- again Article 15: "the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrines." The formulation of those tasks, although substantially altered, was much influenced by the proposals made during the League of Nations period, after the abortive Codification Conference of 1930. The salient passages of the resolution of 1931 concerning the procedure for future codification conferences used the formula: "codification with the object of drawing up conventions which will place the relations of [S]tates on a legal and secure basis without jeopardizing the customary international law which should result progressively from the practice of [S ]tates and the development of international jurisprudence" (emphasis added). From the very beginning, the ILC neglected the seemingly clear-cut, differentiation just outlined between codification and progressive development, 25 at first probably only for pragmatic reasons: Foraspecial rapporteur had tobe appointed each time a topic concerning "progressive development" was affected. The Commission, however, appointed rapporteurs for every topic, and the distinctions between the two tasks triggering off different procedures, soon began to be blurred. From a legal point of view, some confusion exists amongst comparatists as to what the exact meaning of "codification" is. In the common law world, as you know, codification is contrasted with consolidation. Codifying statutes amount to a 'restatement' of the law in a particular field, embracing not only previous statutory provisions but also formulations of common law doctrine derived from case law. Consolidating statutes, on the other band, assemble and re-enact a nurober of antecedent legislative provisions 26 and might be characterized as "tidying up"-statutes. Thus, 500 years of case law in the field of English land law prior to 1925 was consolidated in the Law of Property Legislation between 1922-25. of Ill-Cönceived Codification and Development of International Law, in: Recueil d' etudes de droit internationalen hommage aPaul Guggenheim, Geneve 1968, 146- 166; Christian Tomuschat, Discussion contribution, in: Wolfrum (note 4), 214 et seq. 25 See Thode (note 5), 256 et seq.; Sir /an Sinclair, The International Law Commission, Cambridge 1987, 112 etseq. and 138 et seq. 26 Cf Sir Carleton Kemp Allen, Law in the Making, 7th ed., Oxford 1964, 476 et seq.

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In the civil law tradition, on the other band, other distinctions prevail. 27 The mostfundamental one affects the concept of a code. Such a codenot only restates, "declares" existing principles and rules of law, but generalizes, systematizes and, in so doing, may - and invariably will - incorporate completely new rules and principles. lt works with the assumption that the law in that particular sphere is all-embracing, covering all real and potential conflict situations. In addition, the process of deciding cases follows deductive principles of interpretation, whereas the common law tradition argues from case to case inductively. Substantially, the ILC has been faced with topics involving the creation of new and revision of old law, as weil as with restating existing customary law rules, and was never too concemed with the actual nature of the norms so created. Moreover, the drafting history of Article 13 of the UN Charter shows, that originally, revision of old law was envisaged as a separate category, but later was dropped in favor of the more comprehensive formula "progressive development." 28 Natorally, the pain-staking analysis by special rapporteurs, as weil as the Commission' s final explanatory reports and commentaries fully explored those issues, but the outcome usually was a blend of all three types of norms. Seen in this perspective the ILC's work follows both the civil law and the common law paths, aware that the General Assembly will strongly favor "progressive development" based on generalized ·deductive principles. If the work of the ILC is reviewed, it is, on the whole, a success story, 29 despite some set-backs. Thus, politically controversial topics generallywill not be pursued by the ILC, but left to other institutions. The long Iist of ILC reports since 1949 easily reveals, that the Commission was most successful in those fields of codification where the political controversies could best be contained, and where the declaratory function of law-making was most prominent, in other words, where "codification" in the English sense predominated over "progressive development." Foremost amongst these topics were the draft conventions on diplomatic and consular relations, on special missions, the Law of Treaties, on succession of States in respect of treaties, and on treaties between States and international organizations, to name but some. In all these and other examples, the record of the ILC has been characterized as one of "solid, but unspectacular achievement" 30 owing to the fact that the Commission generally adopts a "low-profile, technical-legal approach." 31 Such remarks do not, however, fairly describe the true importance of the codification work of the ILC such as the Vienna Convention on the Law ofTreaties, where the progressive 27 Cf Kurt Hanns Ebert, Rechtsvergleichung, Bem 1978, 93 et seq.; Wolfgang Fikentscher, Methoden des Rechts, Bd. II, Tübingen 1975, 111 et seq.; Konrad Zweigert I Hein Kötz, Einführung in die Rechtsvergleichung, Bd. I, Tübingen 1971, 321. 28 Ruth B. Russell I Jeannette E. Muther, A History of the United Nations Charter, Washington, D. C. 1958, 431. 29 Sindair (note 25), 145; Dahm I Delbrück I Wolfrum (note 5), 88. 30 Riggs (note 23), 419. 31 Edward McWhinney, United Nations Law Making, New York 1984, 104.

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development provisions, such as those on the effects of ius cogens, 32 of peremptory norms of international law, introduced a considerable amount of dynamism into the body of essentially codified customary rules. Put negatively, as Sir Francis Va/lat pointed out, "highly technical, scientific and economic matters and highly-charged political questions, and topics which fall within the function of UN Specialized Agencies have little chance of being examined by the ILC." 33 With the changed composition of the Commission and ensuing greater politization of deliberations, its future work will probably become more difficult, especially as most of the more uncontroversial or easy technical topics have been codified by now. 34 Remaining topics, such as the ones on crimes against the peace and security of mankind, or on liability for injurious consequences arising out of acts not prohibited by international law (risk liability), and even State responsibility, although very technical, is highly fraught with political implications. All the ILC's work has enriched the sources discussion of international law, either directly, by finding its way into conventions, or indirectly, by supporting evidence of opinio iuris or presenting reliable compendia of State practice in specific issues, and therefore deserves a prominent, but not the only place amongst the institutional devices of law-making at the universal Ievel. While the need for codification was acknowledged at the universal Ievel without much debate, accepted almost as a fact of life, for reasons given at the very beginning, the UN increasingly convened special codification conferences to deal with those issues requiring urgent attention which the ILC or member States regard as being too political or controversial in nature to be left to independent legal experts - and this despite repeated warnings by bodies like the International Law Association or the Institut de Droit International 35 that overzealous codification might weil be counter-productive, by failing to produce acceptable Standards rea/ly solving the problems, and meanwhile might destroy the existing slender body of customary rules. Unobtrusive, yet generally accepted conventions were elaborated where consolidation issues were codified, where essentially harmonization and unification aims, rather than progressive development were at stake - and I need not go into that here. Apart from these activities highly controversial and politically charged matters in the fields of peace-keeping and international economic relations were tackled, as we saw yesterday and this morning. That stream of codification also seized the law of the sea. 32 Cf instead of many the recent study by Lauri Hannikainen, Peremptory Norms (ius cogens) in International Law, Helsinki 1988; and seealso Jerzy Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, Vienna/New York 1974; B. G. Ramcharan, The International Law Commission, The Hague 1977, 106, 147. 33 Sir Francis Val/at, International Law Commission, in: EPIL 9 (1986), 183-191 (189). 34 Cf Christian Tomuschat, Discussion contribution, in: Wolfrum (note 4), 214 et seq. 35 Thode (note 5), 379; Sindair (note 25), 144 et seq.

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And here a diplomatic conference under the auspices of the UN produced a vast body of rules, consisting largely of restatements and tidying-up or even "mopping up" of conventional and customary law, but also introduced areas of progressive development, such as rules referring to the common heritage of mankind, the regime of deep-sea mining, or marine environment law, the Exclusive Economic Zone, to name but some such issues. With less self-restraint than the ILC would practice, codification of existing and progressive development of new rules would be intermingled with few feelings of compunction, and misgivings of some delegations would be submerged in the obfuscating consensus procedure, substituting clear-cut votes. Critics of "progressive" law-making at international codification conferences will invariably point out that this type of large-scale codification diplomacy suffers from inbred defects: the pressures of time, the heterogeneity of the participants' interests, the relative inflexibility of the "consensus-seeking machine", the ardent search for compromise formulas, necessarily diluting the desired regulative contents, sometimes producing haphazard, premature texts and again Bruno Simma in this connection cogently observed that drafting unhappily often begins before the real issues have actually been properly debated all this is geared to saving a codification project that might otherwise founder on the rocks of national interest. 36 lt is submitted that the price paid for this is often too high. Thus, the Law of Sea Conventions of 1958 still prepared by the ILC, and adopted under high pressure of success, for instance incorporated vague and dilatory formulas (dilatorische Formelkompromisse as it is said in German) as regards the continental shelf that really served no purpose at all, except for postponing necessary decisions, and simply dynamized State practice and the rapid development of intertemporallawY Needless to say, the new Law of the Sea Convention of 1982, despite its merits, suffers from similar defects. The fate of codification conferences outside the ambit of the world organization, such as the one on developing humanitarian law from 1974-77 at Geneva, simply followed this pattem. And that is no surprise when one bears in mind that the actors were essentially the same, namely States. Thus, the fate of the 1977 Protocols additional to the Geneva Conventions of 1949 - despite years of concentrated expert inter-govemmental debate - in the final stages of negotiation were under similar pressures as the protracted law of the sea codification process, admittedly more than twice as long, was in the end. Conceivably, the Protocols would have benefitted, if the question of applicability of their provisions to nuclear armsbad been left out for separate determination (in particular Part IV, chapters II and 111 ofProtocol 1), obviating the interpretive declarations by nuclear Verdross I Simma (note 19), 377 et seq. For an overview and general assessment see Rudolf Bernhardt, Custom and Treaty in the Law of the Sea, in: RdC 205 (1987N), 251-330 (291 et seq.), regarding the continental shelf. 36 37

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powers upon signature, 38 or if the highly debated question of extending the scope under Article 1 (4) of Protocol I to Iiberation movements, thereby internationalizing their status, and conjuring up the just war concept, had been omitted. 39 True, there were very good doctrinal and political reasons, too, for extending the scope of Protocol I to both issues in this manner, as the primary object of both Protocols unquestionably was to enhance the humanitarian reach by covering all situations of armed conflict where the civilian population needs protection, irrespective of all other legitimacy questions. And yet, from a codification point of view - such highly debated fonnulas create the illusion of consent, where in reality dissent remains. The bill for such progressive development invariably is presented when it comes to implementation. A high price will then have to be paid for open or tacit dissent, or even for ambiguity. States will be very reluctant to ratify and to swallow huge portions of progressive development, if those innovative standards are pushed through regardless. The fate of the Law of the Sea Convention or of the Additional Protocols to date, although that may change, bear witness to this. If progressive development cards are overbidden, they put in jeopardy the entire codification effort, and all they will have done is to reduce their results to the Ievel of subsidiary sources, mere evidence of existing law, if they are not neglected altogether. Conversely, if the codification conference opts for the standard representing the lowest common denominator, the political aims of the eventual treaty will be betrayed and in human rights law that would be fatal. Thus, for example, the post Chernobyl treaties under environmentallaw, hectically elaboratedunder the auspices of the IAEA, although certainly beneficial in their own right, only produced infonnation duties, 40 thereby omitting or even evading major issues, for which political consent obviously was lacking. The situation is alleviated to some extent by the method with which reservations to multilateral treaties may be allowed. 41 Such loop-holes may be necessary for preserving majority consent for progressive development provisions, and may take many, often ingenious fonns, such as "opting out" or "contracting out" provisions in treaties stemming from specialized agencies like the ILO, but they, too, are not gratuitous: The 38 Cf Horst Fischer, Der Einsatz von Nuklearwaffen nach Art. 51 des I. Zusatzprotokolls zu den Genfer Konventionen von 1949 (Dissertation), Berlin 1985, 129 et seq., taking the view that they cannot exclude the range of applicability to nuclear weapons' effects. 39 Christian Koenig, Der nationale Befreiungskrieg im modernen humanitären Völkerrecht (Dissertation), Frankfurt am Main 1988, passim. 40 International Atomic Energy Agency, Final Document. Resolutionsand Conventions, 1st Spedal Session ofthe General Conference 24-26 September 1986; Convention on Early Notification of a Nuclear Accident, 26/9/1986, in force since 26 October 1986; Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 26/9/1986, in force since 26 February 1987. 41 Pierre-Henri Imbert, Les reserves aux traites multilateraux, Paris 1978; Verdross I Simma (note 19), 466 et seq.

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intended function of the codification to provide a clear and coherent normative network transforms into one where the net is replaced by a pure patchwork of ratifications, where the true extent of Obligations may be become difficult to discern [ILO conventions and the European Social Charter with a general matrix and exception filters are relevant cases in point 42]. Although the massive codification waves and bias in favor of conventional law-making in the last few decades almost drowned custom - that other major source of international law - it has survived: Swan songs by conventionalists that the role of custom would rapidly decrease, as more and more fields of law were ploughed and codified, obviously were rash and premature. Despite all codifying, large areas of law-making remain, where all we have in terms of binding rules is a few signposts of custom or general principles of law. Paradoxically, the numerical explosion of treaty law also enhanced the role left for customary law. As Bleckmann and others have shown, customary rules will often crop up soon after treaties are in force, or even before that date: 43 where in a given controversy between two States only one has ratified the other invariably faces the claim that an obligation already exists, notwithstanding the fact of nonratification, because the obligation in question either simply declares and reiterates existing custom or has quickly developed into a new customary rule ("instant" or "pressure-cooked" international law), 44 so that non-ratification merely precludes a duty under treaty law. This situation arose soon after the adoption of the Law of the Sea Conventions of 1958/60, as regards the Iimits of the territorial sea, and more dramatically 42 Cf Egbert Fried, Rechtsvereinheitlichung im Internationalen Arbeitsrecht, Frankfurt am Main 1965; seealso Nicolas Valticos, International Labour Law, Deventer 1979; Riede/ (note 7), 298 et seq. 43 Albert Bleckmann, Grundgesetz und Völkerrecht, Berlin 1975, 53 et seq.; idem, Grundprobleme und Methoden des Völkerrechts, Freiburg 1982, 110 et seq. (120); Dahm I Delbrück I Wolfrum (note 5), 55 et seq.; Christoph Schreuer, Recommendations and the Traditional Sources of International Law, in: GYIL 20 ( 1977), 103- 118 ( 107); Krzysztof Skubiszewski, Resolutions of the U. N. General Assembly and Evidence of Custom, in: Essays in Honour of Roberto Ago (note 20), 503-519 (512); Bernhardt (note 37), 265 et seq.; Verdross I Simma (note 19), 345 et seq.; for the recently changed Soviet doctrine on the subject see, inter alia, V. S. Vereshchetin I G. M. Danilenko, Cultural Pluralism and International Law, in: GYIL 29 (1986), 56-67; Gennadi M . Danilenko, The Theory of International Customary Law, in: GYIL 31 (1988), 9-47 (46), with the sociological Statement that "custom, as a rule, Ieads to a much lower degree of co-ordination of the positions of States as compared to treaty law-making", at 14; see also Theodor Schweisfurth, Das Völkergewohnheitsrecht - verstärkt im Blickfeld der sowjetischen Völkerrechtslehre, in: GYIL 30 (1987), 36-77, especially 41 et seq., 48, and 56. 44 Verdross I Simma (note 19), 358; Robert Y. Jennings, General Course on Principles of International Law, in: RdC 121 (1967/11), 323-605 (334); Clive Parry, The Sources and Evidences of International Law, Dobbs Ferry 1965, 59 et seq.; Bruno Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts, München 1970; Zemanek, in: Festschrift Alfred Verdross (note 24), 565 et seq.; Virally (note 6), 116 et seq.; Riede/ (note 11), 426.

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still, is happening again with the 1982 successor treaty. Whether the package deal-philosophy of the 1982 Convention will ultimately prevent the emergence of truly "progressive" customary rules, is an open question 45 (that others, more expert in this room, may answer), but there can be no doubt that as time goes by, non-signatory States will find it increasingly barder to prevent that in the guise of spontaneous, pressure-cooked custom, elements of progressive development will be smuggled in amongst the 95 % or so of customary rules purely declaratory of custom. And yet, in terms of progressive development of international law, these will only be marginal effects, because the components of custom will always require most careful scrutiny counter-productive to progressive development (i. e. demand clear evidence of State practice, opinio iuris, and consensus ad idem - the conviction that the practice at issue does actually conform with the legal conviction). The cumbersome methods of proof and the essentially conservative spirit surrounding the establishment of customary rules clearly stand in the way of progressively developing new rules by this method. If at all, it might find its way into the niches left by codification treaties that set up so-called "objective regimes" or "normative treaties" (traites-lois by contrast to the usual traites-contrats) such as the Arctic or Antarctic regimes, outer space, the remaining high seas or international river regimes or the projected regime for non-navigational uses of watercourses. 46 In terms of progressive development, custom thus will remain a source just trickling, not streaming. Alongside the sources reviewed so far, judicial pronouncements by international courts and tribunals should also be mentioned briefly.[Admittedly, their role as subsidiary sources and auxiliary means of fumishing evidence of the existence of customary rules is limited in theory, as well as in practice. Fewer and fewer disputes have been decided by recourse to this method of conflict resolution until most recently. Yet the relatively small number of cases is inversely proportional to the truly astounding persuasive authority attached to such dicta. 47 ] As far as progressive development of intemationallaw is concemed, a distinction has to be drawn between contentious and non-contentious cases. Progressive development, I would submit, generally arises only in non-contentious matters, i. e., when advisory opinions are handed down by the ICJ. For in contentious cases, States generally and usually will only accept jurisdiction - leaving aside the optional clause for this purpose here - when they have good grounds for 45 From the abundant literature, cf only Bernhardt (note 37), 265 et seq. and 275 et seq.; seealso Kar/ Zemanek, Majority Rule and Consensus Technique in Law-Making Diplomacy, in: R. St. J. McDonald I Douglas M. Johnston (eds.),. The Structure and Process of International Law, The Hague/Boston 1983, 857-887 (871 et seq. and 878); G. J. H. van Hoof, Rethinking the Sources of International Law, London 1983, particularly at 180 et seq. 46 On objective regimes, see Eckart Klein, Statusverträge im Völkerrecht, Berlin I Heide1berg I New York 1980, passim. 47 Daniel PatrickO'Connell, lntemationalLaw, Vol. I, 2ded., London 1970,31 et seq.

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the belief that the court or tribunal will state the law as it stands, rather than surprise the litigants with new principles of law, progressively developed. In other words, jurisdiction will be accepted only, if States can be reasonably sure that predictability and certainty of the law will serve as overriding principles in the court's pronouncements. For these reasons contentious proceedings at the international level always smack of conservatism, much to the regret and suspicion of many developing nations, as the Ethiopia-Liberia-South West Africa opinion showed; 48 for existing rules are to be applied by the process of interpretation, and nothing eise. Law in its static functions will, therefore, tend to be emphasized. 49 Needless to say, the outcome of that process nevertheless sometimes will contain sufficient elements of surprise, as the Nottebohm case ("genuine link of nationality") on the one hand 50 and later the Barcelona Traction case 51 on the merits ("nationality of the corporation overriding the genuine link of the nationality claim of Shareholders") clearly demonstrated. Methodologically, the exclusion of contentious cases from the range of progressive development may weil be questioned. Much will depend on how one qualifies the interpretative function of judges as such. This issue can not be pursued here, simply because progressive development can be harvested more easily from advisory opinions. Thus, elements of progressive development can be read into the "sacred trust" concept postulated in the ICJ's Namibia opinion of 1971, 52 based as it was on numerous pronouncements of UN institutions, or the same court's elaboration of the principle of self-determination criteria in the Western Sahara opinion in 1975, 53 based on the acceptance of rather limited terms of reference, defined by resolution of the UN General Assembly, and again supported 48 South West Africa Cases (Ethiopia v. SouthAfrica, Liberia v. SouthAfrica) Second Phase, Judgment of 18 July 1966, ICJ Reports (196/6), 4 et seq. Fora scathing critique see Wolfgang Friedmann, The International Court of Justice and the Evolution of International Law, in: Archiv des Völkerrechts 14 (l969nO), 305-320, at 320: " ... There may be times when it is better to be bold, at the risk of complications and perhaps even defiance, than to turn away from difficult decisions by such devices as the majority applied them in the second South West Africa Case"; see general/y Eckart Klein, South West Africa I Namibia (Advisory Opinions and Judgments), in: EPIL 2 (1981 ), 260-270. 49 Riede/ (note 11), 429 and 431 et seq. so Notlebohm case, Second Phase, Judgment, in: ICJ Reports (1955), 4-65; cf Hans von Mangoldt, Nottebohm case, in: EPIL 2 (1981), 213. s1 Barcelona Traction, Light and Power Co., Ltd., Second Phase, Judgment, in: ICJ Reports (1970), 3-357; cf Cynthia D. Wal/ace, Barcelona Traction-case, in: EPIL 2 (1981), 30-33. 52 Legal Consequencesfor States ofthe Continued Presence ofSouthAfrica in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), in: ICJ Reports (1971), 16-345; Cf Klein (note 48), 267 et seq. 53 Western Sahara, Advisory Opinion of 16 October 1975, in: ICJ Reports (1975), 12-176; cf Karin Oellers-Frahm, Western Sahara (Advisory Opinion), in: EPIL 2 (1981), 291-293; Riede[ (note 11), with further references.

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by citation of many other resolutions and declarations, before the Human Rights Covenants of 1966 even entered into force. In advisory opinions, the Court can more readily pay regard to the dynamic functions of law, as its dicta leave all the consequences to the requesting body. 54 A passage like the following would hardly ever be found in contentious cases, and here I quote: " ... The Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law . . ."55 or: "These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concemed. In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore." 56 Impressive as such case law might be for the proof of progressive development of intemationallaw, its advantages and disadvantages are obvious. [Judge Dillard in bis separate opinion to the Western Sahara case pinpointed the issues involved, before concurring with the majority opinion, saying: "As is weil known ... the problern has elicited conflicting views . . . At one extreme is the contention (that even non-binding resolutions) when similar in content, voted for by overwhelming majorities and frequently repeated over a period of time may give rise to a generat opinio iuris and thus constitute a norm of customary intemationallaw." (Accordingly, self-determination is tobe) "an operative right in the decolonization of non-self-goveming territories. At the opposite pole are those who, resisting generally the law-creating powers of the General Assembly, deny that the principle has developed into a 'right' ... or that the practice of decolonization has been more than an example of a usage dictated by political expediency or convenience and one which, in addition, has been neither constant nor uniform". 57] At this point, the role of publicists for progressive development would also have to be mentioned. But I shall not do so. [I shall only remind you of Hugo Grotius whose concept of the freedom of the seas in bis time was no more than a contested promise, an ideal to be accepted only very much later. So there

54 55

56 57

Riede/ (note 11), 433. Western Sahara case (note 53), 32. lbid., citing the Namibia case 1971 (note 52), 31. Judge Dillard, Separate opinion, Western Sahara case (note 53), at 121.

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definitely is roorn for progressive development there, too, within the bounds of Article 38 (1) (d) of the ICJ-Statute.] Nor will I open Pandora's box of the rote allotted to countless resolutions, declarations, charters, codes of conduct, and other programmatic utterances of international institutions and of subsidiary bodies and some of which we have already discussed. If the issue of their legal validity is left aside, they certainly may constitute progressive development - but whether they represent only development of international relations rather than of international/aw will depend entirely on the definition one is willing to accord to international law as such. 58 2. Normative Texture

This takes me immediately to the normative texture present at the universal Ievel. Progressive development of international law is produced by codifying treaties within and without the UN, and its specialized agencies and subsidiary organs. lt finds its way also into ILC draft conventions, normative treaties establishing objective regirnes, as I said, and in the nature of political, ethical, social and economic parameters, progressive development of international law shapes much of the standard-setting activities of the UN system. Many a binding treaty had its humble beginnings in an Assembly resolution, later reiterated, specified, and dignified by a declaration, before being put to a codifying conference, as with the Guter Space Treaty, for example. 59 Too much time, it is submitted, has been spent on the isolated and one-dimensional discussion of the legal validity of such documents. If seen as standards for the development of international relations, or as legal documents of imperfect obligation, ready for application when the political climate is right, or when utilized as combination Standards or "zebra codes", in conjunction with unquestionably binding rules, then such organization utterances can truly develop internationallaw progressively. 60 Those who fear that hard law thereby will be softened or given up should bear in mind that this is not a plea for pure politics or morality in lieu of law. Hard law rules must be applied wherever available. Yet many such norms are open, framed loosely, leaving margins of interpretation, and can be filled out by standards applied by decision-makers who are empowered to interpret those (binding) norms. And where no hard law rules exist, new standards, elaborated within the international organization may structure future legal developments albeit as political or ethical standards - yet foreclosing alternative problemCf Riede/ (note 7), 310 et seq. Cf the discussion of the last Kiel Symposium in 1987, following the reports by Philip Kunig, The Relevance of Resolutions and Declarations of International Organizations for Municipal Law, in: Grigory I. Tunkin I Rüdiger Wolfrum (eds.), International Law and Municipal Law, Kiel 1988, 59-78, and /gor I. Lukashuk, U. N. General Assembly Resolutionsand Municipal Law, ibid., 79-88, with discussion at 89 et seq. 60 Main thesis, Riede/ (note 7), passim. 58

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solving strategies. 61 In surn, progressive developrnent of international law is effected not just by one or the other rnechanisrn outlined above, but often by a cornbination of Standards of varying legal validity.

IV. The Regional Level 1. The Institutional Setting

At the regional Ievel, progressive developrnent also takes place, and we find nurnerous examples for less developed and rnore developed rnechanisrns that I certainly cannot display in full before you. Regional international organizations, 62 as we leamed yesterday, usually crop up when all or at least sorne of the following conditions are fulfilled: 63 -

there rnust be areas of social and cultural hornogeneity

-

sirnilar attitudes or sirnilar patterns of external behaviour

-

a high degree of cornrnon ideals

-

political and/or econornic interdependence

-

and a strong link of geographic contiguity rnust exist.

-

Added to this rnay be external pressures prornpting such organization formation. 64

In the context of rny report I cannot review all the rnajor regional institutions but shall sirnply point out sorne cornrnon features. Basically, two types are to be distinguished: those with genera/ and those with specific competences.

61

Riede/ (note 7), particularly chapter 3, at 163 et seq., and chapter 7, at 283 et seq.,

300 et seq., 310 et seq.

62 Cf Bowett (note 22), chapter 5, 161 et seq.; H. G. Schermers, International lnstitutional Law, Vol. 1, Leiden 1972; Seidl-Hohenveldern (note 22), 323 et seq. 63 Cf Areher (note 13), 45; Bruce Russett, International Regions and the International System, Chicago 1967, 11; Heribert Franz Köck I Peter Fischer, Grundzüge des Rechtes der Internationalen Organisationen, Eisenstadt 1986, 322; and see generally Kar/ Zemanek, Regionale Abkommen, in: A/fred Verdross et al., Völkerrecht, 5. Aufl., Wien 1964, 542 et seq.; Winfried Lang, Der internationale Regionalismus, Wien I New York 1982, 19 et seq., and the conceptually very interesting study by Werner Meng, Das Recht der Internationalen Organisationen - eine Entwicklungsstufe des Völkerrechts, BadenBaden 1979, particularly at 149 et seq. and summary at 209 et seq. 64 Areher (note 13), 46 discusses advantages and disadvantages of this proposal by ·Russett; seealso Edward Hallett Carr, Nationalism and After, New York 1945, 45 et seq.; Lord Gladwyn, World Order and the Nation State- a Regional Approach, in: Daedalus 95 (1966), 694- 703; for a discussion of the conflicting positions cf also Inis Claude, Swords into Plowshares, 3d ed., New York 1964, chapter 6; Ronald Yalem, Regionalism and World Order, Washington 1965, 141 et seq.

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Regional organizations with generat competences fit into the pattern of a division of labour between the UN and regional organizations as provided for by Chapter VIII of the UN Charter. [As has been pointed out frequentiy65 that arrangement upori closer analysis reveals some pitfalls, especially in the area of peace-keeping, as we saw yesterday. The idea of complementarity does not work as smoothly as intended, and this is detrimental to the working of the system as such. Moreover, some regional arrangements have a long and stable history, while others are much more loosely knitted together. Thus, the OAS and, to a lesser extent, the OAU have developed a coherent infrastructure, surpassed only by the most integrated organization, the European Communities (EC). The Arab League, the Council for Mutual Economic Assistance (CMEA), the Western European Union (WEU) and the South East Asia Treaty Organization (SEATO), for example, form much less integrated regional units, despite their recognized utility, particularly in the economic field. 66] Regionalinstitutions thrive, on the whole, when constructed on a moremodest basis, furnished with strictly limited competences as far as law-setting is concerned. This is most obvious with organizations operating in fields of peacekeeping and economic co-operation or integration. States usually will opt for regional general or specific arrangements when they feel that the heterogeneity of their own vital interests effectively prevents or seriously impedes crisis management. Failure to produce effective remedies at the universal Ievel, and the generat imperfections and unwieldiness of the global approach are motivating forces for resorting to the regionallevel. lnterestingly enough, with the exception of the EC and in rare cases the OAS, that hope on balance proved to be in vain regarding regional organizations with general competences; they proved as efficient or as inefficient as the UN mechanisms, with the exception again of the European Communities. But as regards organizations with strictly Iimited functions, the record is much more impressive, as is witnessed by the peace-keeping regional arrangements and some human rights organizations. As soon as such institutional settings prove to be effective, however, other States or groups of States in the area will voice misgivings or ill-feelings, fearing the establishment of destabilizing hegemonies. Thus, advantages of regionalization and identification with the integration factors set out at the beginning in the eyes of critics will be more than offset by the fears that such organizations might of necessity turn into self-contained units with primarily egotistic tendencies which, [in the end, would only strengthen nationalism. Such regional mechanisms] would ultimately be crystallizing points for "war-breeding competitive alliances", as Woodrow Wilson put it at the end of the First World War. 67 65 Bowett (note 22), 161 et seq.; Joachim Wolf, Regional Arrangementsand the UN Charter, in: EPIL 6 (1983), 289-295. 66 The reasons for this are manifold, as Lang (note 63), chapters 2 and 3, 19 et seq., 64 et seq. cogently points out. 67 Köck I Fischer (note 63), 323.

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[These arguments are voiced repeatedly and their impact seems to increase with higher degrees of integration exhibited by the regional organizations. Thus, in the economic sphere, developing countries, full of anxieties, openly speak of the EC as the "Fortress Europe", and this may also explain the protracted EastWest negotiations between the EEC and CMEA, and the hesitance of the latter to recognize the EC as a subject of international law until 1988. As a footnote it might be added that despite the enormaus trade volume and resulting mutual interdependence of EFfA and EC, simi1ar fears of EFfA countries seem to exist when it comes to the vision of an unified internal market at the end of 1992. In Far-East Asia, South Korea fears the hegemony of the giant Japan, and although outside the SEATO, is seeking to find counter-balancing new structures, whereby seven States of the region, made up of developing and threshold countries, should join and form an integrated organization on the lines of the EC. Whether that will work remains to be seen. Of all factors usually cited as enhancing regionalism, the argument of geographical proximity, although in practice a key factor, on closer analysis may turn outtobe double-edged: Proximity or contiguity may indeed matter factually, but when used as a normative Iever, it may be quite counter-productive, as the Antarctica sovereignty claims clearly demonstrated. 68 Also, quite often a region is defined quite arbitrarily. One or two States may be left out for various reasons, such as Norway, Sweden, Finland, Switzerland and Austria in Western Europe, and the Nordic Council and EFfAare no alternatives to EC-membership, particularly when Denmark alone is inside that organization. This congenital defect of many regional organizations may become highly relevant when new issues of urgency are at stake for which the regional organization has few effective competences or none at all, as is the case with many environment issues. 69 The finding of problern solutions may then actually become more difficult rather than being facilitated by the given organizational structures. This will have to be bome in mind when the potential for progressive development of regional institutions is assessed. 70 The existence of a structure alone is no guarantee for workability. 71 68 On this problern see genera/ly Rüdiger Wolfrum, Die Internationalisierung staatsfreier Räume, Berlin/Heidelberg 1984. 69 Michael Bothe, Umweltschutz als Aufgabe der Rechtswissenschaft. Völkerrecht und Rechtsvergleichung, in: ZaöRV 32 (1972), 483 -515; Luzius Wildhaber, Rechtsfragen des internationalen Umweltschutzes, Herbert-Miehsler-Gedächtnisvorlesungen No. 1/ 1987; Alfred Rest, Umweltschutz, internationaler, in: lgnaz Seidl-Hohenveldern (Hrsg.), Lexikon des Rechts, Völkerrecht, Neuwied 1985, 277; Rainer Lagoni, Umwe1tvö1kerrecht, in: Werner Thieme (Hrsg.), Umweltschutz im Recht, Berlin 1988, 233-250, particularly 243 et seq. 70 Cf Bowett (note 22), 167; seealso Lang (note 63), particularly at 124 et seq., 126, and as regards skeptical voices, 128. 71 See the many cogent examples and influencing factors given by Lang (note 63), 131, 138, 151, 155 et seq. Lang' s rilain thesis that the variety of organizational structures, actors, normative settings, political, social, economic and security parameters prevents

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Brief mention must also be made of the large number of regional organizations with specifically assigned, strictly limited competences. Although their political relevance is much lower than those of the organizations just mentioned, they are nevertheless highly relevant in their co-operation functions. To single out but one such institution, the Council of Europe (CoE) is a good case in point. 72 Its institutional set up is loose, its functions are primarily advisory and consultative, its work consists in drafting treaties for the region of 22 member States, with few exceptions codifying topics of marginal political relevance only. Thus, amongst the treaties concluded such mottled topics as Au Pair Placement ( 1979), Acquisition of and Possession ofFirearms (1987), European Wildlife and Natural Habitats (1982), Spectator Violence at Football Matches (1987) or Protection of Pet Animals (1987) alongside the European Social Charter (1960), the European Convention on Establishment (1977) will be found. 73 On the whole, the Council of Europe will restriet its ambit mainly to harmonization and unification of existing nationallegislation. If the protection of human rights bad not by chance been added to their agenda, the Council of Europe might weil have sunk into oblivion. As it is, that function was developed to an extraordinary extent, as we will see tomorrow. Apart from such regional organizations an array of organizations with even less powers and less institutional backbones, yet assigned with specific normsetting functions, complete the picture. Thus, in the European region mention should be made of so-called c/osed functional and technical organizations, 74 such as Eurocontrol, CERN, the EPA or the ESA, but also of the CSCE-Conference, even if the latter expressly precluded applicability of its documents as treaty law. Yet by far the most integrated approach to regionalism undoubtedly has been effected by the EC. Whereas the other universal or regional institutions with occasional exceptions in limited spheres only, usually never transcend forms of co-operation, the EC has gone one step further towards real integration (of the kind idealized by Friedmann and others). 75 As has frequently been pointed out, clear and uniform assessment but rather calls for relativism is defmitely born out by his analysis, see in particular 184 et seq. 72 See Bowett (note 22), chapter 6, 168 et seq.; Arthur Henry Robertson, Council of Europe, in: EPIL 6 (1983), 86-92 with further references. 73 In all over 130 conventions and agreements; European Agreement on Au Pair Placement, 1979; European Convention on the Control of the Acquisition and Possession of Firearms by Individuals, 1987; Convention on the Conservation of European Wildlife and Natural Habitants, 1982; European Convention on Spectator Violence and Misbehaviour at Sports Events andin particular at Football Matches, 1987; European Convention for the Protection of Pet Animals, 1987; European Social Charter, 1960; European Convention on Establishment, 1977. The dates are those of 1atest publication of texts. 74 Schermers (note 62), 25 et seq. 75 From the abundant Iiterature see only Bengt Beutler I Roland Bieber I Jörn Pipkorn I Jochen Streit, Die Europäische Gemeinschaft- Rechtsordnung und Politik, 3. Aufl.

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despite wide attribution of law-making powers to the Community, it is still far from beingaseparate State at internationallaw. The diagnosis of /psen that the Community takes up a middle position between States and classical international organizations, still holds true. 76 When one compares the institutional setting at the regional Ievel with that found at the globallevel, similarities and differences are obvious: At both Ievels, elaborate law-making processes take place, and where the codifying topics follow harmonization aims, many effective treaties are the result. The story is different when real "progressive development" of law is sought. States then will rely heavily on the contract avenue to law-making, jealously guarding their sovereign rights. For that reason, with the exception of the EC, the regional organizations generally offer no more results than similar efforts might yield at the global Ievel. And yet, the arguments of regional homogeneity, contiguity, greater political and economic interdependence, interaction and cohesion, and reliance on common cultural and social traditions, underpinning a common legal tradition, usually win the day, often foreclosing debates as to whether a global approach might not be preferable.]

2. The Normative Setting If all the codifying work of regional international organizations were to be placed alongside similar endeavours at the universal Ievel, similarities probably would prevail. However, assessment of the advantages and disadvantages of regional approaches to progressive development of internationallaw would soon come to an end, if the role played by the European Community did not upset that otherwise clear picture. Comparison of mechanisms for progressive development at the regional Ievel therefore, may be brief. The role of global conventions with harmonization and law unification aims at the regional Ievel is taken up by specific treaties, such as the nearly 130 elaborated by the Council ofEurope (CoE).

Law-making by the UN organs in forms of resolutions and declarations at the regional Ievel in Europe is assigned to different international organizations, Baden-Baden 1987, 37 et seq.; Leontin-Jean Constantinesco, Das Recht der Europäischen Gemeinschaften I, Baden-Baden 1977, 113 et seq., 123 et seq., and 309 et seq., at 329332: the European Comrnunity as a "mixtum compositum"; Dominik Lasok I J . W. Bridge, Introduction to the Law and Institutions of the European Communities, 3d ed., London 1982, at 26 et seq.; for the economic dimension see Meinhard Hilf, Settlement of Disputes in International Economic Organizations, in: Ernst-U. Petersmann I Meinhard Hilf(eds.), The New GATI Round of Multilateral Trade Negotiations, Boston 1988, 285-322 (290 et seq.). 76 Hans Peter lpsen, Europäisches Gemeinschaftsrecht, Tübingen 1972, at 196: The

Comrnunities as "purpose associations of functional integration" for which a clear-cut definition should not be provided; see also Meinhard Hilf, The Relevance of Acts of International 'Supra-national' Organizations to Municipal Law: The European Comrnunity, in: Tunkin I Wolfrum (note 59), 149-167.

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depending on the subject matter concerned. Least binding, of only persuasive authority, yet also with different degrees of political and ethical weight, are resolutions and declarations promulgated in the Council of Europe, or recommendations and opinions by EC organs. 77 Their role is roughly similar, though their effectiveness is much greater. There is no real equivalent to the International Law Commission at the European Ievel, I think. (In the Americas, the Inter-American Council of Jurists fulfills some of those functions as does the African-Asian Legal Consultative Committee). Instead, ad-hoc inter-govemmental committees, regular committees of the Consultative Assembly of the CoE, and of the European Parliament, but also of the Council and Commission of the European Community itself, are entrusted with drafting treaty texts, to be approved by govemments of member States in much the same manner as at the universal Ievel. The law-creating function of the Sixth Committee of the General Assembly comes closest in this comparison. But there remains the large area of treaty-making powers of the Community organs, in fields where they have competences, in theory matched by the powers of UN organs, in practice far more extensive in scope and deliberation. Yet on the basis of the Rome Treaties, much more substantial regional law-making powersexist in Western Europe. The whole secondary EC-treaty law as made up of directly and fully binding regulations, fully binding directives and decisions handed down, setting the legal framework which member States must apply, free only as regards the modes of domestic transformation, and directly binding decisions handed down by community institutions. This law-making comes closest to real legislation and administrative acts in the municipal law sense, 78 and in its totality produces much "progressive development" of community law. Yet, whereas any progressive development activity by the world organization after the actual elaboration of texts invariably needs endorsement by member States - for without the stamp of State approval progressive development of international law has little chance of realization - the law can be progressively developed by the EC institutions in those areas themselves, to which the lawmaking instruments cited apply. Admiitedly, lawyers will immediately pointout that those law-making powers of community organs are by no means unbounded. The principle of "limited attribution of powers" (begrenzte Einzelermächtigungen)19 puts a stop to acts transcending the scope of law-making in the relevant treaty provisions. 77 Cf, instead of many, Eberhard Grabitz, Quellen des Gemeinschaftsrechts, in: Kommission der Europäischen Gemeinschaften (Hrsg.), Dreißig Jahre Gemeinschaftsrecht, Luxemburg 1981, 91 et seq., at 95; Jörn Pipkorn, in: Beutler I Bieber I Pipkorn I Streif (note 75), chapter 6, at 178 et seq. 78 Cf Ulrich Everling, Zur rechtlichen Wirkung von Beschlüssen, Entschließungen, Erklärungen und Vereinbarungen des Rates oder der Mitgliedstaaten der EG, in: idem, Das Europäische Gemeinschaftsrecht im Spannungsfeld von Politik und Wirtschaft, Baden-Baden 1985, 133-156; Pierre Pescatore, L'ordre juridique des Communautes Europeennes, Liege 1975, passim.

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If one reads the text of the three Rome treaties, that argument sounds convincing. But the European Court of Justice (ECJ) at Luxembourg has seen its role as a prime promotor of further European integration and, by way of treaty interpretation, in a multitude of cases has effectively extended the scope of the primary rules, sometimes almost beyond recognition, thereby reducing the worth of "limited attribution" considerably, I would submit Without going into the details, the decisions concerning civil liberties of community citizens are cases in point. 80 [There the ECJ heavily relies on broadly framed general provisions of the EEC-Treaty laying down community aims, and which were originally geared almost entirely to economic integration, and in a whole series of famous precedents 81 the Court extended the reach of common market freedoms into the realm of civil rights proper. Aware of the remaining legitimacy problems, as long as a European constitution with a Bill of Rights chapter is lacking, the Court by way of comparative method ingeniously drew upon national civil rights notions and on provisions of the European Convention on Human Rights and declared these notions to be underlying ideas applicable as European general principles of law. 82] If one compares the ICJ with the ECJ generally, the latter not only has much wider powers, is composed of judges all sharing common conceptions about the rule of law, rarely having to face problems of judgment execution, but is also supported by public opinion to a much higher degree than the ICJ - probably only because it is better known, on account of the fact that individuals aggrieved from each member State may have direct access to the Court. In cantrast with the ICJ, the ECJ's competence torender advisory opinions and the possibility thereby to develop the law progressively has not played any rcile whatsoever. The ernborras de richesse of law-making by interpretation via contentious cases rendered that superfluous. As pointed out when describing the 79 Gert Nicolaysen, Europäisches Gemeinschaftsrecht, Stuttgart/Berlin/Köln/Mainz 1979, 43; Michael Schweitzer I Waldemar Hummer, Europarecht, 2. Aufl. Frankfurt am Main 1985, 83. so Cf Gottfried Zieger, Das Grundrechtsproblem in den Europäischen Gemeinschaften, in: Recht und Staat Nos. 384/385, 1970; Hermann Mosler I Rudolf Bernhardt I Meinhard Hilf (Hrsg.), Grundrechtsschutz in Europa, Berlin/New York 1977; Jochen Frowein et al., Die Grundrechte in der Europäischen Gemeinschaft, Baden-Baden 1978; lngolf Pernice, Grundrechtsgehalte im Europäischen Gemeinschaftsrecht, Baden-Baden 1979; seealso Albert Bleckmann, Die Bindung der Europäischen Gemeinschaft an die Europäische Menschenrechtskonvention, Köln 1986. s1 Cf, inter alia, Albert Bleckmann, Die Freiheiten des Gemeinsamen Marktes als Grundrechte, in: idem, Studien zum Europäischen Gemeinschaftsrecht, Köln 1986, 185 et seq.; see for example Stauder-ease of 12 November 1969, Sammlung der Rechtsprechung des Gerichtshofs (Rspr.), 1969, p. 419; Internationale Handelsgesellschaft-case of 17 December 1970, Rspr. 1970, p. 1125; Nold-case of 14 May 1974, Rspr. 1974, p. 491 ; Rutili-case, Rspr. 1975, p. 1219; Defrenne-case (No. 2) of 15 June 1978, Rspr. 1978, p. 1365; Wendy Smith-case of 27 March 1980, Rspr. 1980, p. 1275, extracts in: Waldemar Hummer I Bruno Simma I Christoph Vedder, 50 Fälle zum Europarecht, 2. Aufl. München 1985, 358; Schweitzer I Hummer (note 79), 186 et seq. 82 Cf Bleckmann (note 80), particularly at 70.

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ICJ's role of law creation, I would argue that judge-made "progressive developrnent" strictly speaking can not exist. The judges have to confine thernselves within the Iimits of interpretation. It is only upon ex post facto rationalization that some judgments may qualitatively seem to contribute to the progressive developments of the law. The roJe custom plays at the European regional Ievel is decidedly smaller. The efficacity of the norm-setting process and the attendant trust that these instruments will be put into effect, and subsequently implemented, obviates the development of custom. But thirty years of Community organization practice probably is too short a time to allow a final judgment on that question. But basically, no system of law can totally dispense with custom, as Bleckmann rightly pointed out. 83 One such example is the customary right of representation of Under-Secretaries of State in lieu of Ministers in Council meetings at Brussels, probably out of sheer necessity. Progressive development by custom extra Iegern at the European Ievel would seem to be a remote prospect. In this connection, it may weil be questioned whether international law has room for regional custom. 84 The cases frequently cited for the international Ievel (Haya de Ia Torre and the Right of Passage over Indian Territory), 85 on the narrow issues that had to be decided would appear to be quite inconclusive. If at all, they give indications that examples of State practice in a particular region might Iead more easily to proof of sufficient evidence for the existence of a particular international law rule. But examples are difficult to fmd. The rule that a persistent objector can claim exemption from an otherwise existing customary rule, as developed in the Anglo-Norwegian Fisheries case, 86 or the geographical niceties in the Minquiers and Ecrehos and Temple of Preah Vihear cases 87 while producing dicta concerning historic title and estoppel, would seem to point in the opposite direction, negating a separate regional customary Jaw, but facilitating proof of sufficient State practice for the establishment of such a rule. Suffice it to say in this context that regional custom, if assumed to exist at all, and you know there is controversy about that, 88 surely must find its 83 Albert Bleckmann, Grundgesetz und Völkerrecht, Berlin 1975, 53 et seq.; Walter Rudolf, Völkerrecht und deutsches Recht, 1967, 82 et seq. 84 But see, per contra, like most authors Bleckmann (note 83), 62; Rudolf (note 83), 87; Dahm I Delbrück I Wolfrum (note 5), 61. 85 Asylum, Judgrnent, in: ICJ Reports (1950), 266; Request for Interpretation, Judgment, in: ICJ Reports (1950), 395; Haya de la Torre, Judgment, in: ICJ Reports (1951), 71; Right of Passage over Indian Territory, Merits, Judgment, in: ICJ Reports (1960), 6. 86 Fisheries Case (U. K. v. Norway), Judgrnent, in: ICJ Reports (1951), 116. 87 Minquiers and Ecrehos Case, Judgment, in: ICJ Reports (1953), 42; Temple of Preah Vihear Case, Merits, in: ICJ Reports (1962), 6. - 88 And Soviet doctrine argues strongly for a regional solution, for obvious reasons, cf Tunkin, discussion in: Tunkin/Wolfrum (note 59), at 47, following Walter Rudolf, Incorporation of Customary International Law into Municipal Law, ibid., 24 et seq., 27,

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Iimits when confronted with an undisputed customary rule of universal application. This doctrinal question need not be fmally settled here as cases are extremely rare. It is indicative, though, of the kind of problems encountered when internationallaw and regional intemationallaw are not seen as one unitary phenomenon, but as separate entities. As far as progressive development of law is concemed, the role of custom at the EC Ievel, for the reasons given, is minimal. As advisory opinions of the ECJ are notavailable, the World Court in that respect, plays a far more creative role. One other recent development of the European regional Ievel requires brief mention. With the coming into force of the Single European Act (SEA) in 1987, the European Political Cooperation (EPC), until then an informally co-ordinated institutional setting for formulating common foreign policy stands of EC member States outside the framework of the Rome Treaties, was technically linked to the EEC Treaty. 89 Not only were substantial and new competences for the community organs added by EEC Treaty amendments, but in addition, the hitherto informal EPC mechanism were procedurally tied to the EEC Treaty. Member States, unwilling to accept the Colombo!Genscher plan 90 for a European Union, agreed upon this compromise, whereby foreign policy, national defence and other integration prerequisites were kept outside the Community law-making mechanisms, but indirectly exert great influence on the exercise of those powers for which the Community organs unquestionably have competence. For one, via foreign policy Statements many economic policy issues can be preempted; secondly, Ministers attending the EPC-European Council, as Foreign Ministers afterwards sit in Council at Brussels, making sure that the pure policy decision of the EPC is then translated into EC practice. The decision-making process of the EC has been complicated by this new set-up, but the Single European Act merely consolidated a prior political practice. From the point of view of progressive development of Community law, the express exclusion of EPC decisions from European Court review at first sight would appear to be a clear indication that no such development was sought or is intended. But it is submitted that it will not be long before the European Court, under the guise of merely interpreting unmistakable Community competences, will scrutinize decisions of the EPC organs, en passant, as it were, if these affect Community citizens directly in one of the spheres of economic freedoms for which Community organs, including the ECJ, undoubtedly do have powers. Such incidental review might weil occur in cases of alleged ultra vires-actions brought who argues that the distinction is imponant in that only general customary Jaw is incorporated into the German legal order. 89 Cf Meinhard Hilf (note 76), 149-167 (165 et seq.); Schweitzer I Hummer (note 79), 30 et seq. 90 Genscher I Colombo Planfora "European Act", of 4 November 1981 , in: EuropaArchiv 1982, D 50 et seq.

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against Community civil servants for non-contractualliability under Article 215 (2) EEC-Treaty. That same situation - the uneasy co-existence of two structurally different masses of legal rules, the Rome Treaties and the Single European Act - might give rise to progressive development of law quite in the sense used in the UN: decisions of the European Council and of its subsidiary organs, 91 while not legally binding, might serve as political Standards structuring legal activities of Community organs under fully binding Community law. The new institutional set-up thus illustrates the usefulness of the concept of having combination Standards or "zebras", composed of binding rules and principles, and supplemented by non-binding, yet structuring standards, that have been called Argumentationsrahmen.92

V. Conclusion The comparison of institutional mechanisms and normative settings at the universal and regional Ievels, incomplete as it was, in my opinion does allow drawing some tentative conclusions: Having looked at these institutions largely in isolation, horizontal inter-dependence and co-variance could be made out both at the universal and at the regional Ievels, and this provided a scope for progressive development of international law. If understood as a process rather than as a result, nearly all institutions mentioned are involved in law-making and lawcreation. Used strictly in the sense of Article 13 (1) (a) of the UN Charterthat function is reserved to the General Assembly with its subsidiary organs involved in the law-making process. But that is begging the question. No such clear mandate exists at the regional Ievel, the reason probably being that there is less need feit for it. Consent, if required, may be more easily got in an organization such as the EC, and norm-setting by Community organs will tend to be far more effective, quick and uncomplicated than in a global setting harbouring a multitude of divergent State interests on very many issues. The further question of what should take precedence in case of conflict progressive development of international law or regional law - in my opinion should not be put at all. In practice, regional and global norm-setting efforts inter-act - a code of conduct drawn up at the global Ievel may weil serve as a standard, supplementing similar formulations at the regional Ievel, and may ultimately be applied to concrete cases when it comes to interpreting strict law rules, framed widely, ambiguously or otherwise in dire need of explanation. If 91 Such as the Political Directors' Committee (set up under Art. 30 (10) (c)), the European Group of Correspondents (Art. 30 (10) (e)) or Working Groups, or the new special Secretariat assisting the President of the European Council (Art. 30 (10) (f) and

(g)). 92

Thomas Oppermann, Discussion contribution, in: Tunkin I Wolfrum (note 59), at 89.

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this view of the legal character of such Standards and combination standards is not shared, as I am sure is the case in this room, too, for fear of diluting "hard law", such non-binding utterances of international organizations at global or regionallevel might still be accepted as persuasive authority. If I may hazard a guess about the future of progressive development and codification of international law, its prospects seem good. With ever-increasing communication and communication structures at the global, regional, sub-regional and national Ievels, intermingling will accelerate, the number of actors of the systems will increase almost demographically, law-creating or at least law-influencing mechanisms will proliferate, and progressive development will continue to be the pike in the pond or the salt in the soup of the elaborate lawmaking efforts of international organizations.

When the topic given to me was geared so much to "progress", there is an obvious danger that the evidence for it may be over-interpreted, and I am fully aware of that. Twenty years ago, at the Innsbruck session of the German Society of International Law, Mr Oppermann asked whether UN law-making was a gold mine or just dead rock, 93 and Mr Rosenne in another meeting speaking about codification efforts, once optirnistically characterized them as "glittering jewels in the crown of juristic achievement", while Mr Toynbee, following Mr Spengler, conjured up visions of codifications followed by the inevitable collapse of the system, as happened in Rome. Upon reflection, I would argue very modestly that progressive development, just as codification of intemationallaw, will survive, has its prominent place in international relations, is unavoidable and useful, and should be exercised with constraints. Summary 1. International relations, radically transformed by the end of the Sixties, have fundamentally changed the structure of the system. Yet one of the peculiarities of the present global system is that despite all existing ideological, cultural and socio-economic differences no State can seriously consider to stay outside, or afford to withdraw from the system. 2. Progressive development and codification of international law carried on in that new setting is a feature and challenge to all Member States whether they like it or not. The decreasing legalist approach to tackling problems of the international community was offset by substitutes, fulfilling similar functions adapted to new needs. 3. Much "progressive development" still is effected by treaty-making of the traditional type, within or outside the ambit of the United Nations. 93

Thomas Oppermann, Discussion contribution, in: BDGVR 1969, 10 (1971), 213.

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4. The ILC, supported by the Sixth (Legal) Committee ofthe General Assembly, has proved tobe the driving force of progressive development of international law, even if its approach has tended to be conservative, confined to areas of less political controversy. 5. Highly controversial or very technical issues have been assigned to codification conferences developing new techniques for securing "progressive development", but with a mixed record of success (Law of the Sea Convention, 1982 or Geneva Additional Protocols, 1977). 6. Customary internationallaw, by its very nature conservative, has played a lesser role in developing international law progressively by comparison with other sources. lt has greater potential in the wak:e of codifying treaties setting up "normative", or "objective" "status regimes". 7. The ICJ in its advisory functions plays a limited rote in developing internationallaw progressively, as it can be steered by political resolutions of other UN institutions. In contentious matters, the Court "interprets", in theory,leaving no room at all for progressive development. Yet a more dynamic interpretation practice might produce results that objectively approximate progressive development. 8. Much progressive development of international law is effected by legally non-binding, yet ethically and politically highly relevant resolutions, declarations, codes of conduct, and other forms of law-mak:ing. Whether these organizational activities can be regarded as law-mak:ing activities, depends on the chosen definition of internationallaw. 9. Regionalism relies on homogeneity arguments. A common cultural heritage, similar patterns of external behaviour, common political ideals and/or economic inter-dependence and geographic proximity are trump cards played by regionalists. Those premises are rarely challenged in the practice of States. 10. The multiplicity of forms of regional international organizations produces a network of interaction in the field of law-mak:ing greatly resembling global structures. 11. Norm-setting at the regionallevel follows the patterns of global Counterparts. Thus, codification with harmonization and law unification aims can be effected by regional institutions with lesser degrees of institutional concretization, such as the Council of Europe, or by regional organizations assigned with technical and functional tasks. 12. Norm-setting by a supra-national organization such as the European Community is much more developed, particularly in the field of secondary treaty law - consequently, the need for additional progressive development techniques comparable to those at the global Ievel would seem superfluous, as long as the existing normsetting mechanisms retain their present flexibility.

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13. The ECJ, unlike the ICJ, has no "progressive development" function at all, although, strictly speaking, neither tribunal "develop" the law but interpret it. The jurisprudence of the ECJ is highly dynamic. 14. The efficacy of the EC norm-setting mechanisms leaves little room for the progressive development of customary law, although on principle it cannot be excluded. There are good reasons for assuming that regional customary law can only serve complementary functions. 15. Progressive development issues may in future arise in relation to the interplay of the Rome Treaties with the Single European Act. 16. Global and regional law-creating mechanisms interact and provide covariant norms, so that on balance regionalism complements universalism, outweighing inherent tendencies for the establishment of self-contained hegemonial structures.

Discussion of Eibe Riedel's Lecture· Zemanek: Thank you very much. I want to make a few remarks. But I want to say at the outset, that they are not intended to be a criticism of the very comprehensive report of Prof. Riede/. Rather, I intend to show, that probably on some points, different opinions do exist and can be maintained. The first point is, that I think you judge the consensus procedure a little too harshly. Consensus is intended to protect the minority. Thus, in the last decades, it was on the insistence of Western Europeans that in many instances consensus procedures were maintained because we felt that this was the qply opportunity for us to make our views heard or observed. The fact that the result of consensus procedures may sometimes be disappointing invites the observation that the same is true for our laws, because in certain controversial matters their text is achieved through negotiations between the parties approximating consensus procedure. The second point is that I do not share your contention in point 7 (of the summary) that in contentious proceedings before the ICJ, there is no room for progressive development of international law. Of course, we may differ as to what we consider to be progressive development. But if one takes the North Sea Continental Shelf Cases and the invention by the Court of a new method to measure the contineotat shelf, or if you take the Case Concerning United States Diplomatie and Consular Staff in Tehran where the Court invented the concept of a closed regime, or if you take the Nicaragua Case where the Court invented the Charter of the United Nations as customary international law, one cannot deny that the Court developed the law. We may eliminate the word "progressive", but what happened was certainly not mere interpretation. Another remark of yours although it was brief because you did not want to open Pandora's box, was on the value of resolutions. It was seen that this discussion is flawed when we limit it to the categories of binding or non-binding. A different approach might start from the question of how, in the past, when there did not exist any international fora, opinio iuris was formed? Unless we expect that it came from high above, then some process must have existed by which it was formed and the resolutions of the General Assembly or other international borlies are probably some of the fora where that takes place today. Whether it is successfully formed depends on whether appropriate State practice follows or does not follow. • The opinions expressed in this volume are the personal views of their authors only. 10 Symposium 1989

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Discussion

Delbrück: Would you allow us to modify what you just said about the resolutions to some resolutions may indicate ... Zemanek: My last point is rather an addition. I wanted to mention an example where regional practice has effectively become universal practice and that was in the case of reservations to multilateral treaties. You will recall that the Advisory Opinion of the International Court on Reservations to the Genocide Convention rejected the previously (on the global scale) existing system of unanimity for the acceptance of reservations and replaced it by the Inter-American system of reservations which then became the practice until the Vienna Convention of the Law of Treaties. Thank you very much. Skubiszewski: My frrst point is the subject matter for the development of regional law; it is a questiontobe considered by the rapporteur. As I St