German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 39 (1996) [1 ed.] 9783428491797, 9783428091799

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GERMAN YEARBOOK OF I N T E R N A T I O N A L LAW

V O L U M E 39 • 1996

DUNCKER

& HUMBLOT

• BERLIN

GERMAN YEARBOOK OF INTERNATIONAL Volume 39 • 1996

LAW

Founders: Rudolf Laun • Hermann von Mangoldt Editor: Jost Delbrück Assistant Editor: Eric Johnson Walther-Schücking-Institut für Internationales Recht an der Universität Kiel

A d v i s o r y B o a r d of the I n s t i t u t e : Daniel Bardonnet rUniversite de Paris I I Rudolf Bernhardt Heidelberg Lucius Caflisch Institut Universitaire de Hautes fitudes Internationales, Geneve Antonius Eitel New York; Bonn Luigi Ferrari Bravo The Hague; Universitä di Roma Louis Henkin Columbia University, New York Tommy T. B. Koh Singapore John Norton Moore University of Virginia, Charlottesville

Fred L. Morrison University of Minnesota, Minneapolis Albrecht Randelzhofer Freie Universität Berlin Krzysztof Skubiszewski Polish Academy of Sciences, Warsaw; The Hague Christian Tomuschat Humboldt-Universität zu Berlin Sir Arthur Watts London Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 39 • 1996

DUNCKER & H U M B L O T / BERLIN

Beginning i n 1995, the Institut für Internationales Recht an der Universität K i e l has changed its name to the Walther-Schücking-Institut für Internationales Recht an der Universität K i e l

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

This Yearbook may be cited: G Y I L 39 (1996)

Please address communications to: Editors German Yearbook of International Law Walther-Schücking-Institut für Internationales Recht an der Universität Kiel Olshausenstrasse 40, D-24098 Kiel fax 49 431 880-1619 email [email protected]

All rights reserved © 1997 Duncker & Humblot GmbH, Berlin Printed by Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0344-3094 ISBN 3-428-09179-5 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 ©

Contents Introduction Christian Starck: Hermann von Mangoldt (1895 - 1953)

11

GATT Focus Section John H. Jackson: Appraising the Launch and Functioning of the W T O

20

Peter Nunnenkamp: Winners and Losers in the Global Economy: Recent Trends in the International Division of Labor, Major Implications and Critical Policy Challenges Thomas J. Schoenbaum: Market Contestability and Reform of the Antidumping Laws Karl-Nikolaus

42 82

Peifer: Brainpower and Trade: The Impact of TRIPS on Intellectual

Property

100

Matthias Lücke: Accession of the CIS Countries to the World Trade Organization

.

134

Guglielmo Verdirame : The Definition of Developing Countries under G A T T and other International Law

164

Articles David P. Fidler: Challenging the Classical Concept of Custom: Perspectives on the Future of Customary International Law Paul Conlon: The Humanitarian Mitigation of U N Sanctions Peter D. Coffman: Obligations Erga Omnes and the Absent Third State

198 249 285

Joachim Lippott : The Commonwealth of Independent States as an Economic and Legal Community

334

6

Contents

Heike Gading: Litigation by Public-Interest Groups in European Law Alberto Soria Jimenez: Ecological Catastrophes in light of the Rio Agreements

361 ....

388

International Law Developments Kai Koschorreck and Miriam Müller: Report on the International Criminal Tribunal for the Former Yugoslavia 409 Eric Johnson: Kadic v. Karadzic and Doe I and I I v. Karadzic: The Latest Stage in Alien Tort Act Jurisprudence

434

Renata Hliwa/Leszek Wisniewski: The International Covenants on Human Rights in the Decisions of the Polish Supreme Court, Constitutional Tribunal and the Supreme Administrative Court 468 Frank Bodendiek/Karsten Nowrot: Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte i m Jahre 1995 481

German Law Developments Stephan Hobe/Christian Tietje: Government Criminality: The Judgment of the German Constitutional Court of 24 October 1996 Vicki Trauisen: The German Federal Constitutional Court's Decision on Asylum Law

523 544

Comment Jacob W. F. Sundberg: The European Convention on Human Rights in Swedish Law — Reply to Ulf Bernitz 558

Book Reviews Sands: Principles of International Environmental Law I — Frameworks, Standards and Implementation (Delbrück)

571

Sands/Tarasofsky/Weiss (eds.): Principles of International Environmental Law DA and IIB — Documents in International Environmental Law (Delbrück) 571

Contents Sands/Tarasofsky (eds.): Principles of International Environmental Law I E — Documents i n European Community Environmental Law (Delbrück) 571 Scharpenack: Das ,Recht auf Entwicklung 4 . Eine völkerrechtliche Untersuchung der konzeptionellen und normativen Strukturen eines ,Menschenrechts auf Entwicklung' (Edinger)

573

Oppenheimer (ed.) w i t h Foreword by Sir Leon Brittan: The Relationship between European Community Law and National Law: The Cases (Feist)

575

Harris/O'Boyle/ (Genet)

576

Warbrick:

Law of the European Convention on Human Rights

Köhler: Rechtsfranzösisch: deutsch-französisches und französisch-deutsches Rechtswörterbuch für Jedermann (Genet)

578

Reuter. Introduction au droit des traités (Genet)

578

Booysen: International Transactions and the International Law Merchant (Happ) . . .

580

ElBaradei/Nwogugu/Rames

(Hrsg.): The International Law of Nuclear Energy: Basic

Documents (Härders) Steiner/Alston:

581

International Human Rights in Context: Law, Politics, Morals

(Hensley)

583

Craig/de Búrca: EC-Law. Text, Cases and Material (Hobe)

586

Falterbaum: Entwicklungshilfe i m nationalen und internationalen Recht (Hobe) . . .

587

Koenig/Haratsch:

588

Einführung in das Europarecht

Marwege: Der Andengerichtshof (Hobe) Graf von Bernstoff.

Einführung in das englische Recht (Johnson)

(Hobe)

589 590

Köbler: Rechtsenglisch (Johnson)

591

Paust: International Law as Law of the United States (Johnson)

592

8

Contents

Stepbens/Ratner: Birnie/Boyle:

International Human Rights Litigation in U.S. Courts (Johnson) . .

Basic Documents on International Law and the Environment (König).

595 597

Crom Das Umweltregime der Nordsee - völker- und europarechtliche Aspekte (König)

598

Gavouneli: Pollution from Offshore Installations (König)

599

Higgins: Problems and Process: International Law and H o w We Use It (König) . . . .

600

Alexy: Begriff und Geltung des Rechts (Lembcke)

604

Reinisch: State Responsibility for Debts: International Law Aspects of External Debt and Debt Restructuring (Oeter) Johnson/Corcelle: The Environmental Policy of the European Communities (Pardo Lopez) Schlemminger/Wissel

606 608

(eds.): German Environmental Law for Practitioners (Pardo

Lopez)

609

A hit: Europarecht (Peters)

611

Nicolaysen: Europarecht EL Das Wirtschaftsrecht i m Binnenmarkt (Peters)

612

Delbrück: Die Konstitution des Friedens als Rechtsordnung: Z u m Verständnis rechtlicher und politischer Bedingungen der Friedenssicherung i m internationalen System der Gegenwart (Randelzhofer)

613

Gading: Der Schutz grundlegender Menschenrechte durch militärische Maßnahmen des Sicherheitsrates — das Ende staatlicher Souveränität? (Schreuer)

615

Peters: Das Gebietsreferendum i m Völkerrecht — seine Bedeutung i m Licht der Staatenpraxis nach 1989 (Stein)

616

Diem: Freihandel und Umweltschutz in G A T T und W T O (Tietje)

618

Hahn: Die einseitige Aussetzung von GATT-Verpflichtungen als Repressalie

(Tietje)

621

Contents McGovern : International Trade Regulation Fechner/Oppermann/Prott

(Tietje)

(Hrsg.): Prinzipien des Kulturgüterschutzes (Turner)

...

Wolfrum (Ed.-in-Chief)/Philipp (Managing Ed.): United Nations: Law, Policies and Practice (Watts)

Books Received

List of Contributors

INTRODUCTION

Hermann von Mangoldt (1895 - 1953) Member of the Parlamentarischer

Rat and Commentator to the Grundgesetz*

I. Background Hermann von Mangoldt wrote as the conclusion to his 1938 book 'The Concept of the Rule of Law and Governmental Forms in the United States' the following statement on national constitutions: A constitution should in general be a quiet pole, and should provide the entire body politic the fixed and lasting foundation that is a condition for the continual development of the State free from disturbance. A constitution should preserve a consistent line that must be present despite the continually changing demands of political life if the population and the State are not to be injured.

This doctrine of the 'philosophical bases of American constitutional law* — the subtitle of the book — demonstrates two things: First: Hermann von Mangoldt as a mature scholar had studied a successful foreign constitutional system, including its practical application, especially case law, and put forward in his book the result of this study, that the doctrines of European political philosophy applied in a pragmatic Anglo-Saxon sense are the basis for founding a State whose constitution takes into account the potential of human reason as well as of human corruptibility, including the corruptibility of those responsible for State affairs. Second: The convictions gained from this study were a fundamental portion of the legal thinking of Hermann von Mangoldt , who in 1931 in Königsberg had completed his Habilitation on American constitutional law. 1 While others attempted to establish law according to contemporary ideas about a State based on the Volk, von Mangoldt was investigating the socio-political strength of the democratic constitutional State through his analysis of the American constitutional order. * The text was translated from German into English by Marianne Nilsson , Eric Johnson and Vicki Traulsen. 1 Compare Hermann von Mangoldt y Geschriebene Verfassimg und Rechtssicherheit i n den Vereinigten Staaten von Amerika (Abhandlungen der Rechts- und Staatswissenschaftlichen Fakultät der Universität Königsberg, Heft 6), 1934.

12

Christian Starck

Hermann von Mangold?s academic career led him from Königsberg via Tübingen (1935) and Jena (1941) to Kiel (1943), where he began his lectures in winter semester 1944/45 and took over as Director of the Institut für Internationales Recht, In 1945 he was named Dekan der Fakultät , and in 1947/48 Rektor. A t the same time von Mangoldt pursued a political career. He joined the newly founded Christian Democratic Union (CDU) party, in 1946 was briefly Innenminister (Interior Minister) of Schleswig-Holstein and served as a member of the Schleswig-Holstein Landtag (parliament) and in this function was elected by the Landtag to be a member of the Parlamentarischer Rat. 1 A n d thus we would find ourselves at the first main theme. However, we remain for a moment in the background, i.e. with the early works of von Mangoldt , which formed such a fortunate basis for his political appointment to the Parlamentarischer Rat. In the introduction to his 1938 book on America he enquired into the purpose of comparative law. " H o w is the philosophical basis of a foreign system of law relevant to us? Are its insights at all useful for a deeper insight into our own system?" To these questions he gave a double answer. First, today, when no nation can lead an isolated existence or distance itself from the exchange of the intellectual and material goods of other nations, it should be for every educated person the most fervent desire to look into the souls of these foreign peoples. Where can this better take place than in the area of the fundamental norms of the legal system of a State, which norms are, as all law, so closely bound to the cultural existence of a people? Second, a comparison is worthwhile also from the standpoint of understanding one's own system, when one considers the potential enrichment such a correctly conducted comparison can yield.

After the inescapable conclusion that German law at the time differed strongly from American law, von Mangoldt wrote of the formal elements of the American legal order that exercised such strong influence over its development and that were not to be overlooked. He names the supremacy of the constitution over other law and other concepts of order and of the rule of law that were being ignored in Germany at the time. W i t h respect to this book Walter Strauß wrote in von Mangoldes obituary, 3 " J u s t as Johnathan Swift was forced to mirror the conditions of his time only indirectly through Gulliver's Travels, so also was von Mangoldt able to bring his readers in those years to the philosophical and constitutional bases of individual freedom only through the portrayal of a foreign system."

2

For more on von Mangoldt' s curriculum vitae see above all Waltraut von Mangoldt , Hermann von Mangoldt, in: Fünfzig Jahre Institut für Internationales Recht an der Universität Kiel, 1965, 221 - 233, as well as the obituaries of Viktor Böbmert, Juristenzeitung QZ), 1953, 254 - 255.; Walter Strauß, Die Öffentliche Verwaltung (DÖV), 1953, 247 - 248; Gerhard Leibholz, Jahrbuch für Öffentliches Recht 0ÖR), n.F. 2, 1953, I E - IV; Walther Schoenborn, Archiv des Öffentlichen Rechts (AÖR), 1952/53,257 et seq.; Rudolf Laun/Viktor Böhmert/Hartwig Bülcky Jahrbuch für Internationales Recht,. 1954, 5 et seq. 3

Strauß (note 2), 248 (emphasis in original).

Hermann von Mangoldt (1895 -1953)

13

Just under ten years after the p u b l i c a t i o n o f the b o o k o n A m e r i c a von Mangoldt produced a small w o r k concerning the rebuilding o f German State a u t h o r i t y . 4 T h i s w o r k , w h i c h appeared i n 1947, p r o b a b l y goes back t o a lecture that von Mangoldt held at the latest i n the summer of 1946. I n the context o f the declaration o f the A l l i e d Powers o f 5 J u l y 1945 stating that they had taken over the governmental cont r o l o f Germany, von Mangoldt developed his thoughts o n the rebuilding o f an independent G e r m a n State a u t h o r i t y modeled o n democratic principles. I n answer t o the Potsdam Agreement, 5 and f o l l o w i n g his o w n convictions, he demanded the recreation o f local authorities according t o democratic principles and the i n t r o d u c t i o n as q u i c k l y as possible o f the idea o f representative government and elections at the district and Länder levels. B y the time the w o r k was published, the elections for the Länder parliaments had already taken place and the Länder governments had already been established. T h e w o r k goes further and discusses G e r m a n y as a w h o l e , w h i c h c o u l d regain its p o s i t i o n as an independent State i n the international legal sense o n l y i f "the n e w State a u t h o r i t y grows o u t o f the German people." T h e w o r k continues as follows: From this importance of independent power to create a constitution for the recognition of a community as an independent State follows also the supreme importance of determining the basic order of the nation, i.e. the creation of a constitution.... This is so because it is essential to democracy that the various factions and opinions in a nation concerning the tasks and goals of the State and concerning the structure of the State be given the opportunity to express themselves as to the future form of government so that the State becomes a true expression of the views of the people that live within the State. I n other words, i n a democracy each person must possess the opportunity freely to exist within the State and to affect the political order of the State. I n protecting such an opportunity, however, the new order would become chaos if from the start certain fundamental rules of the game for the activity of parties and other political powers were not established. (14) T h e w o r k ends w i t h the f o l l o w i n g notation: Whether constitutional practice indeed develops in accordance w i t h the concept of a genuine State ruled by law, in which the freedom of the individual and human dignity are guaranteed, depends on the use that each individual makes of the rights and liberties granted to him by the State. Only when society remains continually conscious that its participation and interest in the State structures is required w i l l a lasting political order be created and the return of the terrible conditions of the past avoided. (16)

4

Hermann von Mangoldt , Grundsätzliches zum Neuaufbau einer deutschen Staatsgewalt: Eine staats- und völkerrechtliche Studie (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel, Heft 2), 1947. 5

Compare Amtliche Verlautbarung der Potsdamer Konferenz from 2 August 1945, section I E (Deutschland) A 9 (I), (III).

14

Christian Starck I I . Member of the Parlamentarischer

Rat

O n 1 September 1948 the work of the Parlamentarischer Rat began, which von Mangoldt described as the crowning achievement of his life's work as a professor of public law. 6 He was chairman of the committee for Grundsatzfragen (fundamental questions), whose task it was to write the draft for the Grundrechte (basic rights) and for Articles 20 - 32 of the section on Bund und Länder, as well as a member of the influential main committee, of the Rechtspflege (administration of the judiciary system) committee and in the last weeks also of the editing committee. After the consultations of the Parlamentarischer Rat had begun, there appeared in 1948 a treatise by von Mangoldt , 'The Calling of our Time for the Creation of a Constitution' {Zum Beruf unserer Zeit für die Verfassungsgebung ),7 in which he called the attention of legal circles to the fact that the draft constitution of the Herrenchiemsee committee would be used as the basis for the work of the Parlamentarischer Rat, but noted that "entire sections, such as the preamble, the Grundrechte, the provisional norms for the constitutions of the Länder, the part on the Rechtspflege and the constitutional court, as well as several other articles, would have to be completely reformulated." 8 Von Mangoldt complained of the insufficient information of the public media, which he blamed on insufficient familiarity with the difficult constitutional questions possessed by the large majority of the press representatives that had been sent to Bonn. Von Mangoldt then described four problems that were before the Parlamentarischer Rat? First: The inner consistency of the constitution was not assured, as the five committees had differing views of how the constitution should be constructed. Second: To the call for novel rules to match the novelty of the situation von Mangoldt reacted with the observation that only a limited number of variations are possible for many political institutions and that in the precarious situation in which Germany found itself it would probably be better to return to old, tested forms than to undertake rules that had not yet proved workable in practice. The vote of no confidence was mentioned however by von Mangoldt specifically as a new rule that was necessary.

6

Compare Waltraut von Mangoldt (note 2), 226.

7

Hermann von Mangoldt , Zum Beruf unserer Zeit für die Verfassungsgebung, D O V , 1948, 51-53. 8

Id., 52.

9

Id., 52 -53.

Hermann von Mangoldt (1895 -1953)

15

Third: Although the occupying powers were not involved in the consultations (which was to change in 1949),10 the entire project was subject to the approval of the military administrations. Fourth: The Grundgesetz could be valid only for part of Germany in its entirety. Thus it was only of a provisional character. In any case however its prescriptions had to be created so they could be used for the long term, as the future political development was not foreseeable. As we are aware today, all four difficulties that von Mangoldt so clearly portrayed have been overcome, the last difficulty indeed so well that our Grundgesetz could serve as a basis for the reunification of Germany forty years after coming into force, and even more impressively, that the first free elections in the former German Democratic Republic on 18 March 1990 were an approval and acceptance of the Grundgesetz .n W i t h regard to von Mangoldt's work, especially in the main committee, the record of the proceedings12 contains more than one hundred of his statements — most concerning the Grundrechte , many concerning public international law and public national law questions, and many concerning the structure of the parliamentary system and the jurisdiction of the constitutional court. Von Mangoldt discussed difficult legal questions and explained certain formulations of the committee for Grundsatzfragen. Two examples: Von Mangoldt was unsuccessful in gaining acceptance for his opposition to the idea that the decisions of the federal constitutional court be given the status of binding law. He presented a subtle argument on the basis of his knowledge of American constitutional law, 13 in which it was known how to use and apply precedent, how to distinguish applicable from nonapplicabe cases and how not to cut off the possibility of future development of the law. The formulation of the Gleichheitssatz (equal protection) was discussed extensively. Von Mangoldt put forward the formulation of the committee for Grundsatzfragen" whereby the legislative power was expressly bound by the Gleichheitssatz. W i t h this formulation the question that had existed under the Weimar constitution, 10

Compare Hermann von Mangoldt , Das Bonner Grundgesetz, 1953, 14 et seq.

11

Christian Starch , Deutschland auf dem Wege zur staatlichen Einheit, JZ, 1990, 349; Thomas Würtenherger, Die Verfassung der D D R zwischen Revolution und Beitritt, Handbuch des deutschen Staatsrechts (HdBdStR), 1995, 107 w i t h further references; Joachim Ahr. Frowein, Die Identität der Bundesrepublik Deutschland als Völkerrechtssubjekt, HdBdStR, 1995, 486. 12

Compare Sach- und Sprechregister zu den Verhandlungen des Parlamentarischen Rates und seines Hauptausschusses, 1948(/49), 163 - 165. 13

Id., 276 - 277.

"Id., 538.

16

Christian Starck

w h e t h e r the legislative p o w e r was also b o u n d b y the Gleichheitssatz , was addressed w i t h the f o l l o w i n g words: " T h e l a w must treat similarly that w h i c h is i n the same circumstance; however, the l a w may treat differently that w h i c h is n o t i n the same circumstance, according t o the difference." I f the legislative p o w e r , however, can i n p r i n c i p l e treat differently that w h i c h is n o t i n the same circumstance, there are n o effective limits o n the legislative power, w h i c h is w h y the Grundrechte were mentioned as a l i m i t a t i o n . Thus the so-called m i n i m u m standard o f a free society i n the sense o f A m e r i c a n law was t o be protected. This m i n i m u m standard o f l i b e r t y established i n the Grundrechte

could n o t be violated b y the legislative p o w e r w i t h

reference t o the Gleichheitssatz.

I n the end the Grundgesetz s i m p l y retained the

classic judicial and administrative f o r m u l a t i o n o f A r t i c l e 3 para. 1. T h e result o f the discussions, however, demonstrates that also the legislative p o w e r is b o u n d b y the Gleichheitssatz. The discussions also indicated h o w this can be practically realized. 1 5 K e y phrases that are still especially welcome today w e f i n d i n von Mangoldt's w r i t t e n report o n the Grundrechte

for the n i n t h meeting o f the Parlamentarischer

Rat o n 6 M a y 1949 16 : The committee decided in its meeting of 21 September not to adopt the Grundrechte i n the broad and legally vague Weimar formulation but to attempt to make them more concrete. Considerable legal difficulties had been caused by the Weimar formulation, contained i n the second section of the Weimar constitution, which consisted on the one hand of law to be applied directly and on the other hand of programmatic norms or norms requiring more specific legislation for their execution or norms protecting not only liberty but also certain legal and other institutions. These difficulties were to be avoided to the extent possible. The intention was to formulate the Grundrechte so that they could, as was eventually expressed in Art. 1 para. 3 of the Grundgesetz , be seen as directly applicable law, which would bind the legislative power, the administration and legal practice, on both the federal and Länder level A t least partly not within this general conception are the two articles (6 and 7) on marriage and the family and on education and religious instruction. They contain, i n addition to declarations without direct legal effect, programmatic statements and instructions addressed to the legislative power and require more specific transforming law to be executed. This flaw in this part of the Grundrechte can only be explained w i t h reference to its legislative history. The articles in question were added only in the discussions in the main committee, which was not so strongly focused on the fundamental principles according to which the Grundrechte section was to be structured. Von Mangoldt

t h e n emphasized that

the history of the Grundrechte is at the same time the history of human freedom. Despite the dependence on earlier catalogues of Grundrechte the relationship of the individual to the State is regulated in a way unique to the contemporaneous situation. Despite the con15

For the difficulties of formulation compare Hermann von Mangoldt/Friedrich Christian Starck , Das Bonner Grundgesetz, 3. Aufl., Bd. I, Art. 3, Rdnr. 1 - 40. 16

Klein/

Parlamentarischer Rat, Schriftlicher Bericht zum Entwurf des Grundgesetzes für die Bundesrepublik Deutschland (Drucks. 850, 854), 1948/49, 5, 6 (emphasis in original). Compare also Hermann von Mangoldt, Grundrechte und Grundsatzfragen, A O R , 1949, 273, 275 et seq.

Hermann von Mangoldt (1895 -1953)

17

scious rejection of the most recent past's oppression of human freedom, the necessity of the individual's integration into the social order remained influential i n the drafting of the individual norms.

The necessity of limiting rights of individual liberty in the interest of the State community was treated by von Mangoldt in his book on America (64 - 137), in which he showed how this setting of limits on these rights is itself subject to limitation. I I I . The Commentator After the promulgation of the Grundgesetz, Hermann von Mangoldt concentrated his intellectual energies on the completion of a comprehensive commentary to the Grundgesetz. The commentary, published by Vahlen Verlag (Berlin and Frankfurt a. M.), 17 went through four editions during von Mangoldf s life; the fifth and last was in manuscript form at the time of von Mangoldt's death in February 1953. The commentary began with a portrayal of the legal situation of Germany after 1945 and continued with a treatment of the discussions of the Parlamentarischer Rat. The commentator then addressed the critics of the Grundgesetz .18 Werner Weber had found the mention in the preamble of the German people's authority to create their own constitution an exces de pouvoir and took the position that the Grundgesetz was too much based on the reaction to the immediate past, i.e. to the Weimar constitution. Von Mangoldt answered this criticism with the following: "Could the authority of the German people to create their own constitution in those days have been realized anywhere else but in the Parlamentarischer Rat} Was it not a fact, given the situation in which Germany at that time still found itself, that the Parlamentarischer Rat had to take care not to define its duties too narrowly?" A n d with regard to the substance of the criticism, von Mangoldt found Weber's opinion to be premature. "And what would Weber have said, if the Grundgesetz had not taken sufficient account of the experience with the Weimar constitution?" 19 With each new edition the amount of literature to be reviewed by von Mangoldt increased. The Grundrechte commentary appeared in its first edition in 1950 and still mainly treated the consultations of the Parlamentarischer Rat. W i t h the Grundgesetz commentary, the complete edition of which appeared in 1953 w i t h a foreword by Gerhard Leibholz, von Mangoldt presented his constitutional ideas in a comprehensive work, tried to construe the constitution itself as viable and tried to avoid the

17

Hermann von Mangoldt (note 10).

18

Werner Weber , Weimarer Verfassung und Bonner Grundgesetz, 1949, 29 et seq.

19

Hermann von Mangoldt (note 10), 22; fundamental criticism of Weber s position by Georg Stickrodt, Die notwendige Position der Staatsrechtslehre, JZ, 1952, 385-386; on this point Christian Starck, Wiedergelesen, JZ, 1995, 666 - 667.

2 GYIL 39

18

Christian Starck

doctrinal overinterpretation of the limits set on State authority. 20 Thus von Mangoldt criticized the formulation in Article 1 para. 2 of the Grundgesetz in which human rights are described as the "fundamentals of every human community." A human community could not be based alone on rights of human liberty. Human rights represent only part of the necessary fundamentals. 21 Von Mangoldt contemplated here the necessary limitation of individual freedom by the rights of others in the community, which itself could be considered a part of human rights. The Menschenwürdegarantie (guarantee of human dignity) von Mangoldt saw as "evidencing the extent to which the spirit in which the new State order is growing differs from the governmental system that was destroyed in May 1945. w22 Von Mangoldt also felt that the Menschenwürdegarantie had a fundamental effect on the rest of the Grundrechte section, that the worth and autonomy of the human individual were recognized as an unshakeable basis for the overall order. Thus the command encompassed also the relations between individuals and groups of individuals. He thereby established the effect of human dignity norms between private parties (Drittwirkung ), which is firmly anchored in the protective responsibility of the State. In the commentary to Article 38 of the Grundgesetz, das freie Mandat was extensively discussed, i.e. that a differentiation is to be made between the forbidden forced control by the Fraktion (parliamentary political faction) and the indispensable discipline of a Fraktion P This differentiation was developed by von Mangoldt ; it is even today a fundamental of not only the German parliamentary system. A last example. In the foreword to section X of the Grundgesetz covering public finances 24 von Mangoldt addressed the question why this section interrupted the overall structure of the Grundgesetz. Most of the reasons given for this did not satisfy von Mangoldt. His answer in connection to Gerloff is "that the question of the extent and substance of the financial authority of a state in a federal system presents a core problem for the federal state as the chosen model determines the effectiveness of the division of authority as prescribed in the constitution between the Lander and the Bund." This is irrefutable for every federal State.

20

Compare Böhmert (note 2), 254.

21

Hermann von Mangoldt (note 10), Art. 1, N r . 3.

22

O n this point and what follows id., Art. 1, N r . 2.

23

Id., Art. 38, N r . 4; previous to this point Hermann von Mangoldt, Der Fraktionszwang, SJZ, 1950,317-318. 24

Hermann von Mangoldt (note 10), 553.

Hermann von Mangoldt (1895 - 1953)

19

Conclusion Hermann von Mangoldt was a scholar and also put constitutional law into practice as member of the Parlamentarischer Rat. He was convinced that constitutions should be short and clearly presented.25 But he did not rely merely on language. His America book began by quoting a judge according to whom the strength of a constitution lies not in the language of the document but rather in the belief of the people in the principles that are incorporated therein. 26 Due to the situation in Germany after the defeat of National Socialism by foreign powers von Mangoldt expressed doubt, in his above-mentioned work, 'The Calling of our Time for the Creation of a Constitution', 27 whether in the population at large a fully developed sense of the spirit of genuine democracy existed and whether the time was ripe for the creation of a constitution. He did not fail to recognize, however, the necessity for the creation of a constitution because the power of security, which the existence of written law provides by clear formulation, leads "finally to democratic structures supported by the will of all, or at least by the will of the great majority." And he concluded his 1948 work with a prognosis that most happily has come about and with which I also would like to conclude: "It w i l l be the task of the people in its entirety to cooperate to bring about the achievement of this high goal [of democracy] through its conduct, i.e. remaining faithful to the law as long as the law stays within the fundamental principles laid down in the Grundgesetz Christian Starck

25

Hermann von Mangoldt , Rechtsgedanke und Regierungsformen in den Vereinigten Staaten von Amerika, 1938, 8. 26

Id., 1.

27

Hermann von Mangoldt (note 7), 53.

G A T T FOCUS SECTION

Appraising the Launch and Functioning of the W T O By John H . Jackson

I. The Launch of the World Trade Organization 1 O n 15 April 1994 at Marrakesh, Morocco, over 120 nations signed a treaty which surely must earn a place in the Guinness Book of Records. The treaty was more than 26,000 pages long. O f course, most of these pages are detailed schedules of concessions, and, like a telephone book, are not meant to be read, but rather to be used as reference. Nevertheless, the results of the Uruguay Round are a remarkable but extraordinarily complex package of material designed to assist government cooperation on economic matters in an increasingly interconnected economic world. O n 1 January 1995, after having been approved by the constitutional procedures in the major trading nations, the Uruguay Round came into force. Likewise, on that same date, a new organization — the World Trade Organization (WTO), officially came into being with an initial roster of 76 members and about a dozen other nations near acceptance, and dozens more still completing their procedures. (As this is written in December 1996, the W T O membership numbers 128.)

1

The interested reader may wish to examine some of the following works of the Author: John H. Jackson , World Trade and the Law of G A T T : Treatise on a Legal Analysis of the General Agreement on Tariffs and Trade, 1969 (Korean translation published in 1988); John H. Jackson/William J. Davey/Alan O. Sykes, Jr., Legal Problems of International Economic Relations, 3rd ed., 1995; John H. Jackson , The World Trading System: Law and Policy of International Economic Relations, 1989 (second edition forthcoming i n 1997); John H. Jackson , Hyman Soloway lecture, The Uruguay Round, World Trade Organization, and the Problem of Regulating International Economic Behaviour, in: Ottawa Centre for Trade Policy and Law, Policy Debates/Debats Politiques, 1995; John H. Jackson , Restructuring the G A T T System, 1990. Some sections of this article are based on portions of several other works by the Author which the reader may wish to consult, for example: John H. Jackson , The World Trade Organization: Watershed Innovation or Cautious Small Step Forward?, World Economy, 1995, 11 31; John H. Jackson , The W T O Dispute Settlement Procedures — A Preliminary Appraisal, chapter for the Institute for International Economics, 1996 (forthcoming).

Appraising the Launch and Functioning of the WTO

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The Uruguay Round, the eighth broad trade negotiation round under the auspices of the General Agreement on Tariffs and Trade (the GATT), is clearly the most extensive undertaken by the G A T T system, and possibly by any similar endeavor in history. The goals of the September 1986 Ministerial Meeting at Punta del Este which set forth the agenda for the Uruguay Round were extremely ambitious. If half the objectives were achieved, the Uruguay Round would still be the most extensive and successful trade negotiation ever. In fact, despite the many years of delay and negotiating impasses, the Uruguay Round has achieved considerably more than half its objectives. O f course the Uruguay Round w i l l not be an unmixed blessing for every individual or business enterprise. That is always the case for trade negotiations, including those such as this one, which on balance are positive for our economy. In some cases individuals who have relatively little capacity, either financially or otherwise, to respond to some of the requirements of adjustment that will be imposed by the trade agreements will need assistance from our government. One of the challenges of a government is to determine an appropriate response to some of the discomfort that adjustment causes. O n the other hand, it must be recognized that discomfort of this type is normal in a market economy which is dynamic and has proved so successful in providing economic benefits for its citizens. Many other forces in such an economy cause even more discomfort, such as base closings, new technology, changing consumer tastes etc. The following are the principal achievements of the Uruguay Round: 1. Services The Services Agreement (the GATS — the General Agreement on Trade in Services) is a major new chapter in G A T T history. Although in some ways seriously flawed, this text now offers an overall 'umbrella' concept for trade in services that, it is hoped, will allow an ongoing negotiating process for additional detail (probably at least a fifty-year process) to occur. In this respect the structure of the new W T O (see below) is vital. 2. Intellectual Property The TRIPS Agreement (Trade Related Intellectual Property) is a splendid new achievement, bringing considerable new international rule discipline to the level of protection for patents, copyrights, trade secrets and similar intellectual property subjects, even though some of the specialists or particular interest groups appeared disappointed by certain gaps in the text.

22

John H. Jackson 3. Agriculture

The result in agriculture is in many respects meager, certainly as measured against the Punta (and United States!) aspirations. But nevertheless there is now, for the first time, some realistic expectation for trade rule discipline over agriculture trade (especially subsidies and border restrictions). Like most other subjects of the Uruguay Round, further attention will be needed over the years and decades ahead, but the Uruguay Round has achieved an important start. 4. Subsidies/Countervailing

Duties

The results include a new subsidies 'code', again not without flaw, but with an overall conceptual approach that much improves the Tokyo Round Code. Worries about this 'code' focus on the ambiguity of several 'exceptions' clauses which could lead to abuse. 5. Textiles Textiles have been covered in the Uruguay Round with a 'phase-out' agreement for the special textile regime (always an embarrassment to the GATT), to be accomplished over a decade. Again many feel the textile agreement is flawed — the phaseout is considered either too slow or too fast — but the direction seems right. 6. Standards Trade rules for product standards have been further addressed, after the accomplishment of the Tokyo Round Code. It has become obvious that standards questions are much more complex than many thought, with some fundamental policy differences (such as the clash of environmentalist interests with trade policy goals). The Uruguay Round text provides the next group of improvements, although more attention w i l l be needed. 7. Safeguards One of the major failures of the Tokyo Round in 1979 was its inability to achieve an agreement on safeguards and escape-clause measures. In this respect, the Uruguay Round succeeded where the Tokyo Round failed, and a very impressive and ambitious Safeguards Code is part of the Uruguay Round results. It not only provides guidelines and criteria for normal escape-clause use, but establishes a rule against the use of voluntary export restraints of various kinds.

Appraising the Launch and Functioning of the WTO

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8. Market Access The Uruguay Round results include impressive advances in so-called 'market access*, including a reduction in the use of quotas (and a shift from quotas to tariffs), as well as very substantial tariff cutting (some say the most of any round). Some of the most substantial tariff cutting has been accomplished by developing countries, but in addition there have been some important advances in reducing tariffs of certain sectors to zero. 9. Developing Country Integration Developing countries are more fully integrated into the G A T T / W T O system than before, with a requirement that all countries have tariff and service schedules, and with the constraining of certain L D C exceptions. This measure could be one of the most important features of the Uruguay Round result, bringing a discipline to at least the 'newly industrializing countries , ) or NICs. 10. Dispute Settlement Procedures One of the many achievements of the G A T T , despite its 'birth defects', has been the four-decade development of a reasonably sophisticated dispute settlement process. However, there have been a certain number of flaws recognized in those procedures. The Uruguay Round, for the first time, establishes an overall unified dispute settlement system for all portions of the Uruguay Round agreements, and a legal text (rather than just customary practice) to carry out those procedures. 11. WTO Charter One of the interesting achievements of the Uruguay Round is the development of a new institutional charter for an organization which will help facilitate international cooperation concerning trade and economic relations and fundamentally change the G A T T system to accommodate the vast new terrain of trade competence thrust on the trading system by the Uruguay Round. A t the end of the second year of functioning of the new W T O , it is an appropriate time to appraise this new institution which already has established itself as likely to be the most important of the international economic institutions in the world. The purpose of this article is to present a brief overview of the new organization and its first years, and to suggest some of the problems that are or will be faced by this organization.

24

John H. Jackson I I . A Bit of History — the G A T T and its Birth Defects

To understand the context of the Uruguay Round results, a few paragraphs about the history of its predecessor — the GATT, and other related institutions should be helpful. During World War II, statesmen of the allied countries developed a series of policy approaches which they hoped would correct some of the mistakes of the period between World War I and World War II. As a result of these policy initiatives, the Bretton Woods Conference was held in 1944 to create the institutions of the World Bank and the International Monetary Fund. A t this conference, which focused on monetary issues, it was recognized that trade issues also were important, and that an institution regarding trade was essential to round out the 'Bretton Woods structure' for post-war international cooperation. A series of diplomatic meetings negotiated a charter for a trade organization — the I T O or International Trade Organization. The charter was completed in 1948, but it never came into existence because the United States Congress did not approve, and other nations were unwilling to go ahead without the United States. O n the other hand, during the negotiations of the charter, there was also negotiated a more modest agreement known as the G A T T — the General Agreement on Tariffs and Trade. It is well known that the G A T T was never intended to be an organization. The G A T T was to be a multilateral trade and tariff agreement, which would depend for its organizational context and secretariat services on the ITO. Unlike the I T O Charter, the G A T T was negotiated under advance authority granted to the President in the 1945 extension of the Reciprocal Trade Agreements Act (the first such act was in 1934). Because the I T O failed to come into existence, the G A T T gradually became the focus for international government cooperation on trade matters. Nevertheless, despite this inauspicious beginning, the G A T T has been remarkably successful over its nearly five decades of history. The success was particularly important for reduction in tariffs so that in later years tariffs became less important than a plethora of non-tariff barriers, some addressed (for the first time) in the seventh round of trade negotiations called the Tokyo Round (1973 - 1979). As decades passed, however, there was recognition that the G A T T system was being increasingly challenged by the changing conditions of international economic activity, including the greater 'interdependence' of national economies, and the growth in trade of services. Concern developed that the G A T T was too handicapped to play the needed role of complementing the Bretton Woods system as the 'third leg', alongside the IMF and World Bank. Problems and 'birth defects' included: a) provisional application and grandfather rights exceptions,

Appraising the Launch and Functioning of the WTO

25

b) ambiguity about the powers of the Contracting Parties to make certain decisions, c) ambiguity regarding the waiver authority and risks of misuse, d) murky legal status leading to misunderstanding by the public, the media and even government officials, e) certain defects in the dispute settlement procedures, f) lack of institutional provisions generally, so constant improvisation was necessary. I I I . What is the WTO? The W T O can be described as a 4 mini-chart er'. It is devoted to the institutional and procedural structure that will facilitate and in some cases be necessary for effective implementation of the substantive rules that have been negotiated in the Uruguay Round. The W T O is not an I T O (the 1948 I T O draft charter which never came into force). The W T O Charter itself is entirely institutional and procedural, but it incorporates the substantive agreements resulting from the Uruguay Round into annexes. The W T O essentially will continue the G A T T institutional ideas and many of its practices, in a form better understood by the public, the media, government officials and lawyers. To some small extent, a number of the G A T T 'birth defects' are overcome in the W T O . The W T O Charter (Article XVLI) expressly states the intention to be guided by G A T T "decisions, procedures and customary practices" to the extent feasible. The practice of consensus is better defined and for the first time becomes a legal procedure in some important decisions, rather than just a practice. The W T O structure offers some important advantages for assisting the effective implementation of the Uruguay Round. For example, a 'new G A T T 1994' supersedes the 'old GATT'. This procedure avoids the constraints of the amending clause of the old G A T T which might have made it quite difficult to bring the Uruguay Round into legal force. A t the same time, the W T O ties together the various texts developed in the Uruguay Round and reinforces the 'single package' idea of the negotiators, namely, that countries accepting the Uruguay Round must accept the entire package (with a few exceptions). The W T O Charter establishes the explicit legal authority for a secretariat, a Director General and staff. It does this in a way similar to many other international organizations, and it also adds the obligation for nations to avoid interfering w i t h the officials of the organization.

26

John H. Jackson

Another important aspect of the W T O structure is that it facilitates the extension of the institutional structure (GATT-like) to the new subjects negotiated in the Uruguay Round, particularly services and intellectual property. Without some kind of legal mechanism such as the W T O , this would have been quite difficult to do since the G A T T itself only applies to goods. The new G A T T structure separates the institutional concepts from the substantive rules. The G A T T 1994 w i l l remain a substantive agreement (with many of the amendments and improvements developed throughout its history, including in the Uruguay Round). The W T O has a broader context. Similarly the W T O will be able to apply a unified dispute settlement mechanism, and the Trade Policy Review Mechanism to all of the subjects of the Uruguay Round, for all nations who become members. Finally, the W T O Charter offers considerably better opportunities for the future evolution and development of the institutional structure for international trade cooperation. Even though the W T O Charter is minimalist, the fact that there is provision for explicit legal status and the traditional organizational structure helps in this regard. A careful examination of the W T O Charter, however, suggests that the W T O has no more real decision-making power than that which existed for the G A T T under the previous agreements. This may seem surprising, but in fact the G A T T treaty text contained language that was quite ambiguous, and could have been misused (but fortunately was not) to provide rather extensive powers. For example, in Article 25 of the G A T T the Contracting Parties acting by majority vote were given the authority to take joint action "with a view to facilitating the operation and furthering the objectives of this agreement." This is very broad and ambiguous language. Under the W T O Charter, considerably more attention has been given to the question of decision-making in a number of different contexts. The practice of 'consensus decision-making' is reinforced, and when consensus fails other restraints have been added, such as increasing the voting requirements for certain actions (to threefourths of the members for many waivers and for formal interpretations), and a provision in the amending clauses that a country will not be bound by an amendment which it opposes if the amendment would "alter the rights and obligations of the members." Likewise, the waiver authority is more constrained and w i l l be harder to abuse. Furthermore, formal 'interpretations' "shall not be used in the manner that would undermine the amendment provisions. . . ." Thus there are more legal grounds to challenge overreaching of power by the W T O institutions. The amending authority (Article X) is itself quite intricate and ingenious. It obviously has been carefully tailored to the needs of the participating nations related to each of the different major multilateral agreements (the G A T T , the GATS and intellectual property). Amendments for some parts of these require unanimity. Other parts require two-thirds (after procedures in the Ministerial Conference and Coun-

Appraising the Launch and Functioning of the WTO

27

cils seeking consensus for amendment proposals). In almost all cases, as mentioned above, when an amendment would "alter the rights and obligations," a member which refuses to accept the amendment is not bound by it. In such a case, however, there is an ingenious procedure (partly following the model in the GATT) whereby the Ministerial Conference can by three-fourths vote of the members require all to accept the amendment, or to withdraw from the agreement, or to remain a member with explicit consent of the Ministerial Conference. It is therefore very hard to conceive of the amending provisions being used in any way to force a major trading country such as the United States to accept altered rights or obligations. As stated above the spirit and practice of the G A T T has always been to try to accommodate through consensus negotiation procedures the views of as many countries as possible, but certainly to give weight to views of countries who have great weight in the trading system. This will not change. I V . The First Years — Stresses on the System During the first year of its operation the organization has faced several 'stresses'. Yet in each of these, the organization has overcome the problem successfully. The first such stress was the selection of a Director General. This caused a considerable amount of diplomatic footwork, but in the end, and almost inevitably, the current Director General was selected. A second stress was the announcement by the United States of its intention to apply tariff increases on luxury automobiles imported from Japan if the Japanese did not satisfy certain United States trade demands. The threat involved action that would have been a clear violation by the United States of its obligations under the W T O . 2 This was extraordinarily unfortunate, giving the impression that the largest economic power in the world was suggesting within a half year of accepting the massive Uruguay Round treaty obligations that it was prepared to deviate from those obligations upon its own initiative, without any reasonable justification. Fortunately, the disputing parties (the United States and Japan), after various threats and cross-threats of bringing W T O dispute settlement procedures, settled their case. Indeed, the result of this may have been to strengthen the W T O system, because at least to careful observers it appeared that the United States backed down from its threat. Finally, during a good part of 1995 the leadership of the organization strove to develop the necessary consensus to appoint the seven appellate body roster members. This occasioned a large amount of diplomatic interchange and concern, but by

2

See John H. Jackson , U.S. Threat to New World Trade Order, Financial Times, 23 May 1995, 13.

28

John H. Jackson

December the list of seven names for the roster was formally approved, and these persons were sworn in at the Geneva W T O Headquarters on 13 December 1995.3 A l l in all, it appears that the first year of the W T O was reasonably successful. Clearly there are clouds on the horizon that could bring some stormy weather in the future, but that is to be expected for an organization that is already playing an extraordinary central role in international economic diplomacy. The second year has also been quite satisfactory, although some important problems have begun to develop. The resources available to the secretariat are coming increasingly under strain. Although several dozen new positions were created, the vast increase in treaty text and the confidence of the new organization, compared to the G A T T , clearly will require additional resources for satisfactory further implementation. For example, there are a very large number of notification requirements under the texts of the Uruguay Round, and these must be supervised by the secretariat in the context that many of the national governments do not themselves have adequate personnel to develop so many effective notifications. In addition, the Uruguay Round texts have a number of ongoing requirements for further negotiation. Some of these, particularly in the services area, have proceeded but resulted in impasses or inability to complete certain subject negotiations (such as financial services and telecommunications.) In the Author's view, this is not surprising since these subjects were ones that the Uruguay Round was unable to complete, partly because of their complexity and the difficult variations among national objectives. It is hoped that the delays will be temporary, and that within a few years many of these matters can be resolved or at least a beginning of appropriate resolution can occur. Another feature that has become obvious is the centrality of the dispute settlement process. Some people have described the new dispute settlement procedure as the most important aspect of the new institution. V. The W T O Dispute Settlement Procedures One of the many achievements of the G A T T , despite its 'birth defects', has been the development of a reasonably sophisticated dispute settlement process. The original G A T T treaty contained very little on this, although it did specifically provide (in Articles 22 and 23) for consultation, and then submission of issues to the G A T T 3

The W T O Dispute Settlement Body announced on 29 November 1995 the following appointments to the appellate body: James Bacchus of the United States, Christopher Beehy of New Zealand, Professor Claus-Dieter Ehlermann of Germany, Dr. Said El-Naggar of Egypt, Justice Florentina Feliciano of the Philippines, Julio Lacarte Muro of Uruguay and Professor Mitsuo Matsushita of Japan. World Trade Organization Press Release No. 32 of 29 November 1995.

Appraising the Launch and Functioning of the WTO

29

Contracting Parties. As time went on, however, the practice began to evolve more towards a 'rule-oriented' system.4 For example in the late 1950s the practice introduced a 'panel' of individuals to make determinations and findings and recommend them to the Contracting Parties. Before that, disputes had been considered in much broader working parties comprised of representatives of governments. In the Uruguay Round 1994 text, there is a major new text concerning dispute settlement procedures, the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). 5 The new text solves many of the issues that have plagued the G A T T dispute settlement system, although not all of them. It accomplishes the following: 1) It establishes a unified dispute settlement system for all parts of the G A T T / W T O system, including the new subjects of services and intellectual property. Thus, controversies over which procedure to use will not occur. 2) It reaffirms the right of a complaining government to have a panel process initiated, preventing blocking at that stage. 3) It establishes a new appellate procedure which will substitute for some of the Council approval process of a panel report, and overcome blocking. Thus, a panel report w i l l automatically be deemed adopted by the Council, unless it is appealed by one of the parties to the dispute. If appealed, the dispute w i l l go to an appellate panel. After the appellate body has ruled, its report will go to the Council, but in this case it will be deemed adopted unless there is a consensus against adoption, and presumably that negative consensus can be defeated by any major objector. Thus the presumption is reversed, compared to the previous procedures, with the ultimate result of the procedure that the appellate report will in virtually every case come into force as a matter of international law. It is clear that no system will be perfect, and that not all cases w i l l be decided in the most appropriate way. There will be mistakes. There will be situations where countries will lose cases which they should lose; but also there will be cases where others will lose cases they did not deserve to lose. This is not different from domestic legal processes. It is quite interesting how significant dispute settlement systems have become in major international trade agreements in the last decades. For example, it is a very intricate part of the European Union with its Court of Justice sitting in Luxembourg. It is also an important and enhanced part of the United States-Canada Free Trade Agreement, the N A F T A (North American Free Trade Agreement), and of other similar regional arrangements that are currently evolving.

4

Jackson, The World Trading System (note 1), chapter 4.

5

33 I L M 1226.

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John H. Jackson

It is clear that effective dispute settlement procedures are very important to the effective implementation and creditability of the treaty rules that have been created to enhance economic cooperation. In market-oriented economies, with the important characteristic of decentralized decision-making distributed among millions of enterprises, a rule-oriented system is particularly important to efficient investment and marketing decisions. This in turn promotes economic development. The United States is an important beneficiary of such a system. As of December 1996,6 there were a total of 64 complaints initiated under the new dispute settlement process. That is two or three times the normal rate of application for dispute settlements as witnessed and experienced in the G A T T . Perhaps this is a tribute to the new process. These 60 complaints involved 44 discrete cases (because many complaints now have multiple complainants). Already, 14 cases seem settled, which is a very encouraging aspect of the new process. Indeed, the tendency towards settlement is partly influenced by the automatic character of the system mentioned earlier. T w o appeals have been completed by October 1996, namely: United States — Standards for Reformulated and Conventional Gasoline , complaints by Venezuela and Brazil (appellate and lower panel findings concluded that the United States should change its law to conform with its obligations); and Japan — Taxes on Alcoholic Beverages , complaints by the European Communities, Canada and the United States (again the appellate body report and the lower panel report recommended that Japan revise its tax system on alcoholic beverages to be consistent w i t h G A T T Article III). 7 Two appeals for the first year are a relatively light load, and certainly in the future there may be many more. O n the other hand the first year of the appellate body has given the seven members of the appellate body a chance to study the processes and develop rules of procedure. Some of the members were not particularly expert in the G A T T / W T O law and jurisprudence, so this opportunity to study has worked out reasonably well. Partly but not solely resulting from the relatively short experience of the W T O dispute settlement procedures, a number of jurisprudential or systemic questions regarding the W T O dispute settlement process and its new appellate body can be identified. These problems include the question of incursions upon 'sovereignty', and also the questions of the appropriate allocation of power (in both the vertical and horizontal sense, that is, at what level of government — international, national, 6 Information supplied by W T O Document on the Internet, Overview of the State-of-Play of W T O Disputes, 4 December 1996. See also WTO-Focus. 7 W T O Case: United States — Standards for Reformulated and Conventional Gasoline , Appellate Body Report and Panel Report, W T O Document W T / D S 2 / 9 of 20 May 1996. W T O Case: Japan — Taxes on Alcoholic Beverages , Report of the Appellate Body, W T O Document W T / D S 8 / A B / R of 4 October 1996.

Appraising the Launch and Functioning of the WTO

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sub-national — should power be allocated, and between what kinds of institutions on the same level — judicial, legislative, administrative). The following is a brief description of some of these jurisprudential questions: 1. Rule Orientation of the WTO Procedures From the beginning of the G A T T there was a certain bifurcation in the thinking about what the dispute settlement process was about. 8 Was it designed to be merely a procedure to assist parties to settle their disputes, and thus really to engage in diplomatic maneuvering with what is sometimes called a 'power-oriented approach'? O r was it a system that was designed to be more rule oriented in the sense of arriving at just results, in terms of the real obligations undertaken by parties through the negotiated treaty texts? A t the beginning of the G A T T this was quite murky. To the very end of the GATT's history (at the end of 1995) there were differing attitudes about which was the true goal and direction of these procedures. Even now in the W T O there is still some dispute on that. However, the history of the G A T T demonstrates a steady evolution towards a more rule-oriented approach. This was manifest even in the 1950s when the venue of disputes was shifted from 'working' parties to 'panels', and then in the 1960s when the general concept of 'prima facie nullification or impairment' was developed to apply to all violations of treaty obligations. The 1979 understanding on dispute settlement resulting from the Tokyo Round continued this development and in the 1980s the G A T T moved strongly towards a rule-oriented approach, in the actual practice of the dispute panels. W i t h the new Dispute Settlement Understanding (DSU) text, the question is what approach does it take? There are clauses that arguably go both ways, but if one reads the DSU through carefully, and inventories the clauses that relate to this issue, one can easily come to the conclusion that the DSU opts for the rule-oriented procedure. 9 After a year or two of appeals, and to an appellate body that obviously seems to lean towards that direction very strongly, this will likely be even more definitive. 8 9

Jackson, The World Trading System (note 1), chapter 4.

See, e.g., DSU Article 3, para. 2, which in part reads: 3.2 The dispute settlement system of the W T O is a central element i n providing security and predictability to the multilateral trading system. See also speech of King Hassan II for the host government of the A p r i l 1994 Marrakesh ministerial meeting to conclude the Uruguay Round, where he said: By bringing into being the World Trade Organization today, we are enshrining the rule of law in international economic and trade relations, thus setting universal rules and disciplines over the temptations of unilateralism and the law of the jungle.

32

John H Jackson

The first appellate body report 10 is an extraordinarily interesting report, even apart from the substance of what it was addressing (the environmental protection matters of United States regulation and how they related to at least three different clauses in the G A T T , most particularly Article XX). The flavor of that report is significant. Among other things, the report definitely says that this process and the G A T T and the W T O generally, are a part of 'international law' as such. (There has been some dispute as to whether it was a 'separate regime', sort of sealed off from normal concepts of international law, but the appellate body explicitly states that the W T O is part of international law, and it goes on to engage international law principles of treaty interpretation, very deeply referring to the Vienna Convention on the Law of Treaties). 11 The appellate body report seems thus to embrace an even stronger endorsement of the rule-oriented concept. 2. The Legal Effect of a Dispute Panel Report — Obligation to Perform? Another major question is what is the legal effect of a report? There are also contrary opinions on this. 12 Indeed, some statements by government officials, on both sides of the Atlantic and elsewhere in the world, have been misleading. The alternatives are the following. A t the end of a procedure, after the first-level panel report, or the appellate panel report, do the findings of the report mean that the nation that has lost the case, the nation to which the panel addresses a series of recommendations (usually recommending that the country concerned bring its practice into consistency with its international obligations under the Uruguay Round texts), has an international law obligation to conform its law practice to the recommendations? O r does it mean that such a nation has a choice either to perform, or 10

See note 7.

11

Vienna Convention on the Law of Treaties, 1969, Article 31, para. 3(b), 1155 U N T S 331, 340 (entered into force 1980). The Vienna Convention is deemed to express the general rules of international customary law, even for many nations who have not technically accepted the Vienna Convention itself. The convention clearly notes the obligation pacta sunt servanda , namely that treaties w i l l be fulfilled. It also sets up a series of principles for interpreting treaties (Article 31), most notably the question of 'preparatory work' in a way that is often different than such treatment i n national legal systems. In the case of all of these principles, the appellate body's statement that G A T T / W T O law is part of international law means that these general principles of international law apply to its work and that of the W T O generally. This could have the most significance w i t h respect to principles of interpretation of treaties. 12 See John H. Jackson , The Legal Meaning of a G A T T Dispute Settlement Report: Some Reflections, in: Niels Blokker/Sam Muller (eds.), Towards More Effective Supervision by International Organizations, Essays i n Honour of Henry G. Schermers , vol. I, 1994, 149 - 164. See also John H Jackson , The W T O Dispute Settlement Understanding — Misunderstandings on the Nature of Legal Obligation, Editorial Comment for the American Journal of International Law (forthcoming in January 1997).

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to compensate? In other words, can you compensate and 'get off? (The word 'compensation', incidentally, has some ambiguities in it also. 13 ) Government officials, including some in the United States who have testified before Congress during 1994, have said that all a report requires is for a nation to 'compensate', that it does not create a legal obligation of any kind to perform. There are strong arguments that this is wrong. Unfortunately, the negotiators for the D S U did not quite nail that down explicitly. However, at least one of the negotiators that participated in that negotiation said they thought they had it nailed — that they discussed it for hours — and it was clearly meant that there was a legal obligation to perform. It turns out not to be quite that clear. The D S U has at least twelve clauses14 that are relevant, and all these add up to quite a strong propensity towards the legal obligation, including, for example, and perhaps most interestingly, a clause that says that even if there is compensation, the matter remains on the agenda of the dispute settlement body until compliance occurs. 15 The idea is that compensation is only a temporary measure, or a fall-back measure; this is reinforced by the context of other clauses, including a distinct preference expressed for bringing measures into consistency, and an interesting clause in a separate procedure which is now designed for 'non-violation cases'. In the non-violation cases, there is no obligation to perform, 16 which is perfectly logical, as explained above. But expressing it there suggests that in the violation cases, there is an obligation to perform. Does this matter? Is compensation and/or retaliation the real underpinning of this system? I would suggest that the compensation/retaliation measures are not what is really at the center of dispute settlement, and have not been so in the G A T T historically. It is really the credibility of the judgment that is rendered that raises a series of diplomatic hurdles to a country that tries to ignore it. Even the most powerful trading entities in the world find it difficult diplomatically to ignore the results of the dispute settlement process, although in some sense they could get away w i t h

13

The word 'compensation' appears particularly in the DSU at Article 22. Under G A T T practice, compensation always meant trade measures and not any sort of liquid monetary compensation. It probably w i l l be similarly interpreted under the W T O D S U also, although there is some ambiguity about that. 14

See DSU Articles and paragraphs as follows: 3:2, 3:7, 7:1, 11, 15:2, 15:3, 17:13,21:1,21:3, 22:1,22:2, 26:1(b). 15

D S U Article 22, para. 8.

16

D S U Article 26.

17

The United States, for example, has complied w i t h most of the cases under the G A T T which found the United States in non-compliance.

3 GYIL 39

34

John H. Jackson 3. The Standard of Review

Another issue to discuss here is the 'standard of review'. These paragraphs do not address the standard of review of the appellate body when it reviews the first-level panel report. Instead they address the degree to which the W T O dispute settlement process as a whole, both panel levels, should second-guess national government administrative decisions that relate to treaty clauses in the Uruguay Round. National governments will inevitably be interpreting some of these broad clauses themselves; they will have to, because there is ambiguity as mentioned earlier. So to what degree then should the international dispute settlement bodies give deference to those national decisions on interpretation? This is the 'standard of review' question. The Author and his colleague have recently published an article 18 about this question, discussing in particular some of the efforts by certain negotiators, mostly those of the United States, who tried to achieve a very restricted 'standard of review' treaty obligation in the Uruguay Round, especially in the context of the antidumping measures. The United States negotiators did not succeed entirely in their endeavor. They were trying to translate the domestic United States jurisprudence of the Chevron case19 into the international obligation in the treaties, but they did not succeed in doing that. There is, however, some very curious language in the antidumping text about the degree of deference that a panel should give to national governments. 20 Basically it says that if an analysis, according to normal interpretation procedures under international law, results in ambiguity, and that if a government has chosen one among "permissible options" for interpretation, that the international panel should allow the government to continue with that option. There are numerous other problems with that approach but without going into these it can be noted that the particular language of Article 17, paragraph 6 of the antidumping text 18

John H. Jackson/Steven P. Croley> W T O Dispute Procedures, Standard of Review, and Deference to National Governments, American Journal of International Law, vol. 90, 1996, 193. 19 20

Chevron U.S.A. v. Natural Resources Defense Council , 467 U.S. 837 (1984).

Jackson/Davey/Sykes (note 1), Documents Supplement, 194 (text on antidumping): 17.6 I n examining the matter referred to in paragraph 5: (i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned; (ii) the panel shall interpret the relevant provisions of the Agreement in accordance w i t h customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity w i t h the Agreement if it rests upon one of those permissible interpretations.

Appraising the Launch and Functioning of the WTO

35

applies only to antidumping decisions. It does not apply to the rest of the dispute settlement process, and regardless of what it means, therefore, in the other areas perhaps a different approach can be expected. The D S U text, other provisions in the Uruguay Round text and resolutions of the Marrakesh meeting provide for several possibilities that the antidumping standard of review text will apply more broadly than to antidumping decisions. For one thing, a Marrakesh decision notes, but does not require, the possibility that countervailing duty decisions should be consistent and similar to antidumping decisions. In addition, a Marrakesh resolution provides for a review of this antidumping Article 17 paragraph 6 language at the end of five years. 21 It seems clear there should be some measure of deference at the international dispute settlement level in the dispute settlement process to national government decisions. There is support for that in other areas of international law, particularly in the European Convention of Human Rights. 22 A t the very end of the 1996 first appellate body report, on the United States Gasoline case, the panel included this language: W T O members have a large measure of autonomy to determine their own policies on the environment, including its relationship w i t h trade. 23

This appears to be a declaration of intention by the first appellate report to give some measure of latitude to national governments in this respect. That raises a host of other issues. For example, how far should this go? What issues are more appropriately decided at the national level instead of the international level? Europeans sometimes call this a 'subsidiarity' principle. 4. The Question of Panel 'Judicial Restraint'Compared

to Judicial Activism'

The next 'fundamental principle of W T O jurisprudence' discussed in this Article is the question of how much 'judicial activism', or 'judicial restraint', should be exercised by the international panel system. This question obviously relates to the standard of review, but there are other concepts and ideas that are involved, including how far an international body should 'push the envelope' of interpreting 21 Decisions at Marrakesh: Decision on Review of Article 17.6 of the Agreement on Implementation of Article V I of the General Agreement on Tariffs and Trade 1994 (antidumping text); Declaration on Dispute Settlement pursuant to the Agreement on Implementation of Article V I of the General Agreement on Tariffs and Trade, 1994, or Part V of the Agreement on Subsidies and Countervailing Measures (subsidies text). See Jackson/Davey/Sykes (note 1), Documents Supplement, 435. 22 R. St. J. Macdonald , The Margin of Appreciation, in: R. St. J. Macdonald/F. Petzold (eds.), The European System for the Protection of Human Rights, 1993. 23

3:

See the United States Gasoline case (note 7), 30.

Matscher/H.

36

John H. Jackson

ambiguous clauses to suit certain policy preferences, possibly preferences of the panel alone, or possibly policy preferences that the panel detects the negotiators, or currently the governments, have. Again the DSU has some interesting clauses on this. Article 3, paragraph 2 says: The dispute settlement system of the W T O is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance w i t h customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.

What does that mean? Arguably it resonates in the direction of a caution to the panels to use 'judicial restraint', and not to be too activist. O f course the United States Congress feels quite strongly about that. 24 The language about "rights and obligations" is also included in the W T O Charter. So this notion of restraining changes in the rights and obligations of the nation States is quite prevalent in the system. The United States arguably would be one of the most jealous about that, and yet it seems that the United States wants to push the envelope in some of the disputes it is bringing. For example, with reference to the so-called 'non-violation cases', almost unique in the W T O / G A T T system, there is an opportunity to bring a case which does not involve any violation of treaty obligations. Instead, a case may involve what is called 'nullification or impairment', which is a very ambiguous phrase. These are termed 'non-violation' cases, as they have developed in the jurisprudence of the G A T T . The DSU for the first time has an explicit separate procedure designed for those cases, as mentioned before. When the United States or another country brings a case that does not involve a violation, but targets something like competition policy, or the Japanese Keiretsu , or something else that is not included within the current treaty texts, it w i l l likely ask a panel to change the 'rights and obligations' of the members. In other words it is saying to a panel, "We want you to interpret 'nullification or impairment' to embrace some of these results that for policy reasons we would like to see in this case." That is risky — it is almost doing with one hand what the other hand was trying to prevent. Obviously this has longer-term fundamental implications. 24

One congressional proposal was part of a compromise agreement between Senator Dole and President Clinton , just before the Senate vote which was on 1 December 1994. The agreement and the later bill introduced by Senator Dole (but not yet passed as of this writing) called for a special commission of United States federal judges to review the panel report results of every W T O dispute settlement proceeding affecting the United States. The commission would give its advice to the Congress on the appropriateness of such a report, in the light of four specified criteria in the Dole proposal. A description of the proposal is contained at 104th Congress, 1st Session, S.1438, 4 December 1995.

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5. Resources and Implications A n important issue for any institution, particularly a new one, is the allocation and adequacy of resources. The 'judicialization' of the W T O procedures does not necessarily come cheap. Already, there is a considerably enhanced budget for dispute settlement compared to the G A T T . However, under the G A T T , dispute settlement was almost always a 'part-time affair', with virtually no specific allocated resources, except some secretariat lawyers to assist panels. N o w there is an appellate body with significant staff and other resources, including retainers and per diems , as well as travel and support funds for staying in Geneva. There is a new legal staff devoted to the appellate body consisting of a director and three staff lawyers, as well as some non-professional staff. Considerable, and one must say, very admirable space has been allocated for this effort in the secretariat building of the W T O on the shore of Lake Geneva. The regular legal staff continues from its former embodiment, but is also finding its work greatly increased, partly resulting from the large number of disputes that have been initiated. So far, the resource allocation has been quite good. However, if disputes continue at the current rate, and there are not a larger number of settlements, we will shortly see some important strains on the resource possibilities. In addition, the issues that w i l l need to be addressed by the dispute settlement system may incur special resource requirements. For example, some of the issues may be very technical (such as some of the financial services issues, or the intellectual property issues) and may require special expertise (some of which is allowed for in the DSU). 25 In addition, some issues may call upon a more serious examination of 'facts' than the system has been able to provide in prior cases. This could be particularly true if 'competition policy' issues begin to flow into the W T O system. 6. Fact Examination By and large the G A T T dispute settlement process was not able and did not try to explore facts to any degree. Indeed, it was generally assumed that the facts would be brought to the attention of the international panel by written and oral arguments of the representatives of the disputing nations. In the W T O procedure, this may also continue. Indeed, in the antidumping text on 'standard of review', Article 17, paragraph 6, it is largely contemplated that the facts will be determined at the national level. However, this text only applies to the antidumping cases (so far), and may be difficult to sustain. Certain kinds of issues, such as environmental issues or financial services and other services issues, as well as intellectual property, may require some greater attention to facts. It has been noted 25

See D S U Article 13.

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John H. Jackson

that competition policy decisions in national legal systems tend to be very fact oriented, with massive hearings and massive records to contend with. Indeed, in the potential dispute between the United States and Japan concerning film (Kodak and Fuji), the two private firms that are perhaps the major contenders in the dispute have produced very extensive fact accounts (most of which can be found on the Internet). A serious and prolonged fact-type hearing could easily bankrupt the resource allocation of the W T O dispute settlement system. Clearly some care will have to be taken about where the dividing line should be drawn between an essential examination of facts in order to determine how the law applies, and more extensive fact records. 7. Non-Violation Cases or ' Nullification

or Impairment'

One of the potentially very troublesome issues is involved in the rather unique special attention given to 'non-violation' cases. Under the G A T T , this attention developed through practice by the language in the G A T T text, including the phrase 'nullification or impairment' (as discussed above). This language has been carried into the W T O , and for the first time, a special separate procedure under the D S U has been designed as the route to take when a non-violation case is pursued. As indicated above, the problem with non-violation cases is the generality of the language 'nullification or impairment', which creates great ambiguity about what would be an appropriate way to analyze these cases and to determine when one nation had some sort of right of relief from another nation. It is interesting that in the rules for non-violation cases there are no clauses similar to those in the violation cases that would suggest that there is an obligation to actually perform recommendations, that is, to bring one's law into consistency with the international rule. The relief allowed under the DSU is merely "negotiations for appropriate compensation." This makes sense, since the basis of a non-violation case is not the alleged inconsistency of national laws or practices with an international rule. One must hope that nations and the responding W T O institutions w i l l be very cautious about entertaining non-violation cases for new issues for which there are not adequate or adequately precise rules contained in the Uruguay Round treaty texts. This is an issue that has been discussed above in connection w i t h so-called 'competition policy'. Competition policy is not centrally or explicitly taken up in the Uruguay Round and the G A T T treaty texts. Indeed, the fact that such policy was contained in the 1948 I T O Charter which failed to come into force has led the G A T T itself to be very cautious about taking up these policy issues. O n the other hand, there are a number of clauses in the new treaty texts for services and intellectual property, etc., which do relate to competition policy. If a country were to bring a non-violation case which essentially would be based on competition policy consid-

Appraising the Launch and Functioning of the WTO

39

erations, it would seem that such an approach would be truly 'law-making* rather than 'law-applying'. In essence the W T O panel would be asked to establish the rules of conduct concerning competition policy, so as to apply them in the particular case which was brought. This could be considered inconsistent with the clause in the DSU that is supposed to restrain panels from "changing the rights or obligations of parties." V I . Some Other Institutional Problems and Perspectives Almost any reflective consideration of the rapidly increasing international economic interdependence leads to recommendations for increasing international cooperation in order to cope with the problems that interdependence is thrusting upon us. N o longer can nations effectively implement their national economic regulations (ranging from interest rates to prudential banking measures, to fairness in the stock markets, even to labor standards) because too often there are international constraints and implications related to almost any national measure, even those of the largest economies. Some policy makers at least have realized this. However, the more one turns to international cooperation institutions, the more it begins to be clear that attention must be paid to the 'constitution' of these international institutions, just as extensive attention is given to national level 'constitutions'. This raises issues about 'governance', such as preventing abuse of power, effectively channeling important information to decision-makers, giving constituencies the opportunity to be heard and to have weight of influence on the decision-making processes. These concepts inevitably lead to questions about the appropriate distribution of power over economic affairs in the world, and the degree to which power should be located in an international institution, or in a national/federal institution, or in sub-federal or even very local governmental units. The word 'subsidiarity' is sometimes used to describe these general concepts of distribution of power, and the opposing goals of urging government decisions to be made at the lowest level possible so as to be close to constituents that are affected, but on the other hand empowering higher levels of government to take measures that can be effectively implemented by appropriate measures at such a higher level. The W T O as an institution continues to require attention, including attention to problems other than those mentioned in the previous section. The decision-making and voting procedures of the W T O , although much improved over the G A T T , still leave much to be desired. It is not clear how the consensus practice will proceed, particularly given the large number of countries now or soon involved. It may be necessary at some point to develop certain practices about voting to constrain misuse of the various voting rules.

40

John H. Jackson

Second, w i t h well over 120 nation members accepted, the W T O must soon face up to its internal procedures for effective governance and administration. This suggests the need for some sort of small steering group to guide and advise the Director General and other officers of the W T O in developing priorities for agenda and secretariat work, as well as initiatives to meet new problems in the world. The question of such a steering group has been controversial in the past; every country that suspects it would not be a member of such a group tends to oppose its establishment. However, without such a group informal mechanisms arise that may be even more exclusive and biased towards certain types of economic structures than would otherwise be desired by the membership. For example, the 'quad* group consisting of the United States, the European Communities, Japan and Canada has been very influential in the G A T T system. Surely that influence w i l l continue, but the question is whether those four governments will be joined by a broader group of representative governments while still maintaining a number small enough to be an effective guiding mechanism for the W T O . Third, an important institutional problem will be how to integrate into the W T O new or emerging subjects which arise in the future, such as the problem of environment and trade rules. The amending rules of the W T O may (as they did in the G A T T ) turn out to be too rigid and difficult to fulfill. If that is the case, how will new subjects be integrated into the system? As mentioned above, it may be that new 'plurilateral agreements' under Annex 4 will be a major device for this, but the more that occurs, the more we will go back to the old G A T T difficulty of a-la-carte choices. Fourth, there is the broad and important issue of enhancing the public understanding of the W T O institution and its work. This leads to the subject of 'transparency', commonly understood to mean adequate information and openness of the procedures, advocacy, meetings etc ., so that the media and scholarly endeavors can assist in informing the world public about the operation of the W T O , which can have such an important influence on the lives and welfare of people. Fifth, there has already been much comment about the 'agenda' after the Uruguay Round for the World Trading System. One question often raised is whether there should be another 'round', or whether the procedures for pursuing future subjects should try to avoid rounds which tend to be so complicated and cumbersome. The arguments in favor of rounds, however, may still prevail, namely that a larger round gives more opportunity for trade-offs between different subjects, and raises the issues to the highest level of national governments where definitive decisions can usually be made (whereas lower-level officials and technicians would not be able to make such compromises).

Appraising the Launch and Functioning of the WTO

41

Without necessarily providing a complete inventory of substantive issues to be faced in the future by the organization (in addition to the so-called 'left-over issues' mentioned above), the following seem to be appropriately included on most lists: 1) A series of subjects, already newly facing the organization: a) competition policy in relation to trade rules, b) non-market economies, State trading and economies in transition and their relation to the trading rules (e.g. China, Russia etc.), c) product (and service) standards and the use of science, raising questions of harmonization or other techniques of facilitating trade flows, d) cultural, social policy and structural impediments to trade. 2) There are also a series of subjects that we could call 'link issues', which are subjects that are often separately considered, but which have important interlinkages w i t h trade. These include: a) environmental rules and trade policy, b) labor standards and rules and trade policy, c) human rights and trade policy (including economic sanctions), d) monetary policy and its relation to trade policy; arms control and non-proliferation issues and their relation to trade policy. 3) Apart from these subjects for a post-Uruguay-Round agenda, there are certain basic G A T T concepts that need to be reconsidered and possibly altered so that they w i l l be more effective in the future economically interdependent world. These include: a) the most-favored-nation clause (and problems of the free rider), b) regionalism and its relation to the multilateral system, c) reciprocity and whether this concept can effectively handle the problems of rule-making, d) national treatment and the need for minimum standards that go beyond nondiscrimination or 'equal' treatment, e) antidumping rules (as previously mentioned) and the question of whether these rules are in reality 'safeguards' or 'escape-clause' measures, rather than unfair trade measures. In short, we have put in place an 'evolutionary watershed' structure of institution and rules to round out the international economic system, but any close look quickly reveals that there is much more to do.

Winners and Losers in the Global Economy: Recent Trends in the International Division of Labor, Major Implications and Critical Policy Challenges By Peter Nunnenkamp*

Introduction A new catchword has been born recently: globalization. Economically speaking, globalization means the increasing interdependence of markets and production in different countries through trade in goods and services, cross-border flows of capital, and technology transfers. Accordingly, a more sophisticated division of labor may be achieved by fragmentation of production processes on a worldwide scale. Firms may source this component from one country and that component from another country. It would then be increasingly difficult to determine where certain products that are assembled in one particular country have actually been made. This Article argues that globalization offers vast opportunities to raise world economic welfare. A t the same time, however, globalization tends to add to conflicts over the distribution of welfare gains. There may even be some losers whose income position is threatened under conditions of globalized production and markets. In industrialized countries, such risks are particularly pronounced for low-skilled workers. Conflicting propositions characterize the debate on the implications of globalization for developing countries. Fears are that many Third World economies may be delinked from the international division of labor. By contrast, this Article claims that globalization provides new competitors in world goods and capital markets with better chances to catch up economically to more advanced economies. In both industrialized and developing countries, domestic economic policies are shown to be of crucial importance in determining success and failure in benefiting from global trends. The structure of this Article is as follows. Part I presents the framework for assessing the welfare implications of international trade, capital mobility and technology transfers. This results in several propositions that shape the subsequent analysis. Part I I focuses on international trade. It summarizes the progress made w i t h respect * I highly appreciate the most productive and stimulating collaboration w i t h m y colleague Erich Gundlach. This article draws substantially on various earlier papers co-authored by him.

Winners and Losers in the Global Economy

43

to multilateral trade liberalization and discusses the welfare effects of the Uruguay Round of G A T T on various players in the world economy. Furthermore, whether the regionalization of trade patterns has dominated over worldwide sourcing and marketing is evaluated. If so, trading partners remaining outside major regional integration schemes face bleak prospects in deriving benefits from the advancing international division of labor. Part m turns to cross-border capital flows and technology transfers. It will be shown that international capital mobility has increased over time. Other issues addressed in this Part include the notion that the recent boom of foreign direct investment tends to favor only few major recipients, and that less advanced economies may be caught in a poverty trap because they play a marginal role in the generation of technological progress. Subsequently, the chances and risks involved in globalization are evaluated for Third World economies and industrialized countries respectively. Part I V portrays the highly diverse experience of developing countries in becoming integrated into the world economy. Success and failure in penetrating international goods markets and attracting foreign capital are related to the governments' policy stance w i t h respect to macroeconomic stability, physical and human capital formation, and openness towards world markets. Part V deals with the common challenge of fiercer worldwide competition for the labor markets of industrialized countries. The different reaction patterns of the members of the Triad are compared. Several policy options are discussed, considering that the need for wage flexibility and structural change is becoming more pressing in the era of globalization. A t the end the Author summarizes and draws conclusions. I. Welfare Generation and Distributional Conflicts in the World Economy 1. Specialization through Foreign Trade A n increase in the international division of labor is by no means a completely new phenomenon. Foreign trade has grown faster than worldwide production over the last three decades or so.1 The world economy had become more integrated long before globalization emerged as a major issue of political and scientific debate. Foreign trade is well known for providing opportunities for specialization according to the trading partners' comparative cost advantages. It represents a powerful mechanism for raising economic welfare on a worldwide scale. Consumers and producers get access to final and intermediate goods and services at cheaper prices or w i t h better quality. Trade enlarges the relevant market and, thereby, offers chances to exploit economies of scale and reduce per-unit costs of production. Additional welfare gains may be achieved in a dynamic perspective. Foreign trade adds to competitive 1

G A T T , International Trade, Trends and Statistics, various issues.

44

Peter Nunnenkamp

pressure on domestic producers. This provides stronger incentives to reduce managerial slack (i.e. the so-called X-inefficiency), and induces a permanent search for process and product innovations. It is equally well known that the welfare-increasing properties of free trade have not prevented the persistence of restrictive trade policies. Free trade is not in everyone's interest, but involves distributional conflicts. Economic theory has shown that the production factor that is relatively scarce in a given economy is worse off under free trade conditions than under conditions of nationally segmented production and markets. This is the basic message of the famous Stolper-Samuelson Theorem. 2 For industrialized countries, this theorem implies that the income position of low-skilled workers is negatively affected if trade is opened with countries the comparative cost advantages of which are shaped by a relatively rich endowment of lowskilled labor. Hence it is not surprising that the removal of trade restrictions is resisted by national interest groups for whom a progressing international division of labor w i l l result in fiercer competitive pressure from abroad. A free trade environment may give rise to distributional conflicts in an international perspective as well. Welfare gains tend to be unevenly distributed across countries, and it is still heavily debated whether free trade supports convergence in per capita income between today's rich and poor countries, or whether free trade results in growing asymmetries in the world economy. A n extreme view is taken by the socalled dependency school of Third World development, which still claims that industrialized 'core' countries grow at the expense of developing countries at the periphery, and that international trade is used by the former to exploit the latter. 3 According to this reasoning, poor countries can develop economically only if they remain outside the international division of labor as designed by the capitalist 'core' of the world economy. In sharp contrast, mainstream economists maintain that openness towards world goods and capital markets has a strongly positive impact on economic growth, especially in developing countries. 4 Trade restrictions have traditionally been used to contain distributional conflicts in the national and international arenas. Low-skilled workers in industrialized countries have been protected by the erection of particularly high barriers against im-

2 Wolfgang Stolper/Paul A. Samuelson , Protection and Real Wages, Review of Economic Studies, 1941, 58, 58 et seq. 3

Mary Ann Tetreault/Charles Frederick Abel (eds.), Dependency Theory and the Return of High Politics, 1986; Wil Hout , Capitalism and the Third World: Development, Dependence and the World System, 1993. 4

See, e.g., Erich Gundlach , Openness and Economic Growth in Developing Countries, Kiel Institute of World Economics, Working Paper 749, June 1996; Jeffrey D. Sachs/Andrew Warner , Economic Convergence and Economic Policies, National Bureau of Economic Research, Working Paper 5039, February 1995.

Winners and Losers in the Global Economy

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ports of labor-intensive goods such as clothing and textiles. Many developing countries have pursued import substitution policies, i.e. they discouraged imports in socalled infant industries in order to induce self-reliant industrialization. Trade restrictions have retarded, but not stopped, the development towards a more sophisticated international division of labor. More surprisingly perhaps, more and more developing countries have liberalized their import regime unilaterally during the last round of multilateral trade negotiations in the G A T T framework (Uruguay Round). Obviously, it has become more widely accepted that the protection of non-competitive factors of production involves significant costs in terms of macroeconomic welfare losses. Persistent import substitution policies have resulted in misallocation of resources, have prevented the exploitation of economies of scale in narrow domestic markets and have impaired the welfare-increasing role of a competitive business environment. In other words, restrictive trade policies have turned out to be less effective in containing distributional conflicts than had been expected by many decisionmakers, while welfare losses have imposed a high burden on the economies as a whole. 2. The Impact of Globalization A l l this had become rather obvious well before the term 'globalization* became widely used when discussing recent trends in the international division of labor and the implications these trends may have for the world market position of different countries or country groups and for the income position of certain factors of production within particular countries. What has been identified by various economists as a relatively new phenomenon in the world economy is the dramatic increase in the international redistribution of ownership through cross-border capital flows since the early 1980s. Flows of foreign direct investment (FDI), for instance, have grown much faster than even international trade has.5 In addition, other forms of international investment cooperation such as licensing, offshore processing and so-called strategic alliances between companies of different jurisdictions have gained prominence.6 What are the implications of higher capital mobility and closer interfirm cooperation across borders for welfare generation and distributional conflicts in the world economy? Recent developments have as a consequence that the international division of labor is pushed forward by various mechanisms at the same time. Further opportunities for specialization emerge if trade flows are supplemented by capital flows and interfirm agreements on technology transfers. Developing countries may 5 6

IMF, Balance of Payments Statistics Yearbook, various issues.

Peter Nunnenkamp/Erich Gundlach/Iamuna P. Agarwal , Globalization of Production and Markets, Kieler Studie 262, 1994, 27 et seq.

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Peter Nunnenkamp

gain better access to internationally mobile factors of production w i t h which they are relatively poorly endowed. In the case of capital inflows, for instance, global welfare increases to the extent that the marginal productivity of capital in capitalpoor countries exceeds its productivity in capital-rich countries. Interfirm technology cooperation may enhance product and process innovations, as joint R & D activities render it possible to share high R & D expenses and to spread fixed costs over a larger volume of production. However, the international mobility of factors of production not only offers additional welfare gains for the world as a whole. Globalization also adds to distributional conflicts, both nationally and internationally, as compared to a situation w i t h segmented factor markets. In effect, globalization results in a closer integration of labor markets on a worldwide scale.7 This favors high-skilled workers in industrialized countries, who have relatively few foreign competitors. By contrast, for lowskilled workers in these countries, globalization amplifies the adjustment burden that results from international trade. Low-skilled labor in industrialized countries faces an almost perfectly elastic supply of low-paid competitors around the world. Furthermore, globalization promotes the general availability of standardized technologies. According to the Rybczynski Theorem, 8 this should lead to an increase in the world market supply of goods the production of which uses low-skilled labor relatively intensively, and of goods that can be produced with ubiquitous technologies. The increase in world market supply should reduce the prices of such goods relative to the prices of human-capital-intensive and technologically advanced goods. Industrialized countries have little choice under such conditions but to foster industrial restructuring and specialize in the production of human-capital-intensive and high-tech goods. Lowskilled labor in industrialized countries is confronted with an uncomfortable tradeoff: it is threatened by rising unemployment unless wage reductions, relative to the factor reward for human and physical capital, are accepted. 3. Theory and Reality: Conflicting Propositions According to theoretical reasoning, the result should be no production of lowskilled-labor-intensive goods in industrialized countries (and, correspondingly, no production of human-capital-intensive goods in developing countries). Of course, reality is somewhat different. Transport costs, policy-induced deterrents to interna7 For the theoretical framework underlying this interpretation see Edward E. Learner , Wage Effects of a U.S.-Mexican Free Trade Agreement, National Bureau of Economic Research, Working Paper 3991, February 1992. 8

T. M. Rybczynski , Factor Endowments and Relative Commodity Prices, Economica, 1955, 336, 336 et seq.

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tional transactions and the immobility of some factors of production contribute to maintaining an industry structure that would be entirely obsolete otherwise. The gap between theory and reality depends on the significance of transaction costs. Declining transaction costs suggest that the gap has become (and will continue to become) less and less pronounced. Various constraints that prevented firms from implementing globalization strategies have disappeared. Thanks to the microelectronics revolution, communication technologies have undergone a dramatic change. N e w production and organization technologies such as C A D (computer-aided design) and C I M (computer-integrated manufacturing) have evolved. Successive G A T T rounds have reduced trade barriers. In addition, capital markets have been liberalized, especially during the last decade, and many business services have become internationally tradeable. International financial centers provide 24-hour trading in all types of financial assets. Business services such as banking and insurance have been deregulated so that standardized business services are available around the world. Finally, transport costs have been reduced as new technologies allow for economies of scale in transportation and tend to reduce the volume of international transport in raw materials necessary to produce one unit of final output. As a consequence of declining transaction costs, multinational corporations can choose among an increasing number of options in order to engage in cross-border ventures and international investment cooperation. F D I provides a means for jumping over remaining protectionist fences. Likewise, restrictions imposed on foreign investors, e.g. the trade-related investment measures (TRIMs) discussed during the Uruguay Round, may be circumvented by referring to non-equity forms of international investment cooperation. In particular, declining transaction costs offer better opportunities for relocating the production of low-skilled-labor-intensive goods and standardized lines of manufacturing to developing countries. It follows almost by implication that developing countries should benefit from globalization. If so, globalization will improve their chances of catching up to industrialized countries and support international convergence of per capita income. It seems premature to "forget convergence" simply because "the overwhelming feature of modern economic history is a massive divergence in per capita incomes between rich and poor countries." 9 Apart from ongoing debate on a reasonable interpretation of past growth patterns, declining transaction costs suggest that the future is likely to differ in important ways from the past. This is not to ignore that several arguments may be raised against the proposition that globalization amplifies adjustment pressure for industrialized countries and offers better opportunities for developing countries. First, it is open to debate whether the international division of labor is progressing on a truly global scale, or rather 9

Lant Pritchett , Forget Convergence: Divergence Past, Present, and Future, Finance and Development j u n e 1996, 38, 38.

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Peter Nunnenkamp

merely within a regional context. There is a strong revival of regional trade arrangements, of which the deepening and widening of European integration and the formation of the North American Free Trade Association (NAFTA) are the most prominent examples. Countries remaining outside major regional integration schemes run the risk of being delinked from the international division of labor, if regionalization, rather than true globalization, is the dominant feature in the world economy. This argument implies that only a small group of Third World economies w i t h strong institutionalized ties to major regional groupings in the developed world benefit from closer trade and investment relations. Second, related to this, some economists consider organizational innovations at the enterprise level, including lean production and just-in-time delivery, to be the driving force of interfirm networking with regard to sourcing and marketing. 10 Such networking is expected to emerge primarily on a regional basis. According to this line of reasoning, proximity between producers and their customers is becoming more important, whereas the relevance of international differences in wage costs in shaping locational choices of producers and investors is expected to decline. If so, the ability of low-wage developing countries to induce catching-up processes w i l l be impaired. This reasoning is in obvious conflict with the globalization hypothesis, according to which declining transaction costs encourage the fragmentation of production processes on a global scale, and render less important the proximity of producers and customers. Third, low-wage countries are sometimes believed to end up in a poverty trap if they specialize according to their comparative cost advantages in low-skilled-laborintensive goods and highly standardized lines of production. 11 This view maintains that such a specialization increases the risk of being left behind w i t h regard to technological progress. A t least implicitly, it follows from this argument that only a few developing countries can take part in globalization, namely those that have established a fairly sophisticated manufacturing base through government support granted to infant industries. Fourth, the recent boom of F D I and other capital flows may provide a misleading impression of the chances of capital-poor countries to attract foreign investment funds and thereby add to their own domestic savings. Almost perfectly mobile financial capital flows do not necessarily imply an increase in physical capital mobility, which is tantamount to widening current account imbalances.12 As a matter of 10

See, e.g., Charles Oman, Globalization and Regionalization: The Challenge for Developing Countries, O E C D Development Centre, 1994. 11

Heiko Körner, Korreferat zu Erich Gundlach/Peter Nunnenkamp, Die Globalisierung von Märkten und Produktion: Implikationen für Entwicklungsländer, Verein für Socialpolitik, Ausschuß Entwicklungsländer, 1995 (forthcoming in conference volume). 12

The current account mirrors the difference between savings and investment of an eco-

Winners and Losers in the Global Economy

49

fact, physical capital flows across countries have been surprisingly low in the past, as is indicated by a strong positive correlation between national saving and investment rates. 13 This correlation should become weaker over time if production is increasingly globalized. Finally, global savings may fall short of meeting increasing demand for foreign capital. More and more countries, including transition economies in Central and Eastern Europe as well as developing countries that have removed capital controls, are approaching world capital markets. This has fueled fears that new competitors can only attract capital inflows, especially FDI, at the expense of traditional recipients.14 Moreover, the frequently noted concentration of F D I in developing countries on a few major recipients seems to suggest that newcomers face bleak prospects in attracting a significant share of FDI. 1 5 By contrast, the globalization hypothesis does not consider international capital transfers to be a zero-sum game, but claims that there w i l l be additional capital flows if new investment opportunities emerge. 16 These conflicting propositions figure prominently in the subsequent discussion of major factors that are driving the integration of international goods and factor markets. The focus is on significant changes in the world economic environment over the last decade or so, and on the possible implications of these changes for the generation and distribution of economic benefits to be reaped from the internationalization of goods and factor markets. I I . Integration of Goods Markets: Causes and Possible Implications Before returning to international investment relations, and in particular the competitive position of different countries with regard to capital inflows and technologically motivated cooperation, major changes in the world trading environment are assessed in the following sections. Trade policies provided a startling picture over much of the 1980s and early 1990s.17 Multilateral trade negotiations in the context nomy. Hence, net trade flows and net physical capital flows are two sides of one coin. 13

Martin Feldstein , Tax Policy and International Capital Flows, Kiel Institute of World Economics, Bernhard-Harms-Vorlesungen 16, 1994. 14

Such concerns are discussed by Joel Bergsman/Sanjaya Lall , A n Unlimited Supply of Capital?, World Bank, Foreign Investment Advisory Service, mimeo, 1995; O E C D , Future Global Capital Shortages: Real Threat or Pure Fiction?, 1996. 15

See, e.g., U N C T A D , Recent Developments in International Investment and Transnational Corporations: Trends in Foreign Direct Investment, U N Doc. T D / B / I T N C / 2 (February 1995), 9. 16

Bergsman/Lall (note 14).

17

Peter Nunnenkamp, The World Trading System at the Crossroads: Multilateral Trade Negotiations in the Era of Regionalism, Kiel Institute of World Economics, Discussion Paper

4 GYIL 39

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of the Uruguay Round of G A T T were stalled for years and close to a complete breakdown. By contrast, the significance of unilateral trade policy reforms indicated that foreign trade liberalization became more widely accepted as a means to achieve an efficient allocation of scarce resources and to foster economic development. Moreover, the world economy witnessed a strong revival of regional trade arrangements. It was feared that regionalism could result in hostile trading blocs; concerns about 'fortress Europe' figured prominently in this respect. 1. Multilateral

Trade Liberalization

The Uruguay Round of G A T T was finally concluded in December 1993 after more than seven years of negotiations. The achievements in lowering barriers to international trade are significant, although they fall short of the high expectations at the beginning of the negotiations.18 In summary, the Uruguay Round was an attempt to stop the trend towards more and more exceptions to the validity of multilateral G A T T principles becoming the rule, and to extend G A T T discipline to new trade issues. a) Major Results Market access for industrial goods was improved by further tariff reductions. However, import tariffs remain relatively high for industrial goods in the production of which many developing countries enjoy comparative advantages (e.g. textiles, clothing and electrical goods). Moreover, tariff escalation persists, i.e. the processing of goods by foreign trading partners is still discouraged by levying higher tariffs on processed goods than on unprocessed goods. Tariff escalation may hinder developing countries from becoming involved in globalized production. Market access was also improved in agriculture, which had been the major stumbling block to the conclusion of the Uruguay Round. It was agreed to replace highly distortive quantitative restrictions with import tariffs, and to reduce the latter by 36 percent, on average, within six years. In addition, the subsidization of agricultural products and agricultural exports is to be curtailed. Various steps were taken to achieve better adherence to G A T T rules. The G A T T conformity of free trade areas and customs unions is to be checked more rigorously than in the past. In the case of acute balance-of-payments crises, import restrictions should consist of price-related measures and must be removed if they are no longer 204,1993. 18 For a more detailed discussion of the Uruguay Round results see Rolf J. Langhammer, Nach dem Ende der Uruguay-Runde: Das G A T T am Ende?, Kiel Institute of World Economics, Discussion Paper 228, 1994.

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justified. The conditions under which anti-dumping measures may be applied were defined more precisely. Safeguard clauses in the case of a sudden import surge are to be applied in principle on a non-discriminatory basis, rather than selectively against particular trading partners. More discipline of trading partners was also aimed at by replacing G A T T with the newly created World Trade Organization (WTO). Thereby all previous G A T T agreements, including various separate codes, were subsumed under one legal entity, and member countries can no longer opt out of specific obligations (fa-la-carte approach'). The universal applicability of trading rules is expected to enhance their enforceability. It remains open to question, however, whether the revised dispute settlement mechanism w i l l result in more effective sanctions against breaches of W T O rules. Especially the major players in the world economy may not turn to the W T O when trade disputes emerge, but rather rely on their own potential for retaliation and favor dispute settlement on a bilateral basis.19 The major partner will then dominate the rules of the game, which may reduce the gains from international trade for weaker trading partners. The Uruguay Round addressed various areas in which G A T T rules did not exist before or were not applied. First of all, it was agreed to phase out the Multifibre Arrangement (MFA), which had placed trade in textiles and clothing outside the multilateral framework for decades. This enables developing countries to make better use of their comparative cost advantages. However, the reintegration of M F A trade into the W T O is subject to a transition period of ten years. Second, TRIMs such as export obligations and local content requirements imposed on foreign investors figured into the agenda. Cross-border investment relations could have been encouraged, if it had been decided to fully apply the national treatment principle of the G A T T / W T O (which means equal treatment of domestic and foreign products once border charges are paid) and to enforce the prohibition of quantitative restrictions in the context of TRIMs. However, the agreed list of measures that are considered to violate these principles remained incomplete. The third issue concerns traderelated intellectual property rights (TRIPs) such as patents, copyrights and trademarks. The reluctance of various developing countries to protect property rights and agree to internationally binding rules was finally overcome. Some protection in this area is economically justified, in order to provide innovators w i t h sufficiently strong incentives to engage in R & D activities. Fourth, it was attempted in the Uruguay Round to extend G A T T / W T O principles to trade in services, including finance, insurance, transport and communication. Trade in services has become an important issue, as potential welfare gains should be particularly large in this area in which trade barriers have typically been fairly high. The increasing tradeability of business services can be regarded as a ma19

Recent examples include the struggle over better market access for U.S. producers in Japan and E U complaints about allegedly subsidized steel exports of the Czech Republic.

4*

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Peter Nunnenkamp

jor driving force of globalization, considering that the fragmentation of production processes depends on the availability of such services in various locations. 20 This implies that countries in which the provision of business services is seriously deficient have less favorable prospects of attracting investors in manufacturing. Yet the Uruguay Round made only limited progress in liberalizing trade in services on a multilateral scale. Negotiations resulted in the General Agreement on Trade in Services (GATS), which represents a highly complex system of country- and sector-specific concessions and exceptions. Each country had the option to name those service sectors for which most-favored-nation (MFN) treatment was not to apply. Furthermore, conditions for market access and national treatment were not defined universally, but specified in another set of country-specific annexes on trade concessions. Hence GATS achieved little more than obliging trading partners to make restrictions transparent and negotiable for those services for which M F N treatment was not ruled out from the very beginning. b) Welfare Effects Various studies have assessed the trade and welfare implications of the Uruguay Round. 21 According to a recent G A T T estimate, world exports in 2005 are expected to be 9 - 24 percent higher than would have been the case without the Uruguay Round. The same study revealed gains in world income (as of 2005) in the order of 0.3 - 0.9 percent. Welfare gains are expected to increase to 0.5 -1.4 percent of world income, if some of the dynamic effects of the Uruguay Round are taken into account. The significant margins of the estimated trade and welfare effects are because of different specifications of the applied simulation model. The Uruguay Round effects on trade and income become larger if imperfect competition and increasing returns to scale are allowed for in the simulations. Moreover, the dynamic specification of the model assumes that first-round income gains, induced by trade liberalization, result in higher savings, which then translates into additional investment. The margins with regard to trade and income effects of the Uruguay Round widen further if various studies are compared. The simulation results of all relevant studies are based on computable general equilibrium models, but the specific structure of these models and the underlying assumptions vary considerably. Differences re20

According to W T O data, commercial services accounted for 21 percent of worldwide trade i n goods and services in 1994; for further information see W T O , International Trade, Trends and Statistics, 1995. 21

For a summary see Rolf f. Langhammer, Eine quantitative Bewertung der GATT-Effekte, in: Michael Frenkel/Dieter Bender (eds.), G A T T und neue Welthandelsordnung: Globale und regionale Auswirkungen, 1996,180,180 et seq.; see also Langhammer (note 18); Will Martin/L. Alan Winters (eds.), Implications of the Uruguay Round for the Developing Countries, W o r l d Bank, Discussion Paper 307, August 1995.

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53

late inter alia to the degree of disaggregation by countries and sectors, the liberalization measures considered in the models, critical parameter values such as supply and demand elasticities and the time horizon of simulations. The different estimates of the trade and welfare effects of trade liberalization must be interpreted with great caution. Some Uruguay Round results are qualitative in nature and do not lend themselves easily to a quantitative assessment. Consequently, the G A T T estimate reported above took no account of any implications the agreement on GATS may have on trade and welfare. Likewise, various dynamic effects of trade liberalization are difficult, if not impossible, to quantify. This refers especially to pro-competitive effects that may strengthen the incentives to produce new goods and apply innovative production techniques. Furthermore, all simulations are benchmark studies; they assume that the structure of the world economy remains constant throughout the period under consideration, and that the Uruguay Round does not alter net capital flows between countries. Finally, an eventual breakdown of trade negotiations could have resulted in outright 'trade wars' so that the Uruguay Round may be credited with having prevented the welfare losses ensuing from such conflicts. In summary, the Uruguay Round may have far-reaching implications that simulation models cannot capture. Conceptual limitations and ambiguities notwithstanding, the estimates on the welfare implications of the Uruguay Round offer some relevant insights. Various studies have two important findings in common. First, most countries will benefit from multilateral trade liberalization, though not necessarily to the same degree. Second, welfare gains are largely due to the countries' own liberalization measures, rather than to trade concessions by their foreign trading partners. The first finding means that multilateral trade liberalization represents a 'win-win strategy' with few exceptions. About two-thirds of worldwide welfare gains tend to be concentrated in industrialized countries. It should be noted that the European Union, which was responsible for various crises in concluding the Uruguay Round, belongs to the major winners after its conclusion. Taken together, developing countries will also benefit. However, the estimated welfare effects vary tremendously w i t h i n this heterogenous group of countries. A World Bank team, for instance, found exceptionally high welfare gains (in percent of national income) for Asian countries such as Malaysia and Thailand. 22 Relatively advanced developing countries that are net exporters of agricultural products are generally expected to benefit more than low-income countries that are net importers of agricultural products. Some countries of the latter group may even suffer minor income losses in the short run. This is because the Uruguay Round tends to have an adverse effect on the terms of trade of commodity-based economies, e.g. in Sub-Saharan Africa. Commo22

Glenn Harrison/Thomas Rutherford/David Tarr , Die Quantifizierung der Ergebnisse der Uruguay Runde, Finanzierung und Entwicklung, December 1995, 36, 37.

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dities were not subject to significant trade restrictions even before the Uruguay Round, so there is little to gain for commodity exporters in terms of market access in the short run. A t the same time, higher import prices can be expected for countries that are largely dependent on food imports, the world market prices of which tend to rise once the subsidization of agricultural production and exports is curtailed in major food-exporting countries. In the long run, however, the outcomes for lowincome and (net) food-importing countries may be different. In the past, depressed world market prices of food items and domestic policy-induced discrimination against agriculture discouraged agricultural production and exports in many developing countries. The Uruguay Round agreements on agriculture may induce net food importers to remove discriminatory policies and encourage economic restructuring. Welfare effects may then turn positive in the long run. The short-term effects of the Uruguay Round seem to suggest that multilateral trade liberalization leads to a larger divergence of per capita income between relatively advanced and poor countries. The second common finding of various studies qualifies this conclusion significantly. The concentration of welfare gains in industrialized countries is mainly due to their own liberalization measures, notably w i t h regard to agriculture and M F A trade. Likewise, the benefits in countries such as South Korea are largely attributable to their own commitments made during the negotiations. The principal winners of the Uruguay Round are those countries that went furthest in terms of domestic liberalization. Hence low-income countries could have increased their share in worldwide welfare gains if they had used the Uruguay Round to reduce the costs of persistent protection in the national realm. 23 This applies especially to economies in Sub-Saharan Africa, which generally made few substantial commitments to removing national trade barriers. 24 A l l in all, the assessment of the Uruguay Round reveals that the political setup of multilateral trade negotiations is rather puzzling from an economic point of view. Typically, the parties involved aim at better access to foreign markets and consider domestic liberalization only to be a concession made for the benefit of trading partners. Reciprocity is the catchword among major players, which means the balancing of mutual concessions. Many developing countries insist (and can legally do so) on preferential treatment in terms of privileged market access for their exports and less binding rules with regard to their import restrictions. Economically, multilateral trade negotiations should rather be considered a means to increase the credibility of domestic liberalization by referring to an international anchor and thereby maxi23 It fits into this picture that developing countries gain more than industrialized countries, if the assessment of the Uruguay Round is restricted to liberalization of trade i n manufactures; id. y 37. Traditionally, protection of manufacturing industries has been lower in industrialized countries than in developing countries. 24

Piritta Sorsa , The Burden of Sub-Saharan African O w n Commitments in the Uruguay Round: M y t h or Reality?, IMF, Working Paper 48, 1995.

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55

mize welfare gains. For developing countries, it follows that the special treatment they receive in the G A T T / W T O framework is a mixed blessing at best, and a Pyrrhic victory at worst, especially if the incentives for structural change are weakened in this way. 2. Regional Integration a) Possible Conflicts As mentioned earlier, trade liberalization during the last decade went beyond what was finally agreed upon in multilateral negotiations. Various developing countries implemented structural adjustment programs, which typically included substantial reductions in import barriers. The collapse of socialism and central planning in Central and Eastern Europe had as a consequence that transition economies tried hard to integrate themselves into the international division of labor. This involved drastic liberalization of foreign trade regimes. In addition, trade liberalization was pursued within regional integration schemes. Major aims of free trade areas and customs unions are to promote intra-regional specialization according to the member countries' comparative advantages, and to enhance the region's attractiveness for foreign capital inflows. While integration schemes may be instrumental to overcoming the segmentation of national markets on the regional level, a potential dilemma is involved on a global scale once member countries enjoy preferential treatment vis-a-vis outsiders. In contrast to market-driven regionalization, institutionalized regionalism conflicts by definition with the fundamental G A T T / W T O principles of non-discrimination and M F N treatment. As a matter of fact, Art. X X I V of the G A T T Treaty authorizes derogations from M F N treatment, if free trade areas and customs unions cover "substantially all" the trade among member countries and do not raise trade barriers against outsiders. Especially the second condition is meant to prevent negative income and employment effects of regional integration schemes for non-member countries. Such adverse effects are most likely if integration schemes divert trade and capital flows away from non-member countries to member countries, rather than creating additional trade and capital flows among member countries at no other country's expense. Practically, it is fairly difficult to disentangle trade and investment creation from trade and investment diversion. One would have to know how intra-regional and extra-regional trade and capital flows would have developed without regional integration. Unavoidable ambiguity in this respect may have added to difficulties in enforcing the G A T T / W T O conformity of free trade areas and customs unions. Nonetheless, it is rather striking that none of the more than one hundred preferential trade ar-

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rangements that had been notified to G A T T until 1994 was rejected as inconsistent w i t h Art. X X I V . The European Union has contributed significantly to the revival of regional integration in various parts of the world. Different starting conditions notwithstanding, the E U has frequently been considered a model, notably by developing countries in Africa and Latin America. A t the same time, the E U exemplifies the potential conflict between regionalism and multilateralism. In addition to intra-EU liberalization, the E U maintains a multi-layer system of preferential trading arrangements w i t h third countries on a reciprocal or unilateral basis.25 The extremely discriminatory trade policies of the E U had as a consequence that only about one-quarter of total E U trade, and 60 percent of extra-EU imports were conducted under M F N conditions in the late 1980s and early 1990s, compared with almost 90 percent of U.S. trade. 26 Traditionally, regionalism took precedence over multilateralism. In the Community's own words, trade policies reveal the EU's "enthusiastic support for and active involvement in free trade arrangements of a regional character." 27 Economic integration in Europe has proceeded along two lines. First, the existing E U members have deepened their integration by further liberalizing and harmonizing economic policies. The completion of the Internal Market and the planned introduction of a common currency are clear indications to this effect. Second, E U membership has been enlarged, recently by the accession of EFT A countries. The expansion of E U membership will continue; although the accession of European economies in transition is still pending, they are benefiting from substantial trade preferences since the conclusion of the Europe Agreements, which have put these economies in transition well ahead of all developing countries in terms of the conditions for access to E U markets. A l l this has raised concerns that European integration may degenerate into a 'fortress Europe'. Many developing countries feared that trade and capital flows would be diverted away from them to low-wage locations at the E U periphery and associated countries in Central and Eastern Europe. Moreover, partly as a response to deepening and widening integration in Europe, the United States concluded the N A F T A agreement with Canada and Mexico, and launched the Enterprise for the Americas Initiative. The E U bears some responsibility for the recent change in U.S.

25 E U preferences are granted in the context of several free trade agreements, a wide range of association and cooperation agreements (including the Lome Convention) and the generalized system of preferences (GSP); for details see Ulrich Hiemenz et al., Regional Integration in Europe and its Effects on Developing Countries, Kieler Studie 260, 1994, 10 et seq. 26

Sandro Sideri, European Integration and the Third World, Institute of Social Studies, Working Paper 86, The Hague, July 1990; G A T T , Trade Policy Review: The European Communities, vol. I, 1993, 35 et seq. 27

G A T T , Trade Policy Review: The European Communities, vol. II, 1991, 32.

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trade policies: "After having guaranteed the functioning of the multilateral system of trade negotiations . . . for more than 40 years,.. . the United States has lost confidence in the effectiveness of the G A T T process and will likely turn towards a new trade strategy favoring the establishment of additional free trade zones under U.S. leadership and a policy of aggressive bilateralism." 28 Arguably, this move renders it more difficult for developing countries, except those part of major integration schemes (Mexico) or benefiting from close institutionalized ties to such schemes, to participate successfully in the international division of labor. This may explain why many outsiders to the E U and N A F T A would like to become insiders. However, requests for accession have met w i t h lukewarm response by present member countries. Consequently, most developing countries may have had little choice but to take a second-best approach towards regional integration, i.e. to strengthen economic relations among themselves, either through institutionalized regionalism as in Latin America (e.g. MERCOSUR) or through market-driven regionalization as in Asia. b) Global and Regional Trade Patterns Although conclusive evidence on the significance of trade diversion induced by regional integration schemes is almost impossible to produce, recent trends in intraregional and extra-regional trade allow for some tentative conclusions as to whether regional, rather than global, networking was the dominant feature in the world economy during the 1980s and early 1990s. Table 1 offers several interesting insights in this respect. First of all, it is not surprising that intra-regional trade links are clearly most developed in Europe, considering the EU's long tradition and advanced stage of economic integration. More than two-thirds of total E U exports are delivered to neighboring countries (other E U members, EFT A countries and Central and Eastern Europe). However, the share of extra-regional exports did not decline further after 1980. The process of completing the Internal Market had little impact on the relative importance of intra-EU trade until 1993. E U exports to Central and Eastern Europe continued to play a minor role shortly after the collapse of central planning, when institutionalized economic cooperation between the E U and these transition economies gained momentum. The growth of E U exports both to member countries and to non-European countries was largely in line w i t h the growth of world trade in 1980 - 1993. As far as the E U is concerned, the international division of labor proceeded both regionally and globally.

28

Jürgen Stehn, America's Departure from Multilateralism: Highway or Dirt Road to Freer Trade?, Kiel Institute of World Economics, Discussion Paper 212, 1993, 3.

58

Peter Nunnenkamp Table 1 Intra-Regional and Extra-Regional Exports of Selected Countries and Regions, 1980 and 1993 1980

E U exports to: - world -EU -EFTA - CEE a - rest of world US exports to: - world

- Canada - Latin America - rest of world

1993

ratio

1993/1980

US$ billion

% of total exports

US$ billion

% of total exports

(1)

(2)

(3)

(4)

689.6 384.6 76.3 13.1 215.6

100.0 55.8 11.1 1.9 31.3

1336.0 761.6 126.2 30.7 417.5

100.0 57.0 9.4 2.3 31.3

1.9 2.0 1.7 2.3 1.9

216.6 34.1 38.0 144.5

100.0 15.7 17.5 66.7

439.2 91.9 75.3 272.0

100.0 20.9 17.1 61.9

2.0 2.7 2.0 1.9

107.9 34.9 2.8 23.0 47.2

100.0 32.3 2.6 21.3 43.7

165.8 75.3 2.9 33.9 53.7

100.0 45.4 1.7 20.4 32.4

1.5 2.2 1.0 1.5 1.1

129.8 36.5 93.3

100.0 28.1 71.9

360.9 135.3 225.6

100.0 37.5 62.5

2.8 3.7 2.4

161.9 32.6 38.8 90.5

100.0 20.1 24.0 55.9

647.3 78.4 241.2 327.7

100.0 12.1 37.3 50.6

4.0 2.4 6.2 3.6

(3) : (1) (5)

Latin America exports to: - world

-US - Canada - Latin America - rest of world Japan exports to: - world

- Asian DCsb

- rest of world

Asian DCs exports to: b - world -Japan

- Asian DCsb - rest of world

memorandum: world exports a

2000.9

-

3707.6

-

1.9

CEE: Central and Eastern Europe, excluding the former USSR b Asian DCs: developing countries in Asia, excluding the Middle East Source: UN, Monthly Bulletin of Statistics, February and May 1995.

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Second, intra-regional trade has traditionally been much less significant for the United States than for Europe, even if U.S. exports to all Latin American countries are considered to be part of regional trade relations. U.S. exports to Canada grew more than proportionally, but the United States resembles the E U in two important respects: intra-regional and extra-regional trade increased at a similar rate in 1980 - 1993, and total U.S. export growth was in line with world export growth. By contrast, the expansion of Latin America's trade relations with non-American countries remained marginal and was clearly below overall export growth. Nonetheless, the evidence for a regionalization of Latin American trade patterns is weak. While the United States absorbed a significantly larger share of Latin American exports in 1993 than in 1980, Latin American partner countries continued to account for only one-fifth of the region's overall exports. Renewed attempts at regional integration were thus not effective in raising the share of trade among Latin American economies until 1993.29 Possible effects of the formation of N A F T A in 1992 are not yet reflected in the available data. Expectations are, however, that " N A F T A w i l l have only a small impact upon the rest of the world." 30 Most strikingly perhaps, N A F T A has been estimated to have only marginal trade diversion effects on non-member countries in Latin America. 31 Third, regional trade relations expanded most rapidly in Asia. Asian developing countries absorbed a rising share of Japanese exports, and trade among Asian developing countries soared by a factor of 6.2 in 1980 - 1993. It should be noted that substantially enlarged regional networking in Asia was market-driven, in contrast to the institutionalized regionalism elsewhere. More importantly though, regional networking in Asia is highly unlikely to have retarded the globalization of Asia's trade relations. Among the countries and regions considered in Table 1, it is only for Japan and Asian developing countries that extra-regional exports grew faster than 29

Most notably, the far-reaching agreement of 1991 to establish a common market comprising Argentina, Brazil, Paraguay and Uruguay (MERCOSUR) by the end of 1994 has had little impact on trade patterns. The share of imports from MERCOSUR members i n total imports of Argentina and Brazil, for example, increased only marginally in 1990 - 1994; for details see Frederico Foders , MERCOSUR: A New Approach to Regional Integration?, Kiel Institute of World Economics, Working Paper 746, May 1996. It remains to be seen whether intra-MERCOSUR trade becomes more important once the common market, which includes a common external tariff, is in full operation. 30 Roberto Bouzas, Preferential Trade Liberalisation in the Western Hemisphere: N A F T A and Beyond, Facultad Latinoamericana de Ciencias Sociales, Buenos Aires, August 1995, 15. 31 Several authors argue, however, that various Caribbean and Asian economies may be affected negatively by the erosion of tariff preferences, which they traditionally enjoyed i n U.S. markets relative to Mexico, and by N A F T A ' s restrictive rules of origin; see, e.g., Rolf J. Langhammer, The N A F T A : Another Futile Trade Area (AFTA) or a Serious Approach Towards Regionalism?, Kiel Institute of World Economics, Discussion Paper 195, November 1992, 17; Bouzas (note 30), 16.

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world trade. The share of exports of Asian developing countries to non-Asian destinations in world exports doubled to nearly 9 percent in 1993. The regional structure of E U imports of manufactures underscores that close institutional ties to major regional integration schemes are neither necessary nor sufficient to participate successfully in the international division of labor through trade. 32 Developing countries of Africa, the Caribbean and the Pacific region (the socalled ACP group) were granted higher trade preferences by the E U than any other developing country. Nevertheless, they failed to increase their share in E U imports of manufactures. By contrast, various Asian developing countries were most successful in penetrating E U markets, despite the lack of trade privileges and despite geographical distance. Overall, recent trade patterns contradict the notion that regionalism is the dominant factor shaping the international division of labor. Rather, closer trade links have emerged both regionally and globally. Membership in, and privileged market access to, major integration schemes per se are unlikely to advance the international competitiveness of trading partners. Especially the Asian experience suggests that institutionalized ties to regional integration schemes matter less than domestic economic policies when it comes to explaining success and failure in reaping benefits from international trade. This is not to deny that countries without such ties could have performed even better, if regional groupings had liberalized externally, parallel to internal liberalization, and had refrained from discrimination against non-associated countries in particular. Regionalism inherently carries the risk of trade diversion at the expense of outsiders. Such risks could be minimized if the provisions of G A T T Art. X X I V were rigorously enforced. Regional integration and multilateral trade liberalization can indeed reinforce each other if two requirements are met. A l l preferential trade arrangements should be 'GATT/WTO-Plus' accords in the sense that regional liberalization goes beyond multilateral commitments, while no further trade barriers are erected against non-members. In addition, trading partners should have to commit themselves to open regionalism by relaxing restrictive accession procedures. Potential members should be allowed to join once they are prepared to adhere to the regional liberalization accord. I I I . Capital Transfers and International Investment Cooperation In addition to trade, international capital flows represent a powerful mechanism pushing for a more sophisticated division of labor. The effects on structural change 32 For a more detailed assessment see Erich Gundlach/Peter Nunnenkamp , Some Consequences of Globalization for Developing Countries, Kiel Institute of World Economics, Working Paper 753, July 1996.

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61

in production patterns in general, and on relocation of labor-intensive and standardized lines of manufacturing to developing countries in particular, depend on the actual degree of capital mobility. The growth prospects of various countries may be impaired if private foreign capital owners consider just a few investment locations to be attractive. Investment in most economies will then remain constrained by relatively low domestic savings (plus foreign aid, which is not considered in the following) as well as insufficient access to technology. 1. International Mobility of Capital Theoretical reasoning suggests that mobile capital will flow to countries that are relatively poorly equipped with this production factor. This is because the marginal productivity of capital and, hence, the return to capital should be higher there than in capital-rich economies. By attracting foreign capital inflows, capital-poor countries may add to their own domestic savings, thereby increasing investment and promoting economic growth. In other words, capital mobility across borders implies that national savings and investment rates are not correlated with each other. In reality, however, high domestic savings has usually accompanied high investment rates. The difference between investment and domestic savings, which equals the current account deficit, rarely exceeded 5 percent of gross domestic product (GDP) over longer time periods. Econometric analyses have pointed to a de facto segmentation of capital markets, especially in the 1960s and 1970s; the correlation between savings and investment rates in OECD countries was found to be close to one. 33 Does this mean that, in contrast to theoretical predictions, capital is rather immobile? It is indeed hard to dispute that capital owners reveal a fairly strong home country bias: "Ignorance, risk aversion and prudence keep capital close to home." 34 Nevertheless, it can be maintained that international capital transfers have played an important role in the world economy, and are likely to gain prominence in the future. First of all, empirical evidence indicates that the home country bias of capital owners has become weaker in the 1980s.35 Second, capital mobility is underestimated if, as typically done, the correlation between savings and investment rates is calculated on the basis of long-term averages of these rates; this procedure "ignores net capital flows that have occurred in reverse directions during the period over which 33

This rather surprising finding became known as the Feldstein-Horioka puzzle; see Martin Feldstein/ Charles Horioka, Domestic Saving and International Capital Flows, Economic Journal, 1980,314,314 et seq. 34 35

Feldstein (note 13), 10.

The correlation coefficient between savings and investment rates declined from more than 0.8 in the 1960s to about 0.6 i n the 1980s. Id. y 15.

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Peter Nunnenkamp

averages are taken." 36 Calculations based on annual data reveal that the savings-investment link has become looser after 1973, and support the proposition of increasing capital mobility over time. Third, currency risk appears to have been the main reason for the strong home country bias of capital owners in the past. This deterrent to greater capital mobility may become less significant in the future. As argued below, globalization adds to the incentives of governments to strive for macroeconomic stability, which helps contain exchange rate volatility. Finally, some forms of capital seem to have already become truly global. This refers especially to FDI, which "does contribute to real cross-border capital flows." 37 2. The Rise and Distribution of FDI The recent boom of F D I underscores its special role in transferring national savings across borders. Worldwide F D I flows soared from an annual average of US$ 92 billion in 1983 - 1988 to US$ 226 billion in 1994.38 The subsequent assessment of F D I does not present a complete picture of the international allocation of mobile factors of production as other forms of capital and technology transfers are neglected. It should also be noted that the conceptual limitations to assessing the degree of F D I diversion are still more serious than in the case of trade diversion. Nonetheless, recent F D I patterns offer interesting insights, notably on whether regional integration schemes have induced significant changes in the worldwide distribution of F D I flows and on the widespread belief that F D I is highly concentrated in just a few host countries. In contrast to short-term and more volatile capital flows such as portfolio investment, F D I typically represents a longer-lasting commitment of foreign investors to a host country. Hence, F D I provides a better indication of the internationalization strategies of multinational corporations, especially in manufacturing. Industrialized countries have traditionally attracted the bulk of F D I inflows (Table 2). Recently, however, their share in total inflows has declined from about four-fifths to slightly less than 60 percent in 1994. Developing countries as well as transition economies in Central and Eastern Europe have emerged as important hosts of F D I inflows. This indicates that an increasing number of countries have become involved in the internationalization strategies of multinational corporations. The boom of F D I may reflect a regionalization of international investment activities, rather than true globalization. If so, the formation of regional blocs should have resulted in F D I diversion away from non-member countries. The deepening of E U integration in the aftermath of the Internal Market program of 1985 may 36 Stefan Sinn , Saving-Investment Correlations and Capital Mobility: O n the Evidence from Annual Data, Economic Journal, 1992, 1162, 1165. 37

Feldstein (note 13), 15.

38

U N C T A D , World Investment Report 1995, Annex Table 1.

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provide a case in point. The E U indeed attracted substantially higher F D I inflows in 1989 - 1991 than in 1983 - 1988 (US$ 89 billion versus US$ 27 billion on an annual average).39 As a result, the EU's share in worldwide F D I inflows increased from 30 to 47 percent (Table 2). E U integration caused higher intra-EU F D I because European companies became more eurocentric, and it also induced higher F D I inflows from Japan and the United States.40 The EU's attractiveness for foreign risk capital resulted largely from international investors anticipating the completion of the Internal Market and its extension to prospective E U member countries. Fears of restrictive E U trade policies may have induced F D I in some instances, e.g. Japanese investment in the automobile industry, as F D I offered a means to jump over protectionist fences. However, the larger part of F D I appears to have been motivated by market integration (both in manufacturing and services) and cost advantages in member countries at the E U periphery. The rise of intra-EU F D I mainly affected E U F D I outflows to the United States, while European companies neglected developing countries only temporarily, and largely because of domestically caused economic disturbances in Latin America. Likewise, European integration has not led U.S. and Japanese investors to curtail their F D I in developing countries. Hence, the boom of F D I flows to the E U during the process of completing the Internal Market is rather unlikely to have caused significant F D I diversion at the expense of developing countries. Moreover, it was a rather short-term phenomenon. In 1992 - 1994, the EU's share in worldwide F D I inflows decreased to 37 percent. This supports the earlier conclusion that regional integration cannot be interpreted as the dominant feature of the international division of labor.

"Id. 40

For a more detailed analysis see Jamuna P. Agarwal/Ulrich

Hiemenz/Peter Nunnenkamp ,

European Integration: A Threat to Foreign Investment in Developing Countries?, Kiel Institute of World Economics, Discussion Paper 246, March 1995.

64

Peter Nunnenkamp Table 2 Regional Distribution of World FDI Inflows, 1983 - 1994* (percent) 1983-88

1989-91

1992-94

industrialized countries EU United States Japan

78.4 30.0 37.6 0.4

81.2 47.0 24.1 0.7

62.1 36.9 17.9 0.6

developing countries Africa Latin America Asia China Asian NIEs b A S E A N (4)c

21.6 2.3 8.1 11.0 2.0 4.5 1.9

18.3 1.8 5.6 10.7 2.0 4.1 3.4

35.2 1.5 9.6 23.8 12.0 5.3 5.1

Central and Eastern Europe

0.0

0.5

2.8

91.6

190.2

201.5

memorandum: total inflows (US$ billion) a

annual average b newly industrializing economies: Hong Kong, Singapore, South Korea and Taiwan c Indonesia, Malaysia, Philippines and Thailand

Source: U N C T A D , World Investment Report 1995, Annex Table 1.

Further evidence to this effect is provided by F D I patterns in Asia. The share of nine dynamic Asian developing countries 41 in worldwide F D I inflows rose by a factor of 2.7 when comparing 1983 - 1988 and 1992 - 1994 (Table 2). F D I relations among developing countries in Asia gathered considerable momentum after the early 1980s, but they can only partly explain the rising share in worldwide F D I flows. 42 It should also be recalled that Asian developing countries did not maintain close institutionalized ties to either the E U or N A F T A . Hence, the dramatic shift of F D I to this region must be attributed to globalization effects to a significant extent. Another issue concerns the frequently noted concentration of F D I in developing countries in a few fairly advanced host countries. This observation seems to imply that most developing countries are severely restricted when it comes to participating in the increasing division of labor through FDI, which constitutes a major channel of international technology transfers. If, for whatever reason, foreign investors focus 41 42

This group comprises China, the four Asian NIEs and ASEAN(4); see notes to Table 2.

For details see Wolfram Wallraf Wirtschaftliche Integration i m asiatisch-pazifischen Raum, Asien: Deutsche Zeitschrift für Politik, Wirtschaft und Kultur, A p r i l 1996, 7, 19; U N C T A D (note 38).

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65

persistently on the same small group of host economies, the majority of developing countries probably receive less capital and technology than is necessary to derive benefits from the globalization of production and markets. These countries may then be caught in a poverty trap. According to this reasoning globalization w i l l support only developing countries that share in the relevant technologies, but w i l l not induce economic development in less advanced countries. However, the assumption of a more or less constant pattern of F D I flows to a few selected countries is hardly compatible with recent changes in the regional distribution of F D I inflows. Besides Asia, Central and East European economies in transition increased their share in worldwide F D I flows. This development is obviously related to the progress achieved in economic transformation, which encouraged the integration of transition economies into the international division of labor. By contrast, Latin America, which had been the preferred host region for F D I in the Third World until the outbreak of the foreign debt crisis, appeared to be the main loser in the 1980s. Recently, though, F D I flows to Latin America have recovered. Furthermore, the regional share in worldwide F D I flows is rather misleading when assessing the position of Latin American economies in the context of globalization. Several countries in this region (including Argentina, Chile and Mexico) recorded tremendous F D I inflows in the early 1990s.43 This indicates that attractiveness for F D I can be regained in the aftermath of major economic crises, once consistent economic policy reforms are implemented. The case to the contrary is provided by Brazil, which was less reform-minded until recently and lost its previous top position among developing countries with regard to F D I inflows. Latecomers in economic policy reform such as Brazil may face an uphill struggle against competitors that are presently absorbing the bulk of F D I inflows. Still, international competition for F D I is not a zero-sum game.44 Hence, if a country such as Brazil restores its attractiveness for foreign investors, additional F D I may be the result, rather than Brazil's having to divert F D I from other locations. The evidence on F D I contradicts the notion that only a few developing countries can benefit from globalization. While more than two-thirds of F D I flows to all developing countries has continuously been concentrated in the ten largest host economies,45 the country composition of the group of best performers has changed over time. Even more importantly, it is per capita F D I inflows that matter with respect to the chances of newcomers to enhance their locational attractiveness for foreign investors. In per capita terms, various small Latin American economies, for example,

43

Peter Nunnenkamp , The Changing Pattern of Foreign Direct Investment i n Latin America, Kiel Institute of World Economics, Working Paper 736, A p r i l 1996, 4 et seq. 44

Bergsman/Lall (note 14).

45

U N C T A D (note 15), 9.

5 GYIL 39

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Peter Nunnenkamp

have proved more attractive than their large neighbors. 46 Finally, the chances for newcomers to participate in globalization have further improved since some relatively advanced developing countries have emerged as foreign investor countries. 47 Notably in Asia, foreign investors based in newly industrializing countries are heavily engaged in less advanced economies in the region (especially in China). Taken together, the empirical evidence offers two major conclusions. First, booming F D I is not just a consequence of the recent move towards regional integration, but reflects true globalization to a significant extent. Second, the frequently noted concentration of F D I in a small group of relatively advanced host economies tends to underrate the chances of newcomers, especially of low-income developing countries, to derive economic benefits from globalization by attracting FDI. 3. Generation and Application of Technological Innovations The concern that many economies may be delinked from global trends also relates to the marginal role of developing countries in the generation of technological knowledge. As a matter of fact, technological innovation continues to be the domain of industrialized countries. A first indication to this effect is that industrialized countries still received 98 percent of total international transfers of non-financial property income in 1993, which mainly comprises royalties and license fees accruing to foreign owners of intangible assets.48 In contrast to their negligible share in worldwide receipts of non-financial property income, developing countries transferred about 9 percent of worldwide payments of property income to foreign owners of intangible assets in 1986 - 1993. Furthermore, so-called strategic technology alliances involving companies of different jurisdictions have been largely confined to OECD-based enterprises (Table 3). Especially joint R & D activities were almost exclusively pursued within the Triad of the EU, Japan and the United States. The participation of companies from newly industrializing and other developing countries was still below 10 percent in the case of joint ventures.

46

For details see Nunnenkamp (note 43), 7.

47

The share of developing countries in worldwide F D I outflows increased from less than 6 percent in 1983 - 1988 to nearly 15 percent in 1994, U N C T A D (note 38), Annex Table 2. 48

I M F (note 5), 1994, Part 2, Table C.13. For the limitations of this proxy see Nunnenkamp/Gundlach/Agarwal (note 6), 38 et seq.

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67

Table 3 Distribution of Strategic Technology Alliances, 1980- 1989 percent of alliances involvinjg firms from: number

total joint R & D R & D contracts etc. joint ventures

4192 1752 532 1224

industrialized industrialized and countries newly industrializing countries 95.7 99.1 96.6 90.0

2.3 0.5 2.6 4.9

industrialized and other developing countries 1.5 0.4 0.2 3.4

Source: Chris Freeman/John Hagedoorn , Catching U p or Falling Behind: Patterns in International Inter-firm Technology Partnering, World Development, 1994, 771, 775.

Yet, these observations do not imply that most economies are excluded from technological progress. N o t surprisingly, technologically motivated interfirm cooperation is principally a business between equally advanced partners operating at the forefront of technological progress. Companies located in less advanced countries rarely provide the required match of partners in this field of interfirm cooperation. Factor endowments typically prevailing in these countries prevent a stronger role in the generation of technological innovations. Put differently, strategic technology alliances are an inappropriate means to integrate developing countries into corporate globalization strategies. Nonetheless, the Third World can derive benefits from transfers of technology. It is the application of internationally available technologies that matters most for developing economies. Instruments other than strategic alliances, notably international trade in capital goods and F D I flows, are better suited for transferring technology to these countries. The preceding assessment of F D I flows has indicated that the attractiveness of Third World economies for foreign capital is not determined by their minor role in producing new technologies, but rather by their capability in applying existing technologies. Consequently, fears appear to be largely unfounded that new manufacturing techniques w i l l render it more difficult for developing countries to attract F D I in the future, which would increase the risk of falling further behind technologically advanced economies.49 Another question is whether developing economies receive technologies that fit their domestic factor endowments. What can be expected under conditions of globalization is that newly industrializing economies should receive a higher share of sophisticated technologies than less advanced developing countries. Empirical evidence on the relative importance of so-called core technologies in international 49 For an opposing view see Chris Freeman/John Hagedoorn , Catching U p or Falling Behind: Patterns in International Inter-firm Technology Partnering, World Development, 1994, 771, 779.

5*

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Peter Nunnenkamp

technological cooperation supports this proposition. Information technology, biotechnology and new materials, which are commonly considered to constitute the core of technological progress, clearly dominate strategic alliances and technology transfer agreements between OECD-based companies.50 The share of these core technologies in technological cooperation involving companies from newly industrializing countries is considerably lower (about 50 percent). Most interestingly though, about two-thirds of all partnerships involving firms from less advanced developing countries are in areas other than core technologies. This pattern reveals that the focus of technological cooperation is related to the factor endowments of the countries concerned. Hence, developing countries appear to be best prepared to participate successfully in globalization and attract appropriate technologies if they specialize according to their comparative advantages. I V . Developing Countries in the Era of Globalization: Miracles and Dramas The preceding evaluation provided various clues as to a closer integration of developing countries into the international division of labor through trade and investment relations. Globalization of production and markets seems to offer favorable chances for catching up economically to industrialized countries. A t the same time, it appears that various developing countries have failed to seize the opportunities involved in globalization. After briefly portraying some failures and success stories, the subsequent section offers an explanation for the diverse economic performance in the Third World. 1. Recent Trends and Future Prospects Closer trade and investment links have evolved for the Third World as a whole. A l l developing countries nearly doubled their share in world exports of manufactures after the mid-1980s, to slightly less than 24 percent in 1993.51 According to data from the International Monetary Fund, all (non-oil) developing countries attracted nearly 40 percent of worldwide F D I flows in 1994. Table 4 shows that total exports of developing countries have grown faster during the last decade than their gross national product (GNP), while the expansion of F D I inflows still by far exceeded export growth. This is exactly what one can expect under conditions of an enhanced involvement of developing countries in globalization strategies.

50

Id., 77 A.

51

Gundlach/Nunnenkamp

(note 32), Table 1.

69

Winners and Losers in the Global Economy

Table 4 The Integration of Third World Regions into the World Economy , 1985 and 1995 (percent) exports/GNP

all developing countries East Asia and Pacific South Asia Latin America and Caribbean Sub-Saharan Africa East Europe and Central Asia a

F D I inflows (net)/exports

1985

1995a

1985

1995a

19.4 21.4 9.3 19.6 24.1 19.7

25.1 34.8 15.8 15.6 27.5 13.7b

2.0 2.6 0.6 3.5 3.1 0.0

6.6 9.5 3.0 7.5 2.6 7.4 b

preliminary b 1994

Source: World Bank, World Debt Tables, various issues.

However, developments for the Third World as a whole obscure remarkable differences between various country groups. Both indicators presented in Table 4 reveal that it is mainly East Asia that has become more integrated into the international division of labor. 52 By contrast, export expansion (relative to GNP growth) remained fairly low in Sub-Saharan Africa, and turned out to be negative in Latin America as well as in Eastern Europe and Central Asia. Sub-Saharan Africa stands out as it is the only region for which F D I growth lagged behind export growth. The persistently low level of the FDI/exports ratio suggests that particularly Sub-Saharan Africa has so far not benefited from the trend towards globalized production. Nevertheless, Table 4 contradicts the widespread belief that only some newly industrializing economies in Asia take part in globalization. The FDI/exports ratio supports the proposition that Latin America has restored its locational attractiveness for F D I after several countries in this region had implemented far-reaching economic reforms. A t the same time, post-socialist countries in economic transition have emerged as new competitors for FDI. Success and failure in becoming integrated into the worldwide division of labor are clearly mirrored in the highly diverse economic growth performance of developing country groups. East Asia and Sub-Saharan Africa again represent the opposite extremes when comparing per capita GNP growth in 1985 - 1994.53 While the former region recorded an average annual growth rate of close to 7 percent, per capita

52 The interpretation of the exports/GNP ratio must be restricted to its development over time. The comparison across country groups is not meaningful, because this ratio tends to be systematically lower for large economies. 53 W o r l d Bank, World Development Report 1996, Selected World Development Indicators, Table 1.

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Peter Nunnenkamp

G N P declined in the latter region. Between these extremes, South Asia performed relatively well, whereas Latin America's 'lost decade' is still reflected in low average annual growth of per capita GNP in 1985 - 1994. Economic growth performance is expected to remain highly diverse under rather pessimistic assumptions (Table 5). 54 The African malaise of declining per capita income is projected to continue well into the next century in the 'divergent' scenario, which is one of muddling through and is largely based on the persistence of past trends. According to this projection, income differences between developing country groups w i l l widen further, and only the Asian region will continue the process of catching up to OECD countries. Sub-Saharan Africa runs the risk of falling further behind even under conditions of strong policy action at the domestic level combined with deeper international integration, which are assumptions underlying the 'convergent' scenario. O n the other hand, projections based on such optimistic assumptions suggest that all other countries and regions considered in Table 5 w i l l achieve significantly higher per capita income growth than OECD countries. In any case, developing countries in Asia are expected to remain the economic powerhouse of the world economy. But economic growth in Latin America and former C M E A countries may come close to Asian standards.

Table 5 Projections of Annual Average Growth in per capita GDP, 1994 - 2010 (percent ) scenarios divergent China* East Asia South Asia Latin America Sub-Saharan Africa former C M E A OECD a

2.3 3.0 2.4 1.4 -0.3 0.9 1.6

convergent 3.9 4.4 4.0 3.3 1.7 3.5 2.3

including Hong Kong

Source: World Bank, World Development Report 1995, Table 18.2.

54

For a more detailed presentation of different scenarios and their implications see World Bank, World Development Report 1995, Chapter 18.

Winners and Losers in the Global Economy

71

2. The Role of Economic Policy The strikingly different experience of developing countries in the era of globalization raises the obvious question as to the determinants of success and failure in becoming integrated into the international division of labor and achieving high economic growth. This article cannot provide a comprehensive evaluation of this crucially important, but highly complex, issue. Yet some relevant insights may be gained by addressing major policy areas that are likely to play a decisive role under conditions of globalization. The different and changing policy stance of governments may indeed explain why the presumed 'Asian Drama' turned out to be an 'East Asian Miracle', 55 why Latin America is recovering from the 'lost decade', why the economic marginalization of Sub-Saharan Africa may continue, and why post-socialist countries in Central and Eastern Europe are emerging as new competitors on world goods and capital markets. As argued above (Parts I I and III), exogenous factors such as the move towards regional integration, autonomous decisions by multinational corporations and technological developments cannot be blamed for the different performance of developing countries in the era of globalization. This puts into perspective those domestic economic policies that shape the international competitiveness of rather immobile factors of production. Arguably, governments are no longer free to pursue economic policies of their own liking, unless they are prepared to delink the countries they rule from worldwide trends. Apparently, there are no promising policy alternatives to striving for macroeconomic stability, encouraging investment in physical and human capital and ensuring openness with regard to international trade and capital flows. Macroeconomic stability, notably the absence of high and volatile rates of inflation, is the first indicator of a sound business environment. Excessive inflation results in higher investment risks and a misallocation of resources. Inflation is generally caused by domestic factors, mainly government budget deficits. This is most obvious when deficits are financed by printing money. Alternatively, high budget deficits add to the tax burden of economic agents. Countries with pervasive inflation and budget deficits are, thus, relatively unattractive investment locations and are unlikely to experience strong economic growth in the longer run. It follows that the reputation for macroeconomic stability that many Asian governments had established is at least partly responsible for the 'Asian Miracle' of world market integration and economic catch-up. Developing countries in Asia as a whole reported an average annual inflation rate of about 9 percent in 1985 - 1994.56 This compares favorably 55

Gunnar Myrdal , Asian Drama: A n Inquiry into the Poverty of Nations, 1967; W o r l d Bank, The East Asian Miracle: Economic Growth and Public Policy, 1993. 56

IMF, International Financial Statistics Yearbook 1995, 120 et seq.

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Peter Nunnenkamp

with Africa (28 percent), not to speak of Latin America (229 percent), where various countries suffered from hyperinflation until recently. Second, more investment, induced by a stable macroeconomic environment, increases labor productivity and produces higher income in the long run. W i t h regard to physical capital accumulation, East Asia displayed an outstanding performance among developing countries. In 1994, for example, gross domestic investment amounted to 36 percent of GDP in this region. 57 South Asia, Latin America and developing countries in Europe and Central Asia all reported investment rates somewhat above 20 percent, whereas remarkably low investment in Sub-Saharan Africa (17 percent in 1994) can be regarded as a major reason for this region's economic marginalization. Human capital formation is the third factor explaining success and failure in becoming involved in globalization. Various studies suggest that this factor may be even more important in driving economic growth than physical capital accumulation. 58 This tends to be all the more so in a globalizing economy, given that the diffusion of new technologies is advanced by declining information and transaction costs, and that the application of such technologies depends on the availability of complementary local skills. Taking average years of schooling as a proxy for the stock of human capital, the sharp contrast between East Asia (1992: 6.5 years) and Sub-Saharan Africa (2.3 years) is again borne out. 59 As observed for the preceding indicators of the international competitiveness of rather immobile factors of production, other developing country groups rank between these extremes. Former CMEA countries are an exception; they come closest to OECD standards in terms of average years of schooling (8.2 versus 9.6 years). It thus appears that the integration of Central and Eastern Europe into the world economy is helped considerably by a comparatively favorable endowment of human capital. A l l in all, the Asian success in becoming a most attractive location for international businesses is clearly related to a combination of short- and long-run factors that can be shaped by domestic economic policy. In other words, economic backwardness is not necessarily a permanent state of affairs. Macroeconomic stability is a matter of public budget discipline in the first place; the rate of investment is a question of business conditions, especially with respect to taxation; and the amount

57

World Bank (note 53), Table 13.

58

See, e.g., Robert J. BarrOy Economic Growth in a Cross Section of Countries, Quarterly Journal of Economics, 1991, 407, 407 et seq.; Gregory N. Mankiw/David Romer /David N. Weily A Contribution to the Empirics of Economic Growth, Quarterly Journal of Economics, 1992,408, 408 et seq.; Erich Gundlachy The Role of Human Capital in Economic Growth: New Results and Alternative Interpretations, Weltwirtschaftliches Archiv, 1995, 383, 383 et seq. 59

World Bank (note 54), Table 18.1.

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73

of compulsory formal education reflects the government's attitude towards the provision of public goods. Furthermore, recent empirical investigations reveal that openness in the form of largely unrestricted international trade and capital flows is of utmost importance for achieving high economic growth. 60 Openness eases the necessary technology import through imports of investment goods, F D I inflows and other forms of international investment cooperation. It promotes domestic competition and efficiency, and supports a closer integration into the world economy by shaping the production structure according to the respective comparative advantages of the economy. Developing countries in Asia attracted substantial F D I inflows and emerged as the world economy's growth pole, since economic policy responded in a more appropriate way than elsewhere to the adjustment needs resulting from progressing globalization. A priori , there is no reason why Asian-type success stories should not happen in other parts of the world. Various economies in Latin America and Central and Eastern Europe appear to be moving in this direction. Governments have increasingly accepted that globalization implies fewer degrees of freedom for domestic policy-making. They have implemented macroeconomic stabilization programs and liberalized trade and F D I restrictions, in order to reduce the risk of being delinked from world goods and capital markets. This danger is still particularly pronounced in Sub-Saharan Africa, where many governments continue to be hesitant in embarking on consistent economic policy reforms. V. Industrialized Countries under Adjustment Pressure Both theoretical reasoning and empirical evidence suggest that the emergence of new competitors on world goods and capital markets gives rise to substantial adjustment needs in industrialized countries. The progressing integration of developing countries and transition economies into the international division of labor has confronted the Triad of the EU, Japan and the United States with similar challenges. Nevertheless, the labor market implications of globalization have been strikingly diverse, and the members of the Triad have responded in different ways to the challenge of globalization. 1. Unemployment in the Triad: Stylized Facts The rate of unemployment surpassed 11 percent in the E U in 1994, although a significant economic growth stimulus was widely anticipated from the completion of the Internal Market program. Currently, hardly anyone expects considerably improved labor market conditions in the foreseeable future. A l l major E U countries 60

Sachs/Warner

(note 4); Gundlach (note 4).

74

Peter Nunnenkamp

experienced a rise in unemployment from 1974 - 1982 to 1983 - 1994, when comparing period averages of standardized OECD data on unemployment. 61 The average of the standardized rate of unemployment for seven E U members 62 went up from 2.9 percent in 1973 to 9.7 percent in 1994 (Table 6). Nothing comparable happened in Japan and the United States. U.S. unemployment had traditionally been higher than in the EU, mainly because of significant frictional unemployment, but the standardized rate increased only modestly after 1973. The discrepancy is even more pronounced when comparing the E U with Japan, where the rate of unemployment remained below 3 percent until 1994. Table 6 Unemployment and Changes in Employment in the Triad (percent) unemployment rate a

share of longterm in total unemployment b

average annual change i n employment 1983-93

1973

1994

1993

Belgium Denmark France Germany (West) Italy Netherlands United Kingdom

2.7 0.9 2.7 0.8 6.2 3.9 3.0

9.7 10.1 12.5 6.9 12.0 7.2 9.6

53 34 34 40 58 52 43

0.7 0.7 0.3 0.9 0.5C 3.2C 0.6

E U averaged

2.9

9.7

45

1.0

Japan United States

1.3 4.8

2.9 6.0

17 12

1.2 1.7

a d

standardized rate according to O E C D procedures seven countries listed - unweighted mean

b

12 months and m o r e c 1983 - 1992

Source: OECD, Employment Outlook, various issues.

Theory suggests that globalization affects above all low-skilled labor in O E C D countries (Part I). As a matter of fact, labor demand has shifted to the disadvantage

61

Statistical information in the following paragraphs is largely from Karl-Heinz Paque, Structural Unemployment in Europe: A Bird's-Eye View, Kiel Institute of World Economics, mimeo, A p r i l 1996, and Erich Gundlach/Peter Nunnenkamp , Labor Market Implications of Globalization: H o w the Triad Has Dealt w i t h Competitive Challenges, Kiel Institute of World Economics, mimeo, July 1996. 62

Comparable data are missing for other E U countries.

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of low-skilled labor since the early 1980s.63 Unemployment of low-skilled workers increased disproportionally in E U countries, whereas the ratio of unemployment rates between high-skilled and low-skilled workers remained roughly constant in the United States. A similar pattern prevails with regard to long-term unemployment, which is frequently considered a proxy for unemployment at the lower end of the qualifications spectrum. The share of long-term unemployment in total unemployment is exceptionally high in E U countries as compared with both Japan and the United States (Table 6). This points to a dualization of E U labor markets. Furthermore, the share of youth unemployment in total unemployment increased significantly in E U countries such as France and Italy, whereas it did not change much in Japan and the United States.64 The unfavorable unemployment record of the E U was associated with less employment generation than elsewhere in the Triad. The Netherlands is the only exception in this respect. For the remaining six E U countries listed in Table 6, average annual employment growth in 1983 - 1993 (0.6 percent) was only half the employment growth in Japan, and about a third of the employment growth in the United States. 2. Adjustment Strategies: The Role of Wages and Structural Change The strikingly diverse labor market outcomes strongly suggest that the members of the Triad have reacted differently to the common challenge of globalization. Collective wage bargaining is the first candidate in this respect. Evidence on the distribution of earnings within the economies under consideration indeed helps to explain the puzzling unemployment patterns. The differentiation in earnings widened considerably in the United States and, though to a lesser extent, also in Japan.65 Low-paid workers, the group that can be assumed to represent the lower end of the spectrum of labor qualifications, suffered a decline in their real wages in the United States, while high-paid (i.e. high-skilled) workers benefited from above average wage increases. More pronounced wage differentiation in the United States was probably supported by decentralized wage bargaining and modest unemployment support. In sharp contrast, in most of continental Europe more generous unemployment support schemes and fairly centralized collective wage bargaining worked against greater wage differentiation. Consequently, the wages of low-paid workers rose in line with mean earnings, or even improved relative to the mean.66 This leads to the con-

63

Paque (note 61).

64

Gundlach/Nunnenkamp

65

O E C D , Employment Outlook, various issues.

66

Gundlach/Nunnenkamp

(note 61), Figure 2. (note 61), Figure 3.

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elusion that high unemployment, especially of low-skilled labor, is the price that E U countries had to pay for insufficient relative wage flexibility. Changes in the structure of employment in manufacturing further support the proposition that E U wage policies were inappropriate to deal with the challenge of globalization. The E U experienced a drastic cut in employment, for example, in the textile and clothing industry. This relatively labor-intensive industry suffered a decline in relative world market prices, as compared with world market prices of more (physical- and human-) capital-intensive goods, which is in line with theoretical predictions outlined in Part I. 6 7 Nevertheless, the United States prevented a significant reduction of employment in textiles and clothing. Compared with the EU, the development of relative wages was more in line with the development of relative world market prices. A t the same time, employment creation in more skill-intensive industries (e.g. in manufacturing of automobiles) remained small in the E U as compared with Japan. Trade data underscore that, within the Triad, structural change has been most pronounced in Japan. Measured by world export shares for manufactures, the E U was clearly outperformed by Japan (and also by the United States).68 More interestingly though, the development of world export shares differed tremendously across manufacturing industries in the case of Japan, whereas the pattern was rather uniform in the case of the EU. The decline in the EU's export shares was of similar magnitude in industries characterized by quite different factor intensities. For example, the physical-capital-intensive chemical industry as well as the labor-intensive textile and clothing industry lost about three percentage points in world export shares. The loss was somewhat more pronounced in the production of machinery and transport equipment; advanced E U economies should possess comparative advantages in this industry, which is relatively human-capital intensive on average, although factor intensities vary considerably within this broadly defined industry. In the case of Japan, the change in world export shares for manufacturing as a whole obscures significant variation at the industry level: labor-intensive and standardized lines of production such as clothing and textiles, metal products and iron and steel reported considerably lower export shares in 1993 than in 1980. O n the other hand, machinery and transport equipment recorded an increase in export shares of twice the manufacturing average. The restructuring of exports indicates that Japan was more successful than the E U in specializing according to its comparative advantages.

67 68

For a more detailed analysis see Gundlach/Nunnenkamp

(note 61).

Excluding intra-EU trade, the EU's share in world exports of manufactures declined by nearly five percentage points after 1980, to 17.5 percent in 1993. The loss in market shares remained modest for the United States (0.8 percentage points), while Japan raised its market share from 10.8 percent in 1980 to 12.7 percent in 1993 (Author's own calculations based on U N , Monthly Bulletin of Statistics, various issues).

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A l l in all, labor market developments are in line with the proposition of an increasing globalization of production and markets. This is not to ignore that other explanations such as (low-skilled-) labor-saving technological progress are also compatible with empirical facts. 69 However, technological change itself may be driven to a significant extent by the trend towards globalization. That is, globalization impairs the wage and employment prospects of low-skilled labor in advanced economies either directly, or indirectly through technological change. As it seems, the ensuing adjustment needs, in terms of wage flexibility and structural change, have been handled most effectively in Japan, where economy-wide employment problems were largely avoided. U.S. labor markets have responded to fiercer worldwide competition by remarkably flexible wage policies, whereas restructuring towards skill-intensive manufacturing remains a matter of concern. In the EU, adjustment has remained sluggish in terms of both wage differentiation and structural change. 3. Policy Options Ahead Economic policy makers in advanced economies are facing a major dilemma in the era of globalization. The implication of enterprises having more options to realize cost savings and exploit profit opportunities on a worldwide scale is that government autonomy in economic policy-making is shrinking. In particular, the effectiveness of traditional means to protect non-competitive factors of production is declining. The protection of low-skilled workers through restrictions imposed on labor-intensive imports is undermined because trade barriers may be circumvented by relocating production. Furthermore, the higher mobility of capital and the easier access to technology enable new competitors to upgrade their exports. It is thus not surprising that it is heavily debated in industrialized countries, notably in the EU, in what way governments can contribute to combatting unemployment and ensuring technological leadership. The limited effectiveness of conventional protectionist measures has fueled demands for more sophisticated protection. The request for a multilateral harmonization of standards with respect to social and ecological production conditions is most noteworthy in this respect. Common production standards impede the process of lower income economies catching up, if these countries are required to adhere to the demanding social and ecological standards of industrialized economies. The adjustment burden of ailing industries is eased, but only at the cost of technologically more advanced industries. The latter 69

O n the relevance of trade and technological progress for determining labor market outcomes see for example Paul Krugman/Robert 2. Lawrence , Trade, Jobs, and Wages, Scientific American, N o . 4, 1994, 22, 22 et seq.; Robert 2. Lawrence/Matthew J. Slaughter , International Trade and American Wages in the 1980s: Giant Sucking Sound or Small Hiccup?, Brookings Papers on Economic Activity 2, 1993, 161, 161 et seq.; Adrian Wood , North-South Trade, Employment and Inequality: Changing Fortunes in a Skill-Driven World, 1994.

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suffer from lower demand for their products in emerging markets and from the upgrading of exports by new competitors if locational characteristics are denied their role in shaping the international division of labor. In essence, innovative protectionist measures resemble traditional means: they lead to allocative inefficiency and structural rigidity in the protected economy, while the incentives to increase productivity through technological innovation are weakened. Strategic industrial policy is frequently considered another option to tackle unemployment and insufficient innovativeness. While the drawbacks of persistent subsidies granted to ailing industries are well known, the more recent E U experience w i t h the industrial targeting of high-tech industries is also not encouraging. Frequently, huge fiscal outlays failed to produce a significantly improved world market performance in the promoted industries; examples include the European aircraft industry and the production of semiconductors. Arguably, the assumption underlying the E U approach, namely that the competitive strength of Japanese companies lies in their enjoying the advantages of an unleveled playing field rather than their being the better players, is not valid. In any case, strategic industrial policy is inherently flawed for various reasons: governments face serious constraints in picking winners, i.e. identifying future growth industries; targeting support schemes at domestic enterprises becomes increasingly difficult under conditions of progressing interfirm cooperation on a global scale; lobbying by large companies is encouraged, whereas small innovative enterprises may suffer from discrimination; and retaliation by foreign trading partners is highly likely. In the short run, there seems to be no alternative but to accept that the trade-off between employment and wages has become more pronounced in the era of globalization. The U.S. example shows that employment of low-skilled workers can be maintained if relative wages are flexible. Hence trade unions, especially in the EU, must agree to wage flexibility and wage differentiation. Governments must provide appropriate incentives for employment-enhancing collective wage bargaining. This may require revising generous unemployment benefits to the extent that they discourage workers from accepting lower-paid jobs. It should be noted, however, that flexible wage policies cannot halt globalization and the ensuing devaluation of lowskilled labor in advanced economies. They only offer a cushion until a longer-term strategy becomes effective. From low-skilled labor being the major problem in advanced economies it follows that a strategy of tackling the causes of impaired competitiveness must focus on human capital formation. Industrialized countries have little choice but to strengthen their comparative advantage in skill-intensive sectors by improving the qualification of the workforce. As globalization implies a permanent change of job requirements, human capital must be formed in a way that allows for flexibility and mobility of the workforce. To this effect, the curricula of schools and universities may have to be reviewed in cooperation with the business sector in order to narrow

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the gap between the skills supplied and those required in labor markets. Likewise, existing systems of vocational training, including the widely admired German apprenticeship system, may have to be revised, taking into account that the life-cycle of vocational skills is being shortened by the proceeding globalization. Probably, there w i l l be an increasing demand for flexible generalists, rather than narrow specialists. Specific training of the workforce may be left to the market, but governments have a major role to play in supporting human capital formation (for example, by taxing consumption rather than savings). A larger stock of skilled labor delivers social benefits in terms of greater flexibility in responding to economic change. Reforms of the system of education and training are likely to take considerable time before the competitive position in skill-intensive sectors is enhanced. It is exactly because of these time lags that such reforms must not be postponed. Conclusion A more advanced international division of labor offers vast opportunities to raise economic welfare on a worldwide scale. Foreign trade allows for specialization according to the trading partners' respective comparative advantages. Cross-border mobility of capital and technology renders it possible for enterprises to slice up the value chain, i.e. to achieve a geographically dispersed fragmentation of production. It is the major characteristic of economic globalization that the international division of labor is pushed forward by both mechanisms at the same time. Yet, globalization is not only instrumental to raising world income; it also gives rise to distributional conflicts. In the national realm, the relatively scarce factors of production face mounting adjustment pressure once the locational decisions of enterprises are no longer constrained by segmented goods and factor markets. Internationally, welfare gains tend to be unevenly distributed; various countries may be badly prepared to meet the challenge of fiercer competition, especially with respect to capital and technology inflows. Two issues figure prominently in the current debate on the chances and risks involved in globalization. The first question concerns the prospects of lowincome countries becoming involved in globalization and catching up economically to industrialized countries. Furthermore, the discussion centers around the labor market implications of globalization in industrialized countries, notably on its impact for low-skilled workers. Various arguments have been raised against the proposition that globalization amplifies adjustment pressure for industrialized countries and offers better opportunities for developing countries to derive economic benefits from a more sophisticated division of labor. First, income gains resulting from multilateral trade liberalization agreed upon in the Uruguay Round have been shown to be concentrated in

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OECD countries. Income gains are largely due to the countries' own liberalization measures. This implies that developing countries could have increased their share in worldwide welfare gains if they had committed themselves more strongly towards multilaterally binding trade liberalization. In any case, multilateral trade liberalization represents a 'win-win strategy' with only few possible exceptions in the short run. The neomercantilist approach adopted by various governments is thus grossly mistaken from a macroeconomic point of view, though it may support the vested interests of pressure groups. Second, the revival of regionalism may suggest that the international division of labor is progressing on a regional, rather than on a global scale. If so, countries remaining outside major integration schemes run the risk of being excluded from closer trade and investment relations. Empirical evidence on trade and F D I patterns is largely in conflict with this contention. Regionalism, though important, is not the dominant feature in the world economy. Closer trade links have emerged both regionally and globally. Asia's favorable world market performance indicates that membership in and privileged market access to major integration schemes matter less than domestic economic policies in explaining successful participation in international trade. Likewise, various countries have emerged as most attractive locations for foreign investors, although institutionalized ties to either the E U or N A F T A were largely lacking. Third, the chances of low-income countries to catch up are impaired if crossborder mobility of capital remains limited and F D I inflows are concentrated in a few fairly advanced economies. As a matter of fact, capital owners reveal a home country bias, but this bias has become less pronounced since the 1970s. As concerns the distribution of FDI, developing countries have increased their share considerably, notably in the early 1990s. Furthermore, the frequently noted concentration of F D I in some major Third World hosts tends to underrate the chances of newcomers to derive economic benefits from globalization through attracting FDI. The country composition of the group of major recipients of F D I has changed over time, depending on the local investment climate and the underlying economic policies. A t the same time, various small economies have succeeded in attracting fairly high per capita inflows of FDI. Fourth, low-income countries are sometimes believed to end up in a poverty trap if they specialize in labor-intensive and highly standardized lines of production. However, the fact that these countries are barely involved in the generation of technological innovations does not imply that they are delinked from technological progress. Rather, imports of capital goods and F D I inflows represent promising means to gain access to internationally available technologies. Low-income countries are best prepared to receive and apply appropriate technologies if they specialize according to their comparative advantages.

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From all this it follows that neither foreign trade nor international capital and technology transfer is a zero-sum game. The emergence of promising markets and of new competitors for foreign capital supports trade creation and additional investment opportunities. Empirical evidence strongly suggests that developing countries have indeed achieved a closer integration into the worldwide division of labor through trade and investment relations. However, the economic performance of different groups of Third World countries has remained strikingly diverse, w i t h the 'Asian Miracle' and the economic marginalization of Sub-Saharan Africa representing the opposite extremes. Exogenous factors such as the move towards regional integration, autonomous locational decisions by multinational corporations and technological developments cannot be blamed for success and failure in benefiting from globalization. Rather, a close link exists between economic performance and domestic economic policies that shape the business environment prevailing in different locations. Governments are no longer free to pursue economic policies of their own liking. In order to become involved in globalization, there is little choice but to ensure macroeconomic stability, encourage physical and human capital formation and open up to foreign trade and capital inflows. I n principle, Asian-type success stories can happen also in other parts of the world. The chances for this to occur have improved since many governments in Latin America and Central and Eastern Europe have embarked on comprehensive stabilization and liberalization programs. This is likely to confront the Triad of the EU, Japan and the United States with even more pressing adjustment needs than these countries have already experienced in the recent past. Labor market developments in the Triad support the proposition that globalization primarily affects lowskilled labor either directly, or indirectly through technological progress. The leading industrialized economies have reacted differently to the common challenge of globalization. The need for structural change in production and export patterns seems to have been handled most effectively in Japan. U.S. labor markets have responded to fiercer worldwide competition by remarkably flexible wage policies. In the EU, particularly high unemployment, especially of low-skilled workers, appears to be the price that had to be paid for sluggish adjustment in terms of wage differentiation and structural change. Industrialized countries should realize that the effectiveness of traditional means to protect non-competitive factors of production has been eroded in the era of globalization. Moreover, protectionist innovations and strategic industrial policy do not provide reasonable alternatives to tackle unemployment and insufficient innovativeness. Wage flexibility does buy some time for structural adjustment, but cannot halt globalization and the ensuing devaluation of low-skilled labor in advanced economies. Hence, industrialized countries have little choice but to promote human capital formation in order to strengthen their comparative advantage in skill-intensive lines of production.

6 G Y I L 39

Market Contestability and Reform of the Antidumping Laws By Thomas J. Schoenbaum

Introduction It is quite remarkable that, despite a consensus among economists and lawyers that the antidumping laws are seriously flawed, 1 serious reform has proved difficult or impossible to achieve. The G A T T Antidumping Code of 19792 introduced new procedural and substantive standards both for calculating dumping margins and for determining whether a domestic industry is materially injured; but abuses by protectionist interests increased in the 1980s.3 The Uruguay Round of trade negotiations produced a new Antidumping Agreement, 4 but since this latest 'reform', the use and abuse of antidumping actions has continued unabated, especially in the United States and the European Union. There is new evidence of increased use of antidumping duties, even by developing countries. 5 This trend is cause for concern. The purpose of this Article is to examine what can and should be done to effectuate real reform of the antidumping laws. First, the economic evidence for the appropriate role of antidumping w i l l be discussed. Second, the salient provisions of the 1 See generally Richard Boltick/Robert Litan (eds.), D o w n in the Dumps: Administration of the Unfair Trade Laws, 1991; Eberhard Grabitz/Armin von Bogdandy (eds.), U.S. Trade Barriers: A Legal Analysis, 1991. 2 Agreement on the Implementation of Article V I of the General Agreement on Tariffs and Trade, G A T T Doc. M T N / N T M / W / 2 3 2 , reprinted in: G A T T , Basic Instruments and Selected Documents, 26th Supp., 1980. 3

See generally Thomas J. Schoenbaum, Antidumping and Countervailing Duties and the G A T T : A n Evaluation and a Proposal for a Unified Remedy for Unfair International Trade, German Yearbook of International Law, vol. 30, 1988, 177. 4

Agreement on Implementation of Article V I of the General Agreement on Tariffs and Trade 1994, Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, G A T T Doc. M T N / F A (Final Act) (15 April 1994), 145, reprinted in: Message from the President of the United States Transmitting the Uruguay Round Trade Agreements, Texts of Agreements Implementing Bill, Statement of Administrative Action and Required Supporting Statements, H.R. Doc. No. 316,103d Cong., 2d Sess., 1453 (1994) (U.S. W T O implementing legislation). 5 See Frances Williams , W T O Chief Tries to Avoid Confrontation, Financial Times, 14 December 1995, 8.

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Uruguay Round Antidumping Agreement and the international legal norms for antidumping duties w i l l be examined. The Author concludes that the Uruguay Round reform has only tinkered with the problem, and that the fundamental flaws remain. Third, the United States antidumping regime as a case study of the arbitrary and inefficient use of these laws to restrict imports w i l l be analyzed. Fourth, it w i l l be examined whether and to what extent competition laws and market contestabilit y policies can be the basis for future reform of the antidumping laws. I. A n Economic Evaluation of Dumping Dumping is defined in the Uruguay Round Antidumping Agreement as selling a product in a foreign country at a price that is 'less than normal value', the price charged by the same firm in its home market in the ordinary course of trade. What are the motivations for dumping? What are the economic effects? 6 It is useful to consider these questions in order to understand and to evaluate the law of antidumping. As a point of departure, it is important to realize that a precondition for dumping is market segmentation. This is what makes it possible to sell an identical product in two different markets for different prices. It is easy to see this could not occur if the two markets were tied together; the price differences would be erased through arbitrage. Markets can be segmented for many reasons, including transporP

6 See Steven F. Benz, Low Cost Sales and the Buying of Market Share, Stanford Law Review, vol. 42, 1990, 695.

6*

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tation costs and barriers to entry resulting either from governmental or private action. A second precondition to dumping is different elasticities of demand in the two markets. The demand curve in the home market will be less elastic (steeper), which means that demand is less affected by changes in price; by contrast, demand in the export market w i l l be relatively more elastic. P

A third precondition, which enables advantage to be derived from this situation, is that the dumping firm has greater market power in the home market compared to the export market. This market power enables the dumping firm to charge a monopoly price in the home market without significant disruption by competing firms. In the export market, there is more competition and lower prices. 1. Motivation There are five basic economic reasons for dumping. First, according to the classical model advanced by Jacob VinerJ dumping is predatory. The intention of the dumper is to drive competitors in the export market out of business. When this is accomplished, the dumper can raise prices and reap monopoly profits. Predatory dumping, if it occurs, is undoubtedly a problem, but there are reasons to doubt 7

See J. Viner , Dumping: A Problem in International Trade, 1923.

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whether antidumping duties are the appropriate solution. First, predatory dumping should not be counteracted merely by levying additional import duties; it should be proscribed and enjoined under the antitrust laws.8 Second, international predatory pricing is notably difficult to carry out. The industry involved must have high barriers to entry so that new firms, either foreign or domestic, will not come in to replace the target firms being eliminated. The Supreme Court of the United States9 has expressed skepticism that predatory pricing is a feasible international strategy and has demanded a high degree of concrete evidence to support such allegations. There also is a second practice that is used to justify the application of the antidumping laws. Dumping may be a part of a strategy to gain market share. Indeed, many companies emphasize market share as a long-term objective rather than shortterm profitability. Dumping to gain market share is a probable motive where a foreign producer enjoys monopoly rents in its home market and can take advantage of these monopoly rents as well as cost savings for increased production to finance its dumping practices abroad. In the foreign market, there may be a high elasticity of demand so that the firm will set lower prices for foreign sales. It is evident that dumping to increase market share distorts trade. Although consumers may be better off, producers who lose market share are worse off. 10 Nevertheless, there are problems with respect to applying the antidumping laws as a remedy to correct below-cost sales for the purpose of boosting market share. First, the antidumping laws are over-inclusive, because they remedy price discrimination that does not, in fact, diminish competition. Second, even as a remedy for buying market share, antidumping duties are only a second-best solution. The best solution would be to open the foreign producer's home market, to eliminate the monopoly profits, and the economic segregation of the two markets. Economists disagree11 as to whether pricing to enhance market share is a pernicious practice or, on the contrary, a natural business phenomenon that creates more benefits than problems for the recipient economy. A third motivation for dumping is to maintain sales in the face of market instability. A n y number of factors may cause fluctuations in export markets: currency ratio changes, variable demand, recession. Dumping may be the inevitable consequence of

8

Predatory dumping would be a per se violation of the Sherman Act, 15 U.S.C. § 2 (1988), as well as the Clayton Act, 15 U.S.C. § 13 (1988). See, e.g., Northeastern Tel. Co. v. American Tel. and Tel. Co., 651 F.2d 76 (2d Cir. 1981); Thurman Indus., Inc. v. Pay WPak Stores, Inc., 875 F.2d 1369 (9th Cir. 1989). 9

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

10 11

See Benz (note 6), 695.

Compare id. with. Alan V. Doerdorf, Economic Perspectives on Antidumping Law, in: John Jackson/E. Vermulst (eds.), Antidumping Law and Practice, 1989.

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trying to remain in a market in the face of such adversity. Antidumping duties would be harmful if used in this situation. Fourth, a firm may engage in dumping as part of a 'forward pricing' strategy. In markets involving advanced technology, costs generally are higher at the beginning of a product cycle (because of high fixed costs), but become lower after the product is in production. It may be rational in such a case to price the product based on the recovery of costs and profit over the full product cycle. This may dictate 'forward pricing', whereby the product temporarily is sold below average total cost; but as costs decline, prices can be held relatively constant, and the losses w i l l be recouped. I n this case, antidumping duties would be unnecessary and counterproductive to healthy competition and welfare. Fifth, a firm may be motivated to dump if it is unable and unwilling to adjust its production process and output to suit fluctuations in demand. Firms that have high fixed costs or inflexible labor policies may elect to keep producing rather than to contract labor or capital production components during times of declining demand. Antidumping duties would not seem to be warranted to combat this type of behavior. 2. Duration Dumping can be classified by duration into sporadic, intermittent and continuous (persistent) activity. While sporadic dumping generally is not worrisome, intermittent or continuous dumping may produce adverse welfare effects if it is designed to be predatory, to drive competitors out of business. Dumping of longer duration also may result in a misallocation of resources, especially in the exporting country. 3. Cost Analysis Dumping may be analyzed in terms of the relationship of prices to costs of production. Consider five cases of prices in the export market: (1) P(l) is a price higher than average total cost as well as the equilibrium point of marginal revenue (MR) and marginal cost (MC); (2) P(2) is the equilibrium of marginal revenue and marginal cost, above average total cost (ATC); (3) P(3) is below A T C but above average variable cost (A VC); (4) P(4) is below A VC; (5) P(5) is below average fixed cost (AFC). Furthermore, in each case, the home market price P(H) is higher. A l l five cases would meet the legal definition of dumping. Certainly, however, P(l) and P(2) can be defended as normal and rational behavior; any price above A T C is profitable. P(2), which is equal to marginal cost, or short-run variable costs, is the proper basis for efficient output decisions and by definition is efficient pricing.

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P P(H)

D(H) MC

, ATC

P(l)

AVC

P(2) P(3) P(4)

AFC

P(5)

MR

Q

O n the other hand, prices below A T C cause the firm to incur losses. This may be rational, however, in periods of slack demand or for other economic reasons. Dumping below A T C or M C may be justified by uncertainties and the necessity to make decisions about production before prices can be determined. A firm also may be meeting competition, competing for market share or trying to maximize sales rather than profits. In antitrust cases, prices above A T C are legal per se; average variable cost is a marker of rebuttable presumptions, with the plaintiff holding the burden above and the defendant below. 12 Only P(5), pricing below fixed costs, seems irrational, except where it occurs for very short periods. 4. Welfare Effects The welfare effects of dumping are mixed. Perhaps the greatest impact is in the exporting country, where consumers must pay more in an artificially segmented market. Some have called for antidumping duties to punish the exporting country for maintaining closed markets. 13

12 13

See Henry v. Chloride Inc., 809 F.2d 1334, 1346 (8th Cir. 1987).

See Jeffrey E. Garten , The Antidumping Law and U.S. Trade Policy, World Competition, vol. 17, 1994, 129.

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In the importing country, consumers will be better off by paying less; producers w i l l be disadvantaged. Third-country producers also w i l l be at a disadvantage, as well as certain producers of products that are not directly competitive with the dumped imports through the misallocation of resources stimulated by artificially low prices. The seriousness of the injuries, if any, should be compared carefully to the benefits before any relief, such as antidumping duties, is imposed. I I . The International Law of Dumping G A T T Article V I does not forbid dumping; it authorizes the imposition of antidumping duties, however, if dumping causes material injury to a domestic industry. The Uruguay Round Agreement on Antidumping 1 4 is the latest in a series of agreements that has attempted to set more explicit standards for the imposition of antidumping duties. However, the Uruguay Round Agreement was not intended as a true reform. Dumping still is defined as selling a product at a price in an export market lower than a hierarchy of 'normal values' (home market price, sales to third countries or 'constructed cost values'). International price discrimination is actionable if the dumped product causes or threatens material injury to the domestic industry. The Uruguay Round Agreement only advances small technical reforms of antidumping law and procedures. 1. New Standards for Standing ' to File a Petition Article 5.4 of the Agreement provides that an antidumping petition must be supported by at least twenty-five percent of the domestic industry. 2. De Minimis Dumping Margins Article 5.8 provides that a dumping margin will be considered de minimis , and duties w i l l not be imposed, unless the margin is at least two percent of the export price. A n investigation must terminate if the total volume of dumped imports from a particular country is negligible, defined as less than three percent of imports of the like product in the importing country.

14 Agreement on the Implementation of Article V I of the General Agreement on Tariffs and Trade 1994 (note 4).

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3. Cumulation Article 3.3 of the Agreement allows injury to be determined, based upon aggregating the imports from more than one country. Cumulation is permissible if the dumping margins are more than de minimis and the volume of imports from each country is not negligible. 4. Margins Analysis Article 3.4 allows the magnitude of the margin of dumping to be considered in the determination of material injury. 5. Expiration of Antidumping Orders Article 11 provides for termination of antidumping orders within five years of imposition or five years after the date of any 'sunset' review unless authorities determine that there is a likelihood of recurrence of dumping and injury. 6. Minimum Profit and General Selling Expenses for Constructed Value Article 2.2 prohibits the statutory minimums applied in 'constructed value' antidumping cases (formerly ten percent for general selling expenses and eight percent for profit under U.S. law). 7. Below-Cost Sales Article 2.2.1 provides that sales below the cost of production in the home market may be disregarded from the calculations of dumping margins if twenty percent or more of total sales in the home market are below fully allocated cost. Alternately, administering authorities may disregard below-cost sales even if they account for less than twenty percent if the weighted average sales price is below the weighted average cost. This still allows national authorities to create or exaggerate dumping margins. For example, suppose in both the home and export markets there are sales at the following prices: $9, $10 and $11. If $9 is below cost, it may be disregarded in the calculation of normal value, thus ensuring a finding of dumping.

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Article 2.2.1.1 provides that cost calculations should be adjusted 'appropriately* for start-up operations. This indicates the possibility of an exception for forward pricing in industries with high fixed costs during start-up periods. 9. Price Averaging Article 2.4 provides that dumping margins normally shall be on the basis of comparing weighted average prices for comparable periods or comparing normal value and export transactions on a transaction-to-transaction basis. Article 2.4.2 still allows comparisons of weighted average to transactions under some circumstances, however. If transactions in the export market can be compared with averages in the home market, dumping margins can be created artificially or exaggerated. For example, suppose there are sales in each market of $4, $5 and $6. The average price in each market is $5, and there is no dumping. A finding of dumping can be sustained, however, by matching export transactions to the home market average. 10. Exchange Rates Article 2.4.1 provides that temporary fluctuations of exchange rates should be ignored and that exporters should be allowed at least sixty days to adjust their prices in response to exchange rates. Exchange rate conversions should be made using the rate of exchange on the day of sale. 11. Anticircumvention N o anticircumvention provision is in the Agreement because of a lack of agreement on this issue. The United States and the European Union consider that this omission allows the application of anticircumvention measures. 12. Dispute Settlement Article 17.6 provides for a standard of review in W T O antidumping cases: (i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts

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was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned; (ii) the panel shall interpret the relevant provisions of the Agreement in accordance w i t h customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. Subsection (i) of this provision articulates a standard of deference to national authorities regarding review of the facts of an antidumping case. Subsection (ii) is properly less deferential when it comes to review of the law. International standards under the Antidumping Agreement should prevail over inconsistent national laws. Under subsection (ii) the Agreement is to be interpreted according to the norms of customary international law; this can be taken to refer to the Vienna Convention on the Law of Treaties, 15 which codifies those norms. Article 30 of the Vienna Convention requires that a treaty be interpreted in accordance with "the ordinary meaning [of the] terms of the treaty in their context and in the light of its object and purpose." Article 32 of the convention allows recourse to supplementary means of interpretation, such as preparatory work of the relevant agreement where the ordinary meaning is obscure or ambiguous. From this list of 'reforms', it is evident that the Uruguay Round Antidumping Agreement leaves the national regimes of the antidumping laws essentially intact and fails to address the fundamental abuses of the system. I I I . The United States Antidumping Laws The United States antidumping laws are the most commonly used of all U.S. trade remedy statutes. About 1,000 antidumping cases have been filed under these laws since 1975, and the trend towards filing such actions is increasing. 16 The frequency of use of antidumping statutes, as well as anecdotal evidence, indicates that these laws function as substitutes for safeguard actions.17 There are several reasons for this: the criteria for use of these laws is well defined; the outcome is fair15

U N Doc. A/CONF.39/27 (23 May 1969). See generally the analysis by Steven P. Crowly/ John H. Jackson , W T O Procedures, Standard of Review, and Deference to National Governments, American Journal of International Law, vol. 90, 1996, 193. 16 U.S. International Trade Commission, The Economic Effects of Antidumping and Countervailing Duty Orders and Suspension Agreements, investigation nos. 332 - 344, publication 2900 (June 1995). 17

William J. Davey , The Antidumping Laws: A Time for Restriction, 1988 Fordham Corp. Law Institute 8 - 1, 1988.

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ly certain in advance; both the price discrimination and injury determinations are relatively easier to meet, compared to a safeguards action; there is no advance W T O review; and no compensation is due to affected countries. There is also evidence that the antidumping laws are being used to stifle competition in the importing country. Antidumping complaints often are filed by domestic producers that are engaged in restrictive business practices in their home markets. 18 The purpose of these complaints is thus clearly protectionist. Use of antidumping as a safeguard action is further indication that these laws are ill-conceived, overly broad and unfairly applied. Instead of a remedy against unfair trade, as was intended under Article V I of the G A T T , these laws are being used as a weapon against fairly traded goods by domestic companies that seek protection from import competition. U n t i l they are reformed in a fundamental way, this misuse is bound to continue. A n antidumping case generally is filed by an 'interested party* — typically a domestic competitor — under sections 731 - 739 of the U.S. Tariff Act. 1 9 The U.S. Department of Commerce International Trade Administration (ITA) determines whether the imports in question have been sold at less than normal value. The U.S. International Trade Commission (ITC) determines, in a separate proceeding, whether the imports are causing, or are likely to cause, material injury to a U.S. industry.

18

See Edwin A. Vermulst , A European Practitioner's View of the G A T T System, World Competition, vol. 16, 1993, 5, 22 - 23. 19

19 U.S.C. §S 1673,1673a - 1673h. Antidumping procedures are specified i n sections 771 783, 19 U.S.C. SS 1677, 1677-1, 1677-2, 1677a - 1677h, as well as i n 19 C.F.R. 353 (ITA) and 207 (ITC). Administrative reviews of antidumping orders are conducted under sections 751 752, 19 U.S.C. SS 1675 - 1675(a). Appeals may be filed in the Court of International Trade under 19 U.S.C. S 1516(a) (section 516A of the Tariff Act). A n older antidumping statute, the Antidumping Act of 1916, 15 U.S.C. $ 72 is of little used since it requires the showing of intent to destroy or injure an American industry.

Market Contestability and Reform of the A ntidumping Laws A simple calculation of dumping is as follows: normal value

export price (U.S. price) or constructed export price

120

90

inland freight

(2)

(1)

ocean freight

(3)

level of trade

(1)

(2)

circumstance of sale

(3)

(2)

quantity of discount

(1)

physical differences

(2)

import expenses

(1)

selling price adjustments

duty drawback

2

tax

16

total

91

87

In this example, the dumping margin is + 4. The price comparison shown is on an individual price basis; however, the period of review normally will cover hundreds or thousands of U.S. sales. Whereas formerly the I T A calculated dumping margins by comparing each individual U.S. sale to a weighted average of the foreign market price, the Uruguay Round Agreement requires a comparison of individual prices to individual prices, or weighted averages with weighted averages. In most cases, averages will be used.20

20

1 9 U.S.C. §§ 1677 i- 1(d)(1).

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The legal critique of the antidumping laws is well known 2 1 and will be only briefly summarized here. The antidumping laws are regarded by virtually all international trade law experts simply as a device for disguised protectionism. 22 Although these laws purport to be based on 'fairness', they are egregiously unfair in at least four principal ways. First, the dumping calculation is arbitrary and designed to find dumping where none, in fact, exists.23 Second, the dumping calculation is terribly over-inclusive. 24 As one commentator noted, "foreign producers can be selling at non-discriminatory profit-generating prices and still be selling at prices which are below '[normal] value' under U.S. law". 25 Third, the calculation of material injury is fraught with imprecision and fuzzy thinking at every turn. 26 Fourth, the procedures employed are designed not to allow an antidumping respondent the opportunity to present an adequate defense. Some technical problems left over, or only partially addressed by the U.S. Uruguay Round Agreements Act, are as follows. 1. Asymmetrical Adjustments A serious problem under the previous law was asymmetry in the adjustments made to normal value and U.S. price. This concern has been addressed only in part. The U.S. price, called the 'export price', is the transaction price with an unrelated U.S. importer; if they are affiliated, a 'constructed export price' is used, based on the importer's sale to an unrelated party. 27 Each price is subject to adjustments designed 21

See, e.g., Daniel J. Gijford, Rethinking the Relationship between Antidumping Laws and Antitrust Laws, American University Journal of International Law and Policy, vol. 6, 1991, 277; Wesley K. Caine, A Case for Repealing the Antidumping Provisions of the Tariff Act of 1930, Law and Policy of International Business, vol. 13, 1981, 681. See also Schoenbaum (note

3). 22 See Robert W. McGee/Yeomin Yoon, Technical Flavis in the Application of the U.S. Antidumping Law: The Experience of U.S.-Korean Trade, University of Pennsylvania Journal of International Business Law, vol. 15, 1994, 259. 23

A n example of this in U.S. law is the so-called exporter's sales price 'offset cap', which arbitrarily limits the deduction of indirect selling expenses from normal value to the amount of such expenses incurred in the United States. See Sharp Corp. v. United States, 63 F.3d 1092 (Fed. Cir. 1995). 24 See Thomas J. Schoenbaum, The International Trade Laws and the New Protectionism: The Need for Synthesis w i t h Antitrust, N o r t h Carolina Journal of International Law and Commerce Regulation, vol. 19, 1994, 393. 25

Daniel J. Gijford, Antitrust and Trade Issues: Similarities, Differences, and Relationships, DePaul Law Review, vol. 44, 1995, 1049, 1092. 26 27

See Schoenbaum (note 24), 400. 1 9 U.S.C. § 1677a(b).

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to calculate the ex-factory price: deductions for freight, marine insurance, U.S. duties, selling expenses, value added in the United States and profit, w i t h respect to a related importer. Normal value is calculated also using adjustments for packing, transportation, taxes, circumstances of sale, physical differences, quantity differences and differences in the level of trade. Home market price will be used as 'normal value' unless the volume of home market sales is less than five percent of U.S. sales; in this case, third-country sales or 'constructed' value will be used. Sales below cost will be disregarded if they are made over an extended period of time or in substantial quantities. The latter term is defined as twenty percent of all sales. Thus, if fewer than twenty percent of sales are below cost, all sales will be included in normal value. Both the Uruguay Round Agreement and a G A T T panel 28 have called for symmetrical adjustment to both normal value and U.S. price. In the past, however, the I T A has applied interpretations that limited deductions to normal value, thus increasing the likelihood of a finding of dumping or a dumping margin. The most egregious example of this was the 'ESP cap', the rule that indirect selling expenses can be deducted in the home market only to the extent of the deduction from the U.S. price for indirect selling expenses.29 Under current law, this is likely to continue. 30 2. Material Injury and Cause of Material Injury The U.S. International Trade Commission makes the determination whether a U.S. industry is being materially injured or threatened with material injury or the establishment of a U.S. industry is being materially retarded through dumping. The threshold for material injury is relatively low: relevant factors include underselling and other effects on prices; regional impacts may be determined; 31 and imports from various countries can be cumulated in determining injury. A new section of the statute allows the ITC to exclude 'captive production' (intermediate materials manufactured by integrated producers for internal consumption) 32 from the domestic market, thus increasing market share of imports and the likelihood of an injury finding. 28 See Paul Waer/Edwin Vermulst , The G A T T Panel Report on the E.C. Antidumping Proceeding concerning Audio Tapes in Cassettes, Journal of World Trade Law, vol. 29, 1995, 31. 29 30

See Torrington

Co. v. United States, 68 F.3d 1347 (Fed. Cir. 1995).

1 9 U.S.C. § 1677b(a)(7)(B).

31

See e.g., Mitsubishi Materials Corp. v. United States, 820 F. Supp. 608 (U.S. CIT 1993).

32

See Metallverken

Nederland B. V. v. United States, 744 F. Supp. 281 (U.S. C I T 1990).

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Thomas . Schoenbaum 3. Circumvention

U.S. law 33 is designed to prevent circumvention of antidumping orders. Articles "altered in form or appearance in minor respects" can be included within the scope of an antidumping order. Merchandise completed or assembled in the United States or a third country may be included within an antidumping order if parts or components from the country subject to the order are used and the process of assembly or completion employed is 'minor or insignificant* on a value-added basis.34 4. Welfare Effect The welfare effect of outstanding antidumping and countervailing duty orders was the subject of a United States I T C investigation in 1995.35 In 1991, the year of the survey, outstanding orders affected $9 billion in imports from 1,300 product categories from nearly fifty countries. The purpose of the study was to determine the net effect of removal of these orders. Economic models were constructed that considered both effects on consumer prices and on wages and profits. Although these orders produce gainers as well as losers, the net economic welfare gain to the U.S. economy of removal was estimated at $1.59 billion in 1991, the equivalent of 0.03 percent of the U.S. Gross Domestic Product. Thus, antidumping duties are an extremely costly way to safeguard employment or improve the profitability of U.S. industries. I V . Market Contestability, Antitrust and Reform of the Antidumping Laws The antidumping laws are both a cause and an effect of a failure of international market contestability. 36 Dumping is made possible by market barriers that impede market contestability. Dumping orders themselves, however, prevent market access. Thus, the application of market contestability principles and agreement on an international antitrust code to remove international restrictive business practices (RBPs) that segment markets should be a high priority. The implementation of such a code

33 34 35 36

19 U.S.C. § 1671(7)(C)(iv). 1 9 U.S.C. § 1677j(c). USITC Publication 2900 (note 15).

International market contestability is an economic concept which is used to determine the openness of international markets. A market is deemed internationally contestable when conditions of competition allow unimpaired access for foreign goods, services, ideas, investments and business people. See Americo Beirglia Zampetti/Pierre Sauve , Onwards to Singapore: The International Contestability of Markets and the New Trade Agenda, O E C D Trade Directorate, 1995.

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presumably would lessen the need for antidumping orders. In addition, however, the antidumping laws should be fundamentally reformed (1) to define dumping w i t h more precision as sales below average variable costs over a substantial period of time and (2) to strengthen the material injury and causation requirements to require proof that material injury is being caused by trade-distorting price discrimination or abuse of a dominant position. The root of the problem of the antidumping laws is that they inhibit competition and unnecessarily raise consumer prices. It is obvious that these laws conflict w i t h and undercut the antitrust laws, which are designed to promote efficient competition and ensure the availability of the best choice of goods and services at optimum prices. The administration of the antidumping laws is a classic example of two government programs working at cross purposes with each other. It would be best to abolish the antidumping laws altogether. The areas of valid concern dealt with by the antidumping laws — predatory pricing and strategic dumping — overlap with the more precise and effective regulation of those practices under the antitrust laws. 37 Abolition appears impossible, politically speaking, however, since these laws are supported by key members in the United States Congress and the Commission of the European Union, as well as powerful interest groups. Given this reality, the best that can be done is to harmonize the antidumping laws with antitrust, in order to align these policy areas and eliminate conflict as much as possible. There are several ways that antitrust concepts and policies can be injected into the antidumping laws. First, the analysis of the price discrimination aspect of antidumping should be refined using antitrust concepts. The calculation and comparison of normal value with the export market price should be only the first step. The antidumping administering authorities should be required to engage in a cost analy37

Both the U.S. Robinson-Patman Act and section 2 of the U.S. Sherman Act, for example, outlaw predatory pricing and strategic dumping. Section 2 of the Sherman Act penalizes "every person who shall monopolize or attempt to monopolize," 15 U.S.C. § 2 (1988). I n attempted monopolization cases, a creditor's below-cost pricing is illegal. Swift and Co. v. United States , 196 U.S. 375, 396 (1905); Thurman Indus., Inc. v. Pay TV Pak Stores, Inc., 875 F.2d 1369 (9th Cir. 1989). In monopolization cases, below-cost pricing generally is conclusive of predatory pricing. United States v. Prinnell Corp., 384 U.S. 563, 570 - 571 (1966). The Clayton Act, as amended by the Robinson-Patman Act, also reaches predatory pricing: A plaintiff may challenge predatory pricing under the Robinson-Patman Act by showing that one of the t w o prices charged in a price discrimination case was below cost, 15 U.S.C. 13 (1988). Most predatory pricing cases have been brought under the Sherman Act. See, e.g., Northeastern Tel. Co. v. American Tel. and Tel. Co., 651 F.2d 76 (2d Cir. 1981); O. Hommel Co. v. Ferro Corp., 659 F.2d 340 (3d Cir. 1981); William Inglis and Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014 (9th Cir. 1981); Chillicothe Sand and Gravel Co. v. Martin Marietta Corp., 615 F.2d 427 (7th Cir. 1980). For a book-length study on these issues, see Gabrielle Marceau, Antidumping and Antitrust Issues in Free Trade Areas, 1994.

7 GYIL 39

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sis of the less-than-normal-value transactions. Prices above average total cost should be legal per sey and antidumping duties should be considered only w i t h respect to those transactions involving sales below the company's average variable or marginal costs. This is in accordance with antitrust policy involving predatory pricing. Second, the antidumping laws should be amended to provide the respondent w i t h defenses similar to the U.S. Robinson-Patman Act, which regulates domestic discrimination. The importer accused of dumping should be able to show, as a matter of an affirmative defense, that it was "acting in good faith to meet an equally lower price of a competitor" 38 or selling under "changing conditions affecting the market or marketability of the goods concerned." 39 Third, the administering authority should be required to identify the 'relevant market' as would be the case in antitrust, by carefully analyzing cross-elasticity of demand in defining and evaluating the industry producing competitive products. 40 Fourth, the analysis of whether there is material injury in the relevant market should be made precise. The administering authority should be required to use the analytical tools of antitrust to analyze efficiency, causation and the effect of international price practices. Collective, as well as individual, market power should be evaluated from a causal viewpoint; a competition analysis of the relevant market should be undertaken; and a benefit/cost analysis should be required to determine whether the economic cost outweighs the economic benefits if antidumping duties are imposed. 38

1 5 U.S.C. § 13(b) (1988). Therefore, a foreign company accused of dumping in the United States market cannot defend on the basis that its low prices were necessary to meet the competition. See 64K Dynamic Random Access Memory Components from Japan, USITC Publication 1862, Inv. No. 731-TA-270,1718 (April 1986) (final administrative review) (finding material injury i n a dumping case although the price cutting was initiated by the U.S. producer). 39 1 5 U.S.C. § 13(a). This defense permits sales at bargain prices to remove obsolete inventory and to respond to changing market conditions. See, e.g., Valley Plymouth v. StudebakerPackard Corp., 219 F. Supp. 608 (S.D. Cal. 1953). The foreign producer i n a dumping case, therefore, cannot defend its price cutting on the basis of response to changing conditions. This highlights the most significant difference between the Robinson-Patman Act and the antidumping provisions: i n a Robinson-Patman Act case the fundamental inquiry is whether the producer charged the same price to customers at the same time. See A. A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396,1407 (7th Cir. 1989) ("No one supposes that a seller must charge the same price on contracts signed at different times, or on long-term contracts and spot sales.") A dumping case is fundamentally different: ex-factory prices on individual U.S. transactions typically are compared to a six-month weighted average of the ex-factory prices in home market or third-country sales. This contravenes the Robinson-Patman Act rule that a seller may charge different prices even to the same customer at different times. 40 See Melanie K. Suhrada, Determining Causation: The Applicability of 'Elasticity Analysis' to Injury Determinations by the International Trade Commission, Albany Law Review, vol. 56, 1993, 979.

Market Contestability and Reform of the Antidumping Laws

99

Fifth, antidumping cases should be conducted before an Administrative Law Judge (ALJ) that conducts the inquiry in the context of a trial-type proceeding in which both sides have the opportunity to present evidence and cross-examine witnesses. This format will be less biased and will allow the full, objective presentation of information and views. It would end the fiction that antidumping proceedings simply are objective investigations; rather they are adjudicative and should be conducted w i t h appropriate safeguards and procedures. 41 Conclusion The antidumping laws not only have no basis for existence, but they constitute an unnecessary cost to the world economy as well as to individual nations. Article V I of the G A T T 1994, as well as the Uruguay Antidumping Code, should be rescinded, ending the right to impose antidumping duties under the international law of the W T O / G A T T system. Since this is unrealistic, given the important political constituencies and interest groups that support antidumping laws, they should be reformed to align them more closely w i t h the antitrust laws. Antitrust concepts, methodology and analysis provide the most fruitful basis for fundamental reform so that their underlying abuses can be eliminated.

41 See John H. Jackson/ William J. Davey , The Administrative Conference of the United States, Reform of the Administrative Procedures Used in U.S. Antidumping and Countervailing Duty Cases, 1991.

7*

Brainpower and Trade: The Impact of TRIPS on Intellectual Property" By Karl-Nikolaus Peifer

Introduction For a long period problems of world trade were related to trade in tangible goods only; the main concern for a free trade order was to enable the free flow of these goods. This period lasted until the leading industrial powers began to lose their comparative economic advantages to threshold and developing countries, which became able to produce tangible goods more cheaply with sufficient quality standards. A comparative advantage for the industrial powers remained, however, in those fields in which education and know-how were needed. Technology became a necessary factor in countries with low raw material deposits.1 Moreover, entertainment and culture interests gained importance in societies in which the more basic material needs had been fulfilled; products in these fields therefore became factors in world trade. This background explains why, starting in the 1980s, the world trade system began to react to the economic importance of intellectual property. Freedom of trade in this area, however, is much more complicated than in the area of tangible goods. Whereas tangible goods can be stopped at State frontiers, patents, trademarks, designs and the verses of a poem do not need material form to exist, but can be transported abroad by telecommunication devices or simply by the mind of a traveler. Tangible property is relatively easy to locate, because the reference point is always a single unit. Intangible property can exist at the same time in different places. The same Strauss opera can be performed in several opera houses at the same time. Through communication devices it can be heard worldwide, and in such a case any

* Status of manuscript: 30 June 1996. 1

This development is shown in the increasing figures of employment i n research departments of United States companies. I n 1921 nearly 20,000 people were employed i n the research departments of industrial companies; by 1960 the number had risen to 800,000, by 1970 to 1,500,000 employees. I n 1920 the National Research Council listed 307 research departments, in 1960 more than 5,400. See Hermann van der Wee , Der gebremste Wohlstand, 1984, 224 w i t h further references.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property listener has the opportunity to appropriate to his or her own use what he or she hears through the use of a tape recorder. This provides the same benefit as would a tangible good containing an authorized recording of the piece. This single example demonstrates why the usual politics of trade with a focus on tariffs cannot be satisfactorily applied to intangible goods. Also, users respect property rights in intangible goods less than those in tangible goods, partially because visible possession of a good is a strong physical barrier against appropriation, partially also because the producers of intangible goods form a small, in some sense elite group in comparison to the vast majority of subjects holding tangible property. This lack of respect for property rights in intangible goods causes piracy, which may distort trade activities, just as trade activities are distorted when stolen tangible goods circulate on the market. From these few remarks one can see that intellectual property has an enormous impact on markets in which technological or cultural efforts compete, and therefore international trade regulation cannot be restricted to the area of tangible goods. Intangible goods, as well as services, have achieved a respectable position in the gross national product of any industrialized country. Very often the mental capacity of a country forms its only comparative advantage with respect to other countries. Such a competitive advantage based on mental capacity naturally raises the State's interest in protecting the results of this capacity worldwide, just as property rights in tangible goods are protected. However, detailed legislation in the field of intellectual property may also be misused to support protectionist behavior. The free flow of tangible goods is hindered if a nation stops the importation of certain goods because of alleged infringement of a nationally protected intellectual property right. The conflict between tangible and intangible property relating to the same good is among the fundamental problems that this field of law must address. Until 1994 the world trade order was largely regulated under the General Agreement on Tariffs and Trade (GATT), signed in 1947 in Havana.2 The eighth G A T T negotiation round to improve this system started in 1986 in Punta del Este, Uruguay. This round recognized from its beginning the necessity of regulating the protection of intellectual property and of clarifying and solving the conflicts between freedom of trade and restrictions caused by intellectual property rights. 3

2 3

G A T T , 30 October 1947, BGBl. 1951 II, Anlage Bd. I-IH, BGBl. 1957 II, 75, 608, 1286.

Declaration of Ministers at Punta del Este, Uruguay of 20 September 1986, G A T T , Basic Instruments and Selected Documents, vol. 33, 1987,19, 45, also published in: K. R. Simmonds , The Community and the Uruguay Round, Common Market Law Review (CMLR), vol. 63, 1988, 95, 108- 115.

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Karl-Nikolaus Peifer

This Article focuses on the position of intellectual property in international law by contrasting previous attempts at protection through international conventions w i t h the new instruments within the G A T T structure (Part II). This attempt requires a short glance at the development of the G A T T agreement on the World Trade Organization (hereinafter WTO), followed by a very brief summary of the TRIPS provisions (Part I). The Article investigates intellectual property rights (hereinafter IPR) as such, i.e. with respect to industrial rights, e.g. patents, trademarks, designs, models and semiconductor topographies, as well as to culturally oriented rights such as copyright and neighboring rights. Although the specialized doctrine draws a clear line of division between these two fields, because industrially and culturally oriented methods of protection require clear distinctions,4 TRIPS does not draw this line. This Article as well attempts to treat both groups of rights together. Such treatment requires some generalizations, which would not always be appropriate if a specific analysis for each group of rights were produced. However within the context of TRIPS it is necessary to focus more on the areas of common ground of the various EPR in order to clarify the new protection order. I. From the General Agreement on Tariffs and Trade (GATT) to the W T O Agreement 1. Development of GA TT The G A T T initiative started after World War I I as an initiative promoted mainly by the United States of America as part of a new trade order within the United Nations. Free trade was seen as one of the major targets for the new world order after the war. Besides the International Monetary Fund (1944) and the World Bank (Bretton Woods 1944), an International Trade Organization (ITO) was seen as completing an economic organizational structure based on free trade between States.5 The theoretical basis was provided by the theory of the free and open market and of the efficiency of trade without national barriers established by Adam Smith 6 and David

4

Modem doctrine divides intellectual property protection into the two areas of industrial property and copyright law. Attempts to treat these two areas on a uniform basis are put forward, for example, by Alois Troller , Immaterialgüterrecht, 1983. These attempts were earlier made by Alexander Elster, Gewerblicher Rechtsschutz und Urheberrecht, 2nd ed., 1927. 5 Havana Charter for an International Trade Organization, U N Doc. E/CONF.2/78 (24 March 1948), published in: Herbert Gross, Welthandel von Morgen, 1950, 304 et seq. 6 A n Inquiry into the Nature and Causes of the Wealth of Nations, 1776. The book is based on earlier studies by Dudley North (1641 - 1691) and the Marquis d*Argenson (1694 1757). Wolfgang Fikentscher, Wirtschaftsrecht, vol. I, 1983, 90.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property Ricardo 7. Free intra- and inter-State trade is deemed to self-regulate the choice of the place of highest productivity, to avoid misallocation of productive means and to minimize transaction costs. Especially Ricardo drew attention to the fact that free trade is favorable for all participating countries as long as each specializes in producing those goods that it can produce at comparatively advantageous costs. Although the idea survived, the project of an International Trade Organization as a supranational supervisor of world trade did not. It has been argued that U.S.American industry and advocacy were strongly against the concept of such an organization, fearing that such a body could lead to a planned economy on the world level, which would necessarily conflict with national economic freedom. 8 It should be added, however, that the United States, at that time the only economic superpower in the world, still had a very liberal approach to world trade and therefore rejected any regulation affecting freedom of trade, whereas the European post-war industries did not feel prepared for a free trade order. 9 Thus the I T O was never established. What endured was part IV of its statute containing G A T T . The strongest threat to freedom of trade at that time was State tariffs and import restrictions as political measures to protect national industries against low-price imports. Before World War I protective duties were widely used as a means of enabling local industries to develop without difficulties caused by foreign competition. In that time duties were justified as enabling national production even in fields in which a comparative advantage could not be immediately achieved.10 This extensive use of tariffs explains why the first world trade order was primarily directed against this type of trade restriction. The first six revision rounds of G A T T followed this tendency and concentrated primarily on tariff reductions. The major instruments of G A T T 1947 were the principles of national treatment and of most-favored-nation treatment. The principle of national treatment (Article I E para. 4 GATT) prevents each State from discriminating between foreign and do7

David Ricardo, O n the Principles of Political Economy and Taxation, 1817.

8

Wolfgang Fikentscher, Trade Regulation Transnational — A Necessity, in: Ariga (ed.), International Conference on International Economy and Competition Policy, Papers and Reports, Tokyo 1975, 41; EdwardS. Yamhrusic , Trade-Based Approaches to the Protection of Intellectual Property, 1992, 80. 9 John Pinder , Europa in der Weltwirtschaft 1920 - 1970, in: Carlo M. Cipolla (ed.), Europäische Wirtschaftsgeschichte, 1986, 377, 395; van der Wee (note 1), 392. 10

List* scher Erziehungszoll according to Friedrich List (1789 - 1846), see Fikentscher (note 6), 91; also referred to is Alexander Hamilton, Report on Manufactures, 1791, see Paul A. Samuelson, Volkswirtschaftslehre, vol. II, 1971, 417 (Economics: A n Introductory Analysis, 1967). These politics have also been used by East Asian countries to build up national car industries, e.g. by South Korea. See Bernhard Möschel, Innovationspolitik als Ordnungspolitik, in: Claus Ott/Bernd Schäfer (eds.), Ökonomische Analyse der rechtlichen Organisation von Innovationen, 1994, 40, 48.

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mestic products. The most-favored-nation clause (Article I GATT) impedes national regulations discriminating between a foreign product coming from State A and a foreign product coming from State B. Advantages that are granted to the products of one member country must be given equally and unconditionally to products coming from other member countries. Both principles are viewed as guaranteeing the selection of the best production site and the minimalization of misallocations and high transaction costs for States, which otherwise would have to conclude bilateral agreements with any single trade partner. 11 The G A T T system is commonly regarded as an effective means of reducing excessive tariffs and thus the principal trade barriers on the international level. But problems have become more complex than the solutions contained in the G A T T agreement. 2. Problems ofGA TT 1947 In the years after 1970 many industrialized countries suffered a reduction of competitiveness with respect to Asian and South American threshold countries, the industries of which could produce with much less expense than could the older industries of the industrialized countries. New measures arose to protect the national markets of the industrialized countries from inexpensive imports. A different type of restriction gained importance, the so-called non-tariff restrictions. 12 This included a number of government measures aimed at hindering the free movement of goods, such as anti-dumping measures,13 voluntary self-restraint agreements,14 restrictions in the trade of services, import licenses and national safety standards. For this study it is important to note that legislation protecting intellectual property may also be used as a trade restriction. O n the international as well as on the national market a patent, trademark or copyright may be used as an instrument to restrict trade in certain goods. IPR generally may be used as trade-restricting mono-

11

Richard Senti , G A T T — Allgemeines Zoll- und Handelsabkommen als System der Welthandelsordnung, 1986, 100 et seq. 12

See generally Robert E. Baldwin , Nontariff Distortions of International Trade, 1970, 5. See also Jagdish N. Bhagwati, Protectionism, 1988; D. Greenaway etal. (eds.), Global Protectionism, 1991. 13

Keith B. Anderson, Antidumping Laws in the United States — Use and Welfare Consequences, Journal of World Trade Law (JWTL), vol. 27:2, 1993, 99, 100. 14

The Japanese policy dating from 1981 of voluntary restraint w i t h respect to the export of cars into the United States is deemed to have imposed extra costs of 4.3 billion U.S. dollars on American consumers, raising the price of a given new car by 400 U.S. dollars. See KarlHeinz Hauser/Kai-Uwe Schanz, Das neue Gatt, 2nd ed. 1995, 101.

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p o l y rights, instruments o f market segmentation and obstacles t o the transfer o f technology i n t o developing countries. 1 5 T h e European C o u r t of Justice had t o decide numerous cases i n w h i c h I P R were attacked as restricting the free f l o w o f goods 'burdened' w i t h an intellectual property r i g h t . 1 6 T h e first decisions concerned the unauthorized parallel i m p o r t a t i o n o f goods protected b y EPR, cases i n w h i c h the holder o f the right sought t o f o r b i d the i m p o r t a t i o n o f goods that had been sold abroad o n the basis o f a country-specific sales license. T h e C o u r t ruled that market segmentation t h r o u g h I P R is contradict o r y t o the free f l o w o f goods, and thus the so-called principle o f national exhaust i o n is n o t i n accordance w i t h the E C Treaty. As a result, an authorized sale o f a good 'burdened' w i t h an intellectual property right w i t h i n the C o m m u n i t y triggers the so-called exhaustion o f this right, w i t h the effect that this good can n o w freely circulate w i t h i n the internal m a r k e t . 1 7 H o w e v e r , this principle ceases t o have effect at the outer frontiers o f the European C o m m u n i t y . A copy sold i n the U n i t e d States does n o t lead t o the exhaustion o f the intellectual p r o p e r t y right; reimportat i o n c o u l d be p r o h i b i t e d b y the o w n e r o f the r i g h t . 1 8

15

Hans Ballreich, Technologietransfer als Völkerrechtsproblem, German Yearbook of International Law, vol. 24,1981, 329, 353; Friedrich-Karl Beier/Hans-Peter Kunz, Die Bedeutung des Patentrechts für den Transfer von Technologie in Entwicklungsländer, Gewerblicher Rechtsschutz und Urheberrecht — Internationaler Teil (GRUR Int.), 1972, 385 - 396. The developing countries have been among the principal opponents to a liberal trade order and strong protection of IPR. Peter-Tobias Stoll , Technologietransfer: Internationalisierungs- und Nationalisierungstendenzen, 1994,18; Joachim Betz , International Relations: North-South, in: Rüdiger Wolfrum (ed.), United Nations: Law, Policies and Practice, vol. II, no. 80, 1995, 778 note 3; Yambrusic (note 8), 9. I n the TRIPS agreement these countries were granted generous transition provisions, see Articles 65 and 66. 16

The first case was Deutsche Grammophon Gesellschaft mbH v. Metro-SB-Grossmärkte GmbH & Co. KG , 8 June 1971, European Court of Justice Reporter (ECJR), 1971, 487 (Deutsche Grammophon case). 17

Centrafarm BVand Adriaan de Peijper v. Sterling Drug Inc., 31 October 1974, ECJR, 1974, 1147 (patent case); Musik-Vertrieb Membran GmbH and K-tel International v. GEMA — Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, 20 January 1981, ECJR, 1981,147 (sound recording case); EMIElectrola GmbH v. Patricia Im- und Export Verwaltungsgesellschaft mbH and Others, 24 January 1989, ECJR, 1989, 79 (sound recording case); SA CNL-SucalNVv. Hag GFAG, 17 October 1990, ECJR, 1990, 3711 (trademark case). 18

This situation was not changed w i t h respect to the harmonization of copyright i n the EC, in which area an international exhaustion of copyrights was rejected. See the interpretations cited by Karl-Nikolaus Peifer, Tagungsbericht, in: Gerhard Schricker/Eva-Maria Bastian/ Adolf Dietz (eds.), Konturen eines europäischen Urheberrechts, 1996, 87, 91. Article 6 TRIPS left the question open, see Stanislaw Soltysinski, International Exhaustion of Intellectual Property Rights under the TRIPS, the EC Law and the Europe Agreements, G R U R Int., 1996, 316,318.

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This example of market segmentation in practice demonstrates why IPR have been called the 'third generation of trade barriers' besides tariffs and non-tariff restrictions. 19 G A T T 1947 gave some attention to intellectual protection in Article X X . In Article X X (d), exemptions from most-favored-nation and national-treatment principles were conceded for measures necessary to protect patents, trademarks and copyrights, as well as for measures to prevent misleading practices. The clause's existence as an exemption demonstrates, however, that these rights were regarded merely as an exception to free trade. 3. GATT

1994

The new G A T T agreement is a part of the system of the World Trade Organization (WTO). This fills the gap left in 1948, at which time it was clear that the I T O would not come into existence. O n 15 April 1994, the W T O agreement was signed in Marrakesh, the negotiations having closed a month earlier. 20 The primary achievement of the W T O agreement was to establish the W T O as a parent organization for the newly institutionalized trade order (Article I I (1) W T O agreement). The agreement contains the new G A T T agreement and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Both agreements are contained in annexes to the W T O agreement, and as parts of the W T O agreement are binding for all W T O members (Article I I (2) W T O agreement). The new W T O has three pillars, represented by the three annexes to the W T O agreement: 1) the G A T T agreement, 2) the General Agreement on Trade in Services (GATS) covering the service sector and 3) the TRIPS agreement. These agreements are multilateral, whereas a fourth annex contains plurilateral agreements, which are binding only for the parties that have signed them. The plurilateral agreements refer to sectors such as certain agricultural products and public offers, which have no strong relevance for IPR. The general principles of national and most-favored-nation treatment are contained in all three multilateral agreements. New in G A T T 1994 is the so-called 'single-package' approach, which forces countries joining G A T T either to sign the agreement as a whole, including the other 19

Thomas Cottier , The Prospects for Intellectual Property in G A T T , CMLR, vol. 28, 1991,

383. 20

I n Germany the W T O agreement was enacted through the Gesetz vom 30. August 1994 zudem Übereinkommen vom 15.4.1994 zur Errichtung der Welthandelsorganisation. The entire body of agreements is published in BGBl. 1994II, 1438,1565 (English version), 1730 (German translation). A comment by the German government in the form of a Denkschrift is published i n Bundestagsdrucksachen 11/7655 (neu), 335 et seq. (hereinafter: Denkschrift).

Brainpower and Trade: The Impact of TRIPS on Intellectual Property agreements that are within the W T O agreement, or to refrain altogether from signing. The system of codes, limited to member countries willing to agree to them, has been abolished for the G A T T , GATS and TRIPS agreements.21 Parts of the agricultural and textile sector were also included in G A T T , in which area exceptions were reduced. 22 Much more important for intangible goods are the changes contained in the TRIPS agreement. Whereas G A T T 1947 regarded intellectual property merely as an exemption from the principle of free trade, the W T O agreement recognizes the existence of IPR. As free trade is at issue, this new tolerance is surprising. However, the inclusion of IPR is seen as a part of fair trade, which seems to have caused important changes in the concept of free trade. 23 4. The TRIPS Agreement The TRIPS agreement is a part of the W T O agreement. It has seven parts, of which the first three are of particular interest for the purposes of this Article. Part I states that the basic principles of the W T O agreement are valid for TRIPS as well, namely the national treatment (Article 3) and most-favored-nation principles (Article 4). Part I I contains minimum protection standards for copyrights and related rights (Articles 9 - 14), trademarks (Articles 15-21), geographical indications (Articles 22 - 24), industrial designs (Articles 25 - 26), patents (Articles 27 - 34) and layout designs of integrated circuits (Articles 35 - 38). Interestingly, Article 39 for the first time in a multilateral treaty protects undisclosed information (trade secrets). This provision is followed by a regulation concerning license agreements (Article 40). Part HI concerns the procedural side of protection. It sets up standards that member States must fulfill in order to ensure the enforcement of the rights granted in Part II. These provisions have been called "the first convergence of civil and common law traditions in procedural law." 24

21

The code system was introduced during the Tokyo round 1973 -1979 to enable accession involving 'less than universal membership'. See Wolfgang Fikentscher , G A T T Grundsätze, Property Rights und der Schutz des freien und lauteren Wettbewerbs, in: Festschrift für Rudolf Lukes, 1989, 375, 377. 22

A quick overview is given by Hauser/Schanz (note 14).

23

See note 37.

24

Thomas Cottier , The Value and Effects of Protecting IPR within the World Trade Organization, in: Association Litteraire et Artistique (ALAI), Economy and Authors' Rights i n the International Conventions, 1994, 13, 19.

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Parts I V to V I I contain — besides transitional and final regulations — provisions about the acquisition and maintenance of rights (Part IV) and the mechanisms of dispute settlement (Part VI). The individual provisions will not be discussed in this Article, 25 as this would risk losing sight of the fundamental structures of the agreement in comparison with the previous attempts to protect intellectual property in the international context. I I . New and Old Approaches to the International Protection of Intellectual Property Rights 1. The TRIPS Approach to Intellectual Property Rights a) Intellectual Property Rights and Free Trade The TRIPS agreement added to the previously existing main pillars of the world trade order — the principles of national and most-favored-nation treatment — a third pillar, valid only for intellectual property rights. This third pillar is the principle of minimum protection. N o country in the world is forced through G A T T to protect free trade in stolen goods. The TRIPS agreement demonstrates that this is also true for the trade in goods derived from 'stolen' IPR.

25

A set of articles has been published by members of the research staff of the Max-PlanckInstitute for Foreign and International Patent, Copyright and Competition Law i n the review G R U R Int. For copyright and related rights: Paul Katzenberger , TRIPS und das Urheberrecht, GRUR Int., 1995,447 - 468; for trademarks: Annette Kur, TRIPS und das Markenrecht, GRUR Int., 1994, 987 - 997; for geographical indications: Roland Knaak, Der Schutz geographischer Angaben nach dem TRIPS-Abkommen, GRUR Int., 1995, 642 - 652; for industrial design: Annette Kur, TRIPS und der Designschutz, GRUR Int., 1995, 185 - 193, and a remark by T. S. Pataky, TRIPS und Designschutz, GRUR Int., 1995, 653 - 655; for patents: Joseph Straus , Bedeutung des TRIPS für das Patentrecht, GRUR Int., 1996, 179 - 205; for enforcement of rights: Thomas Dreier, TRIPS und die Durchsetzung von Rechten des geistigen Eigentums, GRUR Int., 1996,205 - 218. The following articles of the research group are of a more general approach towards the rationale of GATT/TRIPS: Josef Drexl , Nach ' G A T T und W I P O ' : Das TRIPs-Abkommen und seine Anwendung in der Europäischen Gemeinschaft, G R U R Int., 1994, 777 - 788; Wolfgang Fikentscher, Wettbewerbsrecht i m TRIPS-Agreement der Welthandelsorganisation, G R U R Int., 1995, 529 - 534; Andreas Heinemann, Das Kartellrecht des geistigen Eigentums i m TRIPS-Ubereinkommen der Welthandelsorganisation, G R U R Int., 1995, 535 - 539; Hanns Ullrich, Technologieschutz nach TRIPS: Prinzipien und Probleme, G R U R Int., 1995, 623 - 641.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property aa) The Minimum Standard Protection A t first glance, this seems to have little to do with the idea of free trade underlying G A T T , which is to encourage free trade in order to promote the international division of labor, which — according to Ricardo — gives effect to comparative cost advantages. Under this rule, resources are optimally allocated, which raises the common wealth of all participating States. Protecting IPR at a minimum standard seems however to prevent the inexpensive production of goods derived from these rights. 26 The same is true for tangible property rights; however, in this field no one doubts the legitimacy of private property rights w i t h respect to international trade. It is clear that free trade does not require the abolition of property protection. O n the contrary, economists argue that a weak protection of property distorts trade flows. If owners in State A must fear expropriation of their property at the frontier of State B, they will not export their goods to State B. State B will be excluded from international trade. The problem has been of strong interest in the field of foreign investments into politically unstable countries. 27 The focus of international trade law thus is not to define property rights. The system according to which property is assigned to a certain person or unit therefore remains untouched by international trade law, which focuses on the question how the use and acquisition of property is to be ordered. 28 Freedom of trade therefore is

26

Therefore it is even argued that w i t h respect to technological know-how the ideas of Ricardo are no longer valid. See Paolo Bifani , Intellectual Property Rights and International Trade, in: U N C T A D , Uruguay Round - Papers on Selected Issues, 129, U N Doc. T D / I T P / 10 (1989). 27 Michael Banz, Völkerrechtlicher Eigentumsschutz durch Investitionsschutzabkommen, 1988, 21; Erich Schanze, Investitionsverträge i m internationalen Wirtschaftsrecht, 1986, 104; Dimitra Kokkini-Iatridou/P. J. I. M. de Waart, Foreign Investments i n Developing Countries — Legal Personality of Multinationals in International Law, Netherlands Yearbook of International Law, 1983, 87, 90; Heinrich Gattiker, Behandlung und Rolle von Auslandsinvestitionen i m modernen Völkerrecht, Schweizerisches Jahrbuch für Internationales Recht, 1981, 25, 27; Helmut Frick, Bilateraler Investitionsschutz in Entwicklungsländern, 1975, 19; Ingrid Delupis, Finance and Protection of Investments in Developing Countries, 1973, 34. 28

This conception goes back to Max Weher , Wirtschaft und Gesellschaft, vol. I, 1976 (first printed 1921), 181, 184. For a detailed analysis see Wolfgang Fikentscher, Wettbewerb und gewerblicher Rechtsschutz, 1958, 209, who distinguishes between regimes that regulate the freedom to acquire (Erwerbenkönnen) and regimes that regulate possession (Habenkönnen). Wolfgang Fikentscher , G A T T Principles and Intellectual Property Protection, in: FriedrichKarl Beier/Gerhard Schricker (eds.), G A T T or WIPO? New Ways in International Protection of Intellectual Property, 1989, 100, 126; see also Hans Ballreich , Enthält das G A T T den Weg aus dem Dilemma der steckengebliebenen PVU-Revision?, GRUR Int., 1987, 747.

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the freedom to acquire goods; the purpose of trade law is to create fair conditions and opportunities to compete in foreign markets. This result, however, does not explain the existence of minimum standard provisions w i t h respect to IPR. The explanation can only be understood when one considers the vagueness of these rights. A comparative analysis of IPR shows that there are large gaps between the regulation of an intellectual property right in State A and the regulation in State B. The reason for this difference lies in the nature of the rights. They are based on a mental product and therefore need not have fixed form in the tangible good that is produced on the basis of the immaterially formed idea. A novel is a tangible expression of the author's literary idea, but this idea is not fixed in the copy of the book. It exists at the same time in numerous copies; the reading of the book does not consume the author's immaterial conception, not even if the tangible shape of the book loses its consistency. Control over the good is lost once the good has been commonly acquired. Control over 'tangibilizations' of the intangible good therefore is not sufficient for the interest of the creator or inventor as once the public acquires the creation or invention, it is easy to copy it. As the imitators need not incur development costs, the price of the copy product w i l l be much lower than that of the original product and the original product w i l l lose market share if the price is not lowered. Recovery of the original development costs under these conditions is hardly possible.29 Of course, a lack of protection also leads to lower prices for consumers interested in buying imitations of the original piece of work. This however does not take into account that efforts to make a product better or to invent a new product, whether on the cultural or on the industrial level, only occur if development costs are covered by the successful marketing of the products derived from these efforts. 30 Just as 29

See the OECD study, Economic Arguments for Protecting Intellectual Property Rights Effectively, 1989; Knut Ipsen/Ulrich R. Haltern , Reform des Welthandelssystems?, 1991, 103 w i t h further arguments. 30 The promotion of efforts to innovate is regarded as the main support for the existence of State-granted monopolies through patents. See Samuelson (note 10), 317; Hal B. Varian, Intermediate Economics, 3rd ed., chapter 23.5,1993; for a detailed discussion of the economic support for IPR: Fritz Machlup, Die wirtschaftlichen Grundlagen des Patentrechts, 1962, also published in: G R U R Int. 1961, 373 - 390 and 473 - 482 and in: A n Economic Review of the Patent System, Study 15, United States Senate, Subcommittee on Patents, Trademarks and Copyright, 85th Cong. 2d Sess., 1958, 19 et seq.; M. I. Kamien/N. L. Schwartz , Market Structure and Innovation, 1982; Friedrich-Karl Beier , Patentschutz — weltweit Grundlage technischen Fortschritts und industrieller Entwicklung, in: Karl-Heinrich Oppenländer (ed.), Patentwesen, technischer Fortschritt und Wettbewerb, 1984, 29 - 45; /. Beath y Innovation, IPR and the Uruguay Round, World Economy, vol. 13, 1990, 411 - 426; John H. Jackson, Legal Problems of International Economic Relations, 3rd ed. 1995, 845 - 848. A negative estimation is drawn by Eson K. Kondo , The Effect of Patent Protection on Foreign Direct Investment, JWTL, vol. 29:6, 1995, 97, 119; see also the contributions in Ott/Schäfer (note 10).

Brainpower and Trade: The Impact of TRIPS on Intellectual Property the existence of property rights in tangible goods promotes economic efforts, the existence of exclusive rights in the products derived from intellectual effort encourages invention and creation. If the innovator has no rights with which to defend the innovation, he or she cannot recover the previously incurred costs. In this case inventors w i l l have no incentive to make innovations or will not make public details about a product that enable further innovations by other market participants. Thus today the view is widely held that the protection of intellectual property is legitimate. Although promoters of free competition and trade advocate the idea that free competition more strongly encourages the efforts to invent and innovate than do monopoly rights in favor of inventors, 31 the results of counterfeiting activities on economic wealth do not support this argumentation. 32 If development costs are not borne by the State,33 it is clear that lack of protection for IPR will cause trade distortions. A system of completely free trade without protection of property rights neither respects investments made nor produces incentives to innovate. A State-financed innovation system holds the risk of losing the market applicability of innovations and is therefore more suited to basic research. In an international setting, minimum protection standards are the fundamental requisites for technology transfers into developing and threshold countries. 34 This leads to the conclusion that in the field of IPR a minimum standard of protection must be granted through trade law. This is notably different from the regulation of tangible property, where trade law refrains from regulating the content of property. It explains, however, the TRIPS approach.

31 Kamien/Schwartz (note 30); A. Suhramaniam , TRIPs and the Paradigm of G A T T : A Tropical, Temperate View, World Economy, vol. 13, 1990, 509, 514 et seq. 32

Marianne Levin , Was bedeutet counterfeiting,GRUR about the economic damage caused by counterfeiting.

Int., 1987, 18, 19 w i t h details

33

In practice the system of State-promoted research was used in the United States i n the 1950s and 1960s, especially in the space, defense and nuclear power industries, i n which the government spent 157.7 billion dollars between 1957 and 1966, which facilitated a substantial number of subsequent microelectronic innovations. I n the 1970s State expenses for innovations were substantially reduced. Van der Wee (note 1), 227 et seq.; W R. MacLaurin , Technical Progress, in: Some American Industries, American Economic Review, Papers and Proceedings, vol. 44, 1954, 178. 34 Suhramaniam (note 31), 509, 515. See also note 15. A different view has been taken by Erich Käufer, Innovationspolitik als Ordnungspolitik, in: Ott/Schäfer (note 10), 1, 22. Kaufer thinks it sufficient to secure technology transfer by bilateral long-term State treaties. This solution, however, does not take into account that these treaties would not create exclusive erga omnes rights for the exporting holder of the right, whereas patent protection in the importing country does.

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Peifer

bb) Content and Exercise of Intellectual Property Rights IPR may also be used to erect trade barriers. Especially industrial rights such as patents grant a monopoly position as only the holder of the patent is allowed to exploit the right. If the protection is granted for a very long period of time, the holder will earn much more than merely the recovery of costs and efforts, whereas the lack of competition in the field will reduce the amount of consumer rents and, within the context of the protection right, also impede innovations of the product derived from the patent. Moreover, the owner of the patent has the opportunity to control the license market for this right and demand excessive royalties. If the patent has been granted for a pharmaceutical or medical product, the owner may even control the public interest in fighting diseases or crop failures. Monopolies therefore involve the danger of abuse. If these abuses prevent competition or, on an international level, the free flow of trade, the monopoly does not increase but rather decreases national wealth, as higher prices must be paid and innovation is paralyzed. The same result is achieved if excessive legislation generously grants monopoly rights, e.g. if protection periods are very long and the content of the protection is not limited. This may happen for industrially as well as for culturally oriented rights. The European Court recently had to decide a case in which Irish television broadcasters rejected the delivery of information on their programs to private producers of television guides on the basis of a right granted under copyright law. The Court held that a copyright must not lead to a monopolization of information. If it functions to produce such an effect, it is abused.35 This ambivalence of IPR has remained a controversial topic in discussion on the subject.36 Previous efforts to regulate intellectual property on the international level have focused exclusively either on one or the other side of the coin. The great progress that lies in the TRIPS agreement is that for the first time on the international level the two aspects are combined in one multilateral agreement. The starting point in this effort is to distinguish the law with respect to the content of a right from the law with respect to its execution. This draws attention back to the point that trade law primarily focuses on ordering the acquisition of goods and not on ordering the possession of goods. With intellectual property this distinction had not worked, because the validity of the possession order regulating the content of the right was not indisputable on the international level. W i t h the establishment of a regime of minimum standards for the contents of IPR it is now clear that the existence of these rights by itself is not regarded as a relevant trade barrier; moreover it is now clear

35

Radio Telefis Eireann and Another v. European Commission (Intellectual Property Owners Inc. and Another Intervening), 6 April 1995, ECJR, 1995, 743, Europäische Zeitschrift für Wirtschaftsrecht (EuZW), 1995, 339 (Magill case). 36

See the conflicting arguments collected by Ipsen/Haltern

(note 29), 102 - 106.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property that the absence of national protection for these rights is a trade distortion. This result cannot completely be justified by the concept of free trade; it can only be legitimated as a concept of fair trade. 37 A trade order that leaves out protection for acquired goods leads to inequitable results in legal terms. Economically it raises the costs for measures that holders of rights must take in order to defend their acquired goods. Thus the term 'trade related' reveals exactly what the characteristic approach of the agreement is. b) Previous Attempts to Protect Intellectual Property Rights The view that intellectual creations deserve protection that is determined w i t h respect to the person of the author or inventor was first advocated not very long ago, although more recently than was the view that tangible property deserves protection. A breakthrough was made in the time of the French Revolution, at which point the idea of intellectual property as the personal and inviolable domain of the author was brought to fruition. Whereas a patrimonial protection of patents, copyrights and trademarks had been granted much earlier, the newer conception of authorship was sensitive — especially in the field of copyright — to the moral interest that the creator has in his or her spiritual work. 3 8 This interest was taken as legitimating the grant of exclusive control over the creation to the author alone, just as the owner of a tangible thing has the exclusive right to use it as he or she wishes. It was this comparison with tangible property that led to the term 'intellectual property'. As a result IPR were attributed as a 'natural right' to the person that invented or created the specific intangible good, whether an industrial or an artistic creation. 39 The development, however, did not stop at this point. The content of specific IPR has been worked out in more detail and with attention to the diversity of culturally related rights, such as copyright of literary, artistic, musical or scientific works, and of industrial rights, such as patents, designs, trademarks and know-how. For all

37

Hanns Ullrich , G A T T : Industrial Property Protection, Fair Trade and Development, in: Beier/Schricker (note 28), 129, 156; Ullrich (note 25), 623, 631; Fikentscher (note 25), 533; i n detail Knut Borchardt/Wolfgang Fikentscher, Wettbewerb, Wettbewerbsbeschränkung, Marktbeherrschung, 1957, reprinted in: Wolfgang Fikentscher , Recht und wirtschaftliche Freiheit, vol. 1,1992, 89, 95. See for the line of division between protection of the right and fair public use Gillian Davies , Copyright and the Public Interest, 1994. 38

W i t h respect to IPR protection the term 'moral' is related to the personal interests of the holder of the right. The word originated in French law. See Stephen M. Stewart , International Copyright and Neighbouring Rights, 2nd ed., 1989, note 4.39. 39 Heinrich Hubmann, Gewerblicher Rechtsschutz, 5th ed., 1988, 17, in which the French law of 7 January 1791 is cited, stating that a discovery or invention in any field of industry is the property of the inventor.

8 G Y I L 39

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these rights, the decisive criteria, according to which rights are determined, are the efforts of creation, invention or investment. However, the idea of intellectual property belonging to a private subject is a Western conception related to an individualist approach to property. This conception is not shared everywhere. Far Eastern and African societies have a much more social conception in this regard, the latter partially because IPR require technologically and culturally developed environments. 40 Aboriginal societies often do not share the conception of individual authorship in art works, but have the idea that authorship belongs to the community in which the artist lives. 41 Communist societies support the idea that intellectual property is a public good. Thus in the former Soviet Union copyrights were granted to authors only in the form of royalties, and the right to exclude others from use was subordinate to the consent of State organizations. 42 Whereas with respect to the content of tangible property apparently there exists intercultural consent that these rights are legitimate and should be protected on the international level, 43 the same does not apply to intangible property. The simplest method of protection would be to accept on a universal level the IPR as they exist within the domestic law of each country, as is usually done in private international law with respect to tangible property. 44 However, the remarks made before demonstrate that with respect to intangible property, we are far from a common understanding of what deserves protection as a property-like right. The effects of protection are disputed; also the existence and the content of these rights are strongly disputed. Even on a purely economic level it is still discussed whether the protection of intellectual rights as property rights leads to the most efficient use of the re-

40

See the catalog of principles set up by developing and threshold countries in 1990 cited by Ipsen/Haltern (note 29), 106. 41

Thus the statement of Susan Bridge at the A L A I Symposium in Antwerp 1993 concerning Australian aboriginal art, see the report on the symposium in GRUR Int., 1994, 51, 52. Unfortunately the statement is not included i n the A L A I documentation, The Moral Right of the Author, on this symposium. 42 Dietrich Loeber , Einführung, in: Philipp Möhring/Erich Schulze/Eugen Ulmer/Konrad Zweigert, Quellen des Urheberrechts, vol. 5 (Sowjetunion), 1980, 5; on recent changes after the fall of the iron curtain: Eduard P. Gavrilov, Gegenwärtiger Stand und Perspektiven des Schutzes des geistigen Eigentums in der Russischen Föderation, GRUR Int., 1992, 892 - 902. 43 44

Fikentscher (note 6), 105 and 262.

Gerhard Kegel, Internationales Privatrecht, 7th ed., 1995, § 19 IE; Karl Kreuzer, in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol. 7, 2nd ed., 1990, note 78 nach Article 38 EGBGB, Anhang I.

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sources these goods represent. 4 5 Thus the idea that a universal c o p y r i g h t o r patent exists 46 is as unrealistic as it is progressive. 47 N o t even a m i n i m u m standard o f p r o t e c t i o n is u n a n i m o u s l y granted. A l t h o u g h intellectual p r o p e r t y is recognized i n A r t i c l e 27 (2) o f the Universal Declaration o f H u m a n Rights, as well as i n Article 15 (1) (c) of the International Covenant o n Economic, Social and C u l t u r a l Rights, it is strongly disputed w h e t h e r a universal m i n i m u m p r o t e c t i o n standard can be derived f r o m these provisions. 4 8 Intellectual creations and inventions result f r o m the use o f c o m m o n knowledge i n c o m b i n a t i o n w i t h individual talents. T h e product is partially a result o f that w h i c h lies i n the public domain. I t is argued that therefore the creation is t o be considered a public good. 4 9 This is also the p o i n t of v i e w that many States have adopted. D u r i n g the TRIPS negotiations it became clear that technology- and culture-exporting States have different interests than i m p o r t i n g States have. Especially the developi n g countries over a p e r i o d o f years fought strongly against a ' m o n o p o l i z a t i o n o f knowledge', w h i c h i n t h e i r o p i n i o n belongs t o a c o m m o n w o r l d heritage and thus should n o t be subject t o exclusion. 5 0 I n fact, the p r o b l e m o f threshold and develop-

45

I n this sense the arguments of the property rights theory: R. H. Coase, The Problem of Social Cost, Journal of Law & Economics, 1960,1 et seq.; especially for IPR: A.A. Quaedvlieg , The Economic Analysis of Intellectual Property Law, in: W. F. Korthals Altes et al. (eds.), Information Law towards the 21st Century, 1992, 181 et seq.; against the assumption of the most effective use through private property i n these rights however Christian Koholdt , Property Rights und Urheberschutz, in: Ott/Schäfer (note 10), 69, 71. 46

Karl Meessen, Intellectual Property Rights in International Trade, JWTL, vol. 21:1, 1987, 67, 68. For this idea see also Etienne Adolphe Bartin, Localisation territoriale des monopoles intellectuels, Journal de Droit International (Clunet), vol. 61, 1934, 781, 799 (copyrights), and 812 (patents); Paul Heinrich Neuhaus, Freiheit und Gleichheit i m internationalen Immaterialgüterrecht, Ulrich Drohnig, Originärer Erwerb und Übertragung von Immaterialgüterrechten i m Kollisionsrecht, both in: Rabeis Zeitschrift für ausländisches und internationales Privatrecht, vol. 40, 1976, respectively 191 and 195; for the field of copyright Haimo Schach, Die Anknüpfung des Urheberrechts i m internationalen Privatrecht, 1977, 23; see generally R. M. Gadbaw/T. J. Richards, Intellectual Property Rights: Global Consensus, Global Conflict?, 1988. 47

However attempts in this direction have been made within the context of the European Patent Convention of 1973. Article 3 of this convention mandates that a single European patent may be requested for several or for all member States. 48

Petra Buck , Geistiges Eigentum und Völkerrecht, 1992, 247 et seq.; Andreas Christians, Immaterialgüterrechte und G A T T , 1990, 107. 49

See Alois Troller, Industrial Property: Catalyst and Stabilizer of International Economic Cooperation, Industrial Property, vol. 26, 1987, 444, 445; Christians (note 48), 78. 50

Martin Khor Kok Peng, Third World Economic Sovereignty at Stake in the Uruguay Round, Report of Third World Network, 1990, 16 describes the position of the industrialized

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i n g countries was one o f the m a j o r obstacles t o the regulation o f intellectual p r o p e r t y o n t h e i n t e r n a t i o n a l level. 5 1 T h i s p o l i t i c a l d i m e n s i o n o f the p r o b l e m makes i t difficult t o t h i n k o f i t i n mere p r i v a t e l a w terms and t o accept a c o m m o n understanding o f m i n i m u m standards. T a k i n g i n t o account that m a n y countries have n o t established m i n i m u m standards, i t is difficult t o speak o f intellectual p r o p e r t y as a set o f already vested rights, w h i c h must be accepted universally. 5 2 I n practice this led very early o n t o t h e acceptance o f t h e t e r r i t o r i a l i t y p r i n c i p l e , according t o w h i c h , briefly, national legislation determines w h e t h e r and t o w h a t extent I P R exist and are protected. T h e t e r r i t o r i a l i t y p r i n c i p l e derives f r o m the medieval 'privilege' system o f granting p r o t e c t i o n b y State mercy. Remains o f this system can be f o u n d i n the idea that certain rights are granted b y n a t i o n a l legislation t h r o u g h registration. 5 3 I t is clear that this system o f the t e r r i t o r i a l l y l i m i t e d reach o f a right does n o t w o r k i n an i n t e r n a t i o n a l setting. A n a t i o n a l l y granted c o p y r i g h t c o u l d freely be used i n a n e i g h b o r i n g State i n w h i c h foreign w o r k s are n o t protected. I n fact, i n the nineteenth c e n t u r y the U n i t e d States was a paradise f o r free riders that copied the w o r k s o f European a u t h o r s . 5 4

countries as follows: "Liberalisation if it suits us, protectionism too if that suits us; the real underlying principle is pure self-interest.'' (citation according to Ipsen/Haltern (note 29), 105). 51 A. Paeon, Was bringt TRIPS den Entwicklungsländern?, G R U R Int., 1995, 875; Marco C. E. J. BronckerSy The Impact of TRIPS: Intellectual Property Protection i n Developing Countries, C M L R , vol. 68,1994, 1245,1247;/. C. Chin/G. M. Grossmann, } Intellectual Propert y Rights and North-South-Trade, in: R. W. Jones/A.O. Krüger (eds.), The Political Economy of International Trade: Essays i n H o n o r of Robert Baldwin , 1990, 90 - 107; Frederick M. Abbott , Protecting First World Assets in the Third World: Intellectual Property Negotiations i n the G A T T Multilateral Framework, Vanderbilt Journal of Transnational Law, vol. 22, 1989, 689, 691; Wolfgang Fikentscher , T h i r d W o r l d Trade Partnership: Supranational A u t h o r i t y vs. National Exterritorial Antitrust — A Plea for 'Harmonized' Regionalism, Michigan Law Review, vol. 82,1984, 1489 - 1509; Hans-Peter Kunz -Hallsteiny Patentschutz, Technologietransfer und Entwicklungsländer — eine Bestandsaufnahme, G R U R Int., 1975, 261 - 272. 52

See Werner Veith/Karl-Heinz Böckstiegely Der Schutz von ausländischem Vermögen i m Völkerrecht, 1962, 202: according to the authors, the question of whether a property right exists is answered by national legislation; if national legislation accepts its existence, international law may protect it. 53

The registration system was common i n the United States for copyrights u n t i l 1989. I t is still used today i n patent and trademark law. See generally Eugen Ulmer , Die Immaterialgüterrechte i m Internationalen Privatrecht, 1975, 9, 37; Friedrich-Karl Beier, Hundert Jahre Pariser Verbandsübereinkunft — Ihre Rolle i n Vergangenheit, Gegenwart und Zukunft, G R U R Int., 1983, 339, 342. I n copyright law it is still argued that copyrights have their basis i n national copyright law instead of the prior registration. See Christian von Bar y Kollisionsrecht, Fremdenrecht und Sachrecht für internationale Sachverhalte i m Internationalen Urheberrecht, Archiv für Urheber- Theater- und Filmrecht (UFITA), vol. 108, 1988, 27, 30. 54

Thomas Hoereriy 195 et seq.

Charles Dickens und das Internationale Urheberrecht, G R U R Int., 1993,

Brainpower and Trade: The Impact of TRIPS on Intellectual Property Therefore as a first step towards overcoming this lack of international protection, mutual recognition of these rights was sought in bilateral trade agreements.55 The next step was to seek a multilateral agreement in which national treatment is granted between the contracting States. This was the birth of the classic conventions. The most important conventions in this sector are the Berne Convention for the Protection of Literary and Artistic Works (1889, hereinafter BC) in the field of copyright, and the Paris Convention for the Protection of Intellectual Property (1883, hereinafter PC) in the field of patent, design, trademark, geographical indications and unfair competition law. 56 Both conventions have their starting point in the territoriality principle. To overcome the lack of protection deriving from this principle, contracting States are obliged to grant national treatment to persons and entities from other union countries (Article 2 (1) PC, Article 5 BC). Certain rights must be protected as minimum rights (e.g. Article 7 (1) BC, Article 4 PC w i t h respect to protection terms). W i t h respect to some rights, national treatment is only granted on the basis of reciprocity (e.g. Article 7 (8) BC with respect to the protection term). The crucial idea of these conventions was to strengthen step by step the universally granted level of protection. The measures to reach this aim, however, were scanty. The conventions did not harmonize the law of the participating States. Accepting the principle of the territorial reach of IPR, they only extended the territorial reach of each national protection regime to foreign persons and entities. One successful means of forcing States to adopt legislation granting higher protection could have been minimum rights. Article 6quinquies (1) PC, for example, provides that within the convention each State must protect and register a trademark granted under foreign legislation 'as it i s \ 5 7 Each State therefore must register and protect the foreign trademark even if it does not fulfill national requirements, e.g. because a certain form of the trademark is not protected by national law. 58 This can

55

Some of them are still i n force, e.g. the Treaty between Germany and the United States of America of 20 A p r i l 1892, RGBl. 1892, N r . 23, 74. 56

See generally Haimo Schack y Hundert Jahre Berner Ubereinkunft, Juristenzeitung (JZ), 1986, 824 - 832; Beier (note 53), 339 - 347. Further conventions have relevance for the field of neighboring rights such as the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961 (Rome Convention). The relevance of the Universal Copyright Convention of 1952 today is rather low, after most countries have joined the Berne Convention; after TRIPS any existing importance w i l l be further decreased. 57 Jean Masson, La protection 'telle quelle* des marques de fabrique et de commerce selon Particle 6 de la Convention d'Union de Paris du 20 mars 1883, 1956; Wilhelm Edrich , Die Klausel 'telle quelle' und ihre Ausgestaltung in der Rechtsprechung der Vertragsländer der Pariser Union, 1962. 58

G. H. C. Bodenhausen, Pariser Verbandsübereinkunft zum Schutz des gewerblichen Eigentums, 1971, 93.

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mean that a foreign trademark is more strongly protected than is a national trademark, a situation that certainly would lead the State recognizing the foreign trademark sooner or later to alter its national trademark law in order not to discriminate against its nationals. Unfortunately, minimum rights are scarce in the conventions, 59 so that in the long run a substantial harmonization is not attainable. Reciprocity is another measure to force countries w i t h a low standard of protection to raise this standard. The BC contains five provisions by which each State may discriminate against foreigners if the legislation of the foreigner's home State does not provide a certain standard of protection. 60 The PC, however, does not contain exceptions from the principle of national treatment. 61 The principal of reciprocity is clearly contrary to the spirit of the conventions. 62 If the conventions aim at extending the territorial reach of national legislation, there is no room for discrimination against foreigners. However, the principle of national treatment contains in itself the danger that a country is not under pressure to raise protection standards if the domestic market and the nationals of this country do not need this protection. This will be true for a country with meager production of intellectual works or innovations, because in this case national production does not call for higher standards, and from a national point of view, there is no impetus to grant a high level of protection to foreigners, as high protection standards will raise consumer costs. The PC deliberately took these effects into account, while the BC was more cautious. In fact, the existing conventions have not succeeded in harmonizing intellectual property legislation to a commonly shared level of protection. This is particularly true of the Paris Convention, which is a result of the fact that the PC neither contains an elaborate system of minimum rights nor allows retorsion from States w i t h

59

I n the BC: Article 2 (list of protected works), Article 6bis (protection of certain moral rights), certain exclusive rights i n Article 8 (translation), Article 9 (reproduction), Article 11 (public performance and communication), Article l l b i s (broadcasting), Article l i t e r (recitation), Article 12 (alterations), Article 14 (film adaption); in the PC: Article 1 (notion of intellectual property), Article 4 (prior use of rights), Article 4ter (inventor's right to attribution), Article 6quinquies ('telle quelle' protection of trademarks). 60 The provisions in the BC allow the denial of protection to the work of a foreign author if the legislation of the country of origin does not fulfill certain standards i n the following cases: Article 7 (8) with respect to protection terms; Article 2 (7) for works of applied art and industrial design; Article 14ter for the so-called droit de suite ; Article 30 (2) (b) for translation rights and Article 6 (1) as a general possibility for retorsion if the country of origin denies sufficient protection to copyrights from the protecting State. See generally Josef Drexl , Entwicklungsmöglichkeiten des Urheberrechts i m Rahmen des G A T T , 1990, § 9, 124 - 153. 61

Bodenhausen (note 58), 13, 22; Georg Benkard, Patentgesetz, 9th ed., 1995, vi, note 7; but see Hans Ballreich, Ist 'Gegenseitigkeit' ein für die Pariser Verbandsübereinkunft maßgebliches Völkerrechtsprinzip?, G R U R Int., 1983, 470, 475 et seq. 62

Schack (note 56), 825, 827.

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a h i g h level o f p r o t e c t i o n . 6 3 T h e u n i o n system that the conventions established o n the one hand makes it easy for countries t o j o i n the c o n v e n t i o n b y mere declarat i o n ; o n the other hand there is no c o n t r o l b y the u n i o n t o ensure that a j o i n i n g c o u n t r y fulfill the protection standards under the convention. I n 1983 a study came t o the result that o n l y one-half o f the B C members have sufficient and effective c o p y r i g h t p r o t e c t i o n . 6 4 A l t h o u g h the m a j o r i t y o f legal writers share the o p i n i o n that m a n y o f the provisions of the B C and the P C are self-executing and m a y therefore directly be applied i n national courts i f the respective constitutional l a w allows this application, 6 5 member States have already t r i e d t o avoid this consequence o f their accession. T h e U n i t e d States o n its entry i n t o the u n i o n i n 1989 declared that the provisions o f the B C are n o t self-executing. 66 This declaration was o f particular relevance for the protection of an author's m o r a l rights. W h i l e A r t i c l e 6bis B C protects the author's m o r a l interest i n the integrity o f the w o r k and its a t t r i b u t i o n t o his person as the author, U n i t e d States courts and U n i t e d States c o p y r i g h t legislat i o n have never granted t o the author a general m o r a l right p r o t e c t i o n . 6 7 F r o m the 63

See the critique by Straus (note 25), 179, 184.

64

Jean-Loup Tournier , The Price of Copyright, Revue International de Droit d'Auteur, 1983,3 et seq. 65

Fikentscher, Wettbewerb (note 28), 101, 109; Wilhelm Nordemann/Kai Vinck/Paul Hertin/Gerald Meyer, International Copyright, 1990, Introduction, note 21; Drexl (note 60), 31; see generally Manfred Zuleeg, Die innerstaatliche Anwendbarkeit völkerrechtlicher Verträge am Beispiel des G A T T und der europäischen Sozialcharta, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 35, 1975, 345, 347, 357. For the TRIPS agreement the direct applicability of the minimum standard provisions is advocated by most commentators, whereas the G A T T as a framework is not considered to be self-executing. For the applicability of G A T T see International Fruit Company NV, Kooy Rotterdam NV, Velleman en Tas NV and Jan Van den Brink's Im- en Exporthandel NV v. Produktschap voor Groenten en Fruit, ECJR, 1972, 1219; Amministrazione delle fmanze dello Stato v. Chiquita Italiana SpA, 12 December 1995, EuZW, 1996, 118; Philip Lee/Brian Kennedy, The Potential Direct Effect of G A T T 1994 in European Community Law, JWTL, vol. 30:1, 1996, 67, 89; Fikentscher, Wettbewerb (note 28), 99,109; Meinhard Hilf Die Anwendung des G A T T i m deutschen Recht, in: Ernst-Ulrich Petersmann/Meinhard Hilf (eds.), G A T T und Europäische Gemeinschaft, 1985, 11, 60. For the TRIPS: Denkschrift (note 20), 335, 345; Drexl (note 25), 777,787; but see Ullrich (note 25), 623, 637 - 640, who argues against direct applicability w i t h i n the EC. 66 Berne Convention Implementation Act, Pub. L. No. 100-568, 102 Stat. 2853, § 2 (1) (1988). 67 Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976); Weinstein v. University of III., 811 F.2d 1091,1095 fn 3 (7th Cir. 1987) (opinion of Judge Easterbrook). Even the legislation immediately after adherence to the BC did not lead to a general protection of moral rights. See Edward Damich, The Visual Artist Rights Act of 1990: Toward a Federal System of Moral Rights Protection for Visual Art, Catholic Law Review, vol. 39, 1990, 945, 996; Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, Columbia-VLA Journal of

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perspective of international law it is h i g h l y d o u b t f u l whether the c o n v e n t i o n p r o v i sions m a y be interpreted as a matter o f national l a w as n o t self-executing. 68 T h e U n i t e d States commentators relied o n the w o r d i n g o f A r t i c l e 6bis (3) B C , stating that "the means o f redress for safeguarding the rights granted b y this A r t i c l e shall be governed b y the legislation o f the c o u n t r y where p r o t e c t i o n is claimed." I n C o n gress i t has been stated that "the p r o t e c t i o n o f m o r a l rights i n the U n i t e d States is compatible w i t h the Berne C o n v e n t i o n . " 6 9 H o w e v e r even i n the U n i t e d States i t has been argued that the national copyright provisions are n o t yet i n c o n f o r m i t y w i t h the Berne C o n v e n t i o n . 7 0 These few remarks indicate that t h e o r y and practice differ under the present conventions. M o r e o v e r , the B C and the P C are n o t w e l l prepared for future changes i n the w o r l d o f intellectual p r o p e r t y caused b y technical and economic developments. 7 1 C o m p u t e r creations, for example, have been one challenge t o the existing system o f p r o t e c t i o n . T h e conventions do n o t clearly answer the question w h e t h e r software is protected b y patent o r copyright law. B o t h solutions can be f o u n d i n national regimes. 7 2 A n e w t y p e o f s o l u t i o n has been realized w i t h respect t o semiconductor Law & the Arts, vol. 14,1990, 477, 497; from the German point of view Karl-Nikolaus Peifer , Moral Rights in den USA, Zeitschrift für Urheber- und Medienrecht, 1993, 325 - 352. 68

See Knut Ipsen, Völkerrecht, 3rd ed., 1990, 121 note 2, 122 note 5, in which it is pointed out that according to the predominant view of commentators the interpretation must be objective and commonly shared. 69

Final Report of the A d Hoc Working Group on the U.S. Adherence to the Berne Convention, Columbia-VLA Journal of Law & the Arts, vol. 10, 1986, 513, 547; Nimmer on Copyright, 1995, § 8D.02 [ D i l ] . 70 Even after special provisions have been installed for the field of artistic works to protect certain moral rights. See Eric Brooks, 'Tilted Justice': Site-Specific A r t and Moral Rights After U.S. Adherence to the Berne Convention, California Law Review, vol. 77, 1989, 1431, 1482; Damich (note 67), 946; Ginsburg (note 67). 71

Thomas Dreier , National Treatment, Reciprocity and Retorsion: The Case of Computer Programs and Integrated Circuits, Paul Katzenberger , General Principles of the Berne and the Universal Copyright Conventions, both in: Beier /Schricker (note 28), respectively 65, 67 and 45, 46; Heinrich Hubmann, Hundert Jahre Berner Ubereinkunft: Rückblick und Ausblick, U F I T A , vol. 103, 1986, 5, 28; Eugen Ulmer , Die Bundesrepublik und die Berner Union, G R U R Int., 1986, 229, 230. 72

For the different solutions see Thomas Dreier, Die internationale Entwicklung des Rechtsschutzes von Computerprogrammen, Rudolf Kraßer, Der Schutz von Computerprogrammen nach deutschem Patentrecht, both in: Michael Lehmann (ed.), Rechtsschutz und Verwertung von Computerprogrammen, 2nd ed., 1993, respectively 31, 33 et seq. and 221, 261; Hans Goldrian, Schutz von Computerprogrammen — ein Thema für GATT?, Computer und Recht (CuR), 1987, 257 - 259; H. W. Hennemann, The Patentability of Computer Software, 1985, 6 (country reports on the situation i n the United States, Great Britain, Australia, France, Germany, Austria, Switzerland, Spain and the Netherlands). A n intense discussion about the possible methods of protection has also occurred in Japan. See Karl H. Pilny , Japani-

Brainpower and Trade: The Impact of TRIPS on Intellectual Property chips, which receive sui generis protection, 73 just as will be the case in the future for many databanks.74 The realization of sui generis protection in national law is an open question. Substantively, this type of protection comes close to a neighboring right, which so far has been recognized only as an annex to copyright protection granted to artists and to the music and film entertainment industry. However, the protection of new subject matter seems to create new sectors of industrial rights granted solely to protect investments. Although the flexible use of the existing conventions for new subject matter and rights has been advocated in the past, this latest method of protection through sui generis measures demonstrates that national legislation has found ways to decide autonomously whether certain matters fall under the traditional instruments or not. The enforcement of convention provisions against States that do not fulfill the respective standards has been lacking in the past. Article 28 PC mandates that controversies that cannot be cleared in bilateral negotiations may be brought to the International Court of Justice; the same procedure is provided in Article 33 BC. However, in the time in which these provisions have existed not one use of them has been made. The specificity of the material seems to stand in the way of serious attempts at enforcing individual provisions. Also, further revisions of both conventions require the unanimity of the votes cast.75 This explains why in the time since the last revisions (BC: Paris 1971, PC: Stockholm 1967) no further revisions have been enacted. Within the BC further improvement of the existing level of protec-

sches Urheberrecht: Entwicklung und Tendenzen, in: Heinrich Menkhaus (ed.), Das Japanische i m japanischen Recht, 1994, 345, 359. 73 Andrew Christie , Integrated Circuits and their Contents: International Protection, 1995, 7; EC Directive 87/54 of 16 December 1986, Official Journal Eur. Comm., N o . L 24, 1987, 36. For discussion of the national legislation in the EC member States see Ingwer Koch, Der Halbleiterschutz nach nationalem, internationalem und europäischem Recht, in: Lehmann (note 72), 333, 342 et seq. 74 This is the solution chosen by Article 7 of the EC Directive 96/9 of 11 March 1996, Official Journal Eur. Comm., No. L 77, 1996, 20. 75

Article 27 (3) BC; less clear Article 18 (1) PC requiring different majorities only for enumerated single provisions, but within the PC the principle is seen as a rule of customary law; see Bodenhausen (note 58), 163, 199; Stephen P. Ladas, Patents, Trademarks and Related Rights, National and International Protection, vol. 1, 1975, 136; Hans Ballreich/Hans-Peter Kunz-Hallstein f Zur Frage der Reform des für Revisionen der Pariser Verbandsübereinkunft geltenden Einstimmigkeitsprinzips, GRUR Int., 1977, 251, 252, in which it is interpreted as a consequence of State sovereignty without jus cogens character. The attempts to introduce a majority principle failed although the latter was adopted for future revisions, Hans-Peter Kunz-Hallstein y Die Genfer Konferenz zur Revision der Pariser Verbandsübereinkunft zum Schutze des gewerblichen Eigentums, GRUR Int., 1981, 137, 140 et seq. These revisions, however, so far have not come into force.

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tion among all member States is doubtful; 76 present negotiations take place w i t h the aim of merely enacting a protocol to the convention, which could be signed singly by member States.77 The last attempt at revising the PC dates from 1979 and was finally broken off in 1984 by the United States. The main reason lay in the fact that the United States sought minimum standards of subject-matter protection without a detailed regulation of the content of the rights and protection measures; European countries, on the other hand, were interested in substantive provisions relating to the nature and the scope of the rights. Developing countries, finally, were opposed to any minimum standard of protection, fearing that they might be excluded from the use of technological know-how. 78 The failure of recent attempts at revising the international conventions shows that the approaches to protection have shifted. While the BC and PC were institutionalized within the World Intellectual Property Organization (WIPO) and therefore centered on a subject-matter-oriented type of protection (single-matter approach), the original bilateral and the new multilateral approaches within the world trade order are trade oriented. This shift of approach towards an economic interpretation of the rights in question was promoted mainly by the United States. IPR in this context are no longer seen in their cultural or moral dimension as 'brain' property, but in their economic dimension as trade measures. This answers why TRIPS has been realized as a part of the world trade order.

76

Georgios Koumantos , The Future of the Berne Convention, Columbia-VLA Journal of Law & the Arts, vol. 11, 1986, 225 - 237. 77

Committee of Experts on a Possible Protocol to the Berne Convention for the Protection of Literary and Artistic Works, Questions concerning the Possible Protocol to the Berne Convention, Part I, memorandum prepared by the International Bureau, W I P O Document BCP/CE/I/2; the first session took place in Geneva 4 - 1 1 November 1991. See the report i n G R U R Int., 1992, 45 - 50 by Silke von Lewinski and Thomas Dreier. I n the meantime four more conferences took place. See Reinhold Kreile , Bericht über die WIPO-Sitzungen zum möglichen Protokoll zur Berner Konvention und zum 'Neuen Instrument' vom 1. bis 9. Februar 1996, Zeitschrift für Urheber- und Medienrecht (ZUM), 1996, 564 - 573. 78

Hans-Peter Kunz-Hallstein, Die Reform des internationalen Patentschutzes i m Interesse der Entwicklungsländer, G R U R Int., 1979, 369; Christians (note 48), 142.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property c) TRIPS as a New Instrument to Protect Intellectual Property United States politics in the 1980s was clearly trade oriented. 79 Already in the 1960s the United States was faced with vanishing comparative advantages in international markets. Threshold and developing countries, as well as the reestablished industrial powers in Europe and Asia, had become successful competitors. Comparative advantages remained however in the entertainment industry and know-howoriented technological branches. In these industry sectors the imitation of products was particularly easy; the market for counterfeit products blossomed all over the world. In 1986 an inquiry made by the United States International Trade Commission found that 167 of 193 reporting United States companies were suffering heavy losses through the effects of piracy activities; figures of 3 to 10 percent of sales revenues were named to describe the size of losses attributed to the infringement of IPR, 80 especially in the computer, electronics and pharmaceuticals industries. The United States government feared that national industry might lose further competitiveness and reacted with an aggressive trade policy, which included a large number of measures. The first step was to start bilateral negotiations to strengthen United States IPR in those countries in which these rights are used. The tactic was to fight 'unfair trade activities' through retorsion measures. The main instrument was Section 301 of the Trade Act of 1974 as revised by the Omnibus Trade and Competitiveness Act of 1988.81 Section 301 allows private companies to appeal for the intervention of the United States government against unfair practices by foreign entities that damage the commerce of the United States. It empowers the United States President "to take appropriate and feasible action within his power." 82 The Omnibus Trade and Competitiveness Act gives this provision a multilateral ap79 United States International Trade Commission (USITC), Economic Effects of Intellectual Property Rights Infringement, JWTL, vol. 22:4, 1988, 101 - 114. See the contributions i n Jagdish Bhagwati/Hugh T. Patrick (eds.), Aggressive Unilateralism: America's 301 Trade Policy and the World Trading System, 1991; Helena Stalson , Intellectual Property Rights and U.S. Competitiveness i n Trade, 1987; Richard Cunningham/Susan Esserman , Trade Based Approaches to Achieving Protection for U.S. Intellectual Property Rights, in: American Bar Association, Intellectual Property Rights: The Emerging International Trade Issue, 1986; E. Simon , U.S. Trade Policy and Intellectual Property Rights, Albany Law Review, vol. 50, 1986, 501 - 507; from the German point of view see recently Silke von Lewinsky Urheberrecht als Gegenstand des internationalen Wirtschaftsrechts, G R U R Int., 1996, 630, 637. 80

Christians (note 48), 29.

81

Pub.L. No. 100-418, 102 Stat. 1107 et seq. (1988). For an analysis see Petros Mavroidis, Handelspolitische Abwehrmechanismen der E W G und der USA und ihre Vereinbarkeit mit den GATT-Regeln, 1992, 105 et seq. w i t h further references. 82 1 9 U.S.C. § 2411 (a)(1)(B)(ii) supp. I V (1986). Bart Fisher/Ralph G. Steinhardt, Section 301 of the Trade Act of 1974: Protection for U.S. Exporters of Goods, Services and Capital, Law and Policy, International Business, vol. 14, 1982, 569, 571.

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proach and seeks the enactment and enforcement of laws to recognize and protect intellectual property on an international level. It directs the United States Trade Representative to identify and impose sanctions on countries with inadequate or ineffective intellectual property protection of United States nationals.83 Part of this initiative was promotion of the G A T T agreement. While possible sanctions according to Section 301 of the Trade Act are the weapon, or the 'stick', the reward of trade liberalization for tangible goods against adequate protection of United States nationals is the 'carrot' with which the United States sought to persuade countries to enact intellectual property protection. Although the multilateral trade initiative was brought forward by the United States, the other industrialized countries, to some extent fighting the same battle against losses from counterfeiting activities, joined the United States on the conceptual level and helped break the opposition of the developing countries, which were granted generous transition rules in Articles 65, 66 TRIPS. The approach has been criticized; however in the end it was successful w i t h respect to the signing of the TRIPS and the G A T T agreement. In that regard it was much more successful than the subject-matter-oriented attempts to improve intellectual property protection within the framework of the WIPO conventions. W i t h respect to the TRIPS agreement, economic reality together w i t h the bargaining power of the industrialized States overcame cultural differences in the understanding of the object of protection. Naturally the importing countries were not interested in establishing minimum standards for IPR. But they were interested in access to the markets of the leading industrial nations for their goods. TRIPS and the W T O allowed a bargain between the two positions through the so-called 'singlepackage' approach. 84 A State may join the W T O agreement only if it accepts the agreement as a whole, i.e. including the G A T T , GATS and TRIPS agreements. 2. The TRIPS Approach versus the WIPO Approach: Chances and Risks of the TRIPS Initiative a) Package Deals instead of the Subject-Matt er Approach Whereas the WIPO conventions had to rely on voluntary cooperation to establish adequate protection, TRIPS broadens the view of possible economic interests by combining the market interest in tangible goods with that in intangible goods. Even countries w i t h no national production of IPR may be forced to establish adequate protection for foreign rights. 83

Charles McManis, Unfair Trade Practices, 3rd ed., 1992, 31.

84

Ullrich (note 37), 132.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property This advantage, however, is also one of the main disadvantages of the TRIPS initiative. It takes a broader position in seeing the similar interests in tangible and intangible goods, but it takes a narrower position with respect to the functions of IPR. A trade-based approach may be justified where only trade interests are attached. IPR, however, are not merely granted to the holders of the right so that they may promote their economic interest in trading goods derived from the right. European continental law has always been very receptive to the view that IPR are natural rights of those that create and invent. Thus IPR are not seen as mere economic rights and cannot be reduced merely to a comparison of the economic advantages and costs of protection. Moral and cultural aspects have to be taken into account as well; according to some specialists in the subject these aspects even have the primary significance. The problem becomes most acute with respect to the less industrial and more cultural rights, especially copyrights. The author of a work or a film does not merely have an interest in making money through the work, but the rights of integrity and attribution are fundamental to his or her artistic reputation. But for an inventor as well the right of attribution is of importance. A trademark owner does not necessarily only want to put his or her mark on the product, but may also as part of marketing policy intend to improve his or her commercial reputation and express his or her individuality by creating images that the consumer then associates w i t h the overall business of the trademark owner. These aspects, however, are left out by TRIPS as not trade related. For moral rights protection in the field of copyright law, this is expressly stated in Article 9 (1) TRIPS. According to this provision, member States have no obligation to protect the moral rights of authors in their works. The TRIPS approach contains the danger that moral and cultural interests lose their weight in the discussion of these rights, a tendency that has been promoted by legislation that favors the commercialization of these rights. 85 A trade-based protection approach supports this movement and even facilitates the view that the strong protection of moral rights is to be seen as a trade barrier. For copyright experts it is clear that Article 9 (1) TRIPS does not solve the question of moral rights. In fact, it cannot be deduced that moral rights are not trade relevant at all. The question whether a certain use can be made of a work w i t h or without the author's consent is strongly connected to the author's interest in determining the fate of his or her work. If an obligation to protect these rights is lacking on the international level, the author loses one of the most important instruments

85

Peter Jaszi> Toward a Theory of Copyright: The Metamorphoses of 'Authorship', Duke Law Journal, 1991, 455, 500; Jane Ginsburg> A Tale of T w o Copyrights: Literary Property i n Revolutionary France and America, Tulane Law Review, vol. 64, 1990, 991, 992; Russell DaSilva , Droit Moral and the Amoral Copyright: A Comparison of Artists' Rights i n France and in the United States, Bulletin of the Copyright Society of the USA, vol. 28, 1980, 1, 2.

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for C o n t r o l l i n g the use of his or her work. The moral rights then risk being evaluated merely as obstacles to the commercial and public use of the work rather than as legitimate interests. The lack of protection in this field is the gravest technical fault of the agreement, because it will weaken the persuasive power of the copyright system in the long run, as it implies that copyright interests are purely economic and thus easily sold. The question arises whether the TRIPS standards are to be interpreted as maximum standards, indicating that further protection is a trade barrier. Concerning aspects that are not exclusively trade related, this question must be answered negatively. It has been noted that TRIPS leaves national property systems untouched, the only exception being the minimum protection standards set up in the agreement. 86 Just as G A T T is open to the creation through national provisions of trade-relevant barriers on the basis of public interest (Article XX), TRIPS does not try to bar States from protecting national cultural interests. This result is reached through the dual limitation of the TRIPS provisions. The first limitation is Article 1 (2) TRIPS, which explicitly allows a higher protection standard through national legislation. The second is shown by the scope of the W T O order, expressed in the wording 'trade related', limiting the regulatory frame and not extending it to just any traderelevant question. TRIPS standards therefore are not to be interpreted as maximum standards. b) New Dynamics for Worldwide Protection Standards Progress has certainly been made with respect to the protection of IPR in countries in which so far a minimum standard is lacking. So far, 117 countries have signed the BC, 131 have signed the PC, 87 but a respectable number of these countries have not signed the latest versions of these conventions. Some countries do not belong to either of these unions, especially the Arab countries and some South American and African countries. 88 A number of these countries, however, have a strong interest in access to the larger world markets, and therefore will be unable not to 86

See Part I I sections 1 a) and 1 a) aa).

87

Unofficial W I P O information as of 1 January 1996. Official figures as of January 1995 i n Intellectual Property and Copyright, 1995, 24 et seq. 88

N o t members of the BC are e.g. Algeria, Andorra, Angola, Azerbaijan, Bahrain, Bangladesh, Belarus, Bhutan, Brunei Darussalam, Burundi, Cambodia, Cuba, Democratic People's Republic of Korea, Guatemala, Jordan, Kazakstan, Kyrgystan, Laos, Mongolia, Nicaragua, Qatar, Republic of Korea, San Marino, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Swaziland, Tajikistan, Thailand, Turkmenistan, Uganda, Uzbekistan, Vietnam, Yemen. N o t members of the PC are e.g. Andorra, Angola, Bahrain, Bhutan, Brunei Darussalam, Cambodia, Colombia, Ecuador, Fiji, Guatemala, India, Jamaica, Laos, Namibia, Nicaragua, Pakistan, Panama, Qatar, Saudi Arabia, Sierra Leone, Somalia, Thailand, Yemen.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property take part in the W T O agreement. If they sign the W T O agreement, they must sign TRIPS as well ('single-package approach'). TRIPS now obliges any member State to guarantee the protection standards of the Paris and Berne Conventions in their latest versions (Article 2 (1) and Article 9 (1) TRIPS). 89 This approach shows that the PC and BC standards are seen as minimum basic standards, a view that was promoted especially by the European Community during the negotiations.90 However, TRIPS adds further provisions to this protection, mainly w i t h respect to new technology and new rights. The approach therefore may be called a 'Berne and Paris plus' approach, although for the subjects protected under the Paris Convention further provisions in the TRIPS agreement were necessary.91 It is important to note that the member States of the W T O agreement are not obliged to become members of the WIPO conventions. Therefore the convention mechanisms, e.g. in the field of minimum rights, do not apply automatically to the W T O members that are not members of the WIPO conventions. It is rightly argued, however, that by choosing the WIPO standards as the basis for the protection w i t h i n the W T O , a substantial challenge has been made to these conventions as well, as the prospects for isolated progress within the conventions seemed doubtful. Given that as of January 1995 the W T O agreement had 75 members, and in June 1996 122 members, with 30 additional States on the application list, whereas the U N presently has slightly over 180 members, it is foreseeable that within the next several years the number of countries that must fulfill the Berne and Paris standards through the W T O order will soon outnumber the members of the conventions. This is, no doubt, a positive aspect of the W T O initiative. However, the minimum standards reached by the Berne and Paris plus approach may also lead to stagnation with respect to further development of intellectual property right protection. It is above all clear that the standards of Berne and Paris, reflecting the negotiations of 1971 and 1967 respectively, are not extremely high. Further development within these conventions through future revisions w i l l not automatically be contained within the W T O order unless the W T O agreement is further reformed. However, if one considers the long and strenuous negotiations leading up to the Marrakesh agreement, there does not seem to be much hope that a further improvement of TRIPS will take place in the near future. A revision of the Berne and Paris conventions can hardly be expected, given the fact that most nations w i l l 89

N o obligation, however, is included w i t h respect to the protection of moral rights according to Article 6bis BC, Article 9 (1) TRIPS. See Part I I section 2 a). 90

Christoph Bail , Elaboration of Trade Related Principles, Rules and Disciplines for Intellectual Property Rights, in: Thomas Oppermann/Josef Molsberger (eds.), A New G A T T for the Nineties and Europe '92, 1990, 245, 252. 91

Id. , 253 et seq.

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be engaged in fulfilling the TRIPS standards in the next several years. Serious activity beyond this is doubtful. With respect to aspects of protection that are not clearly trade related, the TRIPS initiative therefore has been counterproductive. The moral rights issue in copyright law is one example to be listed here. c) Most-Favored-Nation Treatment and Intellectual Property A major obstacle to the future development of intellectual property protection is the criterion of most-favored-nation treatment. This principle derives from trade regulations with respect to tangible goods and has a long history in world trade. As a trade-specific provision it is meant to open the internal market equally to foreigners and to facilitate the acquisition of goods,92 whereas it leaves the content of property rights untouched. Therefore it does not fit systematically into a set of regulations that try to harmonize substantive provisions relating to property content. 93 Trade regulations accept property rights as they are, and try to facilitate the acquisition of the objects rather than to change the content of the property right. Trade regulations accept foreign and domestic substantive regulations as they are as long as they do not discriminate between the acquisition of goods coming from State A , the acquisition of goods coming from State B, and domestic goods. Where a trade order establishes substantive standards and combines them w i t h national- and most-favored-nation treatment as TRIPS does, it does not leave the domestic property order untouched, but forces domestic legislation to give foreign property domestic substantive rights in cases in which the domestic input is an advantage for the foreign holder of the right. O n the one hand such a system appears to be very modern, as it helps to create consistent world law on the basis of the most progressive national law. On the other hand such a system forces national legislation to grant national treatment on a large scale without any return for nationals abroad. The existing WIPO conventions do not follow such a principle, and leave untouched bilaterally negotiated benefits between member States. N o r do the G A T T and GATS agreements try to harmonize national legislation in the field of property law. These facts make it doubtful to think of the principal scope of the TRIPS agreement as trying to harmonize intellectual property law. In fact, TRIPS, G A T T and GATS are trade treaties. Insofar as TRIPS has a harmonizing effect, this is only w i t h respect to a minimum standard of protection, which — if lacking — leads to trade distortions. As soon as member States grant more protection than the minimum standard, TRIPS no longer governs the higher standard, as Article 1 (1) of the agreement states.

92

Fikentscher (note 6), 258.

93

See note 28.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property However this same paragraph states that a higher standard is allowed only if it does not contravene the TRIPS provisions. The relationship between these two requisites, the allowable higher protection and the forbidden trade restriction through intellectual property protection, is the most critical issue of the whole TRIPS agreement. If TRIPS is understood as a fixed standard, it can be argued that better protection always risks being interpreted according to its trade-restrictive nature. This would lead to harmonization on a low level and exclude higher protection, which would be counterproductive to the TRIPS goal of guaranteeing effective and adequate protection of IPR, as expressed in the preamble of the agreement. Moreover, if TRIPS fits into the regulatory scope of a trade order, it must be neutral w i t h respect to the regime of property content. In other words, TRIPS must accept existing property law on tangible as well as intangible goods, the only exception being that for IPR a certain minimum standard is required. Just because the standard is higher, it cannot be argued that the standard is trade restrictive. 94 The provision in Article 1 (1) can only be understood in the sense that it forbids the use of an intellectual property right to distort international trade. This would leave the content of the right untouched and relate only to the exercise of the right, a line of division that has existed within the European Community with respect to the free movement of goods and services and with respect to the protection of intellectual property. 95 European law establishes two methods of guarding against the misuse of IPR. Articles 30 and 59 EC Treaty forbid barriers to the free flow of goods and services. Article 36 EC Treaty, however, going back to the principle of Article 222 EC Treaty, leaves the content of national property regulations with respect to tangible (Article 222) and intangible (Article 36) property untouched. Thus the EC Treaty clearly contains the idea that property rights are trade assets rather than trade barriers. As a consequence, EC law allows restrictions to trade that follow from the existence of property rights. The exercise of these rights, however, is allowed only up to the point at which the exercise is necessary to guarantee the specific content of the property right. 96 This corresponds to the antitrust provisions contained in Articles 20 and 21 of the German Antitrust Law, which state that license agreements on the acquisition or use of patents, utility models, plant varieties and know-how may contain only those restrictions that follow from the content of the protection right. 9 7 Although this principle leaves open for national legislation the question of 94

The opposite result is reached by Heinz G. Preusse , Die Welthandelsorganisation (WTO) und die geistigen Eigentumsrechte, Außenwirtschaft, vol. 51, 1996, 27, 45, arguing that strong protection may impede the diffusion of knowledge into developing countries. 95

See Inge Govaere , The Use and Abuse of Intellectual Property Rights in EC Law, 1996.

96

Deutsche Grammophon case (note 16).

97 Volker Emmerich , in: Ulrich Immenga/Ernst-Joachim Mestmäcker (eds.), Gesetz gegen Wettbewerbsbeschränkungen: Kommentar zum Kartellgesetz, 2nd ed., 1992, notes 99 et seq. to Article 20.

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what exactly is meant by the specific content of a property right, 98 it makes clear that property content rules are accepted by trade law. The second line of division drawn by EC law is represented by Article 86 of the EC Treaty. Although rules that form the specific content of a property right are allowed, not allowed are national provisions that lead to the effect that the holder may misuse the property right after the right has gained a favorable market position. 9 9 This double check is in line with the relationship between intellectual property law and antitrust law on the national level. Antitrust law accepts the content of the protection but places a barrier to competition-distorting misuse of rights. If TRIPS is understood in this way, it fits into the regulatory frame of a trade order. However, the problem then is that neither TRIPS nor the G A T T nor the W T O agreement contains clear provisions against unfair trade practices. Only a few provisions contain antitrust or unfair-competition rules (especially Annex 8 I I TRIPS, in which solutions are left to national legislation). 100 Thus a set of problems remains open exactly at the most crucial point of the agreement. d) Most-Favored-Nation-Treatment and National Protection Rules The most-favored-nation clause has already led to some confusion w i t h respect to its application to benefits granted within the European Community. Article 6 of the EC Treaty obliges any member country to refrain from any discriminatory treatment of foreigners within the EC through national legislation. The European Court of Justice has recently ruled in the so-called Phil Collins case that this principle is also valid in the field of copyright (and one can easily add, in the field of industrial IPR). 101 This means that a member State must treat other nationals within the Community the same as the State's own nationals are treated. If on the national level a protection period of seventy years post mortem auctoris is granted (as under German 98

See the critique by Friedrich-Karl Beier , Gewerblicher Rechtsschutz und freier Warenverkehr i m europäischen Binnenmarkt und i m Verkehr mit Drittstaaten, G R U R Int., 1989, 603, 610. 99 Magill case (note 35), EuZW, 339. For a discussion of this and the preceding decisions of the ECJ in the Magill case see Hans-Peter Gotting , JZ, 1996, 307 - 310; Carine Doutrelepont, Mißbräuchliche Ausübung von Urheberrechten?, GRUR Int., 1994, 302 - 308, both w i t h further references. 100 101

See Heinemann (note 25), 535 et seq.

Phil Collins v. Imtrat Handelsgesellschaft mbH, Patricia Im- und Export Verwaltungsgesellschaft mbH and Another v. EMI Electrola GmbH, 20 October 1993, CMLR, 1993, 773 - 799, GRUR Int. 1994, 53 {Phil Collins case), with note Haimo Schack , JZ, 1994, 144 - 147; Thorsten Braun, Praxis des internationalen Privat- und Verfahrensrechts, 1994, 263 - 266.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property copyright law — Article 64 (1) German Copyright Act), this same protection period must be granted to EC nationals as well, independent of any reciprocity guaranteed by the country of origin. The result was astonishing as before this decision it had always been noted that Article 7 (8) of the BC allows discrimination against foreigners if the legislation of the foreign State does not mandate a protection period of equal length, Le. if reciprocity is not granted. The Phil Collins decision eliminates this rule if Community citizens are involved. The question has arisen as to whether this case law creates a rule of law whereby a benefit granted to EC members must — according to the most-favored-nation rule in Article 4 TRIPS — be granted equally to members of the TRIPS agreement. 102 If that is the case, any advantage resulting from EC harmonization in the field of intellectual property law gives TRIPS members a basis to claim equal treatment and thus to participate in any substantive harmonization progress within the Community without the obligation of reciprocity. The discussion above indicates how this result can be avoided. The simplest way is to regard Articles 3 and 4 of TRIPS as rules ex post the Phil Collins case, as overturning the non-discrimination case law and returning to the original rule of Article 7 (8) BC. 1 0 3 Another solution is to declare the EC Treaty an "international agreement related to the protection of intellectual property." 104 This would allow discrimination, because Article 4 allows exceptions to most-favored-nation treatment on the basis of a set of prior treaties, among others the Berne Convention (Article 4 (b)) and other conventions in the field of intellectual property protection (Article 4 (d)). Both arguments have problems with clarifying the situation with regard to future benefits granted within the European Community harmonization process, because agreements concluded within this framework would not be "prior to the entry into force of the W T O Agreement," as Article 4 (d) TRIPS requires. The problem, however, can be solved by returning to the TRIPS principles. Above all, TRIPS is part of a trade order that leaves untouched laws regulating the

102

Hermann Cohen-Jehoram y The EC Copyright Directives, Economics and Authors' Rights, in: A L A I (note 24), 105, 110; Gunnar Kamell, , Wer liebt Phil Collins GRUR Int., 1994,733,737; Haimo Schack , Schutzfristenchaos i m europäischen Urheberrecht, G R U R Int., 1995, 310, 313; Katzenherger (note 25), 447, 461. 103 104

Schack (note 102), 314.

Katzenherger (note 25), 462; similarly the argumentation by Friedrich Karl Fromm/Wilhelm Nordemann , Urheberrechtsgesetz, 8th ed., 1993, § 125, note 2. I n the meantime the European Community has adopted this view. The EC and the member States communicated a declaration to the TRIPS council stating that the EC Treaty is a treaty related to the protection of intellectual property and therefore falls under Article 4 (d), as does present and future secondary EC law, declaration of 19 December 1995. See the report in GRUR Int., 1996, 269 270.

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content of property rights. As long as a benefit is related to the content of a property right it does not constitute a trade-relevant benefit within the meaning of TRIPS. Only if a benefit is related to the exercise of a property right does TRIPS come into force. This creates the problem of dividing between rules relating to the content and to the exercise of property rights. There is indeed a gray area of problems that cannot clearly be divided into one or the other section. However, TRIPS made clear that the minimum protection standards, including the minimum rights of the BC and PC, clearly belong to the content of IPR. If national legislation defines content according to national determinations concerning culture or technology, TRIPS must accept this as a rule relating to the content of property up to the point at which the exercise of an excessively protected right constitutes an act of unfair trade. This was the line adopted by the European Court of Justice in the Magill case. The Court accepted a copyright rule granting a copyright to program information, but limited the right to the extent the exercise, or better the non-exercise, constituted a misuse of market power, achieved with the aid of the respective copyright. The question of the fair-trade use of an intellectual property right is not related to TRIPS. The agreement in various provisions demonstrates, together w i t h G A T T , that it does not affect national property regimes, which includes the regime for intellectual property. The most important provision is the previously cited Article 1 (1), which leaves room for higher protection. Moreover, the provision demonstrates that harmonization is a topic of TRIPS only to the extent that a minimum standard is at stake. Harmonization through most-favored-nation treatment is not desired and would be counterproductive, because no single nation would be challenged to grant benefits w i t h respect to the recognition of foreign IPR if it had to fear that this recognition would have immediate and unconditional worldwide effect. Finally, the W T O order is neutral towards developments made within the context of economic integration agreements. Article V of the GATS states that "this agreement shall not prevent any of its Members from being a party to or entering into an agreement liberalizing trade in services" provided that the agreement has substantial sectorial coverage and provides generally for the elimination of discriminations. Article X X I V (5) G A T T 1947 — which is still in force as part of G A T T 1994 — provides for the same with respect to goods. According to this latter regulation exceptions to the most-favored-nation rule are allowed for regional free trade areas. 105 These provisions intended to allow for groups such as the EC and the N A F T A countries, as long as the regional unions do not exist only w i t h respect to certain markets or products. Thus the EC certainly falls within the provision. Advantages granted within the context of these integration agreements do not fall under the W T O order and therefore do not fall under TRIPS. It is clear that w i t h 105

Ballreich (note 28), 747, 753, 756.

Brainpower and Trade: The Impact of TRIPS on Intellectual Property respect to these integration agreements the W T O order has left numerous possibilities for loopholes. 106 But this was taken into account by the contracting parties. For the TRIPS agreement the effects are much easier to bear than for the G A T T . In conclusion, the TRIPS agreement does not force EC member States to grant advantages provided within the Community as a result of the harmonization process to TRIPS members. Conclusions 1. The TRIPS agreement is a substantial step forward in broadening international minimum protection standards. One of its merits is that it has recognized IPR as assets rather than as barriers to trade. 2. A great danger lies in the trade-related approach of the agreement. The question to what extent national determinations with respect to matters of culture are still accepted within the trade world has been neither posed nor answered. Instead, TRIPS leaves the impression that IPR are purely commercial rights. A deep misunderstanding of the nature of these rights is caused by this approach. However, if TRIPS is understood to concern only the regulation of trade rules, these dangers can be avoided or at least reduced. The WIPO now has the difficult task of strengthening respect for these rights in all their aspects. 3. TRIPS is a trade regulation agreement. It therefore leaves untouched national regimes concerning the content of tangible and intangible property. The only exception is the minimum protection standards for IPR. Therefore these standards should not be interpreted as maximum standards. Higher protection through national legislation is allowed and cannot be regarded as a trade barrier so long as it is related to the content of IPR. Further rules are needed to draw a line of division between fair and unfair trade practices with respect to the exercise of IPR.

106

The effects of integration agreements on welfare are strongly disputed. See Hauser/ Schanz (note 14), 251; R. C. Hine, International Economic Integration, in: D. Greenaway/L. A. Winters (eds.), Surveys i n International Trade, 1994, 234 - 272; Richard Send, Die Integration als Gefahr für das G A T T , Außenwirtschaft, vol. 49,1994,131 - 150; P. J. Lloyd , Regionalisation and World Trade, O E C D Economic Studies, vol. 18,1992, 411 - 439; see generally Jacob Viner , The Customs Union Issue, 1950, 5, 109 et seq.

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Accession of the CIS Countries to the World Trade Organization By Matthias Lücke*

Introduction In 1992 and 1993, most member countries of the Commonwealth of Independent States (CIS) applied for membership in the General Agreement on Tariffs and Trade (GATT). 1 With the change from the 'old' G A T T of 1947 to the World Trade Organization (WTO) in 1995, these applications are now considered to be for membership in the W T O . Thus the CIS countries find themselves among the last major trading countries to join the W T O , and in a group that also includes China, Taiwan, Saudi Arabia and Vietnam. This Article analyzes the benefits and the adjustment issues involved in the accession of the CIS countries to the W T O . The Article focuses on Russia, Ukraine and Belarus which are the largest CIS economies and whose negotiations on accession (together with those of Armenia) are the most advanced. These three countries have submitted memoranda on their trade-related policies and are now at different stages of answering successive rounds of questions from members of their accession working parties and conducting bilateral and multilateral talks on trade concessions. In spite of the focus of this Article on only three of twelve CIS countries, it is expected that both the benefits and the adjustment problems involved in acceding to * This paper draws on my participation in a research and advisory project on the accession of several CIS countries to the W T O financed by the TACIS program of the European U n i o n and directed by Daniel Gros at the Centre for European Policy Studies (CEPS). Throughout the project, I have had the benefit of support from a large number of East and West European academics and government officials. Discussions w i t h Daniel Gros and Rolf /. Langhammer have been particularly helpful. Frank Vereecken of CEPS has made extensive unpublished material available to me. Very careful comments from staff members at the U N C T A D Secretariat on an earlier draft have helped to correct errors, clarify the presentation and update information. Editorial assistance by Eric Johnson is also gratefully acknowledged. I alone am responsible for the conclusions as well as for any remaining faults. I n large part, this Article is based on information from unpublished sources that are not generally accessible; interested readers are invited to contact the Author if they require more detailed documentation. 1 By January 1997, only Azerbaijan, Tadzhikistan and Turkmenistan had not applied for G A T T / W T O membership. See the information on the W T O Internet site h t t p : \ \ www.wto.org\wto\memtab2_wpf.html as of 22 January 1997.

Accession of the CIS Countries to the World Trade Organization135 the W T O are broadly similar for Moldova and for the more advanced Transcaucasian and Central Asian economies. Certain adjustment issues, such as those in the area of subsidy reduction, may be less urgent for some of the less advanced CIS economies if these qualify to enter the W T O as developing countries. From the point of view of the CIS countries, accession to the W T O would represent an important step in their systemic transformation into market economies. By subjecting their trade-related policies to the scrutiny of their trading partners and by undertaking binding liberalization commitments, the CIS countries would enhance the credibility of their market-oriented reforms. W T O membership would represent the institutional side of their integration into the international division of labor after several decades of self-imposed isolation. In addition, many improvements in market access to the countries of the Organization for Economic Cooperation and Development (OECD) would become permanent that have so far been accorded to the CIS countries only on a provisional basis. Furthermore, from the point of view of the W T O , the accession of the CIS countries would strengthen the multilateral trading system against the background of moves towards regional economic integration in many parts of the world. Along with the potential benefits, the accession of the CIS countries to the W T O involves formidable adjustment problems that arise mainly from three sources. First, when the CIS countries were still member republics of the Soviet Union, they had no foreign trade policies of their own. Because of their only recent independence, the institutional framework is still quite weak in many policy areas affected by W T O rules, including the trade regime, financial sector regulation and monetary and exchange rate policies. Frequently, strategic policy objectives are not completely defined. Furthermore, the legal framework in the CIS countries is not fully developed in some areas that have been brought within the scope of the multilateral trading system through the W T O agreements, such as in the areas of services and intellectual property rights. Second, the disintegration of the Soviet Union proceeded in an unplanned and at times haphazard fashion. Therefore it took several years for new market-type institutions to be formed for the conduct of trade among the CIS countries, e.g. contractual relationships directly between enterprises, a functioning payments system, national currencies and currency exchanges. Against this background, moves towards regional integration among the CIS countries, which were motivated by a variety of political and economic considerations and took place at the bilateral, plurilateral and multilateral levels, frequently lacked consistency and transparency. 2

2 The term 'plurilateral' i n this context refers to groups of more than two CIS countries cooperating through special agreements rather than through the established CIS institutions. Cooperation at the latter level is called 'multilateral'.

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Third, W T O rules assume the existence of an economic system based largely on market transactions among economic agents. In a State-dominated economy, fulfillment of many membership obligations is difficult, if not impossible, to implement and verify. However, market-oriented reforms in many CIS countries are far from complete. In practice, of course, present W T O members show widely varying degrees of State involvement in their economies, and the difference between a market economy and a centrally planned economy may ultimately be one of degree. Nevertheless, systemic transformation has progressed less far in most CIS countries than in most transition economies that are now W T O members (with the possible exception of Mongolia and Bulgaria). Therefore further progress in systemic transformation is bound to be an important topic in negotiations on accession. While many of the adjustment problems stem from the common Soviet past, it is important to note that economic policies even in the three selected CIS countries, and more so in the full group of twelve, are becoming increasingly differentiated. This applies to policy areas as varied as subsidies, agricultural policies and the role of State trading enterprises. In treating the accession issues in the CIS countries as 'broadly' similar, this Article takes a bird's eye view for the benefit of providing a concise overview. A closer look would reveal considerable divergence at levels of greater detail. This Article starts with a brief survey of the evolution of the external trade of the CIS countries since 1992, including a discussion of those features of the central planning system that continue to affect progress in systemic transformation in general and the market-oriented restructuring of external trade in particular (Part I). The subsequent sections analyze the institutional and policy changes to which CIS country governments would have to commit themselves in the course of accession to the W T O (Part II: trade related policies; Part EI: regional integration; Part IV: systemic transformation). Part V discusses the benefits of W T O accession for the CIS countries in terms of more secure market access and the locking-in of market-oriented reforms. Part V I concludes by analyzing the implications of the accession of the CIS countries for the multilateral trading system. I. External Trade of the CIS Countries since 1992 The former Soviet Union may be characterized as a large, essentially closed economy. Its relatively small foreign trade was concentrated disproportionately on the other centrally planned economies that were members of the Council for Mutual Economic Assistance (CMEA). The small size of trade with the O E C D countries was not only due to a politically motivated preference for trade among socialist rather than capitalist countries. In addition, on the part of the OECD countries that would have been the most important trading partners under market conditions be-

Accession of the CIS Countries to the World Trade Organization

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cause of their large economic size, m a n y imports f r o m the centrally planned economies were subject t o quantitative restrictions. 3 A t the same time, O E C D exports o f m a n y technologically advanced capital goods were subject t o restrictions for strategic reasons ( C o c o m list). Since 1991, the p o l i t i c a l l y motivated barriers t o East-West trade have been reduced considerably o n b o t h sides. A variety of empirical studies have produced b r o a d l y similar estimates o f h o w the regional c o m p o s i t i o n o f the foreign trade o f the transition economies w i l l change once foreign trade is governed f u l l y b y market incentives. 4 Gros and Dautrebande

apply several models t o the trade patterns o f the

CIS countries and estimate the long-run share o f intra-CIS trade i n t o t a l trade at n o m o r e t h a n 25 percent, irrespective o f the model chosen, for the European CIS States, w i t h a m u c h l o w e r figure for Russia. 5 H o w e v e r , foreign trade statistics f r o m Russia, U k r a i n e and Belarus, even i f t h e y are n o t entirely reliable, s h o w this share still at m o r e t h a n 50 percent i n U k r a i n e and at m o r e than 60 percent i n Belarus, w i t h o n l y l i t t l e reduction over the last few years. The very slow pace o f regional restructuring i n CIS trade contrasts sharply w i t h the experience o f the more advanced Central and Eastern European transition econ-

3

The former Soviet Union was not a contracting party to G A T T 1947. However, special rules allowing quantitative restrictions against exports of centrally planned economies existed even for those socialist countries like Poland and Hungary that were contracting parties to G A T T 1947. Organisation for Economic Co-Operation and Development (OECD): Centre for Co-Operation w i t h the Economies in Transition, Integrating Emerging Market Economies into the International Trading System, 1994; Siegfried Schultz , Transformationsländer und multilaterales Handelssystem: Schnellere Einbindung erforderlich, DIW-Wochenbericht, 5/1996. 4 Such studies are based on the observation that, among market economies, there is a stable relationship between the volume of (bilateral) trade between pairs of countries on the one hand and their gross domestic products and geographic and cultural distance on the other (gravity model). This relationship can be used to estimate the regional pattern of trade for the CIS countries under (hypothetical) market economy conditions. 5

Daniel Gros/Berenice Dautrebande , International Trade of Former Republics in the Long Run: A n Analysis Based on the 'Gravity' Approach, Center for European Policy Studies (Brussels) Working Document no. 71, 1992. There are some reasons to suspect that such estimates indicate a lower bound for the future importance of intra-CIS trade rather than a realistic point estimate. First, national income in the former centrally planned economies is notoriously difficult to estimate, and Gros and Dautrebande have used a conservative (i.e. low) figure. I n the simulations, this procedure w i l l lead to similarly low estimates for trade w i t h the CIS countries. Second, the legacy of the Soviet system — isolation from Western markets, a common business culture, similar consumer preferences — may well, for an extended period, exert a stronger influence than factors such as a common language among market economies. Third, the development of the transport infrastructure may be path dependent without much effect on the economic appropriateness of the resulting trade; for example, natural gas w i l l continue to be transported through existing pipelines.

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omies. In the six largest economies6 combined, the share of Eastern European countries in total exports fell from 51 percent in 1989 to 15 percent in 1994. During the same period, the combined share of the fifteen European Union countries, which are now the most important trading partners due to their geographic proximity, increased from 23 percent to 64 percent. 7 With a similar picture for imports, it may be concluded that it was not external conditions that prevented a more rapid reorientation of the foreign trade of the CIS countries, but rather the comparatively slow pace of systemic transformation in the CIS compared w i t h the Central and Eastern European countries. 8 While the regional composition of CIS trade has thus changed only slowly, its volume has decreased dramatically. 9 To a large extent, this is due to the collapse of exports of finished industrial goods. These had been directed mostly to other centrally planned economies and frequently did not conform to international standards in terms of quality and price. The decline in aggregate output and demand in all European transition economies, coupled with import liberalization and increased competition from OECD country firms, reduced CIS manufactured exports to a fraction of their former volume. In a parallel development, Russia increased the prices for its energy exports significantly from their former, artificially low levels. As a consequence, net energy importers among the CIS countries reduced their import volumes sharply without, however, finding stable sources of financing the remaining current account deficits. Both Ukraine and Belarus repeatedly ran up payment arrears on Russian energy imports and were obliged to request debt rescheduling. Only to a limited extent were intra-CIS deliveries of intermediate goods such as energy materials, steel, non-ferrous metals and basic chemicals redirected from CIS destinations to the world market. Initially, the decline in trade among the CIS countries was also caused by the breakdown of the central planning institutions and the absence of market-type institutions that could have taken their place. Because of the absence of a functioning payments system in 1992 and 1993, many CIS countries and even regional administrative units imposed quantitative export barriers in order to maintain a sufficient supply of scarce goods in the local market or to ensure that internationally marketable goods were exported in exchange for convertible currency. However, the insti6

Poland, the Czech Republic, Slovakia, Hungary, Romania, Bulgaria.

7

Daniel Piazolo y Trade Integration between Eastern and Western Europe: Politics Follows the Market, Kiel Institut für Weltwirtschaft Working Paper no. 745, 1996. 8 A more detailed discussion of the determinants of trade reorientation may be found i n Bartlomiej Kaminski/ Then Kun Wang/L. Alan Winters , Export Performance i n Transition Economies, Economic Policy, no. 23, October 1996, 421. 9 The best available estimates by Michalopoulos and Tarr show 1993 trade volumes at roughly one-third of their 1990 levels. Constantine Michalopoulos/David G. Tarr (eds.), Trade i n the New Independent States, Studies of Economies in Transition, no. 13, 1994.

Accession of the CIS Countries to the World Trade Organization139 tutional framework for trade among the CIS countries has since improved markedly. By 1994, nearly all CIS States had introduced national currencies, most of which are now de facto convertible for current account transactions. A workable system of inter-State payments exists through correspondent accounts maintained by commercial banks. It is therefore unlikely that the absence of trade-supporting institutions in this narrow sense is still the main cause of the low level of trade. 10 In spite of progress in some areas of systemic transformation, major deficiencies persist with respect to all three key elements — macroeconomic stabilization, structural adjustment and institutional change.11 In the field of macroeconomic stabilization, Russia, Ukraine and Belarus have all succeeded in reducing inflation to moderate or even low levels. However, exchange rate policies have been erratic. Nominal exchange rates were fixed for extended periods while domestic inflation exceeded foreign inflation significantly. The resulting overvaluation of domestic currencies reduced the profitability of export sales compared with sales in the domestic market. 1 2 The profitability of exports, however, is critical for the successful reorientation of exports towards OECD markets. Firms will incur high outlays for the setting-up of new marketing channels only if the expected return is sufficiently high (though inevitably uncertain). Even when central bank interventions in the foreign exchange market ultimately had to be abandoned because foreign exchange reserves 10 The evolution of the policy environment for CIS trade, and particularly the trade and payments system among the CIS countries since 1992, has been extensively described by Michalopoulos and Tarr , id., and in International Monetary Fund, Trade Policy Reform in the Countries of the Former Soviet Union, Economic Reviews, no. 2, 1994. 11

A wide variety of sources provide detailed analyses of systemic transformation and economic developments in Russia, Ukraine and Belarus. The following sources have been drawn on heavily i n the preparation of this paper, and readers are encouraged to consult these for more detailed information and documentation of developments. In the English language, Russian Economic Trends, Ukrainian Economic Trends and Belarus Economic Trends, all sponsored by the TACIS program of the European Union, provide detailed analyses on a quarterly basis w i t h monthly statistical updates. I n the German language, the following publications regularly summarize developments in Russia, Belarus and Ukraine respectively: D I W / I f W / I W H , Die wirtschaftliche Lage Rußlands and Die wirtschaftliche Lage der Republik Belarus (both semi-annual); Hermann Clement/Michael Knogler/Alexei Sekarev , Die wirtschaftliche Lage der Ukraine, Osteuropa-Institut (Munich) Working Paper no. 174, 1994; Hermann Clement/Michael Knogler/Alexei Sekarev , Die wirtschaftspolitische Lage der Ukraine, Osteuropa-Institut (Munich) Working Paper no. 189, 1995; Hermann Clement/Michael Knogler/ Alexei Sekarev , Strukturwandel und Probleme der realwirtschaftlichen Anpassung i n der Ukraine, Osteuropa-Institut (Munich) Working Paper no. 196, 1996. Foreign trade policy i n Russia is documented in greater detail in a recent addition to the literature — Russia: Foreign Economic Relations, Trends and Prospects, Quarterly Review (first issue in June 1996). 12 Export revenues in domestic currency would change little because of the relatively fixed nominal exchange rate, while both domestic producer prices and production costs in domestic currency would increase along w i t h domestic inflation.

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were depleted, exports were effectively discouraged because fluctuations in the real exchange rate and hence uncertainty about the profitability of exports became more pronounced. 13 In the field of structural adjustment, the size structure of enterprises is still heavily distorted by the legacy of the central planning system. Planners preferred large enterprises to small ones because the former were easier to set up and control than an equivalent number of smaller enterprises. Not only was output large by Western market economy standards; the degree of vertical integration (value added as a share of the value of output) was also very high. 14 Enterprise restructuring therefore requires a decentralization of decision-making, reduced vertical integration and ultimately the restructuring of large enterprises into smaller, more flexible units. Such flexibility and enhanced managerial competence are also crucial for enabling enterprises to enter new markets, which in turn is a precondition for the reorientation of CIS foreign trade. 15 Furthermore, the existence of many very large enterprises, each of which necessarily supplied a large proportion of Soviet demand for a particular good, led to a sophisticated division of labor among the economic regions of the former Soviet Union. When some of these regions became independent States in 1991, traditional links between enterprises were interrupted by the new borders. Quite generally, but a fortiori under such conditions, the market-oriented restructuring of enterprises requires a well-functioning legal system that allows firms to conclude enforceable, inter-firm contracts to replace the former intra-enterprise transactions. In this area, as in other fields of institution-building, the process of systemic transformation in the CIS countries is far from complete. I I . Implications of W T O Accession for the Trade Regimes of the CIS Countries The problems involved in bringing the CIS country trade regimes into compliance with W T O rules can be related to the strategy for multilateral trade liberaliza13

I n Belarus throughout the summer of 1996 de facto import restrictions were even imposed to defend overvalued exchange rates. The highly arbitrary administration of these quantitative restrictions would have made them inconsistent w i t h the obligations of W T O membership. 14

Matthias Lücke, Beschäftigungsstruktur und realwirtschaftliche Anpassung i n der ehemaligen Sowjetunion, Die Weltwirtschaft, no. 3, 1994, 349; Rolf]. Langhammer/Matthias Lücke, Trade among the Post-Soviet States: Evolution and Policy Issues, Kiel Institut für Weltwirtschaft Working Paper no. 708, 1995. 15

The related issues of the commercialization (change of legal structure) and privatization of enterprises (change of ownership and system of corporate governance) are discussed i n greater detail in Part IV.

Accession of the CIS Countries to the World Trade Organization141 tion developed by G A T T 1947 and further elaborated on in the W T O agreements. In general, W T O rules permit different levels of protection for particular industries or service sectors across member countries. However, each member is required to commit to a maximum level of protection for each activity, i.e. to 'bind' its import tariffs for goods or market access regulations in service sectors (Article I I of G A T T 1994). Only in closely defined exceptional circumstances may actual levels of protection be increased above bound levels (for example, in the case of a sudden increase in imports of a particular good — Article X I X of G A T T 1994 and the Agreement on Safeguards). Given the bound levels of protection, progressive trade liberalization is achieved through multilateral negotiations that lead to mutually agreed-to timetables for reductions in protection, for example by given percentages of bound tariff levels. I n order to verify effective compliance with liberalization commitments, many W T O rules seek to ensure the transparency of trade-related policies. This is rendered difficult by the fact that a wide range of trade or domestic policy measures, such as export or import tariffs, quantitative restrictions and taxes on consumption or on production, can be used equivalently to obtain protection. 16 W T O rules therefore define a limited range of policy instruments (for example, export and import tariffs in the case of trade in goods) through which protection may be afforded. 17 As the CIS countries accede to the W T O , they will have to bring their trade-related policies into compliance with W T O rules on the use of the various policy instruments. Furthermore, they will have to define the level and sectorial structure at which they wish to bind their tariffs, subsidies and market access regulations. Based on their initial offer, they will then negotiate with interested incumbent W T O members on a definite schedule, which would become part of their protocols of accession to the W T O . The following sections first discuss policy adjustment issues and the binding of protection in the case of trade in goods (sections 1 and 2) and then turn to trade in services (section 3) and other WTO-related issues such as intellectual property rights (section 4).

16

This is the essence of various equivalence theorems, the earliest of which is the Lerner equivalence of export and import taxes under certain, essentially plausible conditions. James E. Anderson , Chapter 5: The Theory of Protection, in: David Greenaway/L. Alan Winters (eds.), Surveys i n International Trade, 1994, 107. 17 Such rules include a general ban on quantitative restrictions except under exceptional circumstances (Article X I of G A T T 1994), strict definitions of the customs value on which tariffs are charged (Article V I I and Agreement on the Implementation of Article V E of G A T T 1994), upper limits on other charges such as customs user fees (Article VIH), currency convertibility for current transactions (Article XV) and the provision that domestic taxes must be neutral as to the origin of the goods taxed (Article ID).

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Matthias Lücke 1. Necessary Adjustments to Policies related to Trade in Goods

Trade policies in Russia, Ukraine and Belarus have evolved rapidly since 1992. Government intervention in foreign trade, which was pervasive initially, particularly in trade among the CIS countries, has been reduced significantly. Many newly developed policy instruments were designed from the beginning to comply w i t h G A T T / W T O standards. This section describes the status of the more important policy instruments in the second half of 1996 and discusses the extent of necessary adaptation to W T O rules, if any. Due to frequent policy changes, the emphasis w i l l be less on institutional detail than on the broad issues. This task is facilitated by the fact that current trade-related policies in the three countries are still essentially similar. This is not unexpected in the case of Russia and Belarus because Belarus has explicitly pursued a policy of adapting its trade-related policies to those of Russia as part of a bilateral regional integration scheme (see Part HI section 2). However, even in Ukraine, which has proceeded rather cautiously in the area of regional integration and policy harmonization with Russia, the issues raised by W T O accession are essentially similar. Import tariffs that are substantially differentiated by product are probably the most important trade policy instrument in the three countries. Import-weighted average tariffs are in the order of 15 percent. 18 Most tariffs are ad valorem rates in the range from 0 to 50 percent for imports from countries with most-favored-nation (MFN) status. Higher rates, sometimes in the order of several hundred percent, are applied to a few luxury goods such as vodka. Russia and Belarus also use specific and combined tariffs, for example on used cars for which customs value (on which an ad valorem tariff would be calculated) would be difficult to establish. Apart from the M F N import tariff rates, Russia and Belarus have preferential rates for developing countries at half the M F N level and zero tariffs for least developed countries. 19 Special tariffs at twice the M F N rates are applied to imports from a very few countries w i t h which an M F N agreement does not exist, and to imports whose country of origin cannot be established.20 Broadly similar rules are applied in Ukraine; how-

18 This figure is based on various unpublished documents. A more detailed analysis of the import tariff structure of Belarus (and, therefore, Russia; see Part I E section 2) i n mid-1994 is found in Matthias Lücke , The Impact of Accession to G A T T on the Trade-Related Policies of CIS Countries: The Case of Belarus, Journal of World Trade, vol. 29, 1995, 165. Where similar calculations are available for unweighted averages at tariff-line level, these do not diverge substantially from the import-weighted averages. This is because few tariffs are so high as to seriously reduce imports. 19

Special and differential treatment for developing countries is covered by the enabling clause agreed to in the Tokyo Round. General Agreement on Tariffs and Trade (GATT), Analytical Index: Guide to G A T T Law and Practice, 1994, 53 et seq. 20

For some time, the Federal Republic of Yugoslavia (i.e. Serbia and Montenegro) and

Accession of the CIS Countries to the World Trade Organization143 ever, the number of countries benefitting from M F N treatment is smaller, and tariff preferences for developing countries extend only to agricultural products. 21 In addition, free-trade agreements that provide for tariff exemptions exist between most CIS States (see section 4). In the area of trade remedies, the laws on the customs tariff in all three countries provide in general terms for safeguard measures, antidumping and countervailing duties. However, no specific procedures for the imposition of such measures have been laid down, and no such measure has been applied so far. It can be expected that detailed regulations, if and when they are written, will be designed to comply w i t h W T O rules (especially the Agreement on Implementation of Article V I of G A T T 1994 (antidumping), the Agreement on Subsidies and Countervailing Measures and the Agreement on Safeguards). In the area of non-tariff import barriers, practically all explicit quantitative restrictions have been abolished. Import license requirements exist mainly for a few potentially hazardous chemical products, and import bans are in force for hazardous wastes that cannot be adequately processed. Some administrative charges such as transit and customs user fees are presently calculated in a way (with a strong ad valorem element) that does not ensure correspondence between the services rendered by customs authorities and the amount of the fee. Further technical adjustments may be required to ensure compliance w i t h the remaining Uruguay Round agreements on trade in goods, especially the Agreement on the Application of Sanitary and Phytosanitary Measures, the Agreement on Technical Barriers to Trade and the Agreement on Implementation of Article V I I of G A T T 1994 (customs valuation). Here again, new legislation has typically been designed right from the start to comply with W T O rules, and any necessary adjustments should not constitute a major stumbling block. The application of indirect taxes to foreign trade differs between trade with CIS countries and trade with the rest of the world. The indirect taxes concerned are the value-added tax (VAT) on most goods (roughly in the order of 25 percent w i t h reduced rates for some product groups) and additional excise taxes on a more limited number of products. As a general rule, the country-of-origin principle is applied in trade with CIS countries, i.e. exports to CIS countries are taxed at the domestic rate but imports from CIS countries are not. 2 2 The country-of-destination principle is used in trade with the rest of the world, i.e. exports are exempt from taxes but imports are taxed at the domestic rate. A t first sight, to maintain indirect taxes on imports only from some countries may appear to contravene the M F N principle (Article I of G A T T 1994). However, current practice can probably be justified on the Estonia were the most important cases. 21 22

Clement/Knogler/

Sekarev, Working Paper no. 174 (note 11), 40.

Ukraine appears to be an exception in that it applies the country-of-destination principle to indirect taxes on all trade.

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grounds that tax-exempt imports are already subject to indirect taxes when exported by the partner CIS country, and that the application of the country-of-origin principle to indirect taxes in intra-CIS trade is a consequence of regional integration in general, and of the abolition of border controls, as between Russia and Belarus, in particular. In some cases it has proved difficult to understand on exactly what base V A T on imported products is calculated. However, such lack of transparency appears to be largely a technical issue as present procedures do not appear to violate the national treatment rule of Article 111(2) of G A T T 1994. This provision is usually interpreted in the sense that the tax burden must be the same for domestic products on the one hand and imported products after importation on the other. This is taken to imply that ad valorem taxes such as V A T may be calculated on the customs value of imported products plus customs duty (as currently done in the CIS countries), although V A T is then paid on the amount of the import tariff and protection of the domestic product is higher than the nominal import tariff rate suggests.23 Export taxes exist mainly as specific duties on some raw materials and resourceintensive products. They are intended to ensure that there is a sufficient supply of goods to the domestic market when domestic prices are regulated and below the world market level. The size of export taxes depends on the resource rent that the State is attempting to capture. Some of the highest rates are for mineral oil products w i t h ad valorem equivalents of more than 30 percent. In economic terms, export taxes could be construed to constitute an implicit subsidy to domestic downstream industries whose input prices are reduced below the world market level. However, the definition of subsidies contained in Article 1 of the Agreement on Subsidies and Countervailing Measures does not cover export taxes, and consequently they should not raise any problems in W T O accession. Initially, many export taxes were supplemented by export quotas to ensure that domestic supply objectives were met. Over time, however, export quotas have largely been abolished. The remaining export license requirements are motivated by the protection of scarce natural resources such as wild plants with medicinal uses. In addition to these controls, there are export quota regimes to ensure the fulfillment of obligations resulting from international agreements, especially bilateral agreements on textiles and clothing in the framework of the MF A. Export subsidies exist at least in Belarus where the profit tax on profits from exports in convertible currency is halved and for extended periods V A T was cancelled on certain exports to Russia.24 Such measures may be justified economically by the

23 24

G A T T Analytical Index (note 19), 140 -141.

As indirect taxation follows the country-of-origin principle in trade w i t h the CIS countries, exports from Belarus to Russia would normally be subject to V A T .

Accession of the CIS Countries to the World Trade Organization high cost incurred and social benefits created by enterprises entering non-traditional markets (see Part I). However, under Article 29 of the Agreement on Subsidies and Countervailing Measures (SCM), export subsidies in transition economies are only allowed for a seven-year period after the SCM Agreement has entered into force; national schedules for phasing out the existing subsidy schemes w i l l probably become part of the protocols of accession of the CIS countries. 25 After the abolition of most export quotas and the associated license requirements, Russia and Ukraine sought to maintain a limited measure of governmental control over raw material exports in order to prevent tax evasion and dumping. In Russia, certain commodities can only be exported by specially licensed enterprises that are subject to special scrutiny to ensure payment of export taxes. Since several hundred enterprises of this kind exist, this rule should not represent a hurdle to exports. Ukraine, since abolishing most export quotas in 1995, has established a system of indicative prices that are effectively minimum prices to be observed by exporters. 26 Such measures reflect the fact that during a transition period not all domestic prices are permitted to adjust to world market levels and soft budget constraints persist in the form of access to underpriced raw materials. It is clear, however, that such measures would not be compatible with W T O rules if maintained on a permanent basis. Turning now from the trade regime to the exchange rate regime, all three countries have generally moved towards the establishment of de facto current account convertibility since 1992. This is a crucial success because a multiple exchange rate regime, for example an official, overvalued rate along with a black market rate, creates disincentives for exporting and leads to administrative interference in imports when foreign exchange is allocated to importers at the official rate. One exception to this favorable trend is Belarus, where an overvalued official exchange rate has been propped up (with varying intensity) by arbitrary administrative controls on imports since 1995. In the medium to long run, accession to the W T O will require the CIS countries to commit themselves to maintaining full current account convertibility as under Article V I I I of the Statutes of the International Monetary Fund. The binding and reduction of domestic agricultural subsidies in line w i t h the Agreement on Agriculture will be difficult to implement. The base level from which subsidies are to be reduced relates to the years 1986 through 1988 (Annex 3 of the Agreement on Agriculture). This is infeasible in the CIS countries because in the

25

The CIS countries w i l l therefore find it difficult to employ export subsidies for industrial policy objectives although such a strategy was pursued (with ultimate success) by the newly industrializing countries in Asia in the 1960s and 1970s. Even production subsidies may render CIS exports subject to countervailing duties unless subsidies are strictly focused on enterprise research and development and regional development or avoid any semblance of sectorial targeting (i.e. subsidies would have to be non-specific; see Article 8 of SCM Agreement). 26

It is unclear how exactly indicative prices are enforced (if at all).

10 G Y I L 39

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former Soviet Union agriculture was subsidized in ways that are not covered adequately by the Aggregate Measurement of Support as defined in the Agreement on Agriculture. O n the other hand, the conceivable alternative of using the present subsidy level as a base does not appear feasible either. The value of subsidies such as directed credit is intrinsically difficult to calculate and probably fluctuated substantially over the last few years. Nevertheless, it was probably low compared w i t h many O E C D countries, and the CIS countries could therefore legitimately expect to be permitted to increase their agricultural subsidies temporarily to a somewhat higher level, for example to ease the systemic transformation in agriculture. Recent demands by major incumbent W T O members that acceding countries bind very low levels of domestic support as well as zero export subsidies appear very stringent against the background of actual OECD country policies. Overall then, while many technical adjustments will be required, there are few areas in which the trade regimes of the three selected CIS countries are substantially in conflict w i t h W T O rules. Some flexibility will be required from incumbent W T O members in applying W T O rules whose exact phrasing is inappropriate for the CIS countries. 2. Strategies for Binding Levels of Protection While technical adjustments to the trade regime for goods are extensive but not especially far-reaching, the CIS countries face a more fundamental problem as they start negotiations on their tariff schedules and other concessions. Binding levels of protection for individual economic activities presupposes a strategic decision as to the underlying objectives of trade policy. Possible choices include the maximization of fiscal revenue, which would call for a substantial, but not excessive average tariff level w i t h limited sectorial or regional differentiation; an explicit industrial policy, which would imply a strongly differentiated import tariff, but not necessarily a high average level; or regional integration, which would call for a substantial tariff on extra-regional trade while intra-regional trade should ideally be free from restrictions. 27 As these options are to some extent exclusive, a strategic decision must precede detailed negotiations on concessions with incumbent W T O members. So far, none of the three selected CIS countries has taken an explicit or implicit decision in this respect. As described in Part I I section 1, all three countries have high import tariffs on certain luxury consumption goods such as spirits, which suggests a fiscal motivation. Russia also has high import tariffs on passenger cars, while Belarus has failed to apply these fully in spite of the existing customs union. This 27 Langhammer discusses possible trade policy strategies for the CIS countries i n greater detail. Rolf J. Langhammer , Designing New Trade Policies for the CIS States: Legacies, Barriers and Prerequisites, Kiel Institut für Weltwirtschaft Working Paper no. 625, 1994.

Accession of the CIS Countries to the World Trade Organization147 suggests that the protectionist demands of individual interest groups are gaining in practical importance (the automobile industry is a major employer in Russia but does not exist in Belarus).28 This may be partially due to the fact that the CIS country currencies have steadily appreciated in real terms over the last few years, and imports have therefore become more competitive compared with domestically produced goods. A t the same time, export restrictions have been used to maintain energy prices below the world market price level, which represents an important subsidy to domestic households and enterprises. However, an analysis of the full range of protective measures does not reveal an explicit industrial policy that discriminates clearly between branches of industry; much less are there time limits on the protection currently granted. If the Southeast Asian approach to industrial policy through trade protection were followed (this is sometimes proposed in the policy debates in the CIS countries), time limits on protection would be one of its constituent elements. 29 Given this uncertainty about strategic policy objectives, the CIS countries may seek to follow the example of many developing countries as well as Slovenia in binding import tariffs at higher levels than are presently in force. This would leave room for increases in tariffs at a later stage if considered necessary as part of an industrial or fiscal policy still to be defined. A t the same time, the CIS countries would not feel compelled to raise actual tariffs before entering the W T O in order to have more freedom later in choosing their sectorial structures of protection. In the present situation, the attraction of tariff protection over subsidies is that it causes the cost of protection to be borne by consumers rather than by the government budget. 30 Given the serious budgetary situation in the CIS countries, this traditional secondbest argument for industrial policy through the trade regime may be too strong for the CIS countries to forego its use once and for all by binding protection at a low level. The CIS countries would gain some flexibility with respect to the future conduct of their trade-related policies if they could enter the W T O as developing countries. 31 28

Langhammer suggests that, in general, large countries tend to be more inclined towards protectionism because the cost to consumers relative to the benefit to producers tends to be lower. Rolf f. Langhammer , Endogenous Tariffs and Economic Transformation, Intereconomics, vol. 30, no. 2, March/April 1995, 77. 29 Dani Rodrik , Getting Interventions Right: H o w South Korea and Taiwan Grew Rich, Economic Policy, no. 20, A p r i l 1995, 53. 30 The impact of protection on exporters may be alleviated through import duty drawback schemes such as are operational in some CIS countries (under such schemes, an import duty is not charged on inputs to goods that are later exported). However, such schemes normally extend to import duties only on intermediate inputs and fail to cover investment goods. 31

A more exhaustive list of possible advantages of acceding to the W T O as a developing country is provided by Yang from the point of view of China, but these considerations apply

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For example, under Article X V I I I of G A T T 1994, developing countries may withdraw previous concessions if there is no alternative way of implementing policies promoting economic development.32 Transition periods for the implementation of the SCM Agreement are more generous for less advanced developing countries than even for transition economies. It might well be argued that living standards in the CIS countries are broadly similar to many less advanced (low-income and lowermiddle-income) developing countries; 33 that the industrial restructuring and financing of supporting policies required in the CIS countries present problems that are structurally similar to those faced by many developing countries in their industrialization process; and that the CIS countries already benefit from tariff reductions in most OECD countries under the General System of Preferences (GSP) as developing countries do. However, major incumbent W T O members have so far resisted even China's acceding to the W T O as a developing country. 34 As China's per capita GNP is still below that of Russia and Belarus and its industrialization has progressed rather less far, the more advanced CIS countries will probably face even stronger resistance if they aim to accede to the W T O as developing countries. Therefore, if they are to remain capable of using tariffs as instruments of industrial policy, the CIS countries w i l l have to bind tariffs at sufficiently high levels to have room for adjustments. 3. Trade in Services The approach of the General Agreement on Trade in Services (GATS) to the liberalization of trade in services differs somewhat from that of G A T T 1994 in trade in goods. Market access, which is automatic in the case of trade in goods, is based on specific commitments of each W T O member country for each service sector. Beequally to the CIS countries. Yongzheng Yang , China's W T O Membership: What's at Stake?, World Economy, vol. 19, no. 6, November 1996, 661. 32

Sections A through C of Article X V I I I contain provisions for those developing countries whose economies "can only support low standards of living and (are) in the early stages of development" (para. 4(a)), while section D makes less liberal provisions for the remaining developing countries. 33

Russia, Ukraine and Belarus are all classified by the World Bank as lower-middle-income countries on the basis of their per capita nominal GNP. Compared w i t h the United States on a purchasing-power-parity basis (which is more relevant than nominal G N P for standard of living comparisons), their per capita GNP stood at 18 percent, 10 percent and 17 percent of the United States level in 1994. The corresponding values for other CIS lower-middle-income economies are 11 percent for Kazakhstan and 9 percent for Uzbekistan. Low-income economies among the CIS countries include Armenia (8 percent), Kyrgyzstan (7 percent), Azerbaijan (6 percent) and Tadzhikistan (4 percent). World Bank, World Development Report, 1996, Table 1. 34

Yang (note 31).

Accession of the CIS Countries to the World Trade Organization149 yond this, there are general rules on the conduct of national policies on services trade, for example the M F N principle, a ban on quantitative limits on the number of service providers and transparency requirements. However, members may register far-reaching exceptions even to such fundamental principles as M F N treatment. 35 Most problems facing CIS countries in conforming to the rules relate to the rather underdeveloped state of their regulations in most service sectors. There are currently few explicit policies on privatization and foreign participation in the main sectors of interest, i.e. telecommunications and financial services. Since GATS provisions are not very tight, it should not be difficult for the CIS countries to conform to these rules. However, clarifications will be required on many legal issues that for good reasons have so far not been at the center of attention of CIS country legislatures. It remains to be seen how far incumbent W T O members will attempt to push acceding CIS countries to accept liberalization commitments in the more important service sectors such as telecommunications, financial and professional services and maritime transport. Exchange regulations should not pose major problems either. For foreigners to establish a commercial presence in the CIS countries, capital imports must be permitted. While there are some restrictions on capital exports, there are none on imports. Also, the importation of services through consumption abroad is hindered when there are limits on the amount of foreign currency that may be transferred abroad for certain purposes. Except in Belarus, where the state of the foreign currency market was not very transparent throughout 1996 (see Part I I section 1), there are now few currency restrictions that would impede imports of services through consumption abroad. 4. Other WTO Issues The Agreement on Trade-Related Intellectual Property Rights (TRIPS) obliges members to protect the various intellectual property rights broadly as defined by the appropriate international conventions, adding provisions especially on enforcement. Most relevant legislation on intellectual property rights in the CIS countries has been written only since 1991, because intellectual property rights in the international sense of the term did not exist under Soviet law. Since all new laws have been drawn up in close cooperation with the secretariats of the international conventions, there are few problems with the conformity of legal texts to the TRIPS Agreement. Shortcomings exist, however, in the actual application and enforcement of these rules because the legal systems as a whole have not yet been fully transformed. Spe-

35

Paul Luyten, Introduction to the World Trade Organisation (WTO), Centre for European Policy Studies (Brussels) mimeo, 1996.

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cifically, national legislation in the CIS countries does not yet implement fully the border enforcement provisions of the TRIPS Agreement (Articles 51 et seq.). Some incumbent W T O members have expressed a strong interest in the CIS countries joining the (plurilateral) Agreement on Government Procurement. The CIS countries have generally taken the view that since they would not be obliged to join under present rules, this technically complex issue should not have particularly high priority in the negotiations. It might be worthwhile to explore whether some fears on the part of incumbent W T O members regarding persistent State influence in the CIS economies (see Part IV) could be allayed if the economic behavior of CIS governments themselves were subjected to the disciplines of the Agreement on Government Procurement. A t the W T O Ministerial Conference in Singapore in December 1996, discussions were initiated or continued on a variety of issues that some W T O members want to bring within the scope of the W T O . These include environmental and labor standards, rules for the treatment of foreign direct investment and international competition policy. Some of these debates may affect the CIS countries considerably; for example, CIS exports of intermediate goods with high pollution intensity (steel, nonferrous metals) to OECD countries have increased in recent years, and may face new barriers if the use of trade policy instruments for environmental objectives is accepted. While the CIS countries are therefore well advised to participate actively in these debates as far as their observer status with the W T O allows, it is too early to predict the outcome of the discussions or the possible implications for the CIS countries. I I I . Implications of W T O Accession for Regional Integration among the CIS Countries The foundation of the Commonwealth of Independent States after the dissolution of the former Soviet Union in 1991 aimed at creating an institutional framework for economic relations among the CIS countries that could replace the former central planning system. However, the diverging interests of net energy exporters and importers, the absence of a functioning monetary system, the changing role of the State in the CIS economies and political concerns about dominance by Russia all prevented the emergence of functioning regional institutions and even of effective regional cooperation. As the CIS countries are now preparing to join the W T O , it is appropriate to ask what economic incentives remain for regional integration (section 1), what institutional implications are involved (section 2) and how the choices are affected by prospective W T O membership (section 3).

Accession of the CIS Countries to the World Trade Organization151 1. Political Economy of Regional Integration among the CIS Countries Several years into the systemic transformation in the CIS countries, intra-regional trade still accounts for a large proportion of total trade in nearly all CIS countries except Russia. This share will probably decline only in the medium to long run if further dismantling of barriers to East-West trade and continuing systemic transformation encourage trade especially with Western Europe (see Part I). Against this background, a regional integration scheme among the CIS countries offers benefits potentially in three areas. The first applies broadly to all CIS countries while the others are more important for the smaller countries than for Russia. First, all CIS countries are interested in preventing further disruption in their traditional trade relationships through new trade barriers. A regional free trade area or even closer integration in a customs union would provide some insurance against sudden changes in national trade policies that have frequently occurred during the last few years and that have caused significant adjustment costs to firms. In this sense, a regional integration scheme would promote the openness of national markets, help to maintain a competitive environment and prevent the emergence of local monopolies. 36 This would apply especially if not only trade in goods but also trade in services and the capital and labor markets were integrated. A second motivation for pursuing regional integration is particularly important from the point of view of net energy importers in the CIS. Russian export prices for energy materials, particularly natural gas, have increased much faster than Russian domestic prices. This has not only led to balance-of-payments problems for net importing countries, but has also distorted the markets for energy-intensive products by implicitly subsidizing Russian producers. The abolition of restrictions on intraCIS trade, especially the elimination of Russian export taxes on energy materials, should equalize prices across the CIS countries. If there is price discrimination by the Russian distributor independent of any Russian export barriers, then regional integration, especially if it went as far as the economic union planned between Russia and Belarus, could be used to bring political pressure to bear on the Russian distributor for equal treatment with Russian consumers. A third possible motivation for regional integration lies in the enlarged protected market that would be created for industries in the region. A n industrial policy through trade protection would be infeasible for the smaller CIS countries because of the small size of their domestic markets; it may be feasible, however, at the regional level. This raises the question of whether regional integration should be pursued through a free trade area, in which each member may freely determine its trade policy in relation to extra-regional trade, or through a customs union with a uni36

Robert C. Hine , Chapter 9: International Economic Integration, in: Greenaway/Winters (note 16), 234.

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form external trade regime. In a free trade area, the protection that an industry enjoys in a partner country against extra-regional imports is determined by the protection granted by that partner country. If substantial protection were to be given to specific industries throughout the region, a customs union with a common external trade policy would be required. A t the same time, a customs union aiming at regional import substitution would oblige each member to impose higher prices for protected products on its consumers even in those industries that do not exist domestically; this might be politically infeasible, for example, in a large country if the benefits accrue mainly to small partner countries. 37 2. Existing Agreements Out of a variety of motives, including those discussed in the preceding section, several multilateral agreements on regional economic integration have been discussed and signed within the institutional framework of the CIS. The more important include the Economic Union Treaty of 24 September 1993, which envisions the creation of a common economic space with free movement of goods, services, capital and labor through a multistage process starting with a multilateral free trade zone and culminating in monetary union. A first step in this direction was undertaken by an agreement, signed 15 April 1994, that establishes a timetable for the creation of a multilateral free trade area with a common list of goods exempted from preferential treatment during a transition period. However, these as well as some similar agreements have not been implemented, mainly due to the diversity of interests among the CIS countries. Cooperation within the framework of the CIS affects not only economic but also political and military relations. Smaller, independent-minded countries have tended to resist what was perceived as Russian attempts to use intra-CIS cooperation to bring them into a Russian sphere of influence. Such reservations were reinforced, for example, by Russian proposals for a joint military defense of the external borders of the CIS countries and for harmonized economic policies that would inevitably be dominated by Russian interests. O n the other hand, it is difficult to see how Russian 37 Furthermore, skepticism is warranted w i t h respect to the use of trade protection for industrial policy in the CIS countries in general. First, it is not clear how sectors should be selected for support. Measuring the external effects produced by sectors, and weighing them against the cost of protection, is intrinsically difficult in stable economic conditions and even more so in rapidly transforming economies. Second, by offering protection the government would become a target for the lobbying efforts of interest groups, and it is likely that political rather than economic criteria would ultimately dominate decision-making on industrial policy. The inability of many O E C D countries to phase out protection for largely moribund sectors such as coal, basic steel, traditional textiles and many branches of agriculture provides a vivid illustration of the potential strength of lobbying by sectorial interests.

Accession of the CIS Countries to the World Trade Organization153 interests could not play a large role in any regional integration scheme among the CIS countries because of Russia's sheer economic size. Because of the absence of a functioning multilateral framework, economic relations among the CIS countries have in fact been regulated mostly by bilateral agreements. In particular, there is an extensive network of bilateral free trade agreements that typically provide for free trade between the two countries concerned and often include a list of products exempted from the free trade regime. Such exemptions normally relate to commodities that are subject to export taxes in order to ensure a sufficient supply in the domestic market in the presence of regulated (maximum) prices. U n t i l recently, the bilateral free trade agreements were complemented by intergovernmental agreements that established quotas on deliveries of certain strategic commodities that were expected to be compatible with a bilateral balance-of-trade equilibrium. During the early years after the dissolution of the former Soviet Union, both quantities and prices were set at least for the core commodities and deliveries were guaranteed by governments, often through State orders to enterprises or through procurement procedures. Deliveries of other commodities were subject to contracts between enterprises, but export licenses would automatically be issued in fulfillment of the agreed quotas. Over time, the intergovernmental agreements became less binding; fulfillment ratios were erratic and, on average, low. 3 8 Many CIS governments were either unable or unwilling to enforce State contracts or, as in the case of Russia, abolished the system of State orders as part of systemic reform. It appears that for the 1995 and 1996 agreements concluded by Russia and Belarus w i t h various CIS countries, prices were negotiated by the enterprises concerned, and the enterprises were under no pressure to deliver goods within the framework of the agreements; nor did they receive special privileges in return for their participation. The main function of the remaining agreements seems to be to exempt a limited amount of the intra-CIS trade from export taxes and, where required, from import duties. Beyond bilateral free trade agreements, some clusters of CIS countries have sought to move towards 'plurilateral' regional cooperation. These include the Central Asian countries and countries bordering on the Black Sea. Other CIS countries, especially Russia and Belarus, are in the process of developing more advanced frameworks for regional integration. The Spring 1994 treaty on Economic and Monetary Union between Russia and Belarus provides for a multistage approach to regional integration. The first step, which more or less reflected the status quo, consisted of a free trade area in which no taxes of any kind were levied on bilateral trade. The second step consisted of a de facto customs union that was created by Belarus's effec38

Lücke (note 18) surveys the agreements concluded by Belarus in 1994 and 1995 i n some detail.

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tively copying all Russian foreign trade regulations. As a result, the customs border between the two countries was abolished in 1995, which has probably led to a significant reduction in trade costs. Since then, Kazakhstan and Kyrgyzstan have stated their intention to join the Russia-Belarus customs union. However, the present arrangements between Russia and Belarus raise several questions as to their sustainability. First, there is no formal division of tariff revenues. In practice, when goods are brought into Belarus, customs declarations must indicate their final destination (Belarus or transit to Russia); tariff revenue is then allocated accordingly. This system is presently undermined by extensive tariff exemptions granted independently by each side to supposedly charitable organizations that import large amounts of spirits, among other things, duty-free and resell them throughout Russia and Belarus. Second, there are no joint institutions and each country formally retains its sovereignty over the trade regime. This has been feasible so far because Russian import tariffs, which Belarus copied, tended to be low and conflicts of interest did not arise. In the medium term, however, industrial interests will probably gain greater influence over Russian trade policy. Since the pattern of specialization of Belarusian industry is highly selective, the industrial policy priorities of Belarus w i l l probably differ from those of Russia and will therefore be impossible to pursue through a common external trade policy. 39 Third, Belarus had hoped to have its import prices for energy reduced to the lower level in the Russian domestic market. It is difficult to understand why energy prices are still higher in Belarus than in Russia. While transport costs may play a limited role, a more likely explanation is monopolistic practices by Gazprom and other Russian State enterprises, or continuing price controls in Russia that are not applied to inter-State trade. It remains to be seen whether the Russian government is really willing to extend the benefit of heavily subsidized energy prices to Belarus, and whether it is in a position to put sufficient pressure on energy exporters if required. 3. WTO Implications As regards the substantive provisions for regional integration schemes, Article X X I V of G A T T 1994 states that, after a transition period, substantially all trade originating in the member countries must be free from tariffs and other trade barriers. Judging from current intentions as well as current practice, this condition could probably be fulfilled by the existing or planned bilateral or multilateral integration schemes. The use of export taxes to protect domestic consumers of a limited number of commodities probably could be justified if there were a timetable for their gradual reduction and eventual abolition. CIS countries should therefore ex39

Belarus already applies lower tariffs on imported passenger cars than Russia does, on account of the fact that there is no car industry in Belarus while there is one i n Russia.

Accession of the CIS Countries to the World Trade Organization155 perience few substantial problems in adjusting existing or planned customs unions or free trade areas to W T O rules upon accession. However, the present, less-than-transparent state of regional integration among CIS countries with a mixture of multilateral, plurilateral and bilateral agreements raises two procedural issues. First, Article X X I V para. 5 of G A T T 1994 states that customs unions or free trade areas may be created that comprise the territories of W T O members. This provision may present a problem if not all CIS countries join the W T O at the same time, as seems likely, and there exist integration schemes simultaneously involving members and non-members. However, although the wording of Article X X I V para. 5 is straightforward, it appears that regional integration schemes involving both G A T T 1947 contracting parties and non-contracting parties have been approved under this provision rather than under the more appropriate Article X X I V para. 10, which requires approval by a two-thirds majority (of G A T T 1947 contracting parties or W T O members 40). As W T O accession requires approval of the terms of accession by a two-thirds majority of W T O members in any case (Article X H of the W T O Agreement), the difference between paras. 5 and 10 of Article X X I V of G A T T 1994 is of little practical consequence for acceding CIS countries. A second procedural issue is raised by the de facto customs union between Russia and Belarus, which may be joined by Kazakhstan and Kyrgyzstan. Under the terms of Article X I I of the W T O Agreement, countries may accede to the W T O only if they possess full autonomy in the conduct of their external commercial relations as well as other policies affected by the multilateral agreements. Formally so far, Belarus has copied the Russian trade regime without giving up its sovereignty over traderelated policies. Even if a similar arrangement were chosen by the new members of the customs union, close cooperation in accession negotiations on all matters covered by the de facto customs union would be desirable. For example, it would make little sense for the smaller countries to negotiate their import tariff schedules independently of Russia. If a full-fledged customs union with joint institutions is eventually implemented, these joint institutions should lead negotiations on those policy areas for which they are responsible, with national governments coming in for all areas not covered by the customs union agreement. In sum, the present strategy of each CIS country negotiating individually on W T O accession needs to be supplemented, at least, by close cooperation with respect to those policy areas that are covered by regional integration agreements. Many bilateral and multilateral agreements among the CIS countries go beyond trade in goods and provide for some regional integration in trade in services. This does not appear to raise substantial difficulties under W T O rules. Article V of the GATS Agreement aims at permitting regional integration agreements only w i t h 40

G A T T Analytical Index (note 19), 742 - 743, 770 - 771.

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substantial sectorial coverage in terms of the numbers of sectors, volume of trade affected and modes of supply. 41 However, these provisions appear rather weak and probably would be met in a reasonable fashion by existing or future agreements among the CIS countries, judging from current intentions. I V . Implications of W T O Accession for the Role of the State in the Economy The W T O agreements implicitly assume that contracting parties have market economies in which State involvement is ideally limited to the production of public goods and corrective action for market failures. This assumption is clearly not satisfied in the CIS countries, in which systemic transformation is far from complete. O n the other hand, systemic transformation, integration into the international division of labor and integration into the multilateral trading system are closely intertwined. Therefore, it would be a major setback for the CIS countries if their accession to the W T O were to be postponed until systemic transformation is more or less complete. This Part begins by surveying the possible concerns of trading partners, referring back to the position of centrally planned economies under G A T T 1947. Subsequently, progress in reducing the economic role of the State in the CIS countries is discussed and implications for W T O accession during the transition period are derived. Direct State involvement in the production or distribution of tradeable goods, which exists widely even in established market economies, is dealt w i t h in Article X V I I of G A T T 1994, which defines State trading enterprises by the existence of exclusive or special rights or privileges rather than by ownership. It also states that the activities of State trading enterprises may create obstacles to the expansion of trade, and that such obstacles should be removed through negotiations on the basis of reciprocity and in a mutually beneficial manner. Because of concerns about pervasive State trading, centrally planned economies acceding to G A T T 1947 were required to accept special commitments on increasing their imports from G A T T contracting parties (for example, Poland and Rumania in the 1960s and 1970s42). A t the same time, the exports of G A T T 1947 members with centrally planned economies were subject to the imposition of antidumping duties under less restrictive conditions than those applicable to exports from market economies. A large economic role of the State may undermine the rights of trading partners in several ways, and verification of violations may be difficult. O n the import side, State-dominated enterprises may discriminate among sources of supply on other than commercial grounds and may thereby undermine the most-favored-nation 41

See note 1.

42

Schultz (note 3).

Accession of the CIS Countries to the World Trade Organization15 7 principle (Article I of G A T T 1994). Further, they may apply (prohibited) quantitative import restrictions (Article XI), or introduce markups that exceed the level at which the country in question has formally bound its import tariffs. O n the export side, there is a suspicion that countries in which the State plays a large role in the economy have a greater tendency than market economies to subsidize industries in non-transparent ways. Thus the focus is on the possible granting of prohibited or actionable subsidies in connection with State trading. 43 As it is the stated intention of the transition countries, including the CIS countries, to transform their economies into market systems, special rules such as those for centrally planned economies are no longer appropriate to ensure implementation of trade concessions. Further progress in privatization and stricter enforcement of market principles in all transactions (culminating in the implementation of bankruptcy procedures for economically unviable enterprises) should go a long way towards ensuring that CIS country enterprises choose among suppliers on none but commercial grounds. As regards CIS exports, the G A T T 1947 rules on subsidies have been tightened considerably in the Agreement on Subsidies and Countervailing Measures, and have been made compulsory for all W T O members. Acceptance of these rules by the transition economies should reduce distortionary intervention by the State and subsidization of production and exports along w i t h the resulting incentives for dumping on the part of enterprises. A t present, however, the existing State involvement in the CIS economies cannot be justified fully as production of public goods or corrective action for market failure. While progress in reducing the economic role of the State has been achieved in some CIS countries and in certain policy areas, stagnation (or worse) is found elsewhere. Furthermore, the economic impact of government involvement is not fully accounted for by a list of institutional arrangements and direct or indirect subsidies that do not comply with market economy principles. Rather, many subsidies are granted in a way that results in the absence of financial discipline or 'soft budget constraints' (Kornai) on the part of enterprises. Government interference and subsidies thus lead not only to a different incentive structure for production and consumption but also to a mode of enterprise behavior that is incompatible with market economy principles. Soft budget constraints were a pervasive feature of the centrally planned economy. They arise when the costs incurred by an enterprise may exceed its revenue even in the medium to long run without the enterprise being forced to improve its performance or go out of business. Managerial decisions in such enterprises are unlikely to be determined solely by market incentives, and W T O rules may not achieve their purposes in this context. Crucially, in the case of soft budget con43

See for a detailed discussion Patrick Low , Issues Relating to State Trading (mimeo), Geneva 1994.

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straints, the amount of State support for a given enterprise is not fixed a priori or subject to pre-existing rules, but is fixed ex post depending on the loss that would otherwise be incurred by the enterprise. For example, arrears on tax liabilities to the State may be allowed to accumulate, directed credit may be provided by the central bank on an ad hoc basis as the financial position of enterprises in a particular sector deteriorates or direct subsidies may be granted in highly discretionary ways to pay for past losses. The persistence of soft budget constraints in the CIS countries is epitomized by the fact that so far very few enterprises (if any) have been allowed to go bankrupt. 44 The 'hardening' of budget constraints will require continuing reforms in economic institutions as well as increasing transparency of and reductions in direct and indirect subsidies. Foremost in institutional reforms is privatization. Here, progress has varied widely across the CIS countries and, within countries, across economic sectors. Retail trade enterprises and small and medium-sized enterprises were typically among the first to be privatized. In Russia, considerable progress has also been made w i t h the conversion of large-scale enterprises into joint-stock companies and the transfer of shares to management, employees and the general population through the voucher privatization scheme. By contrast, privatization in Belarus has hardly begun and is currently stuck as very few enterprises have been offered for sale and private sector development is generally discouraged through intensified State controls on private enterprises. Although the W T O agreements do not prescribe any particular ownership pattern for enterprises, the incumbent W T O members can be expected to scrutinize progress in privatization as a primary indicator of progress in the transformation of economic institutions generally. Apart from issues of ownership and corporate governance, State involvement in the CIS economies also takes the form of direct administrative measures. Initially, after the disintegration of the central planning system, a wide variety of administrative controls were introduced at the national, regional and local levels in an attempt to ensure a sufficient supply of essential consumer goods and intermediate products, to hold down retail and wholesale prices and to protect local producers. Minimum and maximum prices, upper limits on profit margins, regional export quotas and buy-local requirements are illustrative examples. By the end of 1996, most administrative controls in Russia, at least, appear to have been formally abolished. Nevertheless, there remains a lack of transparency as to the effective determinants of, for example, relative prices of imported versus domestically produced goods at the retail level.

44 Strategies for economic transformation in the presence of soft budget constraints are discussed by Matthias Lücke , Policy Options for Economic Transformation in the Republic of Belarus, MOST, no. 3, 1993 (November), 53.

Accession of the CIS Countries to the World Trade Organization159 One area in which considerable progress has been made in all CIS countries is the reduction of State orders to enterprises. CIS governments had used these to ensure a sufficient supply of goods to local distribution systems and to fulfill obligations incurred through bilateral trade agreements with other CIS countries. 45 In some countries, State trading enterprises still account for a significant share of certain raw material exports to non-CIS countries. These are frequently natural resources for which supply is concentrated in a limited number of deposits and traditional marketing channels continue to function. A special license is sometimes required for exporting particular commodities, for example for energy materials in Russia (see Part I I section 1). It seems safe to state that such controls typically aim at alleviating principal-agent type problems faced by the State as creditor of tax liabilities and owner of natural resource rents 46 rather than at permitting governments to interfere in the operation of enterprises. Accession to the W T O will require the gradual abolition of administrative controls at the national, regional and local levels as progress is made in hardening budget constraints, reforming the tax system and replacing maximum prices for essential consumer goods with targeted transfers. W i t h respect to direct and indirect subsidies, the major problem at present appears to be the lack of transparency. Both direct budgetary payments and indirect subsidies, e.g. through directed credit from central banks at artificially low interest rates, are limited through agreements with the International Monetary Fund (IMF) at least in Russia and Ukraine. Nevertheless, it is still difficult to gain an understanding of the underlying regulations, the amounts involved or the recipients. Incumbent W T O members can be expected to require acceding CIS countries to increase the transparency of their subsidy systems so that compliance w i t h the W T O Agreement on Subsidies and Countervailing Measures can be effectively verified. Beyond transparency, the phasing out of subsidies according to the timetables agreed to w i t h the IMF, which tend to be ambitious, should represent sufficient progress towards the hardening of budget constraints. V. Benefits of W T O Accession for the CIS Countries As the former Soviet Union was not a contracting party to G A T T 1947, the trade policies of partner countries were not subject to G A T T discipline. As a result, the former Soviet Union faced higher tariffs and more extensive non-tariff barriers than other country groups for extended periods. This situation improved when

45 State orders are therefore distinguished from government procurement that relates only to goods destined for government consumption. 46 Resource rents are defined as the scarcity value of natural resources, which is roughly the difference between world market price and extraction cost. Taxes on resource production or exports allow the State to capture some of the resource rent.

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most major O E C D countries concluded M F N agreements w i t h the Soviet Union starting in the 1970s. M F N status was conferred on the CIS countries in 1992 and 1993, and they were frequently included in the OECD country General Systems of Preferences that had previously almost exclusively benefited developing countries. 47 In order to maintain this position, the CIS countries will be expected to show further progress in systemic transformation, culminating in W T O membership. Only then w i l l their trading partners be fully bound by mutual obligations to respect W T O rules, including those on antidumping and safeguards. 48 In the case of the European Union, M F N treatment and participation in the GSP were first granted by the E U on a provisional basis. They will become permanent as the Partnership and Cooperation Agreements between the European Union and the individual CIS countries are ratified. 49 Nevertheless, European Union tariffs on imports from the CIS are still higher than for other important third countries w i t h more generous preference schemes, for example the European Free Trade Association (EFTA), the Visegrad and the Baltic countries (Europe Agreements). This may change if and when negotiations start in several years' time on free trade agreements between the European Union and the individual CIS countries as foreseen in the Partnership and Cooperation Agreements. However, any move towards closer regional integration along these lines would be politically feasible only if the CIS countries accede to the W T O first. W T O membership would also be a precondition for regional integration with the Eastern European countries, for example through membership in an extended Central European Free Trade Area (CEFTA). In sum, accession to the W T O will not confer many short-term benefits to the CIS countries in terms of improved market access. It is a necessary condition, how47 A detailed description of the changes in O E C D country trade policies towards the CIS countries is provided by Michalopoulos/Tarr (note 9) and O E C D (note 3), 61 et seq. 48

Some residual elements of the trade regime formerly applied to imports from the Soviet U n i o n persist: selective (bilateral) safeguard clauses seek to prevent injury to domestic producers by restricting imports only from certain transition economies (outside the W T O ) ; antidumping measures may be based on prices in third countries w i t h market economies or even on domestic prices i n importing countries rather than on actual prices in the exporting transition economy. 49 The texts of these agreements may be found in Proposal for a Council and Commission Decision on the Conclusion of an Agreement on Partnership and Cooperation between the European Communities and their Member States, of the one Part, and the Russian Federation, of the other Part, C O M (94)257 final; Proposal for a Council and Commission Decision on the Conclusion of an Agreement on Partnership and Cooperation between the European Communities and their Member States, of the one Part, and the Ukraine, of the other Part, C O M (94)226 final; Proposal for a Council and Commission Decision on the Conclusion of an Agreement on Partnership and Cooperation between the European Communities and their Member States, of the one Part, and the Republic of Belarus, of the other Part, C O M (95)44 final.

Accession of the CIS Countries to the World Trade Organization161 ever, for consolidating the gains made in recent years on account of the stated commitment of the CIS countries to systemic transformation. Failure to accede to the W T O , possibly because of lack of progress on systemic transformation, would call recent improvements in market access into question. Furthermore, recent literature on the political economy of policy reforms emphasizes the importance of government credibility for the ultimate success of a reform program. International commitments entered into by a government, such as those involved in accession to the W T O , may enhance credibility as they raise the cost to the government of deviating from its stated policy path. 50 W T O accession will require the CIS countries to commit to further reform in several crucial fields. First, a pervasive problem is the lack of transparency in many regulations, which raises uncertainty about the payoff from economic decisions and may ultimately even undermine the rule of law. During accession negotiations, legal texts pertaining to a wide variety of policy areas will be scrutinized by incumbent W T O members. In many instances, for example in the area of intellectual property rights, the emphasis w i l l be less on the letter of the law than on establishing judicial procedures for the actual enforcement of rules. This will require far-reaching reforms in the judicial system. Second, systemic reform w i l l be closely monitored by incumbent W T O members, and the CIS countries may be asked to make specific commitments to progress in particular areas. In particular, de-statization and privatization of internal trade at the wholesale and retail levels, privatization of small and medium-sized enterprises and gradual privatization of large enterprises are conceivable stepping stones. Financial discipline on the part of enterprises needs to be tightened through continuing institutional changes such as the implementation of bankruptcy procedures and through reductions in direct and indirect subsidies. Third, accession to the W T O will require the CIS countries to make policy decisions that they have avoided so far, for example with respect to the strategic objectives of trade policy. The precise form of regional integration will be of particular importance as it will become apparent whether Russia can be moved to extend the benefit of low domestic energy prices to net energy importers among the CIS countries. Furthermore, the CIS governments will have their autonomy over some policy parameters reduced, for example when import and export tariffs are bound. Accession to the W T O can thus provide a focal point for policy decisions that would have to be taken at any rate sooner or later but now may be treated simultaneously, under scrutiny from incumbent W T O members, and under an obligation to bind policy parameters with little chance of future change. This is likely to enhance the consistency of the decisions made. In the short to medium run, the impetus for fur50

Dani Rodrik , Credibility of Trade Reform — A Policy Maker's Guide, World Economy, vol. 12, no. 1, 1989, 1.

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ther market-oriented systemic reform through enhanced credibility of governments may well be the most important benefit of W T O accession. V I . Implications of the Accession of the CIS Countries for the Multilateral Trading System With the transition from G A T T 1947 to the W T O , the multilateral trading system has undergone far-reaching change. O n the one hand, the interpretation of many provisions of G A T T 1947 was clarified and tightened in the multilateral agreements on trade in goods and in the understandings on various G A T T articles that became part of G A T T 1994 (Annex 1 to the W T O Agreement). O n the other hand, a variety of new issues were brought within the scope of the W T O . The protection of trade-related intellectual property rights, both with respect to definition and enforcement, is covered quite exhaustively in the TRIPS Agreement. The General Agreement on Trade in Services lays down general rules for the regulation of trade in services, which are to be supplemented by more specific rules and liberalization commitments in selected service sectors. Negotiations have started on financial and professional services, maritime transport, basic telecommunications and the movement of natural persons as one important mode of supply in international trade in services. Furthermore, discussions are taking place on the possible role of the W T O with respect to the social and environmental implications of trade, investment policy and competition policy. A t the same time that the scope of the W T O is being extended, the membership applications by the CIS countries, most importantly Russia, along w i t h China, Taiwan and several others, provide an opportunity to bring all the world's major trading countries into the multilateral trading system. However, in the CIS countries, the legacy of the central planning system and the uncertainties afflicting the transformation of the economic, political and social systems raise serious problems in terms of the transparency of policies and time requirements for the necessary adjustments. While this is true for many traditional G A T T concerns, it applies a fortiori to the new W T O areas, especially trade in services, an area in which policies in the accession countries (as in many other countries) are still ill-defined. It has been argued in this Article that the accession of the CIS countries to the W T O , beyond consolidating recent improvements in market access, w i l l lend credibility to the process of systemic transformation itself and will thereby help to stabilize it. N o t only the CIS countries but also incumbent W T O members have a high stake in the success of systemic transformation, both in economic and in political terms. Provided that the CIS countries make demonstrable progress in increasing the transparency of their trade-related policies and bringing them into compliance w i t h W T O rules, incumbent W T O members should accord high priority to a

Accession of the CIS Countries to the World Trade Organization163 speedy accession of the CIS countries to the W T O . 5 1 Accordingly, they should refrain from pushing acceding countries to commit themselves to more stringently liberal policies than incumbent W T O members themselves accepted as a result of the Uruguay Round agreements. In the interest of speedy accession, it would also be appropriate to extend the benefit of already established adjustment periods fully to new W T O members, such as for phasing out prohibited subsidies in transition economies (SCM Agreement). A l l this would strengthen the traditional function of the multilateral trading system as a set of basic rules for global free trade that may be supplemented, but never replaced, by other forms of bilateral or plurilateral cooperation or economic integration.

51 It is not especially encouraging that during the Singapore Ministerial Conference i n December 1996 accession issues played only a minor role in spite of the deadlock in negotiations with China in which the positions of incumbent W T O members differed significantly. Furthermore, the wording of the very brief section 8 of the Ministerial Declaration places responsibility for progress on accession rather single-handedly on the applicants by calling on them to "accept... the W T O rules" and "offer . . . meaningful market access commitments."

IP

The Definition of Developing Countries under GATT and other International Law B y G u g l i e l m o Verdirame*

Introduction W h i l e the gap between developed countries and the m a j o r i t y o f the so-called dev e l o p i n g countries is widening, the political w i l l t o tackle the p r o b l e m o f developm e n t seems t o be declining. This lack o f political w i l l is buttressed b y m o r e frequently recurring reactionary arguments that p o i n t t o developing countries as exclusively responsible for their plight and that even advocate a f o r m o f guardianship o f developing countries t o be exercised b y the developed and self-righteous w o r l d . 1 ! T h e d i m i n u t i o n i n Official Development Assistance ( O D A ) , the burden o f debt repayments, the concentration o f aid o n certain areas of the w o r l d and the fact that aid is n o t often used t o tackle priorities o f h u m a n development are all factors that c o n t r i b u t e t o worsening the plight o f a large n u m b e r o f p o o r countries. 2 I n this context, a review of the legal mechanisms that constitute the international l a w o f development is necessary i f an improvement i n the fairness o f the current

* The Author thanks Michael Anderson for commenting on earlier drafts of this Article. Special thanks also to Paolo Galizzi and Rupert Ticehurst. 1

Claude Wauthier , Africa inquieta. Dure prove per le neodemocrazie, Le Monde Diplomatique (Italian edition, II Manifesto), September 1996. During the negotiations for the renewal of the Lome Convention in 1995, the United Kingdom argued that European aid to the participating countries of the ACP (Africa, Caribbean, Pacific) should be decreased, while Germany supported maintaining the same level of aid, despite the fact that European U n i o n membership had increased from 12 to 15. A. M. Mouradian , Offensiva contro la convenzione di Lome, Le Monde Diplomatique (Italian edition, I I Manifesto), A p r i l 1995. 2 I n 1994, developed countries disbursed 0.3 % of GNP as O D A as opposed to 0.34 % disbursed in 1983/1984. U N D P , Human Development Report 1996, 1996, 199. I n 1992 developing countries paid $160 billion in debt service charges, while the total amount of O D A equalled only $60 billion. U N D P , Human Development Report 1994,1994, 63. Furthermore, certain countries tend to receive a disproportionate amount of aid compared to other, poorer countries (the Arab States for example receive more O D A per capita than South Asian countries although the latter are far poorer) and aid is generally not focused on areas of human priority, defined as "basic education, primary health care, rural water supplies, nutrition programmes and family planning services." Id. y 72 - 73, particularly figure 4.7.

Definition of Developing Countries under GA TT and International Law system is to be sought. The large number of treaties, declarations and conferences that deal with development generally remain silent on the issue of the definition of 'developing country' and thus fail to provide clear criteria for the identification of the beneficiaries of the measure or program they create. This Article explores the ways in which developing countries are identified in the practice of the General Agreement on Tariffs and Trade (the GATT) and other international organizations. As for the G A T T , its importance lies in its being the instrument that provides the main legal framework for international trade. The position of developing countries within the G A T T is obviously crucial in favoring or worsening the prospects for economic development. The practice of the United Nations and the International Development Association (IDA), an affiliate of the World Bank, will also be examined.3 Although the main focus of this Article is on multilateral practice, bilateral practice in allocating aid will also be referred to. I n the first section of this Article, some of the conceptual issues underlying the question of the identification of developing countries will be examined. First, an analysis of the theory of the duality of norms will be undertaken, dwelling on the validity of the dichotomy of developed versus developing countries. Second, the Article will assess whether the creation of two, or more, categories of countries on the basis of their level of development is consistent with the principle of equality of all States in international law. The Article will then analyze the method of identifying developing countries under the G A T T , and compare it with the practice adopted in the application of other international instruments. Although the main focus of the Article is the G A T T , reference will also be made to the practice of other organizations — particularly those that have also developed criteria for the identification of developing countries — as well as to other models of identification currently in use, such as identification through official lists and identification through self-election. The conclusion will consider whether it would be advantageous to adopt generally agreed to and differentiated categories of developing countries within the G A T T and other instruments. It will be argued that the adoption of such categories and the use of legally binding criteria for the identification of developing countries can improve the fairness of the current system by limiting the impact of foreign policy and

3

These two organizations have a great impact on developing countries. Throughout the 1980s two-thirds of the total net disbursement of concessional flows to developing countries by multilateral agencies came from the United Nations and the I D A . W i t h i n multilateral agencies, a considerable role in development aid is performed by the regional organizations (Arab Development Bank, African Development Fund etc). I n addition to multilateral aid, bilateral aid is obviously very important. Private aid (through NGOs) and private investments also constitute another increasingly important source of financial transfers from the richest to the poorest countries. U N D P Report 1994 (note 2), 61 et seq.

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national security interests o f developed countries o n the process o f according preferential treatment and allocating aid.

I . Conceptual Issues T h e francophone legal literature has devoted m o r e attention t o the p r o b l e m o f the d i s t i n c t i o n between developed and developing countries. 4 I n the anglophone literature, few authors have tackled this complicated issue. 5 T h e approach and the ideas developed b y the French authors provide the o n l y existing theoretical framew o r k for discussing the issues related t o the identification o f developing countries i n international law. A key concept for understanding the background t o the problem o f the legal defin i t i o n of developing countries is that of the duality of norms operating i n the sphere o f international economic law. This concept, developed m a i n l y i n the French literature, is w i d e l y referred t o b y most authors, 6 and underpins the practice o f the G A T T . According t o the theory of dual legal norms, t w o separate sets o f rules exist i n the ambit o f international economic law. T h e first set finds application i n regulat i n g the economic relationships among developed countries; the second operates w i t h respect t o the relationship between developed and developing countries. 4

The main authors that have dealt w i t h this problem are Guy de Lacharribre , Aspects recents du classement d'un pays comme moins developpe, Annuaire francais de droit international (AFDI), 1967, 703 and Identification et Statut des pays moins developpes, A F D I , 1971, 461; Guy Feuer, Les differentes categories de pays en developpement, Journal du droit international, 1982, 1; Maurice Flory, Droit international du developpement, 1977. Most French books on the international law of development tend to discuss or at least acknowledge the existence of a problem of defining developing countries. See, e.g., Jacques Bouveresse, Droit et politiques du developpement et de la cooperation, 1990, 83 et seq.-, Ernst-Ulrich Petersmann, Die Dritte Welt und das Wirtschaftsvölkerrecht, Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, 1976, 492, 535 et seq. Comparative analyses of French and English authors in the area of international law of development are quite rare, despite the great potential for a fruitful dialogue. One of the few works that analyzes the findings of scholars from these two different traditions is Francis Snyder/Peter Slinn (eds.), International Law of Development, 1987. 5

See mainly Milan Bulajic, Principles of International Development Law, 1993, especially 48 et seq.; F. V. Garcia-Amador, The Emerging International Law of Development, 1990, 59; Wil D. Verwey, The Principle of Preferential Treatment for Developing Countries, Indian Journal of International Law, 1983, 343, 359 et seq.-, A. A. Faturos, Developing States, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. I X , 1986, 70. 6

See Bouveresse (note 4), 80 et seq.-, Feuer (note 4), 5 et seq. For a critical assessment of this theory in English see Bulajic (note 5), 48 et seq. Also Garcia-Amador (note 5) and Faturos (note 5) discuss this concept. See also Peter Slinn, Implementation of International Obligations towards Developing States: Equality or Preferential Treatment?, in: W. E. Butler (ed.), Control over Compliance in International Law, 1991, 165.

Definition of Developing Countries under GA TT and International Law The rationale for the existence of the dual legal system lies in the varying stages of economic and social development experienced by different countries. Given the social and economic inequality among nations, "only unequal treatment can ensure equal opportunities to subjects that are equal in law, but unequal in fact." 7 Developing countries — so the argument runs — should be accorded preferential treatment in trade relations with developed countries, as well as other measures such as financial and technological aid, to compensate for existing inequality and to achieve a more balanced world order. The main shortcoming of the theory of dual legal norms is that it oversimplifies complex economic and social differences into the rigid dichotomy of developing versus developed countries, which is far from providing a fair representation of reality. 8 Placing countries such as Bhutan, Mali or Chad in the same category as Malaysia, Israel or Chile is grossly inappropriate. Indeed, while the former are characterized by GDP per capita of less than $600 and a Human Development Index (HDI) 9 among the lowest in the world, the economic and social indicators in the latter represent a situation that is closer in many respects to Western countries. 10 However, this argument against the theory of duality of norms does not imply that the underlying justification for that theory is to be rejected. O n the contrary, the rationale of that theory demands a more complex approach: its premise is that pure juridical equality is a sterile legal fiction in the field of economic relations, in which large differences separate States and create 'inequality in fact 1. If this assumption is valid, then the social and economic differences separating various countries must be considered in all their complexity.

7

Bouveresse (note 4), 80.

8

See also Ennio Triggiani , Some Thoughts on the Most-Favoured-Nation Treatment, Italian Yearbook of International Law, 1985,124, 134: "There is undeniably a requirement to overcome the simplistic binary division into developed and developing countries . . . . " 9

The H D I is a composite index meant to gauge the level of development of a country on the basis of social as well as economic criteria. The components of the H D I are life expectancy, educational attainment, standard of living (measured in terms of real purchasing power). The H D I reflects the evolution in the conception of development that has occurred in the last t w o decades. O n the H D I see U N D P Report 1994 (note 2), 90 et seq.; U N D P Report 1996 (note 2), 106 et seq. O n the theoretical foundations of the H D I see A martya Sen, Commodities and Capabilities, 1985 and The Standard of Living, 1987. For more information about the H D I see U N D P Report 1996 (note 2), 90 et seq. 10 Indeed, Israel's G N P per capita was $13,460 in 1992, higher than the average G N P per capita in the member States of the European Community ($12,536) in the same year. Malaysia and Chile had G N P per capita that was close to that of Western European countries such as Greece and higher than most Eastern European countries. I n terms of human development, all three of these countries were not far from European countries, and Israel ranked 19th i n the world, higher than Italy or Spain. U N D P Report 1994 (note 2), 129, table 1.

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The practice of some international organizations has acknowledged the existence of a multiplicity of levels of development. A more complex approach has thus been adopted allowing for the creation of more than just two categories of development. For example the United Nations has established three categories — least developed countries, developing countries and developed countries — in an effort to represent the various stages of development. 11 If various, and not simply two, categories of countries may be defined — and to some extent are already defined — as a reflection of different levels of development, then a large range of possible interactions among these categories can occur. There will not be just a duality of norms, but a multiplicity of sets of rules. 12 The creation of different categories of countries on the basis of their level of development may raise a problem of consistency with the principle of equality of all States.13 This principle, enshrined in Article 2(1) of the United Nations Charter, 14 represents, together with the principle of sovereignty, "the basic constitutional doctrine of the law of nations, which governs a community consisting primarily of states having a uniform legal personality." 15 The idea that there is some tension between the two is based on the assumption that the principle of equality also encompasses the concept of equality in law , meaning that all States are bearers of the same rights and obligations. 16 Creating different 11

I n the practice of the General Assembly other subgroups of developing countries have been established w i t h regard to their special needs. These subgroups include island developing countries, land-locked countries and the most seriously affected countries. Verwey (note 5), 365 et seq. 12 For example, if a tripartite categorization into developed countries (A), developing countries (B) and least developed countries (C) is accepted, there w i l l be one set of rules operating in the relations between As and Bs, the second set w i l l discipline relations between Bs and Cs and the third w i l l apply to interactions between As and Cs. There may be at least three sets of norms excluding interactions occurring between countries in the same category. 13

O n this principle see inter alia: R. P. Anand, Sovereign Equality of States i n International Law, 197 Hague Recueil des Cours 9, vol. II, 1986; Jean-Pierre Cot/Alain Pellete (eds.), La Charte des Nations Unies, 1991; Bruno Simma (ed.), The Charter of the United Nations: A Commentary, 1994; Colin Warbrick , The Principle of Sovereign Equality, in: Vaughan Lowe/ Colin Warbrick (eds.), The United Nations and the Principles of International Law, 1994, 204. The principle of equality of all States is obviously different from the principle of equality and of non-discrimination w i t h respect to individuals. See Warwick McKean> Equality and NonDiscrimination under International Law, 1983. 14

"The Organisation and its Members, in pursuit of the purposes stated in Article 1, shall act in accordance w i t h the following principles. 1. The Organisation is based on the principle of the sovereign equality of all its Members . . . Article 2 adopts the synthetic expression 'equal sovereignty', to which two principles correspond, namely equality and sovereignty. 15

Ian Brownlie , Principles of Public International Law, 1990, 287.

1

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Definition of Developing Countries under GA TT and International Law categories of countries with the consequence of according different rights and obligations thus constitutes an infringement of the principle of the equality of all States.17 To establish whether the creation of different categories of countries in international economic relations contravenes the principle of equality, it is necessary to determine the scope and legal content of that principle. 18 It is questionable whether C'est le principe de 1' egalite souveraine des Etats qui est a Porigine de Pobligation pour chacun d'entre eux de respecter les droits des tiers. Elle signifie que tous se trouvent places devant le droit dans une situation identique. Celui-ci leur reconnait a priori les memes aptitudes legales, les memes droits et les memes obligations. Pierre Marie Dupuy , Droit international public, 1993, 73. It is also the position advocated by Keba Mbaye. Quand les droits sont inegaux, c'est parce que la loi est encore inegale et qui il n'est pas possible de parier dune vrai regne de l'egalite, meme si c'est le regne de la legalite. Dans une regime de lois injustes ou meme scelerates, l'egalite devant la loi, c'est a dire l'application de la loi a tous sans discrimination, a fatalement des consequences d'inegalite. . . . Le constat de la flagrant inegalite de fait entre les Etats a fait naitre une idee nouvelle, destinee a donner au principe d'egalite souveraine un contenu dynamique. Keba Mbaye, Article 2: Paragraph 1, in: Cote/Pellete (note 13), 79, 91. This author, however, does not seem to avoid the simplifying dichotomy of developing versus developed countries when he argues: II apparait que la societe internationale comprend des puissants et des faibles: les pays industrialises, d'une part, et les pays en developpement d'autre part. Dans une telle societe, inegalitaire de fait, le droit internationale doit venire au secours des Etats qu'une liberte totale de chaque element basee sur le principe d'egalite livrerait fatalement au une triste sort. Id., 92. But see, e.g., Randelzhofer, General Introduction to Article 2, in: Simma (note 13), 72, 74: equality "does not, however, signify equality in law, whereby all states are to the same extent subject to rights and obligations." 17 A n infringement of a general principle of law can also be justified as a derogation from that principle, provided that such derogation is permitted under certain circumstances. Indeed, the right of veto accorded to the Five Great Powers is an example of derogation from the principle of equality of all States. The "pragmatic reasons" (Albert Bleckmann, Article 2(1), in: Simma (note 13), 77, 89) invoked to justify that derogation could also be utilized to justify a derogation from the same principle aimed at creating a more truly equal international community. 18

The travaux preparatoires and the later pronouncements of the General Assembly do not significantly contribute to clarifying the content of the principle of equality. W i t h respect to the travaux preparatoires, one of the preparatory meetings held at the San Francisco Conference (Report of the Rapporteur of Committee 1 to Commission 1, U N C I O Doc. 944,1/1/34, 10 et seq. (1946)) dealing with the text of Article 2 tried to elucidate the meaning of the expression 'sovereign equality' in these terms: the terminology sovereign equality . . . includes the following elements: 1) states are juridically equal; 2) each state enjoys the right inherent i n full sovereignty; 3) the personality of the state is respected, as well as its territorial integrity and political independence; 4) the state should, under international order, comply faithfully w i t h its international duties and obligations.

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the principle o f the equality of all States signifies a n y t h i n g more t h a n equality before the law , o r juridical equality, and whether there is a conflict between that p r i n c i p l e and according preferential treatment, i.e. 'more rights', t o certain countries identified o n the basis of their level of development. Indeed, the principle o f equality means p r i m a r i l y "equality before the law , that is every state enjoys the same legal personality, regardless of differences i n terms of geographical size, p o p u l a t i o n , m i l i t a r y p o w e r , economic strength and so o n . " 1 9 The v i e w that the scope and content o f the principle o f equality is l i m i t e d t o juridical equality is confirmed i n the approach adopted b y international courts. I n Venezuelan Arbitration

before the Hague Tribunal

1903,20 the Permanent C o u r t o f

A r b i t r a t i o n decided that the "principle of equality cannot be stretched t o the extent o f meaning that all nations are t o have equal rights i n all circumstances" 2 1 and that

Kelsen is critical of this statement: Juridical equality means equality before the law, and that means that everybody has the duties and rights which the law confers upon him, or that everybody shall be treated as the law provides; which is an empty tautology. The second point of the interpretation given by Committee 1/1 is meaningless as long as the term sovereignty is not defined. Point 3 does not result from Article 2, paragraph 1, but from Article 3, paragraph 4. Point 4 has nothing to do with the sovereign equality of the Members. It formulates the truism that legal obligations shall be complied with. Hans Kelsen , The Law of the United Nations, 1950, 52, note 4. Kelsen' s arguments could also apply to the Declaration on Friendly Relations and Cooperation among States (GA Res. 2625 (XXV) of 24 October 1970), which attempts to clarify the content of 'sovereign equality', but basically adopts a list of elements very similar to the one of the travaux preparatoires. Gaetano Arangio-Ruiz y The U N Declaration on Friendly Relations and Cooperation among States, 1979, 144 emphasizes the "tautological and repetitive nature" of this part of the General Assembly resolution. 19 Warbrick (note 13), 208 - 209 criticizes this principle with an argument similar to the one adopted by Kelsen (note 18). He argues that the principle of equality before the law is "a trite proposition" signifying simply that "states are equally entitled to enjoy their rights and obliged to conform to their duties" and that such a statement is devoid of any practical importance due to the infrequency of international litigation. However, he acknowledges that the principle of formal equality when applied to the status of States within international organizations bears greater significance as well as practical consequences. 20

The Venezuelan Preferential Case, in: Scott (ed.), The Hague Court Reports, 1916, 55. See also Anand (note 13), 109 -112. The dispute concerned the claims held by nationals of various countries in Venezuela. After failing to reach a settlement, Great Britain, Italy and Germany resorted to coercive measures including blockading the Venezuelan ports. Once Venezuela agreed to satisfy those claims, the blockading powers demanded that the claims of their citizens be accorded preferential treatment w i t h respect to the claims held by nationals of other countries. Venezuela and the non-blockading countries rejected this demand, arguing that it entailed a violation of the principle of equality of all States. The Permanent Court of Arbitration decided in favor of Great Britain, Germany and Italy. 21

This is a statement submitted by the British government summarizing its arguments to

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as a consequence the preferential treatment that some countries had been accorded s h o u l d n o t be regarded as a v i o l a t i o n of that principle. T h e International C o u r t o f Justice has rejected the v i e w that the principle o f equality requires that developed countries discriminate positively i n favor o f developing countries t o compensate for inequality i n fact. 2 2 I n the Libya-Malta tal Shelf case,

23

Continen-

the C o u r t rejected the argument that the different economic posi-

tions o f the States concerned were t o be taken i n t o account i n d e l i m i t i n g the continental shelf. 24 I f the principle o f equality entailed a positive obligation i n c u m b e n t o n all States, and i n particular o n developed countries, t o strive for equality i n fact, t h e n the I C J should have concluded that Malta, the less developed p a r t y i n that controversy, was entitled t o a decision taking its economic conditions i n t o account. T h e interaction between the principle o f the equality of all States and the creat i o n o f different categories o f countries can thus be summarized i n the f o l l o w i n g which the Court subscribed. The other position, which was rejected by the Court, is epitomized by the statement submitted on behalf of the government of the United States. "While each State is sovereign within its domain, elsewhere . . . all States are equal, having equal rights and duties of respect, of representation and of justice." See Anand (note 13), 110. 22 The conceptual reasoning behind the idea of positive discrimination rests on a more generous interpretation of the principle of equality. It is argued that, reality being characterized by inequality, equality is a legal fiction. This legal fiction is not, however, devoid of consequence. One of the effects that the legal existence of the principle of equality produces is that all subjects to which that principle applies (individuals at the domestic level and States i n international law) are obliged to pursue equality. The stronger or richer ones are thus obliged to discriminate positively in favor of the poorer or weaker ones. See note 25. O n the use of legal fictions especially in the area of fundamental rights and principles see Jack Donnelly , The Concept of Human Rights, 1985; Ronald Dworkin, Taking Rights Seriously, 1978; Rolando Gaete, Human Rights and the Limits of Critical Reason, 1993, 27 et seq. 23

Continental Shelf(Libya vs. Malta), 1985 ICJ 13 et seq. See also Continental Shelf (Tunisia vs. Libya), 1982 ICJ 18. 24

Continental Shelf (Libya vs. Malta) (note 23), 41: It was argued by Malta, on the other hand, that the considerations that may be taken account of include economic factors and security. Malta has contended that the relevant equitable considerations, employed not to dictate a delimitation but to contribute to the assessment of a delimitation otherwise arrived at, include the absence of energy resources on the island of Malta, its requirements as an island developing country, and the range of its established fishing activity. The Court does not however consider that a delimitation should be influenced by the relative economic position of the two States in question, in such a way that the area of continental shelf regarded as appertaining to the less rich of the two States would be somewhat increased in order to compensate for its inferiority in economic resources. Such considerations are totally unrelated to the underlying intentions of the applicable rules of international law. It is clear that neither rules determining the validity of legal entitlement to the continental shelf, nor those concerning delimitations between neighbouring countries, leave room for any considerations of economic development of the States in question.

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terms. 2 5 T h e principle of equality does not require that certain countries be accorded ' m o r e rights' than others i n economic relations i n order t o foster t h e i r economic development; however, if those rights are granted, and preferential treatment is accorded, this practice is n o t t o be regarded as a v i o l a t i o n o f o r derogation f r o m the principle o f equality. 2 6

I I . Models of Identification of Developing Countries A c c o r d i n g t o the broad classification adopted i n most French literature, 2 7 there are three main methods for identifying developing countries. T h e first is t h r o u g h an explicit legal definition. This is the m e t h o d broadly adopted under the G A T T , and also f o l l o w e d b y the U n i t e d N a t i o n s for the identification of the Least Developed Countries among developing countries (LDCs). T h e second m e t h o d is self-election. T h e countries that have an interest therein claim developing country status for the application o f a certain international instru-

25 It is certainly possible to predict an evolution of the principle of equality of all States similar to the evolution of the concept of equality in many national legal systems i n which positive discrimination is derived from equality. See note 22. Using Dworkin's terminology, (note 22), 134 - 137, the 'conception* of concepts such as fairness, equality, legality or cruelty changes constantly as underlying social attitudes towards those principles evolve. The change i n the 'conception' of equality that has generally occurred at the domestic level could make its way into international law. The latter is normally characterized by a higher degree of stability and reluctance to change than domestic law. O n the principles and processes of legal change in international law see Wolfgang Friedmann, The Changing Structure of International Law, 1964, 117 et seq. See also Warbrick (note 13), 216 - 218; Stephen Zamora , Is there a Customary International Economic Law?, German Yearbook of International Law, vol. 32, 1989, 9. As far as the principle of equality and non-discrimination w i t h respect to individuals under international law is concerned, the matter is very different. The content of that principle has evolved to a great extent and there is sufficient evidence to suggest that equality and non-discrimination entail "the principle to treat equally what are equal and unequally what are unequal," South West Africa cases (Ethiopia vs. South Africa, Liberia vs. South Africa) (Second Phase), 1966 ICJ 248, 306 (dissenting opinion of Judge Tanaka ), and that "equality sometimes requires States Parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant," General Comment 18/37 on non-discrimination adopted by the United Nations Human Rights Committee established under the International Covenant on Civil and Political Rights. See Brownlie (note 15), 598 - 601 (with further references); McKean (note 13), 258 - 285. 26 Warbrick (note 13), 216 argues that countries benefiting from positive discrimination must accept limitations to their sovereignty. The relationship between aid conditionality and the donor country's claim to supervise the implementation of the donation, and the principle of sovereignty is certainly worthy of scholarly analysis. 2

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Definition of Developing Countries under GA TT and International Law ment or measure. This method is followed within the General System of Preferences (GSP), for which all country members of the Group of 77 identified themselves as developing. Other countries have also declared themselves developing and thus have claimed to be entitled to benefit from that system (Romania, Israel, Bulgaria, Turkey, Greece, Spain, Malta). However, developed countries may refuse to apply preferential treatment to specific countries that identify themselves as developing. The third method is the creation of a list of countries considered developing for the purposes of a particular norm or for the application of a specific international instrument. It is the method used predominantly in the allocation of bilateral aid. The European Community adopted this system for the identification of the beneficiaries of its GSP scheme and more recently the United Nations Framework Convention on Climate Change has used the same method. Each of these methods encounters certain difficulties. Concerning the method of identification through criteria, the main problem is to arrive at a set of criteria that can simultaneously account for all the different aspects of development (social conditions, economic development etc.). There is no consensus on what constitutes development, but in establishing criteria such ideological consensus should be reached. Furthermore, identification through a set of criteria should satisfy different and contrasting needs. It should be rigid enough to allow for fairly immediate and uncontroversial identifications; it should also have a certain degree of flexibility, because in reality there is no clear-cut "threshold that separates wealth from poverty, and poverty itself from extreme indigence."28 The method of identifying a developing country through a list also has some disadvantages. First, the inclusion of a country in a list can depend on factors not related to the actual level of development. Indeed, political factors (international acceptance of the country's political regime, friendliness of its relations w i t h countries that shape international development policies etc.) may play a decisive role. 29 It is thus no surprise that the method of the list is the one by far preferred in agreements on bilateral aid. Second, a country that has been excluded from a list does not have any legal means to challenge that decision. In the absence of clear criteria for identifying developing countries, it is hardly possible to envisage how a country considered developing under a broad economic and social classification that is excluded from the list of developing countries for the application of a particular preferential measure can challenge that exclusion and legally assert entitlement to the specific measure. However, this system has the advantage of high flexibility. Thus a country 28 29

De Lacharriere

(note 4), 462.

For example Israel, which ranks 19th or 24th in the world in terms of human development (depending on whether the source is the U N D P Report for 1994 or 1996) receives onefifth of the O D A of the United States government. U N D P Report 1994 (note 2), 75.

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in which only some specific social or economic sectors are underdeveloped can be considered developing for the application of a particular measure affecting that sector while being excluded from the list of developing countries for the purpose of other measures. The method of self-election is also problematic. As Bouveresse has observed, "the mechanism of the self-election has paradoxically conferred a real freedom of choice on the developed countries," 30 in that they have a wide margin of discretion and may exclude certain self-elected developing countries from particular preferential treatment. I I I . Identification through Explicit Definition: The G A T T The provisions regarding developing countries are concentrated in Article X V I I I and in Part I V of the G A T T (Articles X X X V I - X X X V m ) . These norms refer only to two categories of contracting parties: developed and developing contracting parties. However, more recently the tendency to override this dual system and to establish more than just two categories of developing countries has emerged. Article X V I H as modified in 1955 allows developing countries to deviate from the general G A T T rules and to adopt a variety of measures to protect or promote their fledgling industries. Part IV, introduced in 1965, sets forth a series of measures in favor of developing countries that developed contracting parties must strive to implement. 31 As Hudec has observed, "the centrepiece of the developing countries' campaign was the demand for the preferences . . . this issue was pressed and decided largely outside the G A T T ; the G A T T legal situation was then confirmed by means of a waiver." 32 In 1971, a waiver to Article I, the Most Favoured Nation (MFN) clause, 30

Bouveresse (note 4), 80.

31

I n spite of its "legalistic language," Part I V contains "no definable legal obligations," and at the time of its introduction "it added nothing to the existing legal relationship between developed and developing countries." Robert Hudec , Developing Countries i n the G A T T Legal System, 1987, 56. Part I V includes three articles. The first, Art. X X X V I , is just a proclamation of principles and objectives. It can probably be considered as a sort of preamble to interpret the following provisions that should have more substance. Art. X X X V I I lists the commitments undertaken by developed countries. Its language is very cautious and the commitments of developed countries are expressed in terms of "shall to the fullest extent possible," "make every effort to" or "give active consideration to" and "have special regard to." The last provision in Part IV, Art. X X X V m , is on the joint action to be undertaken by contracting parties for the pursuit of the objectives set forth in Art. X X X V I . Again the wording is 'soft', requiring only that contracting parties "seek appropriate collaboration w i t h the U N " and so on. 2

et

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Definition of Developing Countries under GA TT and International Law was introduced to "permit developed contracting parties . . . to accord preferential tariff treatment to products originating in developing countries and territories." 33 A similar aim was pursued by another waiver, introduced in the same year, that allowed trade preferences among developing countries. 34 The system of preferential treatment for the products of developing countries in world trade was finally institutionalized in the Tokyo Round in 1979 with the adoption of the so-called 'enabling clause' (Decision on a Differential and More Favourable Treatment, Reciprocity and Fuller Participation for Developing Countries). 35 The 'enabling clause' by granting an autonomous standing to the principle of non-reciprocity within the G A T T legal system de facto reduces the scope of the Article I M F N clause enormously. 36 However, that decision contains a significant limitation, introduced under pressure from the United States.37 Paragraph 7 entails the possibility of the 'graduation' of a developing country and, as a consequence, the loss of the entitlement to non-reciprocal preferential treatment. 38 By means of paragraph 7 it is restated that the rule within the G A T T can only be the M F N clause and that preferential treatment is a derogation from that rule valid only in exceptional circumstances and on a provisional basis. Article X V I I I of the G A T T as revised in 1955 contains a very broad definition of developing country, which provides the legal framework within which the G A T T regulations are to be applied. Article X V H I defines developing countries as those the "economies of which can only support low standards of living and are in the early stages of development."

33

34 35

Basic Instruments and Selected Documents (BISD), Supp. 18, 24 - 25.

Id BISD Supp. 26, 203 - 205

36

See also Triggiani (note 8), 134: "The Principle of the duality of norms governing international relations finds its most significant expression in the 'enabling clause'." "Hudec (note 32), 85-86. 38

BISD Supp. 26, 205. The last part of paragraph 7 reads: Less-developed contracting parties expect that their capacity to make contributions or negotiated concessions or take other mutually agreed action under the provisions and procedures of the General Agreement would improve with the progressive development of their economies and improvement in their trade situation and they would accordingly expect to participate more fully in the framework of rights and obligations under the General Agreement. Both the United States and the European Community have resorted to this paragraph, demanding more reciprocity especially in those sectors i n which developing countries have achieved a level of development close to that of the more advanced States. See Hudec (note 32), 86; Oswaldo de Rivero , The New Economic Order and International Development Law, 1980, 23 - 34.

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In Annex I to the agreement (Notes and Supplementary Provisions), some further attempt is made to give that expression a more precise meaning. As for the first element in the definition, "economies which can only support low standards of living," it was added that what is relevant is "the normal position of that economy" and that the determination should not be based "on exceptional circumstances such as those which may result from the temporary existence of exceptionally favourable conditions." Additionally, it was specified that "the phrase 'in the early stages of development' is not meant to apply only to contracting parties which have just started their economic development, but also to contracting parties the economies of which are undergoing a process of industrialisation to correct an excessive dependence on primary production." 39 However, in spite of this attempt to throw some light on the definition of Article XVIII, it remains too broad and vague.40 Indeed, the addenda in the annex simply state that certain readings of the definition must be avoided, but they by no means contribute to the determination of which more specific criteria should be adopted in determining whether a contracting party is developing or developed. The practice within the G A T T confirms the inadequacy of the definition under Article X V I I I . In 1958, the Contracting Parties decided on an application brought by Ceylon under Article XVHI. 4 1 The government of Ceylon contended that due to economic difficulties it was entitled to a release from some obligations under the agreement. In granting the release, the Contracting Parties decided that Ceylon could be considered a developing country for the purposes of Article X V I I I , because Ceylon's GNP per capita was "substantially below the figure of industrialised countries in Western Europe" and because, having taken "as a general indication the share of manufacturing, mining and construction in the GNP," 4 2 its economy was "in the early stages of development." The decision that Ceylon was a developing country for the purposes of Article X V I I I was thus based on the criteria most commonly re-

^ Hudec { note 32), 86. 40

See also Verwey (note 5), 362: "It is a vague and abstract definition which certainly does not deserve the name definition." 41

2

BISD Supp. 6, 112 et seq.

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Definition of Developing Countries under GA TT and International Law ferred to for the identification of a developing country, 43 but no substantive indication was derived from the wording of the G A T T provision itself. A number of disputes44 have arisen in connection with Article XVIII(B), which permits developing countries to adopt restrictions to safeguard balance of payments. In these cases, developed countries contested the restrictions introduced by developing countries. The developing countries involved in the disputes have been India, Korea and Brazil. The arguments of the developed countries against the adoption of these measures rested on elements other than the developing country status, which was implicitly recognized. Indeed, although under G A T T practice "it is incumbent upon the party invoking an exception to the General Agreement to demonstrate that it is qualified for that exception," 45 in the cases at issue none of the parties invoking the application of Article XVIII(B) deemed their status as developing countries to be subject to demonstration. The United States, the contracting party that brought the action against those developing countries, acquiesced in this practice. Another important case for the determination of the criteria adopted in identifying developing countries in the G A T T is the Australian Waiver case of 1966.46 Australia applied for a waiver of its obligations under the agreement to accord preferential treatment to products originating from developing countries by reducing duty fees on them. The Australian request was based on Article X X V 4 7 and on Part I V of

43

The early practice of the International Labour Organisation (ELO) is the first to adopt similar criteria. I n that case it was necessary to determine which countries had to be considered "of chief industrial importance" and thus eligible for sitting i n the governing body of that organization. The problem was whether India or Sweden was to be the eighth member of the governing body. The final decision was in favor of India and was grounded on absolute economic figures (GNP, total number of people working in the manufacturing sector). India, having a much larger population than Sweden, obviously enjoyed better performance in absolute terms, but if those data had been read against the background of demographic size (GNP per capita , share of manufacturing in the total economy), the economic plight of India would have been manifest. I L O Official Bulletins, April 1919 - August 1920, July - December 1920 and July - December 1921. 44

The cases are Restrictions on Imports of Beef (United States vs. Korea), 1988, BISD Supp. 36, 268 (the leading case); Import Restrictions on Almonds (United States vs. India), 1987, G A T T Doc. L/6197; Restrictions on Imports of Certain Agricultural and Manufactured Products (United States vs. Brazil), 1989, summarized in: Robert Hudec , Enforcing International Trade Law, 1993, 584. 45

Restrictions on Imports of Beef (note 44), 275.

46

BISD Supp. 14,162 et seq. Some of the relevant documents on the Australian Waiver case are not published in the BISD (GATT Doc. L/2443; G A T T Doc. L/2464). 47

Art. XXV:5 reads: " I n exceptional circumstances not elsewhere provided for in this agreement, the Contracting Parties may waive an obligation imposed upon a contracting part y by this Agreement." It then goes on to require a qualified majority of two-thirds of the votes cast, comprising more than half of the contracting parties.

12 G Y I L 39

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the G A T T . The Contracting Parties, albeit reluctantly, approved the Australian scheme and allowed the waiver. The problem of the identification of the countries that had to be the beneficiaries of the reduction of the Australian fees was not solved by reference to the definition in Article X V I I I , or to alternative criteria, but simply by referring to an unofficial list of developing countries that, as w i t h the practice of other organizations, was the result of informal negotiations and compromises among the States.48 The working party in that case "recognised that no official list of less-developed countries had been drawn up for the purposes of the Agreement" and declared itself not competent to settle the question. A n annex to the report containing a list of countries was stated to be some guidance to the government of Australia. That list contained almost all countries other than the Organization for Economic Cooperation and Development (OECD) members and the Soviet bloc countries. 49 The number of complaints in which a violation of the provisions of Part I V is alleged is very small. 50 In 1979 Chile complained of a violation inter alia of Article X X X V I I by the decision of the European Community to restrict the importation of apples from developing countries. 51 Article X X X V I I provides that "developed countries shall to the fullest extent possible refrain from introducing . . . customs duties or non-tariff import barriers on products currently or potentially of particular export interest to less developed contracting parties." The obligation deriving from the cautious wording of this article can only be of a 'soft' type, as it were a quasi-obligation.52 The panel judging the case found under Article X X X V I I that "it could not determine that the EEC had not made serious efforts to avoid taking pro-

48

Abdulqawi Yusuf Legal Aspects of Trade Preferences of Developing States, 1982, 63.

49

Indeed, Portugal, which was an O E C D country, was excluded from that list, whereas Spain, which at the time was not in the OECD, was included. The level of development between these two countries was not arguably very different and Spain probably was performing slightly better than Portugal. 50 See Hudec % 'Master List' of G A T T cases. Hudec (note 32), 590 et seq. That list refers to about ten cases i n which an issue under Part I V was raised. However, the number of cases in which a ruling on that provision was actually reached is smaller as some of those cases were settled elsewhere or the decision on the other issues raised rendered a decision on Part I V unnecessary. 51

Restrictions on the Imports of Apples from Chile (European Community vs. Chile), BISD Supp. 27, 98. 2

ude n t e

Definition of Developing Countries under GA TT and International Law tective measures against Chile." 53 In a subsequent case,54 which also concerned restrictions adopted by the European Community on the importation of apples from Chile, the panel found that the consultations with Chile were insufficient and that a possible violation of Article X X X V I I occurred. However, the issue under that article was not taken further as other violations were found. Brazil had been previously involved in a dispute against the European Community, 5 5 in which an issue under Part I V was also raised. Although the Uruguay Round has not significantly altered the question of the identification of developing countries within the G A T T , 5 6 the tendency to create differentiated categories of developing countries has emerged. Article 27.2.A of the Agreement on Subsidies and Countervailing Measures57 exempts developing countries from the application of the general prohibition against "subsidies contingent, in law or in fact, whether solely or as part of several other conditions, upon export performance" introduced by Article 3.I.A. Annex 7 identifies the beneficiaries of that exemption as the Least Developed Countries "designated as such by the U N that are members of the W T O , " and twenty other countries that will cease to benefit from the exemption once GNP per capita has reached $1,000.58 Other developing countries not referred to in Annex V I I will have to phase out their export 53 For a violation of Art. X X X V I I to be found, the developing country should thus prove that the developed country has not made all the efforts it could make under the circumstances to avoid the imposition of a measure that damaged the trade of the developing country; this is, obviously, very hard to prove. However, it seems that Art. X X X V I I in spite of its cautious wording allows for a more generous interpretation. 54

Restrictions on Imports of Dessert Apples (European Community vs. Chile), BISD Supp. 36, 93. 55

Refunds on Exports of Sugar (Brazil vs. European Community), BISD Supp. 27, 69.

56

Guy Feuer , L' Uruguay Round, les pays en developpement et le droit international du developpement, AFDI, 1994,758. Feuer predicts that the W T O w i l l adopt an empirical method of identification of developing countries similar to the practice of the G A T T . " . . . on peut imaginer que si I' O M C , comme le G A T T , apparait avant tout comme une instance de negociation, la designation des pays en developpement se fera de maniere empirique, sans recours a des grilles et a des schemas preetablis." Id., 773. 57 Agreement on Subsidies and Countervailing Measures, Final Act of the Uruguay Round, Marrakesh, 15 A p r i l 1994. 58 These countries are Bolivia, Cameroon, Ivory Coast, Congo, Dominican Republic, Egypt, Ghana, Guatemala, Guyana, India, Indonesia, Kenya, Morocco, Nicaragua, Nigeria, Pakistan, Philippines, Senegal, Sri Lanka and Zimbabwe. It is also interesting that the 'graduation' of these countries is determined solely by the application of the per capita criterion. This discloses the existence of an inconsistency in the Agreement on Subsidies and Countervailing Measures w i t h respect to the identification of developing countries: LDCs are identified by reference to the United Nations list, which is compiled on the basis of a multiplicity of social and economic indicators (see Part I V section 1 of this Article); however, for some countries to graduate, consideration is given exclusively to GNP per capita.

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subsidies within eight years, and will be subject to the general prohibition against export subsidies from then onwards. 59 In addition, Article 29 refers to "members in the process of transformation from a centrally-planned into a market, free-enterprise economy," which are subject to a 'softer' discipline than developed countries. The Agreement on Subsidies and Countervailing Measures thus creates five categories of countries: developed countries, which are subject to the general discipline of the agreement, and four categories of countries subject to a differentiated discipline. 60 Although in the rest of the Final Act of the Uruguay Round only the 'traditional' three categories of developed, developing and least developed countries are referred to, and nothing is said about their identification, the Agreement on Subsidies and Countervailing Measures has highlighted an important tendency that may progressively gain momentum within the G A T T and other international instruments. It is also significant that during the negotiations on this agreement the creation of several categories of developing countries and the establishment of clearer methods of identification were opposed by several countries. 61 Furthermore, the Agreement on Subsidies and Countervailing Measures has accentuated another important tendency with respect to the identification of developing countries and the consequent according of preferential treatment: Article 27.5 obliges a developing country "which has reached competitiveness in any given product to phase out its export subsidies for such product over a period of two years." 62 Hence a country that is

59

However, "if a developing country member deems it necessary to apply such subsidies beyond the eight year period" the Committee on Subsidies and Countervailing Measures, established under the agreement (Art. 24), w i l l determine whether "an extension of this period is justified, after examining all the relevant economic, financial and development needs of the member i n question" (Art. 27.3). 60

T o summarize, these categories are a) LDCs according to United Nations practice, to which the prohibition never applies; b) twenty countries w i t h GNP per capita less than $1,000, to which the unlimited exemption from that prohibition ceases to apply once G N P per capita exceeds $1,000 — Art. 27.2.B subsequently applies; c) all other developing countries, to which the less beneficial differential treatment of Art. 27.2.B applies instead of Art. 27.2. A ; d) countries in the process of transformation from a centrally planned into a market, free enterprise economy. 61

"Concern was expressed about the approach taken to establish what could be perceived as different categories of developing countries. It was pointed out that this concept would have far-reaching political and economic implications in other international fora." Multilateral Trade Negotiations, The Uruguay Round, Minutes of the Meeting of 6 November 1990, Note by the Secretariat, G A T T Doc. M T N . G N G / N G 1 0 / 2 4 (1990), quoted in: Patrick J. McDonoughy Subsidies and Countervailing Measures, in: Terence P. Stewart (ed.), The G A T T Uruguay Round: A Negotiating History, vol. 1: Commentary, 1993, 803, 924, note 652. 62 However, for developing countries listed in Annex V I I a less strict discipline finds application. They are required to phase out export subsidies on products for which they have reached export competitiveness over a longer period (eight years).

Definition of Developing Countries under GA TT and International Law generally considered developing could be denied developing country status w i t h respect to a particular sector of its economy. 63 It is difficult to draw conclusions regarding G A T T practice on the identification of developing countries. A l l that can be inferred from the case law is that if Chile, Brazil, India and Korea have been treated as developing contracting parties all other countries at a lower stage of development may claim developing country status within the G A T T on the basis of those precedents. 64 The Australian Waiver case, however, may provide room for more far-reaching conclusions. The list annexed to the report of the panel, although expressly not endowed with any legal value, offers some guidance. The exclusion from that list of OECD and Eastern European countries supports the claim that all other countries may be considered developing contracting parties. 65 However, the application of clearer criteria for the identification and subcategorization of developing countries adopted in the Agreement on Export Subsidies and Countervailing Measures, although obviously limited to that agreement, may represent a departure from the previous approach towards developing countries. I V . Other Examples of Identification through Definition The G A T T does not offer the only example of identification of developing countries through a definition under international law. Indeed, other international instruments and organizations have developed explicit definitions of developing countries. In the practice of the United Nations, the LDCs are identified by means of the explicit criteria proposed by the Committee for Development Planning (CDP) and periodically endorsed by the General Assembly. The I D A has also adopted explicit criteria for the identification of the beneficiaries of its programs, although the legal status of those criteria seems weaker than in the case of the LDCs.

63

McDonougb (note 61), 920.

64

Obviously this leaves unanswered the question of what development means for purposes of the G A T T . However, within the G A T T the notion of development seems to be largely coincident w i t h economic development as the use of GNP per capita and share of manufacturing criteria demonstrate. 65 This conclusion may conflict w i t h the extension of GSP treatment to Central and Eastern European countries. One of the objections raised by other countries beneficiaries of that treatment rested on the lack of G A T T legal basis for the extension of the GSP to Central and Eastern Europe. It was argued that preferential treatment cannot be extended to those countries as they are not developing countries. Report of the Committee on Trade and Development, presented to and adopted by the Contracting Parties in 1992, BISD Supp. 39, 13 - 26.

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The notion of LDCs began to appear in United Nations documents in the 1960s. In a series of resolutions 66 on development, the General Assembly affirmed the need "to alleviate the problems of the least developed among developing countries" and requested that a special investigation into the plight of the LDCs be carried out. Subsequently, the General Assembly expressed the necessity of establishing certain criteria through which the LDCs can be practically identified in order to adopt and apply effective measures. The CDP was vested with the task of looking into the problem of L D C identification and came up with a proposal for the following session of the General Assembly. In the CDP's proposal three criteria were suggested for the identification of the LDCs: GNP per capita (not more than $100), the percentage share of manufacturing in total GNP (not more than 10 %) and the literacy rate (not more than 20 % of the population older than 15). The CDP itself acknowledged that these criteria are "neither wholly reliable, nor sufficient in themselves to provide a complete picture." 67 The General Assembly cautiously endorsed the criteria proposed by the CDP while expressing some reservations. 68 The General Assembly also approved a list of 24 countries that met the requirements that had been established.69 This list has been constantly amended and has increased from a figure of 24 countries to 41 as of the last adjournment, which took place in December 1991.70 The list of LDCs should not be confused with other 66

G A Res. 2564 (XXIV) of 13 December 1969; G A Res. 2626 (XXV) of 19 November

1970. 67 Report of the Committee for Development Planning, 7th session, Official Records of the Economic and Social Council, U N Doc. E/4990, Supp. 7, para. 47 (22 March 1971 - 1 A p r i l 1971). 68 See G A Res. 2768 (XXVI) of 18 November 1971: . . the criteria used so far for the identification of the hard core least developed among developing countries need to be reviewed and refined." 69

The initial list of LDCs approved by G A Res. 2768 included Afghanistan, Benin, Bhutan, Botswana, Burkina Faso, Burundi, Chad, Ethiopia, Guinea, Haiti, Lao People's Democratic Republic, Lesotho, Malawi, Maldives, Mali, Nepal, Niger, Rwanda, Samoa, Somalia, Sudan, Uganda, Tanzania, Yemen. 70 The first expansion occurred in 1975. G A Res. 3487 (XXX) of 12 December 1975 added four countries (Bangladesh, Central African Republic, Democratic Yemen and Gambia). Other countries were subsequently added to the list: Cape Verde and Comoros (1977), Guinea Bissau (1981), Djibouti, Equatorial Guinea, Sao Tome and Principe, Sierra Leone and Togo (1982), Vanuatu (1985), Liberia (1990), Cambodia, Madagascar, Solomon Islands, Zaire and Zambia (1991). The expansion of the list did not result from a revision in the criteria for the identification of developing countries, but followed as more recent and complete social and economic data on some countries became available. I n the report i n which the first expansion in the list of LDCs was proposed, the CDP observed that "according to the latest data available two or three countries already on the list

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similar lists o f developing countries adopted b y other organizations o r i n bilateral practice. Indeed, the list of L D C s has a merely declaratory value: the countries that meet the above-mentioned criteria are entitled t o j o i n that list. T h e source o f such an entitlement is satisfaction of the requirements indicated i n the d e f i n i t i o n o f L D C and endorsed b y the General Assembly. I n the case of identification t h r o u g h lists, as a result o f the absence o f clear-cut legalized criteria a developing c o u n t r y n o t included i n the list cannot claim any entitlement t o j o i n the list and t o receive the legal benefits available thereby. T h e entitlement of a country to be included i n the list o f L D C s is n o t justiciable. N o impartial organ can review the list proposed b y the C D P and approved b y the General A s s e m b l y . 7 1 A c o u n t r y that wants t o be included i n the list o f L D C s must make its case k n o w n t o the C D P and pressure for inclusion, w h i c h w i l l t h e n be proposed t o the General Assembly. I t can be argued that persistent exclusion f r o m the list of L D C s o f a country that satisfies the criteria constitutes a v i o l a t i o n o f the p r i n ciple o f equality of all States. Indeed, the denial o f an entitlement t o a State that meets the requirements t o w h i c h that entitlement is made subject amounts t o an unequal application o f the law, and contravenes the principle o f equality before the

should be removed." Yet the committee held the view that "an abrupt r e m o v a l . . . would not be desirable and therefore that no country at present included should be dropped from the list during the remainder of the decade." In addition, the committee noted that the criteria for the identification of the LDCs should be used "in a flexible and pragmatic manner." Report of the Committee for Development Planning, 11th session, U N Doc. E/5761, paras. 129-131 (7-16 April 1975). The justification for the position taken by the CDP on this issue lies in the necessity of giving stability to the emerging law of development. Indeed, implementation of the measures in favor of the LDCs requires some time, and the introduction of frequent changes in the legal framework of those measures would constitute a weakness. Furthermore, i n spite of a slight improvement in the social and economic indicators, the countries originally included among the LDCs remain among the poorest in the world. The sudden removal of benefits and preferential treatment could damage their economies considerably. 71

Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276(1970), 1971 ICJ 16, 28: " . . . the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs." The form of control over the acts of the organs of the United Nations is essentially internal and political. Indeed, the ICJ's advisory jurisdiction may be exercised only at the request of United Nations bodies. Art. 65 (1) of the Statute of the Court provides that "the Court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance w i t h the Charter of the U N to make such a request." See also Art. 96 of the United Nations Charter. As Brownlie observes, "there is no automatic recourse which can settle disputes on points of interpretation by members.... States in a minority may withdraw from the organisation, acquiesce in what they regard as illegal operations . . . or withhold financial contributions." Brownlie (note 15), 703. The last course of action is doomed to have little effect if undertaken by extremely poor countries.

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l a w . 7 2 A n act o f a U n i t e d N a t i o n s organ contrary t o a principle jus cogens 73 i n the case o f the principle of equality enshrined i n the U n i t e d Nations Charter, is theoretically v o i d . 7 4 B o t h the C D P and the General Assembly have expressed dissatisfaction w i t h the criteria set i n the early 1970s. I n 1991 the C D P decided t o revise the early established criteria and replace t h e m w i t h new criteria. 7 5 T h e C D P defined the L D C s as "those low-income countries that are suffering f r o m long-term handicaps t o g r o w t h , i n particular l o w levels o f h u m a n resource development a n d / o r severe structural weaknesses." 76 T h e G N P per capita criterion was maintained as a w a y o f q u a n t i f y i n g the m a i n element i n the definition o f an L D C , l o w income. A d d i t i o n a l l y , the A u g mented Physical Q u a l i t y o f Life Index ( A P Q L I ) and the E c o n o m i c Diversification I n d e x ( E D I ) were introduced. 7 7 Last but n o t least, the C D P decided that countries 72

See Part I.

73

Bleckmann (note 17), 88 questions "whether and to what extent Art. 2(1) creates jus cogens" obligations w i t h the argument that if one were to proceed, as some commentators do, i n assuming that international law, and in particular the principles of sovereignty and equality, are embedded i n the Charter itself, then the whole corpus of international law, or at least the legal rules directly deriving from the principles of sovereign equality, would be shielded from any kind of change. 74

See Brownlie (note 15), 701: "General international law provides criteria according to which an organisation may be held to be unlawful i n conception and objects, and, apart from this, particular acts in the law may be void if they are contrary to a principle of jus cogens." However, lack of justiciability may destroy the effects of this voidness in principle. O n this point Brownlie observes that "the problems arising from the ultra vires acts of international organisations are far from being resolved, and in any case are not susceptible to resolution by means of simplified formulations." Id. , 703. 75 Report of the Committee for Development Planning, 27th session, U N Doc. E/1991/32, paras. 215 - 259 (April 1991). The General Assembly endorsed the CDP's recommendation in G A Res. 46/206 of 20 December 1991. 76 77

Id. y para. 232

The A P Q L I comprises four different indicators: life expectancy at birth, per capita calorie supply, combined primary and secondary school enrollment ratio and adult literacy rate. The A P Q L I is meant to give a measurement of development in human resources, focusing mainly on education and health. The E D I quantifies the structural weakness of a country's economy. The E D I comprises the share of manufacturing in GDP, the share of employment in the industry, the per capita consumption of electricity and the export concentration ratio. The new criteria put forward by the CDP and endorsed by the General Assembly attribute more weight to the social element of development. Health and education are the bases of the A P Q L I , and the economic indices in the E D I are considerably more elaborate and comprehensive than the ones adopted earlier. Overall, the CDP has reflected the change i n perspective on the issue of development and has shifted its focus from a predominantly economic, or 'commodity-centered', view of development to a more social and human conception.

Definition of Developing Countries under GA TT and International Law with a population larger than 75 million cannot be included in the list as the measures therefrom deriving are conceived mainly for the support of small economies.78 As a result of the application of the new criteria, the CDP recommended the addition of six countries to the list of the LDCs 7 9 and the removal of one country, Botswana. The General Assembly endorsed the proposal of the CDP, but for the 'graduation' of Botswana decided that it would be erased from the list after a transitional period of three years. This transitional period of three years is to be applied to every country that graduates. Botswana has thus become the first country to graduate from the LDCs. 8 0 If one gauges the list of LDCs against the data on human development presented by the United Nations Development Programme (UNDP), 8 1 discrepancies emerge. First, some countries that are low H D I countries according to the U N D P reports are not in the list of LDCs. N o t considering India, Pakistan and Nigeria, which exceed the population limit of 75 million, 8 2 there are countries characterized by a low level of H D I that are not yet considered LDCs. This is the case for Cameroon, Ivory Coast, Kenya, Congo and Zimbabwe. 83 Moreover, Samoa, Cape Verde and Maldives are placed in the group of countries at a medium level of H D I . 8 4 Hence, despite the fact that the new criteria take greater account of the social aspect of development, they fail to do so to the same extent as the H D I does.85 According to the CDP, the main reason for the creation of the category of the LDCs rests on the existence of specific needs in certain developing countries and, in particular, on the fact that the measures usually adopted in favor of developing 78

This last criterion, however, is not applied to Bangladesh, which has a population of over 75 million and yet is a LDC. 79

The countries are Cambodia, Ghana, Madagascar, the Solomon Islands, Zaire and Zam-

bia. 80

Botswana's GNP per capita in 1991 was $2,580, while that of most other countries in the list did not exceed $1,000. Additionally, Botswana performed better than other LDCs in the educational and health sectors. 81 See note 9. These data are those contained in the U N D P Human Development Reports previously referred to. The categorization adopted in the U N D P reports (low, medium and high H D I countries) does not bear any legal consequrnces. It is nonetheless important because it reflects the most recent trends in development theory. 82

For Bangladesh see note 78.

83

U N D P Reports 1994 and 1996 (note 2). In the 1996 Report, which is based on 1993 data, Congo and Zimbabwe were placed in the category of countries at a medium level of H D I , but they are the poorest in that category. 84 Botswana is also considered a country at medium H D I . However, Botswana officially ceased to be considered an L D C in 1995. 85 This is mainly due to the impact of the E D I on the method of identification of the LDCs.

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countries may n o t be effective i n some o f t h e m . 8 6 Indeed, the countries that should fall i n t o the category o f L D C s are countries "that cannot benefit significantly f r o m trade measures geared t o manufactured and semi-manufactured products, unless at the same t i m e measures t o stimulate industrial p r o d u c t i o n and diversification are adopted." 8 7 I n deciding w h i c h countries are L D C s and therefore eligible for the benefits o f this category, attention should be given m a i n l y t o the very l i m i t e d capacity o f these countries t o benefit f r o m the largely trade-oriented measures for developing countries for the simple reason that the L D C s do n o t produce m u c h trade i n the first place. Therefore even i f the definition o f L D C s is n o t respondent t o the n e w theoretical approach t o development, it still seems pertinent t o the practical needs for w h i c h this category was originally established.

2. The International

Development

Association

88

I n d e t e r m i n i n g e l i g i b i l i t y for its funds, the I D A adopts four criteria. First, "the poverty o f the beneficiary c o u n t r y , measured entirely b y the G N P per capita"; second, "the recipient's l i m i t e d creditworthiness for b o r r o w i n g f r o m conventional sources"; t h i r d , the recipient's economic performance, " i n c l u d i n g its a b i l i t y t o make

86 I n 1990 the total net flow of external resources to the LDCs amounted to $17.2 billion, most of which was D A C (Development Assistance Committee of the OECD) bilateral and multilateral flows. O n the basis of the Paris Programme of Action, the developed countries should aim at contributing 0.15 % of G N P to assist the development of the LDCs. I n 1991 only the Scandinavian countries, France and Portugal met the 0.15 % requirement. A l l the other O E C D countries, and potentially larger contributors, fell short of the 0.15 % target. I n particular, the United States O D A to the LDCs was as low as 0.03 % of GNP, one-fifth of the target commonly agreed on at the Paris Conference. See D A C , Report on Development Cooperation 1992, 1992, table 40; U N C T A D , Least Developed Countries: 1993 - 1994 Report, U N Doc. T D / B / 4 0 ( 2 ) / l l , 13 et seq. 87

Report of the Committee for Development Planning, Official Records of the Economic and Social Council, U N Doc. E/4990, 51st session, Supp. 7, para. 47. 88

The I D A was established i n 1960 as an affiliate of the World Bank. Art. 1 of its Articles of Agreement states that "the purpose of the Association is to promote economic development, increase productivity and thus raise standards of living in the less-developed areas of the w o r l d included within the Association's membership." Between 1960 and 1993, the I D A is reported to have allocated nearly $70 billion to the less developed countries. Alvin LeRoy Bennett , International Organisation: Principles and Issues, 6th ed., 1995, 312. The International Finance Corporation (EFC) is the other main institution affiliated w i t h the World Bank group dealing w i t h development. However, its purpose is "to further economic development by encouraging the growth of production private enterprise in member countries, particularly in the less developed areas." Art. 1, Articles of Agreement of the IFC. The Articles of Agreement of the World-Bank-affiliated institutions are reproduced i n the appendices i n Ibrahim Shihata , The World Bank in a Changing World, 1991.

Definition of Developing Countries under GA TT and International Law effective use of resources and the availability of suitable projects." 89 The fourth criterion is determined by the size of the population. The main criteria of these four appears to be GNP per capita . Indeed as early as 1964 the board of the I D A agreed to "a strong presumption against lending to countries with a per capita income above $250." As of 1980 the limit had been increased to $730 and in 1995 it stood at $865. Most recipient countries meet this requirement, although exceptions are possible for those countries that exceed the limit only after a project has begun. In 1982 recipients of I D A programs were divided into two main categories according to the level of GNP per capita . A t the bottom level were countries w i t h GNP per capita of $410 or less; at the higher level were countries w i t h GNP per capita between $411 and $730.90 The legal status of the I D A criteria is very different from that of the definition of LDCs in the United Nations. 91 First, the definition of the LDCs is incorporated 92 into resolutions of the General Assembly. Hence, that definition has undoubtedly a 'soft-law' status and may arguably have an even stronger value. 93 The criteria adopted by the I D A are not incorporated into the statute of that organization or into any act of its organs comparable to a resolution of the General Assembly, w i t h the exception of the 1964 recommendation of the board to abstain from lending to countries with an income exceeding a certain limit. However, the recommendation of the board does not create an entitlement — or strengthen an existing one — to benefit from the lending programs of the I D A for countries below a certain level of income. The board limited itself to creating a presumption of non-entitlement against countries above that level. The second important difference, ancillary to the first, exists with respect to the position of the developing country vis-a-vis the organization. In the case of the 89

W o r l d Bank, I D A in Retrospect: The First Two Decades of the I D A , 1982, 22; World Bank, The World Bank Annual Reports. 90

I D A i n Retrospect (note 89), 29, figure 3.2.

91

Bouveresse does not analyze the I D A method of identification of developing countries as an example of the explicit definition. He considers it the best example of the technique of identification of the developing countries through the creation of a list. Bouveresse (note 4), 86. However, the I D A would probably claim that its lists are made as a result of the application of the criteria described in the main text. The reason why the I D A method is discussed here is the fact that the criteria seem to play some role — albeit narrower than i n the case of the LDCs — in the definition of the developing countries. 92

The criteria are not strictly speaking incorporated in the sense that the text of the General Assembly resolution contains them, but a clear reference is made to them. See, e.g., G A Res. 45/206 of 20 December 1991: "[The General Assembly] notes w i t h appreciation the new criteria for identifying the least developed among developing countries"; "[The General Assembly] endorses the recommendations of the Committee for Development Planning." 93

On the status of the General Assembly resolutions see Brownlie (note 15), 14, 699.

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LDCs, a country excluded from the list of LDCs can rely on a solid substantive basis to support its inclusion if it meets the requirements. In the case of the I D A , as a consequence of the more feeble legal status of the definition a country excluded from the list of the beneficiaries of the I D A aid program finds itself in a weak position vis-a-vis the organization. In addition, the existence of two other criteria (economic performance and creditworthiness), the evaluation of which necessarily occurs within wide margins of discretion, contributes to impairing the claim of the excluded developing country. The I D A method differs from the United Nations model for the identification of the LDCs also with respect to the issue of the 'graduation' of a developing country. While the General Assembly has adopted a flexible approach and has so far approved the graduation of just one country, the I D A has traditionally taken a more rigid stance. Thus once a beneficiary country passes the maximum threshold of G N P per capita it normally ceases to be a recipient of the programs in accordance w i t h the recommendations of the I D A board. 94 However, countries with GNP above the maximum limit have recently been considered eligible for EDA funds because of geographically weak positions. Tonga, Vanuatu and Western Samoa have thus been held eligible to receive I D A funds as they are small island economies.95 The method followed by the EDA thus differs from that adopted by the United Nations. Although the World Bank and its affiliated institutions are specialized agencies of the United Nations, they have not considered themselves bound by the resolutions of the General Assembly. 96 This practice is supported by the terms of the Relationship Agreement between the United Nations and these institutions wherein it is explicitly stated that the World Bank "will carry out the decisions of the Security Council," but is only required to give "due regard" to the resolutions of the General Assembly. 97 If the General Assembly resolutions were binding on the acts of the EDA, then it could be argued that, as the I D A concentrates its action on

94

Since 1961 many countries have thus graduated from the I D A list. Among them are Chile, Colombia, Turkey, Egypt, Paraguay, Tunisia, Nicaragua. 95

World Bank, Annual Report 1995, 206.

96

Shihata (note 88), 99 et seq.; Douglas Williams , The Specialised Agencies and the U N : The System in Crisis, 1987,160 et seq.; Benedetto Confortid Diritto Internazionale, 1992, 144. I n the 1960s, the General Assembly tried to prevent the World Bank and the International Monetary Fund (IMF) from assigning funds to Portugal and South Africa. However, i n spite of the claim of the General Assembly that its resolutions are binding w i t h respect to the activities of the World Bank and the IMF, neither institution complied with those resolutions; they argued that they enjoy complete autonomy in matters related to the allocation of their funds. 97 See Agreement between the United Nations and the International Bank for Reconstruction and Development, 15 November 1947, 16 U N T S 346; Agreement between the United Nations and the International Development Association, 27 March 1961, 394 U N T S 222.

Definition of Developing Countries under GA 7T and International Law the poorest developing countries, it would have to follow the General Assembly classification of LDCs in identifying recipients of its funds. 98 V. Other Methods of Identification of Developing Countries in International Law 1. Identification

through Self-Election

The method of self-election is theoretically followed in the implementation of the GSP. The conclusions of the second United Nations Conference on Trade and Development ( U N C T A D ) adopted in New Delhi on 12 October 1970" endorsed the principle of the self-election of developing countries to identify the beneficiaries of the GSP. A l l member countries of the Group of 77 declared themselves developing countries and claimed to be entitled to preferential treatment. However, as already observed, developed countries are under no obligation to recognize developing country status for a self-designated country. Each developed country may abstain from extending preferential treatment to one or more countries of the Group of 77 despite their collective self-election. Membership in the Group of 77 is largely coincident with membership in groups A and C of the U N C T A D . The latter are essentially geopolitical entities created to facilitate the organizational work of the U N C T A D . Indeed, group A includes all the African and Asian countries (with the exception of Turkey) and the countries of the former Yugoslavia; group B comprises the Western countries, Cyprus, Japan, Australia, New Zealand, Turkey and the Vatican State; the Latin American States are members of group C; the countries of the ex-Soviet bloc belong to group D. Cyprus and Malta are also members of the Group of 77, although they belong to U N C T A D Group B, as is Romania, which is part of group D. China, Israel and South Africa, all members of group A, are not in the Group of 77, while the PLO, despite the current lack of statehood, is. The exact criteria that regulate membership in the Group of 77 have never been made explicit. 100 When the Group of 77 was faced with the question of admitting 98

The list of countries eligible for I D A funding comprises a larger number of countries than the list of LDCs, and all LDCs in the United Nations classification are included i n the I D A list. Therefore, the adoption of the United Nations method would result in a reduction i n the number of recipients of I D A funding. 99 Proceedings of the United Nations Conference on Trade and Development, 2nd session, vol. I, Report and Annexes (1970). See also: Report of the Special Committee on Preferences, 10th session, Supp. 6, U N Doc. TD/B/300, Chapter 1 (31 March 1970 - 17 A p r i l 1970). 100

Marc Williams , The Group of 77: Anatomy of a Third World Coalition, Ph.D. thesis (University of London), 1986, 210; K. P. Sauvant , The Group of 77: Evolution, Structure,

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countries that did not belong to either group A or group C, the problem of membership and admission necessarily had to be considered. A t the Third Ministerial Meeting of the Group of 77 (February 1976 in Manila), in deciding that Romania could be admitted to the Group of 77, it was stated that the decision to accept Romania was taken in the light of the following criteria: 1) the countries in question should agree to participate i n the work and positions of the Group of 77 in all forums and not only on specific topics and aspects of international relations; 2) the fact of belonging to the 'B' or T>' lists would not constitute a problem provided that country in question did not aspire to elective offices; 3) the initiatives of developing countries members of the Group of 77 which do not belong to any of the three regional groups should be endorsed and channelled through any of them. 1 0 1

However, those guidelines contain no reference to the level of economic and social development or to ways of defining it. They seem to indicate rather what code of behavior is required from a country that has already been admitted to the Group of 77 on the basis of other elements; they should be considered conditions that members of the Group of 77 must abide by rather than criteria for the identification of countries eligible for membership. The fact that no clear-cut criteria for the identification of developing countries have been adopted by the Group of 77 demonstrates the reluctance of the same developing countries to follow the method of explicit definition. From the practice of the main donor countries and institutions it seems that the self-election of the country members of the Group of 77 is far from having obtained great legal significance. Indeed, in determining which countries are to benefit from its respective GSP, the United States has attempted to establish legal criteria and the European Community has followed a country-by-country approach, but each has failed to respect the self-election of developing countries. Section 502 of the United Organisation, 1981, 14. 101

K. P. Sauvant/J. W. Müller , The Collected Documents of the Group of 77, vol. IE, 1993, 60. As for the procedure for the admission of new members, the working group set in Geneva affirmed that membership remains in principle limited to countries in the geographical regions of Africa, Asia, Latin America. To become a member, a country within those designated areas must apply through the regional group to which it would belong. I n exceptional circumstances the Group may consider the application of a developing country which is located outside of the three geographical regions, provided that the developing country concerned has shown over a sufficient period of time that it has an identity of interests w i t h the Group of 77 and has consistently supported the positions of the Group i n all fora. Working Group on Procedures for Admission of New Members to the Group of 77, Geneva, 28 April 1976; in: id ., 83. I n this latter case, the decision on admission is taken by the Group of 77 as a whole. Although the conclusions of this working group were never officially endorsed, yet "the report can be taken as representing a broad view within the group of 77 since it was composed of representatives of all regional groups." Id ., 23, note 53.

Definition of Developing Countries under GA T and International Law States Trade Act (1974) establishes that the United States administration in deciding whether a country may benefit from the GSP or not should follow certain criteria, the main criteria being the country's will to become a beneficiary of the scheme, the level of economic development of the country, the behavior of other developed countries with respect to that particular developing country, the guarantees offered by the country to the United States that it will grant equitable and reasonable access to its market and natural resources. There are thus several elements apart from that of self-election — or willingness, as it were — of the country to be a GSP beneficiary. The last condition in particular is a de facto reciprocity requirement. As observed by Elkin , its presence appears hardly justifiable in a scheme of preferential treatment resting on the idea of 'compensative inequality'. 102 The European Community has followed the method of the list in applying the GSP. 103 Although there are some significant differences between United States and European Community practice, in neither case has self-designation of the member countries of the Group of 77 been perceived as binding. Self-election as a method for designating developing countries has achieved greater practical importance with respect to measures and instruments of South-South cooperation due to the greater influence of the Group of 77 on the creation of those instruments. For example the Agreement on the Global System of Trade Preferences among Developing Countries 104 is reserved "for the exclusive participation of developing countries members of the Group of 77" (Article 3(a)).

102 Elkin , Droit et pratique des preferences generalisee, 1985, 171 - 172. The concept of 'compensative inequality' (inegalite compensatrice) is a corollary to the principle of dual legal norms discussed in Part I: equal treatment cannot be given to situations that are not equal. 103 Annex C of EC Regulation 3154/78 of 29 December 1978, Official Journal Eur. Comm., No. L 375,1978 contains the list of countries eligible to participate in the GSP of the European Community. Annex D lists the LDCs, beneficiaries of a privileged status within the countries enjoying GSP status. It is interesting to note that the countries identified as LDCs by the European Community are the same as the LDCs in United Nations practice. W i t h regard to Annex C, it contains a list of all countries except for Romania, Malta and the People's Republic of Korea. Annex C includes also the countries of the ACP, which, however, under the Lome Convention benefit from a more advantageous system of trade preferences than the GSP. The European Community modified its GSP in the 1980s, deciding to target mainly the LDCs. See Com (80) 104 final, Brussels, 1980 containing the guidelines for the 1980s. For the GSP of the European Economic Community see Axel Borrmann , The Significance of the EEC's GSP, 1985; Elkin (note 102), 174 et seq.; Verwey (note 5); Yusuf (note 48), 120 - 127. 104

This Agreement was approved by the Ministerial Meeting of the Group of 77, which took place i n Brasilia 22 - 23 May 1986. Sauvant/Müller (note 101), vol. X V I I , 326.

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through Lists

The list method is widely used by developed countries in identifying the beneficiaries of bilateral O D A . It is also the method followed by the United Nations in determining which countries should bear the financial burden of peace-keeping missions, and by some multilateral treaties. The difference between identification through a list and identification through explicit criteria may sometimes be quite marginal. Indeed, a list is usually created to determine practically which countries are developing in light of certain criteria. As has already been mentioned, 105 the real difference between the two methods rests on the assessment of the role played by the criteria in identifying developing countries. In some cases, the criteria almost seem to follow the list: the beneficiary countries are identified on the basis of mainly political factors, and the criteria are there to provide a facade of non-arbitrariness. In other cases, such as the L D C classification, the criteria appear to be more genuinely applied. A variation of the list method is the 'negative list" of developed countries. Developing countries are thus identified a contrario. This is the practice of the United Nations in financing peace-keeping operations. Since 1973 the financial burden of peace-keeping operations has been distributed on the basis of a scheme that distinguishes between developed and developing countries. A l l the permanent members of the Security Council and other countries specifically mentioned in the resolutions of the United Nations are in the list of the obligated developed countries. A l l countries not included are to be considered developing. 106 Recently the United Nations Framework Convention on Climate Change has also adopted the method of the negative list. 107 Some obligations are imposed specifically on developed countries. Developed countries and other parties included in Annex I commit themselves to reducing greenhouse gas emissions. In addition, developed countries included in Annex I I have the obligation to financially assist developing countries in the adoption of measures necessary to comply w i t h the substantive requirements of the treaty. The difference between the two annexes is that 105

See Part E.

106

The resolution that defines this method is G A Res. 3101 ( X X V m ) of 11 December

1973. 107

U N Framework Convention on Climate Change, 9 May 1992, 31 I L M 1992, 849. This is only one among other conventions on environmental law to have adopted this distinction, usually in order to impose an additional financial burden on developed contracting parties. Other interesting conventions in this area are the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 I L M 1987, 154; Convention on Biological Diversity, 5 June 1992, 31 I L M 1992, 822. A l l these instruments are collected in: Philippe Sands/Richard Tarasofsky/Mary Weiss (eds.), Documents in International Environmental Law, 1994.

Definition of Developing Countries under GA TT and International Law the first includes the countries of the ex-Soviet bloc, while the second includes only O E C D countries and Turkey. 1 0 8 The wording of the treaty makes clear that Eastern European countries associated with developed countries for the purpose of one set of specific obligations are put in that category because of their capacity to pollute and not because of their level of development. Indeed, Article 4 refers to "developed country Parties and other Parties included in annex 1 . . . implying that other parties are not to be considered developed. Furthermore, the other set of specific obligations is imposed exclusively on the countries designated as developed. The financial obligations deriving from the treaty are thus incumbent solely on O E C D countries. This is substantially different from the earlier examined practice of the General Assembly in the financing of peace-keeping operations wherein Eastern European countries share the financial burden of peace-keeping operations w i t h Western countries. 109 However, that practice dates back to the early 1960s, when the contrast between the two blocs was at its apex. The Western countries would not have accepted paying for operations to which the Soviet bloc countries were not required to contribute. The new international scenario allows an assessment of the situation of Eastern European countries based on their economic condition rather than on political factors. 110 The list method is the one predominantly adopted in bilateral practice. 111 It is the type of aid in which political factors and relationships between countries play a major role. Indeed, bilateral donors have proved less capable, or less willing, to direct their aid to those areas more in need of intervention such as education, health care, nutrition etc. m It is also the sphere in which the position of a developing country aspiring to receive bilateral aid is weaker. Indeed, bilateral aid is described by the donors as the fulfillment of a moral obligation and ultimately as a decision related 108 Annex I I thus includes Australia, Austria, Belgium, Canada, Denmark, European Community, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States. The inclusion of Turkey among the countries obliged to provide financial assistance to developing countries is peculiar. Turkey is still in many respects considered a developing country and is a recipient of O D A . U N D P Report 1996 (note 2), 172. 109

See Petersmann (note 4), 544.

110

See also the discussion in the G A T T on the extension of GSP treatment to Eastern and Central European countries referred to above. 111

I n 1987 the O D A of the OECD members amounted to $41.5 billion, over 80% of world aid. D A C , Development Cooperation: 1988 Report, 1988, 11. 112

Only 7 % of the aid of private donors has been directed "to the priority areas of human development," while the multilateral donors have performed better, directing around 16 % of their aid to those areas. U N D P Report 1994 (note 2), 73. See also George Guess, The Politics of U.S. Foreign Aid, 1987, 257 et seq.

13 G Y I L 39

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to the use of national resources and thus pertaining to the absolute sovereignty of the State. Obviously, if the principle that developed countries have a legally binding obligation to transfer aid to developing countries should assert itself, the sovereignty of developed States in the sphere of bilateral aid would be conspicuously eroded as they would have to account for the fulfillment of an obligation. In that hypothetical case, the definition of developing country as emerging from the practice of multilateral agencies could be used to justify a claim vis-a-vis a developed country. The allocation of bilateral aid can hardly be described as a fair process that takes into account real differences in the level of development.113 The United States for example divides its O D A between strategic allies and poor nations: the former (Israel, Egypt, Bolivia, El Salvador) receive a larger share of aid than the much poorer countries of the second group (Bangladesh, Madagascar, Tanzania, Mozambique). 114 For the above-mentioned reasons, countries that are excluded from the United States aid program or that receive only a very small amount compared to other more developed recipients can do very little to change the situation from a legal point of view. Conclusion From the practice of the different organizations that have been examined some common elements emerge. First, certain countries are always considered developed and constitute the core of developed countries. A l l OECD countries are considered developed in the practice of various organizations. The position of Central and Eastern European countries is different. With the exception of Romania and the former Yugoslavia, which were often considered developing countries even before the collapse of the communist regimes, the other countries were put in the category of the centrally planned economies and were usually associated with developed countries. Nowadays, Western countries are less reluctant to accord preferential treatment to their old adversaries and the aspiration of the ex-Soviet bloc to benefit from the GSP is evidence of the new situation. However, it could hardly be argued that those countries are developing countries for all purposes. Rather they seem to fall into the penumbra between the two broad categories of developed and developing countries. The practice of considering OECD countries developed and the rest of the world — with the exception of the Central and Eastern European countries — developing has some following in the G A T T , although the tendency to create several subcategories of developing countries subject to different obligations and to varying degrees of preferential treatment is timidly emerging.

113 114

U N D P Report 1994 (note 2), 73.

Id. See also id., 97, table 41. Also the Reports of the D A C contain useful indications and statistics in this area. See note 86.

Definition of Developing Countries under GA TT and International Law Second, there seems to be sufficient practice to support the legal existence of the subcategory of LDCs. Initially created by the United Nations, this category has been given recognition by the practice of other organizations (the G A T T , the European Community, the Group of 77), which normally refer to the list of LDCs endorsed by the General Assembly on the basis of explicit criteria of identification. The third common element is the 'graduation' of a developing country once it has achieved a higher level of development. The 'enabling clause' under the G A T T entails the possibility of the graduation of a developing country once it has achieved a sufficient level of development in the agricultural or industrial sectors that enjoy preferential treatment. The United Nations has been very cautious in applying graduation to the LDCs in the belief that the sudden removal of a country and the consequent abrupt suspension of benefits may be harmful. Indeed, only one country, Botswana, has 'graduated' from the list thus far. In the practice of the I D A , however, graduation is quite frequent. In spite of these common elements, the absence of a generally agreed to definition of developing countries is a peculiar feature of international economic law. Verwey refers to three main factors that may account for this phenomenon. 115 First, the concept of developing country is vague. Second, within the same country very different levels of development may often be found. 116 Third, neither developed nor developing countries have ever really sponsored the adoption of a definition. The last factor seems material. Indeed, the flexible system currently in use works to the advantage of developed countries and also of some developing countries. The former can allocate aid on the basis of national interest and foreign policy and thereby strengthen their ability to influence the decision-making process in some countries. The present system is also advantageous for the upper layer of developing countries, i.e. those at a relatively high stage of economic and social development as they can receive large portions of aid and benefit from preferential treatment. A system such as the present one relies heavily on unofficial lists, or criteria that are often too vague or endowed with little legal value. As a result, the entitlement 117 115

Verwey (note 5), 348.

116

This is the argument used by the Committee for Development and Cooperation of the European Parliament in commenting upon the General Guidelines for 1983 concerning Financial and Technical A i d to Non-Associated Countries, proposed by the Commission (Com (82) 614, 2): It is not possible to establish rigid poverty threshold indicators for potential recipients using the standard criteria, since in countries w i t h a very uneven distribution of income and wealth, even a relatively favourable set of national, social and economic indicators can mask very serious regional or local imbalances which should not be overlooked. 117 Whether developing countries have a general entitlement in international law to receive aid from the developed countries is a question that is still open to debate. That entitlement could derive from the existence of a human right to development, solemnly proclaimed by

13*

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o f a developing c o u n t r y t o a certain benefit is n o t easy t o assert i f that c o u n t r y has been arbitrarily excluded f r o m the list of the beneficiaries; i n the absence o f clear criteria for identifying the beneficiaries o f a program, the p o s i t i o n o f the excluded potential beneficiary vis-a-vis the obligors is very weak. T h e s i m p l i f y i n g rhetoric o f the t w o economic blocs ( N o r t h - S o u t h , developed countries versus developing countries) has concealed the existence o f very different levels o f development. T h a t rhetoric has also c o n t r i b u t e d t o creating a b o d y o f international instruments and mechanisms that does n o t give adequate recognition t o the existence o f those differences. T h e current practice i n the identification o f the beneficiaries of aid and preferential treatment is characterized b y a h i g h degree o f arbitrariness o n the part of donor countries and institutions — w h i c h is a fundamental cause o f unfair d i s t r i b u t i o n o f benefits and aid. H o w e v e r , the tendency t o create m o r e t h a n a mere t w o categories o f countries has emerged. T h e establishment o f a more generally agreed t o legal framework based o n the creation o f various categories o f countries and the a d o p t i o n o f a clear set of definitions 1 1 8 and rules are necessary

the General Assembly in G A Res. 41/128 of 4 December 1986: Declaration on the Right to Development, but there is little agreement on the substantive content of that right. See Ian Brownlie , The Human Right to Development, Commonwealth Secretariat, 1989; Philip Alston , Making Space for New Human Rights: The Case of the Right to Development, Human Rights Yearbook, 1988; Antonio Cassese, International Law in a Divided World, 1986, 359. State practice in this area can contribute to the creation of such an entitlement. However, the fact that developed countries reject the legal existence of an obligation to contribute to development is material. A n interesting suggestion is to interpret the chapters of the United Nations Charter on cooperation between States (Chapters I X and X) in light of the evolution of international law. Paolo Picone/Piergiorgio Sacerdoti , Diritto internazionale dell' economia, 1980, 918. Indeed, other provisions in the Charter such as the one on self-determination have been given a generous interpretation following changes in international affairs and practice. Although developed countries argue that their commitment to help developing countries arises solely out of a moral obligation, there is sufficient practice to argue at least that developed countries have shown a certain level of commitment whatever the source of that commitment is. This practice is the result of bilateral and multilateral aid programs, declarations of foreign policy, resolutions of international organizations etc . A n analysis of the bilateral practice, which falls outside the ambit of this essay, would be material in assessing the degree of State practice i n this area. I n some cases developing countries can claim a 'legally harder* entitlement to a certain treatment or aid program. Indeed, this is the case when the source of the aid program or other preferential measure is a treaty. When the program is part of the activities of an international organization, the entitlement of the developing country to the benefit is arguably softer. The case of bilateral aid probably illustrates the best example of a very weak position of the developing country vis-a-vis a donor. The nature and intensity of the entitlement thus depends on its source, and the rank in the hierarchy of the sources of international law. 118

Legal definitions serve the purpose of limiting the discretion of the organs called to enforce the law. Giovanni Tarello , L'interpretazione della legge, 1980, 153. The question is

Definition of Developing Countries under GA T and International Law to improve the performance of the current system and in particular to make the distribution of aid and preferential measures more fair.

thus whether a limitation of the power of the different organizations would be advantageous for the beneficiaries. Whenever a decision is left to the discretion of organs, which are very often not truly super partes, factors such as the bargaining power of the parties, i.e. a country's political and economic influence, may play a crucial role. The adoption of clearer criteria for identifying various categories of developing countries would be material to limiting the impact of the political weight of developed countries on the process of allocating of international aid and assigning preferential treatment. W i t h the respect to the definitions, they ought to take into account economic as well as social indicators. The H D I could provide a statistical measurement of economic and social development. See note 9. However, the H D I does not give any indication of the ability of a certain country to cope w i t h the problem of development w i t h its own resources. G N P per capita could be used as independent criterion offering a measurement of a country's potential ability to tackle the problem of development w i t h its own resources.

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ARTICLES

Challenging the Classical Concept of Custom: Perspectives on the Future of Customary International Law By David P. Fidler'

Introduction O f all the sources of international law, customary international law (CIL) is perhaps the most controversial. International lawyers, tribunals and scholars consider treaties and CIL to be the two most important sources of international law, but treaties do not generate the controversy CIL creates. CIL causes problems wherever it is referenced: in the public international law course in law school, scholarly debate or the legal arguments before international or national courts. Every student, scholar and practitioner of international law faces a paradox w i t h CIL: CEL stands at the heart of modern international law while generating frustration and frictions in its identification and application. CIL appears indispensable and incomprehensible. In the contemporary international system, is CIL, to steal to a phrase from Winston Churchill , a riddle inside a mystery wrapped in an enigma? I n this Article, I explore CIL to discover whether any sense can be made out of the different attitudes towards it in scholarly literature. M y exploration proceeds in four parts. In Part I, I outline what I call the 'pedagogical perspective', which is the traditional perspective on CIL taught in law school. Analyzing the pedagogical perspective illustrates the difficulty students, scholars and lawyers have w i t h CIL in its classical form. The pedagogical perspective indicates that CIL is not easy to teach because it is not easy to understand. The troubles that arise in trying to figure out classical C I L suggest that the pedagogical perspective is inadequate to guide future thought about CIL. This inadequacy encourages the search for alternative perspectives about CIL and its place in international law.

* I would like to thank Jill M. Sears and Jack A. Bo bo, my research assistants, for their help i n preparing this Article. I would also like to thank Jost Delbrück and Curtis A. Bradley for their generous comments and ideas on an earlier draft.

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The difficulties rife with CIL found in the pedagogical perspective serve as an introduction to three alternative perspectives on CIL analyzed in Part II, which I call the dinosaur, dynamo and dangerous perspectives. These three perspectives disagree on the role of CIL in international law. Analyzing these perspectives adds further confusion to the attempt to understand CIL because the perspectives differ dramatically on the potential of CIL. While the confusion in the pedagogical perspective mainly stems from its failure to make sense of the fundamental elements of CIL, the confusion created by analyzing the dinosaur, dynamo and dangerous perspectives flows from differing attitudes about the potential CIL holds for international relations. These differing attitudes invite us to widen our examination even more to include international relations theory. In Part III, I attempt to explain the differences between the three perspectives through placement of the dinosaur, dynamo and dangerous perspectives within basic traditions of international relations theory. These traditions suggest that the differences between the three contemporary perspectives run deeper than disagreements on how traditional elements of CIL are used and reveal diverse images of international relations at work in analysis of CIL. This part of the analysis demonstrates that the problems associated with CIL ultimately stem from competing perspectives on international relations. Such a demonstration argues for seeking a more coherent understanding of CIL not in further refinements of the pedagogical perspective but in theories of international relations that might provide common ground for the dinosaur, dynamo and dangerous perspectives. In Part IV, I explore whether liberal international relations theory offers any potential to synthesize the three competing perspectives. In the post-Cold War era, liberal thought is ascendent, perhaps providing a coherent way to reconcile the confusion surrounding CIL. I conclude that liberal international relations theory does not provide synthesis but instead presents its own very radical perspective on CIL that differs from the pedagogical, dinosaur, dynamo and dangerous perspectives. Having pursued a desire for a more coherent understanding of CIL from the pedagogical perspective into the realm of international relations theory, I conclude that the future of CIL in international law and relations will remain controversial because the riddle of CIL turns out to be a choice driven not by legal analysis but by assumptions about the nature and potential of international relations. I. The Pedagogical Perspective As indicated above, the 'pedagogical perspective' refers to how CIL is traditionally taught in law school.1 Although such generalizations are always suspect, every 1

Another writer refers to this perspective as the 'orthodox account' of CIL. See Daniel M. Bodansky , Customary (and not so Customary) International Environmental Law, Indiana

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Student of international law learns the basic elements of CIL. The pedagogical perspective presents CIL as an established, well-understood process of international law formation; but, as each element of CIL is analyzed, CIL begins to be incoherent. It becomes apparent that the pedagogical perspective attempts to explain a process that has troubling weaknesses. These weaknesses have been the source for many attempts to lay a more coherent foundation for CIL. 2 Also disturbing about the pedagogical perspective is its failure to place CIL into context within international relations. It remains in that sense legalistic in its primary focus on the legal elements of CIL. 1. The Basics of Customary International Law a) Definition of Customary International Law As defined in Article 38(l)(b) of the Statute of the International Court of Justice (ICJ), C I L is defined as "international custom, as evidence of a general practice accepted as law." 3 The pedagogical perspective presents this definition as authoritative because it appears in Article 38(1) of the ICJ Statute, which "is generally regarded as a complete statement of the sources of international law." 4 Even though Article 38 (l)(b) is the starting place for the pedagogical perspective, this definition has been criticized by many international legal scholars. Karol Wolfke observes that international legal scholars find the definition in Article 38(l)(b) defective because general practice accepted as law is evidence of custom not the other way around as stated in Article 38(l)(b). 5 A deeper problem raised by the faulty drafting in Article 38(l)(b) is that, according to Wolfke , "the drafters of the Statute themselves had no clear idea as to what custom was."6 Wolfke bases this assertion on his analysis of the drafting of the Statute for the Permanent Court of International Justice.7 The authoritative starting point for the pedagogical perspective turns out to be a badly drafted definition that the drafters of the Statute did not seem to understand. Journal of Global Legal Studies, vol. 3, 1995, 105, 108. 2 Michael Byers , Custom, Power, and the Power of Rules: Customary International Law from an Interdisciplinary Perspective, Michigan Journal of International Law, vol. 17, 1995, 109, 136 (noting the problems w i t h the traditional presentation of C I L and the "many attempts to explain the process of customary international law i n a theoretically coherent way"). See also G. M. Danilenko , Law-Making in the International Community, 1993, 128 (noting the continuing controversial nature of CIL and arguing for "an authoritative clarification of how customary law is created, changed, or abrogated"). 3

Statute of the International Court of Justice, Article 38(l)(b).

4

Ian Brownlie , Principles of Public International Law, 4th ed., 1990, 3.

5

Karol Wolfke , Custom in Present International Law, 2nd rev. ed., 1993, 5 - 6 .

6

Id., 8.

7

Id., 2-5.

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Other definitions have been offered as better attempts to define CIL, but "[n]o definition of customary law has received universal agreement." 8 The Restatement (Third) of the Foreign Relations Law of the United States states that CIL "results from a general and consistent practice of states followed by them from a sense of legal obligation" 9 and that the essence of this definition "has wide acceptance."10 The Restatement definition puts into clearer language the elements of CIL and emphasizes that CIL flows from State practice and a sense of legal obligation. The pedagogical perspective tends not to dwell on Article 38(1)(b)'s problems but moves quickly into an examination of the traditional elements of CIL, which appear in Article 38 (l)(b) as well as other definitions like the Restatements. b) Elements of Customary International Law The traditionally recognized elements of CIL are: (1) general State practice, (2) uniform State practice and that (3) such State practice is accompanied by a sense of legal obligation, often referred to as opinio juris sive necessitatis. n The British international lawyer Brierly tried to capture the essence of CIL by observing that "what is sought for is a general recognition among states of a certain practice as obligatory." 12 The elements of CIL boil down to an 'objective' element — State practice — and a 'subjective' element — opinio juris. aa) State Practice State practice is an objective concept because international lawyers can discern it by observing what States do. International lawyers look for two things in State practice when searching for CIL: generality and uniformity of practice. 13 General State practice refers to a practice that is widespread in the international system but does not require that every State in the system adopts the practice. 14 Uniform State practice means that one can identify in a general State practice behavior following a coherent, identifiable rule or principle. State practice does not have to be identical but only has to demonstrate that States are acting more or less upon the same prin-

8 Restatement (Third) of the Foreign Relations Law of the United States, § 102, Reporters' Note 2.

9

Id., § 102(2).

10

Id., § 102, Reporters' Note 2.

11

Brownlie (note 4), 5 - 7; Byers (note 2), 136.

12

/• L. Brierly,

The Law of Nations, 6th ed., 1963, 61.

13

Brownlie (note 4), 5 - 6.

14

Id., 6.

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ciple. 15 Although the pedagogical perspective presents generality and uniformity as distinct elements of CIL, in practice the two meld together in a unitary analytical process. International lawyers cannot, for example, analyze whether State practice is general without having identified a practice that is uniform. In engaging in the empirical task of identifying whether a State practice is general and uniform, international lawyers consider all types of evidence: treaties, policy statements, diplomatic correspondence, national legislation, resolutions of multilateral fora and much more. 16 In relation to State practice, the pedagogical perspective presents the image of the international lawyer dispassionately engaging in an empirical task through the analysis of available evidence. This image is misleading because the State practice element of CIL contains serious problems that call into question whether analysis of State practice is really objective. The vast array of sources of State practice that an international lawyer should analyze are so numerous as to call into question the feasibility of the analysis of State practice. It stretches credibility to tell students that international lawyers thoroughly examine for any given State each category of possible evidence of State practice. Credibility disappears completely if students are told that this exercise is repeated faithfully for a large number of the approximately 185 States in the current international system to determine whether a practice is general and uniform. International lawyers have to be selective about what types of evidence of State practice are analyzed and which States have their practice analyzed. Picking and choosing from among the long list of possible sources of evidence of State practice usually brings up the 'words versus action* problem. This problem crops up when international lawyers have to decide whether to give more weight to the actions of States or to their written or spoken justifications, declarations or policies. A well-known 'words versus action' example is found in the controversy surrounding the importance of votes for or against U N resolutions as evidence of State practice. One of the best known scholars of CIL — Wolfke — argues that verbal acts, such as voting on U N resolutions, "do not constitute acts of conduct, nor, even multiplied, any conclusive evidence of any state practice." 17 Other authoritative scholars such as Ian Brownlie include verbal acts as material sources of custom. 18 The practice of the ICJ supports the position taken by Brownlie as the ICJ refers, for example, to resolutions of the U N in its decisions.19 Michael Byers believes that a "compromise position" is emerging between the two extremes "to the effect that 15 16

Id., 5. Id.

17

Wolfke

18

See Brownlie (note 4), 5.

19

(note 5), 84.

See, e.g., Military and Paramilitary v. United States), 1986 ICJ 14, para. 188.

Activities in and against Nicaragua (Merits) (Nicaragua

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resolutions and declarations are instances of state practice which do not carry as much weight as those instances of state practice that involve more traditional forms of state practice." 20 Although such a compromise position would serve the pedagogical perspective well, I submit that no such compromise position has in fact been reached. N o t only does ICJ practice clearly give U N resolutions great weight in analyzing CIL but also the three perspectives to be analyzed later in this Article take different positions on the value of resolutions and declarations from multilateral fora. Thus, the pedagogical perspective gives equal or greater weight to the 'words' of States as to their 'actions'. Students often find the equality of 'words' and 'actions' in analyzing State practice questionable because the history of international relations proves that verbal acts by States are less than revealing about a State's intentions or ultimate course of behavior. Virtually every State has in one form or another condemned torture as a violation of international human rights law; but, if Amnesty International is to be believed, torture has been widely practiced in the international system.21 The willingness to give 'words' equal weight with 'actions' typically found in the pedagogical perspective is the first indication that it avoids placing the CIL process directly into context w i t h the real world of international politics. A related problem comes up in connection with selecting evidence of State practice from among approximately 185 States. Under the pedagogical perspective, State practice has to be general and uniform throughout the international system and not just among a few States. Further, the doctrine of the equality of sovereign States, enshrined in the United Nations Charter, 22 means that all State practice should be equal under the CIL process. The combination of the principles of generality and uniformity of State practice and of the equality of sovereign States poses significant problems for the pedagogical perspective. To execute faithfully the dictates of the above-mentioned combination of principles would require thorough examination of the vast array of types of evidence of State practice for most if not all of 185 sovereign States. Even if adequate digests of State practice for every country in the world were available, such an examination would be prohibitively time-consuming and inefficient. Practically speaking, international lawyers typically analyze the State practice of a small number of prominent and powerful States.23 Although the peda20

Byers (note 2), 118.

21

See Amnesty International, Report on Torture, 1973, and Amnesty International, Torture in the Eighties, 1984. 22 U N Charter, Article 2(1) (stating that the U N "is based on the principle of the sovereign equality of all its Members"). 23

Jonathan Charney , Universal International Law, American Journal of International Law (AJIL), vol. 87, 1993, 529, 537 (stating that "when authorities examine the evidence necessary to establish customary law, they consider actions of a limited number of states, often only the largest, most prominent, or most interested among them"). See also Hiram Chodosh , Neither

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gogical perspective insists on general State practice, this requirement is ignored in the actual analysis of CIL. This problem goes deeper. The pedagogical perspective fails to acknowledge that in reality some States are more equal than others. As Byers observes, the "concept of formal state equality is considerably less useful with respect to the process of customary international law" than with respect to treaties because "it is generally easier for more powerful states to engage in behavior which will significantly affect the maintenance, development, or change of customary rules than it is for less powerful states to do so." 24 The pedagogical perspective again shows its legalistic approach by failing to place the doctrines of general and uniform State practice and of sovereign equality into political context. Rather than presenting the image of the international lawyer as an objective analyst of State practice, we find instead the pedagogical perspective presenting an inaccurate caricature of the operation of the analysis of State practice in the CIL process. There is nothing sinister about this situation because international law professors often discuss the traditional requirements for CIL quickly and incompletely for lack of time to devote to the problems of the pedagogical perspective. Directly confronting the problems with State practice produces, moreover, questions about the entire concept of CIL itself. If, in fact, the requirement for general and uniform State practice is not really observed, then the accumulated wisdom of the international legal profession on CIL crystalized in the pedagogical perspective seems like less than wisdom. bb) Opinio Juris The subjective element of CIL — opinio juris — refers to the motives behind State behavior. 25 For a general, uniform State practice to become CIL, the practice must be accompanied by a sense of legal obligation. 26 In other words, a State must behave a certain way out of a sense of legal obligation. Students of international law often join their professors in struggling to handle this 'psychological' element of CEL.27

Treaty nor Custom: The Emergence of Declarative International Law, Texas International Law Journal, vol. 26, 1991, 87, 102 (observing that "[t]he number of states required to meet the generality requirement is often no more than a mere handful"). 24

Byers (note 2), 115 .See also discussion of the role of the great powers in C I L formation i n Wolfke (note 5), 78 - 79. 25

For a general analysis of opinio juris see Jo Lynn Slama, Note: Opinio Juris in Customary International Law, Oklahoma City University Law Review, vol. 15, 1990, 603. 26 27

Brownlie (note 4), 7.

Wolfke writes that "[a]s regards the subjective element of international custom, the confusion in the theory and . . . also in the practice of the [ICJ], is still deeper and much more complex." Wolfke (note 5), 44.

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A well-known problem with the pedagogical perspective's use of opinio juris is its circularity. Anthony D'Amato poses the circularity problem this way: " H o w can custom create law if its psychological component requires action in conscious accordance with law preexisting the action?"28 The pedagogical perspective cannot explain how general and uniform State practice creates new CIL or modifies existing CIL because opinio juris requires that State practice already conform to existing law. Even though the opinio juris element makes it impossible to explain how new CIL is created or existing CIL is modified, the pedagogical perspective maintains that opinio juris remains a critical element of CIL. 2 9 Another problem with opinio juris is determining how to locate this sense of legal obligation in State practice. International lawyers must apparently find opinio juris expressed generally and uniformly in State practice for such practice to be accompanied by the requisite sense of legal obligation. A l l the problems confronting the analysis of generality and uniformity in State practice raise their heads as well in connection with the identification of opinio juris. With opinio juris , however, even more difficulties abound. If a State behaves in a certain way that is consistent with other State practice, but such a State says nothing about why it behaves the way it does, then how does an international lawyer find opinio juris ? In other words, opinio juris constitutes a special kind of State practice that requires a certain kind of evidence. Such special evidence may not, however, be readily available. As Hedley Bull observed, States often behave in accordance with rules of international law not because they respect the law but because such behavior serves raw self-interest. 30 If a State declares that it is behaving a certain way out of a sense of legal obligation, then we confront the 'words versus action' problem again. Can international lawyers take a State's words at face value, or does opinio juris require an independent analysis of a State's motivation? If statements reflecting a sense of legal obligation are to be taken at face value, then is not opinio juris really just a matter of 'objective' evidence of State practice? These questions indicate that the concept of opinio juris as presented by the pedagogical perspective is problematical. If we look to the practice of the ICJ on identifying opinio juris , the picture does not get clearer. According to Brownlie , the ICJ has adopted two approaches to opinio juris? 1 First, Brownlie argues that in the 28

Anthony A. D'Amato , The Concept of Custom in International Law, 1971, 66. The Restatement (Third) of the Foreign Relations Law of the United States also mentions the circularity problem. See § 102, Reporters' Note 2. 29

See, e.g., Brownlie (note 4), 7.

30

Hedley Bull, The Anarchical Society, 1977, 140. See also A. Mark Weishurd, Customary International Law: The Problem of Treaties, Vanderbilt Journal of Transnational Law, vol. 21,1988,1, 9 ("adherence to a rule provides no guidance because such usage does not necessarily prove that actors see themselves as subject to a legal obligation"). 31

Brownlie (note 4), 7.

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majority of cases, the ICJ has assumed that opinio juris exists because general and uniform State practice exists.32 This 'no scrutiny' approach essentially writes opinio juris off as an independent element of CIL formation. Second, the ICJ has in a few cases required positive evidence that opinio juris be present in State practice. 33 Brownlie cites the Lotus case, the North Sea Continental Shelf cases and Nicaragua v. United States as examples of the Permanent Court of International Justice's (PC1J) and ICJ's application of a 'strict scrutiny' approach to opinio juris?* In the Lotus Cas£5 and the North Sea Continental Shelf Cas&, the PCIJ and ICJ respectively found no positive evidence of opinio juris to support the alleged rules of CIL. In Nicaragua v . United States , the ICJ found positive evidence of opinio juris for the rule prohibiting the use or threat of force in the "attitude of the Parties and the attitude of states towards certain General Assembly resolutions^ ] " 3 7 Reliance upon such 'verbal acts' as U N resolutions raises the 'words versus action' problem in connection with determining whether opinio juris exists. Technically, resolutions of the U N General Assembly have no legal status or force but constitute political or aspirational statements.38 If a State supports a U N General Assembly resolution that asserts, for example, that all States have a legal duty to act in a certain way or refrain from acting in a certain way, does the non-legal character of the resolution taint it as evidence of opinio juris ? Wolfke argues that "votes cast by the members do not necessarily represent the actual acceptance as law of the conduct only verbally postulated in the context of the recommendation since the motive for such votes may be various." 39 In Nicaragua v . United States , even the ICJ observed that "[t]he mere fact that states declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law, and as applicable as such to those states."40 But the ICJ in Nicaragua v. United States relied heavily on U N resolutions for evidence of State practice and even more heavily for evidence of opinio juris. Clearly the ICJ perceives no problem w i t h dis32

Id. Byers also asserts that the ICJ "while supporting the concept of opinio juris in principle, has repeatedly ignored it in practice." Byers (note 2), 140. 33

Brownlie (note 4), 7.

34

Id. ,7 - 9. The ICJ also required positive proof of opinio juris in two cases involving the formation of regional custom. See the Asylum case (Colombia v. Peru), 1950 ICJ 266, 277 and Right of Passage over Indian Territories (Portugal v. India), 1960 ICJ 6, 40. 35

Lotus case (France v. Turkey), 1927 PCIJ (ser. A), No. 9, 23 - 26.

36

North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 1969 ICJ 4. 37

Nicaragua v. United States (note 19), para. 188.

38

Brownlie (note 4), 14.

39

Wolfke

40

Nicaragua v. United States (note 19), para. 184.

(note 5), 84.

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covering opinio juris in documents without legal status or force. The same concern could be raised about finding opinio juris in other sorts of evidence of State practice that are primarily political: policy statements, press releases, diplomatic correspondence etc. The pedagogical perspective does not address the anomaly of finding a sense of legal obligation in evidence that is quintessentially political in origin and intent. Another 'words versus action* problem in connection w i t h finding opinio juris comes in the following form: if 'verbal acts' are evidence of general and uniform State practice, is the location of opinio juris in the same verbal acts merely to collapse opinio juris into general and uniform State practice? In other words, is the 'strict scrutiny' approach of the ICJ in Nicaragua v. United States the same as the 'no scrutiny' approach in that opinio juris is presumed to exist in a general and uniform State practice? These questions echo the controversy about whether opinio juris is declarative of the existence of a rule of CIL or is constitutive of a rule of CIL. 4 1 The declarative position is that opinio juris merely serves to declare that a rule of C I L has formed. 42 Under the declarative position, finding opinio juris in evidence of State practice that also demonstrates uniformity and generality is not problematical. Under the declarative position, however, opinio juris is not apparently critical to the formation of a rule of CIL because it exists merely to recognize the rule of law developed independently of opinio juris. Such a position parallels the 'no scrutiny' approach of the ICJ but flies in the face of the pedagogical perspective's teaching that opinio juris is necessary to the formation of a rule of CIL. The pedagogical perspective, thus, contains the constitutive position, which holds that opinio juris is critical to the formation of a rule of CEL.43 The constitutive position supports the 'strict scrutiny' approach of the ICJ. The use of U N resolutions and declarations to constitute evidence of both general and uniform State practice and opinio juris seems, however, suspect under the constitutive position because opinio juris is independent of generality and uniformity as a precondition for CEL rule formation. Students should be forgiven for seeing analytical cacophony in opinio juris as presented by the pedagogical perspective. A final 'words versus action' problem is more substantive. H o w do we analyze State practice and opinio juris when the words and actions of States obviously differ? Nicaragua v. United States serves as a good illustration of this problem. Both Nicaragua and the United States verbally recognized in many contexts the prohibition on the use or threat of force, as pointed out by the ICJ. But it was also clear that both the United States and Nicaragua believed that using force directly or indirectly 41 For a discussion of this controversy see Olufemi Elias , The Nature of the Subjective Element in Customary International Law, International and Comparative Law Quarterly, vol. 44, 1995, 501.

42 43

Id., 502. Id.

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against another State was an effective instrument of national policy, which is exactly the type of belief the prohibition on the use or threat of force was designed to outlaw. D i d the United States and Nicaragua really demonstrate a general and uniform practice supporting the non-use of force or a sense of legal obligation not to use or threaten to use force in arming insurgencies in other States?44 Heavy reliance on verbal acts in ascertaining opinio juris can threaten to create a gap between international law and international politics. Again, the pedagogical perspective suffers from a lack of political context, much as it does in connection with the requirements of generality and uniformity of State practice. c) Universally Binding Nature of CIL If a general, uniform State practice accompanied by opinio juris is identified, then the pedagogical perspective informs students that the rule formed by the practice and accepted as law binds all States except persistent objectors (see discussion of persistent objector rule below). The universally binding nature of C I L raises some difficult questions for the pedagogical perspective. As noted earlier, C I L analysis typically examines the practice of a small number of States and then asserts the existence of rules that bind all States whether the rest of the States had their practice examined or even knew about the practice allegedly supporting the rule. This situation calls into question the legitimacy of binding all States under rules based on selective analyses of State practice. Under the pedagogical perspective, the theory used to explain the binding nature of CIL is the theory of State consent. This theoretical explanation contrasts, however, with the reality that many States never 'consent* to rules of CIL. As Jonathan Charney has argued, many international lawyers have abandoned the idea that CIL is binding under the theory of State consent because the theory does not explain what really happens in CIL formation. 45 Again, the pedagogical perspective seems out of touch with how CIL works in the real world. Here the gap between the pedagogical perspective and the actual operation of C I L erodes the legitimacy of CIL's binding nature, undermining the place CIL occupies in international law.

44

One might find in the justifications States give to explain actions that violate international law evidence of opinio juris in that justifications often seek to affirm the legal principles the States violate. Leaving aside the possibility that many justifications are merely hypocritical rhetoric by States, a deeper problem w i t h seeing such justifications as evidence of opinio juris is that the justifications actually evidence that a State believes that the legal principle in question is only binding under those conditions States find convenient and/or i n the national interest. The traditional theory of opinio juris does not recognize a conditional sense of legal obligation on the part of States. 45

Jonathan Charney , The Persistent Objector Rule and the Development of Customary International Law, British Yearbook of International Law, vol. 56, 1985, 1, 16.

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d) Persistent Objector Rule As mentioned earlier, under the pedagogical perspective the only exception to the universally binding nature of CIL is the persistent objector rule. 46 If a State consistently and without interruption opposes the formation of a rule of CIL, then that rule does not bind such a persistent objector. 47 The pedagogical perspective claims that the persistent objector rule recognizes the importance of State consent in the formation of CIL. 4 8 The pedagogical perspective's presentation of the persistent objector rule has come in for significant criticism. Some international lawyers reject State consent as a theoretical foundation for the persistent objector rule because State consent cannot be the basis for the binding nature of CIL. 4 9 Without State consent as a theoretical foundation, the persistent objector rule loses coherency. The remaining line of defense is that State practice recognizes the persistent objector rule. 50 Charney questions whether State practice really supports the persistent objector rule and asserts that the rule can only appeal to a small amount of supporting State practice. 51 Further, the way CIL actually forms severely limits the potential of the persistent objector rule because, as Charney argues, "many states do not know that the law is being made and thus have not formed an opinion." 5 2 The solid place the persistent objector rule occupies in the pedagogical perspective confuses students given the lack of a credible theoretical explanation and limited support for the rule found in State practice.

46 For general analysis of the persistent objector rule see Ted Stein , The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, Harvard International Law Journal, vol. 26, 1985, 457; Charney (note 45); David A. Colson , H o w Persistent Must the Persistent Objector Be?, Washington Law Review, vol. 61, 1986, 957. 47

Brownlie (note 4), 10. The ICJ has recognized the importance of the persistent objector rule in the following cases: Asylum case (note 34), 277 - 278; Fisheries case (United Kingdom v. Norway), 1951 ICJ 116, 131, 139; and North Sea Continental Shelf cases (note 36), 18 - 19, 27. 48

Wolfke

49

See, e.g., Charney (note 45), 16 - 18.

(note 5), 66.

50

See, e.g., Brownlie (note 4), 10 (arguing that "[wjhatever the theoretical underpinnings of the [persistent objector] principle, it is well recognized by international tribunals, and in the practice of states"). 51

Charney (note 45), 16.

52

Charney (note 23), 537.

14 G Y I L 39

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David P. Fidler e) Jus Cogens

Under the pedagogical perspective, the right to object persistently to a rule of CIL is not unlimited because some principles of CIL have gained jus cogens status. A jus cogens rule is a peremptory norm of international law "accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character." 53 The pedagogical perspective presents jus cogens norms as developing out of the CIL process but differing in important ways from ordinary CIL rules. 54 A jus cogens rule does not need to be supported by unanimous State practice in the international system,55 which means that it may bind a State without its consent.56 A tension in the pedagogical perspective immediately presents itself: if jus cogens norms develop through the CIL process, which is founded on State consent under the pedagogical perspective, how can such a process produce norms binding on States without their consent? The critical importance of the interests and values protected by the norm in question explains this derogation from the principle of State consent.57 Thus, not every rule of CIL, even if universally supported, becomes jus cogens because the rule has to serve directly vital interests and values of the international community. Although the exclusive economic zone is widely recognized as a principle of CIL, 5 8 it is not referred to as jus cogens because it does not rise to the critical level supposedly reserved for jus cogens. The ICJ in Nicaragua v. United States noted that the parties to the case recognized the prohibition on the use or threat of force as a jus cogens norm. 5 9 Under the pedagogical perspective, general and uniform State practice on issues touching upon vital interests and values of the international community has the potential to transcend normal CIL to form a rule of jus cogens. State practice supporting a jus cogens rule also needs to be more widespread and uniform in the international system to uphold rules that bind States without their consent. The derogation from the State consent principle is also explained by the near universality of State practice on issues and values vital 53

Vienna Convention on the Law of Treaties, 1969, Art. 53, 1155 U N T S 331, 344.

54

Brownlie (note 4), 513.

55

Lauri Hannikainen , Peremptory Norms (Jus Cogens) in International Law, 1988, 210 -

211. 56

The teachings of the pedagogical perspective on C I L and jus cogens w i t h respect to State consent were expressed well by a United States federal appeals court: "Whereas customary international law derives solely from the consent of states, the fundamental and universal norms constituting jus cogens transcend such consent . . . Siderman de Blake v. Republic of Argentina, , 965 F.2d 699, 715 (9th Cir. 1992). 57

Hannikainen (note 55), 241.

58

Robin R. Churchill/Alan

59

Nicaragua v. United States (note 19), para. 190.

V. Lowe , The Law of the Sea, 2nd rev. ed., 1988, 146.

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to the international community. As for the element of opinio juris y for a rule to become jus cogens through the CIL process, the element of "opinio juris must attribute to the norm not only ordinary obligatoriness, but also peremptory obligatoriness." 60 Further, the heightened quality of opinio juris must also appear almost universally in the international system to support the derogation from the principle of State consent. Even though the concept of jus cogens seems well-established in international law, 6 1 it remains very controversial. The pedagogical perspective presents as established a concept that generates heated discussion as to its existence, theoretical foundation, formation and use. Some scholars question whether the concept of jus cogens really exists because the theoretical basis for it is elusive. This concern relates directly to how a jus cogens norm supposedly forms. According to the pedagogical perspective, jus cogens norms develop through the CIL process, which is based on State consent. But the pedagogical perspective also holds that State consent does not explain the universally binding nature of jus cogens norms. This paradox explains w h y Wolfke questions whether the CIL process can by itself generate jus cogens norms. 62 To justify its exalted legal status, jus cogens must have some other theoretical basis than State consent.63 Another possible source for jus cogens norms is natural law, 6 4 but the pedagogical perspective does not offer up natural law or any other basis to explain the special legal effect of jus cogens norms. Weishurd argues that "[w]hen scholars cannot agree as to whether jus cogens norms are to be derived from positive law or are, instead, emanations of natural law, there is reason to question whether there is even a core understanding of the concept." 65 Another problem with the presentation of jus cogens by the pedagogical perspective is the lack of agreement that exists as to what rules of international law are jus cogens norms. 66 The criterion of relating to vital interests and values of the international community constitutes an incredibly vague standard that invites abuse rather 60

Hannikainen (note 55), 237.

61

The jus cogens concept has been recognized in the Vienna Convention on the Law of Treaties (note 53), Article 53, by the ICJ, by the International Law Commission and by eminent international legal experts and scholars. See the discussion of jus cogens in Brownlie (note 4), 512-515. 62

Wolfke

(note 5), 92.

63

A. Mark Weishurd , The Emptiness of the Concept of Jus Cogens, as Illustrated by the War i n Bosnia-Herzegovina, Michigan Journal of International Law, vol. 17, 1995, 1, 19. "Id., 65 66

19.

Id. , 28.

Brownlie (note 4), 514-515 ("more authority exists for the category of jus cogens than exists for its particular content"); Restatement (Third) of the Foreign Relations Law of the United States, § 102, Reporters' Note 6 ("[although the concept of jus cogens is now accepted, its content is not agreed").

1 *

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than rigorously identifying a coherent idea. The pedagogical perspective also does not clarify how widespread State practice and opinio juris have to be in the international system to support jus cogens norms. Finally, the pedagogical perspective handles State practice contrary to an alleged rule of jus cogens as a violation of the jus cogens rule rather than as evidence that State practice and opinio juris might not support the rule. International and national tribunals tend to categorize contrary State practice as violations of a jus cogens norm as long as opinio juris is sufficiently universal. 67 In the context of jus cogens, the pedagogical perspective seems to go to its greatest lengths to base legal analysis merely on the 'words' of States and to close its eyes to the unpleasant nature of the 'actions' of States. 2. Beyond the Legal Basics As noted frequently above, the pedagogical perspective lacks international political context, which gives it a legalistic and static feel. This situation is not altogether surprising because the pedagogical perspective is usually employed in teaching the basics of international law, not the complexities of international relations. The legalistic quality of the pedagogical perspective also reflects the general discomfort international lawyers suffer when examining how international law actually operates. 68 Besides pointing out to students how the practice of CIL differs from the pedagogical perspective, pedagogy on CIL can go beyond the legal basics to attempt to connect CIL w i t h concepts and ideas important in thinking about international relations. Going beyond the legal basics also opens up interesting and controversial aspects of the relationship between CIL and international relations generally. It also threatens to deepen our discomfort about the CIL process because it illustrates CIL being claimed for antithetical propositions.

67 The ICJ in Nicaragua v. United States (note 19) characterized the many examples of States using force directly and indirectly against other States since World War I I as merely violations of the jus cogens norm prohibiting the use of force by relying almost exclusively on opinio juris in U N resolutions and declarations that international law prohibited the use of force. The United States federal appeals court in Siderman captured well the unreal nature of jus cogens discourse in the pedagogical perspective when it stated: "That states engage in official torture cannot be doubted, but all states believe it is wrong, all that engage in torture deny it, and no state claims a sovereign right to torture its own citizens." Siderman (note 56), 717. 68 Byers (note 2), 113 (arguing that "[w]ith few notable exceptions, legal scholars have avoided considering directly the effects of power relationships on the creation of international legal rules").

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a) CIL and Images of Sovereignty As noted earlier, the source of CIL is traditionally understood to be State consent, which is a recognition of sovereignty. A n interesting question about the traditional presentation of CIL is what image of sovereignty it presents. O n the one hand, the requirements of general, uniform State practice accompanied by opinio juris seem to recognize a strong respect for sovereignty. A State is not bound by C I L unless it agrees to be bound. The persistent objector rule affirms a strong image of sovereignty. O n the other hand, the 'no scrutiny' approach to opinio juris , the heavy reliance on verbal acts as evidence of State practice and opinio juris and the jus cogens concept point to a weaker conception of sovereignty under which a State can be bound to a rule of CIL whether or not it has consented. One could even say that the conditions of the persistent objector rule are so restrictive as to render it ineffective as a safe harbor for sovereignty. 69 Charney has argued that the way CIL actually forms in contemporary international law means that "law is made without the conscious acceptance of most states."70 CIL conjures up both strong and weak images of sovereignty. A strong image of sovereignty contributes to notions of State autonomy and independence at the expense of community-wide values and norms. A weak image of sovereignty emphasizes the needs of the community of States over the autonomy of any particular State. More specifically, the strong image of sovereignty connects to the formal teachings of the pedagogical perspective, while the weak image of sovereignty relates to how CIL apparently operates in practice. This gap suggests that either the pedagogical perspective needs radical changing or the application of the CIL process needs to resemble more faithfully the teachings of the pedagogical perspective. To be able to identify both strong and weak images of sovereignty in CIL suggests that it lacks a coherent role in international relations. b) CIL and Ideology The potential for CIL to represent both strong and weak images of sovereignty ties into wider controversies in international relations. The hostility towards C I L on the part of socialist and developing States after World War I I demonstrated that CIL had an ideological aspect to it that the traditional explanation of CIL does not recognize. Particularly during the period of decolonization, new States emerged from foreign domination only to find themselves ostensibly bound by rules of C I L

69

See Charney (note 23), 540 (arguing that "state practice and other evidence do not support the existence of the persistent objector rule"). 70

Id., 538.

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made by and for the interests of the former colonial overlords. 71 Developing States led an attack on rules of CIL such as the standard for compensation for expropriated foreign-owned property, and emphasized the treaty over CIL as a source of international law. Ironically, developing and socialist States began to use CIL as an ideological weapon once their majority in international organizations became useful in creating State practice, 72 as illustrated by the attempt to change international economics through the New International Economic Order. 73 In some instances, like the standard of compensation for the expropriation of foreign-owned property and the 'common heritage of mankind* concept as applied to the deep seabed, CIL itself became an ideological battleground. Ideological conflicts involving CIL help explain why strong and weak images of sovereignty can be found within it. The ideological assaults on CIL by socialist and developing States also signaled that the institution of CIL — nurtured historically in an international system dominated by relatively homogeneous European States — had entered a new era of political, cultural and ideological heterogeneity. In such a diverse international system, CIL would reflect the general stresses and strains of the post-colonial era. Given that ideological division in international relations marks so much of this century, the CIL process, like everything else in international law, was subject to the consequences of such division. CIL does not exist independent of the often fractious and tense nature of international relations. As has been repeatedly stated, the pedagogical perspective does not address this reality in a forthright manner. Whether CIL adapted well or can still function effectively under contemporary international conditions is a question to which we will return in Part II. c) CIL and International Relations Theory C I L raises interesting issues not only for international law but also for international relations theory. CIL can, for example, be used to support different conceptions of international relations. Bull defined international society as "a group of states, conscious of certain common interests and common values, form[ing] a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and shar[ing] in the working of common institu-

71 Restatement (Third) of the Foreign Relations Law of the United States, § 102, Reporters' Note 2 (commenting that many States created by the post-World-War-II decolonization process "asked why they should be bound by preexisting law created by European, Christian, imperialistic powers"). 72

Byers (note 2), 118 (stating that new States used their majority in international organizations to advance their own interests). 73

See Stephen Zamora y Is there Customary International Economic Law?, German Yearbook of International Law, vol. 32, 1989, 9, 15 - 18.

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tions." 74 CIL can be seen as evidence that States form a society because CIL reflects in its rules common interests and values, constitutes a common set of rules and is a common institution in which States share in working. 75 The notion that CIL is evidence that an international society exists echoes the weak image of sovereignty reflected in some interpretations and applications of CIL. CIL can, however, be used to show exactly the opposite: that States do not form a society but in fact engage in relations in relative anarchy. The gap that exists between the explanation of the CIL process in the pedagogical perspective and the application of that process in reality suggests that international lawyers are attempting to disguise the essential impotence of CIL. Add to this the gap that exists between what CIL ostensibly regulates and what States actually do and C I L looks less like a pillar of international society. While CIL may exhibit the trappings of international society and suggest that international law is progressing "away from a law that binds states only towards a law of the world Community,"76 such 'progress' really amounts to a "heightened protest against the facts of international politics[.]" 77 In other words, CIL masks the reality that States share few common interests, values and institutions and that international law contributes little to international order or justice. As w i t h images of sovereignty, CIL supports two antithetical views on international society. 78 The two differing interpretations of CIL's place in international relations reflect traditional biases in international legal and international relations scholarship, with the former focusing on law and the latter on power. As Byers has attempted to show, analysis of CIL can bridge the gap between the international legal and international relations disciplines by incorporating how power affects the formation of CIL and how CIL affects the use of power. 79 Relating analysis of C I L with international relations theory plays a large role in examining the three competing perspectives presented in Part I I and further explored in Parts I I I and I V of this Article. The relevance of CIL to international relations theory suggests that what is

74

Bull (note 30), 13.

75

Byers (note 2), 111 (arguing that the C I L process is "a social institution created and shaped by the shared understandings and patterned behavior of self-interested states"). 76

Bull (note 30), 151.

77

Id.

78

Tasioulas also observes "two conceptions of customary international law and the rival conceptions of international society they presuppose. The first conception of custom is of a positivistic variety and draws on a statist conception of international society. The other manifests a natural law orientation and finds its rationale i n a communitarian account of that society." fohn Tasioulas , I n Defense of Relative Normativity: Communitarian Values and the Nicaragua Case, Oxford Journal of Legal Studies, vol. 16, 1996, 85, 85. 79

Byers (note 2), 110-111.

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David P. Fidler

at stake in understanding CIL goes much deeper than the pedagogical perspective traditionally indicates. I I . Three Contemporary Perspectives The problems revealed when the pedagogical perspective is analyzed have not, of course, escaped the notice of the community of international law scholars and practioners. These problems stimulate a great deal of thinking about the viability and potential of CIL in the contemporary international system. The future of CIL remains very much a controversial topic. In Part II, I examine three perspectives that offer different visions about the future of CIL: what I call the dinosaur, dynamo and dangerous perspectives.80 These three perspectives are not necessarily detailed critiques of the pedagogical perspective, but they do stand out as alternative positions on the C I L process and its future. 1. The Dinosaur Perspective The first perspective I call the 'dinosaur perspective' because it posits that C I L is an outdated relic of a lost age that has little relevance in today's international system. The dinosaur perspective asserts that the massive changes in international relations in this century have rendered CIL a legal fossil. These changes fall into three categories: (1) the dramatic increase in the number of States, (2) the dramatic increase in the diversity of States and (3) the emergence of global problems that have to be addressed in international fora. 81 Under the dinosaur perspective, each of these changes adversely affects the elements of CIL and its place in the international legal system. a) Increase in the Number of States The dramatic increase in the number of States in the international system, especially because of the post-World War I I decolonization process and more recently the disintegration of the former Soviet Union, complicates attempts to work the mechanics of CIL. As noted in Part I, CIL is supposed to form when a general, uniform State practice is accompanied by opinio juris . The dinosaur perspective asserts 80

The terms 'dinosaur perspective', 'dynamo perspective' and 'dangerous perspective' are my creations and represent my attempt to identify at least three themes in literature on CIL. I do not claim that these three perspectives are the only ones currently subject to scholarly discourse, but they seem to me to represent very distinct positions that are useful to explore i n analyzing CIL. 81

Charney (note 23), 543, 529.

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that a faithful effort to examine carefully the State practice and motivations of even a reasonable cross-section of approximately 185 States to discern generality, uniformity and opinio juris borders on the sisyphean. The increase in the number of States in the international system reinforces the selective approach to CIL formation discussed in Part I and demonstrates how hollow the traditional process of CIL analysis has become. The dinosaur perspective holds that (1) it is no longer feasible (as suggested by the selective analysis currently undertaken) to analyze State practice properly because there is simply too much potential evidence to consider, and (2) the selective approach currently practiced is misleading because it claims to be discerning a consistent State practice recognized as a legal obligation for all States based on minimal evidence. International legal authorities do not respect traditional conceptions of CIL and further cannot respect them given the massive amount of State practice generated by an international system populated by approximately 185 States. The dinosaur perspective contains at least two different normative responses to its critique of CIL driven by the increase in the number of States. One response advocates relying more on treaties because they can accommodate many States parties and thus serve as a legitimate and effective mechanism for the formation of international legal rules. 82 The efforts to codify areas of CIL in treaty form undertaken by the United Nations under Article 13 of the United Nations Charter can be seen as an attempt to supersede CIL in some areas with treaty law. The preference for treaties also extends to new areas of international relations where CIL has not developed adequately to serve the interests of States. The 'treaty response' seeks to continue international legal development through a more practical process than CIL. The concern w i t h a feasible process also contains worries about the cavalier attitude in contemporary CIL analysis towards State consent. The 'treaty response' attempts to restore the role of State consent in the formation of rules of international law because essentially it insists that States can be bound only when they expressly consent. A strong image of sovereignty informs the 'treaty response'. A second response goes in the opposite direction, adhering to a weaker image of sovereignty. This response advocates the acceptance of a new rule-making process in international law centered on multilateral institutions, such as the U N . Charney has argued, for example, that rule formation now largely takes place within formal, international institutions because such institutions accommodate all States and provide open forums for State positions on the formation of rules. 83 He advocates replacing C I L with what he calls "general international law" formed primarily through the

82

See Bodansky (note 1), 119 (arguing that rather than continue to debate whether a norm is CIL "our time and efforts would be better spent attempting to translate the general norms of international environmental relations into concrete treaties and actions"). 83

Charney (note 23), 544.

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workings of international institutions. More dramatically, Charney believes that norms formulated through the open, transparent process available in international institutions can have universally binding effect. 84 Charney observes that treaties alone cannot fill the void created by an antiquated CIL process and that another law-making procedure needs to be established to replace CIL. 8 5 b) Increase in Diversity of States The post-World War I I international system also experienced an increase in the diversity of States. The days of the hegemony of European culture, laws, power and attitudes are gone. State practice now emanates from, and opinio juris forms within, governments influenced by a bewildering array of political, economic, social, cultural, ideological and geopolitical factors. Further, States in the contemporary international system also differ dramatically in economic wealth, which can affect whether States devote resources to generating, compiling and organizing evidence of their State practice. 86 As a result, the practice of more affluent States like the United States is more readily available than the practice of many developing countries. 87 Perhaps this also helps explain why international lawyers and the ICJ do not typically engage in a system-wide analysis of State practice and opinio juris. The diversity of States in the current international system manifestly complicates, or renders artificial, the traditional mechanics of CEL. Under the dinosaur perspective, the traditional mechanics no longer serve the interests of most States or international law generally. The ideological attack mounted by socialist and developing States against C I L after World War I I reflects a more substantive problem with CIL in connection w i t h a more diverse international system. Socialist and developing countries complained that CEL reflected merely the interests and values of the N o r t h American and European capitalist States. The attack on CIL and the emphasis by socialist and developing States on treaties embodied the view that traditional CIL was an obstacle to new types of States exhibiting different visions of politics and great sensitivity to any encroachment on their sovereignty. 84

I d , 531.

85

Id., 551. Chodosh has similarly argued for recognition of what he calls 'declarative international law* that is different from CIL and could be based on resolutions and declarations of international organizations. Chodosh (note 23), 120 (discussing the difference between C I L and declarative international law). 86 Byers (note 2), 115 fn 16 (arguing that more powerful States can simply produce more State practice) and 144 fn 119 (stating that "[o]nly the most affluent of states publish digests of their own legally relevant behavior"). 87

Byers notes, however, that the United States has decided to stop publishing the Digest of United States Practice in International Law. Id, 144 fn 119.

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As w i t h the problems caused by the increase in the number of States, the dinosaur perspective has two responses: (1) rely more heavily on treaties as a way to include and integrate as much of the international system as possible so that diversity is reflected in the outcome, or (2) promote the inclusion of diverse concerns through new law-making procedures centered on international institutions. c) Emergence of Global Problems A third aspect of the dinosaur perspective is that CIL is an inappropriate or inadequate process through which States can address global problems. Global problems are those that cannot be addressed by States individually, bilaterally or regionally but have to be confronted globally by widespread international cooperation. Global problems include environmental protection (e.g. ozone depletion, global warming), conservation of common spaces (e.g. deep seabed, high seas and Antarctica), spread of infectious diseases, terrorism, international organized crime and the illegal drug trade. 88 The dinosaur perspective posits that CIL is inadequate to deal with global concerns for procedural and substantive reasons. Procedurally, CIL traditionally takes time to develop as State practice and opinio juris accumulate and age, like a good wine, into rules of law. 89 With many global problems, States are i n something of a race against time. Humanity cannot afford to wait for CIL to form in areas of urgent concern. Further, the CIL process is passive because it contains no formal mechanism for initiating and organizing action.90 Global problems require measures, quick action and organized State and multilateral initiatives. Substantively, it is questionable whether CIL can develop universal norms for addressing global problems. Global problems often touch upon matters very close to sovereignty, as illustrated by the intertwined nature of environmental protection and economic development. As a result, cobbling together sufficient State practice 88

Michael Reisman writes that [i]t should be clear to anyone w i t h the faintest understanding of international life that customary processes of lawmaking cannot deal w i t h the enormous problems facing the w o r l d such as the debt crisis, the complex arrangements involved i n a space station, the staggering detailed problems involved in meshing economically interdependent but functionally different national economies, the arranging of transnational defense against and suppression of terrorism and so on." W. Michael Reisman, The Cult of Custom in the Late 20th Century, California Western International Law Journal, vol. 17, 1987,133, 142 - 143. 89

As Brownlie observes, the CIL process does not require the passage of any specific amount of time. Brownlie (note 4), 5. Typically, though, C I L rules take some time to develop and be recognized as rules of international law. 90

Wolfke

(note 5), 54.

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and opinio juris , even using the most superficial approach to them, may be very difficult. Further, CIL norms often tend to be vague and ambiguous, leaving room for discretion and flexibility on the part of States. Global problems often need, however, detailed, specific rules in order to address the heart of the issue. Under the dinosaur perspective, CIL is constitutionally unable to develop the kind of cooperation and rules needed to address global problems. W i t h respect to handling global problems, the dinosaur perspective bifurcates. Some commentators believe that international law in any of its traditional manifestations is inherently incapable of establishing universal rules to deal with global problems. 91 Others advocate relying more heavily on multilateral treaties or developing new law-making procedures centered on international institutions. 92 The dinosaur perspective advocates in essence that CIL no longer be considered a major source of international law, which position radically breaks w i t h the traditional place of CIL in international law and thus with the pedagogical perspective. Under the dinosaur perspective, the CIL process should become mainly part of the history of international law rather than a living process still contributing to an international rule of law. 2. The Dynamo Perspective The 'dynamo perspective* fundamentally disagrees with the dinosaur perspective. The dynamo perspective posits that CIL remains a vital part of modern international law. In essence, the dynamo perspective argues that the changes experienced in international relations since 1945 have not turned CIL into a legal fossil. O n the contrary, the dynamo perspective holds that CIL is critical to tackling the new circumstances of international relations and to making progress towards a better world. The dynamo perspective has responses to the procedural and substantive critiques of CIL found in the dinosaur perspective. With regard to the problems caused CIL by the increase in the number of States, the dynamo perspective observes that C I L deals with this by placing greater emphasis on State practice and opinio juris as found within international organizations and other multilateral fora. Every member of the United Nations, and thus nearly every State in the international system, belongs to the U N General Assembly, which makes the votes on resolutions, recommendations and declarations of this body a valuable source of State practice and opinio juris

91 See, e.g., Christopher D. Stone, Beyond Rio: 'Insuring' against Global Warming, AJIL, vol. 86, 1992, 445, 464 - 468. 92 See, e.g., Bodansky (note 1), 119 (advocating increased use of treaties in environmental protection); Charney (note 23), 550 - 551 (advocating new law-making procedures within international organizations).

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for virtually the entire international system.93 In a sense, this aspect of the dynamo perspective resembles that branch of the dinosaur perspective that emphasizes rule formation in multilateral fora. But rather than call the result 'general international law', the dynamo perspective argues that such multilateral processes fit well into the traditional dynamics of CIL. State practice in such contexts can be analyzed efficiently for generality and uniformity, and opinio juris can be found in the solemn and considered support principles receive from States in such official circumstances.94 The dynamo perspective similarly deals with the diversity critique of the dinosaur perspective. CIL has come to reflect many of the interests and concerns of developing States through State practice accumulated through various multilateral fora. 95 Examining State practice and opinio juris emanating from multilateral fora enables international lawyers and tribunals to take account of the widest array of perspectives and positions. Further, the edge developed countries have over developing countries in terms of resources devoted to international law issues affects every aspect of international law, not just CIL. Emphasizing State practice and opinio juris from multilateral fora levels the playing field to a certain extent because such fora give developing States a voice they might not otherwise have. As for the dinosaur perspective's complaint that CIL cannot help States and the international community deal with global problems, the dynamo perspective responds by arguing that CIL contributes directly to handling global problems. The dynamo perspective observes that rules pertaining to human rights, 96 genocide,97 93

One commentator refers to resolutions and declarations of the United Nations as opinio communitatisy which reflects the "acceptance by states... of certain resolutions, guidelines, minimum rules, and declarations" created through the organs of the United Nations. Roy Lee, Rule-Making in the United Nations: Opinio Communitatis , New York University Journal of International Law and Politics, vol. 27, 1995, 571, 572. In keeping w i t h the dynamo perspective, Lee argues that "[v]oluntary acceptance by states of certain General Assembly resolutions m u s t . . . be regarded as a vast and rich source of international law." Id ., 576. 94 Lillich notes, for example, that in determining customary international human rights law great emphasis is placed on " U N General Assembly resolutions like the Universal Declaration [of Human Rights]." Richard B. Lillich , The Growing Importance of Customary International Human Rights Law, Georgia Journal of International and Comparative Law, vol. 25, 1995/ 1996, 1, 9. 95 For example, developing States have had an impact on changing C I L rules on the standard for compensation for expropriated property, the common heritage of mankind, and the exclusive economic zone. 96 See, e.g., Lillich (note 94), 8 (arguing that many norms found in human rights documents "now constitute part of customary international law binding upon all states"). 97 See, e.g., Lori Lyman Bruun , Beyond the 1948 Convention — Emerging Principles of Genocide in Customary International Law, Maryland Journal of International Law & Trade, vol. 17, 1993, 216 - 217 (customary international law prohibits genocide).

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protection of civilians during war, 98 the use of force, 99 environmental protection, 100 treatment of workers 101 and the management of common spaces102 are part of contemporary CIL; and, as such, these rules bind all States except persistent objectors; and some, like the prohibition of torture, use of force and genocide and the common heritage of mankind have become principles of jus cogens. The dynamo perspective advocates continued reliance oh CIL in connection with global problems. CIL is actually well suited to contribute to dealing with such problems because, unlike treaties, it can have universally binding effect and States cannot withdraw from its application. The dynamo perspective does not claim that CIL alone is sufficient to deal with global problems but rather that it is necessary to any international legal approach to such problems. What is striking about the dynamo perspective is that it sees CIL as a progressive, innovative force in contemporary international relations, which is an image very far from the pedagogical perspective's conservative image and the dinosaur perspective's fossilized image. Compared to treaties, which remain permanently locked in strong images of sovereignty, the dynamo perspective cherishes the flexibility and opportunity CEL provides to build international society and even global society out of a situation always bordering on anarchy. The dynamo perspective sees value in the ambiguity and vagueness of CIL where many see only trouble. Under the dynamo perspective, C I L is the 'common law' of mankind because it, and sometimes only it, can accommodate, or create a debate about, urgent concerns of justice and equity in international politics. The dynamic character of CIL can be illustrated not only at the international level — where international tribunals continue to rely heavily on it and where international lawyers engage in new and exciting arguments about it — but also at the national level. As Filartiga v. Pena-Irala 103 and its progeny 104 demonstrate, CIL is re98

See, e.g., Waldemar A. Solf, Protection of Civilians against the Effects of Hostilities under Customary International Law and under Protocol I, American University Journal of International Law and Policy, vol. 1, 1986, 117. 99

Nicaragua v. United States (note 19), paras. 187 - 190 (customary international law prohibits the use or threat of the use of force). 100

See Bodansky (note 1), 106 - 107 (listing environmental protection norms claimed to be customary international law). 101

Seey e.g., Leslie Deak , Customary International Labor Laws and their Application i n Hungary, Poland, and the Czech Republic, Tulsa Journal of Comparative and International Law, vol. 2, 1994, 1. 102

See, e.g., Louis B. Sohn, The Law of the Sea: Customary International Law Developments, American University Law Review, vol. 34, 1985, 271, 280. 103 104

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

Lillich observes that Filartiga "spawned a flurry of Alien Tort Statute litigation t h a t . . . has produced a sizeable body of U.S. case law affirming that a number of the norms found i n

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cognized as the law of the United States, on equal footing with treaties and statutes. 105 Far from being fossilized, CIL is alive and well even within national legal systems. The enthusiasm for CIL apparent in the dynamo perspective contrasts with the discomfort generated when analyzing the pedagogical perspective. Unlike the dinosaur perspective, the dynamo perspective desires to continue the traditional pedagogy about CIL. The dynamo perspective deals with the concerns about analyzing State practice by (1) using a wide variety of sources of evidence of State practice, 106 and (2) emphasizing multilateral treaties and declarations and other statements emanating from international organizations as evidence of State practice. 107 Under the dynamo perspective, the 'words versus action' problem has been resolved clearly in favor of 'words'. The dynamo perspective claims that this preference fits within the traditional CIL framework, but the preference does mark an important shift in the methodology of analysis of State practice because 'actions' or 'physical practice' is minimized significantly. 108 Further, primacy of verbal evidence collapses the analysis of State practice into the search for opinio juris , since opinio juris is normally discovered through 'words' rather than 'actions'. The dynamo perspective seems to offer a 'no scrutiny' approach on State practice rather than opinio juris. 109 The dynamo perspective also entails another methodological shift from what the pedagogical perspective presents. Scholars who would fall into the dynamo perspective have argued, usually in the human rights area but the point extends to other international legal fields, that certain areas of concern are so important to humanity and the international system that international lawyers require less State practice and opinio juris to identify rules of CIL. 1 1 0 Nothing in the pedagogical perspective the Universal Declaration have achieved customary international law status." Lillich (note 94), 5-6. 105

See Restatement (Third) of the Foreign Relations Law of the United States, § 111, comment d. 106

Lillich (note 94), 8 (discussing importance of referring to a wide variety of sources of State practice in analyzing customary international human rights law). 107

Id., 9 (with respect to human rights); Bodansky (note 1), 115 (noting emphasis on verbal rather than physical practice in analyses of customary international environmental law). 108

Bodansky notes that "the focus on verbal rather than physical practice could reflect ... merely a methodology for discovering the rules of state behavior." Bodansky (note 1), 115. 109

Bruno Simma/Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, Australian Yearbook of International Law, vol. 12, 1992, 82, 89 (arguing that CIL analysts today emphasize opinio juris manifested in products of international organizations over the actual actions of States). 110 See, e.g., Theodor Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, 94 (arguing that "those rights which are most crucial to the protection of human dignity and of universally accepted values of humanity, and whose violation triggers broad condem-

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teaches that the CIL process can be truncated if the norms are deemed meta-important. The dynamo perspective in a sense dilutes the CIL process to promote jus cogens norms or norms of near jus cogens importance, like erga omnes norms. 111 The dynamo perspective advocates a CIL process that is very different from the one found in the pedagogical perspective. The dynamo perspective seeks to take the CIL process out of its conservative tradition to transform it into a means to progress in international relations. 112 3. The Dangerous Perspective The final contemporary perspective sees CIL in its current manifestations as dangerous to international and national legal systems. The 'dangerous perspective' thus differs from the dinosaur perspective because it views CIL as very much alive and kicking and from the dynamo perspective because it does not believe that CIL's continued activity is progressive. The heart of the dangerous perspective is the belief that the changes in international relations since 1945 have exposed CIL to legal and political abuse and that CIL has been abused at the international and national levels. a) International Law The chief complaint of the dangerous perspective at the level of international law is that the CIL process has been transformed from a conservative, limited international legal process into the international legal equivalent of a wish list for Santa Claus . The number of so-called rules of CIL in today's international law is staggering. The dangerous perspective takes the post-World War I I explosion of rules of CIL not as a sign of progress but as a sign that something is rotten in CIL today. The rottenness has two aspects. First, the traditional elements of CIL — general, uniform State practice and opinio juris — are simply being ignored in a rush to champion new rules of law. As Bodansky observes, "a growing number of international legal scholars are recognizing nation by the international community, w i l l require a lesser amount of confirmatory evidence"). 111 As Weil argued, "[t]he intention behind the erga omnes theory . . . is to sound the death knell of narrow bilateralism and sanctified egoism for the sake of the universal protection of certain fundamental norms relating, in particular, to human rights. Like the jus cogens doctrine . . . , it is inspired by highly respectable ethical considerations." Prosper Weil , Towards Relative Normativity in International Law?, AJIL, vol. 77, 1983, 413, 432. 112 Simma/Alston refer to this phenomenon in the human rights context as the resort "to a progressive, streamlined theory of customary law, more or less stripped of the traditional practice requirement." Simma/Alston (note 109), 107.

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[that] there is a divergence between the traditional theory of customary law, which emphasizes consistent and uniform state practice, and the norms generally espoused as 'customary'." 113 Simma and Alston have in the human rights context referred to an "identity crisis in customary law" caused by the abandonment of the traditional mechanics of CIL for a methodology that "is able to find a customary law of human rights wherever it is needed."114 The famous British international jurist Robert Jennings similarly has argued that "[m]ost of what we perversely persist in calling customary law is not only not customary law; it does not even faintly resemble a customary law." 115 N. G H. Dunbar argues that international organizations, courts and publicists studiously avoid the traditional elements of CIL and that publicists "have been satisfied to express a belief, almost an act of faith, in the existence of customary international law without requiring evidence to support that supposition or any general consensus in respect of its essential ingredients." 116 Louis Henkin recently observed that customary human rights law should not be called 'customary' since it is not derived from State practice or consent. 117 Louis Sohn has been even more blunt about human rights law: " I would submit that states never really make international law on the subject of human rights. It is made by the people who care: the professors, the writers of textbooks and casebooks and the authors in leading international law journals." 118 The dangerous perspective also notes how international lawyers and law scholars have abused the concept of jus cogens. D'Amato has observed that "the sheer ephemerality of jus cogens is an asset, enabling any writer to christen any ordinary norm as a new jus cogens norm, thereby in one stroke investing it with magical power." 1 1 9 A jus cogens norm developed through CIL is doubly suspect under the dangerous perspective because the CIL process is misused and the elevation of so-called C I L norms to jus cogens status constitutes yet another step devoid of critical analytic rigor. The abuse of the jus cogens concept merely magnifies its "substantive emptiness"120 because the Pantheon of jus cogens norms unsupported by actual State prac-

113

Bodansky (note 1), 111.

114

Simma/Alston (note 109), 88, 107.

115

Quoted in Bodansky (note 1), 111 - 112.

116

N. C. H. Dunbar , The M y t h of Customary International Law, Australian Yearbook of International Law, vol. 8, 1983, 1, 18. 117 Louis Henkin, Human Rights and State 'Sovereignty', Georgia Journal of International and Comparative Law, vol. 25, 1995, 31, 38. 118 Louis B. Sohn, Sources of International Law, Georgia Journal of Intenational and Comparative Law, vol. 25, 1995, 399, 399. 119

Anthony D'Amato, It's a Bird, It's a Plane, It's Jus Cogens!, Connecticut Journal of International Law, vol. 6, 1990, 1, 1. 120

Weishurd (note 63), 50.

15 G Y I L 39

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tice reflects aspirations unconnected to the prerequisites of CIL or to the realities of international relations. Weil has also taken aim at the concept of jus cogens for basing normative considerations in international law on a "vague personification of the international community" that does not exist in the realities of international politics. 121 The poverty of attention given to the traditional elements of CIL or to the special requirements of jus cogens does not stop with international legal scholars seeking to make a splash in their published works. According to D'Amato, one of the most widely respected scholars of CIL, 1 2 2 the ICJ in Nicaragua v. United States "completely misunderstands customary law." 1 2 3 D'Amato severely criticizes the ICJ for its handling of the basic elements of CIL. 1 2 4 What D'Amato complains about essentially is the fact that the ICJ does not even try to conduct thorough examinations of State practice and opinio juris as required by traditional notions of CIL. Other scholars of international law agree with D'Amato's analysis. Charney observes that the ICJ in Nicaragua v. United States did not identify "the actual evidence of state practice" purportedly supporting the CIL analysis and that "the state practice was unproven." 125 Meron asserts that the ICJ's reference to State practice in Nicaragua v . United States "was more in the nature of a verbal protestation than a serious inquiry into the presence of the necessary elements of customary international law." 1 2 6 Tasioulas claims the ICJ's approach in Nicaragua v. United States constituted "a revolutionary technique that enabled it to derive customary norms prohibiting the use of force and intervention despite the absence of supporting general state practice, and in the face of considerable inconsistent practice." 127 This substantial list of observations that the CIL process today in no way resembles the process described by the pedagogical perspective echoes some of the problems raised earlier about the gap between what the pedagogical perspective teaches and what international lawyers actually do with CIL. A t the heart of the dangerous perspective is the concern that international lawyers and law scholars are perpetuating a fraud on international law by proclaiming rules of CIL by pretending to use the traditional mechanics of the process. Weil captured this process succinctly when he argued that: 121

Weil (note 111), 426, 441 - 442.

122

SeeD'Amato (note 28).

123

Anthony D'Amato , Trashing Customary International Law, AJIL, vol. 81, 1987, 101,

102. 124

Id., 102- 103.

125

Jonathan Charney , International Agreements and the Development of Customary International Law, Washington Law Review, vol. 61, 971, 995. m 127

Meron { note 110), 110. Tasioulas (note 78), 97.

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For the past several years, the degree of generality required of a practice, to enable it to serve as the basis of a customary rule, has steadily diminished, while, on the contrary, the binding character of such a rule once formed is being conceived of as increasingly general in scope. The result is a danger of imposing more and more customary rules on more and more states, even against their clearly expressed will. 1 2 8 T h e g u i l d o f international lawyers, i n short, is c o r r u p t i n g one o f the fundamental processes o f international law. Perhaps even more disturbing t h a n the lack of attention t o the basic elements o f C I L , according t o the dangerous perspective, is the enormous gap that exists bet w e e n m a n y so-called norms of C I L and State practice. C I L p r o h i b i t s t o r t u r e , b u t torture is epidemic i n the international system. 1 2 9 C I L p r o h i b i t s the use o r threat o f force, b u t States clearly still consider, and use force as, an instrument of national p o l i c y . 1 3 0 C I L prescribes humanitarian behavior i n international and civil conflict, b u t atrocities occur i n virtually every conflict o n appalling scales. 131 Transboundary h a r m f r o m p o l l u t i o n is prohibited, b u t States continue t o p o l l u t e w i t h adverse transboundary effects. 132 The dangerous perspective protests international tribunals,

128

Weil (note 111), 434.

129

In 1973, Amnesty International succinctly captured the gap between customary international law and political reality on torture when it stated that "[n]ever has there been a stronger or more universal consensus on the total inadmissibility of the practice of torture: at the same time the practice of torture has reached epidemic proportions." Amnesty International, Report on Torture (note 21), 27. The situation had not changed a decade later. See Amnesty International, Torture in the Eighties (note 21). 130

Both Alberto Coll and Antonio Cassese have argued that the prohibition on the use of force should not be considered a legal rule but rather a behavioral principle. See Alberto R. Coll , The Limits of Global Consciousness and Legal Absolution: Protecting International Law from Some of its Best Friends, Harvard International Law Journal, vol. 27, 1986, 599, 608; Antonio Cassesse, Violence and the Modern Age, 1988, 44. 131 Bull observed: It was noted also that international law has traditionally sought to restrict the manner i n which war is conducted.... It is notorious that these traditional principles . . . have been so far neglected in our own times that the law and the practice of war are utterly remote from each other. Bull (note 30), 156. The gap between law and reality appears as well i n jus cogens norms. Weishurd argues that "Bosnia-Herzegovina has shown that certain rules commonly thought to enjoy jus cogens status are not treated by states as fundamental in any recognizable sense." Weishurd (note 63), 49. 132 Bodansky (note 1), 115. Here the argument that most States obey most rules of international law most of the time might be raised to counter this aspect of the dangerous perspective. The problem w i t h this argument in connection to the way the dangerous perspective views the contemporary CIL formation process is that it is not really possible to say that most States obey most CIL rules most of the time because analysis of State practice and opinio juris is incomplete or because State practice clearly does not support the rule in question.

1 *

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lawyers and scholars equating State practice and opinio juris w i t h statements made i n international organizations because o f the near total refusal t o consider w h a t States actually do. U n d e r the dangerous perspective, such an approach violates the traditional conception of C I L b y divorcing it f r o m political reality. I n the 'words versus action' debate, the dangerous perspective seeks t o resurrect 'action' w i t h i n C I L t h i n k i n g . 1 3 3 T h e gulf between m u c h contemporary C I L and political reality threatens t o b r i n g international l a w as a w h o l e i n t o greater disrepute. T h e dangerous perspective identifies i n the law-reality gap suffered b y C I L a serious p r o b l e m w i t h conceptions about the role of the international lawyer. Bull best captures this concern: The doctrine that the role of the international lawyer is to provide an interpretation of the law that is not static and mechanical but dynamic and creative also appears at first sight one that promises to strengthen the contribution of international law to international order. . . . But if international lawyers become so preoccupied w i t h the sociology, the ethics or the politics of international relations that they lose sight of what has been i n the past their essential business, that is the interpretation of existing legal rules, the only result must be a decline in the role of international law in international relations . . . . [I]f a distinction is not preserved between those rules of international conduct which have the status of law and those which do not, international law cannot survive as a distinct normative system at all. 1 3 4 D'Amato

echoed Bull's sentiments w h e n he observed that:

We [international lawyers] are seen as loose and muddled i n our sources of law. We claim to find support for our propositions of international law i n literature, polemics, debates, almost anything. It appears that international lawyers w i l l cite almost any source to support a claim of law. Critics see this as nothing more than rhetoric and superficial persuasiveness.135

133

Id. (arguing that "studying verbal practice appears to be a misguided methodology for discovering behavior regularities"); Simma/Alston (note 109), 88 (stating preference for methodology of "inductive reasoning based on deeds rather than words"). 134 135

Bull (note 30), 159.

The Theory of Customary International Law, American Society of International Law Proceedings, vol. 82, 1988, 242 (remarks by Anthony D'Amato). Elsewhere D'Amato has written that it is amazing to me how many articles I read in journals that boil down to highly rationalized wishful thinking. The authors of these articles usually begin by repeating some random, disjointed platitudes about custom, then go on to address the merits of a particular dispute . . . , then compile some superficial linguistic support for their position from various U N resolutions, draft treaties, and writings . . . , and then conclude that customary international law favors the position they have been advocating! The idea that wishful thinking and lots of footnotes can give rise to a new rule of international law is one of the notions that lead outsiders to disparage international law. Anthony D'Amato (ed.), International Law Anthology, 1994, 108 fn 161.

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b) National Law The virtual abandonment of the traditional elements of CIL in favor of the 'progress' of international law threatens the legitimacy of law at the national level in democratic countries. The place of CIL within the domestic law of a democratic country has generated the most controversy in the United States. In The Paquete Habana, the United States Supreme Court held that CIL is part of United States law absent any treaty or controlling executive, legislative, or judicial act or decision. 136 The Restatement (Third) of the Foreign Relations Law of the United States declares that CIL is federal law and is supreme over state law under the Supremacy Clause. 137 In Filartiga v . Pena-Irala , the Second Circuit federal appeals court held that the law of nations is the law of the land and that the foreign defendant had violated the C I L prohibition on torture. 138 The Restatement acknowledges that it is unclear whether a new rule of CIL trumps an earlier federal statute or treaty under the later-in-time rule. 139 Influential commentators, like Henkin , argue that CIL should trump earlier federal statutes under the later-in-time rule. 140 Michael Glennon has argued that the executive branch cannot violate a rule of CIL if Congress has not specifically authorized such a violation. 141 Under the so-called 'modern position 142 in which CIL is federal law, the corrupted process by which CIL is typically 'made' today threatens democratically enacted law at the state level and potentially at the federal level. The contemporary CIL formation process (or lack thereof) directly and adversely affects constitutional and democratic principles and ideals. Phillip Trimble has attacked the domestic application of CIL in the United States as incompatible "with American political philosophy" 143 because "[t]he location of law-making authority outside American institutions cannot be reconciled with American political philosophy." 144

136

The Paquete Habana, 175 U.S. 677, 700 (1900).

137

Restatement (Third) of the Foreign Relations Law of the United States, § 111, comment d. 138

See Filartiga v. Pena-Irala (note 103).

139

Restatement (Third) of the Foreign Relations Law of the United States, § 115, Reporters' Note 4. 140 Louis Henkin , International Law as Law in the United States, Michigan Law Review, vol. 82, 1984, 1555, 1565. 141

Michael J. Glennon, Can the President do no Wrong?, AJIL, vol. 80, 1986, 923, 923.

142

See Curtis A. Bradley/Jack L. Goldsmith , Customary International Law as Federal Common Law: A Critique of the Modern Position, Harvard Law Review, vol. 110, 1997 (forthcoming). 143

Phillip R. Trimble , A Revisionist View of Customary International Law, University of California — Los Angeles Law Review, vol. 33, 1986, 665, 716. 144

Id, 718.

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For these reasons, the dangerous perspective calls for a rejection of the 'modern position' that C I L is United States federal law. 145 The debate over whether CIL should be considered domestic law in a democratic country brings to mind the monist/dualist debate about the relationship of international law to domestic law. The position taken by the United States Supreme Court that CIL is federal law resembles the monist perspective, 146 which holds that international and domestic law are part of the same legal order. 147 The dangerous perspective favors a dualist approach, which "points to the essential difference of international law and municipal law[.]" 1 4 8 For the dangerous perspective, dualism is the proper approach not only because international law and domestic law "regulate different legal subject matter" 149 but also because international and domestic law have profoundly different political foundations — State consent versus consent of the citizenry of one State. The same questions arise in English jurisprudence between the monist doctrine of incorporation 150 and the dualist doctrine of transformation. 151 In Germany, Article 25 of the Grundgesetz attempts to provide a less rigid dualist approach than the doctrine of transformation by providing in the constitution a general incorporation of CIL rules. 152 The German approach still leaves the incorporation of CIL rules in the hands of the unelected judiciary, thus diluting the democratic accountability of the CIL incorporation process. The indirect democratic legitimacy provided by the diluted dualism of Article 25 of the German Grundgesetz still serves democratic principles better that the monist doctrine of incorporation. Under the dangerous perspective, the corruption of the CIL formation process strengthens the theoretical position of dualism with respect to democratic philosophy.

145

For a thorough and persuasive critique of the 'modern position', see Bradley/Goldsmith (note 142). 146

Jonathan Charney , The Power of the Executive Branch of the United States Government to Violate Customary International Law, AJIL, vol. 80, 1986, 913, 914. 147

Brownlie (note 4), 33 - 34.

™Id., 32-33. 149

Id., 33.

150

The doctrine of incorporation states that CIL rules "are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent w i t h Acts of Parliament or prior judicial decisions of final authority." Id., 43. 151

Under the doctrine of transformation, CIL "is a part of the law of England only in so far as the rules have been clearly adopted and made part of the law of England by legislation, judicial decision, or established usage." Id., 44. 152

Grundgesetz, Article 25.

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The dangerous perspective's attachment to the importance of democratic principles in analyzing CIL brings into the debate the nature of internal governments. In essence, the dangerous perspective asserts that the nature of a State's government has an effect on international legal obligations. The nature of a State's government is not a subject of discussion in the pedagogical, dinosaur and dynamo perspectives, all of which adhere to the traditional position that all States, regardless of the nature of their internal regimes, are equal in and before international law. The dangerous perspective questions, if only incompletely, this traditional attitude. It raises two radical possibilities. First, the dangerous perspective might imply that a rule of C I L cannot bind a democratic State under international law until that rule has been transformed into domestic law by democratic procedures and institutions. Under this view, CIL could not bind a State under international law until the State had formally adopted the rule in question in a manner analogous to the ratification of a treaty. If applied, this position would radically shift attention from State practice and opinio juris at the international level to how a State accepts CIL through internal or constitutional law. Making the international legal effect of CIL dependent on the domestic legal incorporation of CIL would effectively end CIL as we know it. The second radical possibility implicit in the dangerous perspective is to reject the idea that CIL is domestic law without some transformation through democratic procedures and institutions. This position would not affect the legally binding nature of CIL on democratic States at the international level; but it would end, in the American context for example, the doctrine of recognizing CIL as federal common law. This second possibility, thus, only affects how CIL could be used in litigation in domestic courts. CIL would continue to operate at the international level, subject of course to the dangerous perspective's criticisms of the contemporary CIL process. It is this second possibility that best represents those who have made arguments against CIL that characterize the dangerous perspective. I n questioning the democratic legitimacy of CIL, the dangerous perspective departs radically from the other perspectives analyzed in this Article. As indicated above, this aspect of the dangerous perspective can be interpreted as a basis for undermining CIL as a source of international law or as a way to exclude CIL from gaining status in domestic law without transformation through democratic means. This discourse in the dangerous perspective foreshadows the radical approach to C I L contained in the liberal perspective analyzed in Part IV. I I I . The Three Perspectives and Images of International Relations As Part IE illustrates, attitudes towards CIL differ greatly in contemporary thinking about the subject. A t a deeper level, the differences become even more dramatic. Each perspective analyzed in Part I I can be seen as embodying a different image of

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international relations, which means that the outlook of each on the potential for international law in international relations differs significantly. By examining these images of international relations, we will discover the perspectives even farther apart than the earlier analysis indicated. Each of the three perspectives analyzed in Part I I has affinities w i t h one of the three traditions of international relations theory identified by the British scholar Martin Wight : rationalism, revolutionism and realism. 153 The dinosaur perspective contains attributes of rationalism; the dynamo perspective demonstrates the characteristics of revolutionism; and the dangerous perspective exhibits tendencies found in realism. 1. Rationalism and the Dinosaur Perspective According to Wight , rationalists "are those who concentrate on, and believe in the value of, the element of international intercourse in a condition predominantly of international anarchy." 154 Each of the dinosaur, dynamo and dangerous perspectives contains elements of rationalism because none rejects international intercourse; but the dinosaur perspective, more than the other two, expresses rationalism's belief in reason and its operation in the relations among States.155 Wight observed that the rationalist sees "international society as a customary society . . . as essentially a kind of customary law." 1 5 6 The dinosaur perspective argues, however, that international society has expanded and changed so dramatically that CIL no longer adequately supports it. Rationalists, according to Wight , are essentially contractarians. 157 The inability of the CIL process to incorporate more States, diversity of States and global problems into the contractual spirit of rationalism forces international lawyers to look elsewhere for better ways to preserve the international social contract. Like rationalism, the dinosaur perspective believes that "it is possible to make broad statements of a common international interest, . . . especially through the constitutional machinery and organizations of international society." 158 As noted earlier, treaties and new law-making procedures in international organizations receive favorable attention as the successors to CIL in international law. Under the dinosaur perspective, international law still plays an important role in the creation and solidification of common values, interests and institutions and thus in the preservation of interna153

See Martin Wight , in: G. Wight/B. tions, 1991,7-24. 154

Id., 13.

155

Id., 13-14.

156

Id., 39.

157

Id.

158

Id., 128.

Porter (eds.), International Theory: The Three Tradi-

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tional society. CIL has, however, lost its place in international law and thus in the pursuit of rationalism's objectives. 2. Revolutionism and the Dynamo Perspective According to Wight , revolutionists are those who believe so passionately in the moral unity of the society of states or international society, that they identify themselves w i t h it, and therefore they both claim to speak i n the name of this unity, and experience an overriding obligation to give effect to it, as the first aim of their international policies. 159

Those who champion the continued relevance and potential of CIL exhibit revolutionist characteristics because they see CIL as important to the progress of international society and are willing to transform CIL in pursuit of such progress. The areas where the dynamo perspective is most active, like human rights and environmental protection, reflect a passion for conceiving of the world as a "single human republic" 160 or as "a world society of individuals." 161 The embrace of the jus cogens concept also reveals the dynamo perspective's universalism. The universally binding nature of CIL, thus, continues to serve the dynamo perspective well as it attempts to reshape the face of international relations. The dynamo perspective advocates the use of a progressive CIL process to build "an international community and solidarity of interest" 162 and to engender "a progressive convergence, an immanent solidarity of interests" 163 among States and peoples. This progressive impulse enlivens C I L and keeps it relevant to international relations and injects vision and hope into international law. 3. Realism and the Dangerous Perspective According to Wight , realists "are those who emphasize in international relations the element of anarchy, of power-politics, and of warfare." 164 Those sympathetic to the dangerous perspective tend to emphasize how dramatically real international relations differ from the purported rules of CIL — thus stressing how much conflict, tension and division actually exists in the international system and how little international law impacts State behavior. The dangerous perspective does not, like the

159

Id., 8.

160

Id., 40.

161

Id., 45.

162

Id., 114.

163

Id., 115.

164

Id., 15.

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rationalist dinosaur perspective, see great potential in treaties or new law-making procedures largely because of skepticism about the potential of international law in an essentially anarchical system. The dangerous perspective, true to the tenets of realism, views the progressivism of the dynamo perspective as a false or misleading impulse that blinds adherents to the true ugliness of international politics and the limited role of international law. The effort to resurrect Actions' in CEL analysis has behind it an intent to have international law reflect international reality, even if that means the promise of international law in international relations loses some of its luster. 4. Perspectives Worlds Apart Seeing in the dinosaur, dynamo and dangerous perspectives rationalism, revolutionism and realism respectively indicates that the three perspectives inhabit different world views. The perspectives differ significantly on (1) the place of CIL in international law, (2) the role of international law in international relations and (3) the potential international relations hold for humankind. The differences among the perspectives, thus, are much more profound than quibbles over legal technicalities in CIL. The realization that these perspectives on CIL incorporate different views about international relations pours cold water on any desires we might have to synthesize them into a single grand perspective. 165 I V . Customary International Law and Liberalism's 'Triumph' As Part E I indicates, the distance that separates the three competing perspectives on CIL, both in terms of the mechanics of CIL and in terms of the images of international relations the perspectives project, is significant. One possible way that the distance might be reduced in an attempt to bring the perspectives closer together is to examine whether the increased attention devoted to ascendancy of liberal thinking on international relations in the post-Cold War era affects CEL. Much of the controversy generated in connection with CIL in this century stemmed from ideological conflict in the international system. With the collapse of communism, liberalism has emerged as the dominant political theory. The 'triumph* of liberalism has encouraged international relations 166 and international law 1 6 7 scholars to examine

165 Byers attempts to develop "a general theory of customary international law" through the prism of realism. Byers (note 2), 111, 112. A harder challenge comes in trying to find common ground between realism and other equally strongly held world views as they affect CIL. 166 See, e.g., Charles W. Kegley, Jr., The Neoliberal Challenge to Realist Theories of World Politics: A n Introduction, Michael W. Doyle , Liberalism and World Politics Revisited and Mark W. Zacher/Richard A. Matthew , Liberal International Theory: Common Threads, Diver-

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closely liberal t h e o r y and its implications. I n Part I V , I w i l l attempt t o see w h e t h e r liberalism's t r i u m p h has affected o r m i g h t affect C I L and its place i n international law. As indicated earlier, Byers attempts t o craft 'a general t h e o r y o f customary international l a w ' b y c o m b i n i n g international legal and international relations t h i n k i n g . 1 6 8 Byers uses, however, assumptions of realism i n his analysis. 1 6 9 Later, he emp l o y s regime t h e o r y o r institutionalism t o argue that the C I L process is a a powerq u a l i f y i n g social i n s t i t u t i o n o f the k i n d for w h i c h m a n y international relations scholars are searching." 170 As Slaughter has argued, 'institutionalism' is one interdisci-

gent Strands, all three in: Kegley (ed.), Controversies in International Relations Theory: Realism and the Neoliberal Challenge, 1995, 1, 62 and 107 respectively; Richard Little, International Relations Theory and the Triumph of Capitalism, in: K. Booth/S. Smith (eds.), International Relations Theory Today, 1995, 62. 167 See, e.g., Anne-Marie Burley, Toward an Age of Liberal Nations, Harvard International Law Journal, vol. 33, 1992, 393 (arguing that liberal internationalism w i l l be the framework for international politics in the next millennium); Anne-Marie Burley, Law among Liberal States: Liberal Internationalism and the Act of State Doctrine, Columbia Law Review, vol. 92,1992,1907 (analyzing the aa of State doctrine through the application of a liberal internationalist model of international relations); Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, AJIL, vol. 87, 1993, 205 (arguing for an interdisciplinary approach to international law utilizing international relations theory, especially liberal theory); Anne-Marie Slaughter, International Law in a World of Liberal States, European Journal of International Law, vol. 6, 1995, 503 (attempting to develop an integrated theory of international law and international relations through liberal theory); Anne-Marie Slaughter, Liberal International Relations Theory and International Economic Law, American University Journal of International Law and Policy, vol. 10, 1995, 717 (arguing that international relations theory can contribute to international law and applying liberal international relations theory to the extraterritorial application of United States law); Anne-Marie Slaughter, The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations, Transnational Law & Contemporary Problems, vol. 4, 1994, 377; David P. Fidler, War, Law & Liberal Thought: The Use of Force in the Reagan Years, Arizona Journal of International & Comparative Law, vol. 11,1994, 45 (analyzing use of force controversies during the Reagan years using liberal international relations thinking); David P. Fidler, Caught between Traditions: The Security Council in Philosophical Conundrum, Michigan Journal of International Law, vol. 17,1996, 411 (analyzing future of the Security Council through different perspectives within liberal thought on international relations); Benedict Kingsbury, The Tuna-Dolphin Controversy, The World Trade Organization, and the Liberal Project to Reconceptualize International Law, Yearbook of International Environmental Law, vol. 5, 1994, 1 (analyzing whether the proposals for a liberal reconceptualization of the framework of international law is relevant to environmental controversies concerning W T O principles). m

Byers { note 2), 111.

169

AaT., 112.

170

Id., 136.

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plinary approach to international law. 171 Slaughter claims that liberalism is an "alternative framework" for interdisciplinary approaches to international law, 1 7 2 and it is this framework that I use to explore contemporary debates on CIL. 1. Basic Elements of Liberal Theory Liberalism is generally considered as one of the major theoretical perspectives on international relations. 173 As I have written elsewhere, "[liberalism refers to a body of thought the core of which is the liberty of the individual." 174 The primary focus of liberal international relations theory is the individual, not the State as it is for realism. 175 The primary concern of liberal international relations theory is the liberty of the individual both within his or her State and abroad. In contrast, the primary concern of realist theory is State power. The importance of the individual and individual liberty in liberal international thought makes the nature of the State — is it a dictatorship or a democracy? — very important. Realism is sometimes faulted for excluding the nature of governments from its analysis.176 Liberal international theory posits that liberal democratic States behave differently in international relations than non-liberal States, making the spread of democracy a goal to improve individual liberty at home and overseas. Liberal international theory recognizes the importance of the State as the foundation for democratic politics; and, as a result, acknowledges that the structure of international relations will remain 'anarchical' — sovereign States interacting without recognizing any superior power. The potential trouble lurking in such an anarchical System is ameliorated by forces operating at three levels. First, individual and private transactions, mainly of a commercial nature, bind States together in economic interdependence, weakening the power of the formal States while strengthening a sense of transnational community. Second, democratic governments maintain peaceful relations among themselves because of the liberal like-mindedness that animates their international politics. Third, democratic States cooperate internationally to solidify common interests and values and to work through disagreements through international law and organizations. Much of 171

Slaughter Burley, Dual Agenda (note 167), 206.

172

Id ,227.

173

"Realism and Liberalism, along with Marxism , have been the three main philosophies of international politics." Stanley Hoffmann/David P. Fidler , Introduction, in: Hoffmann/Fidler (eds.), Rousseau on International Relations, 1991, lxxvi. See also Zacher/Matthew (note 166), 107. 174

Fidler, Caught between Traditions (note 167), 413.

175

Byers (note 2), 112 (stating that a key assumption in realism is that States are the primary actors). 176

Ole R. Holsti, Theories of International Relations and Foreign Policy: Realism and its Challengers, in: Kegley (note 166), 40.

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liberal international theory is normative rather than descriptive, but some scholars have provided empirical evidence that supposedly validates the proposition in liberal international relations theory that individual freedom fostered by democratic politics renders international relations between democracies cooperative, prosperous and peaceful. 177 2. Liberal Theory and Customary International Law As indicated above, international law finds an important place in liberal international theory because through it democratic sovereign States resolve differences. To my knowledge, international legal scholars examining liberal international theory have not broken down international law into its sources and analyzed those sources directly w i t h respect to liberal international theory. Slaughter writes, for example, that public international law includes inter-governmental agreements, customary international law, and the law of international institutions. Liberal international relations theory combined w i t h an assumption of liberal states generates insights and predictions in all three areas. 178

Slaughter addresses, however, only inter-governmental agreements. 179 M y task is to find what 'insights and predictions' liberal international theory has for CIL. a) The Purpose of CIL A threshold question is whether liberal international theory gives CIL the prominence it enjoys as a fundamental source of international law under the pedagogical perspective. To answer this question, two further questions need answering: (1) What is the purpose of CIL in international relations?, and (2) H o w does this purpose relate to liberal international theory? International lawyers tend not to be very interested in explaining why CIL exists and why it is so important. 180 This lack of interest suggests that the purpose of CIL is fairly obvious: CIL exists to fulfill the needs of States for rules to govern their interactions where formal agreement has not been or cannot be reached. Comparing a national legal system to the international legal system, CIL supplements treaties as

177

See Michael W. Doyle , Kant, Liberal Legacies, and Foreign Affairs, Philosophy & Public Affairs, vol. 12, 1983, 2 - 5 (Parts 1 - 2). 178

Slaughter , International Law in a World of Liberal States (note 167), 528.

179

Id.

180 Seey e.g., DanielM. Bodansky , The Concept of Customary International Law, Michigan Journal of International Law, vol. 16,1995, 667, 668 (arguing that "[l]egal historians and legal anthropologists . . . have much to teach international lawyers about customary law").

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common law supplements statutes. The purpose of CIL, therefore, is to help bring order and predictability to international relations, which is an objective fully compatible with goals in liberal international theory. Liberalism sees a need for rules to govern inter-State relations, and CIL plays a role in supplying such rules. b) The Legitimacy of CIL The central importance of democracy to liberal international theory raises the question about the legitimacy of CIL. Democracy entails citizens governing themselves through laws approved by the citizens or their representatives. The process of law formation is critical to democratic theory. The process by which CIL forms is not, however, directly connected to democratic institutions or accountable to them. 181 Under liberal political theory, therefore, CIL's legitimacy is suspect because the process by which it is made has no philosophical or practical connection to democratic principles. While raising doubts about the legitimacy of CIL as a source of international law, liberal theory recognizes that international relations is not and will never be a democratic process. The nature of international relations requires rules agreed upon among States. In recognizing the need for rules in international relations, liberal theory keeps its suspicion about the legitimacy of CIL under control. The illegitimacy of CIL as a source of international law and the recognition of the need to have rules in international relations create a tension in liberal theory. Utilizing CIL to promote liberal interests and values helps liberal theory alleviate this tension. International legal rules limiting the right of States to wage war and promoting individual rights and freedoms have been long-standing liberal projects in international relations. Liberals have attempted to harness the C I L process to further these projects. CIL rules prohibiting the use of force by States except in cases of self-defense and protecting human rights actually promote a particular concept of sovereignty in international relations that differs radically from traditional notions of sovereignty. Under liberal theory, sovereignty does not imply unlimited power to wage war against other States or to mistreat citizens internally. Liberals desire that sovereignty be restricted in international relations much like the powers of the government are limited vis-a-vis individuals in domestic society. Liberal theory seeks to increase the freedom of individuals in the spaces created by the limitations on a State's sovereign powers. The behavior of individuals takes on a quasi-public function in stabilizing international relations through economic intercourse and in 181

Trimble has argued that CIL's "formulation cannot be explained in a manner consistent w i t h the central features of traditionally accepted American political philosophy, and thus cannot be grounded in social values of the community subject to the law." Trimble (note 143), 673. See also his discussion, id., 716 - 723.

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sustaining domestic order through the institutions, patterns and predictability of private enterprise. The liberal conception of sovereignty affects CIL because it focuses CIL analysis on whether State practice supports or conflicts w i t h the liberal image of sovereignty and because it raises the question whether private transnational commercial activities can affect our understanding of CIL. Analyzing CIL through liberal theory in the manner suggested above sharply focuses attention on whether and how rules of CIL and the CIL process support and/or advance liberal interests and values. M y analysis proceeds first by examining CIL in the context of relations between liberal and non-liberal States. Later I work through an analysis of CIL based on a hypothetical world of liberal States. In both situations, liberal theory does not include CIL as a very important source of international law. c) The Traditional Elements of CIL in the Context of Relations Between Liberal and Non-Liberal States In the context of relations between liberal and non-liberal States, the tension between the recognized need for rules of international law and the concerns about CIL's undemocratic origins is at its most acute. If relieving the tension requires (as posited above) the promotion through CIL of liberal conceptions of sovereignty, such promotion runs headlong into the presence of non-liberal States and their conceptions of sovereignty. Liberal discomfort with rules of CIL is, therefore, likely to be significant, meaning that liberal States will find the need for rules of CIL circumscribed by an international environment unconducive or hostile to liberal interests and values. Analysis of each of the traditional elements of CIL from the liberal perspective bears these observations out. aa) State Practice State practice would still be a relevant concept under liberal international theory because the State remains a central feature of the theory. A number of aspects of liberalism complicate, however, the traditional empirical task of ascertaining whether general and consistent State practice exists. The first point relates to the legitimacy issue. In evaluating the multitude of possible sources of State practice, liberalism's emphasis on the relationship of law to democratic politics suggests that international lawyers should not treat all State practice equally. Traditionally, international lawyers look at any evidence of State practice without analyzing whether the source of the evidence was democratically accountable.182 Liberalism encourages us to ask why 182

Some scholars recently have argued, however, that international law now recognizes a right to democracy. For the most well-known presentation of this argument, see Thomas M.

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diplomatic cables from an unelected bureaucrat should count equally with a congressional resolution, or why the practice of a dictatorship counts equally w i t h that of a democracy. Liberal international theory pierces the traditional international law position that a State's internal procedures are irrelevant in determining rules of international law. Under the doctrine of sovereign equality, all State practice is equal in the eyes of international lawyers for purposes of CIL formation. 183 We know from our analysis of the dinosaur perspective that this theory is not followed much in reality as the practice of many States is simply ignored. Liberalism posits, however, a different problem with the equality of State practice doctrine. Since democratic States are different, perhaps the practice of democratic States should count more heavily in the evaluation of general and uniform State practice than the practice of non-liberal States. More radically, perhaps liberal international theory contains notions of C I L limited to liberal States.184 Under such notions, the kind of sovereignty involved in State practice, not just sovereignty, would drive the evaluation of State practice for C I L purposes. 185 The overall effect of emphasizing liberal State practice more than non-liberal State practice would be to weaken the traditional universal nature of C I L and to make it harder to generate general and uniform State practice. As between liberal and non-liberal States, CIL would decline in importance as a source of international law. Another issue raised for the State practice element of CIL is liberalism's emphasis on economic interdependence. Liberalism encourages private transnational activity as much as it does formal State practice. Traditionally understood, CIL cannot register the impact on international relations of the practice of non-State actors. The best CIL can do is register State practice in the form of international trade policies that create opportunities for private enterprise. In the area of international economic law, however, CIL plays a minor role. 186 Treaties dominate in international economic relations. In one of the critical areas of international relations for liberalism — economic intercourse — CIL is not important as a source of international law. Francky The Emerging Right to Democratic Governance, AJIL, vol. 86, 1992, 46. 183

Byers (note 2), 113 - 114.

184

This thought brings to mind the concept of 'local custom', which is sometimes recognized in a bilateral context. See Brownlie (note 4), 9 -10. 185

Slaughter acknowledges that liberal theory's emphasis on the nature of the governmental regimes i n the international system is a "heretical" idea "from a traditional international lawyer's point of view." Slaughter Burley, Dual Agenda (note 167), 233. Slaughter applies the heretical when she reinterprets the act of State doctrine using liberal theory and applying the reinterpreted doctrine against non-liberal States "as a badge of alienage." Burley , Law among Liberal States: Liberal Internationalism and the Act of State Doctrine (note 167), 1990. 186

Zamora (note 73), 10 - 11; John H. Jackson/William J. Davey/Alan O. Sykes , Jr., Legal Problems of International Economic Relations, 3rd ed., 1995, 269.

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The exclusion of lex mercatoria from traditional CIL ignores, however, the liberal notion that private transnational behavior serves a quasi-public purpose in creating the web of economic interdependence between nations. Perhaps it follows from liberal international theory that the CIL process should take into account the practice of private persons and enterprises as well as the practice of States. Such a notion is even more radical than the idea that the State practice of democracies should count more than that of dictatorships or other types of non-liberal States. In the context of relations between liberal and non-liberal States, the quasi-public purpose liberals attribute to private transnational activity is not necessarily shared by nonliberal States, which weakens the argument that the lex mercatoria can be incorporated into notions of CIL. bb) Opinio Juris In considering the requirement that a general, uniform State practice be accompanied by a sense of legal obligation, the legitimacy problem crops up again. For a democratic State to obey a principle based on general and uniform State practice out of a sense of legal obligation presumes the principle somehow connects with democratic processes and principles. In other words, the sense of legal obligation arises from within the democratic polity not outside of it. Traditional notions of C I L do not advocate delving into opinio juris in the way suggested by liberal international theory. Liberalism also encourages international lawyers to give more weight to evidence of opinio juris from liberal States than from non-liberal States because liberal States are different. Implicit in this idea is the notion that opinio juris from a liberal State means more because it is connected directly to a political philosophy deeply respectful of law and the rule of law. Such a reading of opinio juris creates the possibility of CIL limited to liberal States. As with the liberal perspective on State practice, the favoritism shown opinio juris of liberal States in liberal C I L analysis would undermine the universality of CIL and make it harder for rules of CIL to form. Examining opinio juris in connection with the liberal attachment to private transnational economic activity also yields interesting observations. The liberal emphasis on international trade and commerce produces two levels of analysis of opinio juris : (1) the private parties engaged in international business transactions must themselves follow the lex mercatoria out of a sense of legal obligation, and (2) the States must acknowledge the legal impact of the lex mercatoria by modifying domestic law to conform to it and/or codifying it in international treaties. 187 When the two forms of 187 Slaughter , International Law in a World of Liberal States (note 167), 519 - 520 (observing that the lex mercatoria often influences domestic law or finds its way into international treaties).

16 G Y I L 39

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opinio juris coincide, perhaps one can speak of lex mercatoria as if its rules had CIL status from the liberal perspective. In a world of liberal and non-liberal States, the convergence of the two streams of opinio juris in connection with the lex mercatoria might be difficult to locate, particularly when liberal theory advocates discounting the opinio juris of non-liberal States. d) The Persistent Objector Rule The persistent objector rule exists, according to the pedagogical perspective, to protect sovereignty because CIL is based on State consent. Under liberal international relations theory, the persistent objector rule retains importance in relations between liberal and non-liberal States because the rule stands as a bulwark for liberal principles in that it allows a liberal State to keep itself free of majoritarian norms generated by non-liberal States.188 Although the theoretical basis and empirical evidence for the persistent objector rule's presence in the pedagogical perspective have been questioned, liberal international theory holds firmly to the persistent objector rule in order to give liberal States an option to stand by liberal principles against non-liberal initiatives. The ideological basis for the continued need for the persistent objector rule also gives non-liberal States the right to object persistently to liberal initiatives on CIL. The discounting of non-liberal State practice and opinio juris advocated by liberal theory would give non-liberal States more reason to rely on the persistent objector rule, especially if liberal States were in the majority. e) Jus Cogens The discounting of non-liberal State practice and opinio juris implicated by the liberal analysis of CIL would mean that the kind of consensus required for peremptory norms of international law would be rare, which dramatically limits the role of jus cogens in international law between liberal and non-liberal States.

188

See, e.g., Brownlie (note 4), 10 (arguing that "[g]iven the majoritarian tendency of international relations the principle is likely to have increased prominence"). The Western opposition to the developing world's conception of the common heritage of mankind on the deep seabed could be interpreted as liberal States persistently objecting to majoritarian attempts led predominantly by non-liberal States to control the natural resources of the deep seabed i n a certain way. The ideological aspect of the controversy over the deep seabed regime during the T h i r d Law of the Sea Conference is discussed in Richard Darman, The Law of the Sea: Rethinking U.S. Interests, Foreign Affairs, vol. 56, 1978, 373.

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3. Customary International Law in a World of Liberal States M y analysis of CIL in relation to liberal international theory has so far assumed that the international system contains liberal and non-liberal States. I now engage in the exercise undertaken by Slaughter in connection with treaties: conceptualizing a world of liberal States. In her conceptualization of a world of liberal States, Slaughter sees liberal States woven together through legal relations on three levels: (1) a voluntary law of individuals and groups in transnational society (e.g. lex mercatoria); 1* 9 (2) the law of transnational governmental institutions, or "the law governing relationships between governments and individual and group actors in transnational society" 190 and (3) the law of inter-State relations 191 to which CIL belongs. Slaughter claims that the voluntary law of individuals and groups in transnational society w i l l reduce the need for some kinds of international agreements. 192 I n a world of liberal States, this voluntary law could be interpreted two ways when thinking about CIL. O n the one hand, the intensity of private transnational contact could render traditional CIL less important because the voluntary law governs the private transactions without the direct need for State practice or opinio juris. Under traditional concepts of CIL, only State actions contribute to the development of rules of CIL, which means the voluntary law generated largely by private actors finds no place in discourse about CIL. As observed earlier, international economic law is predominantly treaty law. O n the other hand, the voluntary law serves a quasi-public purpose of interlacing nations and States together peacefully under liberal international theory, opening up the radical idea that private persons and entities can help shape C I L through transnational economic activity. As Slaughter observes, this voluntary law often influences the content of domestic law 193 or becomes codified in international law through treaties. 194 It follows, therefore, that liberal theory might recognize the impact of the voluntary law on CIL as it has done in domestic law and treaty law. The absence of non-liberal States in our hypothetical liberal world opens the possibility for CIL to be influenced significantly by the lex mercatoria , perhaps transforming notions of CIL from rules of inter-State behavior to a concept of a cosmopolitan law shaped by both individuals and States that

189

Slaughter , International Law in a World of Liberal States (note 167), 518 - 520.

190

Id ., 522 - 528. Slaughter subdivides this level of law "into two general categories: 1) the substantive law directly regulating these relationships, typically the domestic law of one or more states, and 2) the legal or quasi-legal principles regulating the interaction of governments themselves concerning the appropriate division of regulatory jurisdiction." Id ., 522.

16*

191

Id., 528.

192

Id.

193

Id., 519.

194

Id., 519 -520.

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echoes the thinking of Kant} 95 While the first interpretation of the voluntary law's relationship to CIL points towards an irrelevance for CIL in a world of liberal States, the second interpretation radically transforms CIL from a State-centric process to a process that incorporates the quasi-public purpose private transnational economic intercourse serves in liberal international theory. As for the law of transnational governmental institutions, Slaughter posits that the substantive legal rules applicable to the particular class of individuals or groups or of conduct i n transnational society w i l l thus be determined in the context of an interaction between the individuals and groups involved i n two or more governmental institutions: courts, legislative, executive and administrative agencies.196

Slaughter argues that the question at this level of law in a world of liberal States deals not with States' interaction 197 — which is the concern of traditional CIL — but w i t h the principles that are to govern the transnational dialogue between distinct governmental institutions of different States.198 The distinction between the interaction of liberal States and the interactions between distinct governmental institutions of liberal States is somewhat false because the 'law of transnational governmental institutions' entails State practice in the most formal sense. Slaughter's identification of separate transnational dialogues between various levels of liberal States does, however, create interesting possibilities for thinking in new ways about CIL. While we could interpret the law of transnational government institutions within the traditional CIL framework of State practice and opinio juris , another way to interpret this phenomenon identified by Slaughter is to see the various levels of liberal governments creating their own functional customary legal rules to guide their transnational relations. Viewed in this new way, CIL emanates not from the 'State' monolithically conceived but rather from the practices of particular organs of the State engaging in sui generis transnational dialogues. This new type of CIL would be the customary law governing the relations between specific governmental institutions. The third level of law in Slaughter's hypothetical world of liberal States is public international law, which is the traditional province of CIL. Whether CIL would have a prominent role in the public international law of a world of liberal States depends upon what sort of issues liberal States had to address through international law. In a world of liberal States, neither the persistent objector rule nor the concept of jus cogens would play a prominent role in CIL because the like-mindedness of the liberal States would reduce considerably the need to have to resort to either in inter195

See F. H. Hins ley, Power and the Pursuit of Peace: Theory and Practice in the History of Relations between States, 1967, 78 (discussing Kant'.s concept of a cosmopolitian law). 196

Slaughter , International Law in a World of Liberal States (note 167), 523.

197

Id.

m

Id.

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national relations. Given the assumptions about the peaceful nature of relations between liberal States, much of the CIL that currently exists (e.g. on the use of force, intervention, genocide, war crimes etc) would fade into history. The one traditional area of international relations to survive with vigor would be the regulation of international economic activity because liberalism promotes free trade and economic interdependence. As noted earlier, treaties dominate the international law on international economics. Would that situation change in a world of only liberal States? Analysis suggests that treaties would remain the dominant form of international economic law in a world of liberal States. Slaughter assumes that in a world of liberal States national economic regulators will have "to interact with their foreign counterparts." 199 It is possible that CIL could form through informal cooperation on economic regulatory issues.200 The problem with viewing informal cooperation as a potential source for CIL among liberal States is that such cooperation is unlikely to be accompanied by a sense of legal obligation precisely because it is informal. Informal cooperation would probably resemble usage more than CIL. Other features of a world of liberal States militate against CIL replacing treaties as the prime source for international economic law. CIL has often been seen as a source of international law to provide rules where formal agreements are not possible given the nature of the international system. In a world of liberal States, the nature of the international system would be radically different. Philosophical identity would replace conflictual anarchy with like-minded anarchy, making the negotiation and enforcement of treaties easier.201 The historical role of CIL as rule-provider in areas treaties could not address would greatly diminish in a world of liberal States. Liberal States would find the treaty an easier institution to use in regulation of international economic behavior. Although not a perfect paradigm for the hypothetical world of liberal States, the European Union offers some evidence to support the argument that in economic relations among liberal States CIL would be unimportant. 202 European Union law, for the most part, is formal in that it is based on treaties and is negotiated, debated and promulgated through very precise procedures and by duly authorized institutions. The experience of the European Union obviously does not prove that CIL would 199

Id., 529.

200

See, e.g., Karl M. Meessen, Antitrust Jurisdiction under Customary International Law, AJIL, vol. 78, 1984,783 - 784 (arguing that under CIL a 'balancing of interests' rule had formed in antitrust jurisdictional conflicts). 201 202

Slaughter , International Law in a World of Liberal States (note 167), 531 - 532.

Slaughter uses the European Union more generally to analyze the insights the application of liberal theory to international law generates. Slaughter Burley, Dual Agenda (note 167), 233 - 235.

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have no role in a worldwide system of liberal States, but European Union law suggests that liberal States prefer more formal sources of law in organizing their relations than the source represented by CIL. 4. Liberalism and the Three Competing Perspectives As indicated in Part IE, each of the dinosaur, dynamo and dangerous perspectives contains an image of international relations that relates to theoretical traditions in the discipline of international relations. As part of the exploration of the relationship between liberalism and CIL, each perspective analyzed earlier will be compared w i t h the liberal perspective on CIL outlined above. a) Liberalism and the Dinosaur Perspective The biggest difference between the dinosaur perspective and liberal international theory on C I L is the dinosaur perspective's lack of interest in the democratic principles of liberalism. The dinosaur perspective finds CIL illegitimate for reasons other than conflict with liberal political philosophy. In that sense, the dinosaur perspective remains locked into the traditional separation of the international and domestic in international legal analysis. The rationalism exhibited by the dinosaur perspective does, however, echo elements of liberalism because both value "international intercourse in a condition predominantly of international anarchy." 203 Similarly, both the dinosaur perspective and liberalism emphasize the need to build common international interest, rules and institutions. Unlike the dinosaur perspective, especially that branch of it that stresses replacing CIL with norms formulated in international organizations, liberalism doubts the ability of non-liberal States to build lasting interests, rules and institutions. Liberalism's rationalism is tinged with skepticism w i t h regard to non-liberal States. b) Liberalism and the Dynamo Perspective A t first glance, the progressive impulse found in the dynamo perspective seems to resonate with the normative aspirations of liberal international theory. The characteristics of revolutionism in the dynamo perspective appear to mark liberalism as well. A harder look is needed, however, before we proclaim the dynamo perspective and liberalism to be kindred spirits. The dynamo perspective does not seek to discount evidence of State practice and opinio juris from non-liberal States. The dynamo perspective thrives on the 'words' of all States without pushing beneath them to

203

Wight (note 153), 13.

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analyze either their credibility or legitimacy. Liberalism rejects such abstract approaches to international law and relations. Further, the dynamo perspective actively solicits the support of the jus cogens concept, which liberal international relations theory renders hollow. Finally, the dynamo perspective's attachment to notions of the progress of international society and global society is superficial when compared to the clear mandate in liberal thought for a certain kind of State and a certain kind of international society. The dynamo perspective fails or refuses to recognize the central theme of liberal thought: no progress internationally without progress towards more national democracies. c) Liberalism and the Dangerous Perspective The skepticism in liberal thought about the evidence of State practice and opinio juris from non-liberal States seems to echo the realist message of the dangerous perspective that contemporary CIL ignores the brutal facts of international politics. Further, the danger for national legal systems from CIL sensed in the dangerous perspective resembles liberalism's concern about the legitimacy of CIL. Unlike the dangerous perspective, which encourages stricter adherence to the traditional elements of CIL, liberalism takes a radical approach to State practice and opinio juris by encouraging different treatment of evidence of both from liberal and non-liberal States. Similarly, liberal thinking seems to conjure up a different image of the international lawyer than the conservative image incorporated in the dangerous perspective. Liberalism appears to favor the philosophy-prejudiced international lawyer rather than the dispassionate, neutral jurist for which the dangerous perspective pines. Finally, the realism informing the dangerous perspective skeptically views the liberal project because it is at heart a revolutionary one. Treating liberal and non-liberal States differently as a matter of international law seems a recipe for more conflict and would do little to promote the spread of democracy given the very limited role international law of any kind can play in an anarchical system. 5. Summary of CIL and Liberalism I began Part IV with the question whether the distance between the dinosaur, dynamo and dangerous perspectives could be shortened by examining whether liberal international relations theory offered synthetic potential. As the subsequent analysis demonstrated, liberalism provides no synthesis at all of the three perspectives. Liberal international theory leaves us no closer to a coherent picture of CIL. In fact, liberal international theory offers its own unique perspective on CIL that itself challenges the others analyzed in this Article. This liberal perspective on CIL can be seen as treating the traditional notion of CIL far more radically than any of the dinosaur, dynamo or dangerous perspectives. If the approach advocated by liberal in-

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ternational theory were faithfully applied, CIL as traditionally understood might very well be doomed as an important source of international law. Conclusion In this Article, I have probed five perspectives on CIL in an attempt to find a way to provide clarity where confusion seems to reign. In making this attempt, I turned to international relations thinking in an attempt to generate insight through an interdisciplinary approach. The insights generated, however, seem to amplify the dissonance in discourse on CIL rather than detect any prospects for harmony. The confusion students sense when learning CIL through the pedagogical perspective cannot be eliminated by expanding the pedagogical approach along the lines taken by this Article. The search for a grand theory of CIL with the interdisciplinary assistance of international relations thinking is hampered by the fractured and divisive nature of thinking about international relations. Coherent theories may be constructed for CIL from within a tradition of international relations thinking, as Byers attempts with realism and as I attempt in this Article w i t h liberalism. The diversity in international relations theory can, however, complicate efforts to improve international legal discourse on CIL or on international law generally. M y analysis of CIL in the contemporary international system may have done little to peel away the mystery and enigma surrounding the riddle of CIL. If my analysis reveals anything, it is that what is at the core of the CIL debate is not a riddle at all but a choice. One's attitude towards CIL is not driven by whether one can answer the questions rife in the pedagogical perspective but is driven by whether one views international relations from a rationalist, revolutionist, realist, liberal or some other perspective, or mixture of perspectives. Much of the confusion that haunts CIL stems from the fact that participants in the debate often fail to make explicit their assumptions about international relations. 204 To make such assumptions explicit involves stepping outside the traditional boundaries of international law into the realms of international relations theory and political theory. Such a step is daunting given the very fractured and controversial discourses that rage among international relations theorists and among political thinkers. The riddle inside a mystery wrapped in an enigma that is CIL may ultimately be the enigma inside a mystery wrapped in a riddle that is international relations, which tends to make nonsense out of all our reasoned attempts to deal with its madness.

204

Slaughter has expressed a similar sentiment. In her effort "to reimagine international law from the perspective of liberal international relations theory in a hypothetical world of liberal states," Slaughter observes that "[t]he point of departure for this exercise was the proposition that international lawyers must be more explicit about their underlying political science." Slaughter , International Law i n a World of Liberal States (note 167), 537.

The Humanitarian Mitigation of U N Sanctions By Paul Conlon

Introduction The renascence of sanctions as an instrument of multilateral collective security enforcement since 1990 has been accompanied by an increased element of humanitarian mitigation built into the very sanctions regimes themselves. This has not, however, been sufficient to provide the degree of mitigation sought, since the increased use of sanctions has also been accompanied by increasing criticism precisely on the grounds that they ultimately impact too harshly on innocent civilian populations and thus are neither ethically sound nor practically meaningful: target regimes can all too easily escape the consequences of sanctions by deflecting their effects onto civilians. 1 Finally, sanctions have disenchanted a number of influential political constituencies both in Western and non-Western societies and these constituencies now oppose or discourage the use of sanctions in general and have taken to stressing their undesirable humanitarian side effects. This has led both to claims of more precise causal relationships between sanctions and these undesirable effects 2 and to proposals to alleviate or eliminate such side effects by structuring sanctions measures in a more 'targeted' manner. Much of this discussion is crudely polemical and has its origins in political considerations unrelated to humanitarian concerns. Neither are these polemics informed by more precise insights into the actual functioning of sanctions regimes, partly because of the excess 1

For a recent general discussion see David Cortright/George A. Lopez (eds.), Economic Sanctions: Panacea or Peacebuilding in a Post-Cold War World?, 1995; see further Manfred Kulessa, Von Märchen und Mechanismen: Gefahren und Chancen der Sanktionen des Sicherheitsrats, Vereinte Nationen, No. 3, 1996, 89 et seq. 2 According to a study published by the Food and Agriculture Organisation of the United Nations (FAO) in December 1995, 576,000 children had died in Iraq since 1990 as a result of sanctions. The annual report of the United Nations Children's Fund (UNICEF), published around the same time, found that, in the three years in which sanctions were in effect against Haiti, the percent of undernourished children rose dramatically from 27 to over 50 percent. See Süddeutsche Zeitung, 12 December 1995, 9. It is doubtful that such precise calculations are empirically verifiable, since no one really knows what the independent variable in the causal relationship is. There has never been a post-sanctions empirical study carried out to establish w i t h what efficiency the sanctions impacted the target economy.

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secrecy of central U N bodies, partly because there is practically no empirical research on actual sanctions regime performance. Since there is little likelihood that ex post facto research into actual sanctions performance will ever clarify the latter question, the only way to better inform debates on the issue at present is to lift the veil of secrecy on the precise workings of humanitarian waiver provisions in recent U N sanctions regimes. A discussion from this vantage point introduces an additional problem into the issue, namely that humanitarian mitigation provisions can be and are abused. There is a real dilemma inherent in this problem and it is part of a broader set of phenomena (e.g. abuse of asylum provisions by pseudo-asylum seekers, abuse of humanitarian convoys to transport arms). Abuse of humanitarian provisions runs counter to the interests of the vulnerable groups they are supposed to protect. Those legitimately in need of humanitarian largesse must compete with those more powerful and better-resourced for the finite resources available. There would in any case be a built-in trade-off in sanctions between efficiency and humanitarian mitigation. As abuse reduces efficiency even further, it tempts the sanctioning party to dispense w i t h any humanitarian dispensation altogether. I. Traditional Humanitarian Law Humanitarian law, as we know it, is largely the law of the conduct of warfare, and hence seeks to ensure a level of needs and considerations that is considerably below that applicable here. Sanctions differ from actual warfare in that they are devoid of physical violence in the usual military sense, but also in that they tend to remain in force and affect civilian populations over longer periods of time. The Geneva Convention structures of humanitarian law are largely concerned with protecting civilians from the immediate effects of military operations and conditions. They are not directly concerned with long-range needs or with needs related to social reconstruction and restabilization. 3 Hence they offer little direct assistance in deciding whether thermostats for brewery vats, tractor clutches, fabrics for school uniforms, cosmetics or wristwatches are to be considered as meeting basic civilian needs. N o r is it clear if, and if so how, they might be applicable to such issues as flights for religious pilgrimage or trans-border payment of social security benefits. Despite this, traditional humanitarian law does provide some suggestions as to what criteria might be applicable to humanitarian waiver provisions in sanctions. It defines certain population segments as particularly vulnerable; it defines certain 3

See Hans-Peter Gasser , Einführung in das humanitäre Völkerrecht, 1995; Hans-Peter Gasser , Protection of the Civilian Population of a State under Embargo, San Remo: 18th San Remo Round Table on Current Problems of International Humanitarian Law, 1993, especially 8-11.

The Humanitarian Mitigation of UN Sanctions types of infrastructure facilities as exempted from military action; it specifically mentions sectors exempted from blockades.4 It does so by mentioning certain broader sectors or categories of activity rather than by attempting to provide an exhaustive listing of items. Thus humanitarian law does help clarify some of the parameters for distinguishing exemptible humanitarian goods or activities. Because the level of protection for civilian needs guaranteed by traditional humanitarian law is so low, there is no disputing that U N sanctions regimes currently in force do indeed satisfy their requirements. The International Committee of the Red Cross (ICRC) has stated this explicitly. 5 I I . Security Council Mitigation Strategies and Provisions 1. Humanitarian Mitigation in Sanctions N o sanctions regime has been entirely without some waiver provisions. The basic core of these stems from humanitarian law considerations, notably the non-applicability of sanctions measures to medicines and foodstuffs stricto sensu. It has traditionally been held that there is no legal basis for placing embargoes on medicines in the course of sanctions actions, inter alia because of their inclusion in the Geneva Conventions. This has meant that medicines, normally described as 'supplies intended strictly for medical purposes', have been outside the ambit of Security Council sanctions altogether. 6 Despite this, sanctions committees have taken over certain administrative tasks with reference to medicines stricto sensu. However, as there has never been any obligation on States to notify target States of their medicine shipments, the rights of sanctions committees to put conditions on their administration of such shipments have not been recognized. 7 Sanctions committees have also had certain

4

Geneva Convention of 12 August 1949 Relative to the Protection of Civilian Persons i n Time of War, Art. 23, 75 U N T S 287, 302 - 304; Protocol Additional to the Geneva Convention of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 12 December 1977, Art. 54, 16 I L M 1391, 1414. 5

See remarks by Hans-Peter Gasser , Legal Adviser of the ICRC at the Round Table on Sanctions during the U N Congress on Public International Law in New York, 13 March 1995. 6 7

Thus SC res. 661 of 6 August 1990, para. 3 (c); SC res. 757 of 30 May 1992, para. 4 (c).

See on this point discussion in the provisional summary record of the 97th meeting of the Iraq sanctions committee, U N Doc. S/AC.25/SR.97. Provisional summary records of the Iraq sanctions committee are here quoted from an electronic database version (COMSR. ASK) that has no pagination. A l l documents quoted in this article in the series S/C.25/—, S/AC.27/— and S/AC.30/— are so-called 'restricted' documents that are not available in public collections but are available to Council members. The databases and 'internal secretariat docu-

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discretionary interpretative powers in drawing the borderlines between 'supplies strictly for medical purposes' and such health-care-related products as fall within the ambit of sanctions regimes (generally: precursors, components, medical equipment, etc.). Originally Supplies strictly for medical purposes' were held to refer only to medicines and medical supplies in their final end-user form, but over time sanctions committees broadened this definition to include surgical instruments and kidney dialysis machines. There has been less unanimity about foodstuffs, but the only instance of their inclusion in sanctions8 (against Iraq) was such a dysfunctional fiasco that it was not repeated in later regimes, and presumably will not be repeated in any futures ones. The only previous Security Council sanctions regime under Chapter V I I had been imposed on Rhodesia, a net exporter of food. Hence the question was academic. In the case of Iraq, which in recent years had been a heavy importer of foodstuffs, the issue was very tangible. The first sanctions resolution against Iraq used the phrase 'foodstuffs in humanitarian circumstances', which represented a compromise between the original sponsors, who had wanted to ban foodstuffs outright, and several other members, who could not accept this. However the compromise solved fewer problems than expected, because it was not certain who was to decide when 'humanitarian circumstances' obtained, nor did it clarify whether or not foodstuffs are humanitarian per se. In ensuing arguments on this question, the Western sponsors claimed that the phrase agreed upon had been intended to mean that foodstuffs as such were not necessarily humanitarian; other members contested this. To solve the problem, a later resolution delegated authority for determining 'humanitarian circumstances' to the Iraq sanctions committee. 9 Between September 1990 and March 1991 it found such circumstances obtaining only for third-State nationals in Iraq (and occupied Kuwait) and did not make a general finding of 'humanitarian circumstances' until the active phase of the conflict had passed. By that time, a draft of the resolution providing a long-term settlement already existed, making foodstuff shipments to Iraq dependent upon notification only. 1 0 Western members claimed in 1990 that the intention was to allow for the added economic and logistical burden of deprivation of foodstuff shipments to Iraq to apply pressure to the economy and thus on the national leadership, without such a blockade leading to any actual hunger. If the latter were to occur, this would constitute the 'humanitarian circumstances' under which foodstuffs would then be exempt from the blockade. The bitter arguments that the unclear provisions of Resoments' quoted are, strictly speaking, not documents at all and are not even available to Council members. 8

SC res. 661 of 6 August 1990, para. 3 (c).

9

SC res. 666 of 13 September 1990, para. 5,

10

SC res. 687 of 3 April 1991, para. 20.

The Humanitarian Mitigation of UN Sanctions lutions 661 and 666 on this point entailed in the relevant sanctions committee, not to mention public criticism of the Security Council, deterred the Council from banning foodstuff exports to target States in subsequent sanctions exercises. There are additional broad but not well-defined areas of items that are often exempted from sanctions regimes on less systematic and predictable terms. Here even the basic terminology and principles involved are more variegated and less precise phrases are used such as 'materials and supplies for essential civilian needs' or 'commodities and products for essential humanitarian need', or 'commodities or products for essential humanitarian needs'.11 But there has been unanimous agreement that these parameters encompass a broader spectrum of goods for a broader spectrum of human activities, those that go beyond mere momentary survival in the midst of military action. The problem here is that these items may be useful for, or used by, different sectors of society; hence their claim for potential inclusion must still be dependent on some assurance that they will be used only in those sectors which legitimately and exclusively enjoy exemption on humanitarian grounds. This raises the question of end-use and end-users. A t the other end of the scale there are items of a distinctly non-humanitarian nature. In the middle there is a vast area the borders of which will in most cases be the object of lively debate among those charged w i t h making humanitarian waiver decisions (at present: the members of sanctions committees). We have seen one reason why traditional humanitarian law is inadequate. Another is that it stipulates obligations in a blockade scenario. The blockading party is obligated to let certain goods pass through the blockade but is fully entitled to inspect transports to ascertain that only those items and no others pass. The U N does not normally exercise any such stringent control over shipments to and from target States. Its sanctions regimes are not trade-control regimes as was, for instance, the former C O C O M regime directed at the Soviet Union and its allies.12 The irony here is that largesse could more readily be conceded by the sanctioning party (the Security Council) if it exercised greater control. A similar dilemma is present in the case in which decisions must be made on multi-use items and the enduse inside the target State cannot be fully monitored. It is this lack of practical control authority that opens humanitarian waiver provisions up to abuse and normally results in the ironic situation that attempts to alleviate the plight of civilians by excluding more items from any control by the sanctioning party have the effect of enhancing the target regime's ability to circumvent the remaining sanctions.

11

SC res. 687 of 3 April 1991, para. 20; SC res. 760 of 18 June 1992; SC res. 917 of 6 May 1994, para. 11; Press Release SC/5974, 12 January 1995. 12

See on this point Bernhard Großfeld/ Ahho Junker , Das CoCom i m internationalen Wirtschaftsrecht, 1991.

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It has elsewhere been argued 14 that U N sanctions regimes proceed from the flimsiest of strategic concepts and run on largely unclarified legal relationships between the key actors; they employ inadequate doctrinal and practical guidelines and primitive working methods and concentrate decision-making in the hands of amateurish diplomats and U N officials. There is little institutional memory and practically no contact w i t h the situation on the ground. The sanctions committees operate in secret and few outsiders really know what they do or how they arrive at their decisions. Indeed, even their decisions are kept secret. Governments have only the foggiest of notions about what procedures and practices are, and less directly involved actors (humanitarian agencies, the press, the public at large) have even less insight into the practice. The legal premises from which all this proceeds might perhaps be clarified here. The decision to impose sanctions, and almost all ancillary provisions flowing out of that imposition, are supposed to be absolutely binding on all States, but implementation is left to governments. The State under sanction ('target State') is considered a recalcitrant that must suffer some infringement of its sovereignty in that its right to trade is restricted, but it otherwise retains full legitimacy as the bearer of national sovereignty and is treated in most other respects as a full-fledged (i.e. equal) member of the community of sovereign States.15 It thus remains the legitimate representative in international fora of its own civilian population. Both the sanctioning party (the Security Council) and the sanctioned party (the target State's government) are thus supposed to bear responsibility for the necessary protection of civilians in the target

13 O n the practice of U N sanctions committees, see Martti Koskenniemi , Le Comite des sanctions (cree par la resolution 661 (1990) du Conseil de securite), Annuaire Fran^ais de droit international, vol. 37, 1991, 121 et seq.; Michael P. Scharf/Joshua L. Dorosin , Interpreting U N Sanctions: The Rulings and Role of the Yugoslavia Sanctions Committee, Brooklyn Journal of International Law, vol. 19,1993,771 et seq.; Paul Conlon , Lessons from Iraq: The Functions of the Iraq Sanctions Committee as a Source of Sanctions Implementation Authority and Practice, Virginia Journal of International Law, vol. 35, No. 3, 1995, 633 et seq.; Paul Conlon , Legal Problems at the Centre of United Nations Sanctions, Nordic Journal of International Law, vol. 65, No. 1,1996, 73 et seq.; Hans-Peter Kaul, Die Sanktionsausschüsse des Sicherheitsrats, Vereinte Nationen, No. 3, 1996, 96 et seq. 14 Paul Conlon , The U N ' s Questionable Sanctions Practices, Aussenpolitik, No. 3, 1995, 327 et seq.; Martin Ebbing, , The Conlon Report: The Trouble w i t h Sanctions, International Report, 26 June 1995. 15

Exceptions to this were Haiti and Kuwait. In both cases the legitimate governments continued to function and were represented by their normal diplomatic representatives at the U N . I n fact, official U N references normally contained the added adjective 'legitimate' to avoid misunderstanding. I n these cases the target State (area) was not controlled by its legitimate government.

The Humanitarian Mitigation of UN Sanctions State. I n one respect the target State is treated differently with regard to the sanctions measures. A l l States are obliged to implement them; this would include the target State. However, it is not realistically expected that it will abide by them. Hence its actions with regard to the sanctions regime imposed against it (but only in this regard) are not presumed to be done in good faith. For this reason the target State cannot assume responsibility for implementation of measures relating to the sanctions. The most important type of measure here is the implementation of humanitarian waivers. Thus target States are not permitted by the sanctions committee to request or receive humanitarian waivers as an importing State. They may communicate their needs or wishes in this respect, but the formal request must come from a third State, generally referred to as the exporting State (though this is inexact).16 This latter State assumes responsibility for correct implementation of the humanitarian waiver. It is actually the ramifications of sanctions resolutions vis-a-vis non-targeted States that are much more problematic. Their sovereignty has also been infringed because they are obliged to desist from, and even to prohibit, trade with the target State. A l l their actions w i t h regard to sanctions are assumed to be in good faith. This creates some problems because it is seen as limiting the extent to which the Security Council (or the committees) may question the actions of States w i t h regard to the implementation of sanctions. In practical terms this has made the committees highly averse to asking member States for too much feedback on what happens on the ground. Consequently no sanctions committee has ever tried to elicit information from member States on the extent or details of trade relations w i t h the target States.17 Sanctions committees do not keep statistics on volumes cleared. Only governments (but normally not the target State) and international organizations are allowed to submit humanitarian waiver requests to the committees.18 The government 16

This was alluded to by the chairman of the Yugoslavia sanctions committee regarding a case in which a third State submitted a request on behalf of a citizen of the target State. See the provisional summary record of the 23rd meeting (17 July 1992), U N Doc. S/AC.27/SR.32, 14. 17 This explains the paradox that the sanctions committees may chum out billions of dollars worth of waivers but do not know how much has been delivered. The idea behind this is that the committees may only query States on their violations of the sanctions, and the fulfillment (or even non-fulfillment) of a waiver authorization is not a violation. 18

A peculiar case is that of the ICRC. It is invariably represented in target States and from time to time ships its own operational equipment there. The U N considers the ICRC bound by Security Council resolutions as any other international organization is. But because of its status under international law, the ICRC has never agreed that it is required to clear such shipments via the relevant sanctions committee. Consequently the wording of its correspondence never suggested that it was requesting permission, which would recognize the committee's right to control its movement of supplies to its own operatives. Rather it informed the committee of its intention to ship. The wording of the committee's reply, in turn, protected

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that initiates the action is assumed to be taking responsibility for correct implementation in case of a positive response, regardless of whether or not it actually has jurisdiction over fulfillment. 19 There is no obligation to report on fulfillment of clearances. Finally the dichotomy between 'decisions' of the committees and 'implementation' by governments leaves three important areas in a legal no-man's land: interpretation, verification and coordination of sanctions measures. Security Council bodies are jealously interested in exercising interpretation functions, but do not in a basic sense aspire to any greater role in verification or coordination. 20 Governments are not free to decide if, for instance, whiskey is to be considered a foodstuff or if surgical gloves are to be considered 'supplies intended strictly for medical purposes'. These definitions are ultimately up to the committees, which, over time, have tended to broaden definitions in borderline cases. Few disputes have arisen from this. But in cases in which the accelerated no-objection procedure is used, the scope of the committees' interpretation authority is even more patent. 3. Humanitarian Mitigation Strategies and Procedures Let us now look at the exact humanitarian waiver methods used in recent sanctions regimes. a) Exemptions The first means is that of simply excluding certain categories of goods from the scope of the sanctions. Medicines, rather narrowly defined as 'supplies intended strictly for medical purposes', have always been so excluded; later the Council moved towards including further products (as yet to be determined) in this category. 2 1 Although excluded items are often communicated to the sanctions committees

the latter's own legal claims by treating the matter as if it had been a request. 19

Conlon (note 14), 333 contains an example reproduced here in Part I V section 1.

20

This creates the vacuum which, in the case of Yugoslavia, has led to the establishment of multilateral verification and coordination structures, Sanctions Assistance Missions (SAMS). These missions were located on the borders of Serbia-Montenegro. A central coordinating unit, located i n Brussels, was known as the Sanctions Assistance Missions Coordination Centre (SAMCOMM). See on this point Richardt Vork , Les Missions d'assistance pour Papplication des sanctions de l'UE/OSCE et le S A M C O M M , in: Eugenios Kalpyris/Richardt Vork/ Antonio Napolitano , Les Sanctions des Nations unies dans le conflit de l'ex-Yougoslavie, 1995, 75 et seq. 21

This intention was announced in A p r i l 1995 in the recommendations of a working group of Council members, U N Doc. S/1995/300.

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out of convenience, governments have no obligation to do so. Thus trade in these items to the target State escapes the immediate purview of the sanctions committees. b) Notification A slightly stronger form of control applies to those items, normally foodstuffs, subject to notification. There is no general ban on their shipment to the target State, but permission to ship requires notification to the sanctions committees. Normally quantity, value and identity of consignor and consignee are contained in such notifications, but there is no absolute requirement that such be included. The purpose of notification is to provide some minimal control over the definition of items; otherwise governments could extend the scope of items through opportunistic redefinition. Committees in any case apply broad standards such that unappetizing items like soda ash, patchouli leaves, flower bulbs and banana and pineapple plants have on occasion been treated as foodstuffs. 22 c) No-Objection Items Further items, variously defined in different sanctions regimes at the level of Security Council resolutions, 23 are subject to a no-objection procedure, which means that a State must request authorization for the shipment. Because the committees work on the basis of consensus decision-making, a single member can block such a request. Reasons are given for rejecting a request, but not for accepting one. The procedure also means that requests are automatically authorized and the authorizations signed by the committee chairman if no objections are communicated by the 22

Singapore i n a letter to the Iraq sanctions committee of 19 January 1993, U N Doc. S/AC.25/1993/COMM. 181, notified shipment of 5 tons of patchouli leaves to Iraq; i n October 1993 the present Author wrote a memorandum requesting information from the United Nations Special Commission (UNSCOM) on 'Possible Weapons Relevance of Patchouli Leaves'. The response was negative. O n flower bulbs, banana and pineapple plants see communication of 27 September 1994 from the Director of S A M C O M M to the Yugoslavia sanctions committee, U N Doc. S/AC.27/1994/COMM.44808, voicing criticism of that committee for allowing 125 tons of flower bulbs and 100,000 plants of each of the indicated kinds to be shipped to Yugoslavia as foodstuffs. 23

For Iraq: 'materials and supplies for essential civilian needs as identified i n the report of the Secretary-General dated 20 March 1991 (S/22366)'; For Yugoslavia: 'commodities and products for essential humanitarian need'. See note 12 for source in both cases. The report of the Secretary-General referred to above was widely referred to as the 'Ahtisaari Report', and did not contain criteria for which items were needed, but rather which broad economic and social sectors were to be considered for humanitarian treatment. I n these cases as well as Haiti, sanctions measures were general but allowed exceptions. In the case of Libya the situation was reversed: selective sanctions were imposed against a background of general 'permitted' trade.

1

G Y I L 39

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stated deadline. There is thus no requirement for positive approval action on the part of members. While one observer has argued that "all committee members are basically called upon to participate in examination and decision," 24 of humanitarian waiver requests, another has complained that the general passivity of most members gives grounds to question the legal soundness of the decisions.25 In most sanctions regimes, decisions on no-objection items are not made on a purely categorical basis, but take other factors into account, particularly end-use and end-user. Furthermore, the Iraq sanctions committee based much of its earlier work on considerations, not of the actual items requested, but of the sectors in which they were to be used.26 While this occasioned charges that committee practices were arbitrary, the basic reasoning was correctly perceived by the target State and potential exporters, who began to manipulate their item descriptions accordingly. The matter is exacerbated by the fact that the committees do not coherently communicate any reasons to the requesting party. The Iraq sanctions committee, via its chairman, originally did so but the volume of waiver traffic soon made it impossible to maintain this practice. The committee at one point granted authorizations of spare parts for ambulances and tractors, but not for private vehicles. Similarly construction materials specifically intended for hospitals, schools, houses of worship and even lowincome housing projects were approved, while those for more general end-users were not. Requests for goods used in certain sectors (medical care, agriculture, water supply, refrigeration, food processing, education, religious worship) tended to be approved, while those for others (construction, industry in general) were not. Certain sectors, notably sports and culture, 27 were not recognized as covered by human-

24

Kaul (note 13), 100.

25

Conlon , Legal Problems (note 13), 86.

26

It might be noted that periodic aggregations of authorizations compiled by the present Author for the Iraq sanctions committee classified items according to sector. Thus in an internal secretariat document 'Consolidated Report on the Shipment of Foodstuffs, Medicines and Materials and Supplies to Meet Essential Civilian Needs: Status for Period 1 January 1992 through 30 June 30 1992' (24 July 1992), 3, the following explanation was given: "a refrigerator for hospital use w i l l be listed under 'Medical and Hygienic Articles', whereas a refrigerator used i n a food factory w i l l be listed under 'Food Processing'. In contrast to previous reportings, agricultural vehicles are now included under agriculture, and not [under] vehicles; similarly vehicles used in water and sewage systems are likewise [found] under their respective heading." 27

A t the 104th meeting of the Yugoslavia sanctions committee, the Russian Federation argued that cultural exchanges were not prohibited by para. 4 (c) of Resolution 757. The United States disagreed, pointing out that para. 22 of Resolution 820 made authorization necessary. See provisional summary record, U N Doc. S/AC.27/104, 6. A t the 102nd meeting of the Iraq sanctions committee on 14 October 1993, a request from Iraq to allow a ship w i t h football supporters to dock in Qatar, where the national team was playing a play-off match, was not granted, despite a general consensus that it was a humanitarian matter, see the provisional

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itarian principles, presumably because they were not so considered when classical humanitarian law instruments were drawn up. Because committees follow regimespecific criteria and are not bound either by precedent or by the practices of other sanctions committees, this mode of operation has the advantage that it can take into account regional or cultural differences. Thus hard liquor was considered a basic humanitarian item for shipments to Yugoslavia but not to Iraq. The Iraq sanctions committee, influenced by economic warfare considerations, which are not part of the U N Charter's scenario for sanctions, tended to block non-finished industrial inputs in favor of finished goods. One reason is that finished goods are easier to control than pre-finished components. This practice was particularly objectionable in the case of textile fabrics, because households in that part of the world frequently sew their own clothes from fabric. In the case of Yugoslavia, which alone among sanctions target States had a more advanced and variegated economic structure, it was feared that unlimited exports of prefabricate and precursors would enhance its ability to produce end-products for export and thus thwart the purpose of the sanctions. One member, the United States, used such an argument against a proposal to disallow exports of pharmaceutical raw materials, but eventually had to yield to pressure. 28 The system contains the rational core of an attempt to define more clearly which sectors and activities should benefit from humanitarian mitigation considerations, but it could not be developed into anything more coherent. Given the huge volumes of cases and the rudimentary administrative facilities of the U N secretariat, sanctions committees could not keep track of their own practice. This obviously led to many arbitrary and inconsistent decisions. However the practice was by no means as arbitrary or insensitive to humanitarian considerations as its enemies have claimed. There have been frequent complaints about delays in handling such requests. U N officials do not scrutinize, evaluate or even collate such requests; they merely process them for further transmission to members. The latter are not required to give positive approval for a request to be authorized; it suffices if they remain passive and do not register any objection to it. It is hard to see how this could be done faster. Scrutiny of the requests and discussions on their acceptability are the domain of members interested in objecting (most members passively accept all requests). Delays are rather the result of this and the huge request volumes.

summary record in U N Doc. S/AC.25/SR.102. The same general tendency ran throughout extensive discussions of Yugoslavian participation in the 1992 Olympics i n U N Docs. S/AC.27/SR.22, S/AC.27/SR.23 and S/AC.27/SR.24. 28 See the remarks of the U.S. delegate, Graham , on this subject in the provisional summary record of the 21st meeting of the Yugoslavia sanctions committee on 14 July 1992, U N Doc. S/AC.27/SR.21, 7.

17*

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Occasionally there are gentlemen's agreements to 'consider favorably' items in certain broad sectorial categories, although even here there are no coherent item lists and there is no binding obligation to abide by the agreement. Thus within the Iraq sanctions committee there was a 'gentlemen's agreement', framed by the then-ambassador of Zimbabwe on behalf of the non-aligned members. Their original intention had been to obtain the transfer of certain sectorially defined items to notification status. The more hard-line members rejected this but instead agreed that they would 'generally look favorably on requests' within certain categories (e.g. civilian clothing, supplies for babies and infants, spare parts and materials for water treatment and sewage disposal plants). 29 d) Financial Controls Freezing assets of a target State has been a common sanctions measures but generous loopholes have always been provided. The granting of clearance for shipments is divorced from considerations on their financing, and asset freezes generally do not apply to goods for which clearance has been given. The Yugoslavia sanctions committee, by granting clearance for upwards of US$ 50 billion worth of goods thereby unfroze an amount assumed to be in excess of what was originally frozen. The sanctions regime against Iraq was particularly rigorous in that the original unfreezing of frozen assets for the purpose of paying for humanitarian waivers was later countermanded by Resolution 778.30 This then imposed a total ban on the unfreezing of any frozen assets, except under certain limited conditions having to do w i t h an escrow account controlled directly by the U N . But the relevant sanctions committee had no functions mandated under that resolution, and continued to authorize and administer waiver shipments without taking the provisions of that resolution into consideration. In general control of assets has been an aspect of sanctions regimes in which the U N has been notably unsuccessful. I I I . Actual Practice in Humanitarian Waivers 1. Sanctions-Committee-Administered

Waiver Clearances

Statistics will shed some light on the major problems involved here. In 1994 the Iraq sanctions committee handled about 6,000 humanitarian waiver clearances of all 29 Text contained in the provisional summary record of the 66th meeting of the Iraq sanctions committee, U N Doc. S/AC.25/SR.66. The original listing was in a letter from the ambassador of Zimbabwe to the chairman of the committee of 23 December 1991, later reprinted in U N Doc. S/AC.25/ 1994/INF/l.

30

SC res. 778 of 2 October 1992.

The Humanitarian Mitigation of UN Sanctions kinds. It cleared US$ 1.2 billion in foodstuff notifications and US$ 215 million in medicine notifications along with US$ 2.8 billion in authorized no-objection item requests. The total for all clearances was thus US$ 4.2 billion. A n additional US$ 925 million worth of no-objection item requests were still undecided as of about March 1995. Of all no-objection item submissions in 1994, US$ 3.3 billion were rejected by the committee. If all waiver actions submitted had been cleared, the amount involved would have been US$ 8.4 billion. The average acceptance rate for no-objection items was 45.7 percent. Jordan, the Republic of Korea, the United Kingdom, Turkey and Finland were Iraq's top five waiver trade partners, followed by Germany, Egypt, France, the Netherlands, Pakistan, Bulgaria and Portugal. O f all clearances, 18 percent had been submitted by Security Council members, 14 percent by permanent and 4 percent by non-permanent members. O f all clearances about US$ 57 million (or 1.3 percent) were submitted (and paid for) by various U N sections and agencies.31 In 1993 the same committee had handled about 5,000 requests and cleared a total of US$ 3.4 billion. Waiver clearances were thus rising, but the rate of increase was gradually levelling off. In 1993 Security Council members had done no less than one-fourth of all the waiver trade with Iraq. The level probabl y rose again in 1995 and 1996 as Germany was then a non-permanent member of the Council. Nobody knows exactly what the equivalent figures for the Yugoslavia sanctions committee were, but in calendar year 1994 an estimate of US$ 30.6 billion was calculated on the basis of a random sampling. It broke down into US$ 16.1 billion for food, US$ 2.5 billion for medicine and US$ 12 billion for no-objection items. The general acceptance rate was 65 percent. By monetary volume, just under 71 percent of the clearances were submitted by Bulgaria; Romania accounted for 4.6 percent and Hungary for 3.8 percent. The remaining trading partners in the sample (twenty

31 The figures were calculated from data in 94COMMS.DB, the relevant committee's correspondence and case management Paradox database. For involved methodological reasons the calculation is an underestimate rather than an overestimate, and all value figures reflect what the submitting parties claimed. The value of medicines may be understated, since much medicine was cleared in small gift shipments sent (or taken) by businessmen; these were frequently marked 'ncv' or 'no commercial value' and thus did not enter into the calculation.

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countries) had negligent 'market shares'. 32 T h e total n u m b e r o f correspondence items was about 20,000. F u l f i l l m e n t rates are u n k n o w n b u t have been estimated at about 10 percent (by value) for Iraq and at about 2 percent (by weight) for Yugoslavia. 3 3 Bulgaria o n one occasion admitted that it had made use o f o n l y 0.7 percent o f its clearances for 1993. 3 4 Analysis o f requests t o b o t h committees over the years generally showed that at least 95 percent o f the requests were purely commercial. ' H u m a n i t a r i a n ' deliveries, e.g. donations f r o m humanitarian, non-governmental organizations ( N G O s ) such as Save the C h i l d r e n o r O x f a m , and aid f r o m international organizations such as the W o r l d F o o d Programme (WFP) o r U N I C E F were somewhere a r o u n d 2 - 5 percent o f the t o t a l . 3 5 Certain categories o f goods were over-subscribed: thus f o o d notifications t o Iraq between M a y 1991 and December 1993 totaled over 23 m i l l i o n tons (approximately ten years' w o r t h o f food imports i n n o r m a l times). 3 6 T u r k e y i n the first half o f 1994 alone requested clearance for over 48 m i l l i o n d r i n k i n g vessels

32 The figures are taken from a memorandum prepared by the present Author, 'Annual Volume of Commercial Clearance of the 724 Committee', and dated 5 December 1994. The random sample was of 1 percent of all submissions between 1 January and 15 November 1994; this is the lowest acceptable sampling level for such an extrapolative estimate. For methodological reasons, in cases of doubt all figures were biased towards the lower end, meaning that the estimate is more likely to be an underestimate than an overestimate. The figures obtained for Bulgaria would indicate that that country's total waiver clearance for the year was US$ 21.6 billion. O f the correspondence picked up in the random sample, 39 percent came from Bulgaria, and its acceptance rate was lower than average, but the average value of a Bulgarian submission was twice as high as the remaining sample. If all waiver submissions for the year had been cleared, the total would come to US$ 47 billion. 33

Iraq's imports in the years 1993 - 1994 are assumed to have been i n the area of US$ 800 million to US$ 1.2 billion. However an unknown (but apparently substantial) portion of that went for purchases that were not per se cleared by the sanctions committee, though committee clearance documentation may have been used to smuggle them. It was on this basis that the figure of 10 percent was arrived at. For Yugoslavia see Vork (note 20), 95 - 96. The figure 2 percent is by quantity, taking into account partial fulfillment of some shipments. Some 88 91 percent of all committee clearances were never used for any trans-border shipment. This means that about 30,000 of the clearance documents issued by the sanctions committee in New York were wasted effort. 34

Letter from Bulgaria to the Yugoslavia sanctions committee, 28 June 1994, U N Doc. S/AC.27/1994/COMM.35671, mentioned by the chairman at the committee's 106th meeting on 1 July 1994, see provisional summary record of the meeting i n U N Doc. S/AC.27/SR.106, 7. The letter used the term 'duly notified', implying it meant food and medicine. 35

Paul Conlon , Committee Administration of Authorised Exports to Iraq, 21 August 1992, 4 (internal secretariat report). 36 Calculated from FOOD.ASK, the relevant committee's food notification askSam database. This was discontinued after December 1993 because waiver statistics for 1993 and 1994 were collated on the basis of monetary value.

The Humanitarian Mitigation of UN Sanctions (water glasses, teacups etc.) and for over 160,000 tons of soap and detergent for Iraq. 37 The number of shoes cleared for Yugoslavia in a seventeen-month period (120 million pairs) would have sufficed to provide eleven new pairs of shoes for the entire population (including infants). 38 The chairman of the Yugoslavia sanctions committee, the Brazilian ambassador, was forced to spend a weekend in April 1994 affixing his signature to several hundred letters with a total clearance value of US$ 700 million. 39 Remarks by the secretary of the committee at a later meeting give an indication of the Alice-in-Wonderland nature of the business transacted. Mr. Ilitchev (Secretary of the Committee) noted, in connection w i t h the problem to which the Chairman had referred, that sugar exports from Bulgaria had totaled US$ 379 billion [in 1991], which worked out to a unit price of US$ 12 per pound, or approximately four times the average market price. From the standpoint of the quantities being imported, the consumption of eggs in Yugoslavia would be three times the average annual consumption in the United States. The information that S A M C O M M could provide would help to clear up those types of anomalies.40

Ironically enough, medicine notifications for Iraq in 1993 and 1994 were only US$ 223 and 215 million respectively, below the minimum of 365 US$ million that the World Health Organisation (WHO) considered an acceptable level. 2. Manipulative or Inappropriate Humanitarian Waivers Statistically speaking, abuse prevails over legitimate use of this humanitarian mitigation system, because only 2 - 1 0 percent of the clearances are used for the humanitarian purposes recognized by Security Council resolutions. What happens to the rest is anyone's guess, and while it is probable that many simply go unused, a portion of these are obviously being used for manipulative and presumably illegal purposes. The phenomenon persisted over several years, showed no sign of abating by itself and even began to appear in embryonic form in the work of the Haiti sanctions committee. Even the application of the term 'humanitarian' to these waiver actions is misleading. Most of them are purely commercial transactions carried out under normal 'what the market will bear' conditions. Charging US$ 10 for a water glass or GB£ 1 for a light bulb (wholesale prices!) would not normally qualify as 'humanitarian'. 37

Internal secretariat document, Statistics on 1994 No-Objection Requests from Turkey, 13 June 1994. 38

Communication from S A M C O M M to the Yugoslavia sanctions committee, U N Authorization of Shoes, 18 November 1994. 39

See the provisional summary record of the 103rd meeting of the Yugoslavia sanctions committee, 29 A p r i l 1994, in U N Doc. S/AC.27/SR.103, 3. 40

Provisional summary record of the 113th meeting, 1 December 1994, U N . Doc. S/AC.27/SR.113, 11.

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Many commercial actors simply want to re-open trade with the target State and seek to obtain permits under the only headings permissible; some of them may have been led to believe that target-State markets are particularly lucrative. In order to obtain permits, manipulative item descriptions are used. Expensive Reebok sneakers were cleared to Yugoslavia as 'shoes for disabled persons and handicapped children' 41 and building materials approved for a low-income housing project in Basra were said to have been diverted to other use by the Iraqi authorities. 42 Pre-fabricated or more general source-stocks are approved under the guise of more acceptable end-use descriptions. Thus a shipment of PVC granulate to Serbia was cleared as 'PVC materials for food packaging'.43 Granulate could be used for all products containing PVC, most of which have nothing to do with food packaging. Similarly, computers were disguised as 'office furniture'. 44 One of the most interesting examples is coffin cloth. Allowed by the Iraq sanctions committee originally because funeral accessories are considered humanitarian, 45 the committee was later inundated by clearance requests running into the thousands of tons. Presumably these were nothing but textile fabrics. Many of the commercial interlocutors requesting clearances in the millions (and occasionally even billions) are obscure firms operating out of residential or postbox addresses. A Swedish multinational exporting tires and spare parts to Iraq turned out to be a neighborhood grocery store. A jewelry shop in Germany, disguised as an oil company, came within a hair's breadth of obtaining US$ 1.3 billion worth of clearances, and would have obtained the clearances had it not been imprudent enough to arouse suspicion with a unit price for detergent of US$ 4 per ton. 4 6 The

41

See note 38.

42

See provisional summary record of the 93rd meeting, 5 May 1993, U N Doc. S/AC.25/ SR.93. 43

The authorization had been granted to Bulgaria in U N Doc. S/AC.27/1994/OC.30175; communication from S A M C O M M to the Yugoslavia sanctions committee, T V C Material', 12 December 1994. 44

Vork (note 20), 107.

45

See provisional summary record for the 78th meeting of the Iraq sanctions committee, U N Doc. S/AC.25/SR.78. 46

The applications, dated 14 February 1994, were submitted by Germany, U N Docs. S/AC.25/1993/COMM. 1756 - 1757; see Der Spiegel, No. 14, 1994, 104 - 105.

The Humanitarian Mitigation of UN Sanctions Iraq sanctions committee was even willing to deal with Marc Rich* 7 and Saddam Hussein's son Uday. 4* A further unedifying phenomenon, which is problematic because it cannot be stopped, is that the humanitarian exemption categories also cover luxury items. Thus for several years fresh meat was flown into Baghdad from Khartoum (a threeand-one-half-hour flight) several days a week. This questionable trade was marginally even subsidized by U N D P . On one occasion the Iraqi regime boldly requested permission for 1,000 cases of expensive Scotch. The committee refused, but not after considerable arguing, and more members supported the request than opposed it. 4 9 In the Yugoslavia sanctions committee the United States, in particular, frequently fought against authorization for what it considered luxury items and argued that cigarettes and liquor should never have been made notification items in the first place.50 3. Presumed Abuses of Waiver Clearances In general, while humanitarian waivers seek to satisfy basic needs of civilian populations, and especially of vulnerable groups, it is ultimately the target regime itself that must order the goods and arrange for payment. It can thus prioritize certain

47

A t the 73rd meeting of the Iraq sanctions committee on 9 July 1992, the U.S. delegate expressed his government's reservations about Switzerland's application to place the name of one of Marc Rich's firms on the list of oil companies approved for trading w i t h Iraq under the original oil-for-food scheme. However, two other companies owned by Rich were accepted by the committee (and its U.S. delegate) without comment. See the provisional summary record of the meeting in U N Doc. S/AC.25/SR.73. The more or less complete list of all approved oil companies was published by Tom Ashby , O i l Firms no longer Notifying U N Panel on Iraq, Reuters, 21 February 1996. 48 See id. The British trading company, Worldwide Ltd., reputed to belong to Uday , was on the same list. The Iraq sanctions committee i n the course of the years cleared huge amounts of cigarettes and frozen chicken, commodities in which Uday was said to have a monopoly concession. See Michael Theodoulou/Christopher Walker , Baghdad 'New Mafia' Tightens Grip on Vital Supplies, Times (London), 4 September 1992. I n 1992 the company received authorization for a single transaction (tractors, steel piping, water pumps) worth GB£ 148 million. See application of United Kingdom, 20 March 1992, U N Doc. S/AC.25/1992/COMM.256. 49

See provisional summary record of the Iraq sanctions committee, U N Doc. S/AC.25/ SR.79. The request is contained in U N Doc. S/AC.25/1992/COMM.1065. 50

See statement by the U.S. delegate in the provisional summary record of the 104th meeting of the committee on 25 May 1994, U N Doc. S/AC.27/SR.104, 5. Scharf was one of the U.S. State Department's desk officers for the Yugoslavia committee and has mentioned this issue in his coauthored article (note 13), 784, as well as in his comments at the Round Table (note 5).

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goods over others, or even try to use the option for purposes not permitted by the humanitarian provisions. Many of these excessive waiver clearances are merely speculative. The tentative deal falls through, most probably for lack of financing. However, this simple scenario does not explain the persistence and ubiquity of this phenomenon, even less the magnitudes involved. What then are the exact abuses that presumably lie behind these bizarre transactions? The simplest abuse is pure commercialization of the clearance documents themselves. They have been bought and sold on the curb in relevant venues (Amman, Zagreb) by those wishing to smuggle goods to the target States. They may also be convenient ways of gaining clearance for transport desirable for other reasons. This was clearly one of the main motives behind the Sudan meat flights. Similarly, one Bulgarian factory obtained clearance for 10,000 truckloads to Iraq by notifying a donation (!) of some 265,000 tons of foodstuffs worth about US$ 100 million. 5 1 More relevant is abuse directed at releasing frozen assets. There are two ways of doing this. In the literal case, the goods obtained are resold. However, this is costly. It is simpler and cheaper to obtain clearance documentation from the committee directly (or from a document broker), obtain release of funds from a bank in the amount of the invoice, then cancel the deal and keep the money. The large volumes sometimes requested seem to be used for camouflaging smaller volumes of prohibited items. SAMS 52 on the borders of Yugoslavia frequently found prohibited items covered with legitimate items for which there was authentic clearance documentation. It should be pointed out that practically all land customs crossings into Iraq and Yugoslavia were undermanned and poorly equipped to allow rigorous inspections. The lack of precision in formulating clearance documentation enhanced the possibilities of fraud here, since quantification was sometimes vaguely stated in terms of weight (thus even things like teacups and coffin cloths were cleared in tons). In the case of Iraq, 'glue' and 'water treatment chemicals' were favorite request categories. Presumably any kind of liquid or viscous chemicals could be packed in plastic containers and cleared across the border with such permits. Some items like spare auto parts could easily be shipped with documentation clearing tractor parts. Thus a permit granted to a firm in London for GB£ 500,000 worth of tractors and combine harvesters was used in an unsuccessful attempt to smuggle GB£ 5 million worth of spare parts for autos into Iraq via Jordan. The shipment was accompanied by an invoice from a non-existent firm in Ontario. 53 51

The request is contained in U N Doc. S/AC.25/1992/COMM.1660.

52

See note 20.

53

The authentic permit is contained in U N Doc. S/AC.25/1993/OC.907, referring back to the request in U N Doc. S/AC.25/1993/COMM.981. This was granted to one United Projects Co. Ltd. in Chiswick (London), registered company number 02304725; the invoice was

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26 7

Because clearance documentation often did not bother to specify the items covered but employed phrases like 'items as per your attached list', the substitution of a different list for the one cleared was another possibility. Ultimately, bulk item descriptions were often usable without substitution. The items covered being left so vague (e.g. greenhouse parts), the clearance could be used with anything that vaguely resembled it. In one case involving 'greenhouse kits' with a unit price of US$ 713, each unit was found to consist of 16 tons of structural parts, one generator, one air conditioner and 20 cartons of electrical accessories.54 It also appears that clearance documentation was sometimes used for illegal purposes unrelated to the target State, e.g. clearance documents for export of hard liquor to Yugoslavia were useful to those smuggling liquor into Slovenia or Hungary. Neither can it be excluded that some of the permits were simply sought to be used by entrepreneurs seeking export subsidies or other purely domestic advantages. These would constitute abuse of the options offered for humanitarian waivers but are not necessarily sanctions violations. There is political abuse as well. Jordan once harassed the Iraq sanctions committees by dumping large numbers of frivolous requests. This led to administrative chaos, incurred considerable cost and also delayed action on legitimate humanitarian waiver cases for months. 55 A somewhat patent case will suffice to show how far humanitarian mitigation measures have moved away from their original purpose. In 1992-93 the Iraq sanctions committee was confronted with a number of applications for export of specified glue types to Iraq: 40 tons of 'binding glue for books for sale to the [Iraqi] Ministry of Education', 50 tons of 'binding glue for school books', 100 tons of glue 'for use in schools and households', 100 tons of 'stationery glue' and 20 tons of 'paper glue for bookbinding'. 56 'Hard-line' members of the committee had already rejected most of these when a row erupted at a meeting, whereupon it was agreed to refer the matter to the United Nations Educational, Scientific and Cultural Organisation (UNESCO) for an expert opinion on how much bookbinding glue Iraq might be in

from one General Trading Corp. Inc. of Mississauga (Ontario), but the company did not exist. The address and telephone numbers given belonged to private individuals, one of w h o m belonged to an Iraqi family known for its sanctions circumvention activities. 54

The permit is contained in U N Doc. S/AC.25/1994/OC.2961 and referred back to the request in U N Doc. S/AC.25/1994/COMM.4384. The latter had been submitted by the Philippines on behalf of the Manila office of an Iraqi-owned firm, Al-Rafidain Trading Co. Inc. 55 Sanctions Iraq-Jordan, unsigned wire dispatch from K U N A (Kuwaiti News Agency), 25 A p r i l 1995. 56 The requests are contained i n U N Docs. S/AC.25/1992/COMM.755, S/AC.25/1992/ C O M M . 1728, S/AC.25/1993/COMM.123, S/AC.25/1993/COMM.284 and S/AC.25/1993/ COMM.295 respectively.

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need of. 57 The latter eventually responded with an estimate of about 1 - 2 tons annually needed for binding school books. 58 Even then, when it was clear that requested volumes would suffice for close to a century at current consumption levels, more members of the committee argued for approval than against it, one of them with the argument that "the right to culture and education was a right of all human beings." 59 Because the estimate by UNESCO appeared to refer too narrowly to bookbinding glue for schoolbooks, further clarification was sought. When all the facts were in, it appeared that the amount needed globally for education in Iraq might be 60 - 70 tons per year, 60 while the committee in 1992 had authorized exports of 320 tons of glue and rejected or deferred exports of 100 tons; in 1993 the committee had thus far rejected the export of 400 tons of glue and had decisions pending on another 2,310 tons of glue, the latter worth about US$ 2 million. 6 1 Triumphantly, the 'hard-liners' then proceeded to reject another 3,000 gallons of glue 'for medical belts'. 62 Similarly unedifying scenes accompanied drawn-out debates over clearance for banknotes between the 41st and 44th meetings of the same committee. Additional to arguments over procedural points that eventually necessitated extensive bilateral consultations and even the advice of the U N Legal Counsel, there was a complete chasm over the issue of whether banknotes qualified as a humanitarian necessity. The United Kingdom held that "the shipment of banknotes could not be considered humanitarian assistance within the meaning of paragraph 20 of Security Council Resolution 687," while Yemen asked rhetorically "what medium of exchange the Iraqis would be able to use to obtain the goods they needed if they were forced to resort to barter, and whether the intention was to force them to the most primitive means in order to survive." Cuba expressed agreement with Yemen "that there could be no thought of forcing the Iraqi people to resort to barter to obtain food. One did not have to know very much about economics to know that money was the essential medium of exchange in modern societies or to see that at the present time the amount of money in circulation in Iraq was insufficient for the trading that had to be done." The Chinese delegate held a similar view: "since money was a necessary medium for the normal functioning of society, paragraph 20 of Security

57

See provisional summary record of the Iraq sanctions committee's 89th meeting on 5 March 1993, U N Doc. S/AC.25/SR.89. 58

UNESCO's response is contained in U N Doc. S/AC.25/1993/COMM.635.

59

Thus the representative of Djibouti in the provisional summary record of the committee's 90th meeting on 5 A p r i l 1993, U N Doc. S/AC.25/SR.90. 60

UNESCO's second reply is contained in U N Doc. S/AC.25/1993/COMM.1471.

61

Information supplied by the chairman in the provisional summary record of the committee's 91st meeting on 4 June 1993, U N Doc. S/AC.25/SR.91. 62

Request submitted by Jordan is contained in U N Doc. S/AC.25/1993/COMM.455.

The Humanitarian Mitigation of UN Sanctions Council Resolution 687 was applicable to banknotes and the Committee should approve the request." Ultimately the matter died because the British company that had printed the banknotes never applied for an export license, and the issue at the core of the dispute was never decided.63 4. Political and Practical Problems Impinging on the Work of Sanctions Committees Excessive polemics and an inability to work on collectively accepted criteria for generic definitions occasionally prevented the committees from settling issues that actually raise interesting humanitarian questions. The sanctions against Yugoslavia contained a block on payments that suddenly affected Yugoslav old-age pensioners deriving pensions from outside the State.64 Were social security remittances payments for humanitarian purposes? The relevant committee never agreed to such a broad categorization, but many members were more sympathetic to the plight of old-age pensioners. There was an additional problem in that paragraph 5 of Resolution 757 did not require clearance by the sanctions committee for States to make humanitarian payments to Yugoslavia "exclusively for strictly medical or humanitarian purposes and foodstuffs." 65 Unable to agree on a general approach to the question, the committee for a while dealt with such requests on a case-by-case basis. The committee then came under pressure, inter alia from the International Labour Organisation (ILO), which respectfully approached it on behalf of those disadvantaged by restrictions on free transfers of pensions, citing its mandate to defend the in-

63

The remarks of the British, Yemeni, Cuban and Chinese delegates are taken from the provisional summary record of the Iraq sanctions committee's 42nd meeting on 12 June 1991 in U N Doc. S/AC.25/SR.42. The remarks made on this occasion by representatives of States historically adhering to Marx ist economics is illuminating. For a markedly divergent view of the role of money, see Karl Marx , Theories on Surplus Value. 64 The question was whether or not such remittances could be transferred to the target State. The pensioners were not being deprived of their right to the remittances, as they could be paid to them abroad, or held i n abeyance pending the lifting of sanctions. The situation is thus akin to problems posed when other types of periodic support payments are blocked or hampered by currency transfer restrictions or by non-convertibility of the currency of origin. The matter was furthermore exacerbated by claims that pensioners in Yugoslavia receiving such remittances were forced by their national authorities to accept them in local currency at artificially unfavorable exchange rates. 65 SC res. 757 of 30 May 1992, para. 5. Since the phrase occurs together w i t h references to medicine and foodstuffs and since the former even has the qualifier 'strictly' placed in front of it, it is arguable that a very restrictive interpretation of 'humanitarian' i n the terms of classical humanitarian law would be called for here. The present Author cannot easily envisage a Western court ruling that pensioners' remittances would be covered by the term in this instance.

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terests of workers abroad. 66 Ultimately one State enquired about its right to pay out pensions to its own citizens residing in Yugoslavia (previous discussions had revolved around paying pensions to citizens of the target State). In the debate on this latter request, it became clear that several States, including one permanent member of the Council, had continued to pay out pensions to recipients in Yugoslavia. Against those that took a hard line and did not see pensions as humanitarian remittances (in this case the United States, Austria and Belgium), there were others w i t h a less clear position (United Kingdom, France) while still others simply seized the opportunity to promote their view that the payments were humanitarian and should be allowed in general (India, China, Cape Verde). Faced w i t h the realization that the members could not agree on any common legal or conceptual language for dealing w i t h the issue, and that the committee had no real control over what was happening on the ground, the committee decided to regard the matter as falling entirely within the remit of national governments and washed its hands of the issue.67 What is unfortunate in this case, by no means atypical, was that the question remained unsolved, and even establishing some grounds on which it, or others like it, might be solved was not possible. Humanitarian law in its current state was proving to be inadequate for deciding complex issues of trans-border intercourse, precisely of the type that is so characteristic of modern industrialized States. Yugoslavia was the first target State that roughly qualified as such and was profoundly interwoven with other States, as the present case with the pensioners demonstrated. To some extent the cudgels of humanitarian mitigation have been taken up by those that simply oppose sanctions for more general political reasons. Several variants of this were visible. Some Council members, while they may have voted for the sanctions resolutions or allowed themselves to be persuaded to abstain, did not really support the sanctions measures, normally because of the constellation of their bilateral relations with the target State and/or those States taking a hard line on the issue. Beyond this there was a general aversion on the part of many non-aligned members to any enforcement action of the Security Council. Their reasoning was that it created a new front on which the sovereign prerogatives of their State leadership could be challenged. Since the target States of sanctions measures were then normally entirely undemocratic third-world countries (exception: Yugoslavia), the fear on the part of these governments was that sanctions would be used only against States 66

A letter from the Director-General of the I L O to the Secretary-General of the U N , dated 3 August 1992, U N Doc. S/AC.27/1992/COMM.574, was discussed in the 31st meeting of the Yugoslavia sanctions committee on 26 August 1992. See the provisional summary record of that meeting, U N Doc. S/AC.25/SR.31, 5 - 9. 67 A letter from the Netherlands, dated 25 August 1992, U N Doc. S/Ac.27/1992/COMM. 655, prompted these discussions in the 33rd meeting of the Yugoslavia sanctions committee on 4 September 1992. See the provisional summary record of that meeting, U N Doc. S/ AC.27/SR.33, 3 - 9. O n the general subject see Scharf /Dorosin (note 13), 787 - 788.

The Humanitarian Mitigation of UN Sanctions similar to their own. This grouping of members simply wanted to dilute or weaken sanctions, given that the sanctions could not be lifted entirely. They saw humanitarian waivers simply as breaches in the wall of an embargo. In general, calls for humanitarian mitigation of sanctions are frequently heard from those that oppose the sanctions measures on more general grounds. Commercialism also intruded, even to the extent that some Council members taking a hard line still did not want to forego opportunities to maximize their trade with the target State. With regard to Iraq, the United Kingdom's position bordered on pure schizophrenia: pressing at every turn for tough action against the target State and then indulging in any almost indecent commercial promiscuity with it. In general, too many members of the committees were too much involved in humanitarian waiver trade with the target States. China, which had taken the matter of expeditious delivery of coffin cloth to Iraq very much to heart, ultimately began shipping large volumes of it to the target State.68 Its status as a permanent member made it impossible for the United States to block its coffin cloth waiver requests. 69 The belief (most probably erroneous) that target States offer particularly lucrative commercial markets exacerbates these opportunistic tendencies. It is not argued here that the sanctions regimes imposed by the Security Council in recent years are sacrosanct non disputanda , but trying to lift sanctions through excessive humanitarian waiver practices is neither ethically acceptable nor politically advisable. This tactic has prevented sanctions committees from developing reasonable humanitarian mitigation practices and principles to protect the interests of civilian populations. It has succeeded, instead, in turning sanctions committees into giant paper mills, churning out billions of dollars of meaningless and counter-productive clearances, thereby weakening the integrity of sanctions regimes and playing into the hands of sanctions evaders, without, for that matter, bringing very much benefit to civilians. U N officials, who know better, have largely connived at this malpractice. The strong element of demagogy and hypocrisy involved further tarnishes the image of U N bodies as trustees of humanitarian law and humanitarian action. Target regimes are also able to initiate demagogic polemics by requesting humanitarian

68

The Chinese delegate made specific reference to coffin cloth in the 105th meeting of the Iraq sanctions committee on 22 December 1993. See the provisional summary record of that meeting, U N Doc. S/AC.25/SR.105. According to 94COMMS.DB (note 31) China in 1994 cleared about US$ 6 million i n coffin cloth for shipment to Iraq. 69 The United States had originally wanted to block a Chinese request for shipment of US$ 4.6 million worth of coffin cloth contained in U N Doc. S/AC.25/1994/COMM.619. A t the 111th meeting of the Iraq sanctions committee on 13 April 1994 the U.S. delegate announced his government's agreement to discussing the matter w i t h China; shortly thereafter the U.S. block on the request was lifted. See the provisional summary record of that meeting, U N Doc. S/AC.25/SR.111.

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waivers of a religious nature and some of the least edifying debates of the sanctions committees have revolved around these requests. 70 Excessive secrecy has abetted this malpractice. Outsiders, including humanitarian NGOs, international lawyers and other parties with an interest in the question are precluded from knowing what goes on and cannot recommend or take corrective action. Indeed, even other branches of the U N system, including the Department of Humanitarian Affairs, were not allowed access to the humanitarian waiver files of the committees, did not attend meetings and had little understanding of their actual practices. Relations between the Security Council and the humanitarian parts of the U N system were strained. There was no transparency and accountability, and the huge paper flows involved made it impossible for U N sanctions officials to keep track of what the committees had approved or rejected. There were, of course, political reasons for much of this. There was widespread opposition to sanctions within the U N itself, and the political power-wielders in the Security Council (Western countries) are actually a minority faction in the global U N . Humanitarian constituencies are today almost automatically opposed to Security Council decisions on sanctions. The orientation of delegates towards stringency or lenience in enforcement of sanctions was determined simply by each government's bilateral approach to each particular sanctions regime, which is why the 'hard-liners' in one committee often acted as 'soft-liners' in another committee. 71 I n 70

Periodic requests by Iraq to have frozen assets released to finance a US$ 10 million Koran printing campaign were a classic in this line. The relevant committee, which had no authority to order release of frozen assets, had agreed in principle to grant permission to any State wishing to release assets to Iraq for such a purpose, but the Iraqis either never pursued the matter, or were unable to find any State that had such frozen assets under its jurisdiction. See on this matter discussion of Iraq's letter dated 17 June 1993, U N Doc. S/AC.25/1993/ C O M M . 1632, at the 97th meeting of the Iraq sanctions committee on 1 July 1993 in the provisional summary record, U N Doc. S/AC.25/SR.97; also discussion of Iraq's letter dated 4 July 1994, U N Doc. S/AC.25/1994/COMM.3805, at the 115th meeting of the committee on 26 August 1994, U N Doc. S/AC.25/SR.115. The Baathist party, the political core of Saddam Hussein's regime, was a secularist movement that early alienated religious traditionalists. Its Iranian and Shiite enemies even today habitually refer to it as the 'atheist clique'. 71

The delegate from Djibouti, previously quoted (note 59) on the subject of the human right to bookbinding glue, was one of the main spokesmen for the 'soft-line' non-aligned faction i n the Iraq sanctions committee for the better part of two years. I n the H a i t i sanctions committee he on occasion sided w i t h the 'hard-liners', see provisional summary record of the 8th meeting of that committee on 1 June 1994, U N Doc. S/AC.30/SR.8, 6. I n the Yugoslavia sanctions committee he opposed a request to invite the Yugoslavian prime minister to address the committee, took part in a massive blocking action against humanitarian requests and twice went on record as opposing emergency heating fuel deliveries to Yugoslavia in wintertime. O n the first such occasion, at the 90th meeting of the committee on 1 December 1991, he sided w i t h the United States in rejecting stirring humanitarian appeals for fuel deliveries from Russia and Venezuela, see provisional summary record, U N Doc. S/AC.27/SR.90, 13:

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general those governments that had not wanted sanctions, or that wished to see them lifted, tried to dilute their force as much as possible through a maximally liberal waiver policy and humanitarian arguments were the ones most frequently used. While the Western States, favoring a more vigorous enforcement of sanctions in most committees, seemed to recognize certain constraints, largely patterned on the broad sectorial delineations used in Geneva law applicable to military hostilities and blockades, they differed among themselves on details, and never tried to coherently explain the principles that their case-by-case decisions appear to have been based on. The atmosphere inside the Security Council was not conducive to discussion of basic principles, and the committees were only able to arrive at consensually agreedon principles in reference to rudimentary procedural matters. More determinative than anything else in this regard was the strategy of the 'soft-line' opposition, which tried simply to extend the concept of humanitarian exemption to everything imaginable and argued for acceptance of all waivers no matter how little they had to do w i t h humanitarian considerations (e.g. pineapple trees for Serbia, patchouli leaves for Iraq), and no matter how objectionable they might be from a trade-control point of view. 72 On a few rare occasions, these 'opposition' delegates made a worthwhile point or two in their arguments, but on the whole their attitude was largely unconstructive and they consequently made no contribution to attempts to try to frame a higher level of humanitarian law principles relative to sanctions regimes operating in the absence of traditional military violence. Attempts to 'humanitarianize' every possible aspect of a sanctions regime is not a mature and balanced way of trying to limit unintended collateral damage to civilian populations, any more than an entirely pacifist approach to war contributes anything to the development of humanitarian law. Philosophically, it is the acceptance of war as a legitimate activity that lies at the core of attempts to civilize its conduct and protect non-combatants from its effects. Development of a further generation of humanitarian law to protect civilian populations under sanctions would require a similar approach. In addition to political disagreements among Security Council members over the desirability of sanctions in each individual case, the enforcement of sanctions by an "His delegation agreed w i t h the United States that the Federal Republic of Yugoslavia had enough fuel, provided that it was not used for the wrong purposes. The situation was so bad simply because the Federal Republic of Yugoslavia had taken its own people hostage. The Committee should not give in to media pressure and must remain objective and fair. It was certainly possible that fuel intended for Sarajevo was being used for non-humanitarian purposes." When the issue of natural gas deliveries came up one year later, at the 113th meeting on 1 December 1994, he took a similarly hard stance, see provisional summary record, U N Doc. S/AC.27/SR.113, 7. 72

Eg. the question of infeasibly large foodstuff notifications. See on this point several examples in Conlon , Lessons from Iraq (note 13), 641 and fn 45.

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international organization clashes with outlooks and philosophies that lie at the core of many humanitarian branches of the U N system and of many NGOs and that inform the daily activities of professional humanitarian relief officials. These sectors of international organizations are not in a basic sense sympathetic to collective security enforcement activities of the Security Council, and even less so to the political bias of the Council since 1990, dominated, as it has been, by Western permanent members. In all sanctions regimes there was constant friction between the Security Council, its sanctions committees and these sectors of the wider U N and N G O communities. Because they have been excluded from any participation in the work of sanctions committees, they could not have made any real contribution to constructively adapting humanitarian law to the age of economic sanctions regimes, but there is little to suggest thus far that they would have gone beyond the strategy adopted by the 'soft-line opposition' in the sanctions committees. I V . Unsolved Legal Issues in Humanitarian Sanctions Mitigation 1. The Relationship of the Security Council to its Interlocutor States United Nations organs have no executive powers; even if they had such powers, the Security Council would not be in a position to implement its own decisions. From the very beginning of the Organization's existence it was understood that the member States would be the sole implementers of those decisions taken by central U N organs that require implementation outside the various secretariats of the United Nations and its agencies. The principle is not unsound in itself, nor could one really imagine any other construction of the basic legal relationship between the Organization and its member States. The problem lies in the circumstance that the Security Council is different from other U N organs in its authority, and in the additional circumstance that sanctions measures are far more complex than the simple principle would seem to hold. Problems are little likely to arise with decisions of the General Assembly or of the Economic and Social Council. Since they are not binding, and normally not very precise, there is no great problem. Member States can therefore be left w i t h wide latitude in how they interpret and implement the decisions. Some of the decisions that sanctions committees make on the basis of mandates contained in sanctions resolutions constitute the exercise of authority in governmental law terms. The no-objection item authorizations certainly qualify as such; even the word 'authorization' should indicate this. This authority of the Council, exercised by the committees, is very widely recognized and respected by member States, and not only in routine cases of humanitarian waiver requests. States were constantly approaching the sanctions committees with requests for 'advice', 'guidance', 'opinions' or even 'instructions' on how to implement the provisions of resolutions or other

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Council decisions. It would certainly lead to raised eyebrows, if not actual mirth, for a General Assembly committee to receive a letter from a member State asking for guidance on how to implement one of the Assembly's many exhortatory resolutions from the previous autumn. Sanctions provisions and decisions require such detailed and professionalized implementation that the simple dichotomy is not adequate to guide both parties (Council/committees on the one hand, implementing member States on the other). I n addition, the implementation of sanctions committee practice on humanitarian waivers actually involves the member States in an interactive process w i t h the sanctions committees: they must prepare requests by eliciting information about proposed or tentative trade deals and forward them to the committee for decision. They must then implement that decision. For humanitarian waivers, the committees require only that their interlocutors (implementing States) be States that can assume responsibility for correct implementation of Council decisions. This is one of the reasons why non-States are not permitted to deal directly with the committees. The elementary principles involved do not address two other questions: which exact State is the proper interlocutor in a specific case, and what subsequent relationships evolve between the interlocutor State and other States involved in the further implementation of the decision. Practice has varied, but in general sanctions committees have not had any rules about prioritized jurisdictions for the implementation of humanitarian waiver decisions, nor has any genuine link been required between the waiver transaction contemplated and the State requesting it. The following example w i l l suffice to illustrate what this means in practice. A sugar broker in London, arranging for a sugar delivery to Iraq, submits an application for notification to his relevant national authority which forwards it to the Sanctions Committee. After a formal check by the Secretariat, the Committee Chairman issues a letter i n which this is confirmed as having been 'duly notified to the Committee.' This establishes a legal relationship between the Security Council, represented by the Committee, and the British Government, something that presumably entails an assumption of responsibility for the transaction by that State. But what does this State have to do w i t h this transaction? U p o n receipt of the clearance letter the London broker assigns his rights i n the deal to a trading company in the Azores, who in t u m contracts w i t h a Brazilian exporter for fulfillment, arranges payment via a letter of credit running on the Geneva branch of an Arab bank and commissions a shipping company in Santander w i t h shipment to Aqaba. I n Aqaba the sugar is cleared by Jordanian customs as transit goods and hauled overland to the Iraqi border. Six countries have been involved in this transaction (Great Britain, Portugal, Spain, Brazil, Switzerland and Jordan). But the administrative practice of the Committee only takes the relationship to one of these countries into account, to boot, to that country which is least involved in the transaction. W i t h such practices the Committee is not even in a position to control a single commercial transaction of this kind, even less to monitor the target State's entire trade. 73

73

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Conlon (note 14), 333.

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Huge volumes of cereals and staple foodstuff commodities like sugar were notified over the years to the Iraq sanctions committee, most of it by States that could hardly be producing or exporting them. The requesting States were merely the domicile of a broker or trader. Granted, however, that such a State is entitled to request clearance of a humanitarian waiver action, and assumes responsibility for its correct fulfillment, what becomes of that responsibility if and when the further fulfillment of the deal is assigned to an entity in another jurisdiction? This theoretically now involves the requesting State in a further legal relationship: the State to which the waiver has been granted should be responsible for enforcing correct implementation on the State to whose jurisdiction the waiver clearance is assigned. In reality, it is highly unlikely that any State seriously contemplates taking any responsibility for the further fulfillment of a humanitarian waiver outside of its own jurisdiction. In the case of most European States, even domestic law would not provide grounds for any further responsibility with regard to the waiver transaction. Thus in humanitarian waivers a number of baneful practices arose having to do with 'transactional conduits' or 'jurisdictions of convenience' or with an activity that in E U law is sometimes referred to as 'permit shopping'. Deals were structured through several different jurisdictions with an eye to obtaining clearance via one and executing other steps in the same general transaction through other jurisdictions. A n example was the case with a series of presumably fraudulent waiver transactions submitted by the German government on behalf of a company registered in the British Virgin Islands but using the address of its beneficial owner in Germany, a German national doing business as a jeweler at that address.74 The relationship between the sanctions committees and the member States is further unclear in that it has generally been held that the former may not seek information from the latter on their trade relations with the target State, except in clarification of a specific allegation of sanctions violation. This has prevented sanctions com-

74 See note 46. The applications had not mentioned the name of the beneficial owner, nor made any reference to the company's jurisdiction of registration. When the sanctions committee secretariat was trying to thwart this deal, out of concerns over its manipulative nature and its size (US$ 1.3 billion), the present Author wrote a memorandum on 23 March 1994 to his immediate superior containing the following remarks: "Nothing prevents the German Government from submitting authorization requests on behalf of this individual or of his jewelry business. This would be more acceptable because the identity of the Committee's ultimate commercial interlocutor would be more clearly established, as well as the requesting Government's entitlement to act on its behalf As things now stand, it would appear that the German Government is acting as intermediary for a company which is not a German company. It is therefore recommended that the Permanent Mission [of Germany to the United Nations] be asked to explain its Government's relation to the beneficiary company i n question before any action is taken on the requests."

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mittees from trying to monitor the legitimate trade of target States w i t h an eye to ensuring that violations are not occurring. 75 2. How Prioritized

are Humanitarian Considerations ?

Sanctions committees normally have a mixture of mandates, for enforcing sanctions as well as for mitigating their effects on the target State's civilian population. To some extent there is even a trade-off in this combination of tasks: rigorous enforcement threatens to do collateral damage to civilians, while excessive or inappropriate humanitarian mitigation threatens to undermine the integrity of the sanctions regime. Which mandate is supposed to take precedence? 'Soft-liners' have consistently argued that there are general implied humanitarian mandates requiring the committees to grant humanitarian mitigation, even without explicit authorization for such mitigatory measures. Claims were occasionally advanced that the committees had been explicitly created to perform humanitarian tasks. Because the humanitarian mitigation provisions are normally embedded in Security Council resolutions largely of an enforcement nature, both sides can quote the same source for their views. Thus Resolutions 82076 on Yugoslavia and 687 on Iraq have on occasion been interpreted as having established humanitarian mitigation regimes, rather than as having sought to enforce or maintain sanctions regimes. While no one in his right mind would want to interpret Resolution 687 as having had a largely humanitarian mitigation character, it is not unreasonable to see some grounds for taking the view that it imparted a largely humanitarian mandate to the relevant sanctions committee. The only paragraph of that resolution that contained any mandate for the committee was indeed of a humanitarian mitigation nature; it even empowered the committee to make further humanitarian findings on which to base its practice. 77 A major limitation on a further humanitarian expansion of sanctions committee mandates lies in the circumstance that all discretionary humanitarian authority given to such committees has heretofore been explicitly limited to considerations relating to the welfare of the target State's civilian population at home. O n occasion, however, requests have come before the committees relating to humanitarian considerations having to do with populations outside the target States. In particular, the Iraq sanctions committee occasionally dealt with cases of religious groups outside of Iraq wishing to use aircraft to make pilgrimages to Shiite shrines in Kerbala, a city in southern Iraq. There was a similar argument advanced for allowing Iraqi citizens to be paid per diem expenses for attending a seminar in Cairo organized by the Eco75

See note 17.

76

China argued this at the 113th meeting of the Yugoslavia sanctions committee on 1 December 1994, U N Doc. S/AC.27/SR.113,12. 77

See note 11.

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nomic and Social Commission for Western Asia, a U N organ. In other cases, religious communities outside the target States wanted to obtain religious articles (in one case a statue, in another case prayer disks). Often these were requests for waivers to export items from the target States, and the relevant committees had no powers to grant such waivers. In general, committees were unable to agree to such requests, or under no obligation to agree to them, for humanitarian reasons, as they did not relate to the humanitarian needs of the target State's civilian population. The statue was, however, permitted, after one delegate argued that it did not constitute a commodity. 78 Finally, even within the framework of a general humanitarian mitigation mandate, one cannot escape facing the issue of how proportionate humanitarian mitigation measures are. It is often forgotten that the criteria of proportionateness are supposed to guide discretionary decisions in sanctions. Sanctions are themselves coming under fire as disproportionate measures in relation to the events and circumstances motivating them. But the matter is more complicated, because the issue of effectiveness of sanctions intrudes. Some sanctions measures are so ineffective that it is hard to see, logically, how they can be proportionate if they have appreciable side-effects on unintended targets while having no effect on their intended targets. But even humanitarian mitigation effects must be judged against their proportionateness. If humanitarian waivers offer little benefit to civilian populations and provide too much opportunity to sanctions busters, then they clearly violate criteria of proportionateness as well. 3. Economic Warfare

Strategies in Sanctions Regimes

In deciding humanitarian waiver matters, the Western permanent members in the Iraq sanctions committee occasionally seemed to be proceeding from strategies and premises the admissibility of which is open to question. This has been alluded to in this Article with the expression Economic warfare' tactics. For example, the policy of trying to force Iraq to buy everything in manufactured form and prevent it from obtaining prefabricated items for its own processing sought to maximize economic deprivation by taking much of the value-added stages of economic activity away from Iraq. It had further ramifications as well. Iraq's industrial infrastructure in the broadest sense (including manpower resources) was marginally forced to lie idle and even to deteriorate for want of pre-products and other inputs, thus further compounding economic damage.79 Military considerations may have been in play as 78

Scharf, VDorosin (note 13), 797; see remarks of the representative of Austria at the 36th meeting of the Yugoslavia sanctions committee on 8 October 1992, U N Doc. S/AC.27/ SR.36, 21. 79

Ironically, this strategy was in the economic interests of Iraq's trading partners, particu-

The Humanitarian Mitigation of UN Sanctions well. Whenever the subject of rebuilding Iraq's power grid was mentioned, the Western permanent members were quick to counter that the country's prewar power generating capacity had been too high and allowed for the maintenance of a large military-industrial complex and for uranium enrichment, activities that would now not be allowed. Hence they argued that rebuilding its full prewar power capacity was not permissible. They furthermore blocked certain items used in the petroleum industry on the ground that such exports would only be permitted if Iraq agreed to the oil-for-food scheme in Resolutions 706 and 712. The items in question would hardly have qualified as 'meeting essential civilian needs', but it is not certain how much support this reasoning has in terms of U N Charter law. In general, long-term economic impoverishment or crippling of the target State was compatible w i t h the Western countries' goal of preventing the military resurrection and rearmament of Iraq. The reason why these 'economic warfare' aspects of sanctions interpretation are questionable is that they are probably too far outside of the originally envisaged Charter scenario for sanctions: the quick massive blow that was assumed to have no long-range effects. Whatever does short-term damage can also do long-term damage and borderlines are not easy to draw, but patently deliberate 'economic warfare' measures aiming at long-term damage to the target State's economic infrastructure would not seem to be permissible. A major strategy of conflict civilization theory (and certainly humanitarian law belongs in this category) is to try to substitute conflict methods that do short-term rather than long-term damage. O n this criterion 'economic warfare' is presumably not compatible with the U N Charter's collective security philosophy. 4. Committee Procedures and Ways of Systematizing Practice and Generating Relevant Doctrine Decisions on humanitarian waiver measures, like almost all decisions on sanctions, are regime specific. The only bodies dealing specifically with sanctions administration, the sanctions committees, are regime specific. Only the Council itself can make generic decisions bearing on all sanctions matters, and thus far it has only done so once and within very narrow parameters at the level of a 'presidential statement'. 80 Furthermore, the legislative instruments under which they operate, the larly neighboring countries. 80 U N Doc. S/PRST/1995/9 of 22 February 1995, which inter alia states: "[The Security Council] agrees that the object of economic sanctions is not to punish but to modify the behavior of the country or party which represents a threat to international peace and security. The steps demanded of that country or party should be clearly defined in Council resolutions, and the sanctions regime in question should be subject to periodic review and it should be lifted when the objectives of the appropriate provisions of the relevant Security Council

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resolutions, are highly repetitive but not identical. There is thus much room for divergent practice between different committees. This has already led to criticism, 81 but it may have its advantages as well. It would allow committees to take regional, cultural or developmental differences into consideration when deciding what is 'basic* or 'essential' and even the question of what is a prefabricated item could be judged differently in the light of such considerations (e.g. as with textile fabric in the case of Iraq). A 'luxury* product in one region might be an 'essential' product in another. There were discussions over the years about doing away with regime-specific subsidiary bodies and having one general sanctions committee. This would tend to unify practice, but not entirely as the guiding legislative instruments would not necessarily be identical. O n the matter of precedent, there was a general consensus that committees did not work on this basis, but that, nonetheless, there had to be some coherence or consistency in decision-making. Delegates frequently asked the secretariat for information on previous practice, precedents and similar cases in the past. Occasionally delegates consented to decisions they had originally opposed in order not to upset previously established patterns and practices. One delegate summed up the inherent ambiguity by saying that precedent was incompatible with the procedural principle of consensus, which allowed each member a sovereign opinion, but that some coherence in practice was necessary because of constantly changing membership. 82 N o t unrelated are such issues as whether or not waiver decisions should be made case by case or on the basis of categories with coherent lists of permitted and prohibited items, or whether or not the principles on which decisions are made should be codified. These in turn lead to questions as to what type of body should be the model for a sanctions committee. Scharf and Dorosin treated the Yugoslavia sanctions committee as a court, using terminology taken from the realm of court practice and proposing that committee members should be chosen on the basis of legal experience.83 The present Author has elsewhere84 pointed out that the basic decision-making principle of sanctions committees, consensus, is almost never a charresolutions are achieved." The constitutional status of a 'presidential statement' is less than that of a resolution; it is furthermore unclear how binding this declaration is on the Council for the future, but it is certainly not without legal significance, particularly in the absence of any further legislative act that contradicts it. 81

Scharf /Dorosin (note 13), 815 - 820; Martti Koskenniemi voiced the same criticism on the occasion of the Sanctions Round Table (note 5). 82

Remark by representative of France at the 86th meeting of the Iraq sanctions committee on 28 January 1993, U N Doc. S/AC.25/SR.86. 83

Scharf /Dorosin (note 13), 821 - 827. The authors are also critical of consensus, and make further proposals on codification of decisions and even periodic publication of digests of decisions. 84

Conlon , Legal Problems (note 13), 27 et seq.

The Humanitarian Mitigation of UN Sanctions acteristic of a judicial court and suggested instead that the appropriate model might be a regulatory permit-granting body at a national or even local level. However, such bodies never work by consensus either. In any case, the use of instructed State delegates has resulted in such poor quality of decisions that it would seem preferrable to switch to a system with individually appointed experts, not representing governments and not necessarily drawn from States serving on the Security Council. There is no requirement in Charter law for the present custom of duplicating the Council's membership in the committees, nor is there any requirement that committees must be made up of instructed delegates of member States. V . Future Tasks for Humanitarian Law 1. Traditional

Counter-Strategies

and New Proposals

Most strategies and proposals to enhance humanitarian mitigation are not only self-serving but are even maintained when their intended effects fail to materialize. Most of the more recent and wide-ranging measures seem to have benefited target regimes and commercial interests rather than civilians. This is not hard to understand. I n the absence of effective control and verification, the measures open up wider areas of benefit to these beneficiaries than to civilians. The latter, lacking power and direct access to resources, are unable to avail themselves of these measures, or unable to compete w i t h better-resourced groups. Occasionally humanitarian waivers are even used for patently prohibited forms of trade: culture medium chemicals have been exported to Iraq as medicines and arms may have been contained in large agricultural machinery shipments. Proposals for enhanced protection of civilians invariably suffer from the false premise that existing sanctions regimes are so rigorous, water-tight and efficient that little harm would be done by further humanitarian exemptions. This is by no means the case. Other proposals are based on crude causal scenarios. One such proposal is that boycotts (prohibition on target State exports) are less harmful to civilians because they leave the latter free to obtain necessary commodities. 85 The 85

Fred Grünfeld , The Impact of Sanctions and the Preference for Boycotts over Embargoes, paper presented to the Eighth Annual Meeting of the Academic Council on the United Nations System, New York, 19 - 21 June 1995. A. P. M. Coomans/F. Grünfeld/K. J. Hartogh/J. F. R. Jansen, Doorwerking en effecten van sanctiemaatregelen van de Verenigde Naties, Sociaal-Economisch Wetgeving, No. 7/8,1995, 501 et seq., 513: " I n selecting a specific economic enforcement measure we argue that one must take into consideration the possible negative effects on human rights in the target country. I n our opinion in the case of an embargo, where the entire population suffers from it because goods necessary for the population are being withheld, human social and economic rights are being violated to a considerably greater degree than what would be the case w i t h a boycott."

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case of Iraq would seem to disprove this. The severe shortages of goods there is the result of long-term deprivation of export revenues, not of import strictures. The commodities most often cited as critically lacking (food, medicine, school supplies, anaesthetics, water treatment chemicals, sugar) have not been restricted by sanctions. Societies have a certain capacity to adjust to outward pressures and ruling elites can attempt to steer this adjustment process. Societies, including those under sanctions, have finite resources at their disposal. The sanctioning parties have largely pre-determined parameters to their willingness to make exceptions. Encouraging waiver applications beyond what can be financed is meaningless. Extending the range of products that can be exempted provides greater options on what can be obtained, but not on how much. These wider options are more likely to be utilized by target regimes than by their civilian populations. Neither can very much be gained by encouraging lax control procedures. Yet most proposals for alleviation stress widening the scope of exemptions, leaving more items entirely outside of sanctions regimes, 'streamlining' approval procedures and the like. These methods have already been used widely in the last few years and there is no reason to believe that more of the same will have any other effect than what has resulted thus far. Earmarking of waivers for vulnerable groups is a theoretically correct approach, but raises the issue of in-country monitoring, which in turn raises issues of sovereignty and interference in internal affairs. The legal construction of sanctions regimes limits the sovereignty of action of target States in certain respects (notably trade) but does not otherwise attempt to deprive them of sovereignty. O n the other hand, humanitarian law normally stipulates that the handling or distribution of exemption goods be monitored by a neutral third party, normally the ICRC. Iraq refused to cooperate in this in 1990 - 1991. Target regimes normally refuse to cooperate w i t h such schemes. Comprehensive exemption item lists and so-called 'category decisions' by sanctions committees have also been proposed, but by ignoring the question of end-use and volume they threaten to allow more abuse than legitimate use. If the decision-making party, at present sanctions committees, has no control over verification and monitoring of implementation of such decisions, its decision to allow the delivery of x tons of a humanitarian commodity ultimately means the possible delivery of x tons of goods of any kind. 2. The Future If the instrument of economic sanctions continues to be used, more sophisticated humanitarian mitigation strategies will have to be evolved and applied. It will also have to be recognized that merely vitiating the integrity of sanctions regimes through lax practices, lack of verification controls and pseudo-humanitarian dilution

The Humanitarian Mitigation of UN Sanctions will not benefit civilians at all. In fact, more control will be needed, not less. This is the gist of the strategy adopted by Western countries against Yugoslavia in creating the SAMS and S A M C O M M to assist in the sanctions effort. This infrastructure was meant to tighten control over traffic across the target State's borders. The humanitarian waiver practices of recent years have been an attempt to raise the level of protection that international humanitarian law provides for civilian populations above the rather minimal levels envisioned by traditional humanitarian law instruments and this should be supported. This is a form of third-generation or further-generation human rights effort. International lawyers, political scientists and humanitarian activists should be encouraged to contribute to this development, which should not be left to diplomats with their propensities for opportunistic vulgarization and self-serving humanitarian posturing. More than anything else, doctrine should be developed and the starting point could be the practices of sanctions committees. It is this Author's opinion that the strategy of 'hard-line' or pro-sanction governments that have tried to use such factors as broadly defined societal sectors, end-use, end-user and volumes as decisive criteria contains the rational core of a workable system. O n the other hand, the same constituency's preferences for economic warfare strategies should be more critically analyzed to determine where borderlines must be drawn and whether economic warfare is at all permissible in Chapter V I I sanctions. Trying to delimit exemptible categories and items on the basis of functional criteria (economic sector, end-user clusters) would be a good starting point. The question of regional or cultural custom would also have to be tackled in order to ensure that criteria are not geared to inappropriate consumption patterns. This is all the more necessary if protection of civilians is the main concern. A further suggestion would be that exemption strategies be directed at preventing long-term damage to human populations and basic societal infrastructures rather than predicated on a reduction of short-term suffering. Sanctions regimes are becoming protracted economic wars and their capacity for long-term, not easily reparable economic damage should not be underestimated. Work on these problems presupposes something further. The Security Council's excessive secrecy about humanitarian waiver activities would have to cease.86 There is no reason in the world why the basic facts of humanitarian waiver clearances 86

Kaul (note 13), 99, even argues for secrecy on the grounds that firms have a legitimate interest in commercial confidentiality of their dealings with target States. It is hard to see why such an interest should outweigh other considerations of a more general and hierarchically prioritized kind. I n cases of a general sanctions regime (Iraq, Yugoslavia, Haiti), waivers are precisely that — exceptions to the rule, supposedly motivated by humanitarian considerations. There should be no 'right to trade' w i t h target States so absolute that the Security Council's legitimate interest in effective control has to yield to considerations of this kind.

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(goods involved, identity of exporter and consignee, quantities, monetary value) should be kept secret. In fact they should be coherently and systematically gazetted to allow governments, humanitarian NGOs, interested scholars and even other U N agencies to monitor them in order to perform their legitimate functions in seeking to protect civilians from the side-effects of sanctions. Strictures on further unbridled commercialization of humanitarian waiver trade would be necessary in any case.

Obligations Erga Omnes and the Absent Third State By Peter D. Coffman*

Introduction "There is a problem, increasingly common in international law, of the formulation of ever more complex rules in the absence of proper procedures for dispute resolution. w l A notable area of heightening complexity is the doctrine of rights and obligations binding on and enforceable by all States (i.e. applicable erga omnes). This expansive network of legal relationships responds to the stress that an increasing multilateralism in international relations has put on the prevailing horizontal, bilateral conception of State responsibility. 2 Although these obligations "to the international community" 3 are frequently assumed to be enforceable primarily in judicial fora, the doctrine's application to the International Court of Justice's (ICJ) rules and jurisprudence has not been much explored. 4 The ICJ's recent opinion in the Case concerning East Timor 5 however, effectively bars the courthouse door to most claims invoking the erga omnes doctrine by reject-

* I gratefully acknowledge Jonathan A. Bush, Mary Virginia Cojfman, James R. Crawford , Jost Delbrück, Christian Feist , Christopher J. Greenwood , Eric Johnson and Gregory F. Maggio for their advice and comments at various points in the writing of this article. 1

James R. Crawford , Democracy and International Law, British Yearbook of International Law, vol. 64, 1993, 113, 130. 2

The inadequacies of the International Court of Justice's procedural jurisprudence in the face of increasingly multilateral disputes receive extensive discussion i n Christine Chinkin , T h i r d Parties in International Law, 1993 (reviewed by Stephen M. Schwebel y Book Review, American Journal of International Law, vol. 89, 1995, 835). Chinkin , 147, stresses the "inherent tension in the position of third parties in international adjudicative and arbitral procedures which arises from the structure of the international legal system." See also Case concerning East Timor (Portugal vs. Australia), 1995 ICJ 90, 173 (dissenting opinion of Judge Weera mantry). 3

Barcelona Traction , Light & Power Co. (Belgium vs. Spain), 1970 ICJ 3, 32 (second phase).

4

But see Bruno Simma , Bilateralism and Community Interest in the Law of State Responsibility, in: Yoram Dinstein/Mala Tabory (eds.), International Law at a Time of Perplexity, 1989, 825; Chinkin (note 2), section 3. 5

East Timor (note 2).

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Peter D. Coffman

ing any relationship between the 4erga omnes character' of a right or obligation and the justiciability of claims affecting absent third States.6 This ruling strikes at the heart of these norms because frequently the primary opportunity to exert pressure against a State harming the community's interests is through enforcing duties on third States not to facilitate the violation or seek profit from it. 7 As the first case to address this interaction, 8 East Timor deserves detailed treatment and points out the need for more debate on the relationship between community interests and bilateral adjudication. The following examination of the relationship negated by the Court first narrows the doctrine's application by defining it functionally as a procedural innovation within the law of State responsibility. A comparison of the purposes of the doctrine to the ICJ's decision and reasoning in East Timor then argues that the Court misconstrued the proper, limited nature of the doctrine and that it has, consequently, distorted the Monetary Gold principle. Finally, discussion will turn to the question whether a 'general principle of law' 9 justifying a narrowing of the Monetary Gold principle as it regulates obligations erga omnes is discernible.

6 East Timor (note 2), 102. This question of justiciability first arose i n Monetary Gold Removed from Rome in 1943 (Italy vs. United Kingdom, United States, France), 1954 ICJ 19 (preliminary objection) and is generally referred to as the 4Monetary Gold principle'. 7

East Timor (note 2), 172 (dissenting opinion of Judge Weeramantry) ("To suggest that Indonesia is a necessary party to the adjudication of that breach of obligation by Australia is to hamper the practical operation of the erga omnes doctrine. It would mean . . . that Indonesia could protect any country that has dealings w i t h it i n regard to East Timor from being impleaded before this Court, by Indonesia itself not consenting to the Court's jurisdiction.") Compare Crawford (note 1), 129 (evaluating "blanket non-recognition" of nondemocratic governments and proposing instead that the international commitments of a nondemocratic regime be instead voidable by a subsequent, democratic government). 8 Although France's self-declared obligation to halt atmospheric tests in the Nuclear Test cases (Australia vs. France; New Zealand vs. France), 1974 ICJ 253, 269, was held to run erga omnes as well as to the two applicants, the obligation itself bound only France. Thus, when this case was reopened by New Zealand in 1995, no question requiring examination of erga omnes standing or obligation was raised.

9

Statute of the International Court of Justice, Art. 38(l)(c).

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I . Background 1. East Timor and Portugal Portugal ruled East T i m o r 1 0 as a department o f Portugal f r o m the sixteenth cent u r y u n t i l 25 A p r i l 1974, w h e n a m i l i t a r y coup " w h i c h aimed t o re-establish democracy i n Portugal . . . began the decolonization process." 1 1 T h e n e w government i n L i s b o n finally accepted the U n i t e d Nations's determination that East T i m o r was a non-self governing territory and that Portugal acted as its administering p o w e r pursuant t o Chapter X I of the U n i t e d N a t i o n s Charter. 1 2 Preparations for a plebiscite began almost immediately. 1 3 Three East Timorese political parties sprang u p i n 1974. T h e most popular was A S D T , later renamed F R E T I L I N , w h i c h was Marxist i n orientation and called for a referendum leading t o immediate independence. T h e o t h e r t w o parties were the U D T , w h i c h favored continued u n i o n w i t h Portugal leading gradually t o independence, and A P O D E T I , w h i c h had its roots i n the Indonesian intelligence service and sought integration i n t o Indonesia. 1 4

10

"Timor is an island in the eastern part of the archipelago of Nusatengatta, between the Indian and Pacific Oceans. The western part of the island has been Indonesian since 1954." Maria Clara Maffei , The Case of East Timor before the World Court of Justice - Some Tentative Comments, European Journal of International Law, vol. 4, 1993, 223. 11 The subsequent legislation and practice of the new government "identified decolonizat i o n as being necessarily connected w i t h independence" to the exclusion of other options recognized in the General Assembly Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance w i t h the Charter of the United Nations, G A res. 2625 (XXV) of 24 October 1970 (Friendly Relations Declaration). Fausto de Quadros , Decolonization: Portuguese Territories, Encyclopedia of Public International Law, vol. 10, 1987, 93, 94. 12

De Quadros (note 11), 94 - 95.See also Thomas M. Franck/Paul Hoffman , The Right of Self-Determination in Very Small Places, New York University Law Review, 1976, 331, 342 343 ("For almost three decades after the founding of the United Nations, Lisbon consistently took the view that its 400-year-old colony in the Indonesian archipelago was an integral part of the Portuguese nation. Alone among all colonial powers, the Portuguese refused to consider itself bound by Resolution 1514 or to report to the United Nations on the ground that its overseas possessions were not subject to decolonization.") (citing Portuguese legislation and United Nations reports on the pre-1974 status of East Timor under Portuguese law). Under Portuguese rule East Timor stagnated economically such that, in 1971, it "had not yet reached the stage of underdevelopment." Id ., 343 (citation omitted). The General Assembly had specifically called on Portugal to recognize its sacred trust towards the peoples of its overseas possessions i n General Assembly Resolution 1542 (XV) of 15 December 1960. 13 14

Maffei

(note 10), 224.

Franck/Hoffman (note 12), 344. Details of the nascent decolonization process, Portuguese developments and the Indonesian reaction are set out in John G. Taylor , Declonisation, Independence and Invasion, in: Catholic Institute for International Relations/International

288

Peter D. Coffman

While Australia refused to discuss the situation in East Timor w i t h ASDT's representative, 15 the Indonesian government openly supported East Timor's right to self-determination and as "late as September 9, 1974, Foreign M i n i s t e r i u m Malik maintained that Indonesia would in no way attempt to influence the choice of the population of Timor with respect to their future . . . . ' ' 1 6 Early the following year, however, the Indonesian government denounced F R E T I L I N as a communist front. 17 O n 11 March 1975, a communist coup in Portugal decreased Lisbon's interest in East Timor. 1 8 Talks on the future of the territory in the summer of 1975 included all parties except FRETILIN, which had lost the cooperation of the U D T . Fighting began, eventually leading the U D T to seize power on 10 August 1975, only to be replaced by a successful F R E T I L I N counterattack and declaration of East Timor's independence.19 In August 1975, the Portuguese authorities stated they could no longer govern the territory effectively, removed to the island of Atauro off the coast of East Timor and continued negotiations with Indonesia.20 I n December 1975, Indonesia began a protracted and bloody military intervention in East Timor in which an estimated ten percent of the population were killed and gross human rights violations were committed. 21 Indonesia pointed in justification to "anti-colonialism and anti-imperialism and the principle of humanitarianism" as well as the geographical and alleged cultural closeness of East Timor to Indonesian Timor. 2 2 The strident anti-communism of the Indonesian regime and its belief Platform of Jurists for East Timor, International Law and the Question of East Timor, 1995, 21. 15

Taylor (note 14), 26.

16

Franck/Hoffman (note 12), 345 (citing Report of the Special Committee, U N G A O R 27th Session, Supp. 23, vol. m , U N Doc. A/8723/rev. 1, 41 (1972)). Accord Roger S. Clark , The 'Decolonization' of East Timor and the United Nations Norms on Self-Determination and Aggression, in: International Law and the Question of East Timor (note 14), 65, 69. Accord Taylor (note 14), 25 (quoting letter of 17 June 1974 from Malik to Jose Ramos-Horta). 17

Franck/Hoffman

18

De Quadros (note 11), 95.

(note 12), 345.

19

Clark (note 16), 70. Franck/Hoffman (note 12), 346 (noting that Portugal continued to mediate the dispute, and that Indonesia recognized Portugal as "solely responsible for the territory.'' Nonetheless, Portugal could neither militarily subdue the fighting nor create the conditions for a plebiscite.) 20

De Quadros (note 11), 95.

21

Franck/Hoffman (note 12), 348; Gerry /. Simpson , Judging the East Timor Dispute: SelfDetermination at the International Court of Justice, Hastings International and Comparative Law Review, vol. 17, 1994, 323, 325 fn 6. See also Christine M. Chinkin , East Timor Moves before the World Court, European Journal of International Law, vol. 4, 1993, 206, 206 fn 1 (concerning continuing human rights violations). 22

Franck/Hoffman (note 12), 347 (quoting 4 December 1975 letter from the Indonesian representative to the United Nations to the Secretary General), 349. Indonesia also cited

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that F R E T I L I N was intent on bringing the Marxism current in the Portuguese ruling junta 23 to East Timor is thought by many to have been the true reason for Indonesia's change in attitude. 24 Indonesia contends that during Indonesian military occupation the people of East Timor performed an act of self-determination requesting incorporation with Indonesia, to which Indonesia acceded in July 1976.25 2. Australia Australia concluded a maritime delimitation treaty with Indonesia in 1971 - 1972, but failed in its negotiations with Portugal over the continental shelf off East Timor. 26 This created what is now called the Timor Gap — a gap in the otherwise continuous line of delimitation between Indonesia and Australia. 27 During 1974, Australian officials declined to meet with U D T and ASDT representatives. However, Australian Prime Minister Gough Whitlam met with Indonesian President Suharto in September 1974, surprising the latter by bluntly stating that a [a]n independent East Timor would be an unviable state, and a potential threat to the area" and offering "Australia's services in making a joint approach with Indonesia to Portugal, urging integration." 28 The Australian government published a briefing paper describing voluntary integration w i t h Indonesia as the best solution for East Timor. 2 9

Portugal's abandonment of the territory, and alleged incursions by F R E T I L I N forces into Indonesia w i t h loss of life and property. De Quadros (note 11), 95. 23

Portugal's ultimate decolonization policy has been criticized as permitting self-determination only through independence and as evidencing "an intention of transferring political power to those movements which at the time claimed to be followers of Marxism-Leninism and were dependent on the Soviet b l o c . . . . " De Quadros (note 11), 96. 24

Franck/Hoffman (note 12), 345, 349. President Suharto is reported as stating at the time of annexation that "he could not tolerate 'a Cuba in our backyard'." Michael Richardson, After 20 Years, an East Timor Morass for Indonesia, International Herald Tribune, 12 December 1995, 2. United States and Australian reactions supporting Indonesia are attributable to the latter's importance as a Cold War and economic ally in the region. Christine Chinkin , Australia and East Timor in International Law, in: International Law and the Question of East Timor (note 14), 269, 270 - 271. Anti-communism is still put forward as an ample justification of Indonesia's invasion. Robert A. Manning , East Timor is not so Simple, Washington Post, 31 July 1996, A27. 25

East Timor (note 2), 96.

26

Id., 98.

27

The Timor Gap is described in more detail in Brian F. Fitzgerald , Horta v. Commonwealth-. The Validity of the Timor Gap Treaty and its Domestic Implementation, International and Comparative Law Quarterly, vol. 44, 1995, 643. 28

Taylor (note 14), 28 - 29.

29

Id. , 29.

19 G Y I L 39

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Peter D. Coffman

Upon the withdrawal of the Portuguese in August 1975, Australia's ambassador to Indonesia predicted that it would be easier to negotiate a treaty concerning the Timor Gap with Indonesia as ruler of East Timor than it had been w i t h Portugal. 30 After the Indonesian invasion and claim of incorporation, it was suggested that "the Indonesians were prepared to offer Australia generous terms on boundary limitation in the Timor Gap in exchange for recognition of the Indonesian invasion." 31 Australia recognized de facto Indonesia's incorporation of East Timor in 1978, while noting its "opposition to the Indonesian intervention." 32 Later that year, Australia announced that it would soon begin negotiating with Indonesia over the Timor Gap, and that such negotiations would constitute "de jure recognition by Australia of the Indonesian incorporation of East Timor," 3 3 while still insisting that such recognition did not change Australia's opposition to the incorporation. 34 Portugal protested neither this de jure recognition, "although that recognition inevitably entailed the corollary position of the termination of Portugal's authority in the Territory," nor the ongoing delimitation talks until 1985.35 The predicted "generous terms on boundary limitation," however, have not materialized. While Australia and Indonesia have so far failed to conclude a delimitation treaty over the Timor Gap, in 1989 they concluded what is known as the Timor Gap Agreement setting up a joint Zone of Cooperation for commercial exploitation of the seabed.36 Australia has consistently contended that negotiations with Indonesia over the resources of the Timor Gap merely constituted coming to grips w i t h the reality of Indonesian control, which the United Nations had failed to alter. 37 Portu30

Simpson (note 21), 325 fn 10; Memorial of Portugal, 47 (on file at Cambridge Research Center for International Law). 31 Simpson (note 21), 325 fn 10 (citing Michael Richardson, Australian Financial Review, 19 October 1976, A l ) . It has also been suggested that the Australian Prime Minister, without the support of his party, "virtually encouraged the Indonesians to incorporate the colony" i n 1975. James Dunn, Preface, in: International Law and the Question of East Timor (note 14), 1, 2. Three days before the invasion, Australian Prime Minister Whitlam "asked what his government would do if an invasion occurred, replied: 'We would do absolutely nothing. N o w , that's a blunt, truthful answer.'" Taylor (note 14), 48. 32

East Timor (note 2), 97.

33

Chinkin (note 21), 211.

34

East Timor (note 2), 98.

35

Chinkin (note 21), 212.

36

Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation i n an Area between the Indonesian Province of East Timor and Northern Australia, Timor Sea, 11 December 1989, 29 I L M 469 (entered into force 9 February 1991). 37

E.g. Counter-Memorial of Australia, 127 (on file at Cambridge Research Center for International Law) (erga omnes duty of non-negotiation in spite of the fact that Portugal's inability to give effect to any agreement about the Timor Gap would deny Australia the ability to

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gal, and others, viewed it as profiting from the wrong of Indonesia in violation of the rights of the people of East Timor to self-determination and to control over their natural resources and Portugal's duty and responsibility to administer the territory as a Sacred trust' for the people of East Timor. 3. The United Nations - Security Council and General Assembly The Security Council responded with two resolutions, one in December 1975 and one in April 1976, calling on "all states to respect the territorial integrity of East Timor as well as the inalienable right of its people to self-determination," and on Indonesia to withdraw its forces. The 1975 resolution also called on Portugal "as administering Power to cooperate fully with the United Nations so as to enable the people of East Timor to exercise freely their right to self-determination." 38 The Security Council has not acted since the alleged act of self-determination in May 1976.39 The General Assembly, as the United Nations organ with primary responsibility for decolonization issues, passed eight resolutions, each explicitly or by reference recognizing Portugal as administering power in East Timor despite the Indonesian claims that an act of self-determination took place.40 One of these resolutions expressly rejects "the claim that East Timor has been incorporated into Indonesia, inasmuch as the people of the Territory have not been able to exercise freely their right to self-determination and independence."41 Support for resolutions opposing the Indonesian occupation waned with each vote, however, and the last resolution came in 1982.42 4. The United Nations - International Court of Justice Portugal brought its claim in the ICJ on behalf of the people of East Timor and itself as the territory's administering power under Chapter X I of the United Nations Charter. It alleged that Australia violated vested Timorese rights of self-deterprotect its alleged rights in the area). 38 SC res. 384 of 22 December 1975; SC res. 389 of 22 April 1976 (quoted in East Timor (note 2), 96). 39

East Timor (note 2), 97.

40

See id ., 96 (listing resolutions), 97 (noting references to Portugal as administering power). But see G A res. 3485 (XXX) of 12 December 1975 (expressing regret that Portugal had not fulfilled its duty as administering power) (construed as censure of Portugal in Maffei (note 10),

226).

19*

41

G A res. 32/34 of 28 November 1977 (quoted in East Timor (note 2), 97).

42

East Timor (note 2), 97.

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Peter D. Coffman

mination and permanent sovereignty over natural resources as well as Portugal's exclusive right to represent the Timorese by negotiating, executing and beginning performance of the Timor Gap Agreement with Indonesia.43 Australia admitted that East Timor remains a non-self-governing territory and that Portugal is the only State denominated administering power, but noted that Indonesia, not Portugal, has effectively controlled East Timor since 1975. Australia contended that Portugal's proper dispute was with Indonesia.44 Australia objected that there was no dispute because Australia had publicly recognized the right of the people of East Timor to self-determination, the status of East Timor as a non-self-governing territory, and the fact that Portugal had been named by the United Nations as the administering Power of East T i m o r ; . . . [while] Portugal does not challenge the capacity of Australia to conclude the 1989 Treaty and that it does not contest the valid45 ity of the Treaty

Portugal's real dispute, Australia argued, lay with Indonesia for its part in entering the Timor Gap Agreement based on a false claim of sovereignty infringing the rights of the people of East Timor and of Portugal as administering power. The Court looked to the Portuguese application and the fact of Australia's denial, rather than to the Australian allegation of Indonesian capacity, in finding that a dispute existed. For the purpose of verifying the existence of a legal dispute in the present case, it is not relevant whether the 'real dispute' is between Portugal and Indonesia rather than Portugal and Australia. Portugal has, rightly or wrongly, formulated complaints of fact and law against Australia which the latter has denied. By virtue of this denial, there is a legal dispute. 46

Thus, the Court characterized the pivotal question of whether Australia was under any obligation to Portugal as the basis of the dispute. Australia argued secondly that Portugal's claim that Australia had negotiated w i t h the wrong party necessarily presupposed a finding that Indonesia's claims to sovereignty over East Timor are invalid: "A finding of Indonesia's legal responsibilit y is a precondition to any consideration of Australia's position." 47 In Indonesia's absence, Australia argued that the case would have to be dismissed as non-justiciable. 48 Despite finding a legal dispute between consenting parties, the ICJ declined to exercise its jurisdiction over them; agreeing with Australia, the Court found that "it

43

Id., 94 -95.

44

Id., 99.

45

Id.

46

id., loo.

47

Counter-Memorial of Australia (note 37), 96.

48

Id. , 97; East Timor (note 2), 100 - 102.

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293

c o u l d n o t decide o n Portugal's claim w i t h o u t r u l i n g o n the legality o f Indonesia's conduct" and c o u l d n o t decide the case w i t h o u t Indonesia's consent. 4 9 T h e o n l y case previously dismissed for lack of a t h i r d party was Monetary

Gold

Removed from Rome in 1943,50 w h i c h was brought b y I t a l y against Britain, France and the U n i t e d States w i t h regard t o A l b a n i a n monetary gold l o o t e d b y G e r m a n y during W o r l d W a r I I and held b y a tripartite commission o f Britain, France and the U n i t e d States. T h e Italian application, f o l l o w i n g the compromis y asked the court t o determine first that A l b a n i a had u n l a w f u l l y expropriated Italian assets, and second, i f that claim was upheld, that the resulting claim o n A l b a n i a n assets was superior t o a claim b y Britain for fulfillment of the Corfu Channel 51 judgment against A l b a n i a . 5 2 F o r procedural reasons stemming f r o m the terms of the tripartite commission, I t a l y immediately objected t o the jurisdiction of the court due t o Albania's absence. 53 T h e court agreed that Albania's international responsibility was the "very subject matter" of Italy's suit, and that no judgment could be issued binding o n any State absent

49

A. V. Lowe , The International Court in a Timorous Mood, Cambridge Law Journal, vol. 54, 1995, 484, 485. Accord East Timor (note 2), 105. 50

See note 6.

51

(United Kingdom vs. Albania), 1949 ICJ 4 (judgment).

52

The tripartite commission's Washington Statement required that the "question of priorit y between the claim of Italy and the United Kingdom w i l l only arise when it has been decided that, as between Italy and Albania, the gold should go to Italy." Monetary Gold (note 6), 33. Prior to such a binding determination, the Court and all parties interpreted the Washington Statement as finding no grounds to consider Italy's claim "competitive . . . w i t h the claim of the United Kingdom," and so evidencing no British consent to jurisdiction. Id. Thus, as to both questions jurisdiction over the parties was conditioned on a framing of the issues which called for a direct and binding adjudication of Italy's expropriation claim against Albania. 53

The Washington Statement provided that if an arbitrator found that Albania, not Italy, owned the gold found in Rome, then it would be transferred to Great Britain in satisfaction of the Corfu Channel judgment unless Italy or Albania brought suit in the ICJ within ninety days. The arbitrator ruled that Albania owned the gold. Monetary Gold (note 6), 26. Accordingly, Italy timely brought suit pressing its alternate, expropriation claim, thus forestalling transfer of the gold to Great Britain. Having achieved that goal simply by bringing suit, Italy sought to have the suit dismissed so that it could resolve the issue outside judicial channels. D. H. N. Johnson, The Case of the Monetary Gold Removed from Rome i n 1945, International Comparative Law Quarterly, 1955,93,104. France and the United States took no active role. Like Italy, Great Britain sought to have the case dismissed on its first two alternative submissions in order that it could resolve the topic extrajudicially. Id ., 95. In 1995, the United States and Albania finally negotiated a solution to the disposition of the gold. Agreement between the Government of the United States of America and the Government of the Republic of Albania on the Settlement of Certain Outstanding Claims, 10 March 1995, United States-Albania, Art. 3, 34 I L M 595 (entered into force 18 April 1995).

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Peter D. Coffman

a judgment against Albania. Since Albania had not consented to jurisdiction, the court dismissed the case.54 Similarly, in East Timor the Court found that the question whether Indonesia had lawfully entered East Timor so as to make it capable of exercising the right to negotiate treaties with regard to the natural resources of that territory lay at the core of the dispute between Portugal and Australia. 55 The Court noted that "one of the fundamental principles of [the ICJ's] Statute is that it cannot decide a dispute between States without the consent of those states to its jurisdiction," 56 and found that Australia's behavior cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very subject-matter of the Court's decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor. . . . The Court could not make such a determination i n the absence of the consent of Indonesia. 57

Portugal presented two novel arguments in seeking to show that Monetary Gold should not apply. First: the rights which Australia allegedly breached were rights erga omnes and that accordingly Portugal could require it, individually, to respect them regardless of whether or not another state had conducted itself in a similarly unlawful manner. 58

Portugal distinguished Monetary Gold and analogized to the joint tortfeasors in Certain Phosphate Lands in Nauru 59 on the grounds that a right erga omnes (like a right for reparations against only one of several joint tortfeasors) creates independent duties on each State running back towards the right holder, regardless of whether any other State is honoring those obligations. By contrast, Italy's right erga singulum in Monetary Gold ran only towards Albania. 60 The Court accepted that "the right of peoples to self-determination . . . has an erga omnes character [and] is one of the essential principles of contemporary international law." 6 1 However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations in54

Monetary Gold (note 6), 32.

55

East Timor (note 2), 105.

56

Id., 101.

57

Id., 102.

58

Id.

59

(Nauru vs. Australia), 1992 ICJ 241 (preliminary objections).

60

Reply of Portugal, 174 (on file at Cambridge Research Center for International Law).

61

East Timor (note 2), 102. See also Western Sahara case, 1975 ICJ 12, 23 (describing it as a "fundamental rule").

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volved, the Court could not rule on the lawfulness of the conduct of a state when its judgment would imply an evaluation of the lawfulness of the conduct of another state which is not a party to the case . . . even if the right in question is a right erga omnes?1

The Court also rejected Portugal's second argument that the various United Nations resolutions established conclusively for the litigation "the principal matters upon which its claims are based, namely the status of East Timor as a non-self-governing territory and its own capacity as the administering Power of the Territory." The Court noted that these facts either had been admitted by Australia or were otherwise not at issue.63 The "legal implications" flowing from them, however, still remained to be decided.64 The Court stressed that since 1982 the General Assembly had been silent, that "several states have concluded with Indonesia treaties capable of application to East Timor but which do not include any reservation in regard to that Territory" and that the Security Council had not reacted to the signing of the Timor Gap Agreement. 65 The Court concluded that the United Nations resolutions did not suffice to show that the United Nations "intended to establish an obligation on third states to treat exclusively with Portugal as regards the continental shelf of East Timor." 6 6 I I . The Function of Erga Omnes Obligations in the Structure of State Responsibility After the Vienna Convention on the Law of Treaties in 1969 and the Barcelona Traction opinion of 1970, the linked concepts of jus cogens and obligations erga omnes leapt into prominence in international law. Enthusiasm for the new types of norms, however, outpaced consideration of their full implications for the body of international law they invaded. In succeeding years, a minority of scholars have rung warning bells cautioning that these categories of 'supernorms' have outrun the systems of State responsibility and dispute resolution developed over centuries to channel friction between formally equal sovereigns. Ingesting these new doctrines whole, Prosper Weil argues, portends "the dislocation of the normative structure of international law and the perversion of its functions. . . ." 6 7

62

East Timor (note 2), 102.

63

Id., 104.

64

Id.

65

Id.

66

Id.

67

Prosper Weil , Towards Relative Normativity in International Law?, American Journal of International Law, vol. 77, 1983, 413, 442.

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Most of the scholarly attention, especially among Americans, has focused on the alluring concept of a "public order of the international community" 6 8 comprised of 'peremptory norms' "permitting no derogation, and prevailing over and invalidating international agreements and other rules of international law in conflict w i t h them." 6 9 Little has been written exploring how the doctrine of obligations erga omnes can be fitted within the bilateralism characterizing the current system.70 In particular, little thought appears to have been given to the relationship of erga omnes obligations to the rule of consent to jurisdiction underlying Articles 36 and 59 of the ICJ's Statute and to the judicially created Monetary Gold principle. This lack of scholarly work is reflected in the cursory treatment of the issue in the East Timor decision. Concentration on the procedural aspects of erga omnes obligations and their role in State responsibility, however, recommends a narrowing of the erga omnes doctrine. 1. Normative and Objective Definitions of Obligations Erga Omnes Obligations erga omnes modify the legislative and enforcement procedures of the international legal system. Traditional international law prescribes that an obligation arises against a State only by its consent (even if implied), 71 and that violations occur only towards a State with an individualized, subjective interest. 72 First, this process can be characterized as horizontal because no higher authority exists capable of imposing duties on unwilling States.73 The States act as their own legislators. Second, the system of State responsibility enforcing the law thus created is essentially bilateral, tying the obligated State solely to the right holder subjectively harmed 68

Gordon A. Christenson, Jus Cogens: Guarding Interests Fundamental to International Society, Virginia Journal of International Law, vol. 28, 1988, 585 and fn 2. 69

Id., 585 fn 1 (quoting Restatement of Foreign Relations Law of the United States (revised) § 331(2) (tentative draft no. 6, vol. 2, 1985)). 70

But see, e.g., Claudia Annacker, The Legal Regime of Erga Omnes Obligations in International Law, Austrian Journal of Public International Law, vol. 46, 1993/94, 131, 161 - 166; Rene Provost, Reciprocity in Human Rights and Humanitarian Law, British Yearbook of International Law, vol. 65, 1995, 383, 430 - 431. See also note 4. 71 Eastern Carelia case, 1923 PCIJ (ser. B) No. 5; Renata Szafarz, The Compulsory Jurisdiction of the International Court of Justice, 1993, 3 (with further references); M. N. Shaw, International Law, 3rd ed., 1991, 77. 72 Simma (note 4), 821 (quoting Reparations for Injuries Suffered Nations, 1949 ICJ 174, 181 - 182).

in the Service of the United

73 The persistent objector to an emerging rule of customary international law exemplifies this flat relationship of equal States. "It is th[e] opportunity for each individual state to opt out of a customary rule that constitutes the acid test of custom's voluntarist nature." Weil (note 67), 434. See also id.,47>?>.

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b y the delict. 7 4 N e i t h e r any t h i r d State n o r any group entity (such as the U n i t e d N a tions) is empowered t o enforce the law unilaterally. 7 5 " W h i l e any State has a right t o have an international n o r m adhered t o erga ipsum , it has no right t o the observance in the absolute of the w h o l e corpus of international l a w and the obligations there ens h r i n e d . " 7 6 M u c h as i n typical civil disputes i n m u n i c i p a l law, o n l y the directly aggrieved p a r t y w i l l be heard t o complain — even if the interests o f the c o m m u n i t y are threatened b y the v i o l a t i o n . 7 7 Obligations erga omnes introduce a vertical legislative element and a decentralized enforcement regime. First, they b i n d "all other legal persons, irrespective o f consent o n the part of those thus affected." 78 This does n o t mean that they have no consensual basis, but rather that no particular State need assent t o be b o u n d . 7 9 This element o f the doctrine obviously relates closely t o jus cogens. 80 Second, such obligations eliminate the requirement o f direct, subjective i n j u r y because "all states have an inter-

74

Reparations for Injuries Suffered in the Service of the United Nations (note 72), 181 - 182 ("only the party to whom an international obligation is due can bring a claim in respect of its breach"). 75

Even the Security Council has authority only where it finds a threat to the peace under Chapter V I I of the United Nations Charter. Interestingly, however, the lack of judicial review of such findings indicated by the ICJ's decision on provisional measures in Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya vs. United Kingdom) (provisional measures), 1992 ICJ 114, 127 indicates that this restraint may be political, not legal. See generally Geoffrey R. Watson , Constitutionalism, Judicial Review, and the World Court, Harvard International Law Journal, vol. 34, 1993, 1, 22 - 28. 76

Weil (note 67), 431.

77

"In sum, no international obligations erga omnes, traditionally, exist: it is up to each state to protect its own rights; it is up to none to champion the rights of others. This principle, it is said, is 'characteristic of a general situation of juxtaposition of sovereignties, since it encloses international responsibility within a bilateral relationship opposing the obligation of one state to the personal right of the other.'" Weil (note 67), 434 (quoting P.-M. Dupuy , Observations sur le 'crime international de l'Etat', Revue Generale Droit I n t ' l Publique, 1980, 449, 543). See also South West Africa cases (Ethiopia vs. South Africa; Liberia vs. South Africa), 1966 ICJ 6, 47 (second phase, judgment) (discussed in Christine D. Gray , Judicial Remedies i n International Law, 1987, 212 - 215). 78

1. Brownlie , Principles of Public International Law, 4th ed., 1990, xlvii. See also Albert Bleckmann , General Theory of Obligations under Public International Law, German Yearbook of International Law, vol. 38, 1996, 26, 32. 79

Weil (note 67), 430. Weil wams that heightened normativity coupled w i t h nonconsensual application threatens a "danger of imposing more and more customary rules on more and more states, even against their clearly expressed will." Id ., 434. This would result i n a body of law unlikely to elicit voluntary compliance. 80

Compare Vienna Convention on the Law of Treaties, 1969, Arts. 53, 66, 1155 U N T S 331 (discussed i n Part I V section 1(a)).

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est i n the p r o t e c t i o n o f the rights i n v o l v e d . " 8 1 This can be accomplished either b y fictionally bilateralizing the c o m m u n i t y ' s interest such that every State is deemed inj u r e d , 8 2 o r b y defining an 'objective' "legal regime of obligations that protect the c o m m o n interests o f a group of states and are consequently owed t o the c o m m u n i t y rather t h a n t o one o r more particular states." 83 G i v e n the U n i t e d N a t i o n ' s limitations as a representative of the international c o m m u n i t y , "the right corresponding t o the obligations can o n l y be attributed t o the individual states f o r m i n g the c o m m u n i t y . " 8 4 I n the context o f the adjudication o f disputes, 85 therefore, either ap81 Robert Y Jennings/Sir Arthur Watts (eds.), Oppenheim' s International Law, 9th ed., 1992, 5. Accord Roberto Ago, Fifth Report on State Responsibility, Yearbook of the International Law Commission, vol. 2, part 1,1976, 3, 29; Oscar Schachter , International Law in Theory and Practice, 1991, 344; East Timor (note 2), 214 (dissenting opinion of Judge Weeramantry); Restatement (Third) of the Foreign Relations Law of the United States, § 902 comment (a). 82

International Law Commission Draft Articles on State Responsibility, Yearbook of the International Law Commission, vol. 2, part 1,1985, 5 - 6 (Article 5(2)(a) - (d)); Simma (note 4), 836 (describing I L C approach as "multilateralizing injury"); Provost (note 70), 384. 83

Annacker (note 70), 131.

84

Id ., 140. In the Wimbledon case, 1923 PCIJ (ser. A) No. 1, the Permanent Court of International Justice stretched the rules of locus standi to include States pleading no direct injury. France, Great Britain, Italy and Japan brought the case seeking declarations that Germany was "wrong in refusing free access to the Kiel Canal to the [French] steamship Wimbledon ." Each applicant State was a party to the Treaty of Versailles establishing Germany's duty to open the canal, but only France had suffered individual injury. The Court allowed all applicants to proceed as parties, however, because each would benefit from the declaration settling Germany's duty as each was a seafaring nation. Id ., 20. O n the other hand, in the South West Africa cases (note 77), the ICJ signaled its unwillingness to expand this reasoning to modern erga omnes obligations, such as duties towards non-self-governing peoples. Gray (note 77), 212 -215. 85 Because their unilateral enforcement threatens "international vigilantism," Simma (note 4), 832, third-party claims of erga omnes obligations may be limited to judicial enforcement. Antonio Cassese, Self-Determination of Peoples, 1995, 184 - 185. See also A.J.J, de Hoogh, The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective, Austrian Journal of Public International Law, vol. 42, 1991, 183, 210-211 (discussing Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States), 1986 ICJ 14,127 (merits, judgment) (rejecting United States argument that alleged aggression by Nicaragua against its neighbors could justify third-party military countermeasures) and Corfu Channel (note 51), 35 (duty of non-intervention and threat of "mob justice" is inherent in duty of coastal State towards the world)); Weil (note 67), 427 (with further references); Report of the International Law Commission on the Work of its TwentyEighth Session, Yearbook of the International Law Commission, vol. 2, part 2, 1976, 99 (ILC Report 1976). Compare Vienna Convention on the Law of Treaties (note 80) (compulsory jurisdiction for jus cogens claims among treaty partners). But see Schachter (note 81), 197; Annacker (note 70), 161 - 162; Louis Henkin , et al., (eds.), International Law, 1993, 557; B. G. Ramcharan , State Responsibility in respect of Violation of Treaty Rules i n General, and of those Creating an 'Objective Regime' in Particular: Specific Features w i t h regard to the 'First,

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proach results in an expansion of traditional locus standi to encompass an action by any State.86 These modifications seem to reflect the interdependency of certain norms and the structure necessary to serve their functions. 87 Cooperative rules (such as those barring massive environmental pollution, aggressive war or genocide) require that no State be able to opt out; while rules protecting entities without adequate international legal personality, for example, necessitate surrogates to bring claims.88 a) The Normative Definition The Court stated in its famous dictum in Barcelona Traction that obligations are applicable erga omnes a [ i ] n view of the importance of the rights involved . . . ." 8 9 In 1976, the ILC stressed that such norms are characterized by "the importance of their subject matter for the international community as a whole," 90 seeming to bind the expansion of standing not simply to important norms, but to norms peculiarly of importance to all States taken as a group entity. The ILC concretized its definition in Article 5 (Part II) of the Draft Articles on State Responsibility, 91 specifying that the erga omnes doctrine applies to human rights, interdependent rights the infringement of which "necessarily affects the enjoyment" of the rights by all other States92 and international crimes. 93 Second and Third Parameters', Indian Journal of International Law, vol. 26, 1986, 1, 24 - 25. 86 Weil (note 67), 430. See also Annacker (note 70), 138 - 149, 162 (arguing that subjective and objective constructions of erga omnes obligations lead to "only slightly different results"). 87

See Weil (note 67), 414.

88

This examination w i l l focus instead on the network of standing and obligation created, rather than on the legislative process by which norms achieve that status over the persistent objections of particular States. 89

Barcelona Traction (note 3), 32. The ICJ also stated, however, that "the instruments which embody human rights do not confer on states the capacity to protect the victims of infringements of such rights irrespective of nationality." Id ., 48. As Weil notes, "This passage is not easy to reconcile w i t h the earlier one." Weil (note 67), 432 fn 76. 90 I L C Report 1976 (note 85), 99 (emphasis added) (discussed in Weil (note 67), 425). Accord Ago (note 81), 29. This wording also appears in Barcelona Traction (note 3), 32. 91

See note 82.

92

Compare Vienna Convention on the Law of Treaties (note 80), Art. 60(2)(c) (permitting unilateral suspension of a multilateral treaty as a consequence of breach by another party where "the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every other party"). 93 Another hierarchical distinction in the law of State responsibility divides norms between 'crimes' and those of a merely delictual nature. By definition, international crimes are a subset of all norms erga omnes.

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Importance to the international community defines erga omnes too broadly, however, sweeping in obligations that States are rightly not yet prepared to see enforced multilaterally. For example, diplomatic immunity has a "fundamental character" because "vital for the security and well-being of the complex international communit y . " 9 4 Yet each State retains the incentive and ability to protect its own diplomats. Thus, there is no suggestion that it is binding outside the consent of States, nor that every State has standing to claim violations. 95 Similarly, the principle of the sovereign equality of States posits fundamental duties binding every State.96 This falls short, however, of full erga omnes application because "as soon as . . . violated, the ensuing legal relationship links only the aggrieved state and the offending party." 97 Thus, while diplomatic immunity and sovereign equality are vitally important to the system as a whole, they call for rights binding all States to each other in a network of bilateral relationships, rather than creating a multilateral interest in every State "in the protection of the rights involved." 98 Therefore, something beyond a gauge of normative importance, even to the 'community as a whole', must underlie the doctrine. b) The Objective Definition The objective theory of the erga omnes doctrine argues that community interest should be considered the defining element of obligations erga omnes, as distinct from the ILC's "fiction of a violation of subjective rights" belonging to each State.99 The doctrine would apply only to those interests that "can be fulfilled or breached only towards the community of states as a whole, not towards a particular member of the community." 100 This distinguishes diplomatic immunity and sovereign equality be94

Case concerning United States Diplomatic and Consular Staff in Tehran , 1979 ICJ 3, 42, 43 (judgment). See also Antonio Cassese, International Law in a Divided World, 1986, 28. 95

Roberto Ago, Obligations Erga Omnes and the International Community, in: Joseph H. H. Weiler/ Antonio Cassese/Marina Spinedi (eds.), International Crimes of State: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility, 1989, 237, 237 - 238; Provost (note 70), 384-385 (with farther references). See also Bruno Simma y Reciprocity, Encyclopedia of Public International Law, vol. 7, 1984, 400, 402 ("The Law of diplomatic privileges and immunities, the law of international economic relations (e.g. the application of most-favourednation clauses) as well as the rules on the treatment of aliens, furnish many other examples of reciprocity as the indispensable condition for the operation of the law.") 96

Cassese (note 94), 28. Accord Friendly Relations Declaration (note 11).

97

Cassese (note 94), 29. Accord Henkin, etal. (note 85), 554.

98

Jennings/ Watts (note 81), 5.

99

Annacker (note 70), 148.

100

Id., 149. See also id., 157 (given U N ' s limited mission, all States may enforce, but should do so on an openly objective basis).

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cause each is individually dischargeable. By contrast, the objective definition satisfactorily positions human rights and multilateral treaties (such as disarmament treaties) within the doctrine because these obligations cannot be fulfilled or reparation made in relation to any single State. However, the objective theory does not explain community interests in adherence to norms which, although enforceable by and dischargeable against a single State, nonetheless are also of vital importance to the community. Aggression is a primary example. 101 The community's interest derives directly from the victim State's injury, the redress of which will make the community whole. Nonetheless, the community has its own interest in maintaining a peaceful system in which aggression is not tolerated. 102 The United Nations has been specially oriented towards threats to the peace because of the community interest. Colonialism presents another example in that the discharge of the colonizer's duty to the colonial people fully discharges its obligation to the community as a whole. Nevertheless, the community has its own interest in stamping out colonialism. 103 The objective definition, therefore, is also incomplete if we are to consider such obligations binding and enforceable erga omnes. 2. Defining Obligations Erga Omnes Functionally As a structural innovation, erga omnes obligations can be examined by asking what deficiencies in the traditional bilateral structure of State responsibility it redresses (i.e. what difference it makes).104 This inquiry focuses not on the law-making process (which is closely related to the topic of jus cogens), but on the doctrine's expansion of standing. With a grasp of its function, the normative and objective definitions can be refined and narrowed. Procedurally, the doctrine resembles municipal qui tarn or 'private attorney general' statutes, which empower any individual to sue on behalf of the government to enforce certain classes of laws such as those concerning "false or fraudulent claim[s]

101 See Report of the Commission to the General Assembly on the Work of its Forty-Seventh Session, Yearbook of the International Law Commission, vol. 2, part 2, 1995, 131 (ILC Report 1995). 102

See, e.g., U N Charter, Art. 2(4).

103

U N Charter, Art. 1; G A res. 1514 (XV) of 14 December 1960.

104

This approach resembles 'process theory' in American constitutional law: the influential theory defining and justifying judicial review of the coordinate political branches only as a device designed to correct 'systematic malfunctioning' in democratic institutions, rather than to mandate particular substantive results. John Hart Ely y Democracy and Distrust: A Theory of Judicial Review, 1980, 102 - 103.

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Peter D. Coffman

for payment" made to government. 105 Unlike governmental interests protected by other statutes, the subject matter of these interests concerns (1) injuries that fall so generally upon the taxpaying populace that no individual would otherwise have standing, 106 and (2) areas in which there is a general concern that the government may be hampered in fully pursuing violators for practical or political reasons. 107 Accordingly, these statutes "assign the government's claims" to whistleblowers, providing the stake necessary to support standing.108 Thus, private attorney general statutes choose the inexact method of letting a tangentially involved individual represent the community interest over no representation at all. Additionally, they seem to show a distrust of central enforcement, preferring to let individuals decide whether to go to court alleging that the community's interests have been infringed. In this regard, they indicate that government officials may have lost their independence and perhaps that the interests are too important to be left solely to the government's prosecutorial discretion. The following examination of the putative obligations erga omnes reveals characteristics similar to those underlying domestic private attorney general statutes. Discussion begins with those norms identified by the ICJ in Barcelona Traction as applicable erga omnes: "the outlawing of acts of aggression, and of genocide, [and] also the basic rights of the human person, including protection from slavery and racial discrimination." 109 The "principle of permanent sovereignty over natural resources and the principle of self-determination" have also been so identified. 110 105

False Claims Act, 31 U.S.C. §§ 3729(a)(1), 3730(b)(1), 3730(c)(3), 3730(d)(2).

106

See United States ex rel. Milam v. Univ. Texas M.D. Anderson Cancer Center , 961 F.2d 46, 48 - 49 (4th Cir. 1992). 107

Elletta S. Callahan/Terry M. Dw orkin, Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act, Villanova Law Review, vol. 37, 1992, 273, 304 (False Claims Act "encourage[s] 'private attorneys general' who would help enforce the laws and protect the treasury by prosecuting wrongdoers that the government does not have the adequate resources to pursue.") 108

United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993).

109

Barcelona Traction (note 3), 32. O n aggression see also Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States), 1984 ICJ 169, 196 (provisional measures) (dissenting opinion of Judge Schwebet); A. Mark Weisburd> The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina, Michigan Journal of International Law, vol. 17,1995/1996,1, 21 - 22; Lauri Hannikainen y The Case of East Timor from the Perspective of Jus Cogens, in: International Law and the Question of East Timor (note 14), 103, 106; Christenson (note 68), 609 fn 95 (with further references). 110

Brownlie (note 78), 513. See also Hannikainen (note 109), 106, 110; T. Meron y Human Rights and Humanitarian Norms as Customary Law, 1989, 95 - 98; Report of the Commission to the General Assembly on the Work of its Thirty-Seventh Session, Yearbook of the International Law Commission, vol. 2, part 2, 1985, 27; Western Sahara (note 61), 29 (basis of referred question), 120 (separate opinion of Judge Dillard) (discussed in Bill Bo wring, Self-

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a) Aggressive War The prohibition of aggressive war benefits from a developed scheme for its enforcement through the Security Council. 111 The events surrounding the Korean and Persian Gulf Wars exemplify this centralized system in action. Victim States are also well motivated to complain, as Nicaragua demonstrated by suing the United States before the ICJ. What role, then, does the erga omnes doctrine's decentralized enforcement scheme play? The prohibition against aggression falls within the foregoing functional conception of erga omnes first because of the victim State's frequent inability to protect itself against invasion. If the victimized people either do not constitute a State (e.g. the Timorese and the indigenous peoples of North America), or have been overwhelmed, then effective international claims cannot be expected. Second, the historical lack of effective action by the Security Council, institutionalized in the veto and exacerbated by the Cold War, has rendered a United Nations' response unreliable. 112 Moreover, it is at best a political, not a legal, response. These impediments leave an enforcement lacuna that erga omnes may fill by opening a new, legal forum for publicizing the issues and pressuring aggressors and cooperating States. As with most private attorney general statutes, it is doubts about the Determination and the Jurisprudence of the ICJ, in: International Law and the Question of East Timor (note 14), 151, 161). Compare Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 , 1971 ICJ 16, 31 (Charter-based duty on all Member States). But see Restatement (Third) of the Foreign Relations Law of the United States, §§ 702, 703 (not listing self-determination as erga omnes); fames R. Crawford , The Creation of States in International Law, 1979, 81 (selfdetermination not peremptory). See also Weisburd (note 109), 23 - 24, 27 (with further references). The textual bases of the right to self-determination are set out i n detail in M. G. Kaladharan Nayar , Self-Determination beyond the Colonial Context: Biafra in Retrospect, Texas International Law Journal, 1975, 321, 333 - 339. 111 m

U N Charter, Arts. 39 - 51.

J. G. Merrills , International Dispute Settlement, 2nd ed., 1991, 203 ("[T]he fact that from 1945 onwards the United States and the Soviet Union engaged in a world-wide struggle for power and influence led to a situation in which almost any dispute could be regarded as a matter of critical interest, to be dealt w i t h outside the world organization."); Christine M. Chinkin, Conclusion, in: International Law and the Question of East Timor (note 14), 309, 314 (discussing post-Cold-War failures in Bosnia, Rwanda and Somalia); Bert V. A. Röling , The Limited Significance of the Prohibition of War, in: Albert Lepawsky et al. (eds.), The Search for World Order: Studies by Students of Quincy Wright , 1971, 228 - 237, 231- 233. Compare Shabtai Rosenne, The Cold War and the International Court of Justice: A Review Essay of Stephen M. Schwebet* s Justice in International Law, Virginia Journal of International Law, vol. 35,1995, 669, 674 - 680 (noting that Cold War tensions reduced the acceptability of compulsory jurisdiction clauses in multilateral treaties and affected the ICJ's and the parties' willingness to have East-West disputes adjudicated).

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central organ's efficacy (rather than its lack of existence) that justify adding decentralized enforcement. The politicized nature of Security Council deliberations argues for a separate legal forum providing reasoned application of law and fact, even after the world's attention has faded. 113 b) Genocide, Slavery, Racial Discrimination Conversely, norms precluding genocide, slavery and racial discrimination share the common characteristic of being capable of violation within a single State, leaving no other State with an adequate stake to support traditional standing. 114 The lack of standing also signals a lack of concrete national self-interest, diluting any political will to protest such atrocities. 115 Other than altruism, there is no inherent incentive for the world community to take action when a single State oppresses its own citizens. 116 Accordingly, "[t]he charge of politically motivated double standards is not difficult to document by reference to resolutions and other decisions of United Nations organs [on human rights]." 117 The norms, therefore, are characterized not only by their importance, but by their vulnerability under the current, horizontal structure of consensual norms and dispute resolution procedures. 118 By contrast, diplo113 Interestingly, the 1996 Nobel Peace Prize accorded to two East Timorese resisting the Indonesian government — Bishop Carlos Filipe Ximenes Belo and Jose Ramos-Horta — may help to revive world attention. Fred Barbash , East Timor Dissidents W i n Nobel Peace Prize, Washington Post, 12 October 1996, A23. See also Colman McCarthy, Nobel Laureates vs. U.S. Arms, Washington Post, 22 October 1996, D12 ("In the competition for world attention these past two decades, the East Timorese — with 200,000 or more left dead by the Indonesian invasion and occupation since 1975 — have been overshadowed by the sufferings of the butchered and jailed i n such hellish lands as Guatemala, Rwanda, Bosnia, China and Iran. A lifting of that obscurity came on Oct. 11 when the Nobel Peace Prize went to a pair of East Timorese advocates for peaceful conflict resolution. ,, ) McCarthy presses President Clinton to honor seemingly forsaken campaign pledges to reverse United States policy towards Indonesia and East Timor. 114

Provost (note 70) ("A Special Rapporteur of the PLC] has characterized interests embodied in human rights norms as 'extra-state', to underline the fact that the protection afforded by these norms goes beyond that required by an aggregate of state interests.") (quoting Willem Riphagen, Second Report on the Content, Forms and Degrees of State Responsibility, Yearbook of the International Law Commission, vol. 2, part 1, 1981, 79, 86). 115

See Alfred P. Rubin, Book Review, American Journal of International Law, vol. 81, 1987, 254, 258 ("in fact, no state can be expected to complain of [erga omnes] violations when it is not legally affected"). 116

Tom J. Farer, A n Inquiry into the Legitimacy of Humanitarian Intervention, in: Lori Fisler-Damrosch/David J. Schejfer (eds.), Law and Force in the New International Order, 1991, 192. 117

Schachter (note 81), 346.

118

Provost (note 70), 430 - 431.

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matic immunity and sovereignty trench upon concrete interests of individual States and so need not rely on altruism for vindication. c) Self-Determination, Sovereignty over Natural Resources The principle of self-determination and its corollary the right to permanent sovereignty over natural resources present the most illuminating test of this essay's functional definition of the class of obligations erga omnes. Because no 'people' to which either of these norms is applicable by definition possesses full legal personality, the norm requires someone else to enforce it. 1 1 9 The United Nations has devised a system for tying the enforcement of those rights to the its central organs. In the case of mandated or trust territories, Chapters X I I and X I I I of the Charter lay out a thorough scheme whereby a trust agreement is concluded between the trustee State and the General Assembly. The Trusteeship Council then provides supervision and the General Assembly retains authority to modify or terminate the trusteeship agreement. 120 The Charter defines trust territories narrowly, however, primarily by the territory's relationship to the European powers involved in the two world wars. 121 East Timor is not a trust territory. 122 Chapter X I of the Charter regulates the broader category of all "territories whose people have not yet attained a full measure of self-government . . . ." 1 2 3 Article 73 declares that all member States administering such non-self-governing territories shall accept as a sacred trust the obligation to promote to the utmost. . . the well-being of the inhabitants of these territories . . . and to this end . . . to develop self-government, to take due account of the political aspirations of the peoples, and to assist them i n the progressive development of their free political institutions. . . , 1 2 4

A n administering power is also to report to the Secretary General on the conditions of the non-self-governing territory. 125 N o further institutional arrangements are laid out in the Charter. However, 119

Memorial of Portugal (note 30), 180. As the ICJ stated in the Namibia opinion, "As to the consequences resulting from the illegal presence of South Africa in Namibia, all states should bear i n mind that the injured entity is a people which must look to the international community for assistance in its progress towards the goals for which the sacred trust was instituted." Namibia (note 110), 56. 120

U N Charter, Art. 85.

121

Id. , Art. 77.

122

See G A res. 1542 (XV) of 15 December 1960; G A res. 32/34 of 28 November 1977.

123

U N Charter, Art. 73.

m

Id.

125

Id., Art. 73(e).

20 G Y I L 39

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in practice, the General Assembly has adopted a vigorous policy of implementation of the ill-defined obligation in Article 73. The Assembly established a committee, as a subsidiary organ, with powers of supervision, and assumed a power to designate specific territories as < non-self-governing , for the purposes of Chapter X I . 1 2 6

A review of the General Assembly's practice demonstrates that "[i]n the decolonization of non-self-governing territories under Chapter X I of the Charter, the basic activity of the General Assembly has been to verify and legitimize the termination of dependent status." 127 Thus, despite a lack of Charter provisions equivalent to Chapters X I I and X I I I , a system for General Assembly supervision of non-self-governing territories has arisen reflecting the international community's interest in the development of peoples without self-government. When the General Assembly turned to Portuguese possessions, therefore, it did not insist that Portugal withdraw, but that it bring these territories under the regime of Article 73[(e)] of the charter and . . . adopt formally [its] responsibilities to prepare those peoples for the eventual exercise of self-determination, in accordance w i t h the principle of trusteeship. 128

After the Indonesian invasion, the General Assembly again exercised its supervisory power by condemning the invasion and resulting human rights abuses, affirming the continuing right of self-determination and Portugal's role as administering power and calling on Indonesia to respect Timorese rights. 129 Thus, in principle, there should be no need for expanded standing when the General Assembly has identified a non-self-governing territory because it can supervise the situation and hold the administering power publicly accountable. Therefore these norms, which have been of enormous interest to the General Assembly, present the interesting situation of falling within the first functional requirement of be126

Brownlie (note 78), 568. This was a gradual development: [I]n 1949 the General Assembly took the first step in asserting its responsibility to express its opinions on the validity of criteria used to make a determination on the nonself-governing status of a territory, and thus started the trend that culminated i n 1960, when the General Assembly on its own initiative declared that the Portuguese overseas possessions fell into the category of non-self-governing territories within the meaning of Article 73[(e)]. W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law, 1977, 114 (citing G A res. 334 (IV) of 2 December 1949; G A res. 1542 (XV) of 15 December I960). See also G A res. 1514 (XV) of 14 December 1960; G A res. 1541 (XV) of 15 December 1960. Compare International Status of South-West Africa, 1950 ICJ 128, 137 ("no . . . right of the [non-self-governing] people could be effectively safeguarded without international supervision") (discussing mandate system). 127

Ofuatey-Kodjoe 1953 - 1977).

(note 126), 122, 122 - 124 (discussing General Assembly practice from

128

Id., 123.

129

See Part I section 3.

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30 7

ing incapable of enforcement by any individual State, but seem to have engendered an institutional response by the United Nations that brings the community's interest in them to the fore. That is, they apparently fall within the I L C and objectivist preconditions for expanded standing, but not the second prong of the narrower functional definition. However, the United Nations system has not worked in two identifiable contexts. First, violations of the right by major non-aligned powers have challenged the political assumptions underlying the consensus in the General Assembly on selfdetermination. 130 For example, in East Timor, while the Security Council and the General Assembly responded loudly to the invasion and reaffirmed the right, they did nothing binding to enforce their resolutions. Meanwhile, proponents of the nonaligned group argue that such cases of aggression are "less wrong" than Western aggression "because they happened basically in the anti-colonial context." 131 The lack of consensus condemning such secondary colonialism blurs the issues and the politics of enforcement. 132 Over time, as the Indonesians dug into East Timor, the world community turned its attention elsewhere. Indeed, through its silence the international community may have given the impression that this violation of its interests was tolerable. 133 Similar situations include the Indian invasion of Portuguese Goa in 1961134 and the Indonesian annexation of West Irian in 1969.135

130

Compare on massive human rights violations Farer (note 116), 192 ("The globe's governing elites have been mute in instances where the delinquent among them were comparatively powerful: One thinks of the Indonesian campaign to suppress opposition i n East Timor, an a fortiori case since in that instance slaughter bonded w i t h aggression against a small but unquestionably sovereign people.") 131

M. S. Rajan , The Role of the Nonaligned States in the United Nations, in: M. S. Rajan/ V. S. Mani/C. S. R. Murthy (eds.), The Nonaligned and United Nations, 1987, 294, 335. Indeed, India made an express reservation to the broad principle of self-determination i n the International Covenant on Civil and Political Rights specifying that it only applied to foreign domination. Steven R. Ratner , Drawing a Better Line: Uti Possidetis and the Borders of N e w States, American Journal of International Law, vol. 90, 1996, 590, 611 fn 171. 132

See Simpson (note 21), 336 - 337.

133

See East Timor (note 2), 104. Compare Rajan (note 131), 335. The awarding of the 1996 Nobel Peace Prize to East Timorese opponents of Indonesian rule, of course, shows that at least some of the world still finds the Indonesian occupation intolerable. See note 113. 134 Portugal eventually accepted Indian sovereignty in 1974. Treaty on Recognition of India's Sovereignty over Goa, Daman, D i u and Najar Haveli and Related Matters, 31 December 1974, Portugal-India, 982 U N T S 153. 135

Cassese (note 85), 79 - 86; Ratner (note 131), 622. One might also count the Moroccan invasion of the Western Sahara in 1976.

20*

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Second, other emerging forms o f self-determination 1 3 6 are testing the resolve o f the U N . T h e Chinese reaction t o "internal self-determination" 1 3 7 may provide an example this year i n H o n g Kong. The lack of effective response t o China's c o n t i n u i n g occupation and cultural assault o n T i b e t already does so. 1 3 8 I t is unclear w h e t h e r these norms constitute customary international law. I t is clear, however, that p o w erful, veto-wielding States like C h i n a cannot be called t o account for t h e m before the Security C o u n c i l . I n at least t w o classes o f conflict over self-determination, therefore, the internat i o n a l c o m m u n i t y ' s interest i n seeing self-determination respected is predictably thwarted. 1 3 9 I n these c o m m o n instances of political paralysis, erga omnes standing before the I C J provides a complementary legal f o r u m w h i c h may, at least, goad the collective institutions t o vindicate the c o m m u n i t y ' s interest. A l t e r n a t i v e l y , applicat i o n of the obligations t o t h i r d States could hamper the primary violating State f r o m profiting f r o m its wrong. There is, therefore, a strong argument that self-determinat i o n is a n o r m f i t t i n g w i t h i n the erga omnes doctrine's functional parameters.

136

Cassese (note 85), 104.

137

Id ., 101 (defined as the "right for a people really and freely to choose its own political and economic regime"), 302 - 312, 348 - 359; Ratner (note 131), 611 - 613 (discussing development of the principle). See also Roda Mushkat , Hong Kong as an International Legal Person, Emory International Law Review, 1992, 105, 143 ("Notwithstanding any reservation that may be raised w i t h respect to claims by Hong Kong people to be free from foreign rule and domination, their right to internal self-determination . . . to elect and keep the government of [their] choice finds ample support in contemporary international law.") (with further references). But see Gregory H. Fox , Self-Determination in the Post-Cold War Era: A New Internal Focus?, Michigan Journal of International Law, vol. 16, 1995, 733 (book review) ("The legitimacy of an internal right to self-determination is as yet uncertain.") 138 See Robert McCorquodale/Nicholas Orosz (eds.), Tibet: The Position i n International Law, in: Report of the Conference of International Lawyers on Issues relating to Self-Determination and Independence for Tibet: London 6 -10 January 1993, 1994, 146. 139 However, an alternative explanation may lie in a lack of consensus over the exact contours of the principle of self-determination generally and its relationship to other norms such as non-intervention, territorial integrity, aggression and genocide. For example, Weisburd traces the tension between self-determination and maintenance of peace which has run throughout the Yugoslavian conflict. Weisburd (note 109). Confusion as to the meaning, scope and relative priority of the substantive norm naturally w i l l be reflected by uncertain, wavering enforcement. The difficult issue of who determines these issues, and how, goes to the question whether emerging doctrines such as erga omnes and jus cogens should be recognized at all outside the framework of treaty law. See Weil (note 67), 433 (criticizing lack of clear basis for obligations binding all States); Weisburd (note 109), 37 (jus cogens outside the treaty context can have no content because no institution is empowered to determine that content). These critiques seriously undermine these doctrines. However, the purpose of this Article is to examine the erga omnes doctrine as propounded, not to assess its validity.

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3. Result: A Narrowed Definition of Erga Omnes The foregoing correlation of the suggested candidates for erga omnes status w i t h a functionalist version of the ILC and objective definitions indicates that the doctrine may be narrowed. By limiting the doctrine's reach, the 'dislocation' of the traditional system can also be minimized while still serving the doctrine's purpose within the system. To rephrase the ILC definition along the lines traced above: obligations are binding erga omnes when (1) they are of heightened importance to the international community as a whole, but not intrinsically to any particular State w i t h traditional standing, and (2) they are of a type such that the United Nations executive organs cannot be said to substantially represent the international community's interest. Where these criteria are met, the erga omnes doctrine's expansion of standing provides either the only method to protect the international community's interest or a decentralized legal avenue supplementing the central political fora. 140 I I I . The East Timor Decision is Inconsistent with the Function of Erga Omnes and its Implications for Justiciability The ICJ accepted that the Timorese right to self-determination "has an erga omnes character" as to standing and obligation, but curtly rejected the Portuguese contention that this implied any relaxation of the rule of consent to jurisdiction, even by absent third parties. 141 This dismissal is consistent neither with the implications of the doctrine nor with limitations of the Monetary Gold principle. 1. A Third-Party

Veto of Bilateral Adjudication over Obligations Erga Omnes Defeats the Doctrine's Function

The Court's ruling will reduce the effectiveness of erga omnes obligations; limits on justiciability always reduce the effectiveness of the norms asserted, however, so that need pose no particular problem here. Sensible limitations might exclude claims that are marginal or irrelevant to the doctrine's function, such as where United Na140

The weakness in this definition lies in the prospective application of the second prong. H o w are States to know if they have standing to challenge violations of a particular norm? The challenge, therefore, is to discern patterns stabilizing the definition. Where the United Nations inaction arises from a structural impediment such as the veto, or traces a consistent pattern of paralysis, it is a better candidate for erga omnes standing than an isolated lack of response would be. 141

East Timor (note 2), 102 (emphasis added) (citing Barcelona Traction (note 3), 31 - 32 (expanded standing) and Western Sahara (note 61), 31 - 33 (citing G A res. 2625 (XXV) of 24 October 1970 ("Every state has a duty to promote . . . realization of the principle o f . . . selfdetermination. ")))

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tions organs are n o t obstructed f r o m responding effectively t o protect c o m m u n i t y interests o r where a particular State has a direct, enforceable interest. T h a t is, the b r o a d definitions o f erga omnes obligations currently used m i g h t have been narr o w e d as discussed above i n Part I I . T h e C o u r t , unfortunately, d i d n o t l i m i t its reasoning. A fuller explanation o f the C o u r t ' s understanding o f the doctrine w o u l d have been helpful, however, because the T i m o r Gap Agreement appears t o violate obligations at the core of any conception o f erga omnes. East T i m o r is still a non-self-governing t e r r i t o r y supervised b y the U n i t e d Nations, evidencing c o m m u n i t y interest i n Timorese rights t o self-determination and sovereignty over natural resources. Moreover, the victimized people has extremely l i m i t e d international legal personalit y , 1 4 2 no other State is directly harmed 1 4 3 and the U n i t e d N a t i o n s has given u p pressing the issue despite a c o n t i n u i n g v i o l a t i o n . 1 4 4 T h e o n l y avenue for p u t t i n g pressure o n Indonesia t o h o n o r its obligation t o the w o r l d c o m m u n i t y is an altruistic suit b y a t h i r d State asserting the obligation erga omnes precluding States f r o m j o i n i n g w i t h Indonesia i n the " j o i n t l o o t i n g o f [Timorese] o i l resources." 145 A p p l y i n g the n o r m against t h i r d States like Australia m a y isolate Indonesia, depriving i t o f the p r o f i t

142

Brownlie (note 78), 64.

143

Although Portugal would seem to stand in East Timor's shoes as administering power, it was Australia's challenge to the continued validity of that status which prompted the ICJ to dismiss the case. East Timor (note 2), 101 -102. 144 The last General Assembly resolution condemning the occupation, which was passed narrowly w i t h numerous abstentions, came in 1982. G A res. 37/30 of 23 November 1982. 145 Jose Ramos-Horta , Australia and East Timor, Moving beyond a Contentious Relationship, Statement on Behalf of the Coordinating Committee of the Diplomatic Front of the East Timorese Resistance, 9 (given at the conference 'Portugal v. Australia in the International Court of Justice' of 14 September 1995) (copy on file w i t h Author) (also describing Timor Gap Agreement as "a war spoils arrangement"). Compare Human Rights Watch, N o Retaliation against East Timorese Students, Press Release, 15 November 1994 (urging that a [a]ll heads of state gathering in Jakarta for the APEC meeting, especially President Clinton , should press the Indonesian government for guarantees" that the human rights of jailed East Timorese activists w i l l be respected). The importance of preventing the depletion of a nonself-governing territory's natural resources for its chances of achieving self-determination has been recognized by the General Assembly. The exploitation of a dependent people's natural resources was condemned by the international community in the Question as to Namibian Uranium, in General Assembly resolut i o n 2271 (XXXV) of 1987. The General Assembly described the exploitation as a major obstacle to the gaining of political independence by Namibia. Similarly, the plundering of Timor Gap resources would deny East Timor a strong economic base on which to sustain a claim for political independence. Sasha Stepan y Portugal's Action in the International Court of Justice against Australia concerning the Timor Gap Treaty, Melbourne University Law Review, 1992, 918, 926. This condemnation logically applies as well to third parties as to the occupying power.

Obligations Erga Omnes and the Absent Third State

311

from its wrong. It is precisely this stop-gap role that erga omnes serves vis-a-vis vulnerable community interests. Since one can hardly expect the primary miscreant State to consent to jurisdiction when accused of violating a fundamental norm such as those concerning aggression, self-determination and genocide,146 the East Timor opinion ensures that the doctrine cannot fulfill that role. Relatedly, whereas erga omnes standing aims to increase the scope of potential applicants, the East Timor decision effectively contracts it to zero. Barring Portugal's suit under Monetary Gold means "that Indonesia could protect any country that has dealings with it in regard to East Timor from being impleaded before this Court, by Indonesia itself not consenting to the Court's jurisdiction." 147 As Portugal argued, "[accepting Australia's argument is tantamount to permitting a state to release itself unilaterally from its conventional obligations . . . [and] from its obligations under general international law." 1 4 8 Rather than spreading a network of obligation and standing via erga omnes norms, the ICJ has recognized an expansive network of jurisdictional immunity emanating from the wrongdoing State and shielding any State helping it to profit from the violation. The Court supports this result by declaring that its Statute requires that "it cannot decide a dispute between states without the consent of those States to its jurisdiction" 1 4 9 and that therefore the Statute requires the consent of any third States whose interests form the very subject matter of a dispute between two other consenting States.150 The tone of this statement indicates that the Court feels it is bound by the terms of its Statute, rather than by the flexible parameters of the general principle of consent to jurisdiction. The Court's reliance on its Statute, however, is questionable. The rule of consent to jurisdiction derives from the same source as the persistent objector rule trumped by 'legislative' erga omnes: the sovereign equality of States.151 The Statute provides the "[m]eans of expressing consent to ICJ jurisdiction" 152 that customary international law requires. 153 The Monetary Gold principle demonstrates 146

DeHoogh (note 85), 197.

147

East Timor (note 2), 172 (dissenting opinion of Judge Weeramantry).

148

Memorial of Portugal (note 30), 192.

149

East Timor (note 2), 101.

150

Id., 101-102.

151

Szafarz (note 71), 3 (with further references). It also would seem to rest on fundamental fairness or what is called in American constitutional law 'due process'. Chinkin (note 21), 221 (discussing Corfu Channel i n which the non-respondent Yugoslavia was accused of laying mines on behalf of the respondent Albania). 152 153

Szafarz (note 71), 5.

But see De Hoogh (note 85), 195 - 199 (Article 36 constitutes a substantive limit which Barcelona Traction did not intend to expand.)

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this relationship of Statute to principle because it "is based not upon the Statute but on the general requirement of consent to the exercise of jurisdiction . . . ," 1 5 4 Indeed, it applies only when the prerequisites of the Statute have been met because both parties before the Court have consented, but nonetheless divests jurisdiction because the customary rule of consent is violated by the absent third State's non-consent. Accordingly, the Monetary Gold principle rests on the customary rule, not on the Statute, and the justification for dismissing Portugal's suit lies in the former. The ICJ's treatment of consent to jurisdiction generally, however, shows a much less rigid stance than the Court's tone in East Timor indicates. First, the Court has not applied Monetary Gold strictly where the parties have brought the suit pursuant to compromiSy rather than on a contested optional clause declaration. For example, in Land, Island , and Maritime Frontier Dispute a chamber of the Court was asked to declare the status of the Gulf of Fonseca, which was claimed to be held in condominium with Nicaragua, which was not a party. The Court rejected the applicabilit y of the Monetary Gold doctrine, 155 raising Article 59 of its Statute as a 'Chinese wall' protecting Nicaragua's interests. 156 This respected the parties' desire to resolve their dispute judicially, although clearly at the expense of Nicaragua. Second, the ICJ has offended the principle of consent to jurisdiction in the recent case between Qatar and Bahrain by torturing the interpretation of treaties in order to find that Bahrain had consented to unilateral submission despite clear indications to the contrary. 157 Whereas this decision involves the ICJ adjudicating over a seemingly non-consenting State, a narrow reading of the Monetary Gold principle results only in a judgment binding the two intentionally consenting parties. By contrast, a broad reading — as in East Timor — involves the Court in imposing the absent third State's choice not to adjudicate its portion of the dispute upon the parties' own bilateral dispute without their consent. Thus, while the Court in East Timor appeals to consensualism as the core principle barring Portugal's suit, the Court has applied the principle much less stringently in two other recent cases not founded on erga omnes obligations. Moreover, as 154

Chinkin (note 21), 218 - 219.

155

(El Salvador vs. Honduras), 1990 ICJ 92, 121.

156

I d , 122.

157

Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar vs. Bahrain), 1995 ICJ 6. Compare Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. 2,1986, 513-514 ("It is only too easy i n this matter for international tribunals to pay lip-service to the principle of consent. . . while adopting an interpretation o f . . . what matters are covered by a particular consent, such that, in practice, a jurisdiction is assumed going well beyond what was intended to be conferred - or which was not intended to be conferred at all.") A limited application of the Monetary Gold principle does not rely upon a fiction of consent and so does no damage to the conception of intentional consent.

Obligations Erga Omnes and the Absent Third State

313

the Court had already found that Portugal and Australia were in dispute and had both consented to jurisdiction, the principle of consent points towards permitting the case to go forward rather than allowing Indonesia to veto the parties' decision to let the Court resolve the dispute. 2. The Court's Discomfort with the Erga Omnes Nature of East Timor's Rights Led to a Decision on the Burden of Proof that Distorts the Law Concerning Self Determination and Third-Party Consent a) The Burden of Proof: Unilateral Actions and the Status of the 'Sacred Trust' Portugal argued that the case could go forward because the essential facts had already been established by the General Assembly and Security Council in post-invasion resolutions finding that the Timorese still had a right to self-determination despite Indonesian control, and that Portugal had not been replaced as administering power. By allowing Portugal standing to assert East Timor's claim without reference to standing erga omnes, the ICJ seems to have accepted Portugal's continuing legal position as administering power. Australia, however, challenged Portugal's standing as not based on "a sufficient interest of its own," 1 5 8 and argued that historical consolidation of title had given Indonesia the sovereignty necessary to dispose of Timorese rights in the Timor Gap. 159 That is, over time the fact of effective control had both ended Portugal's 'sacred trust' protecting the Timorese people's Charterbased right of self-determination, and had vested sovereignty in Indonesia. Australia also pointed to the lack of recent United Nations action on the issue as implying acquiescence. A dispute concerning the current character of the Timorese people's right to self-determination, therefore, was framed. The ICJ addressed a converse but similar question in the South West Africa cases. South Africa argued that it no longer ruled South West Africa/Namibia pursuant to the mandate, but had occupied it as part of South Africa's territory. The Court, however, ignored the historical reality of South African occupation and treated South Africa as the "mandate power despite its claims to the contrary and its physical and illegal occupation of Namibia in a capacity other than that of administering Power." 160 To do otherwise would have allowed South Africa's unlawful actions to alter unilaterally the mandate. Like South Africa, Australia argued that Indonesia's successful aggression had terminated Portugal's status as administering power, vest158

East Timor (note 2), 99.

159

I d , 101-102.

160 Gerry J. Simpson , The Politics of Self-Determination in the Case concerning East Timor , in: International Law and the Question of East Timor (note 14), 251, 264 (citing South West Africa cases (preliminary objections), 1962 ICJ 319).

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ing Indonesia with new rights. The two cases are distinct, however, in that preserving the mandate arrangement in South West Africa ensured a link between effective control and a duty to the dependent people, whereas preserving Portugal's status as administering power would divorce Indonesia's effective control from the duties of an administering power. Thus, Australia's argument that sovereignty should shift by historical consolidation to Indonesia fits within the South West Africa cases' upholding of the effectiveness of the trusteeship system. On the other hand, it also transfers the power to define that relationship from the General Assembly to a single, lawbreaking State. The Court in East Timor addressed the issue as a matter of evidence, or perhaps burden of proof, ruling that "it cannot be inferred from the sole fact that the abovementioned resolutions . . . refer to Portugal as the administering Power of East Timor that they intended to establish an obligation on third states to treat exclusively w i t h Portugal as regards the continental shelf of East Timor." Instead, the Court pointed out that "several states have concluded with Indonesia treaties capable of application to East Timor, but which do not include any reservation in regard to that Territory." In particular, the Court found significant that Portugal's protest of the Timor Gap Agreement's signing did not produce "responsive action" by the United Nations. 161 While substantively "[i]t seems that non-self-governing status ceases automatically upon the achievement of full self-government," procedurally the question "whether full self-government has in fact been achieved is to be decided by the administering state and the General Assembly together... ." 1 6 2 Failure to observe this attention to where the right is to be extinguished dangerously uproots the principle, throwing even vested rights of self-determination back to the political determination of each State. 163 The ICJ seems to have shifted a burden of proof onto the administering power of a non-self-governing territory to show not merely that the General Assembly has recognized its status but that it has recently defended it politically. The Court's decision on method of proof thus is inconsistent with the function of erga omnes as a doctrine that seeks to protect community interests when the community has failed to protect them. To avoid dismissal under Monetary Gold , the Court invited a showing that the central organs of the international community had recently and forcefully acted to define and protect East Timor's rights. 164 If a small 161

East Timor (note 2), 104.

162

Crawford

(note 110), 369.

163

Australia argued just that in contending it had the right to determine for itself whether the duty to "promote . . . the realisation of the principle of equal rights and self-determination of peoples" (Friendly Relations Declaration (note 11)) entailed a duty not to recognize Indonesia as sovereign over East Timor. 164

East Timor (note 2), 104.

Obligations Erga Omnes and the Absent Third State

315

ex-colonial territory has already received enduring political support of that type, however, erga omnes standing is not necessary to bring the violation of self-determination to the attention of the world community. Thus, an obligation erga omnes binding Australia would be recognized and admitted by the Court only in cases in which it would be unnecessary to do so. The Court's reasoning seems to confuse the political role of the Security Council and General Assembly with the legal, stop-gap role of the Court when enforcing obligations arising from a right of self-determination — such legal rights should not waver with political support. 165 b) Self-Determination as a Peremptory N o r m Similarly, the peremptory character of the norms of self-determination and permanent sovereignty over natural resources are thrown into doubt by the Court's decision on the burden of proof. As discussed above, General Assembly resolutions show that the competent international organ considered that East Timor continued as a non-self-governing territory after the Indonesian invasion, and affirm the international community's enduring interest in protecting the self-determination rights attending that status. The rights, therefore, had Vested' by actions of the community's organs. If peremptory, they could be divested only by actions of a similar gravity, 1 6 6 i.e. General Assembly resolutions. In the absence of any such resolutions, the doctrine of jus cogens presumes that they remain in force. The Court, however, reverses the presumption by calling for evidence of recent, renewed resolutions explicitly imposing binding sanctions, as well as by finding pertinent the actions of other States with regard to Indonesia. This approach indicates that inaction by the United Nations and historical consolidation by individual State practice can derogate from these rights although they embody community interests of the highest order. This implies either a distrust of jus cogens or an unwillingness to apply it to these norms. In either case, the Court's decision is inconsistent with classification of these norms as peremptory. 165

Chinkin persuasively supports this point at length. I n particular she notes that, unlike resolutions concerning armed response to the Iraqi invasion of Kuwait or the United Kingdom's intervention in Southern Rhodesia, Portugal has not undertaken any action which might otherwise be illegal, and therefore does not require any specific Security Council authorization. Indeed, the General Assembly has urged Portugal to seek a peaceful solution to the dispute, and the Security Council has called upon Portugal to 'cooperate fully w i t h the United Nations to enable the people of East Timor to exercise freely their right to self-determination.' It seems absurd to argue that Portugal cannot attempt to fulfil this task through the principal judicial organ of the United Nations. Chinkin (note 21), 215 (quoting G A res. 3485 (XXX) of 12 December 1975; SC res. 384 of 22 December 1975). 166

Compare Vienna Convention on the Law of Treaties, Art. 53 (note 80), 345.

316

Peter D. Coffman c) Monetary Gold and its Progeny do not Require Dismissal

Finally, it is noteworthy that the dismissal of this case under Monetary Gold was not inevitable. 167 First, Monetary Gold could have been distinguished as a garnishee case, in which Italy and Great Britain simply sought to levy upon Albanian gold that lay in the respondent States' possession without Albania's consent. Accordingly, the "circumstances of the Monetary Gold case" — which "probably represent the limit of the power of the Court to refuse to exercise its jurisdiction" 168 — called for a judicial determination of Albanian responsibility resulting in a direct transfer of Albanian assets to the claimant. In the cases distinguishing Monetary Gold , by contrast, any effect on the absent third States required a further claim by one of the parties. For example, in Certain Phosphate Lands in Nauru , the two absent members of the tripartite administering authority were held to incur no loss until either the respondent member chose to claim a portion of any judgment against it in contribution, or until the applicant, Nauru, engaged in serial litigation against each in turn. 1 6 9 Similarly, a decision in East Timor would have established only Australia's duty to Portugal, not Indonesia's duties to either Australia or Portugal. Thus, while it is incontestable that a decision for Portugal would have affected Indonesian interests by clarifying that Australian performance of the Timor Gap Treaty violates Australia's duties to Portugal and the people of East Timor, 1 7 0 it would have had "no adjudicatory quality against Indonesia" and would have left Australia's duties to Indonesia unresolved. 171 Second, the Court could have distinguished Monetary Gold on the grounds that the first Italian submission did not raise a dispute between Italy and the respondents because the latter had no interest in the outcome of Italy's expropriation claim. 172 By contrast, as noted above, Australia expressly denied both that Portugal remained the administering power with exclusive authority to negotiate on behalf of the terri167

See Schwebel (note 2), 836 - 837.

168

Certain Phosphate Lands in Nauru (note 59), 260 (quoting Military and Paramilitary tivities in and against Nicaragua (Nicaragua vs. United States), 1984 ICJ 392, 431).

Ac-

169

Id ., 342 (dissenting opinion of Judge Schwebel) (citing serial litigation by Nicaragua against two of the three absent States from the Military and Paramilitary Activities case, using Nicaragua's judgment against the United States). 170

See Counter-Memorial of Australia (note 37), 104.

171

East Timor (note 2), 173 (dissenting opinion of Judge Weeramantry). See also Iain Scobbie y The Presence of an Absent Third: Procedural Aspects of the East Timor Case, in: International Law and the Question of East Timor (note 14), 1995, 223, 239 - 241 (discussing Costa Rica vs. Nicaragua , American Journal of International Law, vol. 11, 1917, 181, 227 - 228; El Salvador vs. Nicaragua , American Journal of International Law, vol. 11, 1917, 674, 729). 172

Monetary Gold (note 6), 27 (quoting British submissions, which fail to deny Italy's claim against Albania).

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317

t o r y and that such status entailed any d u t y o n Australia. Indeed, i n emphasizing that it differed w i t h Australia o n the law Portugal quoted Senator Gareth Evans as stating o n behalf of the Australian government that "there is no b i n d i n g international legal obligation not t o recognize the acquisition o f t e r r i t o r y b y force. " , 1 7 3 Thus, whereas there was no dispute between the parties i n Monetary Gold, and hence n o t h i n g u p o n w h i c h t o issue a judgment " b i n d i n g u p o n any state, either the t h i r d state, o r any o f the parties before [the C o u r t ] , " 1 7 4 Portugal and Australia had presented a 'legal disp u t e ' . 1 7 5 A c c o r d i n g l y , the C o u r t could have decided whether Australia o w e d any erga omnes d u t y towards Portugal, 1 7 6 and whether Australia had complied. A r t i c l e 59 w o u l d have prevented that decision f r o m b i n d i n g Indonesia. 1 7 7 T h i r d , the C o u r t c o u l d have f o l l o w e d its approach i n Paramilitary

Activities , i n

w h i c h Nicaragua claimed against the U n i t e d States inter alia for the activities o f the Contras and the m i n i n g of Managua's harbor. 1 7 8 E l Salvador unsuccessfully petitioned t o intervene, alleging that the U n i t e d States had acted pursuant t o E l Salvador's right t o collective self-defense against Nicaraguan aggression. 179 Once i n t e r v e n t i o n 173

Memorial of Portugal (note 30), 56.

174

Monetary Gold (note 6), 33.

175

East Timor (note 2), 100.

176

Prior to the East Timor case, Claudia Annacker raised the question whether a 'dispute' w i t h i n the meaning of the ICJ's Statute, Arts. 36, 38(1) can flow from a right erga omnes rather than from a subjective, individualized interest. Annacker (note 70), 162 (citing Statute of the International Court of Justice, Art. 38(1)). She answers it in the affirmative. [Notwithstanding the ICJ's reservation towards the judicial protection of erga omnes obligations, the procedure of the ICJ is not opposed to their implementation. If the violation of an erga omnes obligation is covered by a title of jurisdiction between the parties the injured state has the right to a decision on the merits. Id., 165. The ensuing decision may be that no justiciable right exists, as in the second phase of the South West Africa cases (note 77), but it still addresses the merits of a disputed claim. Id., 164. The Wimbledon case (note 84) would seem to support Annacker's analysis. Of course, Article 59 of the ICJ Statute prevents such a decision from being binding erga omnes, limiting its effectiveness to the parties before the Court. Annacker (note 70), 165. The East Timor opinion, although dealing w i t h erga omnes obligations and justiciability, does not address A nnackers question explicitly. Nonetheless, in finding a dispute based solely on Portugal's allegations and Australia's denial, East Timor (note 2), 100, the Court seems to support A nnacker ys argument. 177 Of course, it would nonetheless have "effectively determined the legal rights of the absent party." Certain Phosphate Lands in Nauru (note 59), 331 (dissenting opinion of Judge Schwebel). The decisions in the prior cases distinguishing Monetary Gold did the same, however, without rendering them inadmissible. Id., 330 - 343 (dissenting opinion of Judge Schwebel) (discussing cases). 178 179

Military

and Paramilitary

Activities in and against Nicaragua (note 109), 170 - 172.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua, vs. United States), 1984 ICJ 215, 223 - 227 (declaration of intervention of the Republic of El Salvador).

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Peter D. Coffman

was granted, El Salvador "intended to argue that the Court lacked jurisdiction over it and hence could not entertain proceedings against its partner in acts of collective self-defense." 180 The United States similarly objected that the case could not go forward without El Salvador, Honduras and Costa Rica, which it said had requested its aid in repelling Nicaraguan aggression, because their rights to self-defense formed the subject matter of the action. 181 Both the United States and El Salvador, therefore, argued or intended to argue that the case would have to be dismissed under Monetary Gold because the Court would have to rule on the validity of the rights of non-party States without their consent to jurisdiction. 182 The Court rejected this objection, stating that the absent States' interests did not form the very subject matter of Nicaragua's claim and that no judgment would be binding against them. 183 Of course, it would be binding against the great power that they allegedly requested to help them exercise those rights and defend their territorial sovereignty. 184 The Court's decision left the United States to prove as an affirmative defense that its conduct was legal pursuant to the absent States' right of collective self-defense. 185 As the Court acknowledged at the merits stage, therefore, it effectively adjudicated the propriety of El Salvador's request for the United States's help in its absence.186

180

Schwebel (note 2), 836.

181

Military and Paramilitary

Activities in and against Nicaragua (note 168), 430 - 431.

182

Schwebel (note 2), 836 ("It is plain from the ill-fated Declaration of Intervention submitted by El Salvador that, sharing th[e] U.S. position, it intended to argue that the Court lacked jurisdiction over it and hence could not entertain proceedings against its partner in acts of collective self-defense.") 183

Military and Paramilitary

184

Certain Phosphate Lands in Nauru (note 59), 333 (dissenting opinion of Judge Schwebel).

Activities in and against Nicaragua (note 168), 431.

185 See Military and Paramilitary Activities in and against Nicaragua (note 85), 34 - 36 ("[I]n order to rule upon Nicaragua's complaint against the United States, the Court would have to decide whether any justification for certain United States activities in and against Nicaragua can be found in the right of collective self-defence which may, it is alleged, be exercised i n response to an armed attack by Nicaragua on El Salvador.") 186 Id., 36 ("The Court would of course refrain from any finding on whether El Salvador could lawfully exercise the right of individual self-defence; but El Salvador would still be affected by the Court's decision on the lawfulness of resort by the United States to collective self-defence"). Judge Schwebel put it more strongly in a later case: If the United States were to comply w i t h the judgment of the Court [in Paramilitary Activities], it would cease to act in what it and El Salvador maintained was the collective selfdefense of El Salvador, with the result that the latter's Government, far from having its interests conserved by the force of Article 59, could fall before the onslaught of the insurrection so significantly supported by Nicaragua. Certain Phosphate Lands in Nauru (note 59), 333 (dissenting opinion of Judge Schwebel).

Obligations Erga Omnes and the Absent Third State

319

Like those of Nicaragua, Portugal's submissions framed claims against Australia that did not implicate Indonesia directly. Portugal's claim that, in entering into the 1989 Treaty w i t h Indonesia, Australia violated the obligation to respect Portugal's status as administering Power and that of East T i m o r as a non-self-governing territory, is based on the assertion that Portugal alone, i n its capacit y as administering Power, had the power to enter into the Treaty on behalf of East Timor; that Australia disregarded this exclusive power and, in so doing, violated its obligations to respect the status of Portugal and that of East Timor. 1 8 7

Portugal submitted that a finding as to Australia's violation of these obligations would not require a predicate finding of Indonesian responsibility to Portugal. 188 Australia responded by raising Indonesia's claim to sovereignty over East Timor. Thus, for Australia, the fundamental question in the present case is ultimately whether, in 1989, the power to conclude a treaty on behalf of East Timor in relation to its continental shelf lay w i t h Portugal or w i t h Indonesia. 189

As in Paramilitary Activities, therefore, Portugal's artful pleading squeezed a multilateral dispute into a bilateral framework, leaving Australia to plead Indonesia's rights to shield their behavior from illegality. Australia, however, stressed that whereas aggression is unlawful unless justified, there is generally no need to justify a treaty concerning the continental shelf as lawful. 190 Thus, whereas the United States' actions were illegal unless it could show that El Salvador's rights justified them, Portugal's application relied on a finding that Indonesia could not negotiate for East Timor. The Portuguese application, therefore, may be read as seeking a finding of Indonesian responsibility, just as Italy sought a finding of responsibility against Albania in Monetary Gold. m This Australian argument disregards prior determinations by the General Assembly and the Security Council that Indonesia had not acted pursuant to an act of selfdetermination in annexing East Timor and had used unlawful force to occupy the territory, that the annexation was therefore invalid and that Portugal continued as the only lawful administering power over the territory. 192 These United Nations re-

187

East Timor (note 2), 101.

m

Id.

199

Id.,

102.

190

Counter-Memorial of Australia (note 37), 95 - 96 (distinguishing El Salvador's interest as a consequence of the decision, whereas a finding of Indonesian responsibility would be a "precondition" to the unlawfulness of Australia's action). 191 Counter-Memorial of Australia (note 37), 96. See also Australian Rejoinder (on file at Cambridge Research Center for International Law), 9 (Portuguese application asks whether Portugal was solely entitled to negotiate over East Timor, "and by exact correspondence, whether Indonesia was not.") 192

Eg. G A res. 3485 (XXX) of 12 December 1975; G A res. 31/53 of 1 December 1976; G A

320

Peter D. Coffman

solutions could have been taken to establish a presumption that East Timor retained its non-self governing territory status w i t h Portugal as its only lawful administering power. While not accepted as conclusive,193 this could have been construed to raise a presumption that negotiation of a treaty with any other State over East Timor's territory violates the principle of self-determination. The burden would then have lain on Australia to show that its conclusion of a treaty that seemed to violate the rights reaffirmed in those resolutions was shielded by the right of an absent third party. As in Paramilitary Activities, Indonesia's right to act as sovereign over East Timor and legitimize Australia's actions would then have arisen only as an affirmative defense or excuse, rather than forming the subject matter of Portugal's application. Pursuant to Paramilitary Activities, this would have removed the rule of consent as a bar, allowing adjudication of the applicability of the erga omnes obligations to Australia's conduct. 194 The effect on third States would also have been the same: as the three absent Central American States lost the opportunity to pursue their rights w i t h the help of the United States without their consent in Paramilitary Activities™ 5 Indonesia stood to lose the chance of having Australia help it exploit the Timor Gap's hydrocarbon reserves in litigation to which it was a stranger. 196 The Court's failure to conceive the case in these terms testifies to its discomfort with erga omnes obligations as a subject of bilateral litigation. 197 So long as unilateral

res. 32/34 of 28 November 1977. See also Part I section 3. 193

East Timor (note 2), 104.

194

Portugal, however, did not frame its use of the resolutions in this way. Reply of Portugal (note 60), 171 - 172. Had Portugal used the United Nations resolutions simply to shift the burden, the Court might have worked around Australia's attempts to hide behind Indonesia as the United States sought to hide behind El Salvador. 195

In the merits stage of the Paramilitary Activities litigation, the Court rejected the United States's previously stated defense (unsupported by any adversarial factual development due to the United States's refusal to participate absent El Salvador), thereby writing "a prescription for the overthrow of weaker Governments while denying potential victims what in some cases may be their only hope for survival." Stephen M. Schwebel, Justice in International Law, 1994, 145. 196

Indonesia would not lose the right to claim against Australia for violation of the Timor Gap Agreement, however, unless the agreement itself violated jus cogens. See Vienna Convention on the Law of Treaties, Art. 30(5) (note 80), 339 - 340 (recognizing possibility of inconsistent, valid treaties). But compare id., Arts. 53, 71, 344, 349; Counter-Memorial of Australia (note 37), 104 (on jus cogens). 197

Nonetheless, an alternative explanation for the Court's holding might be a non-articulated antipathy or internal controversy over the status of self-determination itself. See East Timor (note 2) (separate opinion of Judge Oda) (denying Portugal's standing, and so impliedly the erga omnes character of self-determination). Compare Counter-Memorial of Australia (note 37), 97 - 98 (contending that East Timor's rights imply a duty on behalf of the interna-

Obligations Erga Omnes and the Absent Third State

321

enforcement of these norms via countermeasures is deemed too dangerous to be countenanced, they will require some novel form of enforcement if they are to be considered 'law' at all. 198 The Security Council and General Assembly, however, could not help the Timorese. In the terms of the traditionally bilateral, consensualist international system, this presents a conundrum: If you regard [international law] as requiring a reaction from the organized community of states as it exists at present (and we all know its imperfections), and as requiring that exclusively, then what becomes of the protection of the community interest. . . ? 199

For the time being, an application of their necessary function, coupled with Gold , would provide some protection the bilateral structure of international

erga omnes rights and obligations limited to a narrow but consistent reading of Monetary where needed, with minimum disruption to law.

I V . Is there a General Principle of Law Linking Compulsory Jurisdiction to Obligations Erga Omnes? The concept of general principles of law 2 0 0 may provide an alternative route for clarifying the relationship between erga omnes obligations and the Monetary Gold principle. 201 Examination of this question will begin by looking to see how five conventional systems handling erga omnes obligations and peremptory norms deal w i t h justiciability and jurisdiction before turning to the potential bases for a general principle of law regulating the Monetary Gold principle as applied to erga omnes obligations.

tional community (i.e. the United Nations) but not on behalf of individual States such as Australia). See also note 139. 198

Legal, as opposed to moral, norms are those "which obligate the subject to refrain from the delict by attaching a sanction thereto . . . This definition always involves at least two actors, the violator and the sanctioning body. Hans Kelsen , General Theory of Law and the State, 1949, 58 - 59 (Anders Wedberg, translator). 199 Sir Ian Sinclair , State Crimes Implementation Problems: Who Reacts?, in: Weiler/Cassese/Spinedi (note 95), 257 (referring to the grave violations of community norms denominated international crimes). 200

Statute of the International Court of Justice, Art. 38(l)(c).

201

Of course a split ICJ rejected a general actio popularis as a general principle of law in regards to decolonization issues in the South West Africa cases (note 77), 32, 5 0 - 5 1 (rejecting the argument that the General Assembly's inability to enforce its resolutions implies erga omnes standing before the ICJ).

21 G Y I L 3 9

322

Peter D. Coffman 1. The Structure of Erga Omnes Regimes in Multilateral Includes Nonconsensual Adjudication

Treaties

In the municipal analog discussed above in Part I I section 2, recognition of universal standing entails procedural vehicles capable of bringing the disputes to issue. The East Timor decision, by contrast, divorces analogously expanded State responsibility from justiciability. 202 Examination of the few international regimes that have embraced erga omnes shows that these concepts have at times been linked, albeit incompletely, on the international plane. Due to the paucity of law in this area, the following survey will move beyond the third party question raised by East Timor and consider the broader and more problematic relationship between erga omnes obligations and compulsory jurisdiction in general. a) The Vienna Convention on the Law of Treaties The interaction between nonconsensual203 norms and adjudication has been worked out in the law of treaties as codified in the Vienna Convention on the Law of Treaties. The Vienna Convention describes in procedural terms the class of norms of jus cogens (i.e. by generally acknowledged non-derogability) and the consequences of their breach, which is objective invalidity of the treaty. 204 Thus, the definition of the category is tied directly to a peremptory rule of State responsibility. The Vienna Convention on the Law of Treaties completes this structure, moreover, by providing for compulsory jurisdiction in the ICJ. Article 66 permits "any one of the parties to a dispute" over the application of jus cogens norms to a treaty to "submit it to the [ICJ] for a decision." 205 Thus, the nonconsensual nature of peremptory norms is extended to the rule of consent to jurisdiction, evincing a prin202

East Timor (note 2), 102. Compare Willem Riphagen , Seventh Report on State Responsibility, Yearbook of the International Law Commission, vol. II, part 1, 1986, 3, 5 (draft Article 5, part 3 (proposed compulsory ICJ jurisdiction in disputes over countermeasures)). 203 The term 'nonconsensual' is here used in its weak form. It refers to the standard set out in Article 53 of the Vienna Convention on the Law of Treaties (note 80), 344, whereby a "peremptory norm of general international law is a norm accepted and recognized [as such] by the international community of states as a wholeregardless of acceptance by any particular objecting State. See Weil (note 67), 430. The distinction between this less than fully consensual form of obligation and a strong form of jus cogens without any recognition requirement is discussed extensively in Weisburd (note 109), 32 - 35. 204

Vienna Convention on the Law of Treaties, Arts. 53, 64 (note 80). The character of the norm, not the process whereby it was created, places it within jus cogens. N o single State can avoid the application of a peremptory norm. Weil (note 67), 425. 205

Unfortunately, Portugal could not plead Article 66 as a grounds of jurisdiction over Indonesia because it is not a party to the Vienna Convention on the Law of Treaties.

Obligations Erga Omnes and the Absent Third State ciple that vertical norms protecting individuals and peoples ill fit the normal structure of international relations and so require alterations in the consensual structure of dispute resolution. The Vienna Convention evidences recognition of linkage between peremptory norms and compulsory jurisdiction by most States, despite "numerous reservations." 206 Article 66(a) does not similarly extend compulsory jurisdiction to rights and obligations erga omnes, however, because Article 65 permits only parties to the allegedly invalid treaty to assert its invalidity under Articles 53 or 64 and so to invoke Article 66(a).207 That is, even though the idea which culminated in Article 65 arose from a concern w i t h treaties violating international public policy or international morality, the Vienna Convention creates no right in states generally to challenge a treaty alleged to violate Article 53. The obligation embodied in Article 53, then, cannot be characterized as erga omnes.209

For the case in which numerous States have joined the particular treaty in question, the limitation of Article 65 does not preclude characterizing the norms as objective within the treaty regime because numerous States without a subjective interest retain standing. However, in the preponderance of treaties, such as the Timor Gap Agreement, the number of parties is small. In these, any erga omnes character disappears completely because only the two parties may invoke Article 66(a). Thus, while jus cogens and compulsory jurisdiction are linked in some circumstances under the Vienna Convention, the community's interest in the norm does not result in universal standing to invoke that jurisdiction. Accordingly, Article 66(a) cannot demonstrate recognition of a correspondence between expanded standing and compulsory jurisdiction.

206 Simma (note 4), 838 fn 68 ("the link between the recognition of jus cogens . . . and compulsory third-party adjudication [was] untied later by numerous reservations"). Moreover, the choice to accede to the Vienna Convention itself provides prospective consent to jurisdiction. 207 The Vienna Convention on the Law of Treaties was negotiated in 1968 and 1969 and was opened for signature in the latter year. The ICJ wrote its seminal dicta affirming the existence of erga omnes obligations, by contrast, only in 1970. Barcelona Traction (note 3), 32. This may explain in part the lack of any consideration of such obligations in the convention. 208

2

Weisburd (note 109), 17. See also id. , 34.

324

Peter D. Coffman b) Conventions on Genocide, Racial Discrimination and Discrimination against Women

The obligations erga omnes contained in the Genocide,209 Racial Discrimination 210 and Discrimination against Women 2 1 1 Conventions also are matched with clauses vesting the ICJ with compulsory jurisdiction. For example, the Genocide Convention, which has twice been interpreted by the ICJ, creates a "duty that rests upon all parties and is a duty owed by each party to every other. This network of duties is matched by a network of correlative rights. . . . w 2 1 2 Disputes within this network "shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." 213 The availability of third-party adjudication reflects the difficulties posed by the alternative of leaving States to choose between potentially destabilizing countermeasures and acquiescence in violations of fundamental human rights. 214 However, although ratified widely, numerous States have made reservations to the compulsory jurisdiction clauses of each of these conventions.215 Thus, State practice seems to ratify the connection as logical but not mandatory. c) The Torture Convention The conventional and customary law outlawing torture presents another system of erga omnes obligations structured with nonconsensual adjudication as the final enforcement procedure. The issue does not arise with regard to ICJ jurisdiction, but

209

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, Art. I X , 78 U N T S 277. 210

International Convention on the Elimination of all Forms of Racial Discrimination, 21 December 1965, Art. 22, 660 U N T S 195. 211

Convention on the Elimination of all Forms of Discrimination against Women, 18 December 1979, Art. 29(1), 19 I L M 33. 212

Application of the Genocide Convention (Bosnia-Herzegovina vs. Serbia), 1993 ICJ 325, 436 (separate opinion of Judge Lauterpacht). These obligations have also passed into general international law. See Barcelona Traction (note 3), 32. 213

Genocide Convention (note 209), Art. IX.

214

See note 85, discussing instability inherent in allowing each State to determine and sanction extrajudicially the actions of every other State regardless of traditional subjective injury. 215

See Belinda Clark , The Vienna Convention Reservations Regime and the Convention on Discrimination against Women, American Journal of International Law, vol. 85, 1991, 281, 299 - 301.

Obligations Erga Omnes and the Absent Third State

325

rather i n the analogous contexts of extraterritorial jurisdiction and sovereign i m m u n i t y i n the national courts. 2 1 6 T h e T o r t u r e C o n v e n t i o n o f 1984 2 1 7 establishes the current character of the pere m p t o r y n o r m against t o r t u r e b y State officials. I t calls o n all States t o "take effective legislative, administrative, judicial o r other measures t o prevent acts o f t o r t u r e i n any t e r r i t o r y under its jurisdiction," t o "ensure that all acts of t o r t u r e are offences under its criminal law," and " t o ensure i n its legal system that the v i c t i m o f an act o f torture obtains redress and has an enforceable right t o fair and adequate compensat i o n . . . . w 2 1 8 Thus, the convention n o t o n l y requires prevention and enforcement i n m u n i c i p a l courts as t o t o r t u r e 2 1 9 w i t h i n the f o r u m , b u t also provides for c r i m i n a l and civil enforcement 2 2 0 i n each State party's courts for any act o f t o r t u r e , regardless o f w h i c h State c o m m i t t e d it o r w h e r e . 2 2 1 T h e doctrine o f sovereign i m m u n i t y n o r m a l l y shields extraterritorial acts f r o m c i v i l adjudication against a State o r its officials acting w i t h i n their a u t h o r i t y . 2 2 2 In216

See Crawford (note 110), 80 and fn 22, 87 (both sovereign immunity and international judicial jurisdiction rest on the rule of consent). Compare Adam C. Belsky/Mark Merva/Naomi Roht-Arriaza , Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, California Law Review, vol. 77, 1989, 365, 390 ("State immunity rests on the foundation that sovereign states are equal and independent and thus cannot be bound by foreign law without their consent.") 217

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 23 I L M 1027, substantive changes in: 24 I L M 535. 218

Id., Arts. 2(1), 4(1), 14(1),

219

'Torture' is limited to actions taken w i t h the authority of the State, not to private actions. Id., Art. 1(1). Accordingly, it always touches the responsibility of the State, whether the applicable law permits the State to be made a party or not. 220 Since criminal sanctions presuppose an individual defendant, rather than a State, it is the civil provisions which are of relevance to this discussion. 221 Compare Torture Convention (note 217), Art. 2(1) ("Each State Party shall take effective legislative administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction .") (emphasis added) w i t h id., Art. 14(1) (no territorial or citizenship limitation for civil remedies). There is also no limitation to acts of torture committed by authority of State parties, as opposed to the actions of a non-party State. Id., A r t 144(1). See also American Convention on Human Rights, 22 November 1969, Art. 25(2), 1144 U N T S 123. By contrast, the jurisdictional scheme protecting the rights set out in the International Covenant on Civil and Political Rights requires complete reciprocity of consent, permitting ' communications' complaining of a violation to be made only by a State party against another State party, and only where each has previously declared its intent to permit such communications to be made. International Covenant on Civil and Political Rights, 1967, Art. 41, 999 U N T S 171. 222 Eg. European Convention on State Immunity, 16 May 1972, Art. 11,11 I L M 470; International Law Commission, Draft Articles, 24 May 1991, Art. 12, U N Doc. A/CN.4/L.457; United Kingdom Sovereign Immunity Act of 1978, § 5; Princz v. Federal Republic of Germany,

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Peter D. Coffman

deed, unrelated States have no jurisdiction under general international l a w t o a p p l y their law extraterritorially i n the first place absent "foreign conduct that was meant t o produce and d i d i n fact produce some substantial effect i n " the f o r u m . 2 2 3 T h e T o r t u r e C o n v e n t i o n , however, recognizes no such limitations, s i m p l y requiring that a remedy be offered t o victims o f t o r t u r e . 2 2 4 Inasmuch as some States still have n o t acceded t o the convention, i t obliges the State parties t o open their courts t o suits applying its provisions against non-consenting States. 225 That is, i n enforcing a peremptory n o r m erga omnes it overrides the rule of consent as embodied i n the sovereign i m m u n i t y d o c t r i n e . 2 2 6 I n d i v i d u a l States are c o m m i t t e d t o act as judges over other States, regardless of their o w n lack o f a subjective stake i n the claim, o r the defendant State's consent either t o the underlyi n g n o r m o r t o adjudicatory jurisdiction. Nonetheless, the literal terms of A r t i c l e 14(1) have n o t been generally followed. T h e i m p l e m e n t i n g legislation i n the U n i t e d States, for example, authorizes suits o n l y against individuals and does n o t restrict the sovereign i m m u n i t y o f the States o n whose behalf such individuals are alleged t o have acted. 2 2 7 Similarly, i n a B r i t i s h

26 F.3d 1166 (D.C. Cir. 1994), cert, denied, 115 S.Ct. 923 (1995) (construing United States Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 - 1611 as not restricting sovereign immunity of Germany in United States courts for human rights violations by the German Reich of the Nazi era) (Torture Convention not pled by plaintiff as grounds of jurisdiction) (discussed in: Mathias Reimann , A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany , Michigan Journal of International Law, 1995, 403,410-418). 223

Hartford

Fire Insurance Co. v. California , 113 S.Ct. 2891, 2909 (1993).

224

The Torture Convention is not self-executing, however, as it requires implementing legislation. See Torture Convention (note 217), Art. 14(1). A n example of implementing legislation is the United States Torture Victim Protection Act of 1991, Pub. L. 102 - 256, 12 March 1992, 106 Stat. 73. 225

Compare Andrea Bianchi , Denying State Immunity to Violators of Human Rights, Austrian Journal of Public International Law, vol. 46, 1994, 195, 203 (arguing that customary international law imposing human rights erga omnes also implies that no State can have a duty "to grant immunity for [their] violation"). See Restatement (Third) of the Foreign Relations Law of the United States, §§ 702 - 703; Filartiga v. Pena-Irala , 630 F.2d 876 (2d Cir. 1980). However, for inter-State human rights claims, consent to jurisdiction is still required. Restatement (Third) of the Foreign Relations Law of the United States, §§ 703(1), 703(2) comment (a)226 Whether exercise of such jurisdiction would overstep the limits of customary international law pursuant to the pacta tertiis rule raises the contentious question whether such limits exist. However, because the Torture Convention reflects jus cogens, individual persistent objectors are bound. Vienna Convention on the Law of Treaties (note 80), Art. 53; De Hoogh (note 85), 187. 227

Torture Victim Protection Act of 1991 (note 224), § 2(a).

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327

case the court ruled this year that the Torture Convention as implemented did not restrict sovereign immunity for acts committed entirely abroad. 228 The broad modification of the rule of consent appearing on the face of the Torture Convention, therefore, has not been carried out in State practice. d) The European Convention on Human Rights The European Convention on Human Rights creates a system of inter-State guarantees of a "public order of Europe." 229 This structure reflects the interests of the community of States in human rights within all the contracting territories, rather than "subjective and reciprocal rights for the [states] themselves."230 Accordingly, it creates duties of an "objective character" 231 (i.e. erga omnes) whereby inter-State claims may be brought to the Commission or the Court without regard to any direct injury suffered by the applicant State.232 These "objective obligations . . . benefit from a 'collective enforcement"' 233 that includes both consensual and compulsory jurisdiction of inter-State claims. Jurisdiction before the Court remains consensual, although all contracting States have consented.234 The Commission, however, may hear, investigate and attempt to mediate any alleged breach referred by a contracting State, regardless of the consent of the other State.235 Thus, the objective regime is linked to compulsory third-party dispute resolution, although falling short of binding adjudication. 236 The principle that 228

Sulaiman Al-Adjani v. the Government of Kuwait and Others , Court of Appeal (Civil Division), 12 March 1996, The Times (London), 29 March 1996 (obtainable i n Lexis, library E N G G E N file CASES). 229 Austria v. Italy , Yearbook on the European Convention of Human Rights, 1962, 117, 140 (European Commission on Human Rights) (discussed in Provost (note 70), 387 - 388). 330

Id.

m

Id.

232 Juan A. C. Salcedo , The Place of the European Convention in International Law, in: R. St. J. Macdonaldetal. (eds), The European System for the Protection of Human Rights, 1993, 17 (listing cases). 233

Ireland vs. United Kingdom, 25 Eur.Ct.H.R. (ser. A), 23, 90 (1978).

234

Salcedo (note 232), 18.

235

European Convention on Human Rights, Art. 24, 213 U N T S 221. Compare American Convention on Human Rights (note 221), Art. 45 (condition of reciprocity on inter-State references to Commission); Death Penalty cases (Inter-American Commission on Human Rights), in: Donald T. Fox , Inter-American Commission Human Rights Finds United States Violation, American Journal of International Law, vol. 82, 1988, 601. See also Provost (note 70), 388 (discussing additional cases). 236

I n the European Union, however, a Member State may bring an action for a declaration by the European Court of Justice

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Peter D. Coffman

objective obligations entail compulsory multilateral enforcement, however, is again illustrated in State practice. e) Global Commons Resources The impact of environmental harms on 'global commons' resources (e.g. the atmosphere, the high seas, Antarctica and outer space) affect the international community as a whole, rather than any individual State. Numerous declarations and treaties have so defined the interests at stake, and have applied the obligations on all States.237 They have not, however, granted standing erga omnes to enforce the new, universal duties. Similarly, compulsory adjudication has not been included. 2. Is there a General Principle of Law that Erga Omnes Disputes are Adjudicable Regardless of Third Party Consent ? As the ultimate international legislators, States have not evidenced an opinio juris supporting a customary rule of general compulsory adjudication of claims based on erga omnes obligations. General principles of law, however, arguably may arise through a less rigid process of consensus. For example, Bruno Simma and Philip Alston have argued that general principles of law recognizing the inclusion of fundamental human rights in jus cogens have arisen from a process of consensus through General Assembly resolutions and ICJ jurisprudence. 238 By contrast, the examples of

that another Member State is in breach of its obligations under Community law without having to show a direct legal interest apart from the general interest in the observance of Community law. Gray (note 77), 211 (citing Treaty Establishing the European Community as Amended by Subsequent Treaties, 25 March 1957, Art. 170, in: Bernard Rudden/Derrick Wyatt (eds.), Basic Community Laws, 1995, 117). The European Union, of course, reflects a combination of international and federal features that render it sui generis. 237

Convention on Biological Diversity, 5 June 1992, Preamble, Art. 5, 31 I L M 822; United Nations Convention on the Law of the Sea, 10 December 1982, Arts. 136 - 140, 21 I L M 1261; Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, Paragraph 2, Principle 21, 11 I L M 1416. 238

Bruno Simma/Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, Australian Yearbook of International Law, 1992, 82, 101 - 106. See also Lauri Hannikainen , Peremptory Norms in International Law: Historical Development, Criteria, Present Status, 1988, 233 - 237. I n a similar vein, Alfred von Verdross argued more than half a century ago that the laws "common to the juridical orders of all civilized states" rendered certain obligations unlawful. These prohibitions entered international law as one of the "general principles of law recognized by civilized nations." Alfred von Verdross , Forbidden Treaties i n International Law, American Journal of International Law, 1937, 571, 572 - 573

Obligations Erga Omnes and the Absent Third State

329

treaty practice i n the preceding section do n o t p u r p o r t t o be declarative of any general principle that compulsory jurisdiction is a necessary part o f the erga omnes doctrine. Thus, a consensualist argument that compulsory jurisdiction flows f r o m erga omnes obligations as a general principle o f law cannot be sustained. 2 3 9 H o w e v e r , a 'structural' principle is arguably "inducible b y recognized methods o f reasoning" 2 4 0 f r o m accepted principles and changes already accepted as part o f erga omnes. First, the general principle o f effectiveness 241 links erga omnes and the Monetary Gold principle. I n any case i n w h i c h Monetary Gold stands as a bar, the parties necessarily have indicated b y their acceptance of jurisdiction that t h e y i n t e n d t h e i r dispute 2 4 2 t o be resolved judicially. I n Monetary Gold , there was no dispute between I t a l y and the three respondent States over Italy's claim against A l b a n i a . 2 4 3 Where, however, as i n East Timor the C o u r t finds a dispute, the effectiveness o f the parties' intent argues that adjudication should go forward as a bilateral matter strictly w i t h i n A r t i c l e 59 and the pacta tertiis rule. 2 4 4 (discussed i n Weisburd (note 109), 11). But see Weil (note 67), 438 ("/OJpinio juris is . . . dissolved i n an ill-defined majority consent and more or less reduced to a vague consensus.") 239

See Report of the Commission to the General Assembly on the Work of its Forty-Sixth Session, Yearbook of the International Law Commission, vol. 2, part 2, 1994, 354 (ILC Report 1994); Simma (note 4), 837 - 840 (noting that although compulsory jurisdiction is thought "an indispensable corollary of the concept of 'international crimes'" States w i l l not yet accept it, which raises problems of ineffectiveness and unilateralism over multilateral problems). The ICJ expressly rejected an actio popularis as a general principle of law in the South West Africa cases (note 77), 47 (dicta), but its volte face in the Barcelona Traction dicta throws its prior dicta in doubt. See also Military and Paramilitary Activities in and against Nicaragua (note 109), 197 (dissenting opinion of Judge Schwebel) (quoting Ago (note 81), 29); I L C Report 1995 (note 101), 133. But see De Hoogh (note 85), 195 - 199 (comparing cases, and concluding that the ICJ's optional clause cannot provide jurisdictional link for erga-omnes-b&szd. standing; rather, the primary rule itself must establish jurisdiction explicitly); contra Giorgio Gaja, Obligations Erga Omnes, International Crimes and fus Cogens: A Tentative Analysis of Three Related Concepts, in: Weiler /Cassese/Spinedi (note 95), 151, 154 fn 14. 240

Crawford

(note 110), 86, 85.

241

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 1950 ICJ 221, 235 (separate opinion of Judge Read) (second phase) with further references. The ICJ also declined to rely on this principle in South West Africa (note 77), 48. 242

See, e.g., East Timor (note 2), 99 - 100 (establishing a dispute before turning to dispositive objection based on Monetary Gold). 243 244

See notes 172 - 176 and accompanying text.

As in Frontier Dispute (Burkina Faso vs. Mali), 1986 ICJ 554, 579 - 580 (judgment). Compare Continental Shelf (Libya vs. Malta), 1982 ICJ 18, 25 - 26 (judgment) (refusing to delimit areas of the continental shelf claimed by Italy). See also Dapo Akande, The Role of the ICJ i n the Maintenance of International Peace, African Journal of International and Comparative Law, 1996, 592, 606: International law is not a panacea for the settlement of all disputes but insofar as a dispute

330

Peter D. Coffman

Contemporary commentary on the Monetary Gold decision stressed the frustration of the principle of effectiveness brought on by the Court's refusal to issue a hypothetical ruling on the second issue (i.e. determine the priority of claims between Italy and Great Britain): It does not reflect credit . . . on the international judicial process as a whole that, after three years of assiduous effort, the parties who, in negotiating the Tripartite Statement, showed their anxiety to obtain judicial solution of all the problems involved, are required to begin the process of negotiation all over again. N o r is it satisfactory that, through her failure to cooperate . . . Albania was able to prevent any decision being reached even as between the other parties. 245

Judge Carneiro argued this point fully in his dissent. The Washington Statement, he contended, could have been interpreted to allow solely a declaration on the priority of claims,246 which "would have provided the 4 Allied Governments concerned' w i t h a very valuable orientation." "If the Court had found that the United Kingdom claim was entitled to priority, the question raised in the first Submission of the Application would have lost all practical interest" since all the gold would have gone to Great Britain. If the Italian claim would have been given priority, the parties would have known to hold the gold pending resolution of Italy's claim. Finally, even if "neither claim [were to have been] held to be entitled to priority," at least the proportionate share belonging to Great Britain could have been distributed to it. 2 4 7 The parties appeared to desire the Court to go forward as Italy did not object to consideration of the second submission, 248 nor did Great Britain. 249 Judge Carneiro's argument, accordingly, rests on an appeal to the principle of effectiveness of the parties' intent. 2 5 0 The relevance of the principle of effectiveness to third party questions can also be seen in the Frontier Dispute decision. The Court first stressed that adjudication offer-

contains legal aspects, the authoritative pronouncement on such legal aspects, be it the interpretation of a treaty or the judicial ascertainment of a fact establishing the breach of an international obligation, may play an important part in the final settlement and disposition of the dispute. 245

Johnson (note 53), 104. It is worth noting that it was the respondent parties that drafted the Washington Statement, which seemed to condition the second question of the relative priority of Italy and Great Britain's claims on a finding that Albania actually owed reparations to Italy. Monetary Gold (note 6), 33 - 34. 246

Monetary Gold (note 6), 42 (dissenting opinion of Judge Carneiro).

247

Id ., 45 (dissenting opinion of Judge Carneiro).

248

Id., 34.

249

Id., 31.

250 Judge Carneiro's argument failed, however because the respondent States clearly had not consented in the compromis to a hypothetical decision on the second claim alone. It was on that basis that the ICJ dismissed. Id., 34.

Obligations Erga Omnes and the Absent Third State

331

ed disputing parties an alternative m e t h o d of settlement analogous t o bilateral negot i a t i o n . 2 5 1 " I n b o t h instances, the s o l u t i o n o n l y has legal and b i n d i n g effect as between the states w h i c h have accepted it, either directly or as a consequence o f having accepted the court's jurisdiction t o decide the case." 252 T h e resulting settlement, whether negotiated o r judicial, is opposable o n l y between the parties. 2 5 3 T h e C o u r t carefully distinguished disputes that, because o f the nature o f the rules involved, could never be settled b y negotiation between fewer than all interested States. 254 A c c o r d i n g l y , at least where there is a dispute that the parties c o u l d have chosen t o solve bilaterally themselves, the C o u r t explicitly respects the principle o f effectiveness embodied i n the parties' decision t o choose bilateral adjudication. Thus, f r o m the principle of effectiveness flows the proposition that no t h i r d State should be able t o raise its interests i n the subject matter of the dispute i n order t o veto adjudication between t w o consenting States as t o their dispute. 2 5 5 251

" A judicial decision, which 'is simply an alternative to the direct and friendly settlement' of the dispute between the Parties . . . merely substitutes for" a negotiated bilateral boundary settlement. Frontier Dispute (note 244), 577 (citation omitted). 252 Id. The special agreement vesting jurisdiction called upon the Court to set the boundary between the parties, even though it ended in a tripoint w i t h absent Niger. Id ., 576. Neither party, nor Niger, sought dismissal, but the question of the Court's power to set a boundary affecting Niger was raised. Id. The Court reasoned that it "must exercise . . . jurisdiction to its full extent," and relied on Article 59 of the ICJ Statute to protect Niger. Id., 577 (quoting Continental Shelf (Libya vs. Malta), 1985 ICJ 13, 23). 253

Id.

254

Id., 578 (noting that while land boundaries can lawfully be settled bilaterally and made opposable only between the parties, bilateral continental shelf delimitations which involve equitable considerations may be unlawful if they ignore third States' claims, regardless of whether opposable or not) (discussing Continental Shelf ( Libya vs. Malta) (note 252), 26). 255 As discussed above, this is the approach which seems to have been followed in the other previous 'indispensable party' cases, especially those brought by compromis. I n Continental Shelf (note 252), 25, the special agreement sought a delimitation of the continental shelf, some of which was claimed by Italy, in "absolute terms." The ICJ did not, however, permit Italian intervention or dismiss the case, but rather noted the parties' "preferences" for a bilateral ruling. Id. The Court sought to make the special agreement as effective as possible while protecting Italy by limiting the judgment to areas not claimed by Italy. Id., 26. I n Case concerning Land, Island and Maritime Frontier Dispute (note 155), 122, Nicaragua argued in petitioning to intervene that it was an indispensable party under Monetary Gold. The parties were contesting, in part, whether the Gulf of Fonseca was held in condominium w i t h Nicaragua. Id., 121. Remarkably, the chamber hearing the case determined that although a finding on the question of condominium between the parties would be "tantamount to a finding that there is no condominium at all," Nicaragua's legal interest would not itself be the very subject matter of the judgment. Id., 122. Certain Phosphate Lands in Nauru (note 59) and Military and Paramilitary Activities in and against Nicaragua (note 168) both involve jurisdiction pursuant to the optional clause. The Court chose to allow each to proceed bilaterally despite obvious effects on the 'partners' of the respondent States in the challenged action.

332

Peter D. Coffman

Australia's contention before the ICJ — that because there is no duty of non-recognition towards Indonesia's annexation it is free to negotiate bilaterally w i t h Indonesia — eliminates any Monetary Gold problem. If each State is free to choose to negotiate with either Indonesia or Portugal to establish bilaterally a mutual relationship and understanding as to sovereignty over East Timor, then disputes over that relationship similarly can be referred to the Court bilaterally under the reasoning of the Frontier Dispute decision. In either case the result will be opposable only between the parties to the negotiation or litigation. Second, the same may be derived from the longstanding principle nemo judex in propria sua causa. 256 If each State is defined as injured 2 5 7 then compulsory adjudication is the only alternative to autodetermination either by the injured States258 or by the violator's third-party veto. Accordingly, Monetary Gold should be read very narrowly where community interests are at stake in order to lessen the instability ensuing from erga omnes norms. Third, an emerging legal structure, like a half-finished building, has its own structural logic by which one can derive the shape of missing components from their position in the demi-structure that already exists. For example, the European Commission on Human Rights emphasized the structural interrelation between substantive obligations and enforcement procedures in a legal system when it explained the compulsory nature of its inter-State jurisdiction by noting that the "objective character" of the obligations "similarly appears in the machinery provided in the Convention to guarantee their observance." 259 In pursuing a public order within Europe, the Member States and their peoples defined a cooperative goal, i.e. the protection of individual rights Europe-wide. A failure to cooperate by any Member State, therefore, was made the proper subject of every other Member State's concern; and autodetermination was rejected in favor of a neutral forum for clarifying the merits of the dispute. By contrast, the strictly bilateral system reinforced by the East Timor decision leaves the objective regime of broadened erga omnes norms and standing structurally unsound. While the doctrine matches objective enforcement with objective goals, the ICJ precludes a neutral forum for assessing the new claims these allow. Moreover, it allows the primary miscreant State's refusal to consent to jurisdiction to 256

This principle is discussed in Frontier between Turkey and Iraq, 1925 PCIJ (ser. B) N o . 12, 32; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1987, 279 - 282 (with further references). 257

See note 82 (discussing bilateralization of injury under I L C conception of erga omnes doctrine). 258

I L C Report 1994 (note 239), 341. See note 84 on countermeasures; Simma (note 4), 844; Ago (note 95), 238 - 239. 259

Austria vs. Italy (note 229), 140.

Obligations Erga Omnes and the Absent Third State

333

spread a network of Vetoes', vitiating the consent to jurisdiction of any other State which may have helped it. This expanding network of non-consent threatens to unleash international vigilantism in the name of cooperative goals because States wishing to pursue claims will be left to countermeasures. Alternatively, the goals themselves may be ignored by all as merely hortatory. If States are to enjoy the heady wine of endorsing effective "obligations . . . towards the international community as a whole," they must give up East Timor's rigid bilateralism in dispute resolution. 2 6 0 Permitting at least consenting States to adjudicate their disputes over erga omnes obligations would invigorate these norms' "capacity for resolving conflict in a nonviolent fashion by structuring a discourse on grievances." 261 A legal, as opposed to political, forum in which to conduct that discourse would provide some balance to the otherwise potentially destabilizing effects of universal obligations and standing. Conclusion The ICJ correctly stated the lex lata in East Timor when it rejected the idea that the erga omnes character of a norm has any bearing on consent to jurisdiction. N o State practice, judicial decision or accepted general principle holds otherwise. Thus, although "the idea of compulsory third-party involvement ha[s] found expression in a number of instruments and [is] therefore not revolutionary," it is also not accepted as legally compulsory by States.262 If erga omnes obligations are to be accepted into international law in any form, however, their effectiveness and internal logic imply that third States not be able to veto bilateral, judicial resolution of disputes over their application. Importing this concept directly as a general principle of law would stretch that source of law beyond its proper limits. Fortunately, the ICJ's Monetary Gold jurisprudence prior to East Timor provides an alternative, less disruptive path to the same result. Focus on the function that the procedural innovations embodied by erga omnes serve, rather than on normative questions, can illuminate the narrow instances in which justiciability logically ought to stretch.

260

See Crawford

(note 1), 130.

261

Friedrich V. Kratochwil , Rules, Norms, and Decisions: O n the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs, 1989, 249. Moreover, "clarification of the law by the Court, if consistent, strengthens and promotes respect for the role of law." Akande (note 244). 262

I L C Report 1995 (note 101), 120. But see I L C Report 1994 (note 239), 354.

The Commonwealth of Independent States as an Economic and Legal Community By Joachim Lippott

Introduction Since the fall of the Soviet Union in December 1991 and the creation of the Commonwealth of Independent States (CIS) it has remained unclear what the purpose of the CIS is and what the future for the CIS holds. A t first the opinion was dominant, at least among Western observers, that the CIS would fall apart or would substantially decline in importance. This opinion seemed thoroughly confirmed by the developments of 1992. Shortly thereafter a process of consolidation began that is still continuing. When the Russian Duma in its resolution of 15 March 19961 repudiated the termination of the Treaty on the Constitution of the Soviet Union 2 and called for closer integration of the nations previously united in the Soviet Union, the concern arose that the Soviet Union would reappear in the form of the CIS. These fears, however, ultimately proved exaggerated. More important was that Russian President Yeltsin on 14 September 1995 officially put forward the 'strategic course' of Russia with respect to the CIS States.3 According to Yeltsin's decree the principal goal of Russian policy is the creation of an economically and politically integrated confederation. New impetus for the development of the CIS seems, however, not to have proceeded directly from this decree. The CIS more has continued the development that began in 1993 and has been consistent w i t h its treaty basis and institutional structure. In the following an attempt will be made to present the CIS as an economic and legal community. This involves two aspects of a multiphase process of integration that encompasses in addition to national security 4 also cultural concerns. A further function of the CIS, the 1

Sobranie ZakonodatePstva Rossijskoj Federacii (SZRF), 1996, N r . 13, Art. 1274.

2

See the resolution of the Supreme Soviet of the RSFRS of 12 December 1991, Vedomosti Sezda Narodnych Deputatov i Verchovnogo Soveta (VSNDiVS), N r . 51, 1991, Art. 1799 (German translation by D. Frenzke in Osteuropa-Recht, 1992, 132). 3

Decree of 14 September 1995, SZRF, N r . 38, 1995, Art. 3667 (German translation by W. Göckeritz , Recht i n Ost und West (ROW), 1996, 97). 4

See A. Zagorski/V.

Egorov , Die militärisch-politische Zusammenarbeit der GUS-Staaten,

Commonwealth of Independent States as Economic and Legal Community ordering of the legal succession to the former Soviet Union 5 cannot be treated here. The following discussion is concentrated more on the agreements that have been concluded between the CIS States with the goal of economic and legal integration. These agreements, however, can be understood only in the context of the institutional structure of the CIS and in the context of the development of the CIS since its formation. Examination of the treaty basis of the CIS, however, above all w i t h respect to the meager documentation, allows only limited conclusions as to the level of integration actually achieved.6 I. The Creation of the CIS and its Further Development The creation of the CIS is directly connected to the collapse of the Soviet Union. Thus the three founding States — Belarus, the Russian Federation and the Ukraine, in the Minsk Agreement of 8 December 1991 referred to "the creation of the Commonwealth of Independent States"7 and stated that the "Union of the SSR as a subject of international law and as a geopolitical reality has ended" (Preamble). Even if the Minsk Agreement by itself did not completely dissolve the Soviet Union, the end of the Soviet Union can be given as 21 December 1991, when eight further States (Azerbaijan, Armenia, Kazakhstan, Kirgistan, Moldavia, Tadjikistan, Turkmenistan and Uzbekistan) joined the CIS through the Alma-Ata Protocol. 8

Berichte des Bundesinstituts für internationale und ostwissenschaftliche Studien (BlOst), N r . 18, 1993; A. Zagorski, Regionale Strukturen der Sicherheitspolitik in der GUS, Berichte des BlOst, N r . 9, 1996. 5 See H. Beemelmans, Die Staatennachfolge in völkerrechtliche Verträge — Bemerkungen zur neueren Staatenpraxis, Osteuropa-Recht, 1994, 339; H. Beemelmans, Die Staatennachfolge in Staatsvermögen in Drittstaaten, Auslandsschulden, gebietsbezogene rechtliche Regelungen und Staatsangehörigkeit, Osteuropa-Recht, 1995,73; A. Reinisch/G. Hafner, Staatensukzession und Schuldenübernahme beim ,Zerfair der Sowjetunion, 1995. 6

It is difficult to determine from the two official bulletins of the Russian government, Bjulleten' Meidunarodnych Dogovorov (BMD) and Diplomatifceskij Vestnik (DV), which agreements have been signed and/or ratified by which States. The official organ of the CIS, Sodruiestvo, also publishes many documents w i t h delay or w i t h ambiguities. 7

Rossijskaja Gazeta, 10 October 1991 (German translation by D. Frenzke in: G. Brunner (ed.),Verfassungs- und Verwaltungsrecht der Staaten Osteuropas, 1995, GUS 1.1a). 8 Protocol to the Agreement on the Creation of the Commonwealth of Independent States of 8 December 1991, Izvestija, 24 December 1991 (German translation by D. Frenzke in: Brunner (note 7), GUS 1.1b). For the effect of the Minsk Agreement and Alma-Ata Protocol on the end of the Soviet Union see also T. Schweisfurth , Vom Einheitsstaat (UdSSR) zum Staatenbund (GUS), Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1992, 541, 636 et seq.

336

Joachim Lippott 1. The Collapse of the Soviet Union

The two aforementioned agreements thus form the conclusion of a process of collapse that had, according to Schweisfurth , first announced itself in 1987 and that after the unsuccessful coup of August 1991 had greatly accelerated.9 In the course of this process of collapse the fate of the legal organization of the Soviet State was determined by the fundamental changes that transformed the old unitary State into an eventually unstable confederation. Although the Soviet Union according to its Constitution of 197710 de jure had been a confederation (Article 70), it was de facto a unitary State that did not allow the individual republics to possess powers independent of the central Soviet government. Rather the principle of 'democratic centralism' (Article 3) overshadowed the principle of federalism and resulted in the concentration of State authority in the hands of the central Soviet organs. 11 O n l y in 1990 was the Soviet Union transformed into a genuine confederation. After all the Soviet republics had declared their sovereignty between 1988 and 199012 and had concluded treaties between themselves13 the Law to Change the Constitution of 26 December 199014 led to substantially increased importance for the republics. However the attempt to reform the Soviet Constitution through the conclusion of a new treaty arrangement 15 miscarried. The signing of such a treaty was preempted by the Moscow coup of August 1991.16

9

Schweisfurth

(Note 8), 543.

10

Constitution of the Union of Soviet Socialist Republics of 7 October 1977, Vedomosti Verchovnogo Soveta (WS) SSSR, N r . 41, 1977, Art. 617 (German translation by D. Frenzke , Osteuropa-Recht, 1978, 153). 11

Schweisfurth

(note 8), 550.

12

See on this point the sovereignty declaration of Russia of 12 June 1990, VSNDiVS RSFSR, N r . 2, 1990, Art. 22 (German translation by W. Göckeritz in: Brunner (note 7), Rußland 1.2a), of the Ukraine of 16 July 1990, W S U k r SSR, Nr. 31, 1990, Art. 429 (German translation in: Brunner (note 7), Ukraine 1.2a) and of Belarus of 27 July 1990, W S BSSR, N r . 31, 1990, Art. 565 (German translation in: Brunner (note 7), Weißrußland 1.2a). 13 See G.G. Sinkareckaja , Sodruiestvo Nezavisimych Gosudarstv: Tendencii razvitija, Rossijskij eiegodnik meidunarodnogo prava 1993 - 1994, 1995, 78, 80. 14 VSNDiVS SSSR, N r . 1, 1991, Art. 3. See also C. Schmidt , Die Entwicklung der sowjetischen Unionsverfassimg, Osteuropa-Recht, 1991, 87; D. Frenzke, Der Wortlaut der sowjetischen Verfassimg nach den Änderungen der Jahre 1988 - 1990, Osteuropa-Recht, 1991, 105. 15 See C. Schmidt, Der Entwurf des neuen Unionvertrages: Einführung und Textübersetzung, Osteuropa-Recht, 1991, 153. 16 W. Seifert, Von der UdSSR zur GUS, Osteuropa-Recht, 1992, 79. See also the extensive documentation in D. Frenzke, Rechtliche Dokumente zum Moskauer Putsch und zur Gemeinschaft Unabhängiger Staaten, Osteuropa-Recht, 1992, 96.

Commonwealth of Independent States as Economic and Legal Community As a direct result of the coup the Baltic States Estonia, Latvia and Lithuania finally and completely separated themselves from the Soviet Union, which was recognized as valid by the Soviet Union through the decrees of the State Council of the Soviet Union of 6 September 1991.17 The Baltic States successfully supported this process with the position that they had not legally joined the Soviet Union in 1940 but had been unlawfully occupied and annexed.18 The remaining Soviet republics after the August coup of 1991 in contrast stood before the challenge of reordering their relationships with each other and w i t h the still-existent Soviet Union. A t the central Soviet level the Law on the Organs of State Power and State Administration in the Transitional Period was concluded on 5 May 1991.19 The question was no longer one of concluding a new Union treaty or a new Union constitution. 20 Instead the Minsk Agreement and the Alm-Ata Protocol led to the complete dissolution of the Soviet Union as a State. 2. The Founding Documents of the CIS The founding documents of the CIS are marked by the efforts to bring order to the dissolution of the Soviet Union and at the same time to prevent its resurrection. The Minsk Agreement still emphasized the "historical community" of the peoples of the former Soviet Union and enumerated in Articles 4 and 7 many areas in which the treaty States wanted to cooperate. A t the same time the founding States of the CIS distanced themselves from the Soviet Union (which at that time still existed in international law). According to Article 11 the legal acts of the Soviet Union were not to be applicable in the future in the treaty States and in Article 14 the activities of the organs of the Soviet Union in the treaty States were suspended. These stipulations were reiterated in the Alma-Ata Protocol and supplemented w i t h a declaration of the heads of State.21 In this declaration it was stated that the CIS is not a State and not a supranational entity. As a result, the relationships between the member States of the CIS are not a matter of national law but a matter of international law. 22 Thus the cooperation of the CIS States was to be "on the basis 17

The relevant decrees are published in VSNDiVS SSSR, N r . 37, 1991, Arts. 1091, 1092,

1093. 18

See also B. Meissner, Die staatliche Kontinuität, völkerrechtliche Stellung und außenpolitische Lage der baltischen Länder, in: Die baltischen Nationen, 2nd ed., 1991, 270. 19

VSNDiVS SSSR, N r . 37, 1991, Art. 1082.

20

See on the corresponding efforts Seiffert

(note 16), 86 - 87.

21

Alma-Ata Declaration of 21 Decemberl991, Rossijskaja Gazeta, 24 December 1991 (German translation by D. Frenzke in Brunner (note 7), GUS 1.1c). 22

See also the Preamble to the Minsk Agreement, in which reference is expressly made to the fundamental principles of international law, the U N Charter and the Helsinki Final Act.

22 GYIL 39

33 7

338

Joachim Lippott

of the principle of equality with the help of coordinating institutions," and at the time of its founding the CIS was to be considered a confederation, which however after a short time further developed into an international organization as the coordinating institutions began very early to take shape.23 The competence of the CIS also further developed step by step after the founding of the CIS. The Alma-Ata Declaration formulated the competences of the community only in a very limited manner, at least in a much more limited manner than the Minsk Agreement had done. Thus the concrete stipulations of the declaration concerned the fulfillment of international duties of the Soviet Union and the maintenance of the existing supervision of nuclear weapons. O n the basis of these stipulations the impression was created that the CIS was merely a 'dissolution' community of the former Soviet republics. 24 This impression has not been confirmed by the further development of the CIS. 3. The Further Development of the CIS If the CIS today generally is recognized 25 as an international organization in the international law sense,26 that should not conceal the fact that the process of the development of the CIS in the five years since its founding has been anything but a regular process. This is true both with respect to the membership in the CIS and w i t h respect to the substantive integration. The founding treaties of the CIS were signed in December 1991 by a total of eleven of the prior Soviet republics. The Baltic States did not participate and have since remained distanced from the CIS. Also not participating was Georgia, which w i t h respect to the question of its independence took a position similar to that of Estonia, Latvia and Lithuania. Georgia, similar to the Baltic States, had achieved its national independence in 1918, which Russia recognized by treaty in 1920,27 although Georgia was forcibly 'sovietized' already in 1921 and integrated into the So23

Schweisfurth

(note 8), 661; Seiffert

(note 16), 93.

24

Seiffert spoke to some extent (at the beginning of 1992) of a "Community of fracture points" and noted a basic tendency to Verselbständigung of the member States. Seiffert (note 16), 93 - 94. O. Luchterhandt saw in the CIS "all of the characteristics for a transitional entity." O. Luchterhandt , Das institutionelle und rechtliche Profil der Gemeinschaft Unabhängiger Staaten, Aus Politik und Zeitgeschichte, N r . 52, 1992, 22, 30-31. 25

Schweisfurth (note 8), 661; V. Pechota, The Commonwealth of Independent States: A Legal Profile, 1995, 582 et seq., 594 - 595; V. V. Pustogarov, SNG — Me2dunarodnaja regional'naja organisacija, Rossijskij eiegodnik meSdunarodnogo prava 1992, 1994, 39, 45. 26

1. Seidl-Hohenveldern,

27

Völkerrecht, 8th ed., 1994, Rn. 800.

H.'J. Uibopuu, in: M. Fincke (ed.), Handbuch der Sowjetverfassung, 1983, Art. 71, Rn. 69 et seq.; R. Götz/U. Halbach, Politisches Lexikon GUS, 3rd ed., 1996,142 - 143.

Commonwealth of Independent States as Economic and Legal Community viet Union. 2 8 In contrast to the Baltic States, Georgia was unsuccessful after the collapse of the Soviet Union in presenting itself as a continuation of the former period of independent statehood. The inner difficulties, which assumed the proportions of a civil war, finally forced Georgia to join the CIS in October 1993.29 In contrast to Georgia, Moldavia had signed the Alma-Ata Protocol, but ratified the protocol only in April 1994, so that the membership of Moldavia in the CIS unt i l that point remained doubtful. 30 The Moldavian parliament had rejected the protocol on 4 August 1993, and agreed to the protocol only after unification w i t h Rumania had been defeated in the referendum of 6 April 1994.31 Azerbaijan, also a signatory State to the Alma-Ata Protocol, for a short time in 1992 turned its back on the CIS. 32 After President Alijew came to power and as a result the political situation stabilized, Azerbaijan in Fall 1993 resumed its participation in the CIS. 33 From the attitude of the individual States with respect to their membership in the CIS one can see that the period of not insubstantial consolidation of the CIS since the start of 1994 is to be regarded as a period of integration. The same applies to the content of the agreements concluded within the CIS. Three phases of development can be distinguished. The first extends from the founding of the CIS to the end of 1992. Pechota 34 in this connection speaks of an era of intentionally ambiguous agreements and duties of the member States,35 which was followed in the period from January to September 1993 by a phase of deeper cooperation. A t the start of this second phase the Statute of the CIS was concluded in Minsk by the heads of State of most of the CIS States36 and placed the CIS on a new legal basis. The third phase of development was introduced by the Treaty on the Creation of an Economic Union of 24 September 1993 (Economic Union Treaty). 37 The treaty system of the CIS and 28

Uibopuu (note 27), Art. 71, Rn. 73 et seq.; Götz/Halbach (note 27), 143 - 144.

29

Archiv der Gegenwart, 1993, 38370. See also J. Gerber, Die politische Entwicklung i n Georgien, in: B. Meissner/A. Eisfeld (eds.), Die GUS-Staaten in Europa und Asien, 1995, 107, 123. 30

A U. Gabanyi y Die politische Entwicklung in Moldova, in: Meissner/Eisfeld

31

Archiv der Gegenwart, 1994, 37105. See also Gabanyi (note 30), 89.

(note 29), 81,

90. 32

See Sinkareckaja (note 13), 83; E. Teague, The CIS: A n Unpredictable Future, R F E / R L Research Reports, N r . 1, 1994, 9. 33

Decree of the Council of the Heads of State of 24 September 1993, Sodruiestvo, N r . 4, 1993, 32. See E.-M. Auch, Die politische Entwicklung in Aserbaidshan, in: Meissner/Eisfeld (note 29), 153, 172. 34

See also V. Pankov , Die GUS als Wirtschaftsraum: Weiterer Zerfall oder Reintegration?, Berichte des BlOst, N r . 2, 1995, 7 (concluding a similar division into periods exists).

2*

35

Pechota (note 25), 590, 591.

36

BMD, N r . 1,1994, 4 (German translation by W. Göckeritz in Brunner (note 7), GUS 1.2).

37

B M D , N r . 1, 1995,3.

339

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Joachim Lippott

its institutional structure were put to use to effect a more thorough integration in the economic sphere. I I . The Treaty System of the CIS and its Institutional Structure While the Alma-Ata Declaration spoke only in very general terms of cooperation on the basis of equality through coordinating institutions, the CIS Statute provides much more concrete stipulations. This is true for the organs of the CIS, for the regulations that had previously been provisional 38 and for the treaty system of the CIS. L The Treaty System of the CIS The CIS Statute according to the Preamble is aimed to "perfect mechanisms of cooperation in the Commonwealth and raise their efficiency." Thereby the CIS Statute sought to work against the diverging tendencies that had appeared in the course of 1992. However, the CIS Statute was rooted in the tradition of the Minsk Agreement and of the Alma-Ata documents (Preamble) and reiterated in Article 1 that the CIS is not a State and has no supranational competences. A t the same time regulations much more extensive in comparison to the founding documents were established concerning the goals of the CIS (Articles 2 - 4, 11 - 20) and its organs (Articles 21 - 40). Furthermore, the CIS Statute contains more exact determinations concerning the fundamental character of cooperation and integration within the CIS. The CIS Statute establishes the principle of asymmetry. This means that the legal relationships existing within the CIS among the member States are of different intensity and quality. This principle is established by Article 5 para. 1, according to which the most important fundamental legal basis for international relationships within the CIS structure is the bilateral and multilateral treaties of the member States. The CIS is accordingly expressly a community of different tempos of involvement, 39 and the principle of asymmetry runs through its entire treaty, law and organization system.

38

See the Temporary Agreement on the Council of the Heads of State and on the Council of the Heads of Government of 20 December 1991, Rossijskaja Gazeta, 1 January 1992 (German translation by D. Frenzke , Osteuropa-Recht, 1992, 130). 39

The formulation of the "different tempos" was even used by a representative of the CIS. The quote is from B. Meissner, Die GUS zwischen Integrationsplänen und Krisenerscheinungen, Osteuropa, 1994, 834, 835. See also V. N. Fisenko/I. V. Fisenko, Chartija sotrudnifcestva v ramkach Sodruiestva Nezavisimych Gosudarstv, Moskovskij iurnal meidunarodnogo prava, N r . 3, 1993, 36, 47.

Commonwealth of Independent States as Economic and Legal Community a) The Legally Binding Effect of the CIS Statute Although the CIS Statute is accorded considerable importance in the literature, 40 it cannot be considered as the establishment of a generally valid minimal consensus. Rather the CIS Statute itself contains provisions weakening its legally binding effect. I n Article 8 it expressly allows for the possibility of associate membership in the CIS. Associate membership is obviously meant to make cooperation with and within the CIS easier for States concerned with maintaining an independent position. Even more important is the determination in Article 43. According to this article, the founding States may declare very extensive reservations to the CIS Statute, namely to the security stipulations in Articles 11-18 and to the interparliamentary cooperation provided for in Articles 36 and 37. b) The Asymmetry of the Integration Relationships The CIS is not the only institutional structure for cooperation and integration between the former Soviet republics. 41 This circumstance is well demonstrated if one considers the two treaties that were concluded in early 1996 in Moscow. One was the treaty between Belarus, Kazakhstan, Kirgistan and Russia on Intensifying Integration in the Economic and Humanitarian Areas of 29 March 1996 (Integration Treaty). 42 The four treaty States strove with this treaty to achieve a Commonwealth of Integrated States (Article 1), in which integration encompasses the areas of economics (Articles 3 et seq.), foreign policy (Article 14), establishment of legal norms (Article 15) and crime-fighting (Article 16). A t the same time common organs were developed: the Inter-State Council (Articles 18, 24) and the Integration Committee, which is to execute the decisions of the Inter-State Council (Article 19). Also the Integration Treaty calls for an Interparliamentary Committee, which however possesses only consultative functions (Article 22). Overall the Integration Treaty concerns an order that contains strong parallels to the CIS Statute. But the — temporary — limitation to four treaty States (Article 27 para. 1) supposedly will advance and facilitate the integration. The desired Commonwealth of Integrated States is not in any way supposed to represent an organization competing with the CIS. Rather the treaty States accepted the basis that integration within the framework of the CIS can be of different intensity (Article 27 para. 2). They thus made clear that they want to cooperate further within the framework 40

See Fisenko/Fisenko

(note 39).

41

See U. Halbachy Integrationsbemühungen in Zentralasien, Aktuelle Analysen des BlOst, N r . 21, 1994. 42

242).

Rossijskaja Gazeta, 2 April 1996 (German translation by W. Göckeritz, R O W , 1996,

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Joachim Lippott

of the CIS (Preamble), and at the same time retain for themselves the possibility of concluding agreements on further areas of integration (Article 27 para. 2). The Treat y on the Formation of a Community of 2 April 1996 between Russia and Belarus is to be seen as another such integration agreement. 43 Noting their membership in the CIS and the Integration Treaty (Preamble) both States stated that they strive for the unification of "the material and intellectual potential" of their nations. c) Asymmetrical Integration in Substantive Areas The asymmetrical treaty system called for in Article 5 of the CIS Statute shows itself most strongly in cooperation on substantive questions. Articles 2 and 4 of the CIS Statute contain a very extensive catalog of substantive areas in which the treaty States want to cooperate. This catalog leaves hardly a political area untouched, and the very general recognition of "cooperation in political, economic, ecological, humanitarian and cultural areas and in other areas" (Article 2 para. 1) has led to an extremely large flood of agreements concluded within the framework of the CIS. Thus 75 economic and 23 military/political agreements were concluded by a varying number of member States between December 1991 and January 1993; only Russia signed them all. 44 Already in mid-1995 Kleandrov reported on more than 400 treaties that had come into being within the framework of the CIS. 45 A t the same time approximately 50 organs for individual substantive areas were established,46 as called for in Article 34 of the CIS Statute, alongside the organs established by the CIS Statute. The asymmetry in cooperation in substantive areas thus leads to asymmetry in the organizational structure. 2. Institutional Structure of the CIS Although the Alma-Ata Declaration 47 spoke only very generally of coordinating institutions, there developed very early an organizational structure whose center point was formed by the Council of the Heads of States.48 In the following period 43

Rossijskaja Gazeta, 13 May 1996 (German translation by W. Göckeritz , R O W , 1996, 245). See M. Sokolov> Unikal'nyj eksperiment Moskvy s Minskom, Kommersant, weekly edition, N r . 11, 2 A p r i l 1996; Götz/Halbach (note 27), 125 et seq. 44

Statistics in E. G. Moiseev , Pravovoj status Sodruiestva Nezavisimiych Gosudrastv, 1995,

172. 45

M. Kleandrov , Ekonomiöeskij sud SNG: Problemy i perspektivy, Chozjajsvto i Pravo (ChiP), N r . 7, 1995, 115. 46

See Götz/Halbach (note 27), 20; the enumeration in Pechota (note 25), 608 et seq.

47

See note 21.

48

See the temporary agreement of 30 December 1991 (note 38).

Commonwealth of Independent States as Economic and Legal Community further organs developed, which have found mention to some extent in the CIS Statute. Organs mentioned in the CIS Statute (in addition to the organs for individual substantive areas in the sense of Article 34) are: - the Council of the Heads of State and the Council of the Heads of Government (Articles 21 - 26), - the Council of the Foreign Ministers (Article 27) , 4 9 - the Coordinating and Consultative Committee (Articles 28, 29), 50 - the Council of the Defense Ministers 51 and the Supreme Command of the Joint Military Forces (Article 30), - the Council of the Commanders of the Border Forces (Article 31), - the Economic Court (Article 32),52 - the Human Rights Commission (Article 33),53 - the Interparliamentary Assembly (Articles 36, 37). 54 Furthermore, the Executive Secretariat of the CIS was established through a decree of the Council of the Heads of State of 14 May 199355 after on 9 October 1992 the consultative Working Group for Economics 56 had already been called into being as a subsidiary organ of the Executive Secretariat. In addition one should mention the institution of the Permanent Authorized Representatives of the Member States as one of the organs of the CIS. 57 The permanent representatives, who possess diplo49

Decree of the Council of the Heads of State on the Confirmation of the Organization of the Council of the Foreign Ministers of 24 September 1993, B M D , N r . 12, 1994, 13. 50

Resolution on the Coordinating and Consultative Committee of the CIS of 15 June 1993, Sodruiestvo, N r . 3, 1993, 86. 51 Decree on the Organization of the Council of the Defense Ministers of the CIS of 21 April 1994, BMD, N r . 11,1994, 6. This decree superseded a corresponding prior provision of 22 January 1993, B M D , N r . 7, 1993, 3. 52

Treaty on the Status of the Economic Court of the CIS of 6 July 1992, B M D , N r . 9, 1994, 4. 53

Decree of the Council of the Heads of State on the Confirmation of the Statute of the Human Rights Commission of 24 September 1993, Sodruiestvo, N r . 4, 1993, 35. 54

Convention on the Interparliamentary Assembly of the CIS of 26 May 1995, D V , N r . 7,

1995, 38. 55 Sodruiestvo, N r . 3, 1993, 92. 56 57

B M D , N r . 10, 1993, 11- 12.

See the Treaty on the Authorized Representatives of the Independent States of 13 March 1992, BMD, N r . 4,1993, 5; Decree of the Council of the Heads of States on the Confirmation of the Status of the Permanent Authorized Representatives of the CIS Member States w i t h respect to the Statutory and other Organs of the Community of 24 December 1993, B M D , N r . 11, 1994, 4.

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Joachim Lippott

matic privileges (Section 5 of the decree of the Council of the Heads of State of 24 December 1993) are to represent the interests of the sending States and improve the work of the CIS organs through their continual presence. Overall, the organizational structure of the CIS is dominated by the Council of the Heads of State, which is designated the highest organ in Article 21 para. 1 of the CIS Statute. The Council of the Heads of State is responsible to decide fundamental questions concerning the CIS according to Article 21 para. 2 of the CIS Statute, while the remaining CIS organs cooperate with the Council or execute the Council's decisions. This applies not only for the Coordinating and Consultative Committee and the Executive Secretariat as directly subsidiary organs of the Council, but also for the Council of the Heads of Government according to Article 22 of the CIS Statute, the Council of the Foreign Ministers according to Article 27 of the CIS Statute and the Council of Defense Ministers according to Article 30 para. 1 of the CIS Statute. For the decrees of the Council of the Heads of State the principle of unanimity applies according to Article 23 para. 1 cl. 1 of the CIS Statute. This principle is indeed modified by a device that again expresses the asymmetry of the integration processes. According to Article 23 para. 1 cl. 2 of the CIS Statute each member State may declare its disinterest with respect to a question. The representative of this State does not participate in the voting and this State also is not bound by the action taken. The decrees of the Council of the Heads of State are not to be considered an independent source of secondary CIS law, but rather are as a rule treaty agreements. 58 A n exception applies for a few areas such as the use of common military forces according to Article 12 para. 2 of the CIS Statute or the submission of recommendations in conflicts within the CIS according to Article 18 of the CIS Statute. Thus the Council of the Heads of State is overall to be seen as a summit that meets regularly every six months according to Article 21 para. 3 of the CIS Statute, and in which coordinating agreements in the sense of Article 5 of the CIS Statute are concluded. Consistent with this is the equally limited legal competence of the Coordination and Consultative Committee and the Executive Secretariat, which is subsidiary to the Coordination and Consultative Committee (Section 1 of the Statute of the Executive Secretariat of the CIS). The main role of the Coordination and Consultative Committee consists of preparing recommendations for, and coordinating the execution of, the decrees of the Council of the Heads of State (Section 3 of the Statute of the Coordination and Consultative Committee). In Section 4 of the Statute of the Coordination and Consultative Committee the competence to conclude "operative acts" is indeed provided to the Committee. This applies however only within the

58

Fisenko/Fisenko

(note 39), 56.

Commonwealth of Independent States as Economic and Legal Community overall competence of the Committee, which is the competence given to the Committee by the Council of the Heads of State. Up to the present the Committee has not been particularly successful in using the functions of the secretariat of an international organization to establish its own political importance. 59 . The same applies naturally even more strongly for the Executive Secretariat subsidiary to the Committee. The position of the judicial and parliamentary organs is also weak, at least in comparison to Western European institutions. The Economic Court according to Section 1 of the Statute of the Economic Court indeed is called to fulfill the role of "defender of the treaties", but its competence is limited in two ways. First, its competence extends only to economic conflicts between the treaty States;60 other cases of conflict can be brought before the Economic Court only in accordance w i t h a special agreement (Section 3 of the Statute of the Economic Court). 61 Second, its decisions (Section 10 of the Statute of the Economic Court) only have the character of recommendations.62 For a period in 1992 the reservations of the governments of the CIS member States prevented 63 the establishment of an interpaliamentary assembly.64 The purpose obviously was to deny the CIS any appearance of jtatehood and thus to maintain for the governments against the parliaments of the member States control of the integration process. Finally a provision on interparliamentary cooperation was accepted in Articles 27 and 36 of the CIS Statute. This interparliamentary cooperation, however, is systematically divided from the actions of the organs of the CIS (Articles 21 et seq. CIS Statute), so that cooperation in the CIS in the future will remain a matter between the heads of State. O n 26 May 1995 in Minsk the Convention on the Interparliamentary Assembly of the CIS was signed, which further determined the inner organization and competence of the Assembly. The Interparliamentary Assembly is composed of delegations of the national parliaments, with one vote for each delegation (Articles 3 and 6 para. 1). The main role of the Assembly is to express general recommendations for cooperation in the CIS (Article 4 lit. a), as well as to work for the harmonization of national legislation and the consistency of national legislation with CIS norms (Arti59

See Pechota (note 25), 603 - 604.

60

Thus the competence is perceived as too narrow. See M. I. Kleandrov , Nestandartnye spory' v SNG — komu ich razresat?, Gosudarstvo i Pravo (GiP), N r . 10, 1995, 146. 61

To this extent the Economic Court serves as an international arbitration court; this treat y practice is thoroughly widespread according to Kleandrov (note 60), 115, 116. 62

Pechota { note 25), 605.

63

Id., 610 -611.

64

See S. V. Erochov , Meiparlamentskaja Assambleja SNG: stanovlenije i perspektivy, GiP, Nrs. 8 - 9, 1994, 190, 192.

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Joachim Lippott

cle 4 lit. c, f ) . The Assembly, whose competence also includes the formulation of model laws (Article 4 lit. d), thus serves the building of a legal community within the CIS. I I I . The CIS as an Economic Community The founding documents of the CIS contain general recognition of the importance of economic cooperation within the CIS (Article 4 Minsk Agreement), as well as of the formation and development of a "common economic area" (Alma-Ata Declaration). 65 N o concrete duties have been bound with these determinations, however, and only in the course of time did the economic difficulties resulting from the collapse of the Soviet Union become noticeable. The main cause for these difficulties was the economic structure of the former Soviet Union; the centrally planned economy created monopoly structures that the individual republics could influence only to a limited extent.66 This led to an intense form of the principle of division of production between the regions, and thus between the republics, which had as a result intense trade relations between the republics. 67 In this structure the Russian republic proved dominant. 68 After the dissolution of the Soviet Union the historical inequalities and dependence between most of the CIS States and Russia continued. There occurred a substantial loss of economic capacity between 1990 and 1994 in Moldavia, in Tadjikistan, in Kazakhstan and above all in the three Caucasus republics. 69 Even if this was not the result just of the structures of the economic systems in those areas, the economic problems explain the desire for economic reintegration. 70 The currency question was recognized as the first economic problem to appear after the collapse of the Soviet Union. The collapse of the ruble zone and the unsuccessful attempts at a resurrection of the zone formed the most important area for

65

Moiseev (note 44), 56.

66

H.-H. Höhmann, The Decay of Federal Structures i n the Former USSR: Economic Reasons and Consequences, Aktuelle Analysen des BlOst, N r . 39, 1994, 3. 67

See D. Holthrügge/A. Schulus , Ökonomische Perspektiven der Gemeinschaft Unabhängiger Staaten, Osteuropa, 1992, 727, 729 (with statistical material according to the situation i n 1988). 68

Höhmann (note 66), 3 - 4; L. Kossikowa , Die Handelsbeziehungen Rußlands mit den ehemaligen Sowjetrepubliken: Tendenzen und Probleme, Berichte des BlOst, N r . 23, 1993, 11. 69 70

See A. Ivanter inter alia, Kommersant, weekly edition, 21 March 1995.

See also J. Broda, Ökonomische Kosten und ökonomischer Nutzen des Zerfalls der UdSSR, Aktuelle Analysen des BlOst, N r . 51,1991, who presumed i n Fall 1991 there would be more opportunities from, than disadvantages to, the disintegration of the Soviet Union.

Commonwealth of Independent States as Economic and Legal Community common economic policy in the CIS. Through the Economic Union Treaty 71 the economic integration within the CIS was placed on a new basis, which introduced a new phase of development of the CIS. 1. The Collapse of the Ruble Zone After the fall of the Soviet Union the Soviet ruble remained at first the common currency of the CIS States, even if the functions of the Soviet State Bank were now assumed by the Central Bank of Russia.72 This led, however, to the result that the non-Russian States created ruble credits and thereby gave impetus to inflation. The ruble zone was therefore dissolved as of 1 July 1992 so that inter-State credit agreements could only be carried out with the help of entities of the Central Bank of Russia. This meant, however, that trade relations between the individual CIS States were confronted with additional problems. The individual CIS States in the years 1992 and 1993 introduced their own national currencies, which to some extent reduced the role of the ruble to a parallel currency for cash transactions. 73 The dissolution of the ruble zone did not, however, represent the end of cooperation with respect to currency policy. With the treaty of 22 January 199374 an InterState Bank of the CIS was established. Its most important function has been that of a clearing system (Article 2 para. 1). Such a clearing process is, consistent w i t h its nature, suited less to market economy trade relations between businesses than it is to inter-State payments.75 Thus besides the Inter-State Bank the "establishment of a new type of ruble zone" 76 was a goal. The new type of ruble zone was to come into being after the harmonization of national economic policies through bilateral treaties between the individual States and Russia (Article 1 paras. 1 and 2 of the treaty of 7 September 1993). This harmonization of economic policies in the individual CIS States, however, proved largely unworkable as the individual States pursued economic reform with varying intensity. 77 Thus the new type of ruble zone was doom71

See note 37.

72

Pankov (note 34), 18.

73

E. Timmler, Die Währungen in den Nachfolgestaaten der Sowjetunion, Osteuropa-Wirtschaft, 1994, 10; Pankov (note 34), 19. 74

Treaty on the Establishment of an Inter-State Bank, B M D , N r . 12, 1994, 3. See also A. LejseroWy Die zwischenstaatliche Bank der GUS, Wirtschaft und Recht in Osteuropa (WiRO), 1996, 233. 75

Pankov (note 34), 22.

76

Treaty on Practical Measures to Establish a Ruble Zone of a New Type of 7 September 1993, VVSRB, N r . 33, Art. 434, 1993. 77 R. Götz, Die Wirtschaftsentwicklung der GUS-Staaten in den neunziger Jahren, Berichte des BlOst, N r . 38, 1996, 9 - 10.

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Joachim Lippott

ed to failure. The reordering of the inter-State currency relations could only be pursued with the aid of the Treaty on the Creation of a Payments Union of the CIS of 21 October 1994 (Payments Union Treaty). 78 The agreement on the payments union is to be seen as part of the larger project of the CIS economic union. 2. The Treaty on Economic Union With the conclusion of the Economic Union Treaty the CIS entered a new stage of development.79 With the treaty the treaty States80 strive for the "step-by-step creation of a common economic area on the basis of market conditions" (Article 2). Thereby, the treaty, the terminology of which shows strong similarities to the European Communities Treaty, 81 is a framework agreement that encompasses almost all economically relevant areas, which are to be more precisely treated by later agreements. 82 These areas are: a) Trade Relations According to Article 3 of the treaty the economic union requires "the free exchange of goods, services, capital and labor." This purpose is to be served above all by the stipulations on removing limits on trade (tariffs, quotas inter alia) (Articles 5, 9). This perspective was treated and determined in more detail in the Treaty on the Creation of a Free Trade Zone of 15 April 1994.83 The free trade zone is therein treated as transitional to the establishment of a customs union (Article 21). 84 The customs union between the CIS States, however, requires a unified customs and for78 Treaty of 21 October 1994, Rossijskaja Gazeta, 28 January 1995. See also Pankov (note 34), 20. 79

Moiseev (note 44), 57.

80

The treaty at first was not signed by the Ukraine and Turkmenistan. Turkmenistan, however, joined on 24 December 1993, BMD, N r . 1, 1995, 11. The Ukraine applied for associate membership (Art. 30 of the treaty), BMD, N r . 1, 1995, 10- 11. 81

I n the literature on CIS integration much attention is devoted above all to European U n i o n law. See V. P. Zvekov , Nekotorye problemy chozjajstvennogo sotrudniöestva v ramkach Sodruiestva Nezavizimych Gosudarstv, Rossijskij eiegodnik meidunarodnogo prava 1992, 1994, 196, 197. 82 Compare the decree of the Council of the Heads of Government on the Draft of the Treaty on the Creation of an Economic Union of 24 September 1993, Sodruiestvo, N r . 4, 1993, 105. 83

Treaty on the Creation of a Free-Trade Zone of 15 A p r i l 1994, B M D , N r . 9, 1994, 10. The treaty makes explicit reference to the Preamble to the Economic Union Treaty. See also Pankov (note 34), 14 -15. 84

O n the individual integration phases see Moiseev (note 44), 57 - 58.

Commonwealth of Independent States as Economic and Legal Community eign economic policy towards third States (Article 6 of the Economic Union Treaty). To implement this, the Council of the Heads of State passed the Decree on the Fundamentals of Customs Legislation of the CIS Member States of 10 February 1995.85 The 234 articles of the Fundamentals serve as a model law for the national legislation of the member States. (Section 2 of the decree; Article 26 of the Economic Union Treaty). Also here the asymmetrical development and structure of the CIS shows itself. A customs union was concluded on 20 January 1995 in Moscow between Belarus, Russia and Kazakhstan.86 According to Article 1 of this treaty the three States form a unitary tariff zone for which the tariff regime agreed to in the Russia-Belarus treat y of 6 January 199587 is valid. b) Investment Activity In the area of investment activity the economic union pursues two goals: first, the freedom of establishment (Article 3) for businesses, that member States have the duty to treat businesses from other treaty States the same as domestic enterprises (Article 10) ; 8 8 second, the encouragement of the formation of CIS firms and transnational production associations (Article 11). Especially the latter is to be emphasized. Cooperation of businesses in the individual areas occurs on a private basis; however, the cooperation is to be encouraged for reasons of domestic industrial policy by the State.89 The desired economic integration is thus not merely to be made easier — according to the interests of the individual enterprises; integration is to be driven by political considerations. 90

85

The decree, B M D , N r . 9, 1995, 3, is in reality a treaty between the CIS member States. See Part II, section 2. 86

B M D , N r . 6, 1995, 11.

87

Treaty on the Customs Union between the Russian Federation and the Republic of Belarus of 6 January 1995, B M D , N r . 12, 1995, 31. 88

See the Treaty on Cooperation in the Area of Investment Activity of 24 December 1993, BMD, Nr. 4,1995, 4. This treaty, however, is valid not only for investors from the CIS States, but also for those from third States (Art. 1). 89 See Art. 4 of the Treaty on the General Conditions and Mechanism of Support for the Development of Production Cooperation by Enterprises and Organs of the CIS Member States of 23 December 1993, BMD, Nr. 12, 1994, 16; Treaty on the Creation of an Inter-State Eurasian U n i o n for Coal and Metals of 24 September 1993, BMD, N r . 2, 1995, 12; A. Lejserow y Das GUS-Abkommen über transnationale Vereinigungen, WiRO, 1996, 234.

™ Pankov (note 34), 13.

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Joachim Lippott c) Currency and Finance Questions

The Economic Union Treaty treats the continuing problem of finance and currency relations and thereby forms a link to the concept of the ruble zone of the newtype (Article 17). The member States of the ruble zone of the new type determine currency questions through bilateral agreements with the Russian Federation. For the rest, inter-State economic traffic is to be based on the national currencies of the member States, whereby until the creation of a reciprocal convertibility the clearing process of the Inter-State bank is to be used (Articles 15 para. 1,16 para. 1 Economic Union Treaty). 91 This purpose is served especially by the Payments Union Treaty. 92 The payments union in turn is to be understood as a preliminary step towards the currency union (Article 16 para. 2 Economic Union Treaty). This then is to be based for reciprocal payments calculations on a common currency reserve (Article 15 para. 2 Economic Union Treaty) and additionally is to guarantee the complete convertibility of the national currencies and the stability of these currencies (Article 16 para. 2 Economic Union Treaty). d) Social Policy The free exchange of labor belongs to the goals of the economic union (Article 3 Economic Union Treaty). For this purpose there exists between the treaty States a visa-free regime for labor (Article 19) as well as the freedom of choosing work in all member States of the economic community (Article 21). Furthermore it was agreed to harmonize labor and social policy, which itself requires specific agreements (Articles 20, 23, 24). 93 e) The Institutional Structure of the Economic Union The extreme importance of the Economic Union Treaty finds its basis not least in the institutional structure that is to execute its goals. The treaty in Article 27 para. 1 mandates that executive and coordinating institutions are to be created or, to the extent they already exist, are to be utilized for the goals of the economic union. This last applies above all to the Council of the Heads of State and the Council of the Heads of Government, as well as to the Economic Court of the CIS. The Economic Court according to Article 31 para. 2 of the Economic Union Treaty has the competence to reach binding decisions if a member State complains of a breach. 91

Id., 18 et seq.

92

See note 78. See also Ivanter inter alia (note 69), 65 - 66.

93

See the Treaty on Cooperation in the Area of Labor Protection of 9 December 1994, B M D , N r . 1, 1996, 3.

Commonwealth of Independent States as Economic and Legal Community This stipulation thus goes beyond the stipulation in the Treaty on the Status of the Economic Court, according to which the Economic Court may make only recommendatory decisions.94 As a new institution of the economic union the Inter-State Economic Committee of the Economic Union was established by the treaty of 21 October 1994.95 A t the same time a regime on its activity was created. The Committee is under the Council of the Heads of State and under the Council of the Heads of Government and is to be a permanent coordinating and executive organ of the economic union. In the context of the competences transferred voluntarily from the member States to the economic union the Committee can also operate in a supervisory and steering capacity (Section 1 of the Statute of the Inter-State Economic Committee of the Economic Union). Moiseev draws therefrom the conclusion that the Committee represents the preliminary stage of a supranational organ. 96 The Committee consists of a presidium and a collegium (Section 5). The presidium consists of representatives of the government leaders of the member States (Section 6), while the collegium is to form a working organ independent of the member States (Section 7). The competence of the Committee may not, however, be exceeded. Operative determinations may only be reached on questions whose competence has been voluntarily transferred by the member States. In addition recommendations and declaratory resolutions may be concluded, which however require confirmation from the governments of the member States (Section 4). Thus the competence of the Committee does not exceed that of the Coordinating and Consultative Committee, 97 even if it can attain influence through a possible advantage gained through the control of information. In any case the determinations of the Committee are also reached asymmetrically. The interest principle applies (Section 10), which means that individual States can distance themselves from the determinations of the Committee presidium without affecting the unanimity of the determinations. They are in such a case not bound by determinations so reached. The process for reaching determinations (Section 10) within the Committee shows that the Committee in the future can be transformed into an organ with genuine economic leadership. In the rule unanimity is to be observed; however for individual measures a three-quarters majority is sufficient or a majority according to a special voting procedure based on the economic potential of the member States.98 94

See note 52; Pechota (note 25), 625 - 626.

95

Treaty on the Establishment of an Inter-State Economic Committee of the Economic U n i o n of 21 October 1994, B M D , Nr. 1, 1995, 19. 96 Moiseev (note 44), 61; Ju. A. Korolev , Problemy sootnosenija zakonodatel'stva gosudarstv — ucastnikov SNG i aktov organov sodruzestva, GiP, N r . 2, 1995, 3, 4. 97

See Part II, section 2.

98

In this case a measure requires 80 of 100 votes. The votes have been temporarily distrib-

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Joachim Lippott

The present situation suffers, however, from the difficulty that the requirements for a majority are not determined with clarity." The aforementioned characteristics of the Committee lead to the result that the Committee is not a supranational organ and that the economic union is not a supranational organization. For this it would be necessary that the Committee have independent powers and could reach decisions binding on the treaty States without their consent. 100 This can only apply to the substantive areas in which the Committee takes supervisory and steering measures (Section 4), which in turn has as a precondition the voluntary transfer of the corresponding powers by the treaty States. H o w this is to occur, however, has not been determined. A t the present moment therefore one cannot presume that corresponding measures will be taken to transfer power over more important substantive areas for a substantial period of time and without the possibility of revocation. Even if this should occur, a further circumstance speaks against the supranational character of the Committee and the economic union. Because the treaty of 21 October 1994 contains no stipulation on its expiration one must return to Article 33 of the Economic Union Treaty to clarify the possible life of the Committee. The Economic Union Treaty has a duration of only ten years. Also, each State may w i t h one year's notice withdraw from the treaty. Any independent power over the member States thus is strongly reduced by the possibility of States withdrawing from the treaty regime. I V . The CIS as a Legal Community Since 1993 the CIS has also been developing its contours as a legal community. The CIS is again and again referred to as creating a territory with uniform law. 1 0 1 The integration of the CIS in the area of law has as a basis conditions entirely different from those existing within the European Union. The organs created under the CIS Statute and other organs of the CIS do not possess the competence to create independent secondary CIS law. Furthermore, the principle of asymmetry according

uted as follows: Russia — 50, the Ukraine — 14, Belarus, Kazakhstan and Uzbekistan — each 5 and all remaining States — each 3. 99 According to Section 10 of the Statute the requirement for a three-quarters majority applies to measures for the introduction of quotas and "also for other concrete questions of economic development." 100 G.Jaenicke , in: H.-J. Schlochauer , Wörterbuch des Völkerrechts, 2nd ed., 1962, 424 - 425; Seidl-Hohenveldern (note 26), Rn. 802. 101 Thus there occurred in April 1994 in Moscow a conference with the theme 'Law and Information Problems of the Creation of a Unitary Legal Area of the Commonwealth of Independent States'. See GiP, Nrs. 8 - 9, 1994, 207.

Commonwealth of Independent States as Economic and Legal Community to its nature does not encourage the processes of harmonization. O n the other hand, it should be noted that the legal systems of the CIS member States are based on a common Soviet tradition 102 and are not, as is the case in the European Union, based on very different national legal traditions. Moreover, the legal systems in the States succeeding to the Soviet Union require a thorough reform. Thus the possibility arises of harmonizing this reform process at the inter-State level. 1. The Meaning of the Soviet Legal Tradition for the CIS States The starting point for reform and reordering of the legal system in the individual CIS States is the Soviet tradition. Immediately after the collapse of the Soviet Union there existed no fundamental differences between the legal systems of the individual CIS States as the central tendencies of the Soviet State had naturally had an effect on the creation of legal rules. Thus Article 73 of the Soviet Constitution of 1977103 provided the central Soviet government with a very broad competence to enact legislation on fundamentals. 104 In this context numerous pieces of legislation were passed at the level of the central Soviet government such as the Fundamentals of Civil Legislation, 105 which was then implemented in the civil codes of the republic!?.6 Between these codifications at the republic level there was, however, very little substantive divergence. The unity of Soviet law was first shaken by the aforementioned independence process of the individual republics. Thus the declaration of sovereignty of the Russian republic 107 determined in Section 5, against Article 74 of the Soviet Constitution, that Russia's legal measures were supreme over legal measures of the Soviet Union. The 'war of the laws' between the Soviet Union on the one hand and Russia and the other republics on the other did not, however, lead to the result that a com102

Zvekov (note 81), 207.

103

See note 10.

104 Most of the fundamental laws created under Art. 73 N r . 4 of the Constitution (for example in the area of civil law) are technically framework laws, which were elaborated upon through codes of the individual republics. See Eincke (note 27), Art. 73, Rn. 18 et seq. 105

See Fundamentals of Civil Legislation of the Union of SSR and of the U n i o n Republics of 8 December 1961, VVS SSSR, Nr. 50, 1991, Art. 525, which was to be superseded by the Fundamentals of Civil Legislation of the Union of the SSR and of the Republics of 31 May 1991, VSNDiVS SSSR, N r . 26, 1991, Art. 733. 106

See the Civil Code of the RSFSR of 18 June 1964, VVS RSFSR, N r . 24, 1964, Art. 406 (German translation according to the status of 1987 by D. Frenzke , Das Zivilgesetzbuch und das Ehe- und Familiengesetzbuch der Russischen Sowjetrepublik (RSFSR), 1988, 25). 107 See note 12. See also the Law of the RSFSR on the Validity of Acts of the Union of the SSR on the Territory of the RSFSR of 24 October 1990, VSNDiVS RSFSR, N r . 21, 1990, Art. 237.

23 GYIL 39

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Joachim Lippott

pletely new legal system, completely separate from the legal system of the Soviet Union, could be established. This was above all due to the difficult process of reform at the level of the republics, and also due to the fact that when the declarations of sovereignty were concluded the goal was a fundamentally new division of powers in a new Union treaty. Thus the disputes in the war of the laws concerned above all individual legal rules of the republics that the central Soviet government considered particularly dangerous to its power. 108 Thus it is even more noteworthy that in the Minsk Agreement the problem of the war of the laws was treated. Article 11 determines that "from the moment of the signing of the present agreement . . . on the territory of the signatory States the application of the norms of third States, including the Soviet Union, is not valid." This treaty stipulation was to prevent Russia in the future from assuming sovereignty over the other CIS States on the basis of Soviet law. 1 0 9 However, the subsequent implementation of Article 11 of the Minsk Agreement would have meant that large gaps in the law would have occurred in the CIS States in most areas. To avoid this, Russia ratified the Minsk Agreement on 12 December 1991 110 w i t h the reservation that Soviet law remains binding to the extent that it does not contradict Russian law or the Minsk Agreement. A similar position was taken by the other CIS States; already in March 1992 the Economic Court of the CIS obtained the competence to ensure the uniform interpretation of legislation of the former Soviet Union. 1 1 1 Furthermore the Economic Court may judge the validit y of the further application of Soviet law. Still clearer is the stipulation in the Agreement of October 1992 on the Harmonization of Economic Legislation. 112 In Article 7 of this treaty it states that law of the former Soviet Union is to be applied in the CIS States to fill gaps in the law to the extent that this does not contradict the relevant constitution. Article 11 of the Minsk Agreement has had legal effects, above all in the area of civil law. The new Fundamentals of Civil Legislation of the Soviet Union and the Republics, 113 concluded on 31 May 1991 according to Part 1 of the resolution caus-

108

Schweisfurth (note 8), 593 et seq.-, F.J. M. Feldbrugge, Russian Law: The End of the Soviet System and the Role of Law, 1993, 139. 109

See also Zvekov (note 81), 206.

110

Decree of the Supreme Soviet of the RSFSR on the Ratification of the Agreement on the Creation of the CIS, VSNDiVS RSFSR, N r . 51, 1991, Art. 1758 (German translation by D. Frenzke, Osteuropa-Recht, 1992, 132). 111

Section 5 of the Statute of the Economic Court of the CIS (note 52).

112

Treaty on the Principles of the Harmonization of the Economic Legislation of the Member States of the Community of 9 October 1992, BMD, N r . 10, 1993, 3. 113

See note 105.

Commonwealth of Independent States as Economic and Legal Community ing the agreement to enter into force 114 was to enter into force on 1 January 1992, a point at which the Soviet Union no longer existed. This Fundamentals of Civil Legislation therefore was not seen by Russian law experts as Soviet law in the sense of the reservation to the Minsk Agreement. Its applicability in Russia was completely rejected on the basis of this very formalistic view. Only through the decree of the Supreme Soviet of the Russian Federation of 14 July 1992115 did this Fundamentals of Civil Legislation with ex nunc effect enter into force. 116 In this connection, however, the law literature in Russia makes explicit that Soviet law is further valid only to resolve gaps in the law, and not as supranational law. 1 1 7 2. The CIS as Unitary Legal Zone The efforts towards economic integration of the CIS States make clear that further cooperation is also necessary in the establishment of legal norms. The legal integration in the CIS thus is not limited to harmonization of economic law, but goes beyond this. It includes the protection of human rights at the inter-State level, and the regulation through treaty of conflict-of-laws and legal remedies. a) The Human Rights Convention of the CIS The CIS States in Article 2 of the CIS Statute 118 already assume the duty to protect human rights and fundamental freedoms according to the general principles and norms of international law and of OSCE documents. In the subsequent period Russia above all was concerned with human rights protection under the structure of the CIS, not least with a view to the Russian populations living in the other CIS States.119 A first step was the Declaration of the Heads of State of the CIS Member States on the International Duties in the Area of Human Rights Protection and Fundamental Freedoms of 24 September 1993.120 The declaration makes a link to the stipu114

VSNDiVS SSSR, N r . 26, 1991, Art. 734.

115

Decree on the Regulation of Civil Law Matters in the Time of the Execution of Economic Reforms of 14 July 1992, VSNDiVS RF, N r . 30, 1992, Art. 1800. 116

See on the question of the ex nunc effect the plenary decision of the Supreme Court of the Russian Federation of 22 December 1992, ChiP, Nr. 3, 1993, 69 - 70; W. Seiffert , Die Fortgeltung der völkerrechtlichen Verträge und Gesetz der untergegangenen Sowjetunion i n der Russischen Föderation, W i R O , 1992, 137, 139.

23*

117

Zvekov (note 81), 206.

118

See note 36.

119

Pechota (note 25), 628 - 629.

120

B M D , N r . 9, 1994,8-9.

355

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Joachim Lippott

lations of the International Convention on Civil and Political Rights of 19 December 1966,121 to which the former Soviet Union, Belarus and the Ukraine as separate members of the United Nations since 23 March 1976 belonged.122 The remaining CIS States in the declaration assumed the duty to join the convention and to conform their national law to the convention. Indeed in the Alma-Ata Declaration 123 the CIS States had already agreed to take over the international treaty duties of the Soviet Union. Except in the case of Russia124 this did not mean the duties under the convention automatically existed, but rather that a duty existed to join in the sense Article 49 para. 2 of the convention. 125 Furthermore the CIS States in the declaration of 24 September 1993 stated that they were prepared to conclude a human rights convention. This finally occurred on 26 May 1995 when seven States (Armenia, Belarus, Georgia, Kirgistan, Moldavia, Russia and Tadjikistan) signed the Convention of the Commonwealth of Independent States on Human Rights and Fundamental Freedoms in Minsk. 1 2 6 To the extent the convention guarantees liberty rights (Articles 2 - 13) it shows parallels to the European Convention on Human Rights of 4 November 1950.127 Otherwise it is oriented towards the national constitutions of the CIS States,128 which guarantee basic social rights, such as the right to work, the right to health and the right to social security (Articles 14 et seq.). The convention contains no stipulations on an independent procedure for the enforcement of its substantive content, but rather merely refers in Article 34 to the Statute of the Human Rights Commission of the CIS. 129 The CIS Statute describes the Human Rights Commission as a "consultative organ" (Article 33); thus this body possesses no competences comparable to those of the Commission or the Court of the European Convention. Although a case may be brought before the CIS Human Rights Commission not just by member States, but also by individuals and non-government organizations (Parts I I and I I I of the Statute of the Human Rights Convention), the CIS Human Rights Commission does not have the ability 121

BGBl. 1973 E, 1534.

122

See the notice in BGBl. 1976 E, 1068.

123

See note 21.

124

See the notice in BGBl. 1992II, 1016.

125

See generally for the continuing validity of multilateral international treaties for the former Soviet republics Beemelmans, Die Staatennachfolge (note 5), 357 et seq., 369 et seq. 126

D V , N r . 7, 1995, 30.

127

BGBl. 1952 E, 685, 953.

128

See, e.g.. Arts. 37 et seq. of the Russian Constitution of 12 December 1993, Rossijskaja Gazeta, 25 December 1993 (German translation by D. Frenzke in Brunner (note 7), Rußland

l.i). 129

Seenöte 53.

Commonwealth of Independent States as Economic and Legal Community to make binding decisions. It is according to Part I Section 10 of the Statute of the Human Rights Commission competent only to work out settlements, to issue declaratory opinions and to make recommendations. b) Remedies and Conflict-of-Laws Even after the termination of the Soviet Union as a State the intense trade relations between the former Soviet republics still existed. This circumstance and the extensive migrations on the territory of the former Soviet Union led to increasing problems of conflict-of-laws that in their scope surpassed the conflict-of-laws between the republics of the Soviet Union. The conflict-of-laws between the republics had been regulated above all through relevant sections of Soviet law (Article 18 of the Fundamentals of Civil Law of 1961130). In the context of the Commonwealth of Independent States the attempt was made early on to create a corresponding interState treaty regime. Thus on 20 March 1992 the Treaty on the General Conditions for the Delivery of Goods between Organizations of the CIS Member States131 and the Treaty on the Procedure for the Determination of Disputes Connected to Economic Activity 1 3 2 were concluded. The latter applies to trade disputes between enterprises as well as to legal relations between enterprises and State organs (Article 1). For these conflicts this treaty in Article 4 provides an extensive set of rules on international jurisdiction and places on the State organs of the treaty States the duty to provide remedies (Articles 5, 6). Also noteworthy are the rules for the enforcement of judgments (Articles 7 et seq.), which surpass the prior possibilities under the law of Russia and other CIS States. More extensive than the aforementioned agreement is the Convention on Remedies and Legal Relationships in Civil, Family and Criminal Matters of the Commonwealth of Independent States of 22 January 1993.133 The convention contains in 87 articles a very detailed set of rules on remedies (Articles 4 et seq., 56 et seq.), on international jurisdiction in civil and family matters (Articles 20 et seq.) and on the conflict-of-laws related thereto. Furthermore, the convention also includes provisions on the recognition and enforcement of judgments.

130

See note 105. See also the provision in Art. 2 para. 2 cl. 6 and Art. 8 of the Fundamentals of Civil Legislation of 1991. 131

B M D , N r . 4, 1993, 46.

132

ChiP, N r . 8, 1992, 69.

133

BMD, N r . 2, 1995, 3.

3 7

358

Joachim Lippott c) Uniform Law through Harmonized Legislation

Even when the Soviet Union still existed it had become clear that the prior legal system required fundamental reform. In many areas approaches to reform were found; their importance for the period following 1991 is not to be underestimated. Thus the Soviet Parliament on 31 May 1991 enacted a new Fundamentals of Civil Legislation, 134 which introduced fundamental changes when compared to the prior law. The development of civil law in the CIS States is only one aspect of the desired legal harmonization. Already in the Treaty on the Harmonization of Economic Legislation of October 1992135 the goal was the harmonization of legal rules for the improvement of economic conditions. This process was stipulated to occur along two tracks: on the one hand through bilateral and multilateral agreements in the context of the CIS, and with the aid of other treaties in international law (Article 5), and on the other hand through parallel national legislation, with regard to norms developed on the inter-State level. In Article 8 of the treaty a Consultative Council for Legal Questions of the CIS was established to work out general principles of legal harmonization and recommendations on their execution. 136 The harmonization within the CIS received a new impetus through the conclusion of the Economic Union Treaty, 137 which must be seen as a framework agreement for a series of more specific agreements. These agreements, however, suffer from the weakness that they are agreements that must be transformed into national law. Also, the standards are for the national legislating body very much of an indefinite character. 138 This problem was indeed recognized by the CIS States themselves; the Executive Secretariat could, however, do nothing to alleviate the situation. 139 The development in the area of patent law can be seen as a happy exception to this regularly recurring problem. A n inter-State patent organization within the framework of the CIS was called into being with the Eurasian Patent Convention of 9 September 1994,140 which calls for a supranational issuing authority for inventors' 134

See note 105.

135

See note 112.

136 Section 2 of the Statute of the Consultative Council for Legal Questions as annex to the Treaty on the Harmonization of Economic Legislation (note 112). 137

See note 37.

138

K. Kolihahy O sbliienii chozjajstvennogo zakonodatel'stva uöastnikov Sodruiestva Nezavisimych Gosudarstv, ChiP, N r . 9, 1994, 22, 26. 139

See the Treaty on Maintenance of Information on the Fulfillment of Multilateral Treaties of 24 September 1993, B M D , N r . 1, 1994, 14 - 15. 140

BMD, N r . 8, 1996, 3 (German translation in Blatt für Patent-, Muster- und Zeichenwesen, 1996, 171). O n the background to and content of the agreement see A. Grigoriev , Der

Commonwealth of Independent States as Economic and Legal Community patents (Article 6), according to the model of the European Patent Organization and the European Patent Office. 141 The conditions for the issuing of patents are determined in the convention (Articles 6 et seq.). A t the present the dominant tendency in the CIS is that the legal harmonization takes place on the basis of model laws. Their preparation is above all a duty for the Interparliamentary Assembly (Article 4 lit. d of the Convention on the Interparliamentary Assembly 142 ). However these model laws are not to be considered as the result of an original contribution of parliamentary lawmaking. The Interparliamentary Assembly rather works closely with the Institute for Legislation and Comparative Law, 143 which was established by the Russian government. 144 For this reason the future harmonization of legislation in the CIS States will very strongly lean on the Russian model. This becomes particularly clear when one considers the influence that Russian civil law has on the legal and political discussion and on the lawmaking activity in the other CIS States. The Russian civil code 145 was developed above all by the Institute for Legislation and Comparative Law, which is connected to the Russian government, 146 whereby recourse could be had to the Fundamentals of Civil Legislation of 1991.147 The first part (the general section, property law and general provisions on obligations and debts) was enacted in October 1994, the second part (specific obligations and debts) in January 1996. Almost at precisely the same time, the Interparliamentary Assembly concluded the corresponding part of the model civil code,148 while two Central Asian CIS States (Kazakhstan and Uzbekistan) also in the same period enacted civil codes consistent with the Russian model. 149

Schutz des gewerblichen Eigentums in Rußland und die Eurasische Patentkonvention — Zustand und Aussichten, Osteuropa-Recht, 1995, 311. 141

European Patent Convention of 5 October 1973, BGBl. 1976 II, 826.

142

See note 54.

143

Kolibab (note 138), 27; Korolev (note 96), 4 et seq.

144 Decree of the Russian government of 23 December 1993, Sobranie A k t o v Prezidenta i Pravitel'stva Rossijskoj Federacii, N r . 52, 1993, Art. 5148. 145 Law of 21 October 1994, SZRF, Nr. 32,1994, Art. 3301 (German translation by S. Solotych , Das Zivilgesetzbuch der Russischen Föderation, part I, 1995, 77), and the Law of 26 January 1996, SZRF, N r . 5, 1996, Art. 10. 146

H. Arnold , Zivilgesetzbuch der Russischen Föderation i m Entstehen, Recht der internationalen Wirtschaft, 1995, 897, 899. 147

Solotych (note 145), 74.

148

Conference contribution by W. Simons at a meeting of 12 April 1996.

149

Civil Code of the Republic of Kazakhstan, General Section of 27 December 1994; Civil Code of the Republic of Uzbekistan, General Section of 21 December 1995.

360

Joachim Lippott Conclusion

The examination of the treaty system and the institutional structure of the CIS has shown that the CIS is an international organization in the sense of international law that serves as a framework organization for a series of integration measures. The important characteristic of this integration in substantive areas is the asymmetry of the legal relationships behind the integration. Besides the CIS there are further integration structures with more extensive goals. This includes, in addition to the Russia-Belarus Community, the Commonwealth of Integrated States put forward by four States and the integration efforts of the Central Asian States. Due to the asymmetrical nature of the development a prognosis for the further development of the CIS is not feasible. The asymmetrical character of the treaty relationships offers the necessary degree of flexibility. The treaty systems as such, however, w i l l suffer in the future from the fact that the individual agreements are not in sufficient harmony with one another. The result is an even greater political influence for Russia, the dominant CIS member State in every aspect, which may endanger the equality of the member States of the CIS put forward in all of the treaties.

Litigation by Public-Interest Groups in European Law By Heike Gading*

The judicial protection of individual human rights is well established in the European Union. In contrast, the protection of public interests through access to the courts in European law is not well developed. Such cases may concern consumers, future generations or the environment. One way to protect public interests is litigation by public-interest groups. It may be possible in many cases concerning public interests to find an individual w i t h standing. If such an individual's suit can be expected to lead to a decision of strategic importance, there is no problem for an interest group to treat such a case as a 'test case', thereby providing expert counsel and controlling the conduct of the case in all material aspects. But there are situations in which such a solution cannot be achieved. The individual with standing to sue may exist, but he or she may be unwilling to do so for plausible reasons such as lack of money, lack of linguistic or other skills or lack of understanding of complex facts and intricate law, which cannot be solved by the support of relevant interest groups. Or there may be simply no individual that would qualify as a plaintiff under the law of standing, because the interest at stake does not belong to an individual but rather to the public. Many expressions are used when discussing litigation by groups — 'class action', 'diffuse or fragmented action' inter alia — but this litigation falls into two broad categories: litigation in which the plaintiff brings an action on behalf of members of a specified group, and litigation in which the plaintiff brings an action for the benefit of the community as a whole. Although the former raises interesting questions, this Article is concerned solely with the latter. 1 Part I of this Article discusses the evolution of public-interest-group politics within the European Union. Part I I analyzes the law, both legislative acts and decisions of the European Court of Justice. The analysis includes the impact of European law on national procedure. From this analysis Part I E formulates proposals for publicinterest-group litigation as a remedy before the European Court of Justice.

* The Author thanks Michael Upton and Renaud Dehousse for their comments. 1 O n the most vexing issues in class representation see D. L. Rhode , Class Conflicts in Class Actions, Stanford Law Review, vol. 34, 1981/1982, 1183.

362

Heike Gading I. Evolution of Public-Interest-Group Politics in the European Union 1. Public-Interest-Group

Politics in the United States and the European Union

That public-interest groups are best suited to protect the public interest is neither revolutionary nor unfamiliar. The idea has existed in American administrative law. 2 I n the first forty years of this century, the Supreme Court generally recognized standing only when a party suing a government official was directly harmed. 3 In Federal Communication Commission (FCC) v. Sander Brothers Radio Station, 4 a turning point in the development of standing, the Supreme Court found standing not only to vindicate the plaintiffs own economic interests, but also to vindicate the public interest in adequate radio service, which the Court deemed part of a correct administrative decision.5 In the period following this case, recreational, conservational, spiritual and aesthetic injuries were deemed sufficient to support standing in public-interest actions, whenever statutes authorized judicial review. 6 In 1972 in Sierra Club v. Morton, 7 a majority of the Supreme Court denied the Sierra Club standing because it failed to allege that its members would be affected by the proposed projects at issue in the case. But for the first time the Court stated that a public-interest organization may obtain standing to represent the public interest in support of its claim. 8

2 For a comprehensive consideration of American administrative law see R. Stewart , The Reformation of American Administrative Law, Harvard Law Review, vol. 88, 1975, 1667; A. Homburger , Private Suits in the Public Interest in the United States of America, Buffalo Law Review, vol. 23,1974, 343. See also M. Shapiro , Codification of Administrative Law: The U.S. and the European Union, European Law Journal, vol. 2, 1996, 26. 3

See, e.g., Frothingham v. Mellon , 262 U.S. 447 (1923); City of Atlanta v. I ekes, 308 U.S. 517 (1939); Tennessee Electric Power Co. v. TVA , 306 U.S. 118 (1939), 140; Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940). 4

309 U.S. 470 (1940).

5

Id. , 476 - 477.

6 Office of Communication of United Church of Christ v. FCC , 359 F.2d 994, 1000 - 1006 p . C . Cir. 1966); Scenic Hudson Preservation Conf. v. FPC , 354 F.2d 608, 616 (2d Cir. 1965); Abington School Dist. v. Schempp, 374 U.S. 203 (1963) — all cases cited i n Association of Data Processing Service Organisations (ADAPSO) v. Camp, Comptroller of the Currency, 397 U.S. 150, 154 (1970). 7 8

405 U.S. 727 (1972).

Id., 737, 739 - 740. See also United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 93 S.Ct. 2405 (1973). For further analysis see W. Scott, Standing in the Supreme Court — A Functional Analysis, Harvard Law Review, vol. 86, 1973, 645; /. L. Mashaw, 'Rights' in the Federal Administrative State, Yale Law Journal, vol. 92, 1983, 1129, 1142 et seq.

Litigation by Public-Interest Groups in European Law This private standing to enforce the public interest was recognized under manystatutes enacted during the same period that granted locus standi to groups pursuing the public interest, provided the group or its members could prove injury. 9 In limited areas, the statutory rules for standing went further and dropped the requirement of personal injury. 1 0 The American experience, liberalization of standing, is to a limited degree comparable to the present situation in the European Union, although the legal traditions of the European States hardly resemble those of the United States. In contrast to the traditions in most European member States, the legal systems of both the United States and the European Union are not hostile to public-interest-group litigation. The history of the monarchical and revolutionary nation-States of Europe resulted in suspicion of private groups protecting public interests. Direct public participation in government was one of the important aims of the French Revolution, and it has been characteristic of European nation-States that any institution between citizens and the State is a priori a threat. The United States has no feudal past to extirpate, and a skepticism of organizations acting between citizens and the State did not arise. The European Union also has no weight of tradition it must counteract; it is not directly influenced by a feudal past. As an entity generated by an international treaty it has developed its own structure in which there is no suspicion of public-interestgroup litigation. The origins of public-interest representation in the United States are explained by the development, prompted by a need to accommodate a variety of religious sects, of a social, political and legal system in which local communities and voluntary organizations pursued divergent conceptions of the good. 11 Associational self-determination combined with geographical, economic, ethnic and cultural variety suited the diverse United States and promoted its diversity. As Stewart points out, that diversity is an element in broader American liberalism. A homogeneous society would not provide a setting in which divergent conceptions of the good could readily be dis-

9

Eg. Toxic Substances Control Act of 1976; Consumer Product Safety Act of 1972; Occupational Safety and Health Act of 1970. 10

E.g. Michigan Environmental Protection Act of 1970; Federal Clean A i r Act Amendments of 1970; Federal Water Pollution Control Act Amendments of 1972; Noise Control Act of 1972. For further detail see H. Kötz, Public Interest Litigation: A Comparative Study, in: M. Cappelletti (ed.), Access to Justice and the Welfare State, 1981, 110; Homburger (note 2), 394 - 395; Mashaw (note 8), 1137 - 1138. O n a modification of the current practice and alternatives to formal advocacy and judicial review see R. B. Stewart , Regulation, Innovation, and Administrative Law: A Conceptual Framework, California Law Review, vol. 69, 1981, 1259, 1338 et seq., 1372 et seq. Compare L. Friedman, Claims, Disputes, Conflicts and the Modern Weifare State, in: Cappelletti (this note), 251, 257 et seq. 11

R. Stewart, Regulation in a Liberal State: The Role of Non-Commodity Values, Yale Law Journal, vol. 92, 1983, 1537, 1543.

363

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Heike Gading

covered and tested. Diversity may be promoted by limiting the power of government, but it may also require collective action. 12 Although the political and legal systems of the United States and the European Union are resistant to generalization, one of the debated issues in European policymaking is how to protect diverse cultures and interests while seeking integration. The Maastricht Agreement has laid down the principle of subsidiarity in Article 3(b) EC, which has gained a position in the practice of the European Union. Categories of actors intending to take part in policy are building institutional establishments. The regions are an example, with the establishment of the Committee of the Regions (Articles 198(a) et seq. EC) and the opening of regional offices in Brussels. These provisions demonstrate that diversity is desired in the European Union, which may require judicial protection by public-interest groups. Also comparable to the American experience is the growing disillusionment w i t h technocracy. In the United States anti-technocratic sentiment developed out of the conflict between democracy and technocracy. The claim that those that know, the technocrats, should rule, conflicted with the claim that the people should rule. For the first one hundred years the practice in the United States was democratic. The New Deal of Franklin Roosevelt achieved temporary reconciliation. Its declared purpose was technocratic; the claim that those with expertise were making the decisions was a basis for legitimacy. The reaction to this development led with Republican support to the codification of federal administrative law in the 1930s w i t h judicial review as a keystone, which implies that judges constrain the discretion of the technocrats. However, when the Administrative Procedure Act was enacted in 1946, it was followed by a period of consensus between the administrative organs and the courts, largely because of a similar political background. But during the 1970s the courts in the United States became more active, as had been intended by those that had promoted the Act. One explanation for this activism was anti-technocratic sentiment, as well as distrust of government. The courts appeared as a trustworthy counterweight to technocratic administration, which, when induced by actions of the people concerned, exercised effective control. 13 A second consequence of the loss of faith in rule by experts was the desire for popular participation and transparency in bureaucratic decision-making.14

12 Id., 1543 et seq., 1568. Doubtful T.J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority, 1969, 96; C. R. Sunstein, Naked Preferences and the Constitution, Columbia Law Review, vol. 84, 1984, 1689, especially 1731 - 1732. 13

For more detail see Shapiro (note 2), 31 et seq. Compare Mashaw (note 8), 1165 et seq.-, C. R. Sunstein, Interest Groups in American Public Law, Stanford Law Review, vol. 38, 1985, 29, especially 74 et seq.-, S. Olson, The Political Evolution of Interest Group Litigation, in: R. A. L. Gambitta/M. L. May/J. C. Foster, Governing through Courts, 1981, 225. 14

Shapiro (note 2), 36. Compare Lowi (note 12), 79 et seq.

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The tendency to distrust bureaucracy is widespread in Europe as demonstrated by the criticism in the course of the Maastricht referenda. The distrust of the decisions of the 'Eurocrats' has been intensified by the movement of regulatory authority from member-State capitals to Brussels. As citizens feel 'left out', the desire for participation and transparency grows. These forces are similar to those that led in the United States to the representation of public interests by private groups and recognition of private rights of action. It is thus conceivable that the European Union will move in the direction taken by the United States since the 1960s, i.e. towards demanding more activist judicial review initiated by those that have promoted public interests at the law-making level. 15 2. Representation of Public Interests in the European Union The relationship between private and public interests can be divided into liberal and communitarian conceptions. A liberal view considers participation in the democratic process as a means by which autonomous individuals advance their conceptions of the good life. Litigation to secure personal autonomy, individual rights and freedom of this choice of the good are legitimate, while the protection of public interests by private groups is problematic. A communitarian view considers participation as a contribution to general social welfare; public-interest-group litigation is legitimate, whereas litigation to protect the material interests of individuals is an illegitimate attempt to distort public-interest decision-making.16 Between these two positions many combinations are conceivable. One is familiar to Western European tradition — representative democracy, in which public interests are protected by the State through a democratic and representative institution, the parliament. This vision of the public interest leaves little space for groups protecting public interests. Representative democracy is part of European culture — in Britain especially parliamentary tradition is strong — and this may be a source of difficulty in the evolution of group politics on the European level. However, the assumption that the public interest is realized in parliament overlooks the decline of Western European parliamentary institutions through their subordination to the interests of political parties; private groups must take part in the democratic process through the political parties. 17

15

Compare C. Harding , Who Goes to Court in Europe? A n Analysis of Litigation against the European Community, European Law Review, vol. 17, 1992, 105. 16

See D. Feldman , Public Interest Litigation and Constitutional Theory i n Comparative Perspective, Modern Law Review, vol. 55, 1992, 44. 17

C. Harlow , A Community of Interests? Making the Most of European Law, Modern Law Review, vol. 55, 1992, 331, 334 - 335.

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Returning to the liberal/communitarian dichotomy, this is a simplified portrait of the democratic process. It has been argued by Stewart that American liberalism, rather than envisaging a society in which atomized individuals independently pursue a private, subjective conception of the good, has embodied a broader vision based upon associational values.18 These 'non-commodity values', as Stewart calls them, must be regarded in a liberal society to avoid dictating to citizens a particular conception of the good, which itself violates liberal principles. 19 Taking this into account, the above-mentioned liberalism is better characterized as individualist/liberal. But the dichotomy between individualist/liberal and communitarian models assumes a distinction between public and private interests that does not so strictly exist. It presupposes a simplified image of society as a hierarchical relationship between private individuals and an overarching State in which interest groups find themselves somewhere between the two. Teubner claims that this hierarchical model is inadequate in the modern State and cannot cope with contemporary fragmented society.20 According to Teubner , there are two aspects that show this inadequacy of the hierarchical model. First, interest groups participate simultaneously in politics and in their specialized fields. Second, the political process is divided into sub-discourses, such as party politics, government institutions (parliament, administration, courts) and the political public (media, interest groups). Teubner deduces from this that interest groups may have a public role and identifies three categories for the relationship between the State and interest groups: pluralism, macro-corporatism and poly-corporatism. 21 Returning to the representation of public interests in the European Union, an examination of the relationship between private and public interests in its democratic process may seem odd at a time when the debate about the democratic deficit has engaged the attention of politicians and scholars in the member States more than ever before. 22 But, whatever the solution to the democratic deficits, it appears that the democratic process in the European Union has not only acquired an individualist/liberal bias, but also shows communitarian/fragmented elements. The developments in safeguarding the rights of the individual indicate a change towards an individualist/liberal orientation in the European Community. Safe18

Stewart (note 11), 1537, 1543, 1566 et seq.

19

Id.

20

G. Teubner , The State of Private Networks: The Emerging Legal Regime of Polycorporatism in Germany, Brigham Young University Law Review, 1993, 553. 21 22

Id., 558 et seq.

See, e.g., G. F. Mancini/D. T. Keeling, Democracy and the European Court of Justice, Modern Law Review, vol. 57,1994, 175; J. Weiler/U. Haltern/F. Mayer, European Democracy and its Critique — Five Uneasy Pieces, E U I Working Papers, RSC No. 1995/1 I G ; De Burca, The Quest for Legitimacy in the European Union, Modern Law Review, vol. 59, 1996, 349.

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guarding individual rights under European law is not conceivable without the rulings of the European Court of Justice. Its rulings on the protection of fundamental rights within the European Community made more remedies available to individuals. 23 The Court's approach to the question of human rights has been approved by the other European institutions 24 and the member States.25 Also important for the protection of individual rights has been the Court's doctrine of direct effect. Invoking Community law before national courts requires that the Community provision be directly applicable in the national legal order. Under a strict interpretation of Article 189 EC this requirement is met only by regulations. But the European Court of Justice has extended this to Treaty rules and to provisions of directives that have not been implemented temporally. It has been held that these may be relied upon by individuals if these grant individuals rights and impose on the State an obligation so definite that it can be fulfilled without further measures.26 Community law thus became capable of directly impinging on the lives of individuals. Besides the development towards an individualist/liberal democratic process, there are also indications of a bias towards the communitarian/fragmented model. Interest groups are strengthening their presence inside the European Union. 2 7 Europe-wide interest-group federations have existed since the early days of the Community in industrial sectors such as agriculture and coal and steel, in which responsibility for policy-making had been given to the European Commission under the Treaty of Rome. However, since the 1966 'Luxembourg Compromise' gave each national government a veto over proposals put to the Council by the European

23

Leading cases are Stauder v. City of Ulm, 1969 ECR 419; Internationale Handelsgesellschaft v. Einfuhr- und Vorratsstelle Getreide, 1970 ECR 1125. For a comprehensive consideration see G. F. Mancini/V. Di Bucci , Le Development des Droits Fondamentaux en tant que Partie du Droit Communautaire, in: A. Clapham (ed.), Collected Courses of the Academy of European Law, vol. I, book 1, 1991, 35. 24 See, e.g., Joint Declaration on Fundamental Rights of the European Parliament by the Council and the Commission of 5 April 1977, Official Journal Eur. Comm., N o . C 103/1, 1977, and the Declaration of Fundamental Rights and Freedoms of the European Parliament of 1989, EC Bulletin 4/1989. 25

See, e.g., Article F(2) of the Maastricht Treaty committing the European Union to respect fundamental rights, as guaranteed by the European Human Rights Convention and the constitutional traditions common to the member States. 26

Leading cases are Van Gend en Loos v. Nederlands Administratie der Belastingen, 1963 ECR 1; Van Duyn v. Home Office , 1974 ECR 1337; Publico Ministro v. Tulio Ratti, 1979 ECR 1629. 27 For a comprehensive analysis of EC lobbying see M. P. van Schendelen (ed.), National Public and Private E.C. Lobbying, 1993; A. Butt, Pressure Groups in the European Community, 1985.

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Commission, many groups have relied on their national contacts and have not defended their interests at the European level. The Single European Act in 1986 affected European decision-making. First, it gave legitimacy to Community policies in new areas, notably environmental and social policies, and research and development, increasing the range of interests affected by Community policy. Second, it widened the range of areas in which the Council can make its decisions by qualified majority voting. National interest groups can no longer seek the protection of a national veto in the Council, and the States thereby lost most of their protective function. As a consequence, the need for interest-group coalition-building at the European level increased. Since then the activity of Community interest groups through the Commission and the Parliament has evolved. 28 I n 1991 there were 525 federations represented in Brussels officially recognized by the Commission. 29 Initially, interest representation at the European level consisted principally of industry and profit-seeking groups. 30 But since 1992, when qualified majority decision-making was again extended to more fields of policy, public-interest groups have also started to influence European policy. 31 This increasing activity of public-interest groups in the European Union is mirrored by the fact that the Commission, in setting up a database of interest-group activities in the European Union, gave priority to data about 'non-profit-making' interest groups, 32 although a comprehensive ana28

Van Schendelen (note 27), 283 et seq.; J. Greenwood/K. Ronit , Interest Groups i n the European Community: Newly Emerging Dynamics und Forms, West European Politics, vol. 17, 1994, 31, 42 et seq. Compare G. Majone , Mutual Trust, Credible Commitments and the Evolution of Rules for a Single European Market, E U I Working Papers, RSC No. 95/1; F. Snyder , New Directions i n European Community Law, 1990, 34 et seq. See also W. Grant , Pressure Groups and the European Community: A n Overview, in: S. Mazey/J. Richardson (eds.), Lobbying in the European Community, 1993, 27; S. Mazey/J. Richardson , British Pressure Groups i n the European Community, Parliamentary Affairs, 1992, 92; A. Grijns , Environmental Groups in the Courts, Comparative Views on Environmental Litigation by Interest Groups i n the United States, the European Community, and some of its MemberStates, 1994. 29

Mazey/Richardson

(note 28), 94.

30

See A. M. McLaughlin/W. A. Maloney/G. Jordan , Corporate Lobbying i n the European Community, Journal of Common Market Studies, vol. 31, 1993, 191; J. Greenwood/J. R. Grote/K. Ronit , Conclusions: Evolving Patterns of Organizing Interests i n the European Community, in: J. Greenwood/J. R. Grote/K. Ronit (eds.), Organized Interests and the European Community, 1992, 238. 31 Van Schendelen (note 27), 6; Butt (note 27), 83 - 84. Compare C. Harlow/R. Rawlings , Pressure through Law, 1992, 268 - 269.; M. Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities, 1982, 17 et seq.; M. Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, 1980. 32

See the announcement by J. Delors in Official Journal Eur. Comm., No. C 317/44, 1994

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lysis of the representation of public interests by private groups at the European level does not exist. This trend towards pressure for the protection of public interests in Brussels may vary among the member States. In Belgium influencing European institutions seems to be more common than in France, where the fact that patterns of lobbying mirror the traditionally centralized nature of the State often prevents the development of direct routes to European institutions. 33 It is also conceivable that public-interestgroup activity differs among member States depending on the sector of society. The second consideration concerning the influence of the communitarian/fragmented model in the European Union emerges from the relationship of public-interest groups to the law-making bodies in the European Union. Influencing the Council of Ministers by lobbying the individuals that participate in its debates is difficult. Its meetings remain secret and closed. Groups can influence it only indirectly through the Commission, which is a participant in all meetings of the Council, and by lobbying on the national level. With the Single European Act in 1986, the European Parliament became a means for groups to amend European legislation. It introduced a new 'cooperation procedure', which grants Parliament the right to a second reading of all Community legislation, thus providing members of the European Parliament with an opportunity to propose amendments to the Council of Ministers, and making members of Parliament the target of interest-group activities. Lobbying the Commission still appears to be the most effective avenue, because the Commission has the dominant role in setting the agenda, in shaping European legislation. Commission officials are often dependent upon national experts and groups for information about technical standards, national legislation and organizational structures throughout the Community. 3 4 It remains open how the Commission should recognize interest groups as representatives, or how it should select between several competing interest groups, etc.

following the communication on "an open and structured dialogue between the Commission and special interest groups," Official Journal Eur. Comm., No. C 63, 1993. 33

See van Schendelen (note 27), 284 - 285.

34

Mazey/Richardson, (note 28), 96. Compare Harlow/Rawlings (note 31), 268 et seq. See Butt (note 27), 42 et seq., especially 78, 83; E. Kirchner/K. Schwaiger , The Role of Interest Groups in the European Community, 1981, 9 - 10, 42 et seq.

24 G Y I L 39

370

Heike Gading I I . Public-Interest Litigation under European Law 1. Public-Interest Litigation before the European Court of Justice

The possibilities for public-interest-group litigation before that Court remain limited. The Commission may bring infringement proceedings against a member State under Article 169 EC for failure to fulfill an obligation under the EC Treaty. 35 Under Article 170 EC another member State may bring action against a defaulting member State. In either case the procedure starts w i t h an administrative stage in which the Commission, having received observations on the alleged non-compliance from the member State (under Article 170 EC from both member States), reaches a reasoned opinion. Where a settlement is not possible the procedure continues to a judicial stage. A n action is brought by the Commission (under Article 170 EC by the complaining member State) to obtain a declaration that the defendant member State has failed to fulfill an obligation under the EC Treaty. 36 Apparently, public-interest groups are not allowed to bring actions in the European Court of Justice under these provisions. However, they may bring a member State's non-compliance with European law to the attention of either the Commission or another member State, which may lead to proceedings under Article 169 or 170 EC. The question is how much influence public-interest groups have on the initiation of proceedings under Articles 169 and 170 EC. The fact that the Commission is to an extent dependent on complaints from private parties for information about possible infringements 37 gives interest groups an opportunity to trigger proceedings under Article 169 EC. A recent example is the activities of British environmental groups in informing the Commission about pollution of drinking and bathing water in the United Kingdom, which led to action by the Commission against the United Kingdom. 38 This demonstrates that com35 This Article focuses on the provisions of the EC Treaty; possible differences i n the parallel provisions in the Euratom Treaty and the ECSC Treaty w i l l be mentioned, but cannot be discussed i n detail. 36

A corresponding remedy is provided by Articles 141 and 143 Euratom, while the ECSC Treaty in Article 88 grants the Commission, consistent w i t h its central role in the system of that Treaty, greater powers than under the EC Treaty. 37

A. Dashwood/R. White , Enforcement Actions under Articles 169 and 170 EEC, European Law Review, vol. 14, 1989, 388, 396; G Harlow , Towards a Theory of Access for the European Court of Justice, Yearbook of European Law, vol. 12, 1992, 213, 228. 38

Commission v . United Kingdom and Northern Ireland , Judgment of 14 July 1993, Journal of Environmental Law, vol. 6,1994,125 et seq.; Commission v. United Kingdom and Northern Ireland , 1992 ECR 6103. See also A. Geddes , Implementation of Community Environmental Law: Bathing Water, Journal of Environmental Law, vol. 6, 1994, 130; J. Cameron , Introduc-

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plaints made by interest groups are capable of influencing the Commission to act. Triggering Article 169 proceedings is an effective way of seeking compliance w i t h EC legislation. Because a high proportion of cases initiated under Article 169 EC are settled at the administrative stage before it becomes necessary to proceed to the next stage,39 it may be inferred that member States fulfill their obligations to avoid the fate of having their non-compliance with the EC Treaty established by the European Court of Justice.40 Although the duty of the Commission is to ensure the application of the EC Treaty, as laid down e.g. in Article 155 EC, 4 1 it has discretion to decide what steps should be taken for this purpose and within what time limits. 42 A n accepted reason for inactivity by the Commission is that an action before the Court of Justice w i l l have negative political consequences for the Community, or because a change in the law is expected.43 Thus public-interest groups may not be content to rely on leaving the matter to the Commission. Parallel problems exist in the Article 170 procedure. Public-interest groups may cooperate with other member States exhibiting an interest in initiating proceedings — the support of environmental interest groups by 'green* States is conceivable — but in many cases it may be impossible to find a State prepared to advocate a given public interest. In practice the member States have shown little enthusiasm to use t i o n of Group Action on the European Level: H o w Can Interest Groups Use EC-Law to Protect the Environment?, in: M. Führ/G. Roller (eds.), Participation and Litigation Rights of Environmental Associations in Europe, 1991, 146; Harlow (note 17), 331, 343 - 344.; Harlow/ Rawlings (note 31), 277 - 278. 39

A. Cassese/A. Clapham/J. Weiler , 1992 — What are our Rights?, in: A. Cassese/A. Clapham/J. Weiler (eds.), Human Rights and the European Community, vol. II: Methods of Protection, 1991, 68; Dashwood/White (note 37), 411; F. Snyder , The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques, Modern Law Review, vol. 56, 1993, 19, 30. For further details see C.-D. Ehlermann , Die Verfolgung von Vertragsverletzungen durch die Kommission, 1981; U. Ever ling, The Member States of the European U n i o n before their Court of Justice, European Law Review, vol. 9, 1984, 215. 40

Dashwood/White (note 37), 411; T. Hartley, The Foundations of the European Community, 3rd ed., 1994, 312. Compare Advocate General Roemer in Commission v. France, 1971 ECR 1003, 1026. 41 See also Commission v. Germany, 1995 ECR 1-2189, para. 21; Commission v. Germany, 1995 ECR 1-1097, para. 16; Commission v. France, 1974 ECR 359, para. 15. 42

Commission v. France (note 40), 1016; this case was brought under the corresponding Article 141 Euratom. Commission v. Belgium, 1984 ECR 1861, para. 12. Compare also A. C. Evans, The Enforcement Procedure of Article 169 EEC: Commission Discretion, European Law Review, vol. 4, 1979, 442; L. Krämer, Public Interest Litigation in Environmental Matters before European Courts, Journal of Environmental Law, vol. 8, 1996, 1, 4. Dashwood/ White (note 37), 398 - 399; Harlow/Rawlings (note 31), 276. 43

24*

See Advocate General Roemer in Commission v. France (note 40), 1025.

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the right of action under Article 170 EC. The preferred approach seems to be to complain to the Commission and allow that body to take action. 44 Another route for judicial access is annulment under Article 173 EC. The Court of Justice reviews acts of the Community institutions and may under Article 174 EC declare illegal acts void. The second paragraph of Article 173 EC states that the Court has jurisdiction in actions brought by a member State, the Council or the Commission. It is implicit that for these privileged applicants no question of standing arises. Public-interest groups do not fall within that privileged category, but they may proceed under the fourth paragraph of Article 173 EC, which reads: A n y natural or legal person may . . . institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

'Direct concern' requires a link between the Community act and the applicant. If an act grants discretion to a third person, e.g. authorities of a member State, and makes the effect of the act dependent upon the exercise of these powers, the link between the act and the applicant is missing. Because this requirement of direct concern does not raise special problems for the standing of public-interest groups, it will not be considered in detail. The second requirement of 'individual concern' is of importance for the standing of public-interest groups. If the act is in the form of a decision, the Court of Justice has held that if the decision affects an at least partially closed group of persons in a distinct way, those persons will be 'individually concerned' and the decision may be annulled to the extent to which it applies to them. 45 While most cases before the Court of Justice dealing with standing of groups have concerned economic matters, there are a few cases also involving public interests. In CIDA v. Council the question under discussion was the degree of participation of economic and social categories in the Economic and Social Committee. The Court held that CIDA, which contested a decision of the Council appointing the members of the Committee, was not individually concerned. 46 In Bureau Europeen des Unions des Consummateurs (BEUC) v. Commission, 47 BEUC's claim to standing was based on the argument that consumer interests can be best expressed by a public-interest group. The Court held the action admissible on the traditional ground that a letter of the Commission refusing 44

Dashwood/White

(note 37), 409; Krämer (note 42), 4.

45

Toepfer v. Commission , 1965 ECR 405; Bock v. Commission , 1971 ECR 897; PiraikiPatraiki v. Commission , 1985 ECR 207; Comite Central d'Entreprise de la Societe Generale des Grandes Sources v. Commission , 1995 ECR 11-1216, paras. 30 et seq.; Comite Central d'Entreprise de la Societe Anonyme Vittel v. Commission , 1995 ECR 11-1250, paras. 40 et seq. 46

CIDA and Others v. Council , 1988 ECR 3531, para. 11.

47

Bureau Europeen des Unions des Consommateurs (BEUC) v. Commission , 1992 ECR 5709.

Litigation by Public-Interest Groups in European Law BEUC's participation in anti-dumping proceedings amounted to a decision by which BEUC was individually concerned, but proceeded to deny admissibility in all other matters. In Greenpeace v. Commission the applicants challenged a decision of the Commission to disperse financial assistance to Spain for two power stations in the Canary Islands. Although they asked the Court of Justice to abandon its narrow interpretation of locus standi, 48 the Court refused to do so. 49 In particular, the correspondence between Greenpeace and the Commission, and a meeting for informative reasons, were considered insufficient to give Greenpeace locus standi on the basis of participation in a previous stage of the proceedings. 50 Where the act is in the form of a regulation, but concerns a definite group, the Court's scrutiny of standing is not uniform. In some cases the Court makes a decision based on terminology, namely whether the act in question is a disguised decision or a true regulation. If it characterizes the act as a true regulation, it denies the standing of a group to challenge it, 5 1 whereas in case of a decision, it affirms the existence of individual concern without further discussion.52 There are other cases in which the Court passes over whether the measure is a regulation or decision and discusses the question of individual concern first; it thereby adopts the same schema as in the aforementioned case of decisions addressed to someone other than the applicant. 53 The test for establishing individual concern could, in theory, be less strict than the 'terminology test'. But, because of the Court's narrow interpretation of 'individual concern', the way is blocked for interest groups under Article 173 EC under either test. As a complement to Article 173 EC, a remedy for a wrongful failure to act is provided by Article 175 EC. The third paragraph of Article 175 EC parallels the fourth paragraph of Article 173 EC. Under this provision a person has standing to challenge an omission if it can be shown that the omitted act should have been addressed to him or her. Problems arise if the act should have been addressed to someone else 48

Greenpeace and Others v. Commission , 1995 ECR 11-2209, para. 32.

49

Id. , para. 60.

50

Idparas. 62 - 63. O n reforms of the Commission's decision-making and its judicial control see Krämer (note 42), 7 et seq. 51

Compagnie Francaise Commerciale et Financiere v. Commission , 1970 ECR 221; KSH v. Council and Commission , 1977 ECR 797; Beauport v. Council and Commission , 1979 ECR 17. 52 53

International Fruit Company v. Commission , 1971 ECR 411.

Agricola Commerciale Olio v. Commission , 1984 ECR 3881; Sofrimport v. Commission , 1990 ECR 1-2477; Weddel v. Commission, 1990 ECR 1-3847. For a critique of this uncertainty see Hartley (note 40), 368; P. van Dijk , Judicial Review of Governmental Action and the Requirement of an Interest to Sue, 1980, 295 et seq. Compare also M. Wegmann , Die Nichtigkeitsklage Privater gegen Normativakte der Europäischen Gemeinschaften, 1976; H. Rasmussen, Why is Article 173 Interpreted against Private Plaintiffs?, European Law Review, vol. 5, 1980, 112.

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or should not have been in the form of a decision. The Court's ruling indicates that if an act should have concerned the person directly and individually, that is sufficient to give the person standing under Article 175.54 Thus, the position of interest groups that wish to initiate an action for a wrongful failure under Article 175 EC is the same as under Article 173 EC, under which direct and individual concern must be demonstrated. Cases dealing with the protection of public interests also reach the European Court of Justice indirectly through preliminary references from the courts of member States under Article 177 EC. 55 This provision grants the Court jurisdiction over questions concerning the validity and interpretation of acts of the institutions of the Community, when a national court requests the Court to give a preliminary ruling. Much depends on what is feasible under Article 177 EC, because the persistently narrow interpretation of Articles 169 and 173 EC prevents litigation by public-interest groups. The initiation of the Article 177 procedure is contingent on whether the national legal system provides interest groups standing. The different national rules in procedural law cannot be presented in this Article, but are outlined below. 56 Another way to increase the protection of public interests before the European Court may be through the intervention procedure provided by Article 37 of the Protocol on the Statute of the Court of Justice.57 Paragraph 1 of Article 37 allows the intervention of member States and institutions of the Community, without further requirements, in any case before the Court. This paragraph does not include intervention by interest groups; they may, however, invoke Article 37 para. 2 of the Statute, which reads:

54

Case C-107/91, ENU v. Commission , 16 February 1993; this case was brought under the corresponding Article 148 Euratom. See also Advocate General de Lamothe i n Mackprang v. Commission , 1971 ECR 797, 807 - 808.; T. Bourgoigne/D. Trubek , Consumer Law, Common Markets and Federalism in Europe and the United States, in: M. Cappelletti/M. Seccombe/J. Weiler (eds.), Integration through Law, Europe and the American Federal Experience, vol. 3, 1987,197 - 198; H.-W. Daig , Nichtigkeits- und Untätigkeitsklagen i m Recht der Europäischen Gemeinschaften, 1985, 238 et seq. For a stricter view see L. Krämer , Participation of Environmental Organisations in the Activities of the EEC, in: Führ/Roller (note 38), 134; D. Ehlers, Die Klagebefugnis nach deutschem, europäischem Gemeinschafts- und U.S.-amerikanischem Recht, Verwaltungsarchiv, vol. 84, 1993, 139, 151, 155. 55 For a detailed analysis see C. Harding , The Impact of Article 177 of the EEC Treaty on the Review of Community Action, Yearbook of European Law, vol. 1, 1981, 93; J. Weiler, The European Court, National Courts and References for Preliminary Rulings — The Paradox of Success: A Revisionist View of Article 177 EEC, in: H.G. Schermers et al. (eds.), Article 177 EEC: Experiences and Problems, 1987. 56 57

See Part I I section 2.

Further details are regulated by Article 93 of the Rules of Procedure of the Court, Official Journal Eur. Comm., No. L 176/7, 1991.

Litigation by Public-Interest Groups in European Law [T]he same right [of intervention] shall be open to any other person establishing an interest in the result of any case submitted to the C o u r t . . . .

The Court of Justice acknowledges that interest groups have an 'interest' in a case in which they have triggered the judicial proceedings or been involved at a preparatorystage. In a case brought by Italian sugar producers, the Italian consumer organization Unione Nazionale Consumatori was allowed to intervene on the basis that the competition rules not only ensure that the Common Market operates, but also that it benefits consumers; the extent of the intervention was, however, limited to the extent to which the Commission's decision related to the effects of the restrictive practice in Italy. 58 In the Ford case the European consumer organization Bureau Europeen des Unions des Consommateurs (BEUC) was admitted as an intervenor because of its complaints to the Commission, which had led to the initiation of the proceedings.59 In A. M. & S. Europe Ltd. v. Commission 60 the applicant sought the annulment of a Commission decision requiring it to disclose documents. The Court turned for advice to the Consultative Committee of the Bars and Law Societies of the European Committees (CCBE). The CCBE then intervened in the proceedings on the basis that the Court's decision would affect the enforcement of the rules of professional conduct, which the Court held admissible. It has been said that the intervention procedure is the best way to increase representation of interest groups. 61 The main arguments are that intervention is less costly, that it would not lead to overburdening the Court, and that other courts, e.g. the European Court of Human Rights, which have freely allowed intervention, serve as examples.62 Unfortunately there are obstacles to intervention by public-interest groups. Although the 'interest' in the case seems to have been broadly construed, it must be linked to the precise subject matter of the dispute. If the 'interest' of public-interest groups in a case is moral or abstract, intervention to promote public interests may be excluded.63 Also, Article 37 para. 2 of the Statute of the Court does not give interest groups a right to litigate, but merely a right to intervene, which means they must find a plaintiff with standing willing to litigate, which may be difficult. Above all, taking the route of intervention to represent public interests before the Court of

58

1975 ECR 1663, paras. 7 - 8.

59

Order of the President of the Court of 1 December 1982 in Ford of Europe Incorporated and Ford Werke Aktiengesellschaft v. Commission , 1984 ECR 1129, 1137. 60

AM. & S. Europe Ltd. v. Commission , 1982 ECR 1575.

61

Harlow (note 37), 247.

62 63

106.

Id . See also K. Lasok y The European Court of Justice: Practice and Procedure, 1984, 105 -

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Justice may obscure the public interests. The plaintiffs interests are at the fore; the representation of public interests are of minor importance. If direct remedies against a measure are blocked — because of the restrictive rules of locus standi , or a lack of willingness of the Commission to start proceedings under Article 169 EC — interest groups may initiate an action for damages under Articles 178 and 215 para. 2 EC. This action can be brought for damages caused either by European institutions or by their agents in the performance of their duties. It has been uncertain for some time whether an action for damages may be brought before the Court without direct damages having been sought previously. The Court first expressed the view that the action for damages is distinct from the actions for annulment, inactivity and enforcement of Community law, both by reason of its object and the grounds upon which it can be brought. 64 The Court then changed its mind and dismissed a case in which an action for damages arose out of an allegedly unlawful act, because it had not been annulled before. 65 In the case Lütticke v. Commission , the Court reverted to its original view, which it has since reiterated in a series of cases.66 It should be noted that actions for damages under Articles 178 and 215 para. 2 EC entail the possibility that the Court implicitly holds a Community act illegal, thus preventing its application, or ensuring its replacement in the future, even if it rejects financial compensation. It is difficult to bring an action for public interests damages. When the Court was asked whether an agricultural cooperative and an agricultural trade association could enforce a collective right to compensation, it did not reply directly, but held the associations were entitled to bring actions for damages to the extent that the action was based on the loss suffered by the associations themselves.67 This ruling of the Court is not encouraging for interest groups seeking to litigate beyond their own grievances. But it is worth noting that the Court of Justice did not deny admissibility on the ground that the action sought to enforce a collective right, as the Commission had argued it should have done.

64

Societe Commerciale Antoine Vloeberghs SA v. High Authority, 1961 ECR 197.

65

Plaumann v. Commission , 1963 ECR 95.

66

Lütticke v. Commission , 1971 ECR 325; Zuckerfabrik Schöppenstedt v. Council , 1971 ECR 975; Compagnie d yApprovisionnement de Transport et de Credit SA and Grands Moulins de Paris SA v. Commission , 1972 ECR 391; Merkur Aussenhandels GmbH v. Commission , 1973 ECR 1055; Holtz and Willemsen v. Council , 1974 ECR 1 - 1 2 ; Holtz and Willemsen v. Council and Commission , 1974 ECR 697, 19. 67

Societe d'Initiatives et de Cooperation Agricoles v. Commission , 1984 ECR 2589, 2597. See also GAARMv. Commission , 1984 ECR 4295, 4303 - 4304.

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2. Public Interests before the National Courts of Member States As the implementation of European law is still primarily undertaken by member States, interest groups often go to national courts for public interests protected by European law. Once it is accepted that Community law has direct effect in member States and prevails over national law, the way is open to bring proceedings in national courts on Community matters. However, when public-interest groups start proceedings before national courts under Community law, the question arises which rules — national or Community — govern standing. W i t h regard to the national courts applying European law, the substantive and procedural aspects must be distinguished. Although member States must comply w i t h European law, the procedural effect of European law must be distinguished from the substantive effect. The European Court of Justice has stated in numerous cases that the admissibility of an action before a national court may only be based on national procedural law. It has qualified this principle: first, the procedural rules must not be less favorable than those relating to similar domestic actions; second, the national rules of procedure must not hinder the enforcement of rights under European law. 68 Protection before national administrative courts is different in different member States. The reason lies in differing historical perceptions of the administrative judiciary. German administrative courts were established to protect the individual against unlawful acts of the State; a violation of an individual right is generally necessary to challenge an administrative measure. The French administrative judiciary is meant to supervise the functioning of administration; the individual has the right to initiate the mechanism of control. 69 However, too rigid a distinction should not be

68 Rewe v. Landwirtschaftskammer Saarland , 1976 ECR 1989, para. 15; Comet v. Produktschap voor Siergewassen , 1976 ECR 2045, para. 13; Rewe v. Hauptzollamt Kiel , 1981 ECR 1805, para. 44; Deutsche Milchkontor v. Germany , 1983 ECR 2633, para. 23; R. v. Secretary of State for Transport , ex parte Factortame and Others , 1990 ECR 1-2433, paras. 18 et seq. See also Ferwerda v. Produktschap vor Vee en Vlees , 1980 ECR 617; Hans I/S fust v. Ministry for Fiscal Affairs, 1980 ECR 501; Amministratione delle Finanze dello Stato v. Denkavit Italiana, 1980 ECR 1205; Amministratione delle Finanze dello Stato v. Ariete , 1980 ECR 2545; Amministratione delle Finanze dello Stato v. Mirevo , 1980 ECR 2559; Amministratione delle Finanze dello Stato v. San Giorgio , 1983 ECR 3595. 69

For more details see M. Fromont , Rechtsschutz gegenüber der Verwaltung in Deutschland, Frankreich und den Europäischen Gemeinschaften, 1967, 191 et seq.; P. Becker, Der Einfluß des französischen Verwaltungsrechts auf den Rechtsschutz in den Europäischen Gemeinschaften, 1963.

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drawn. There are exceptions in German procedural law 7 0 that allow groups to bring actions, and limitations in French law. 71 A number of member States are beginning to take a more liberal approach towards locus standi. 71 The differences between national rules of procedure are inconsistent with uniform application of laws, which the European Court has held to be a "fundamental requirement of the Community legal order." 73 Harmonization of national procedural rules, though desirable, is almost inconceivable in practice. The field of procedural law is based on tradition. The difficulties in the harmonization of procedural law explain the unsuccessful attempts to harmonize civil procedure law. 7 4 Moreover, it is open to debate whether a common European procedural system providing locus standi for interest groups is desirable. When the European Court draws a distinction between substantive and procedural rules and for the latter refers to the national legal system, this has validity. The citizens in the European Union are more familiar with their national systems of judicial remedies. The use of national legal remedies to enforce Community law may contribute to public acceptance of Community law. 75 Introducing European procedural rules may have a contrary effect, hindering the protection of rights before national courts. However, introducing procedural rules common to the member States may widen the possibilities for interest groups to bring actions by adding a cause of action in Community law, leading to higher protection for public interests. 76 70

E.g. i n the field of conservation of the landscape: Bremen (1979), Hessen (1980), Hamburg (1981), Berlin (1983) and Saarland (1987). 71

Compare T. Bizer/T. Ormond/U. Riedel, Die Verbandsklage i m Naturschutzrecht, 1990, 25 et seq.; Fromont (note 69), 209 et seq. 72

See P. Kliky Group Actions in Civil Lawsuits: The New Law in the Netherlands, European Environmental Law Review, vol. 5, 1995, 14. Compare also C. Munro, Standing i n j u d i cial Review, Scots Law Times, Issue 30, 29 September 1995 on English and Scottish law. 73

Foto-Frost,

1987 ECR 4199, para. 25.

74

See M. Storme , Approximation of Judiciary Law in the European Union: Study on the Approximation of Laws and Rules of the Member States concerning Certain Aspects of the Procedure for Civil Litigation, 1994. For a more optimistic view see W. v. Gerven , Bridging the Gap between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies, Common Market Law Review, vol. 32, 1995, 679, 685, 690 - 691. 75 See J. Bridge , Procedural Aspects of the Enforcement of European Community Law through the Legal Systems of the Member States, European Law Review, vol. 9, 1984, 28, 31; A. Ward , Effective Sanctions in EC Law: A Moving Boundary in the Division of Competence, European Law Journal, vol. 1, 1995, 205. 76

Compare also D. Curtin/K. Mortelmanns , Application and Enforcement of Community Law by the Member States: Actors in Search of a Third Generation Script, in: H. G. Schermers/D. Curtin/T. Henkels (eds.), Institutional Dynamics of European Integration, 1994, 433 - 434. Critical J. Weiler , Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration, Journal of

Litigation by Public-Interest Groups in European Law A different, more practical solution for public-interest groups is 'forum shopping'. If a public-interest group cannot gain standing in its own country, it may resort to a court of another member State. Functional networking between interest groups based in different member States may keep the financial and organizational efforts of such activities low. The Court of Justice held in a case of transnational environmental damage that "the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it." 7 7 As public-interest groups become sophisticated, they will familiarize themselves w i t h the most accessible jurisdictions. Building a network at the European level w i l l enhance their effectiveness before national courts. 78 Besides national procedural rules, Community law, too, may provide standing for public-interest groups before national courts. In contrast to the United States, where statutes provide judicial remedies for the protection of public interests, 79 the European Union does not have legislation expressly requiring judicial protection of public interests. The only European legislation that expressly and without limitations states that judicial protection of public interests must be provided is the amended proposal for a Directive on Civil Liability for Damage to the Environment Caused by Waste.80 It gives environmental interest groups the right to bring an action to enforce the directive. Article 4 para. 3 of the proposed directive reads: Common interest groups or associations, which have as their object the protection of nature and the environment, shall have the right either to seek any remedy under paragraph 1 (b) or to join in legal proceedings that have already been brought. The conditions under which the interest groups or associations defined in the previous sentence may bring an action before the competent authorities shall be laid down by national legislation.

This proposal has not been adopted. Directive 90/313 on the Freedom of Access to Information on the Environment at first glance is another example for granting public-interest groups locus standi. 81 Article 3 gives any natural or legal person a right to environmental information without that person having to prove an interest, and Article 4 provides for judicial review if this person is refused the information or has

Common Market Studies, vol. 31, 1993, 417, 442 - 443. 77

Handelskwekerij

G. /. Bier v. Mines de Potasses d\Alsace, 1976 ECR 1735, 1746 - 1747.

78

P. Sands, European Community Environmental Law: Legislation, the European Court of Justice and Common Interest Groups, Modern Law Review, vol. 53, 1990, 685, 695; Cameron (note 38), especially 147 - 148. 79

See notes 9 - 1 0 .

80

Official Journal Eur. Comm., No. C 192/6, 1991.

81

Council Directive 90/313, Official Journal Eur. Comm., No. L 158/56, 1990.

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been inadequately answered by a public authority. However, it contains the clause that judicial review must be provided "in accordance with the relevant national system." Even if the obligation of member States to provide judicial protection of public interests is not expressly stated in European legislation, European law may require national rules of procedure to make judicial protection of public interests by publicinterest groups available, as a consequence of European legislation substantively protecting public interests. It has been argued that if a Community measure is designed to protect individuals or associations or their rights, then any natural or legal person affected by the failure of an authority to enforce such rights has a right of action that the national courts must uphold. 82 This right of judicial review has been derived from the direct effect of Community law. 83 According to authors supporting this view the direct effect of a Community provision means not only that individuals may rely on it before national courts, but it also entails that the member States are bound to provide the remedies and procedures necessary for its enforcement. 84 This line of argumentation can be further developed by considering the rulings of the European Court. The Court was hesitant to develop uniform standards in pro82 A. F. Brenninkmeijer, The Influence of Court of Justice Case Law on the Procedural Law of the Member States, in:/. A. E. Vervaele (ed.), Administrative Law Application and Enforcement of Community Law in the Netherlands, 1994, 109; L. Krämer , The Implementation of Community Environmental Directives within Member States: Some Implications of the Direct Effect Doctrine, Journal of Environmental Law, vol. 3, 1991, 39, 52; J. H. Jans, Legal Protection in European Environmental Law, European Environmental Law Review, vol. 2, 1993, 151, 157 et seq.; Curtin/Mortelmanns (note 76), 447 - 448, 458; A. Geddes , Locus Standi and EEC Environmental Measures, Journal of Environmental Law, vol. 4, 1992, 29, 37. Some of these authors claim this right of action should be limited to Community laws protecting health and welfare and is not meant as a general right to enforce Community measures. See, e.g., Krämer (this note), 53; Geddes (this note), 38. 83

Curtin/Mortelmanns (note 76), 450 et seq.; Brenninkmeijer (note 82), 109 et seq. Compare also J. Goppel, Rights, Duties and the End of Marshall , Modern Law Review, vol. 57, 1994, 859. See also v. Gerven (note 74), 692 - 693; Ward (note 75), 206 et seq. 84

See also Snyder (note 39), 45 et seq.; C. Plaza Martin , Furthering the Effectiveness of EC Directives and the Judicial Protection of Individual Rights Thereunder, International and Comparative Law Quarterly, vol. 43,1994, 26, 33 et seq.; G. De Burca , Giving Effect to European Community Directives, Modern Law Review, vol. 55, 1992, 215, 235 et seq.; G. Winter , Rechtsschutz gegen Behörden, die Umweltrichtlinien der EG nicht beachten, Natur und Recht, 1991, 453, 455; J. Steiner , From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law, European Law Review, vol. 18, 1993, 3; P.J. Kapteyn , Court of Justice: The Influence of European Law on Domestic Administrative (Procedural) Law: O n the Way to a European Administrative (Procedural) Law, in: Vervaele (note 82), 203; P. P. Craig , Once upon a Time in the West: Direct Effect and the Federalization of EEC Law, Oxford Journal of Legal Studies, vol. 12, 1992, 453.

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cedural law and limited its requirements for national law to the basics that there must be no discrimination and that the exercise of the rights must be safeguarded. 85 But faced w i t h differences in the application of Community law, it moved to a Community bias when it adjudicated disputes originating from the tension between the right to effective legal protection under Community law and that this effective legal protection is provided by the national court on the basis of national procedural law. It has created a body of decisions in which the requirement of effective judicial protection is well established.86 According to the Court it follows from the principle of cooperation laid down in Article 5 EC that it is for national courts to ensure the protection that persons derive from the direct effect of Community law. 87 These rulings demonstrate that national courts are performing an important Community role in procedural matters. 88 They allow and oblige national judges to set aside domestic procedural rules that make the assertion of Community law extremely difficult. 89 Thus where public interests are protected by European law, national courts must ensure that those rules take effect. There are numerous European laws protecting public interests. Article 6 of Directive 76/207 — which has been much litigated — provides that persons that consider themselves wronged by a failure to apply to them the principle of equal treatment of men and women must enjoy an effective remedy before the national courts. 90 Further examples are found in many environmental directives to protect health and the environment 91 and in di85

See note 68 .

86

See Johnston v. Chief Constable of the Royal Ulster Constabulary , 1986 ECR 1651; Amministrazione delle finanze dello Stato v. Simmenthal SpA, 1978 ECR 629; UNECTEFv. Hey lens, 1987 ECR V-4097; R. v. Secretary of State for Transport (note 68); Zuckerfabrik Süderdithmarschen AG v. Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v. Hauptzollamt Paderborn, 1991 ECR 1-415; Verholen and Others v. Sociale Verzekeringsbank, 1991 ECR 1-3757; Andrea Francovich and Others v. Italian Republic , 1991 ECR 1-5357; Oleificio Borelli SpA v. Commission, 1992 ECR 1-6313. 87

R. v. Secretary of State for Transport (note 68), para. 19; Johnston (note 86), paras. 17 et seq.; Simmenthal SpA (note 86), paras. 16, 22; UNECTEF(note 86), para. 14; Francovich (note 86), paras. 32 - 33. 88

Curtin/Mortelmanns (note 76), 425 - 426. Compare J. Temple Lang, Community Constitutional Law: Article 5 EEC Treaty, Common Market Law Review, vol. 27, 1990, 645, 650 et seq.; M. Zuleeg, Die Rolle der rechtsprechenden Gewalt in der europäischen Integration, Juristenzeitung, vol. 49, 1994, 1. 89

Compare also R. Caranta, Judicial Protection against Member States: A New Jus Commune Takes Shape, Common Market Law Review, vol. 32,1995,703, especially 706; P. Duffy , Damages against the State: A New Remedy for Failure to Implement Community Obligations, European Law Review, vol. 17, 1992, 133, 137; v. Gerven, (note 74), 685, 692 - 693. 90 91

Council Directive 76/207, Official Journal Eur. Comm., No. L 39/40, 1976.

See, e.g., Directive 80/778 on the maximum concentration of undesirable substances in drinking water, Official Journal Eur. Comm., No. L 229/11 1980; Directive 76/160 on bath-

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rectives giving to private persons (natural or legal) rights of participation in an administrative process. 92 Ensuring their effective judicial protection may allow or even oblige national courts to grant public-interest groups locus standi , in cases in which it is not provided by national procedural rules. 93 I I I . The Potential for Public-Interest-Group Litigation in European Law 1. Limits to Protection of Public Interests before the European Court ofJustice There are concerns arguing against liberalized standing. First, standing may prevent the European Court from being overburdened. Second, the political process may be disturbed through haphazard judicial interference. Third, unless the plaintiff's legal position is affected by the court's judgment, the plaintiff cannot be relied upon to present a serious, thorough and forceful argument. While the last is an assertion neither persuasive in the abstract nor supported by factual evidence, the first two are worth noticing. Overloading the Court of Justice is an objection to widening locus standi . The rise in the Court's workload is recognized as an impediment to efficiency. 94 The increase in cases submitted to the Court of Justice has not been halted by the creation of the Court of First Instance in 1989. The delays undermine the principle of effective remedies. The large number of cases may also create pressure on judges and negatively affect the quality of decisions of the Court. And, because the rulings of the Court direct judicial evolution within the European Union in a manner similar to the jurisprudence of courts such as the Supreme Court of the United States, the House of Lords or the Supreme Constitutional Courts of Germany and Italy, the increasing caseload may diminish the ability of legal actors within the European

ing water, Official Journal Eur. Comm., No. L 31/1, 1976; Directive 80/779 on maximum concentration of sulphur dioxide i n air, Official Journal Eur. Comm., No. L 229/80, 1980; Directive 82/884 on maximum concentration of lead in air, Official Journal Eur. Comm., No. L 378/15,1982; Directive 75/442 on waste, Official Journal Eur. Comm., N o . L 194/39, 1975; Directive 78/319 an toxic and dangerous waste, Official Journal Eur. Comm., N o . L 84/43,1978; Euratom Directive 80/836 on ionizing radiation, Official Journal Eur. Comm., N o . L 246/1, 1980. 92

The right to information pursuant to e.g. Article 8 of Directive 82/501 or to Article 9 of Directive 84/360; the right to be heard concerning environmental projects pursuant to Directive 85/337, Official Journal Eur. Comm., No. L 175/40, 1985. 93

For the impact on national laws outside Community law see v. Gerven (note 74), 700 et seq.; Caranta (note 89), 717 - 718. 94

Compare Weiler (note 76), 441 - 442; T. Kennedy , First Steps towards a European Certiorari ?, European Law Review, vol. 18, 1993, 121, 126 - 127.

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Union to follow the Court's judgments. The Court's authority in the Community may be weakened. Granting public-interest groups locus standi may force the Court of Justice to decide on the validity of public interests, which is likely to politicize its judgments. This may or may not be desirable. According to what is known as the democracy argument, political decisions should be made by democratic organs whose members can be replaced. Judicial intervention in this process is said to be unacceptable because judges are not democratically accountable.95 It may be argued, however, that judicial proceedings are not less democratic than the political decision-making process. Judicial proceedings are participatory, because their content is determined by those directly involved in, and hence informed on, the interest at stake.96 Also, the promotion of European integration by the Court has been criticized as catastrophic political intervention. 97 However, one can argue that widening locus standi will not destroy the Court's legitimacy. Neither statement is unsound prima facie. Without scrutiny of the Court's case law combined with a political analysis of the reactions to its decisions, measuring the legitimacy of the Court is no more than a subjective evaluation.98 These problems of judicial interference in the political process seem to be concerned more with the content of the Court's decisions than w i t h standing, and are open to debate.99

95 H. Rasmussen, O n Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking, 1986, 42 et seq. See also R. Dworkin , Political Judges and the Rule of Law, in: R. Dworkin (ed.), A Matter of Principle, 1986, 18; Kötz (note 10), 115; L. Friedman , Claims, Disputes, Conflicts and the Modern Welfare State, in: M. Cappelletti (note 10), 251, 263-264. 96

Compare M. Cappelletti , The Law-Making Power of the Judge and its Limits, Monash University Law Review, vol. 8, 1981, 16. 97

Rasmussen (note 95), 30 - 31. See also the comments thereon by M. Shapiro , Book Review: O n Law and Policy in the European Court of Justice: A Comparative Study i n Judicial Policymaking by H. Rasmussen, American Journal of International Law, vol. 81, 1987, 1007; J. Weiler , The Court of Justice on Trial, Review Essay: O n Law and Policy in the European Court of Justice by H. Rasmussen, Common Market Law Review, vol. 24, 1987, 555; M. Cappelletti, Is the European Court of Justice 'Running Wild'?, European Law Review, vol. 12, 1987, 3. 98 Compare also Shapiro (note 97), 1010; Cappelletti (note 97), 12 -13; Weiler (note 97), 583 584; J. Weiler , The Community System: The Dual Character of Supranationalism, Yearbook of European Law, vol. I, 1981, 287, 302 et seq. 99 See, e.g., most recently Lord Howe of Aberavon , Euro-Justice: Yes or No?, European Law Review, vol. 21, 1996, 187; Takis Tridimas , The Court of Justice and Judicial Activism, European Law Review, vol. 21, 1996, 199.

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Heike Gading 2. Criteria for Granting Public-Interest Groups Locus Standi before the European Court of Justice

Reconciliation between the existing limits to liberalization of standing requirements and the growing need for judicial protection of public interests requires criteria for granting public-interest groups locus standi before the European Court of Justice. One reasonable criterion is participation in the law-making process when the proper application of the laws requires judicial control. The increasing involvement of public-interest groups in the law-making process within the European Union through lobbying has been acknowledged in European law. Provision for taking into account the work of interest groups in creating rules is made in Article 7 para. 3 of the Directive on the Adoption of a Standard for Satellite Broadcasting of Television Signals.100 Further examples are found in regulations on measures to implement directives not carried out. 1 0 1 The most illuminating example is Article 6 of the Regulation on a Community Eco-Label Award scheme, which requires that ( 1 ) . . . the Commission shall consult the principal interest groups who shall meet for this purpose w i t h i n a consultation forum. . . . (2) The forum should involve at least the Community-level representatives of the following interest groups: industry (including trade unions as appropriate); commerce (also including trade unions); consumer organizations; environmental organizations The participating interest groups should ensure appropriate representation . . . . 1 0 2

These examples make participation of interest groups in the law-making process obligatory, where public interests such as the protection of the environment, of consumer interests or of public health are concerned, and these examples show that where public interests are concerned, the protection of individual rights has its limits, and that instead a communitarian/fragmented movement has started. What has been accepted at the law-making stage cannot be denied at the enforcement stage. Interest groups that have been involved in law-making on the basis of expertise are of importance in enforcing the law. Another criterion is involvement in the preceding administrative process. The strict rulings of the European Court of Justice on locus standi involve exceptions in competition law, in which area the Court accepts standing for a plaintiff that has been granted and exercised rights of participation, information or other involve100

Council Directive 92/38, Official Journal Eur. Comm., No. L 137/17, 1992.

101

See, e.g., Article 5 para. 2 of the Commission Regulation implementing Directive 382/89 on health and animal-health problems affecting intra-community trade in heat-treated milk, Official Journal Eur. Comm., No. L 44/28, 1989; Article 5 para. 2 of the Commission Regulation 619/93 on improving the quality of milk in the Community, Official Journal Eur. Comm., N o . L 66/24, 1993. 102

Council Regulation 880/92, Official Journal Eur. Comm., No. L 99/1, 1992.

Litigation by Public-Interest Groups in European Law ment in the prior administrative process. 103 In proceedings under Articles 85 and 86 EC the Court has held that in the interest of a satisfactory administration of justice and of the proper application of Articles 85 and 86, natural and legal persons entitled to request the Commission to find an infringement of Article 85 and 86 can, if their request is not complied with, institute proceedings. 104 In Metro No. 2 participation at the administrative stage was sufficient for granting locus standi. The Commission had published an invitation to submit observations on a request brought by SABA to extend its selective distribution scheme, to which Metro had responded. When Metro later applied to the Court for annulment of the Commission's final decision over SABA's request, one might have thought that the Court would have held persons complaining against a decision of the Commission not addressed to them not directly and individually concerned. The Court ruled the complaint admissible, because the Commission had recognized Metro's interest in participating at the prior administrative stage.105 In the course of anti-dumping proceedings the Court held that every person has locus standi that was affected by investigations of the Commission. 106 The same has been held by the Court in a case in which a complainant had been involved in the entire procedure under the anti-dumping regulation. 107 In FEDIOL v. Commission the Court concluded that complainants may bring proceedings if the Commission has not properly considered their complaint under a specific right of an anti-dumping regulation. 108 The Court has also adopted a more liberal approach to standing in cases dealing with State aid. In COFAZv. Commission , the Commission initiated proceedings un103

E.g. FEDIOL v. Commission, 1983 ECR, 2913, 2935. See also Ehlers (note 54); Bourgoigne/Trubek (note 54); T. Danwitz , Die Garantie effektiven Rechtsschutzes i m Recht der Europäischen Gemeinschaft, Neue Juristische Wochenzeitschrift, 1993, 1108, 1110; R. Greaves , Locus Standi under Article 173 EEC when Seeking Annulment of a Regulation, European Law Review, vol. 11, 1986, 119; F. Amtenbrink , Public Interest before European Courts, European Business Law Review, 1996, 35, 37 et seq. 104

Metro SB-Großmärkte GmbH & Co. KG v. Commission (Metro 1), 1977 ECR 1875, para. 13. See also Demo-Studio Schmidt v. Commission , 1983 ECR 3045; Metro SB-Großmärkte GmbH & Co. KG v. Commission (Metro 2), 1986 ECR 3021, paras. 22-23. Compare J. Dinnage , Locus Standi and Article 173 EEC: The Effect of Metro SB Großmärkte v. Commission , European Law Review, vol. 4, 1979, 15. 105

Metro 2 (note 104), paras 22 - 23. See also Harlow , (note 37), 239 - 240.

106

Allied Corporation v. Commission , 1984 ECR 1005, para. 12. See also Toyo v. Council , 1987 ECR 1809. See further J. Schwarze, Rechtsschutz gegen Anti-Dumpingmaßnahmen der EG — zu Verfahren und richterlicher Kontrolle auf dem Gebiet der Außenwirtschaftsverwaltung der Gemeinschaft, Europarecht, 1986, 217, 277 et seq. 107

Timex v. Council, 1985 ECR 849, para. 16.

108

FEDIOL (note 103), paras. 28 et seq.

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der Article 93 para. 2 EC to determine whether Dutch firms were receiving aid from the Dutch government. COFAZ and other French firms played some part in the proceedings. When the Commission made a decision, addressed to the Dutch government, concluding that no aid was involved, COFAZ and the other French firms applied to the Court. The Court held the application admissible and stated that firms playing a part in the procedure have locus standi. 109 These cases have not been extended by the Court to other Community law. Competition law has peculiarities such as the broad enforcement powers of the Commission, which in other fields is mostly left to the member States. But there are good reasons to argue that the widening of locus standi in competition law should be extended to other Community law. The reasons of the Court for widening standing in competition cases are not based on features of competition law. Decisive is the plaintiffs' involvement in the prior administrative process other than being addressees of a decision. Article 6 para. 2 of the Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment serves as an example. It provides that Member States shall ensure t h a t . . . the public concerned is given the opportunity to express an opinion before the project is initiated. 110

The 'public concerned' may include an indeterminate number of people. If the number of people is so large as to render direct representation impossible, then the 'public concerned' may be represented by a public-interest group. 111 Participation in the administrative process and participation in the law-making process as criteria for granting locus standi identify the potential litigants, thus helping avoid an unreasonable increase in the workload of the Court of Justice. Furthermore, the expertise of public-interest groups that led to participation in the previous stage w i l l be made available to the Court as well. Conclusion The promotion of Community public interests at the rule-making stage by private groups is an accepted fact. Unfortunately, public-interest groups play only a limited role in the enforcement of Community acts by the Court because of the ad-

109

1986 ECR 391, paras. 24 et seq. See also Kwekerij Gebroeders Van der Kooy v. Commission, 1988 ECR 219, paras. 21-22.; William Cook v. Commission , Common Market Law Review, vol. 3, 1993, 206, paras. 25 - 26. 110 111

Council Directive 85/337, Official Journal Eur. Comm., No. L 175/40, 1985.

See I. Koppen/K.-H. Ladeur , Environmental Rights, in: Cassese/Clapham/Weiler (note 39), vol. DI: Substantive Law, 1991, 37, 39 - 40; L. Krämer, Grundrecht auf Umwelt und Gemeinschaftsrecht, Europäische Grundrechtezeitschrift, vol. 15, 1990, 285, 293.

Litigation by Public-Interest Groups in European Law missibility threshold. Discussion of litigation by public-interest groups in Europe must go beyond warnings about excessive judicial activity. Participation of publicinterest groups at the rule-making or administrative stages are possible criteria for granting these groups locus standi before the European Court of Justice.

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Ecological Catastrophes in light of the Rio Agreements By Alberto Soria Jimenez*

Introduction This study considers how the Rio agreements,1 in their formulation of principles and agendas in the areas of the environment and development, address the area of ecological catastrophes. After the relevance of the Rio agreements for ecological catastrophes is established, the approaches as laid down in those agreements w i l l be further discussed. Three principles in particular will be examined in this paper, in order to illustrate that the idea of ecological catastrophe may be found in some of the most characteristic provisions of the Rio agreements. These three important areas are: the precautionary approach, the duties of States to notify and assist other States in ecological catastrophes and the duty of States to notify and consult w i t h potentially affected States on activities that may have catastrophic transboundary environmental effects. In general, the focus will be on the texts as they stand and not on the process by which they were created. The broad precautionary approach has different specific meanings in various international instruments. It may be understood not only in a moderate sense, as in the Rio Declaration on Environment and Development (Rio Declaration), but also in another sense with more stringent consequences, as in the World Charter for Nature (World Charter) adopted by United Nations General Assembly Resolution 37/7 of 28 October 1982. In the sense proposed by Principle 11 of the World Charter, 2 the precautionary approach does not call for any preventive measures. How-

* The Author thanks Fundacion Caja de Madrid for providing grant funds. 1

This term includes the five texts adopted at the United Nations Conference on Environment and Development held in Rio from 3 to 14 June 1992 (Rio Conference): Rio Declaration on Environment and Development, Framework Convention on Climate Change, Convention on Biological Diversity, Agenda 21 and Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests. A l l these instruments and commentary on them may be found in: S. P. Johnson, The Earth Summit: The United Nations Conference on Environment and Development, 1993. 2

Activities which have an impact on nature shall be controlled, and the best available technologies that minimize significant risks to nature or other adverse effects shall be

Ecological Catastrophes in light of the R io A greements ever, Principle 11 includes an explicit ban: activities that are likely to cause catastrophic damage to nature and those whose potential catastrophic effects for nature are fully known should be avoided. The move from the call for a ban to a more realistic call for corrective measures should not be surprising. In 1982, discussions centered mainly on specific industrial activities whose effects were regarded as ecologically catastrophic (e.g. pollution of water, air and soil resulting from ships and industrial activities, construction of dams under certain conditions, transport of oil in oil tankers etc.). Today the most serious problems involve global environmental catastrophes such as global warming (i.e. climate change or increasing temperatures on the surface of the earth and in the lower atmosphere), acid rain, destruction of the tropical rain forest and the depletion of the stratospheric ozone layer by commercially produced chemicals (e.g. chlorofluorocarbons, halons, carbon tetrachloride, methyl chloroform and others). These problems derive from complex models of energy consumption, world industry, land use, finance, trade and population. These basic patterns of contemporary social structure cannot be eliminated, altered quickly or even forbidden for a brief period. Thus, instead of proposing the abolition of the employment of coal and oil as energy sources, as Principle 11 of the World Charter might suggest, the Rio Declaration adopts the more realistic approach of continuing with the employment of both energy sources, while imposing on States the duty to adopt measures to prevent environmental catastrophes.3 We can affirm that: [T]he precautionary principle says that any error in risk calculation should be to the advantage of the environment and that definite economic costs must, therefore, be incurred to avert uncertain environmental harms. 4

I n circumstances in which there is a threat of catastrophic environmental damage, States are not to postpone measures to prevent environmental catastrophes solely because of a lack of full scientific certainty. 5 used; in particular: (a) Activities which are likely to cause irreversible damage to nature shall be avoided; (b) Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed; (c) Activities which may disturb nature shall be preceded by assessment of their consequences, and environmental impact studies of development projects shall be conducted sufficiently in advance, and if they are to be undertaken, such activities shall be planned and carried out so as to minimize potential adverse effects. 3

T. Scovazzi y Sul principio precauzionale nel diritto internazionale delFambiente, Rivista di Diritto Internazionale (RDI), 1992, 702. 4

D. Bodansky , Scientific Uncertainty and the Precautionary Principle, Environment, vol. 33, 1991, 4, 5. 5

A n essential aspect of a precautionary environmental policy is the taking of remedial

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The second area includes the duties of States to notify and assist other States in ecological disasters or other emergencies that are clearly linked to the concept of ecological catastrophe. Finally, the third important area includes the duty of States to provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant transboundary environmental adverse effect (Rio Declaration), or that are likely to significantly affect adversely biological diversity (Convention on Biological Diversity). It is obvious that every State activity that may have catastrophic environmental effects (e.g. transboundary waste disposal)6 is included in both Rio agreements. It is also obvious that State activities that may have catastrophic environmental effects are the ones most likely to generate the need for prior and timely notification and relevant information to potentially affected States. I. Ecological Catastrophes and the Precautionary Approach 1. Inclusion in Four of the Rio Agreements The precautionary principle (the word used in the Rio texts is 'approach* but the difference is not one of substance7) is not included in the Non-Legally-Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests. 8 The acceptance action even i n the absence of provable environmental harm, simply upon evidence of a significant risk thereof. In legal terms it may be more difficult to prove that something is not going to happen than proving what has happened. R. V. Makaramba , A Commentary on the Rio-Declaration on Environment and Development, Lesotho Law Journal, vol. 8, 1992, 105. "The precautionary principle . . . lowers the burden of proof required for taking action against proposed or existing activities that may have serious long-term harmful consequences." E. B. Weiss , International Environmental Law: Contemporary Issues and the Emergence of a New World Order, Georgetown Law Journal, vol. 81, 1993, 675, 690. 6 The next example is mentioned by D. Freestone , The Road from Rio: International Environmental Law after the Earth Summit, Journal of Environmental Law, vol. 6, no. 2, 1994, 199: " D D T , long banned in the U.S., was recently found in coral tissue i n the Florida Keys. Scientists think that it may have come from West Africa where its use in aerial dusting had resulted in it being carried across the Atlantic and deposited in precipitation in N o r t h America." 7 The negotiators rejected suggestions by some European countries to promote a 'precautionary principle'. 8 Although this environmental approach suggests many implementation difficulties, it w i l l inevitably guide any negotiations concerning a forestry convention in order to prevent environmental catastrophes. The negotiations would have to take into account that the precau-

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of the precautionary principle in four of the Rio agreements weakens the position of those that claim that the lack of full scientific certainty is an argument to w i n time or to refuse every initiative. I n terms of the Rio agreements, the broad precautionary approach implies that action should be taken in cases in which there is a threat of serious or irreversible damage (Rio Declaration and Framework Convention on Climate Change) or of significant reduction or loss of biological diversity (Convention on Biological Diversity). Ecological catastrophes seem to be inherently involved in both statements, especially when they refer to the necessary adoption of preventive or corrective measures in order to avoid irreversible damage or significant loss of biological diversity. Irreversible damage seems to be even more stringent, as it alludes to the absolute impossibility of restoring the previous situation (e.g. the hole in the ozone layer protecting the planetary environment over Antarctica, already confirmed and directly linked to chlorofluorocarbons). a) Provision 15 of the Rio Declaration In order to protect the environment, the precautionary approach is to be broadly applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. 9 tionary approach "has the effect of requiring that, if there is a possibility that deforestation would lead to irreversible change or damage to the atmosphere, developing countries would have to take regulatory measures to stop deforestation, irrespective of the adverse impact on development." M. Sanwal , The Sustainable Development of all Forests, Review of European Community and International Environmental Law, vol. 1, 1992, 289, 291. See also A. Szekely , The Legal Protection of the World's Forests after Rio '92, in: L. Campiglio/L. Pineschi/D. Siniscalco/T. Treves (eds.), The Environment after Rio: International Law and Economics, 1994, 65 - 69. 9

See the comparison between the postulation in Principle 15 of the Rio Declaration and other international instruments made by M. Gavouneli , Pollution from Offshore Installations, 1995, 85. The precautionary approach is defined in the Rio Declaration in words quoted from Principle 7 of the Ministerial Declaration of the Second World Climate Conference of 7 November 1990: "Where there are threats of serious or irreversible damage, lack of full scientific certainty should ['shall* in the Rio Declaration] not be used as a reason for postponing costeffective measures to prevent such environmental degradation." The Rio Declaration also recalls Principle 7 of the Bergen Ministerial Declaration on Sustainable Development adopted on 16 May 1990 by the ministers of thirty-four countries in the United Nations Economic Commission for Europe and the European Community Commission (Bergen Declaration): I n order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should ['shall' in the Rio Declaration] not be used as a reason for

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T h e precautionary approach is closely l i n k e d t o the preventive p r i n c i p l e 1 0 (e.g. Principle 7 o f the Bergen Declaration). T h e preventive principle, i n terms o f the R i o Declaration, is not viewed as an autonomous principle, but rather as a necessary coro l l a r y t o the precautionary approach. 1 1 Prevention inherently involves efforts t o avoid catastrophic damage t o the environment b y banning o r regulating the activities that may give rise t o such damage. 12 T h e precautionary approach calls for closel y l i n k e d efforts t o avoid catastrophic environmental damage (e.g. A r t i c l e 11(a) o f the W o r l d Charter and Principle 7 of the Bergen Declaration). P r i n c i p l e 15 calls for States t o broadly apply a precautionary approach towards protection of the environment according t o States' capabilities. A l t h o u g h the statement may be controversial, 'capabilities' seems t o allude t o the fact that developing countries may confer a less broad application t o that approach t h a n the one that industrialized countries should grant t o it. T h e idea o f a different 'responsibility' (in this context, it means the " t i t u l a r i t y of legal obligations and financial burdens") is c o n f i r m e d b y Principle 7 1 3 of the R i o Declaration. N o t all countries have equal ca-

postponing measures to prevent environmental degradation. The Bergen Declaration "significantly endorsed the precautionary principle in the context of environmental degradation and warned against 'foreclosing options for future generations by depletion of the resource base.'" C. Shine/P. T. B. Kohona y The Convention on Biological Diversity: Bridging the Gap between Conservation and Development, Review of European Community and International Environmental Law, vol. 1, 1992, 278, 281. 10

N. A. Robinson/P. Hassan/F. Burhenne-Guilmin , Agenda 21 and the U N C E D Proceedings, vol. I, 1992, join them under a common heading 'principle of precautionary/preventive actions' and mention some international instruments in which both principles are linked. 11

S. Marchisio , Gliatti di Rio nel diritto internazionale, RDI, 1992/1993, 610 - 611.

12

A t its broadest, this principle reflects the willingness of states to act w i t h care and foresight i n pollution control. It merely adopts the adage that prevention is better than cure. Prevention is not only less onerous than reparation but is also of special importance since some activities may be highly dangerous. O n a more profound level, if such an approach is institutionalised, it w i l l have the effect of shifting the burden of proof from those who oppose environmental degradation to those proposing to engage in the activity alleged to cause harm. F. K. Boony The Rio Declaration and its Influence on International Environmental Law, Singapore Journal of Legal Studies, 1992, 347, 358. "Thus, the principle would require potential polluters to establish that substances to be released into the environment would not damage it, w i t h procedures for systematic assessment and documentation as well as public access to information and to the decision making process." W. Porter/W. J. Brown Global Environmental Politics, 1991. 13

In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

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pability to take measures to either prevent or reduce environmental catastrophes. The precautionary approach tries to give effect to this. Principle 15 also states that action should be taken in cases in which there are threats of serious or irreversible damage. The damage may be serious or irreversible or serious and irreversible. Serious damage refers to the level of patrimonial consequences and irreversible damage alludes to a catastrophic situation in which there is no possibility of restoring the previous environmental circumstances. A t any rate, as the threat of damage is enough, it is not necessary to depart from the idea that catastrophic damage has virtually happened, as it may then be too late; international environmental rules are violated by the mere fact that a danger is created. Regulators need not wait for full scientific certainty before taking action to avoid any ecological catastrophe. The precautionary approach is to be applied even though there may be a lack of full scientific certainty about the catastrophic consequences of an activity. If there is full scientific certainty, the activity will be forbidden or permitted. However, which is the best solution when there is no full scientific certainty? H o w are the right to carry out an activity and the obligation not to cause catastrophic damage to the environment to be balanced? The precautionary approach is devised to answer this question. The answer contained in the Rio Declaration is that the lack of full scientific certainty about the consequences of an activity must imply the adoption of measures preventing environmental catastrophes. As the Rio Declaration states, the precautionary approach may raise uncertainties. Even if there is uncertainty about what will happen, the actions must not cause catastrophic damage to the environment. The problem is to determine which measures must be adopted in order not to cause catastrophic damage to the environment. The Rio Declaration avoids taking a position on a dilemma that can be explained in very extreme terms: the prevention of ecological catastrophes is privileged, or the acquisition of knowledge at any price is privileged. 14 Lack of full scientific certainty about the catastrophic consequences of State activities was the primary reason used by developed countries (above all the United States) to try to avoid, or at least to reduce, the adoption of precise environmental quantitative engagements. The same reason was used by oil-producing countries (both developed and developing) to refuse measures that would have limited their earnings. 15

14 15

Scovazzi (note 3), 700.

L. Pineschi y Tutela dell'ambiente e assistenza alio sviluppo: dalla Conferenza di Stoccolma (1972) alia Conferenza di Rio, Rivista Giuridica DelP Ambiente, vol. 9, 1994, 493, 505.

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Finally, the measures adopted to prevent environmental catastrophes must be cost-effective, that is, must make economic sense. Therefore measures, though undoubtedly effective, that have an excessive cost should be avoided. Many countries, both developed and developing, adopt the line that whatever measures are taken to prevent environmental catastrophes, these measures should be economically feasible. This implies the introduction of economic considerations into what otherwise is a purely environmental standard. b) Article 3(3) of the Framework Convention on Climate Change In order to prevent climate catastrophes, the Framework Convention on Climate Change establishes mechanisms by which the parties will monitor and control the emission from their territories of greenhouse gases (e.g. aerosols and their precursors). The increase in greenhouse gas concentrations in the atmosphere has had potentially adverse effects (which may be catastrophic) not only on natural ecosystems but on all mankind. Continued emissions of carbon dioxide (such as in car exhaust fumes and industrial smoke) and other greenhouse gases that absorb and reemit infrared radiation may lead to catastrophic global warming (resulting in desertification). 16 The potential impacts of global warming have been likened to those of a catastrophic nuclear winter. 17 Article 3(3) of the convention uses almost the same language as Principle 15 of the Rio Declaration. However, the former employs the weakening 'should' instead of the obligating 'shall', and the latter does not include any explicit reference to the character of the measures to be adopted to prevent environmental catastrophes.

16

A n y change in global climate distribution would affect the distribution of forest types. If the change were to occur relatively abruptly, forest species would be unable to adapt or migrate. I n this scenario, trees would die out in parts of their range and be replaced by other biomes, such as grassland and desert. ... If this occurs, it would threaten human survival and increase conflict as resources become scarcer. A. Hooker , The International Law of Forests, Natural Resources Journal, vol. 34, 1994, 823, 865. 17

1. A. Shearer , Starke's International Law, 1994, 375.

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Article 3 1 8 Principles 19 3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal w i t h climate change should be cost effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socioeconomic contexts, be comprehensive, cover all relevant sources and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties. 20

The scope of the precautionary approach is qualified in several ways in the Framework Convention on Climate Change.21 First, it encompasses the duty of States to take into account cost-effectiveness. 22 The force of the precautionary approach is weakened by this exigency, with no indication of what types of costs may be considered and no stipulation that all external costs must be accounted for. In this re18

See also the Preamble.

19

A bizarre footnote to the first title (Definitions for Article 1) states that 'Titles of articles are included solely to assist the reader/ This footnote was inserted by the U.S. delegation in a last-minute attempt to weaken the legal effect of the whole of Article 3 (on Principles). Commercial and contract lawyers w i l l immediately recognise that the intended purpose of the footnote is unlikely to be achieved since it omits the most important part of the traditional language of commercial contracts, namely that titles and other such matters are 'not intended to have any legal effects.' P. Sands, The United Nations Framework Convention on Climate Change, Review of European Community and International Environmental Law, vol. 1, 1992, 270, 272. 20

In view of the continuing uncertainty regarding the causes of the greenhouse effect, the precautionary approach requires preventive regulations. However, Boon (note 12), 359 states that this approach: was by no means endorsed unequivocally by all states. During negotiations on the Climate Change Convention, for instance, there was a school of thought which advocated the ' status quo' or 'do nothing' approach. The argument in favour of such a stance centered on the argument to the effect that since the scientific evidence was inconclusive, no action was necessary. However, the consensus that emerged was that full scientific certainty need not be awaited before action is taken. 21

/. F. Pulvenis, The Framework Convention on Climate Change, in: Campiglio/Pineschi/ Siniscalco/Treves (note 8), 94. 22 The inclusion of a reference to 'cost-effectiveness' was the main discussion i n the International Negotiating Committee. The Second World Climate Conference Ministerial Declaration and the G-77 proposal on principles both spoke of 'cost-effective' precautionary measures and the G-77 proposal on principles used a similar formulation. See D. Bodansky y The United Nations Framework Convention on Climate Change: A Commentary, Yale Journal of International Law, vol. 18, 1993, 451, 503.

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spect, emphasis is put on the need to consider the eventual catastrophic magnitude of the effects of climate change (threats of irreversible damage). Second, the policies and measures to deal with climate catastrophes should be global and comprehensive, reflecting the United States's call for a 'comprehensive approach'. They must take into account different socioeconomic contexts, cover all relevant sources, sinks and reservoirs and include all economic sectors. Finally, and perhaps most importantly, the policies and measures to deal with climate catastrophes may be carried out cooperatively. 23 A l l of the above statements reflect the concerns of developed countries. c) The N i n t h Paragraph of the Preamble to the Convention on Biological Diversity The Convention on Biological Diversity aims at protecting against the catastrophic decline of animal, plant and microbial organisms, and to preserve them for sustainable human use. Catastrophic damage to biological diversity will generally involve erosion of soil, destruction of forests (tropical deforestation is the principal example of endangered biodiversity) or destruction of other natural resources. A l l these circumstances are now accelerating the catastrophic depletion of species, habitats and vital ecosystems (e.g. wetlands, coral reefs etc.) and changing the conditions for their evolution. In some cases, this extinction is especially catastrophic, because future generations will remain dependent on the resources in question for the development of new medicines and the application of genetic engineering in agriculture and industry. 24 A reference to the precautionary approach is now only found in the Preamble to the final text of the Convention on Biological Diversity. 25 This removal of the pre23

This means that countries may receive credit for actions taken by, in, or i n conjunction w i t h other countries. Thus, industrial countries may aggregate their emission reductions to reach a joint target, as the EC has promised to do. Or, industrial countries may finance source reducing or sink enhancing projects in developing countries to offset their own emissions. D. M. Goldberg , As the World Burns: Negotiating the Framework Convention on Climate Change, Georgetown International Environmental Law Review, vol. 5, 1993, 239, 254. 24

A. Malhotra/A. Vaish , Perspectives on the Biodiversity Convention, in: P. Ghosh/A. J aitly (eds.), The Road from Rio: Environment and Development Policy Issues in Asia, 1993, 145. See also E. Hey y Increasing Accountability for the Conservation and Sustainable Use of Biodiversity: A n Issue of Transnational Global Character, Colorado Journal of International Environmental Law and Policy, vol. 6, 1995, 1, 9. 25

A. E. Boyle , The Convention on Biological Diversity, in: Campiglio/Pineschi/Siniscalco/ Treves (note 8), 114-115, 118: The adoption of a Convention on Biological Diversity was only possible by incorporating some significant changes proposed by developing states and by deleting a number of sub-

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cautionary approach to the Preamble does not mean that States are free to disregard the possible catastrophic consequences of their actions. Article 14(1) (a) of the convention requires parties as far as possible to introduce appropriate procedures requiring environmental impact assessment of proposed projects that are likely to have significant adverse impacts on biological diversity (e.g. potentially catastrophic effects of shipboard waste incineration on the marine environment, or of ocean drift nets on the sustainable management of fisheries). 26 As stated in the Preamble: "[T]his may enable, when alternative interpretations of commitments or other operative provisions are possible, to favor an interpretation involving the precautionary principle," rather than the alternative to "wait and see whether further research resolves uncertainties about catastrophic effects of state activities." 27 The language of paragraph 9 of the Preamble is similar to the Framework Convention on Climate Change (Article 3(3)), and to the Rio Declaration (Provision 15). However, the way in which catastrophes and the precautionary approach are developed in the specific context of biological diversity is different. First, unlike the other two instruments, the Convention on Biological Diversity does not encompass the duty of States to take into consideration cost-effectiveness, nor is emphasis put on the need to consider the eventual catastrophic magnitude of the effects in cases in which there are threats of irreversible damage. Second, just as in the Rio Declaration, there is no explicit reference to the character of the measures to be adopted to prevent environmental catastrophes, whereas in the Framework Convention on Climate Change there is. Finally, consistent with the Framework Convention on Climate Change and inconsistent with the Rio Declaration, the Convention on Biological Diversity prefers the less obligatory 'should' over the more insistent 'shall': The Contracting Parties, . . . noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.

d) Chapters 19, 20, 22 of Agenda 21 The precautionary approach is also mentioned in three separate chapters of Section I I (Conservation and Management of Resources for Development) of Agenda stantive provisions on which no agreement could be reached and whose omission renders the final text markedly different from the fifth negotiating draft. I n particular, an important article about the precautionary approach was removed. The fifth draft had stressed the need to 'anticipate, prevent and attack the causes of reduction or loss of biodiversity at source' and provided that 'lack of full scientific certainty shall not be used as a reason for postponing [action or measures] to avoid or minimise a threat to biodiversity.' 26 27

Bodansky (note 4), 4.

A. N. Achanta/P. Ghosh, A n Analysis of the Biodiversity Convention, in: Ghosh/Jaitly (note 24), 157.

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21. These are: Chapter 19 ( E n v i r o n m e n t a l l y Sound Management o f T o x i c C h e m i cals, i n c l u d i n g Prevention of Illegal International Traffic i n T o x i c and Dangerous Products) 2 8 , Chapter 20 ( E n v i r o n m e n t a l l y Sound Management o f

Hazardous

Wastes, including Prevention of Illegal International Traffic i n Hazardous Wastes) 2 9 and Chapter 22 (Safe and E n v i r o n m e n t a l l y Sound Management o f Radioactive Wastes). 3 0 I n each of these provisions, governments are t o adopt policies that are based o n the precautionary approach, develop emergency response procedures and adopt regulatory frameworks for the prevention o f catastrophes. 31

28

Programme Areas — E. Strengthening of National Capabilities and Capacities for Management of Chemicals — Activities — (b) Data and Information — 19.60: Governments should: (d) Cooperate w i t h international organizations, where appropriate, to effectively monitor and control the generation, manufacturing, distribution, transportation and disposal activities relating to toxic chemicals, to foster preventive and precautionary approaches and ensure compliance with safety management rules, and provide accurate reporting of relevant data. 29

Programme Areas — C. Promoting and Strengthening International Cooperation in the Management of Transboundary Movements of Hazardous Wastes — Basis for Action — 20.32: I n order to promote and strengthen international cooperation in the management, including control and monitoring, of transboundary movements of hazardous wastes, a precautionary approach should be applied. There is a need to harmonize the procedures and criteria used in various international and legal instruments. There is also a need to develop or harmonize existing criteria for identifying wastes dangerous to the environment and to build monitoring capacities. 30

Programme Area — Promoting the Safe and Environmentally Sound Management of Radioactive Wastes — Activities — (b) International and Regional Cooperation and Coordination — 22.5: States, i n cooperation w i t h relevant international organizations, where appropriate, should: (b) Encourage the London Dumping Convention to expedite work to complete studies on replacing the current voluntary moratorium on disposal of low-level radioactive wastes at sea by a ban, taking into account the precautionary approach, w i t h a view to taking a well informed and timely decision on the issue; (c) N o t promote or allow the storage or disposal of high-level, intermediate-level and lowlevel radioactive wastes near the marine environment unless they determine that scientific evidence, consistent w i t h the applicable internationally agreed principles and guidelines, shows that such storage or disposal poses no unacceptable risk to people and the marine environment or does not interfere w i t h other legitimate uses of the sea, making, i n the process of consideration, appropriate use of the concept of the precautionary approach. 31

United Nations, The Global Partnership for Environment and Development: A Guide to Agenda 21, 1993, 161.

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Approach after the Rio Conference

states that it cannot be doubted that the precautionary approach is

established i n m o d e r n international environmental l a w . 3 2 Sanwal t h i n k s that the i n c o r p o r a t i o n o f the precautionary measure i n t o b o t h A r t i c l e 3(3) o f the Framew o r k C o n v e n t i o n o n Climate Change and the Preamble t o the C o n v e n t i o n o n Biological D i v e r s i t y has made t h e m a part o f international l a w . 3 3 H o w e v e r , other authors are n o t so certain w h e n they express their views o n this subject. 3 4 I n fact, most authors share the o p i n i o n that there is n o t unanimous agreement o n the content o f the precautionary principle, o r even as t o whether an actual principle has emerged o r o n l y an approach t o address a p r o b l e m . 3 5 A s a result, they t h i n k that the precautionary principle, although mentioned i n m a n y international environmental instru-

32

H. Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law — The Precautionary Principle: International Environmental Law between Exploitation and Protection, 1994. With regard to Article 3(3) of the Framework Convention on Climate Change, he affirms, id ., 325 - 326, that: [T]he weakening vis-a-vis the above quoted wording of Rio Principle 15 can only be explained by the fact that a few Summit participants, notably the United States, still had doubts as to the applicability of the precautionary principle for combating the 'climate collapse'. Considering that a different interpretation would result in contradictions to the Rio Declaration and the state of customary law, it cannot be doubted that the precautionary principle is established in modern international environmental law. A few states initially had doubts only concerning its application to risk potential such as global climate change. I n the meantime, most of the initial dissenters ratified the Convention, so that it entered into force on 21 March 1994. 33

M. Sanwal , Sustainable Development and the Evolution of International Policy and Law, in: Ghosh/Jaitly (note 24), 60. 34

Under the heading Confirmation of Emerging Rules, Kiss comments only that the precautionary approach increasingly appears in international treaties starting i n the early 1990s. A. Kiss, Le droit international a Rio de Janeiro et a cote de Rio de Janeiro, Revue Juridique de L'environnement, 1993, 71. He is not more explicit about the status of the precautionary approach in his further publications: A. Kiss, The Rio Declaration on Environment and Development, in: Campiglio/Pineschi/Siniscalco/Treves (note 8), 61; A. Kiss y Droit international de l'environnement, Juris-Classeur de Droit International, 1994, 1 - 30; A. Kiss/S. Doumbe-Billey La Conference des Nations Unies sur l'environnement et le developpement (Rio de Janeiro, 3 -14 Juin 1992), Annuaire Franfais de Droit International, 1992, 841. 35

Weiss (note 5), 690.

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ments, both binding and non-binding, is something of a puzzle, 36 and that it is not yet part of environmental customary international law. 37 It is the Author's opinion that Treves's position is the most correct. 38 He places the precautionary approach among the environmental law principles that he considers consolidated due to the Rio agreements and, at least conceptually, applicable to ecological catastrophes. Although this approach is included in Article 3(3) of the Framework Convention on Climate Change, it is true that it may be premature to consider it binding or to consider that it can be easily determined which violations create State responsibility. Despite this, the precautionary approach seems to play an important role in the delimitation of State international environmental obligations in case of catastrophes. I I . The Duties of States to Notify and Assist other States in Transboundary Ecological Catastrophes 1. Inclusion in Provision 18 of the Rio Declaration , Article 14(l)(d) of the Convention on Biological Diversity and Chapter 20(38)(d) of Agenda 21 Principles 18 and 19 of the Rio Declaration refer to information and notification requirements in case of transboundary environmental catastrophes (Principle 18), and of activities that may have catastrophic transboundary environmental effects (Principle 19).39 The Chernobyl catastrophe, as well as international instruments 36

When policymakers are considering whether or not to endorse a particular guideline for national action, part of the lawyer's job is to ask what the guideline means and how it is intended to reflect or to alter existing national practices. In the case of the precautionary principle, there is no consistent or clear answer to these questions. Some versions of the precautionary principle, for example, suggest that actions must be taken to prevent any possible damage, regardless of the costs or risks involved. It is often difficult for a lawyer to believe that policymakers can really live up to such obligations, however politically attractive they may be. /. E. Donoghue, The Climate Change Convention, in: American Bar Association Standing Committee on Environmental Law, The Role of Law in the 1992 United Nations Conference on Environment and Development, 1992, 29. 37 L. E. Susskindy Environmental Diplomacy: Negotiating more Effective Global Agreements, 1994, 79. 38

T. Treves , II diritto deirambiente a Rio e dopo Rio, Rivista Giuridica Dell' Ambiente, vol. 8, 1993, 579 (updating concepts from L'ambiente dopo Rio, in: Campiglio/Pineschi/ Siniscalco/Treves (note 8)). 39 However, neither procedure has been elaborated on in the Rio Declaration or in any other of the Rio agreements. There is no mention of methods to solve the problems created by transboundary ecological catastrophes or by activities that may have catastrophic trans-

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such as the Vienna Convention on Early Notification of a Nuclear Accident of 26 September 1986, have placed potentially guilty States in a situation in which they must adopt necessary measures in potential catastrophes. Although Jaitly 40 has doubts about the language of Principle 18 of the Rio Declaration, it is clear that it adopts the notification principle that was invoked by many States at the time of the Chernobyl nuclear disaster 41: States shall immediately notify other states of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those states. Every effort shall be made by the international community to help states so afflicted.

The language of the principle is more firm than is normal for international documents. 42 The Rio Declaration further expands the Chernobyl principle to include natural disasters or other emergencies. Natural disasters may include catastrophic phenomena resulting from desertification, relative sea level rise, erosion of coastal estuaries and tropical deforestation. What is implied by 'other emergencies' is unclear, but it may include environmental catastrophes resulting from an inadequate system of radioactive waste storage, hazardous waste management or acid rain. 43 The Convention on Biological Diversity also contemplates the duty of States to immediately notify other potentially affected States of imminent or grave danger or damage to biological diversity. However, Agenda 21 does not include any reference to notification concerning transboundary environmental catastrophes. Principle 18 of the Rio Declaration also calls for the international community to assist States afflicted by natural disasters or other emergencies. However, this allusion to assistance to other States that are victims of disasters or emergencies is weaker. Principle 18 appeals generically to the international community uti universi and does not mention the duty of States to provide reciprocal help. Furthermore, the international community is required only to make 'every effort' to assist the States affected by a catastrophe, while no call is made for the firm commitment necessary to repair damage. boundary environmental effects in the Rio Declaration. It merely requires States to notify other States of those catastrophes. This may be a great handicap for future environmental policy making based on the Rio Declaration. 40 "The language of the principle is ambiguous. . . . If a disaster such as that at Chernobyl is the target, then the Principle has some value, otherwise, it remains fairly toothless." A. faitly , A n Overview of Post-Rio Political Economy Issues, in: Ghosh/Jaitly (note 24), 38. 41 /. Kovar , A Short Guide to the Rio Declaration, Colorado Journal of International Environmental Law and Policy, vol. 4, 1993, 119, 135. 42 R. K. L. Panjabiy From Stockholm to Rio: A Comparison of the Declaratory Principles of International Environmental Law, Denver Journal of International Law and Policy, vol. 21, 1993, 215, 235. 43

N. Robinson , A B A Annual Meeting Panel Program: A n U N C E D Synopsis, in: American Bar Association (note 36), 42.

26 GYIL 39

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Unlike Principle 18 of the Rio Declaration, the Convention on Biological Diversity does not include any allusion to efforts to help the States afflicted by a catastrophe. However, unlike the Rio Declaration, Article 14(1) (d) of the Convention on Biological Diversity enjoins States to initiate action to prevent or minimize such danger or damage, in addition to information and notification requirements: 1. Each Contracting Party, as far as possible and as appropriate, shall: (d) I n the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological diversity within the area under jurisdiction of other states or i n areas beyond the limits of national jurisdiction, notify immediately the potentially affected states of such danger or damage, as well as initiate action to prevent or minimize such danger or damage.

Paragraph 38 of Chapter 20 of Agenda 21 joins both statements. According to this, governments should study the feasibility of providing temporary financial assistance in the case of an emergency situation in order to minimize damage from accidents arising from transboundary movements of hazardous wastes or during the disposal of those wastes.44 2. Status after the Rio Conference Some authors consider that among the different State duties that have become essential in environmental customary international law, and that are consecrated in the Rio agreements, the one most generally accepted is formulated in Principle 18 of the Rio Declaration. 45 They claim that the duty of States to provide a notification of emergency situations is a part of general international law, as the International Court of Justice affirmed in the Corfu Channel case,46 and that this duty of States appears in many international environmental instruments, both binding and nonbinding. 47 Among those consulted for this Note, no author questions that the notifi44

Agenda 21 — Section I I — Conservation and Management of Resources for Development — Chapter 20 — Environmentally Sound Management of Hazardous Wastes, including Prevention of Illegal International Traffic in Hazardous Wastes — Programme Areas — C. Promoting and Strengthening International Cooperation in the Management of Transboundary Movements of Hazardous Wastes — Means of Implementation — (b) Capacity-Building — 20.38: Governments, according to their capacities and available resources and w i t h the cooperation of the United Nations and other relevant organizations, as appropriate, should: (d) Study, in the context of the Basel Convention and relevant regional conventions, the feasibility of providing temporary financial assistance in the case of an emergency situation, in order to minimize damage from accidents arising from transboundary movements of hazardous wastes or during the disposal of those wastes. 45

See Gavouneli (note 9), 105.

46

(United Kingdom vs. Albania), 1949 ICJ 4, 22.

47

See A. O. Adede , Instruments for International Responses to Problems of Environment

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403

cation of transboundary ecological catastrophes is a part of customary international law. 48 Other authors allude to the corresponding provisions of the first paragraph of Article 14 of the Convention on Biological Diversity. The duty of States to promote notification, exchange of information and consultation on activities that may significantly adversely affect the biological diversity of other States (c) has been compared to the duty of States to notify immediately the potentially affected Sates in the case of imminent or grave clanger or damage to biological diversity (d), and it has been stated that the latter reflects environmental customary international law and other treaty formulations more satisfactorily. 49 With respect to assistance to States afflicted by natural disasters or other emergencies, it has been asserted that: [G]iven the complexity of problems which such assistance may raise in concrete cases, as a rule specific agreements are needed for ensuring cooperation in this field . . . .Indeed, quite a few agreements, both bilateral and multilateral, provide for cooperation i n emergencies.50

It is the Author's opinion that there seems to be no doubt as to the consecration, in the Rio agreements, of a duty of States to notify other States of a transboundary ecological catastrophe; this is already a part of environmental customary international law. However, it is extremely questionable to assume the consecration in the Rio agreements of a duty of States to assist other States in transboundary ecological catastrophes that is a part of environmental customary international law.

and Development 1972 - 1992, International Environmental Law Digest, 1993, 139. 48 See also Marchisio (note 11), 615. See infra his assertions concerning the customary legal character of the duty of States to notify and consult w i t h potentially affected States on activities that may have catastrophic transboundary environmental effects. 49 50

Boyle (note 25), 119.

Kiss, The Rio Declaration (note 34), 59. But it is also true that in the future "[T]he growing adoption of new approaches, duties, and procedures in international environmental accords is likely to continue. These include . . . the duties . . . to provide emergency assistance for environmental accidents or disasters." Weiss (note 5), 708.

26*

404

Alberto Soria Jimenez I I I . The Duty of States to Notify and Consult with Potentially Affected States on Activities that may have Catastrophic Transboundary Environmental Effects 1. Inclusion in Provision 19 of the Rio Declaration and Article 14(l)(c) of the Convention on Biological Diversity

The Rio agreements include a duty of States to provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant transboundary environmental adverse effect (Rio Declaration), or that are likely to significantly adversely affect biological diversity (Convention on Biological Diversity). Catastrophes seem to be inherently involved in both statements, given the magnitude of the damage referred to (e.g. catastrophic damage to biological diversity will generally involve loss of species, loss of habitat or destruction of forests and other natural resources). Although in the past the duty to notify and the duty to consult were sometimes considered separately, the merger is justified. The duty of States to provide prior and timely notification and relevant information to potentially affected States on activities that may have catastrophic transboundary environmental effects is linked to the procedures for evaluation of environmental impact included in the legal systems of such States, or established by two or more States through specific agreements. Principle 19 of the Rio Declaration should be read in conjunction with the environmental impact assessment in Principle 17.51 Principle 17 of the Rio Declaration limits environmental impact assessment of potential transboundary catastrophic effects to the national level. This consideration as a national instrument cannot be positively evaluated. However, it would be exaggerated to reason a contrario and conclude that Principle 17 is contrary to environmental impact assessment in the case of potential transboundary catastrophes. 52 It may be admitted that the duty of States to notify and consult with potentially affected States on activities that may have catastrophic transboundary environmental effects includes the communication of the result of the impact assessment prepared for those activities.53

51

Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

52

Treves (note 38), 579.

53

I n view of the complications involved in obtaining information for prior notification of the potential catastrophic effects of activities intended to be undertaken by a State, the Rio Declaration envisages an environmental impact assessment mechanism.

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The interpretation of Principle 19 depends to a great extent on that of Principle 18. The meaning of the phrase — "provide prior and timely notification and relevant information to potentially affected states on activities which may have a significant transboundary environmental adverse effect" — hinges on what is meant by 'other emergencies, in Principle 18. If this pertains to the type of catastrophe that occurred at Chernobyl, then it can perhaps be assumed that Principle 19 of the Rio Declaration is aimed at activities that contribute to other global environmental catastrophes that are more slow to develop, such as climate change54: States shall provide prior and timely notification and relevant information to potentially affected states on activities that may have a significant transboundary environmental adverse effect and shall consult w i t h those states at an early stage and in good faith. 55

The burden of proof here shifts in that it must be proved in advance by a State that actions to be taken by this State will not have a catastrophic effect on the environment of another State. It has been asserted that: [T]he mandatory nature of the language is very significant both in terms of the concerns expressed and with respect to the precise obligations placed on Member states of the United Nations regarding their responsibilities should such an event occur. 56

The second part of Principle 19 refers to the duty of States to consult with potentially affected States at an early stage and in good faith on activities that may have catastrophic transboundary environmental effects. Within the scope of the consultative principle, ways of cooperation to prevent, reduce or eliminate environmental catastrophes derived from polluting activities must be developed. Article 14(1)(c) of the Convention on Biological Diversity expresses the same principle as Provision 19 of the Rio Declaration, including also the two different procedures, i.e. information to the State exposed to environmental catastrophes and consultation with that State:

54

Jaitly (note 40), 39.

55

The duty of information and prior consultation on transboundary environmental catastrophes is defined in the Rio Declaration in words quoted from Principles 15, 16 and 17 of the 1987 Brundtland Legal Principles: 15. States of origin shall provide timely and relevant information to the other concerned states regarding transboundary natural resources or environmental interferences. 16. States shall provide prior and timely notification and relevant information to the other concerned states and shall make or require an environmental assessment of planned activities which may have significant transboundary effects. 17. States of origin shall consult at an early stage and in good faith w i t h other concerned states regarding existing or potential transboundary interferences w i t h their use of a natural resource or the environment. The Rio Declaration also reflects much of the approach incorporated in the Convention on Environmental Impact Assessment in a Transboundary Context of 25 February 1991. 56

Punjabi (note 42), 235.

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Alberto Soria Jimenez Impact Assessment and Minimizing Adverse Impacts

1. Each Contracting Party, as far as possible and as appropriate, shall: (c) Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other states or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral agreements, as appropriate.

However, Article 14 merely calls for parties to promote, on a reciprocal basis, notification, exchange of information and consultation. This is to be achieved by encouraging the conclusion of bilateral, regional or multilateral arrangements. This compares very unfavorably even with Principle 19 of the Rio Declaration. 2. Status after the Rio Conference Treves is the only author among those consulted for this Note that thinks the dut y of States to supply prior information of potential catastrophic damage is in the process of being consolidated into customary international law. The rest of the authors consider that it is already a part of customary international law. They state that the prior warning of potential catastrophic damage is a customary obligation of a more procedural nature established in the North Sea Continental Shelf cases,57 and place this State duty among the different principles that have become essential in environmental customary international law and are confirmed in the Rio agreements.58 Marchisio considers that Principle 19 of the Rio Declaration, as Principle 18, has become a part of environmental customary international law and also alludes to two procedural approaches. It is his opinion that Principle 19 confirms the trend to consider it the duty of States to provide information about all of their activities that are likely to catastrophically damage the environment in other States, as a subjective situation included in international custom. 59 With respect to the formulation of the duty of States to promote, on a reciprocal basis, notification, exchange of information and consultation with other States contained in Article 14(1) (c) of the Convention on Biological Diversity, we can affirm that: [ A j t h o u g h customary international law and many environmental agreements require notification and consultation between states w i t h a view to minimising the harmful extraterri-

57

1969 ICJ 3, 47.

58

See Gavouneli (note 9), 105.

59

Marchisio (note 11), 615 - 616.

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407

torial effects of activities within their jurisdiction or control, this is scarcely reflected i n the Convention on Biological Diversity. 60

It is the Author's opinion that, in spite of the weak wording included in Article 14 (l)(c) of the Convention on Biological Diversity, the duty of States to notify and consult w i t h potentially affected States on activities that may have catastrophic transboundary environmental effects is already a part of customary international law. The formulation of this duty of States reflected in Principle 19 of the Rio Declaration contributes to strengthening this opinion. Conclusion 1. Although the precautionary approach apparently has nothing to do w i t h the specific problem of the relationship between the environment and development, it is included in Principle 15 of the Rio Declaration. Following that provision, States, applying the precautionary approach according to their capabilities, must not invoke a lack of full scientific certainty as a reason for postponing cost-effective measures to prevent environmental catastrophes in cases in which there is the threat of serious or irreversible damage. The Preamble and Article 3(3) of the Framework Convention on Climate Change, and paragraph 9 of the Preamble to the Convention on Biological Diversity, both opened for signature in Rio, confirm the need for the application of the precautionary approach with regard to catastrophic effects on both climate change and loss of biodiversity. Chapters 19, 20 and 22 of Agenda 21 also refer to this approach. It is not included in the Non-Legally-Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests. However, the precautionary approach will inevitably guide any negotiations concerning a forestry convention in order to prevent environmental catastrophes. The precautionary approach is closely linked to the preventive principle. The latter is, in terms of the Rio Declaration, which does not refer to it as an autonomous principle, a necessary corollary to the former. The precautionary approach is now 60

It may be argued that the customary rule represented in Principle 19 has no or only limited application to biological diversity, and that in this sense Article 14 is a welcome advance, but given that harm to biological diversity w i l l generally involve loss of species, loss of habitats, or destruction of natural resources through pollution or development, it seems more than likely that these would fall within Principle 19's reference to 'adverse transboundary environmental effect'. Thus Principle 19 of the Rio Declaration and Article 14 of the Rio Convention are potentially applicable simultaneously; that such different formulations can be adopted at the same conference displays the lack of coordination among those involved. Boyle (note 25), 118 -119.

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Consolidated due to the Rio agreements and applicable to international ecological catastrophes, at least conceptually. However, it may be premature to consider it a part of environmental customary international law. 2. Principle 18 of the Rio Declaration and Article 14(l)(d) of the Convention on Biological Diversity include the notification requirement in case of transboundary environmental catastrophes, although neither procedure has been elaborated on in any of these agreements. The duty of States to notify other States of a transboundary ecological catastrophe, which is consecrated in the Rio agreements, seems to be firmly established in environmental customary international law. Principle 18 of the Rio Declaration and Chapter 20(38)(d) of Agenda 21 refer to the assistance to States afflicted by natural catastrophes or other emergencies. The existence of a duty of States to assist other States in transboundary ecological catastrophes is extremely difficult to assert in environmental customary international law. The weak formulation of this duty of States in the Rio agreements has not contributed to its promotion and strengthening. 3. Principle 19 of the Rio Declaration and Article 14(1)(c) of the Convention on Biological Diversity justifiably merge two procedural approaches that were sometimes considered separately in the past. The first is the duty of States to notify potentially affected States of activities that may have catastrophic transboundary environmental effects. The second is the duty of States to consult with potentially affected States on activities that may have catastrophic transboundary environmental effects. The duty of States to notify and consult with potentially affected States on activities that may have catastrophic transboundary environmental effects may be considered a part of environmental customary international law. Though the formulation included in Article 14(1)(c) of the Convention on Biological Diversity scarcely reflects environmental customary international law, the one contained in Principle 19 of the Rio Declaration does so much more satisfactorily.

INTERNATIONAL LAW DEVELOPMENTS

Report on the International Criminal Tribunal for the Former Yugoslavia By Kai Koschorreck and Miriam Müller

Since the establishment of the International Criminal Tribunal for the former Yugoslavia more than three years have passed. During this time the Tribunal has emerged from a political desire into a recognized judicial power in international law. This Report recognizes this development and reports on the foundations and activities of the Tribunal. I. Establishment of the Tribunal The establishment of the International Tribunal for the former Yugoslavia by the United Nations Security Council in Resolution 827 of 25 May 19931 was the final act in a succession of Security Council resolutions dealing w i t h the permanent breaches of humanitarian law in the former Yugoslavia. The first resolution of four leading to the Tribunal is Resolution 764 of 13 July 1992.2 In this resolution the Security Council made explicit that "persons who commit or order the commission of grave breaches of the [1949 Geneva] Conventions are individually responsible in respect of such breaches." This resolution stands in sharp contrast to the Security Council's previous references to atrocities in the former Yugoslavia in which it referred only in general terms to human rights but did not invoke specific international agreements containing enforcement obligations and provisions. 3 After continuing reports of widespread violations of humanitarian law, including reports of mass deportation of civilians and deliberate attacks on non-combatants, hospitals and ambulances, impeding the delivery of food and medical sup1

SC Res. 827 of 25 May 1993.

2

SC Res. 764 of 13 July 1992.

3

James C. O'Brien , The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, American Journal of International Law, vol. 87, 1993, 639, 641.

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plies to the civilian population, the Security Council adopted Resolution 771 of 13 August 1992 calling on States and humanitarian organizations to submit to the Security Council substantiated information on violations of humanitarian law. Pursuant to this resolution, the Security Council in October 19924 established a commission of experts to examine and analyze the information submitted to the Security Council by the States and humanitarian organizations. The commission's mandate was of two basic types: a) collecting, evaluating and analyzing information w i t h the help of a database and b) sending investigative missions to the former Yugoslavia to collect and verify the information obtained.5 Its political purpose, however, was clearly to act as a stepping stone for future actions, such as the creation of a war crimes tribunal.6 This action was taken by the Security Council four months later in Resolution 808 of 22 February 1993/ In this resolution the Security Council decided in principle that an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 was to be established. The Security Council further requested the Secretary General to submit within sixty days a report on all aspects of the establishment of such a tribunal, including specific proposals and options for the "effective and expeditious implementation of the resolution." 8 O n 3 May 1993 the Secretary General submitted the requested report, which covered issues such as the legal basis for the establishment of an international tribunal, its competence ratio materiae , personae, loci and temporis as well as matters of organization, investigation and trial proceedings. 9 The report included a draft statute for the tribunal the formulations for which were taken from provisions of existing international instruments, from the submissions of States and non-governmental organizations and from texts previously prepared by the United Nations Committee on International Criminal Jurisdiction, the International Law Commission and the International Law Association. O n 25 May 1993 the Security Council, acting under Chapter V I I of the United Nations Charter, unanimously approved the Secretary General's report in Resolution 827 of 199310 and decided to establish an international tribunal w i t h the sole

4

SC Res. 780 of 6 October 1992.

5

The commission of experts was also known as the '780 Commission' or 'Karlshoven Commission\ 6

Ralph Zacklin , Bosnia and Beyond, Virginia Journal of International Law, vol. 34, 1993/94, 227, 278. 7

SC Res. 808 of 22 February 1993.

%

ld.

9

U N Doc. S/25704 (1993), reprinted in Human Rights Law Journal, vol. 14, 1993, 198 214, 32 I L M 1159. 10

SC Res. 827 of 25 May 1993.

Report o the International Criminal Tribunal for the Former

Yugoslavia 411

purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia after 1 January 1991. With the creation of the International Criminal Tribunal the Security Council for the first time established a judicial body under Chapter V I I of the United Nations Charter. 11 The question whether the Security Council has the authority to establish such a tribunal under Chapter V I I is not merely a minor question of United Nations institutional law, but has been questioned by the defendants in court. 12 I I . Rules Governing the Tribunal 1. The Statute The statute of the Tribunal, which the Security Council adopted unanimously in Resolution 827, provides not only the legal basis for the establishment of the Tribunal, but also lays down its competences ratio materiae y personae, loci and temporis . The competences of the Tribunal derive from the mandate set out in Resolution 808 of the Security Council; its jurisdiction is therefore limited in territorial and temporal terms to actions committed in the former Yugoslavia since 1991. a) Subject-Matter Jurisdiction As set out in Article 1 of the statute of the Tribunal, the Tribunal has the power only to prosecute persons responsible for serious violations of humanitarian law. Application of the nullum crimen sine lege principle required that the subject-matter jurisdiction of the Tribunal be based on rules of humanitarian law that are beyond doubt part of customary international law so that the problem of the adherence of less than all States to specific conventions did not arise. 13 Pursuant to this, Articles 2 and 3 provide the Tribunal with the power to prosecute violations of the international law of armed conflict. While Article 2 makes explicit reference to the Geneva Convention of 12 August 194914 and mentions breaches of the convention, Article 3 lists violations of the laws 11

By SC Res. 955 of 8 November 1994 the Security Council established the International Criminal Tribunal for Rwanda under Chapter V H of the United Nations Charter. The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda are both subsidiary organs of the Security Council within the meaning of Article 29 of the United Nations Charter. 12

See the Tadic case below.

13

Secretary General's Report (note 9), 34.

14

Convention Relative to the Protection of Civilian Persons in Time of War, 12 August

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Kai Koschorreck and Miriam Müller

or customs of war under the jurisdiction of the Tribunal without reference to a specific convention. The scope of jurisdiction under Article 3 of the Statute is also flexible due to the wording "Such violations shall include, but not be limited to: (a) . . . (b) . . . This ensures that all relevant, well-established international law falls within the jurisdiction of the Tribunal and provides the possibility of applying further provisions of the Geneva Conventions not explicitly mentioned in Articles 2 and 3. 15 Articles 4 and 5 provide the Tribunal with the power to prosecute crimes against humanity including genocide. Article 4 of the Statute reproduces Articles I I and I I I of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which enumerates several forms of the crime of genocide.16 Article 5 enables the Tribunal to prosecute persons responsible for crimes against humanity, w i t h specific reference to murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial and religious grounds and other inhumane acts. These crimes against humanity must be committed in an armed conflict, whether international or internal in character, and directed against the civilian population. b) Personal Jurisdiction As noted above, the Security Council has outlined in a number of resolutions leading up to Resolution 808 that persons committing serious violations of international humanitarian law in the former Yugoslavia are individually responsible for such violations. Pursuant to this, Article 6 of the Tribunal statute gives it jurisdiction over 'natural persons' and excludes jurisdiction over juridical persons. Article 7(1) mandates individual criminal responsibility, stating that all persons that planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to above shall be individually responsible for the crime. Article 7(3) extends this criminal liability to persons in a position of superior authority and provides that these persons are to be held individually responsible for either giving the unlawful orders to commit the mentioned crimes or for their failure to prevent such crimes on the part of their subordinates. Article 7(4) treats the reverse case and states that acting on an order of a government or a superior cannot relieve the perpetrator of the crime of criminal responsibility and is therefore not a defense. The Tribunal statute thus follows the opinion in international law that principles of governmental immunity are not applicable in cases 1949, 75 U N T S 287. 15 16

O'Brien (note 3), 647.

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U N T S 277.

Report o the International Criminal Tribunal for the Former Yugoslavia 413 of grave breaches of humanitarian law. 17 In addition to these provisions, in Article 7(2) the Tribunal statute makes clear that the official position of any accused person, whether as head of State or government, neither relieves such person of criminal responsibility nor mitigates punishment. c) Other Main Provisions Article 21 (4) (d) of the Tribunal statute prohibits trials in absentia . The Secretary General concluded in his report that trials in absentia should not be undertaken because of the widespread perception that they are inconsistent with Article 14 of the International Covenant on Civil and Political Rights.18 O n the one hand, this provision slows the activity of the Tribunal; on the other hand it prevents the Tribunal from becoming a mere show-trial court. Rule 61 of the Rules of Procedure and Evidence ensures that the Tribunal is not rendered ineffective by the non-appearance of the accused. This rule allows the Tribunal to consider indictments or reports of the prosecutor and to issue a warrant to Interpol to find the defendant. 19 Although the Tribunal has no ability to force States to surrender accused war criminals to the Tribunal, these proceedings underline the moral obligation of States to comply with Article 29(2) of the Tribunal statute, which states that States must fulfill "any request for assistance or an order of the tribunal" and requests States, in line with Security Council Resolution 827, to take necessary measures, including the adoption of domestic legislation, to prepare themselves for compliance.20 Despite these provisions, national courts retain their power to try cases that fall within the Tribunal's jurisdiction. Article 9 of the Tribunal statute provides that the Tribunal and national courts have concurrent jurisdiction, al-

17 Carsten Hollweg, Das neue Internationale Tribunal der U N O und der Jugoslawienkonflikt, Juristenzeitung, vol. 48, 1993, 980, 980 w i t h further references. 18 See Secretary General's Report (note 9); International Covenant on Civil and Political Rights, 999 U N T S 171, 1057 U N T S 407. 19 See also Lisa L. Schmandt , Peace w i t h Justice: Is it possible for the Former Yugoslavia?, Texas International Law Journal, vol. 30, 1995, 335, 357. 20 As of August 1995 thirteen States (Australia, Bosnia-Herzegovina, Denmark, Finland, France, Germany, Iceland, Italy, Netherlands, New Zealand, Norway, Spain and Sweden) had enacted implementing legislation. Since then, seven additional States (Austria, Belgium, Croatia, Hungary, Switzerland, the United Kingdom and the United States) have enacted such legislation. Korea, Russia, Singapore and Venezuela have indicated that they do not require implementing legislation to carry out their responsibilities. Other States (Canada, Luxembourg, Poland, Romania, Slovakia, Slovenia, Sri Lanka and Turkey) have indicated that they soon w i l l enact implementing legislation. Others (Federal Republic of Yugoslavia, Cyprus) refuse to enact implementing legislation. Annual Report No. 3 of the International Tribunal, U N Doc. A/51/292 (1996).

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though the Tribunal has primacy. The Tribunal can at any stage of the procedure formally request national courts to defer to the competence of the Tribunal. 2. Rules of Procedure and Evidence The Rules of Procedure and Evidence were adopted by the Tribunal at the end of the second plenary session in February 1994. In drafting the rules, the judges of the Tribunal tried to capture the international character of the Tribunal by adopting only measures on which they achieved broad agreement and thus ensured that the rules are generally recognized as fair and just in the international arena. 21 The 125 rules contain inter alia provisions concerning the organization of the Tribunal (Rules 14-38), the investigation and rights of suspects (Rules 39 - 46), pretrial proceedings (Rules 47 - 73) and proceedings before the trial chambers (Rules 74 - 106). The Tribunal's Rules of Procedure and Evidence reaffirm the basic principles on which the Tribunal's statute is based. They reaffirm and expand the basic rights of the suspect (Rules 42 - 45) and of the accused (Rules 62, 63, 65 - 68, 72) and confirm the Tribunal's dedication to the principles of due process of law. Due to the fact that the Tribunal, when drafting the Rules of Procedure and Evidence, was not able to fall back on any precedents, the rules had to be amended on a number of occasions.22 The amendments were adopted to improve the working of the Tribunal or to take into account the practical problems that arose out of the implementation of the rules, 23 and also to broaden the rights of suspects and accused persons. 24 Most of these amendments concerned the pretrial proceedings w i t h respect to orders and warrants including the in praxi important provision of Rule 61. 3. Rules of Detention The Rules of Detention were adopted by the Tribunal to govern the detention of persons awaiting trial or appeal before the Tribunal. 25 Their purpose is to regulate 21

Annual Report No. 1 of the International Tribunal, U N Doc. A/49/342 (1994), 53, reprinted in: The Hague Yearbook of International Law, vol. 7, 1994, 187, 203. 22

To July 1996 the Rules of Procedure and Evidence have been amended nine times. U N Doc. IT/32/Rev.9 (1996). 23 For example, the addition of Rule 66(c) regarding application for nondisclosure of information by the prosecutor in cases in which there would be prejudice to further investigations. 24 For example, Rule 66(A) concerning the prosecutor's obligation to transmit materials to the defense. Further such amendments include Rules 68, 42(A), 93 and 95 (exclusion of evidence on the basis of invalid procurement). 25

U N Doc. IT/38/Rev.4 (1995), also available at the University of Minnesota Law School Internet site http:\\www.umn.edu\humanrts\icty\detention-rules.html .

Report ort the International Criminal Tribunal for the Former Yugoslavia 415 the rights and obligations of detainees at all stages from reception to release, and to provide the basic criteria for the management of the detention unit. 2 6 The 92 Rules of Detention reflect existing international standards, taking into account several basic principles and standard minimum rules for the treatment of prisoners drafted by the United Nations in the last twenty years as well as the standards set out in the European Prison Rules issued by the Council of Europe in 1987.27 In accordance with these standards three basic principles underlie the rules of detention. First, all persons awaiting trial must be presumed innocent until found guilty and be so treated. Second, human dignity of the detainees must be fully respected, implying humane treatment and the possibility to meet fundamental physical, moral and spiritual needs. Third, no discrimination based on race, color, gender, ethnic origin, religion or other ground is to be practiced or tolerated in the detention unit. To ensure that the detention unit is administered in accordance with these principles in the daily routine, the Rules of Detention make provision for frequent and unannounced inspections by an independent authority, which reports to the Tribunal on the conditions in the detention unit. 2 8 The International Committee of the Red Cross has offered the Tribunal its personnel and expertise for inspections of the detention unit. I I I . Structure of the Tribunal The structure of the Tribunal is laid down in Articles 11 -17 of the Tribunal statute. In addition to these provisions the Rules of Procedure and Evidence provide further rules to guarantee the necessary structure for the functioning of the Tribunal. 29 The Tribunal as a body established for the prosecuting of persons responsible for serious violations of international humanitarian law consists of three organs: a judicial organ (the chambers), a prosecutorial organ (the prosecutor) and a secretariat (the registry). 1. The Chambers and the Judges The chambers comprise two trial chambers and an appeals chamber. Three judges serve in each of the two trial chambers and five judges in the appeal chambers. The 26

Preamble to the Rules of Detention.

27

United Nations Standard Minimum Rules for the Treatment of Prisoners (1977), Principles for the Protection of all Persons under any Form of Detention or Imprisonment (1980), Basic Principles for the Treatment of Prisoners (1990). 28 29

Rules 6, 35 of the Rules of Detention.

Rules of Procedure and Evidence, adopted 14 March 1994, reprinted in: 33 I L M 493, Hague Yearbook of International Law, vol. 7, 1994, 254.

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Kai Koschorreck and Miriam Müller

General Assembly elected the eleven judges on 17 September 1993.30 It was mainly up to the judges to establish the legal framework of the Tribunal's operations. In the first session of the Tribunal, which was held from 17 November 1993 through 1 December 1993, the judges elected Antonio Cassese as President and determined the composition of all chambers. In the following session the judges drafted and adopted the Rules of Procedure and Evidence, as well as the Rules of Detention governing the detention unit. 2. The Prosecutor Article 16 of the Tribunal statute established for the first time a truly international prosecutor's office. The prosecutor is responsible for conducting all investigations and prosecutions of persons responsible for serious violations of international humanitarian law. He is also the one that submits indictments to a judge for confirmation and that argues the case before the chamber. The filling of the prosecutor's post turned out to be more difficult than expected. In October 1993 the Security Council appointed Ramon Escovar-Salom , public prosecutor of Venezuela at the time, as prosecutor of the Tribunal. In February 1994, before taking up work as prosecutor of the Tribunal, Escovar-Salom declared himself unable to serve in the position. It took the Security Council until July 1994 to appoint Richard /. Goldstone from South Africa as prosecutor of the Tribunal, who held the position from 15 August 1994 to 1 October 1996. After that point, Louise Arbour of Canada has been the prosecutor. 31 The office of the prosecutor consists of 126 staff including investigators, attorneys, researchers, analysts and support personnel and operates independently of the judges of the Tribunal. The office of the prosecutor comprises four separate sections. The largest of the four is the investigations section; the others are the prosecution section, the special advisory section and the administrative and records section. 3. The Registry The registry of the Tribunal according to Article 17 of the statute performs a unique range of duties concerning the administration and servicing of the Tribunal. The registry's task is to assist the chambers, the plenary meetings of the Tribunal, the judges and the prosecutor in the performance of their duties. The registry is therefore assigned a series of tasks and responsibilities in connection w i t h investiga30

U N Doc. A/DEC/47/328 (1993). The list of twenty-three candidates, selected by the Security Council in Resolution 857, was submitted to the General Assembly by the Secretary General on 26 August 1993, U N Doc. A/47/1005 (1993). 31

SC Res. 1047 of 29 February 1996.

Report o the International Criminal Tribunal for the Former

Yugoslavia 417

tions, pretrial proceedings and proceedings before the chambers. In addition to these provisions the Rules of Procedure and Evidence of the Tribunal set out specific tasks of the registry in connection with the administrative and financial management of the Tribunal. Under the authority of the President of the Tribunal, the registry serves also as channel of communication to the public and media. IV. Activities of the Tribunal The activities of the Tribunal in the time covered by this Report may be divided into pretrial proceedings on the one hand and the decisions made in the Tadic trial on the other. 1. Pretrial Proceedings To this point the decisions in pretrial proceedings have dominated the activities of the Tribunal. To begin a trial, the Tribunal must first issue indictments against suspected persons, request the deferral of proceedings commenced against such persons in national courts and issue international arrest warrants to force States to deliver the accused. The decisions of the Tribunal's two chambers on preliminary and interlocutory motions filed by Dusan Tadic questioning the jurisdiction of the Tribunal have been the most interesting part of the pretrial proceedings and will be treated at length. a) Indictments To mid-October 1996 the Tribunal has issued eighteen public indictments against a total of seventy-five persons.32 As these numbers show, in most cases of indictment the prosecutor made use of Rules 48 and 49 of Procedure and Evidence and on the one hand joined charges against several persons suspected of committing crimes in the course of the same transaction, and on the other hand joined several crimes of one person committed through acts forming the same transaction. Indictments are confirmed by the trial chamber if it is convinced by the evidence submitted by the prosecution in accordance with Rule 47(A) of Procedure and Evidence that there is a sufficient basis for believing that a suspect has committed a crime within the jurisdiction of the Tribunal. Indictments in accordance with Rule 47(B) of Procedure and Evidence contain the name of the suspect, a statement of facts and the crime the suspect is charged with.

32

See the list annexed to this Report.

27 G Y I L 39

418

Kai Koschorreck and Miriam Müller b) Requests for Deferral

Before Tadic > the Bosnian Serb leadership and some Bosnian Croats were indicted for various crimes by the Tribunal, Germany had already initiated proceedings against Tadic , and Bosnia-Herzegovina against the Bosnian Serb leaders and the Bosnian Croats, under the respective national penal law. As the crimes, however, also fall within the jurisdiction of the Tribunal, the Tribunal prosecutor made use of the primacy of the Tribunal provided for in Article 9 para. 2 of the statute. As an expression of this primacy the prosecutor was then able in accordance with Rules 8 to 10 of Procedure and Evidence either to request information directly from the State or to propose to the trial chamber that it formally request the national courts to defer in the matter to the Tribunal proceedings. Rule 9 of Procedure and Evidence allows for requests for deferral in three alternative situations: when the act being investigated or prosecuted in a national court is characterized as an ordinary crime; when there is a lack of impartiality or independence, or the investigations or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted; or when the case is closely related to or otherwise involves significant legal questions that may have implications for investigations or prosecutions before the Tribunal. The trial chamber issued the formal request for deferral in all three cases as the national investigations and criminal proceedings were closely related to or otherwise involved legal questions that might have implications for investigations or prosecutions before the Tribunal. 33 The first request for deferral was confirmed by the trial chamber in the Tadic case on 11 November 1994. The formal request was addressed to Germany, whose authorities arrested Tadic in Munich in February 1994. After enacting the necessary legislation in March 1995 Germany promptly transferred Tadic on 24 April 1995 to the authority of the Tribunal. In the case of the Bosnian Serb leaders Radovan Karadzic , Ratko Mladic and Mico Stanisic a formal request for deferral was issued according to the prosecutor's proposal on 16 May 1995. This time the request was addressed to Bosnia-Herzegovina, where an investigation against the Bosnian Serb leadership was under way. Since Bosnia-Herzegovina had promised in a memorandum of understanding with the Tribunal of December 1994 to cooperate w i t h the Tribunal, all information and evidence pertaining to crimes committed by the Bosnian Serb leadership was handed over to the Tribunal prosecution. The third request for deferral issued on 16 May 1995 was also addressed to Bosnia-Herzegovina in the case of several unnamed suspects belonging to the Bosni-

33

For Tadic see Human Rights Law Journal, vol. 15, 1994, 486. For Karadzic , Mladic and Stanisic see Human Rights Law Journal, vol. 16, 1995, 217. For the Bosnian Croats see Human Rights Law Journal, vol. 16, 1995, 235.

Report on the International Criminal Tribunal for the Former Yugoslavia 419 an Croat forces suspected of launching an offensive against the Muslim population of the Ahmici village in the Lasva river valley. c) Warrants and International Warrants of Arrest In most cases of indictment warrants for the arrest of the accused in accordance w i t h Rule 55(B) of Procedure and Evidence were issued and transmitted to the national authorities of the State in whose territory the accused was deemed to reside or was last known to be. The majority of warrants were addressed to the Federal Republic of Yugoslavia. The indictments, however, have often not been personally served on the accused. In that situation, and when the accused has eluded justice or the authorities of the State have been unsuccessful in locating the accused, Rule 61 applies. After having taken all reasonable steps to effect personal service, Rule 61 allows the prosecution to resubmit to the trial chamber all evidence on which the indictment is based. If the judges find that there is reason to believe that the accused has committed the crimes, they may endorse the indictment and issue an international arrest warrant or inform the Security Council of the lack of cooperation by a State. The Rule 61 procedure is not a trial in absentia , which is not provided for by the Tribunal statute. It enables the Tribunal to set forth the crimes w i t h which the accused is charged. Yet neither is guilt determined nor is a sentence pronounced. Only after the international warrant has been executed may the trial take place. Thus far international arrest warrants have been issued in five cases against a total of eight persons. In several other cases of indicted persons for which Rule 61 is applicable the procedure is still under way and international arrest warrants will be issued in the near future. 34 d) Decisions on Preliminary and Interlocutory Motions Although the considerable number of eighteen public indictments against seventy-five persons have been issued from May 1993 to October 1996, few of the accused are in confinement at the Hague and have made their first appearance before the trial chamber under Rule 62 of Procedure and Evidence. The eight persons in confinement at the Hague thus far Tadic , Djordje Djukic , General Tihofil Blaskic , Zdravko Muck, Zejnil DelaliCy Drazen ErdemoviCy Hazim Delic and EsadLandzo have made their first appearance before the trial chamber under Rule 62. A l l of them except for Drazen Erdemovic, a Bosnian Croat, have pled not guilty to all charges. Drazen Erde-

34

Branislav MilinkoviCy Affairs, vol. 47, 1996, 19.

27*

The Hague Tribunal's Practice so Far, Review of International

420

Kai Koschorreck and Miriam Müller

movie, accused of shooting ten to one hundred unarmed Muslim men in the fields near Pilica pled guilty with respect to the charge of crimes against humanity. Almost all of them have filed preliminary motions under Rules 72 and 73 of Procedure and Evidence, some of which are treated below. The legally most interesting pretrial proceedings are those against Tadic , which are treated last. The decisions on his motions questioning the Tribunal's jurisdiction are of great interest with respect to general international public law, international penal law and the humanitarian law of armed conflict. 35 They must be seen as precedent for all future cases that w i l l come before the Tribunal. 36 aa) The Djukic Case Djordje Djukic was released for humanitarian reasons. He died on 18 May 1996 and the case was discontinued. Prior to his death, he filed several pretrial motions contending that the indictment was invalid as the prosecutor had not sought a deferral of the proceedings in the courts of Bosnia-Herzegovina against Djukic. The motion was denied by the trial chamber, which ruled that the prosecutor has discretion regarding the suitability of a request for deferral. Another motion challenging the indictment for imprecision and incompleteness was granted. The trial chamber found that the indictment was not sufficiently precise with respect to the role played by Djukic in the shelling of civilian targets during the siege of Sarajevo. 37 bb) The Blaskic Case The motions made so far in the Blaskic case relate to detention and call for modification of the detention circumstances, namely a transfer from the detention unit to a secret detention residence. The transfer and further modifications of the detention conditions were granted after hearings before Judge Cassese in early April 1996.38 In another motion Blaskic applied for provisional release. This was rejected on 25 April 1996. The date for the trial proceedings to start has been set as 7 January 1997; the prosecution has consequently been ordered to disclose to Blaskic all witness statements, unredacted, before 1 December 1996. The Blaskic trial will begin on 8 January 1997.39

35

Annual Report No. 3 of the International Tribunal, U N Doc. A/51/292 (1996), 17.

*>Id. "Id.,

18.

38

Bulletin for the International Criminal Tribunal for the Former Yugoslavia, No. 5/6, 1996, 1, 2. 39

Bulletin for the International Criminal Tribunal for the Former Yugoslavia, No. 10,

Report on the International Criminal Tribunal for the Former Yugoslavia

421

cc) The Mucic Case Zdravko Mucic is one of four persons charged with crimes committed in the Celebici camp. He put forward several preliminary motions, one of which requested deferral; this was denied on 25 September 1996. dd) The Delalic Case Delalic filed several pretrial motions on 20 August 1996, one demanding provisional release, the second challenging the form of the indictment and the third requiring the disclosure of evidence.40 The trial chamber denied all of the motions. 41 A joint motion of Delalic and Mucic asking for separate trials was also rejected. Delalic*s applications for leave to appeal were rejected by an appeals bench. ee) The Hazim Delic and EsadLandzo Cases Delic and Landzo on 1 October 1996 filed motions demanding provisional release and challenging the form of indictment. ff) The Erdemovic Case Erdemovic was extradited to the Tribunal in March 1996 by the authorities in Belgrade. N o motions have been made in the case. gg) The Tadic Case Tadic in June 1995 filed a preliminary motion pursuant to Rule 73 (A) (i) including objections based on lack of jurisdiction under three categories: improper establishment of the Tribunal, improper primacy of the Tribunal and challenges to the subject-matter jurisdiction of the Tribunal. 42 The trial chamber ruled on the Tadic motions on 10 August 1995. The trial chamber refused to rule on the first ground and denied the others. Tadic then made use of his right to an interlocutory motion against the trial chamber decision under Rules

1996,1. 40

Id

41

Id.

42

Reprinted in: Human Rights Law Journal, vol. 16, 1995, 426 - 427.

422

Kai Koschorreck and Miriam Müller

72 and 116bis of Procedure and Evidence. The competent appeals chamber on 2 October 1995 agreed to hear the appeal; it then denied the appeal. aaa) Legality of the Tribunal's Establishment i. Arguments of Tadic Tadic argued that the Tribunal was not lawfully established, claiming that an international tribunal must be created by an international treaty and not by a resolution of the Security Council, unless the United Nations Charter were amended in that respect.43 This is clear, according to Tadic, from the content of the United Nations Charter, which in none of its provisions authorizes the creation of criminal liability for individuals. Furthermore, it was argued that in particular the Security Council is not given the power to establish an international tribunal, neither under Article 29 of the United Nations Charter as a measure establishing a subsidiary organ, nor under Chapter V I I as a measure to maintain or restore international peace and security. 44 Tadic also argued that even if Article 41 of the United Nations Charter is a sound legal basis for the establishment of a tribunal, there is no evidence that a tribunal is an effective measure for the maintenance or restoration of international peace and security. 45 Tadic also argued that the establishment of the Tribunal was an unrepresentative act that by not involving the General Assembly violated the principles of the United Nations Charter. 46 Tadic in conclusion maintained that the Tribunal in determining its jurisdiction must consider and rule on these arguments as, according to Tadic, it is clear from Rule 73 (A) (i) of Procedure and Evidence and from statements of the International Court of Justice47 that the Tribunal has the power to review the resolution of the Security Council that created it. 4 8

43 Prosecutor v. Dusko Tadic (also known as Dule ), IT-94-1-T, 10 August 1995 (trial chamber), decision on defense motion on jurisdiction, reproduced in: Human Rights Law Journal, vol. 16, 1995 (hereinafter: Tadic — Trial Chamber Decision), para. 2. 44

Id.

45

Id.

46

Id.

47 Certain Expenses of the United Nations, 1962 ICJ 151, 168; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276, 1971 ICJ 16, 45; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, 1992 ICJ 114, 176. 48

Tadic — Trial Chamber Decision (note 43), para. 2.

Report o the International Criminal Tribunal for the Former

Yugoslavia 423

ii. Decision of the Trial Chamber The trial chamber held that the competence of the Tribunal is reduced to ruling on its jurisdiction with respect to temporal and geographic limits and with respect to limits as to persons and subject-matter. 49 It denied the competence to review Security Council Resolutions 808 and 827 creating the Tribunal, as it held that resolutions of the Security Council are fact-based and raise political, non-justiciable issues.50 In support of its decision the trial chamber reasoned that under Article 24 of the United Nations Charter the Security Council is responsible for the maintenance of international peace and security, and that the Security Council has broad discretion under Chapter V I I with respect to measures enforcing this mandate. The trial chamber on this point relied on the ICJ decisions cited to it by Tadic. 51 Because the trial chamber denied the competence to review the Security Council resolution by which the Tribunal was created, it did not treat in great detail the arguments put forward by Tadic. iii. Decision of the Appeals Chamber In its motion to the appeals chamber Tadic raised the same issues as in the preliminary motion. The appeals chamber with respect to the question of jurisdiction took a position differing from that of the trial chamber. The appeals chamber first determined that under Article 25 of the Tribunal statute and Rule 72(b) of Procedure and Evidence it had jurisdiction to hear and determine Tadic's interlocutory appeal.52 With respect to the first basis of Tadic's arguments the appeals chamber in deviation from the trial chamber came to the conclusion that the Tribunal has jurisdiction to rule on a plea against its jurisdiction based on the invalidity of its establishment by the Security Council. 53 In contrast to the trial chamber, the appeals chamber found that with respect to an international tribunal a broader concept of jurisdiction than in cases before national courts must apply, as in international law every tribunal is a self-contained system.54 The appeals chamber held that the competence 49

Id., para. 4.

50

Id., para. 24.

51

Id., paras. 10-13.

52

Prosecutor v. Dusko Tadic (also known as Dule), IT-94-1-AR 72, 2 October 1995 (appeals chamber), decision on the defense motion for interlocutory appeal on jurisdiction, reprinted in: Human Rights Law Journal, vol. 16, 1995 (hereinafter Tadic — Appeals Chamber Decision), paras. 4 - 6. 53

Id. , para. 22.

54

Id., paras. 10-12.

424

Kai Koschorreck and Miriam Müller

of any tribunal to determine its jurisdiction (incidental, inherent jurisdiction 55 ) is a necessary component in the exercise of the judicial function of the tribunal that does not need to be expressly provided for in the constitutive instrument. 56 The appeals chamber rejected the ICJ jurisprudence cited by the trial chamber as evidence for a narrower concept of jurisdiction. This jurisprudence addresses the issue whether the legality of acts of the Security Council falls within a judicial organ's jurisdiction as a matter of primary, subject-matter jurisdiction. 57 The appeals chamber characterized the doctrine of political and non-justiciable disputes drawn on by the trial chamber as outdated. 58 W i t h respect to the legality of the Tribunal's creation by the Security Council, the appeals chamber held that in the case of the former Yugoslavia the Security Council was entitled to act under Chapter V I I of the United Nations Charter as — regardless of the international or internal nature of the conflict — there was a threat to the peace.59 The appeals chamber held that the Security Council in case of conflict is not limited to the measures expressly mentioned in Chapter VII. 6 0 It added that the creation of an international tribunal as a measure under Chapter V I I may be based on Article 41 of the United Nations Charter even if the list there provided focuses on economic and political measures.61 The appeals chamber rejected Tadic's contention that the Security Council as a body with only executive competences does not have the power to establish a subsidiary organ endowed with judicial power. 62 Tadic's contention that according to a general principle of law courts must be established by law also did not meet with the approval of the appeals chamber. 63 Whereas Tadic argued that establishing a court by law requires an act of a legislative body, 6 4 the appeals chamber held that in international law establishing a court by law means that a court's establishment must be in accordance with the rule of law, 65

55

Id. , para. 14.

56

Id , para. 18.

57

Id., para. 21.

58

Id. , paras. 23 - 25.

59

Id ., paras. 28 - 30.

60

Id., para. 32.

61

Id., paras. 33, 34.

62

Id., para. 38 (referring to the General Assembly, which without military or judicial powers was able to establish in 1956 the United Nations Emergency Force in the Middle East and the United Nations Administrative Tribunal). 63

Id. , para. 48.

64

Id., para. 43.

65

Id., para. 45.

Report o the International Criminal Tribunal for the Former Yugoslavia 425 with the requirement that the court be established by a competent organ in keeping w i t h the relevant legal procedures and observing the requirements of procedural fairness. 66 These elements are safeguarded with regard to the Tribunal, according to the judges, as Article 14 of the International Covenant on Civil and Political Rights 67 has been adopted almost verbatim in Article 21 of the Tribunal statute^8; further guarantees of the court's establishment under the rule of law are given in the Rules on Procedure and Evidence.69 Thus the appeals chamber dismissed entirely the first ground of the appeal on the unlawful establishment of the Tribunal. bbb) Primacy of the Tribunal over National Courts i. Arguments of Tadic Tadic argued that the primacy of jurisdiction conferred on of the Tribunal under Article 9(2) of the Tribunal statute over national courts violates international law because the national courts of Bosnia-Herzegovina or of the entity referred to as the Bosnian Serb Republic have primary jurisdiction to try the accused.70 ii. Trial Chamber Decision The trial chamber held that the conferral of primary jurisdiction on the Tribunal does not constitute an infringement of the sovereignty of States. The trial chamber reasoned first, that the Tribunal is not entitled to review a resolution passed by the Security Council 71 ; second, that the accused has no locus standi as States and not individuals may invoke the issue of primacy, which neither Germany nor Bosnia-Herzegovina had done 72 ; and third, that the crimes dealt w i t h by the Tribunal are not crimes of a purely domestic nature, but of universal interest. 73 Thus the trial chamber held that the sovereign rights of States cannot take precedence over the right of the international community to adjudicate these atrocities. 74 66

Id.

67

999 U N T S 171; 6 I L M 368.

68

Tadic — Appeals Chamber Decision (note 52), para. 46.

69

Id.

70

Tadic — Trial Chamber Decision (note 43), para. 41.

71

Id.

71

Id.

73

Id. , para. 42.

74

Id.

426

Kai Koschorreck and Miriam Müller iii. Appeals Chamber Decision

In his appeal Tadic repeated that the grant of primacy to the Tribunal under Article 9 of the Tribunal statute constitutes a violation of State sovereignty. The appeals chamber found against the opinion of the trial chamber that Tadic should have the right to plead State sovereignty. The appeals chamber stated that Tadic's reference to Article 2 para. 7 of the United Nations Charter does not affect the result as this provision "shall not prejudice the application of enforcement measures under Chapter V I T such as the Tribunal itself. 75 The appeals chamber, as the trial chamber did, referred to decisions of national courts that stated years ago that in the case of heinous crimes not only national but also international interests are impaired, and that consequently while an international institution is still lacking, one State may try the criminal as an agent of the world community. 76 If this is true for national courts, an international tribunal is even more in the position to act as an agent for the world community. 7 7 The plea concerning State sovereignty therefore was dismissed. ccc) The Tribunal's Competence ratione materiae i. Arguments of Tadic Tadic as a third point questioned the subject-matter jurisdiction of the Tribunal. Tadic contended that the crimes with which he was charged did not fall within the subject-matter jurisdiction of the Tribunal. Tadic argued that from their wording and their historical background all three categories of crimes — grave breaches of the 1949 Geneva Conventions (Article 2 of the Tribunal statute), violations of the laws and customs of war, allegedly based on the Hague Convention (IV) respecting the Laws and Customs of War on Land and the regulations thereto of 18 October 190778 (Article 3 of the Tribunal statute), and crimes against humanity (Article 5 of the Tribunal statute) — for which Tadic was indicted presuppose the existence of an international conflict where and when the criminal act was committed. 79 Tadic contended that none existed at any relevant time or place and consequently that his crimes were beyond the Tribunal's jurisdiction.

75

Tadic — Appeals Chamber Decision (note 52), para. 56.

76

Id. , para. 59.

77

Id.

78

Regulations annexed to 1907 Hague Convention (TV) respecting the Laws and Customs of War on Land, reprinted in: James Brown Scott , The Hague Conventions and Declarations of 1899 and 1907, 1915, 100. 79

Tadic — Trial Chamber Decision (note 43), paras. 50, 57, 77.

Report on the International Criminal Tribunal for the Former Yugoslavia ii. Decision of the Trial Chamber I n contrast to the expectations of international jurists 80 the prosecution and the trial chamber did not draw temporal and geographic lines to determine when and where the conflict in the former Yugoslavia was internal or international in character. The trial chamber instead came to the conclusion that all three categories of crimes w i t h which Tadic was charged fall within the subject-matter jurisdiction of the Tribunal even if these crimes were committed in a purely internal conflict. With respect to breaches of the 1949 Geneva Conventions codified in Article 2 of the Tribunal statute the trial chamber reasoned that the wording of Article 2 does not require an element of internationality. The trial chamber also repeated the report of the Secretary General stating that the rules of international law to be applied by the Tribunal including the 1949 Geneva Conventions should beyond any doubt be part of customary law, so that problems of non-adherence of particular States to any international treaty would not arise. Presuming consequently that the 1949 Geneva Conventions reflect customary international law, this argument leads to the conclusion that the requirement of an international conflict in common Article 2 of the Geneva Conventions must be fulfilled in order to remain within the limits of customary international law. The trial chamber however saw Article 2 of the Tribunal statute as on its face self-contained, meaning that Article 2 simply confers subject-matter jurisdiction to prosecute what, if one were concerned w i t h the Geneva Conventions would be grave breaches of those conventions, but which are in the present context simple enactments of the Tribunal statute.81 The trial chamber further argued that common Article 2 of the Geneva Conventions was created to avoid infringement of State sovereignty by one national court bringing to trial breaches committed by individuals of another State in an internal conflict within that other State. These considerations, the trial chamber held, do not apply to the Tribunal, any more than the references in the conventions to the 'High Contracting Parties' do. 82 Finally the trial chamber stated that there even were some indications for special agreements made under common Article 3 para. 2 of the Geneva Conventions w i t h respect to the operation of the Geneva Conventions. 83 More sophisticated reasoning was required of the trial chamber to show that individual criminal responsibility under Article 3 of the Tribunal statute arises also for violations of the laws and customs of war when committed in internal conflicts. The 80 See George H. Aldrich , Editorial Comment: Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, American Journal of International Law, vol. 90, 1996, 64, 67. 81

Tadic — Trial Chamber Decision (note 43), para. 51.

82

I d , para. 52.

83

Id. , para. 54.

427

428

Kai Koschorreck and Miriam Müller

trial chamber stated that the wording of Article 3 of the Tribunal statute does not require an element of internationality since in contrast to Article 2 of the Tribunal statute no particular convention is especially mentioned. 84 The judges could not ignore, however, that the reference to the laws and customs of war and the list of prohibited acts strongly hint at a connection to the Hague Convention, which is applicable only to international conflicts. 85 The trial chamber overcame this obstacle through an interpretation of common Article 3 of the Geneva Conventions. This provision, according to the trial chamber, prohibits in internal conflicts the same actions as the Hague Convention forbids in international conflicts 86 ; more importantly, since the ICJ judgment in the Nicaragua case common Article 3 of the Geneva Conventions is recognized to be part of customary international law. 87 The trial chamber noted the Lieber Code, military manuals, the International Law Commission and literature as further evidence for customary international law limits on the conduct of hostilities in internal armed conflicts. 88 This reasoning of the trial chamber does not completely refute Tadic's contention that no customary law rule providing for individual criminal responsibility for crimes committed in internal armed conflict exists. Such a rule at least does not follow from the Geneva Conventions. The offenses listed in common Article 3 are clearly not designated as 'grave breaches' for which under the Geneva Conventions individual criminal responsibility may arise. 89 The trial chamber neglected this and relied mostly on the Lieber Code, literature and the 'criminal nature of acts' within common Article 3 as evidence for a customary law rule that violations of the laws and customs of war contained in common Article 3 give rise to individual criminal responsibility. 90 The trial chamber further supported its view by arguing that individual responsibility need not necessarily be mandated in a convention, as the Nuremberg Tribunal punished World War I I criminals on the basis of the Hague Convention and other instruments although these conventions contain no reference to penal prosecution. 91 The trial chamber also concluded from the lack of an explicit obligation in the Geneva Conventions to punish or extradite violators of common Article 3 that all States have the right to do so. 84

Id ., paras. 59, 60.

85

I d , para. 60.

86

Id. , paras. 57, 60.

87

Id, para. 67; Military

88

Tadic — Trial Chamber Decision (note 43), para. 63.

and Paramilitary

Activities in and against Nicaragua, 1986 ICJ 4.

89 See Article X X of the Geneva Convention, which provides for individual responsibility only for acts qualified by the conventions as 'grave breaches'. Historically common Article 3 was a compromise between State parties: prohibition yes, criminalization no. 90

Tadic — Trial Chamber Decision (note 43), para. 68.

91

Id. , para. 70.

Report on the International Criminal Tribunal for the Former Yugoslavia The trial chamber also found the principle of nullum crimen sine lege to be satisfied, because common Article 3 of the Geneva Conventions is recognized as part of customary international law and the Yugoslav criminal code criminalized the offenses. The trial chamber regarded as ill-founded Tadic's contentions that the requirement of internationality for crimes against humanity can be deduced from the Nuremberg Charter and the affirmation of this charter by the General Assembly in Resolution 95 of 1948 and that a criminal application violates the nullum crimen sine lege principle. 92 In particular the trial chamber clarified that today there need not be any nexus between an armed conflict and the commission of crimes against humanity. 9 3 iii. Appeals Chamber Decision The appeals chamber was presented with an argument by Tadic that had not been raised before the trial chamber. Tadic claimed that in the Prijedor region, in which the allegedly criminal action of Tadic occurred, no legally cognizable armed conflict existed. 94 The appeals chamber rejected this preliminary argument by noting that most provisions of the Geneva Conventions relating to the protection of prisoners of war and civilians apply anywhere in the territory of parties and not only to the vicinity of hostilities. 95 The appeals chamber held that the same must be true w i t h respect to a purely internal armed conflict. 96 The appeals chamber's treatment of the third ground of Tadic's appeal began w i t h a traditional interpretation of Articles 2, 3 and 5 of the Tribunal statute at issue. The appeals chamber therein underscored inter alia that the members of the Security Council approved the statute authorizing the trial of crimes committed in an internal conflict. 97 With respect to Article 2 of the Tribunal statute, the appeals chamber found against the reasoning of the trial chamber that the protected objects

92

Id. , paras. 75 - 83.

93

Id., para. 78.

94

Tadic — Appeals Chamber Decision (note 52), para. 66.

95

Id., para. 68.

96

Id., paras. 69, 70.

97 See the statements by representatives of France, the United States and the United Kingdom, Provisional verbatim Record of the 3217th Meeting, U N Doc. S/PV.3217 (25 May 1993), 11, 15, 19 where the United States representative indicated that the jurisdiction of the Tribunal under Article 3, with respect to laws and customs of war, includes any humanitarian law agreement in force in the former Yugoslavia, i.e. common Article 3 of the 1949 Geneva Convention and even the additional protocols thereto.

429

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Kai Koschorreck and Miriam Müller

of Article 2 must be involved in an international armed conflict, 98 i.e. grave breaches committed in an internal conflict are beyond the jurisdiction of the Tribunal. 99 W i t h respect to the Tribunal's jurisdiction under Article 3 of the Tribunal statute the appeals chamber shared the view of the trial chamber. 100 The evidence presented by the appeals chamber for the existence of individual criminal responsibility for the violation of laws and customs of war committed in internal conflicts 101 however is far more convincing as the appeals chamber referred to historical examples of internal armed conflicts 102 and clearly drew a distinction between the prohibition of certain acts and the individual responsibility that arises from their commission. 103 W i t h respect to the scope of Article 5 of the Tribunal statute, the appeals chamber followed the arguments of the trial chamber and concluded that the internationality of the conflict is not a prerequisite for a crime to fall within the jurisdiction of the Tribunal. 104 ddd) ins de non evocando In preliminary motions and in the appeal, Tadic invoked the principle ius de non evocando , a feature of some national constitutions 105 that requires that an accused be tried by regularly established courts and not by a special tribunal established for that particular purpose. The trial chamber held that this right may not be invoked against an action of the Security Council under Chapter V I I of the United Nations Charter as States know when becoming a member of the United Nations that they surrender some of their sovereign rights. 106 It is already clear from this reasoning that the trial chamber found it to be doubtful whether an individual defendant has standing to raise this point. 1 0 7 The appeals chamber also considered the invocation of this right to be ill-founded and dismissed accordingly. 108

98

Tadic — Appeals Chamber Decision (note 52), paras. 80, 81.

99

Id, para. 84.

100

Id., para. 137.

101

Id. , paras. 86 - 137.

102

The appeals chamber referred to the Spanish Civil War of 1936 - 1939, the Chinese revolution of 1947, the Nigerian Civil War of 1966 - 1969 and the El Salvador conflict of 1988. 103

Tadic — Appeals Chamber Decision (note 52), para. 94.

104

Id., paras. 138- 142.

105

For a list of some relevant constitutions see id., para. 61.

106

Tadic — Trial Chamber Decision (note 43), para. 37.

107

Id.

108

Tadic — Appeals Chamber Decision (note 52), paras. 62 - 64.

Report on the International Criminal Tribunal for the Former Yugoslavia 431 e) Trial Chambers Proceedings O f the cases in which the accused have made a first appearance and have filed pretrial motions only two, the case against Tadic and the case against Drazen Erdemovie , have reached the stage of trial proceedings. aa) The Tadic Trial The first proceedings before the trial chamber were against Tadic. The proceedings began on 7 May 1996 and are expected to continue to November. Prior to the start of the proceedings the prosecution dropped the charge of rape as the necessary witnesses refused to appear before the Tribunal. The course of the trial has been characterized by a multitude of motions on either side and many adjournments. In its first decision of 5 May 1996 the trial chamber granted witness protection for prosecution witness ' P \ 1 0 9 The trial was adjourned from 26 June to 16 July 1996. O n 31 July 1996, the trial chamber ordered that prosecution witness 'R' be protected by distortion of a broadcast image of the witness. Tadic's motion claiming that the depositions of one of the prosecution witnesses was hearsay was rejected on 8 August 1996. 110 The trial was adjourned a second time from 16 August to 10 September 1996. The trial chamber on 13 September 1996 denied Tadic's motion to dismiss certain charges. O n 25 September 1996 the main prosecution witness 'L' admitted he had lied in a hearing closed to the public in saying that Tadic killed several older inmates in the Trnopolje camp. According to trial observers, the prosecution is now short of evidence supporting the indictment and thus likely will be forced to drop some of the charges against Tadic. 111 bb) The Erdemovic Trial Drazen Erdemovic was the first of the accused to be sentenced by the Tribunal; he was sentenced to ten years' imprisonment on 3 December 1996.112 The trial chamber found Erdemovic guilty of shooting ten to one hundred persons through participation near Pilica in the execution of twelve hundred unarmed men that had been transferred in buses from Srebrenica. 113 Erdemovic tried to justify his participation 109

Compare Bulletin for the International Criminal Tribunal for the Former Yugoslavia, N o . 5/6 -10, 1996. 110

Bulletin for the International Criminal Tribunal for the Former Yugoslavia, N o . 9/10, 1996, 3. 111

Frankfurter Allgemeine Zeitimg, 26 October 1996, 1.

112

Süddeutsche Zeitung, 4 December 1996, 1.

113

Frankfurter Allgemeine Zeitimg, 4 December 1996, 16.

432

Kai Koschorreck and Miriam Müller

i n the massacre b y arguing that he had been threatened w i t h death if he d i d n o t shoot the M u s l i m s . 1 1 4 The trial chamber rejected this as it was n o t confirmed b y surv i v i n g witnesses. Erdemovic's

cooperation w i t h the prosecution as w e l l as his readi-

ness t o give depositions under Rule 61 of Procedure and Evidence for the issuance o f an international arrest warrant against Radovan Karadzic m i t i g a t i n g effect o n his sentence. Erdemovic

and Ratko Mladic had a

has announced that he w i l l appeal the

t r i a l chamber decision.

Annex List of Indictments 115

04.11.1994

Indictment against Dragan Nikolic Susica camp.

13.02.1995

Indictment against Zeljko Meakic and eighteen others 116 ; charges include killings, rape, sexual assaults, beatings and other mistreatment committed against prisoners at the Omarska camp near Prijedor.

13.02.1995

Indictment against Dusan Tadic and Goran Borovnica 117; charged inter alia with killings and mistreatment outside the Omarska camp near Prijedor.

21.07.1995

Indictment against Dusko Sikirica and twelve others; charged w i t h crimes committed at the Keraterm camp; four of them were already charged with crimes committed at the Omarska camp, indicted 13.02.1996; one of the accused, Goran Lajic , arrested in Germany on 22 March 1996, but charges withdrawn on 17 June 1996 and remanded to Germany.

21.07.1995

Indictment against Slobodan Miljkovic and five others; charged w i t h atrocities committed at Bosanski Samac.

21.07.1995

Indictment against Goran Jelesic and Ranko Cesic ; charged w i t h crimes committed at the Luka camp, Brcko.

25.07.1995

Indictment against Radovan Karadzic and Ratko Mladic ; charged w i t h crimes against the civilian population throughout Bosnia, of sniper fire against Sarajevo citizens and taking United Nations personnel hostage as human shields.

25.07.1995

Indictment against Milan Martic (leader of Krajina Serbs) 118; convicted for the shelling of Zagreb on 2/3 July 1995.

114

Süddeutsche Zeitung, 4 December 1996, 1.

115

34 I L M 996.

116

34 I L M 1013.

117

34 I L M 1995 1013, 1028.

118

Milinkovic (note 34), 19.

; charged w i t h several killings i n the

Report on the International Criminal Tribunal for the Former Yugoslavia 29.08.1995

Indictment against the Croat Ivica Rajic y member of H V O 1 1 9 ; charged w i t h launching an attack against the village Stupni Do.

07.11.1995

Indictment against the three Yugoslav People's A r m y officers 120 Mile Mrksic, Miroslav Radic and Veselin Sljivancanin ; charged w i t h murder of 261 inmates of the Vukovar hospital.

10.11.1995

Indictment against six members of the Croatian Defense Forces; charged with crimes in the Lasva valley 121 ; only two, General Tihofil Blaskic/Blushkitch, and Zlatko Alekosovski are in confinement at the Hague awaiting trial.

10.11.1995

Indictment against Zoran Marinic and nine others; Lasva river valley.

10.11.1995

Zoran Kupreskic and seven others; Lasva river valley.

16.11.1995

Second indictment against Radovan Karadzic and Ratko Mladic after the fall of Srebrenica.

02.02.1996

Two Serb generals, Djordje Djukic and Alexa Krsmanovic , arrested in Sarajevo by the Bosnian administration on their way to IFOR; flown to the Hague and taken into confinement; Krsmanovic was returned to BosniaHerzegovina without indictment by the end of March as he was no longer needed as a witness. 122

01.03.1996

Indictment against Djorde Djukic ; the accused died 18 May 1996 after release for humanitarian reasons.

21.03.1996

Indictment against four persons convicted of crimes against Bosnian Serbs in the Celebici camp: Zeynal Delalic/Zdravko Mucic/Hazim Delic/Esad Landjo y all in confinement 123 ; deliberations under way on whether single trial or separate proceedings should be initiated.

29.05.1996

Indictment against Drazen Erdemovic 124; suspected of mass killing in Srebrenica; in confinement, handed over by Federal Republic of Yugoslavia as a witness; pled guilty to the charges brought against him.

26.06.1996

Indictment against Gagovic and seven others 125 ; first indictment dealing specifically with sexual offenses, namely charges of gang rape, torture and enslavement of Muslim women at Foca.

119

Id.

120

Id.

m

Id.

122

Bulletin for the International Criminal Tribunal for the Former Yugoslavia, No. 10, 1996, 4. 123

Id.

124

Id.

125

Bulletin of Legal Developments, No. 17/18, 16 September 1996, 216.

28 G Y I L 39

433

Kadic v. Karadzic and Doe I and I I v. Karadzic: The Latest Stage in Alien Tort Act Jurisprudence By Eric Johnson*

A new theater has opened in the Bosnia conflict. The plaintiffs in the cases Kadic v. Karadzic 2nd Doe I and II v. Karadzic are pursuing their international law human rights claims against Bosnian Serb Radovan Karadzic in federal district court in New York. The plaintiffs' case is based on the Alien Tort Act, a statute that grants United States federal courts subject matter jurisdiction in a civil action for violations of international law. The cases were brought in the United States District Court for the Southern District of New York in New York City, which dismissed the cases on 1 September 1994.1 The Second Circuit Court of Appeals reversed on 13 October 1995.2 The defendant's petition for certiorari was denied by the United States Supreme Court on 17 June 1996,3 and the case was returned to the district court for a trial the outcome of which is pending at the time of this Report's publication. The Second Circuit decision of October 1995 allowing the cases to proceed is a significant decision in Alien Tort Act law. First, the Second Circuit held that international law violations generally, and genocide and war crimes specifically, do not require state action under Alien Tort Act law. Second, the Second Circuit, for international law violations requiring state action, provided some interesting views on when state action exists. Third, the Second Circuit held that service of process to obtain personal jurisdiction over United Nations invitees traveling to the United Nations is proper under American law.

* The Author thanks the following for supplying copies of briefs in the case: Catharine MacKinnon , counsel for the Kadic plaintiffs, Beth Stephens, counsel for the Doe I and II plaintiffs, Lawrence Schilling and Ramsey Clark , counsel for Radovan Karadzic , Jordan Paust and Frederick Abbott , two of the authors of the law professors' amicus curiae brief submitted to the Second Circuit, the Lowenstein International Human Rights Clinic (Yale University) and the United States Court of Appeals for the Second Circuit. 1

Kadic v. Karadzic and Jane Doe I and II v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994).

2

Kadic v. Karadzic and Jane Doe I and II v. Karadzic, 70 F.3d 232 (2d Cir. 1995), reprinted in: 34 I L M 1592. 3

116 S.Ct. 2524.

Kadic v. Karadzic and Doe I and II v. Karadzic This Report analyzes the Second Circuit decision in the Kadic v. Karadzic and Doe I and II v. Karadzic cases. Part I presents the plaintiffs' legal and factual claims. Part I I presents a short background of Alien Tort Act law. Part I I I discusses the Second Circuit's holding on the liability of private individuals under Alien Tort Act law. Part I V discusses the Second Circuit's holding on state action. Part V discusses the Second Circuit's holding on personal jurisdiction. Part V I discusses other aspects of the Second Circuit decision. I. Plaintiffs' Claims 1. Legal Claims The Kadic/Doe I and II plaintiffs accuse defendant Karadzic of violating international law norms concerning genocide, torture and the rules of war in his role as leader of the Bosnian Serbs.4 2. Factual Claims Each action is a class action. The Kadic plaintiffs include women and children of the organizations Zene Bosne I Hercegovine (Zene BiH) and Internationalna Iniciative Zena Bosne I Hercegovine (Biser)5 described as "survivors of atrocities committed during a campaign of genocide through war directed at them as Muslim and Croatian women and children citizens of Bosnia-Herzegovina." 6 "[The plaintiffs], and members of their families — almost all of them civilian noncombatants — were murdered, expelled from their homes, forcibly imprisoned and starved and systematically tortured, including in camps maintained at the direction and under the control of defendant [Karadzic]" 7 Many of the female plaintiffs "were sexually assaulted by military forces under the command and control of [Karadzic]. Some were thereby forcibly impregnated." 8

4 Kadic Second Circuit Brief (Docket No. 94 - 9069), 21. The Doe I and //brief before the Second Circuit accuses Karadzic of "egregious human rights violations in Bosnia-Herzegovina, including genocide, war crimes, crimes against humanity, summary execution, rape and other torture and cruel, inhuman or degrading treatment." Doe I and II Second Circuit Brief (Docket N o . 94 - 9035), 9. 5 6 7 8

Kadic Second Circuit Brief, 3. Id. Id., 4.

Id. The Kadic brief before the Second Circuit also makes the claim that some of the plaintiffs were subjected to "enforced prostitution." Id., 6.

*

436

Eric Johnson

T h e Doe I and II action is " o n behalf of all w o m e n and men w h o suffered rape, summary execution, other t o r t u r e o r other cruel, i n h u m a n o r degrading treatment inflicted b y Bosnian Serb m i l i t a r y forces under the c o m m a n d and c o n t r o l o f Karadzic

between A p r i l 1992 and the present," 9 victims of a " b r u t a l campaign o f

atrocities inflicted o n the Bosnian M u s l i m population . . . [t]hrough a deliberate policy o f 'ethnic cleansing'." 10 The Doe I and II plaintiffs estimate their n u m b e r as being i n the "thousands." 1 1 T h e allegations o f the individual plaintiffs representing the classes are a tale o f h o r r o r typical o f the stories that have come out of the Bosnian conflict. Plaintiff S. Kadic alleges the f o l l o w i n g : I n mid-April 1992, plaintiff was forcibly ejected from her home . . . by Serbian military men (chetniks). ... Plaintiff's son was beheaded as she held him in her arms . . . . [She was] captured and imprisoned in a Serbian-run death camp for twenty-one days. There she was starved, and raped every day at least ten times, each time by three or four Serbian soldiers . . . . U p o n release, she discovered she was pregnant as a result of the rapes and had an abortion. 12 Plaintiffs Jane Doe I and Jane Doe II allege the f o l l o w i n g : Jane Doe I was imprisoned in the Bosnian-Serb concentration camp in the town of Trnopolje. O n 31 May 1992, she joined a group of about fifteen women in a line for water. A group of soldiers in Bosnian-Serb uniforms approached them, separating out six young women, including Jane Doe I, and led them to a small house across some fields. ... After about fifteen minutes, the soldiers began to rape the women, several at a time, while other soldiers pointed guns at them. One soldier held Jane Doe Ts arms while another raped her. When she resisted, they hit her several times. . . . She was raped by at least eight soldiers. After the rapes, one of the soldiers slashed her breasts w i t h his knife. 13 Jane Doe II was living w i t h her mother and younger brother in Doboj, Bosnia-Herzegovina, when two soldiers in Bosnian-Serb uniform entered her home at 4:00 in the morning. The soldiers . . . beat her and her mother. They raped her mother in front of the two children. . . . One soldier . . . murdered her mother. 14

9

Doe I and II Second Circuit Brief, 7.

10

Id., 3.

11

Id., 2. The Doe I and II Second Circuit Brief suggests the following figures for the size of the plaintiff class. Id., 4 - 5 . A t the time the complaint was filed, government and independent observers estimated that between 50,000 and 120,000 people had been killed in the war, and over 2 million forced from their homes. Hundreds of thousands of victims of 'ethnic cleansing' have been expelled from their homes and villages, rounded up and held in detention camps, subjected to rape and other forms of torture, deported and summarily executed . . . . 12

Kadic Second Circuit Brief, 5.

13

Doe I and II Second Circuit Brief, 6.

14

Id., 6 - 7.

Kadic v. Karadzic and Doe I and II v. Karadzic Karadzic's brief t o the Second Circuit portrayed the general situation i n Bosnia-Herzegovina i n a more distanced tone. " F o r m e r Yugoslavia had been t o r n b y violence for many months before the secession o f Bosnia-Herzegovina, i n Slovenia, Croatia, Krajina and elsewhere. Violence spread q u i c k l y i n Bosnia-Herzegovina u p o n its seccession. Plaintiffs allege that they are Croatian and Bosnian victims o f the Bosnian Serb faction." 1 5

I I . Background of the A l i e n T o r t Act T h e A l i e n T o r t A c t grants subject matter jurisdiction t o U n i t e d States federal courts for civil suits based o n international law violations, and as currently codified at 28 U.S.C. § 1350 reads: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. T h e A l i e n T o r t A c t was enacted as part of the First Judiciary A c t o f 1789, 16 the same year i n w h i c h the C o n s t i t u t i o n w e n t i n t o effect. T h e origins and purpose o f the A l i e n T o r t A c t are n o t clear. 17 Judge Friendly

o f the Second C i r c u i t has des-

cribed "[t]his o l d but l i t t l e used section" as "a k i n d o f legal Lohengrin ; . . . no one seems t o k n o w whence it came." 18 The congressional debate during the First Judiciar y A c t ' s passage contains no m e n t i o n of the A l i e n T o r t A c t p r o v i s i o n . 1 9 15

Karadzic Second Circuit Brief p o c k e t Nos. 94 - 9035, 94 - 9069), 1.

16

First Judiciary Act of 1789, 1 Stat. 73, 77.

17

See Anne-Marie Bur ley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, American Journal of International Law, vol. 83, 1989, 461; Anthony D'Amato , The Alien Tort Statute and the Founding of the Constitution, American Journal of International Law, vol. 82,1988, 62. See also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 812, certiorari denied, 470 U.S. 1003 (1985) (Bork concurring) ("Historical research has not yet disclosed what section 1350 was intended to accomplish.... [The] original meaning is hidden from us ") One of the most common explanations for the Alien Tort Act is that the United States in 1789 wanted to avoid international conflict caused by erratic state court adjudication of international relations issues by opening the federal courts to such issues. I n this context Alexander Hamilton is regularly quoted: The Union w i l l undoubtedly be answerable to foreign powers for the conduct of its members. A n d the responsibility for an injury ought ever to be accompanied w i t h the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as i n any other manner, is w i t h reason classed among the just causes of war, it w i l l follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquility. The Federalist, No. 80, quoted in Burley , 465. 18

IITv.

19

See Trajano v. Marcos , 978 F.2d 493, 498 (9th Cir. 1992) ("The debates that led to the

Vencap , Ltd. , 519 F.2d 1001, 1015 (2d Cir. 1975).

438

Eric Johnson

The provision "virtually lay fallow" 20 between the passage of the First Judiciary Act in 1789 and 198021 — apparently in only two cases was the Alien Tort Act used to support jurisdiction in United States federal court. 22 In 1795 in Bolchos v. Darrein the district court held there was jurisdiction under the Alien Tort Act to apply a clause of a treaty with France in a case in which the plaintiff sought the return of neutral slave cargo seized at sea aboard a belligerent vessel. In 1961 in Adra v. Clift, 24 the district court held there was jurisdiction under the Alien Tort Act in a case in which the plaintiff sought the return of a minor child from his wife, and alleged that the wife had violated international law by falsifying passports. The watershed case for the Alien Tort Act was Filartiga v. Pena-Irala ls in 1980. The Second Circuit found jurisdiction under the Alien Tort Act in a case in which Paraguayan plaintiffs accused a former Paraguayan police official of having violated customary international law norms against torture. 26 The Filartiga result was codified by the United States Congress in 1992 in the Torture Victim Protection Act, the principal portion of which reads: A n individual who, under actual or apparent authority, or color of law, of any foreign nation (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death. 27

[First Judiciary] Act's passage contain no reference to the Alien Tort Statute . . . . " ) ; Tel-Oren (note 17), 812 (Bork concurring) ("I have discovered no direct evidence of what Congress had in mind when enacting the provision. The debates over the Judiciary Act in the House — the Senate debates were not recorded — nowhere mention the provision, not even, as far as we are aware, indirectly.") (citation omitted). 20

Burley (note 17), 463.

21

"This single sentence [constituting the Alien Tort Act] was virtually ignored for almost 200 years." Beth Stephens/Michael Ratner , International Human Rights Litigation i n U.S. Courts, 1996, 7. 22

The Center for Constitutional Rights in New York, which represented the plaintiffs in the Filartiga case and in the Doe I and II cases, attempted a revival of the Alien Tort Act during the Vietnam War to punish United States officials accused of human rights violations in Vietnam, but was unsuccessful. Id., 9. See Nguyen Da Yen v. Kissinger , 528 F.2d 1194, 1202 fn 13 (9th Cir. 1975) (United States 'babylift' of Vietnamese children from Saigon). 23

Bolchos v. Darrel , 1 Bee 74, 3 Fed. Cas. 810 (D.S.C. 1795).

24

Adra v. Clift, 195 F.Supp. 857 (D.Md. 1961).

25

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

26

Id., 878 - 879.

27

Pub. L. 102 - 256, 12 March 1992, 106 Stat. 73.

439

Kadic v. Karadzic and Doe I and II v. Karadzic

Since Filartiga , the A l i e n T o r t A c t has been used i n several cases t o provide jurisdict i o n for c i v i l actions based o n international law claims. 2 8

I I I . K a d i c / D o e I and I I and Violations of International Law by Private Actors 1. Private Action and the Alien Before Kadic/Doe

Tort Act

I and II, o n l y the t w o pre-Filartiga cases Bolchos and Adra had

found jurisdiction under the A l i e n T o r t A c t for a v i o l a t i o n of international l a w b y a private actor. N e i t h e r case, for various reasons, represents strong precedent. 2 9 T h e Second C i r c u i t i n Filartiga , relying o n A r t i c l e 1.1 of the T o r t u r e Convent i o n , 3 0 required state action for the international p r o h i b i t i o n against t o r t u r e and d i d n o t address itself t o the question o f whether other international l a w violations include a state action requirement. 3 1 I n the split D . C . Circuit decision Tel-Oren v. Libyan Arab Republic'

1

i n 1984 t w o

o f three judges agreed that as a rule international law violations require state action, and therefore that A l i e n T o r t A c t jurisdiction as a rule does n o t exist against private actor defendants. Judge Edwards stated: I do not believe that the law of nations, as currently developed and construed, holds individuals responsible for most private acts; it follows logically that the law of nations pro-

28

A list of the most prominent cases involving the Alien Tort Act since Filartiga vided in Stephens/Ratner (note 21), Appendix A.

is pro-

29

The Bolchos decision is not good precedent because of the date (1795), and because the Alien Tort Act was named by the judge only as an alternative basis for jurisdiction, Bolchos (note 23), 810. The Adra case, unlike most recent Alien Tort Act cases including the Kadic/ Doe I and II cases, did not involve human rights abuses, but falsified passports. Adra (note 24). Both the Bolchos and Adra decisions were also merely at the district level. 30 Article 1.1 of the Convention against Torture and other Cruel, Inhuman or Degrading Punishment, G A Res. 39/46 of 10 December 1984, U N G A O R , 39th Session, Supp. 51, 197: For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or w i t h the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 31

"There now exists an international consensus that recognizes basic human rights and obligations owed by all governments to their citizens." Filartiga (note 25), 884. 32

Tel-Oren (note 17).

440

Eric Johnson

vides no substantive right to be free from the private acts of individuals, and persons harmed by such acts have no right, under the law of nations, to assert in federal court. 33

Judge Bork agreed with "the general rule that international law imposes duties only on states and on their agents or officials." 34 The two judges recognized jurisdiction under the Alien Tort Act for private actions only for a limited area of exceptions — principally piracy, slave trading, violation of safe-conduct and attacks on ambassadors. 35 Judges Edwards and Bork in formulating this rule expressed a deliberately conservative approach to international law. In Judge Edwards's words, federal courts should "not . . . venture out of the comfortable realm of established international law — within which Filartiga firmly sat — in which states are the actors." 36 In Judge Bork' s words: "to interpret various human rights documents as imposing legal duties on nonstates . . . would require . . . entering a new and unsettled area of international law." 3 7 A united D.C. Circuit in 1985 confirmed the Tel-Oren holding regarding private action in Sanchez-Espinoza v. Reagan per Judge (now Supreme Court Justice) Scalia : "As for the law of nations . . . we conclude that this also does not reach private, non-state conduct . . . for the reasons stated by Judge Edwards in Tel-Oren." 38 The D.C. Circuit in Sanchez-Espinoza also followed Tel-Oren in allowing an exception for "piracy and assaults upon ambassadors."39 33

Id ., 779 fn 4. Judge Edwards not only rejected that private individuals have duties under international law, but also that private individuals have rights under international law. Id ., 794 (citations omitted): I n this century, once again writers have argued that both the rights and duties of international law should be applied to private parties. However, their discussions are more prescriptive than descriptive; they recognize shifts in firmly entrenched doctrine but are unable to define a clear new consensus. And for each article sounding the arrival of individual rights and duties under the law of nations, another surveys the terrain and concludes that there is a long distance to go. 34

Id., 805 - 806 (citations omitted).

35

Judge Edwards stated: "One strand of individual responsibility apparently survived the 19th century swing toward statism — private responsibility for piracy. It remained, w i t h only a handful of other private acts, such as slave trading, as a confutation of the general principles of statism." Id., 794 (citations omitted). Judge Bork agreed, listing piracy, violation of safeconduct and infringement of rights of ambassadors as violations for which private individuals can be held liable under the Alien Tort Act. Id., 813. 36

Id., 792.

37

Id., 806.

38

Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 - 207 (D.C. Cir. 1985). The quote more fully reads: "As for the law of nations . . . we conclude that this also does not reach private, non-state conduct of this sort for the reasons stated by Judge Edwards in Tel-Oren ." (emphasis added). It is not clear from the opinion what Judge Scalia meant by 'of this sort'. 39

Id., 206.

Kadic v. Karadzic and Doe I and II v. Karadzic T h e N i n t h Circuit i n dictum i n the cases against Ferdinand Marcos supported the D . C . Circuit's restrictive position: " O n l y individuals w h o have acted under official a u t h o r i t y o r under color o f such a u t h o r i t y may violate international l a w . " 4 0

2. Kadic/Doe T h e district court i n Kadic/Doe Sanchez-Espinoza

I and II

I and II had f o l l o w e d the restrictive Tel-Oren and

precedents and dismissed the cases i n part because it felt that

Karadzic's action was private action and that as a general rule international l a w violations include a state action element. 4 1 The Second Circuit overruled the district court and held that Karadzic's

conduct,

even as a private actor, was proscribed b y international law. T h e Second C i r c u i t rejected a general rule that private conduct is n o t proscribed b y international law. We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of states or only as private individuals. 42 T h e Second Circuit held specifically that genocide and w a r crimes m a y be c o m m i t ted b y private actors. 4 3

40

Trajano (note 19), 501 - 502 (citing Judge Edwards in Tel-Oren).

41

"[PJrivate acts of individuals do not violate the law of nations . . . . " Kadic/Doe I and II (district court decision) (note 1), 8. The district court stated that private individuals can bear rights i n international law. "Over time, the view that international law applied only as between nations evolved, such that international law became applicable to nations acting against their own citizens or to a foreign government acting against an individual." Id ., 4 (citation omitted). 42 43

Kadic/Doe I and II (Second Circuit decision) (note 2), 239.

Id ., 241 - 243. The United States urged this position on the Second Circuit. "Depending upon the violation alleged, acts committed by non-state actors may indeed violate international law." United States Statement of Interest before the Second Circuit (Docket Nos. 94 9035, 94 - 9069), 5. The defense argued that private individuals are not generally bound by international law. "Had Jack the Ripper privately plied his trade in Heidelberg during the war, he would not have been brought before the International Tribunal at Nuremberg, but before a criminal court in Heidelberg." Karadzic Petition for Certiorari Brief (Docket No. 95 - 1599), 13. The defense also argued that the exceptions in Tel-Oren for areas such as piracy do not create a general rule for the culpability of private conduct in international law, Id ., 13 -14: Reliance by the [Second Circuit] on international law related to piracy, slave trade, attacks on and highjacking of aircraft, attacks on ambassadors and other officials is misplaced. These are acts against all humanity because they occur in international areas, or they directly affect a nation outside its territory, or they affect more than one nation. They involve international commerce and protection of diplomatic officials outside their own country. Piracy on the high seas, unlike piracy on Lake Placid, is a concern of all nations

442

Eric Johnson

The Second Circuit attempted to harmonize its holding with Judge Edwards's opinion in Tel-Oren : N o r did Judge Edwards in his scholarly opinion in Tel-Oren reject the application of international law to any private action. O n the contrary, citing piracy and slave-trading as early examples, he observed that there exists a 'handful of crimes to which the law of nations attributes individual responsibility.' Reviewing authorities similar to those consulted i n Filartiga , he merely concluded that torture — the specific violation alleged in Tel-Oren — was not within the limited category of violations that do not require state action. 44

The Second Circuit's ruling in the Kadic/Doe I and II cases, however, seems difficult to reconcile with Tel-Oren. Judge Edwards presented violations such as privacy as exceptions to the rule that private conduct generally is not proscribed by international law, not as illustrations of a rule that private conduct generally is proscribed by international law. Also, Tel-Oren was not merely a torture case. The Tel-Oren plaintiffs, just as the Kadic/Doe I and II plaintiffs, accused the defendants of war crimes and genocide.45 I V . Kadic/Doe I and I I and State Action 1. Finding State Action a) State Action and the Alien Tort Act The Second Circuit in Filartiga held that state action is an element for violation of the international law prohibition against torture, which element was repeated in the Torture Victim Protection Act. Most of the Alien Tort Act cases involving torture have been brought against officials of governments recognized by the United States, e.g. the Filartiga case,46 the cases in the N i n t h Circuit against Marcos i? and the Eleventh Circuit Abebe-Jira case.48 because it cannot be controlled by the laws of any one nation. The same is true of the international slave trade, attacks on international air traffic and protection of diplomats. The interests and functions of every nation are threatened by such conduct which may be directly (sic) against its officials, ships, aircraft, or citizens and which it cannot control alone where multiple sovereignties, or foreign, or international space are involved. 44

Kadic/Doe I and II (Second Circuit decision) (note 2), 240.

45

Tel-Oren (note 17), 806. The Sanchez-Espinoza plaintiffs also accused the defendants of war crimes, but apparently not of genocide. See Sanchez-Espinoza v. Reagan, 568 F.Supp. 596, 691 fn 6 (D.D.C. 1983), although the facts of the case seemed at least to raise the question of genocide. 46

See note 25.

47

Trajano (note 19); Hilao v. Estate of Marcos, 25 F.3d 1467 (1994).

48

Abebe-Jira v. Negewo , 72 F.3d 844 (11th Cir. 1996).

Kadic v. Karadzic and Doe I and II v. Karadzic

443

Tel-Oren involved a torture claim against members of an entity not recognized by the United States as a State, the Palestine Liberation Organization. The D.C. Circuit in Tel-Oren in refusing to find state action on the part of the PLO noted two things. First, the court held that the PLO did not meet the international law criteria for a State.49 Second, the court felt that finding state action on the part of the PLO would have represented judicial recognition of the PLO, which would have encroached on the power of the President to recognize States.50 Judge Edwards stated: [T]he judiciary is not to second guess the determination of the other branches as to who is the sovereign, de jure or de facto , of a territory. We therefore are bound by the decision of the Executive not to recognize the PLO, and we must apply international law principles accordingly. 51

Judge Robb agreed: "The courts must be careful to preserve [the President's] flexibility and must hesitate to publicize and perhaps legitimize that which ought to remain hidden and those who deserve the brand of absolute illegitimacy." 52 b) Kadic/Doe I and II With respect to the plaintiffs' torture claims, the Second Circuit discussed several bases for finding state action on the part of Karadzic. aa) State Action through Quasi-Governmental Character The plaintiffs in Kadic/Doe I and II argued that, independent of any notion of statehood, the Bosnian Serb faction represented an entity with sufficiently governmental character for state action to exist. [Karadzic] acts like states act. Karadzic's entity has enough of an international legal personality to give actual or apparent authority to his naked exercise of power. . . . [Srpska] has

49

Tel-Oren (note 17), 803 - 804 and fn 9 (Bork concurring).

50

The doctrine that "[p]olitical recognition is exclusively a function of the Executive," Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398, 410 (1964), is usually cited for automatic court acceptance of recognition by the President. The Tel-Oren concerns about respect for the President's recognition power represent the reverse result, i.e. that non-recognition by the President binds courts to find a lack of statehood. 51

Tel-Oren (note 17), 791 fn 21 (quotation omitted) (citation omitted), although Judge Edwards followed this statement w i t h the sentence: " I note, however, that it is conceivable that a state not recognized by the United States is a state as defined by international law and therefore bound by international law responsibilities." Id. 52

Id., 825.

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Eric Johnson

the characteristics of entities whose power is deemed sufficiently organized to invoke certain international responsibilities. 53

The Second Circuit seemed to agree with the plaintiffs: "[I]t is likely that the state action concept, where applicable for some violations like 'official' torture, requires merely the semblance of official authority." 54 bb) State Action through de facto Statehood The district court in Kadic/Doe I and II noting the lack of recognition for the Bosnian Serbs from the United States refused to find that the Bosnian Serb entity was a de facto State that could be a source of state action. 55 The United States government in its Statement of Interest before the Second Circuit attempted to dissuade the Second Circuit from declaring the Bosnian Serb entity a de facto State. The United States Statement of Interest before the Second Circuit referred to the "Bosnian Serb administration", 56 and stated, "[T]he [Bosnian Serb] regime . . . is not recognized and does not satisfy the requirements for independent statehood,"57 and "The United States has not recognized 'the Republic of Srpska' as a state, and does not treat that entity as one that satisfies the criteria for statehood." 58 The Second Circuit overruled the district court and held that the Bosnian Serb entity was a de facto State, and that this status provided the state action element for Karadzic's actions. Srpska is alleged to control defined territory, control populations within its power, and to have entered into agreements with other governments. It has a president, a legislature, and its own currency. These circumstances readily appear to satisfy the criteria for a state i n all aspects of international law. 5 9

53

Kadic Second Circuit Brief, 40-41.

54

Kadic/Doe I and II (Second Circuit decision) (note 2), 245. The United States government before the Second Circuit left open the question of "[w]hether conduct by quasi-governmental actors" meets the state action requirement. Statement of Interest of the United States, 6 fn 3. 55 Kadic/Doe I and II (district decision) (note 1), 5 ("The current Bosnian Serb military faction does not constitute a recognized state . . . . Accordingly, this Court finds that the members of Karadzic s faction do not act under the color of any recognized state law.") 56

Statement of Interest of the United States, 8.

57

Id., 6 fn 3.

58

Id ., 3 fn 2. The United States did not indicate which of the criteria were lacking for the Bosnian Serb entity. 59

Kadic/Doe I and II (Second Circuit decision) (note 2), 245. The Second Circuit at the same time termed Karadzic a "citizen of Bosnia-Herzegovina." Id ., 237.

Kadic v. Karadzic and Doe I and II v. Karadzic T h e Second C i r c u i t rejected the argument of the Tel-Oren judges that non-recognit i o n b y the President should preclude a finding o f statehood for state action purposes b y a U n i t e d States court: I t would be anomalous indeed if non-recognition by the United States, which typically reflects disfavor with a foreign regime — sometimes due to human rights abuses — had the perverse effect of shielding officials of the unrecognized regime from liability for those violations of international law norms that apply to state actors. 60

cc) State A c t i o n t h r o u g h the Federal Republic o f Yugoslavia T h e plaintiffs also tried t o establish state action for Karadzic b y connecting h i m t o Yugoslavia. T h e plaintiffs noted that Karadzic port.

61

traveled under a Belgrade pass-

T h e plaintiffs claimed that "[t]he official red star o f the Yugoslav People's

A r m y is h i g h l y visible o n m u c h of the m i l i t a r y machinery and uniforms used b y Karadzic and forces under his command." 6 2 The plaintiffs accused Yugoslavia o f "acquiescence i n the human rights violations [the Bosnian Serbs] have c o m m i t t e d " 6 3 and o f " m i l i t a r y , economic and political support for the Bosnian-Serb forces," 6 4 and alleged that "[t]he goal of [Karadzic's ] 'ethnic cleansing' campaign is t o create a 'Greater Serbia', u n i t i n g his regime w i t h [the Belgrade regime]." 6 5 60

Id., 245. The Second Circuit had already held in a case not involving the Alien Tort Act that nonrecognition of a foreign entity by the United States does not prevent suit against the entity as a private organization. Klinghoffer v. S.N.C. Achille Lauro , 937 F2d 44, 48 (1991) ("[T]he fact that the United States does not recognize the P L O does not provide a basis for immunity.") See also Kadic Second Circuit Brief, 37-38. "The language of the [Torture Victim Protection Act] leaves no indication that Congress intended to allow poor diplomatic relations w i t h our government — which may be partly due to systematic violations of human rights — to shield perpetrators from civil liability for violating international law." 61

Kadic Second Circuit Brief, 47.

62

Id.

63

Doe I and II Second Circuit Brief, 26.

64 65

Id .

Kadic Second Circuit Brief, 48. The plaintiffs variously termed the relationship between the Bosnian Serbs and Yugoslavia as one of "conspiracy", Doe I and II Second Circuit Brief, 25, Kadic Second Circuit Brief, 46, or as one of "agency", Doe I and II Second Circuit Brief, 25, Kadic Second Circuit Brief, 39. The position of the United States professors providing an amicus brief to the Second Circuit is interesting. The amicus international law professors, using the word 'nation' in the Alien Tort Act, argued that Karadzic was acting on behalf of the 'nation' of the Bosnian Serbs. The w o r d 'nation' is a term of art and is not the same as the word 'state'. . . . Defendant Karadzic was arguably acting under 'apparent authority' of a 'nation' of Serbs either questing for a greater Serbia or within a 'nation' of Serbs located partly also within the state of Bosnia-Herzegovina. Amicus Curiae Law Professors' Second Circuit Brief p o c k e t Nos. 94 - 9035, 94 - 9069), 29.

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T h e Second C i r c u i t accepted the t h e o r y o f the plaintiffs' argument. " T h e [plaintiffs] are entitled t o prove their allegations that Karadzic acted under c o l o r o f l a w o f Yugoslavia b y acting i n concert w i t h Yugoslav officials o r w i t h significant Y u g o slavian a i d . " 6 6

2. State Action and

Immunity

a) I m m u n i t y and the A l i e n T o r t A c t A l i e n T o r t A c t cases i n v o l v i n g international l a w norms w i t h a state action element raise questions o f governmental i m m u n i t y . I f the action is against the U n i t e d States government o r its agents, the question concerns application o f domestic sovereign i m m u n i t y under the Federal T o r t Claims A c t . 6 7 I f the action is against a foreign government or its agents, the question concerns the Foreign Sovereign I m m u n i ties A c t , 6 8 the A c t of State doctrine 6 9 and the H e a d o f State doctrine. 7 0

(The law professors' amicus brief was composed by Frederick M. Abbot, Jose E. Alvarez , Francis A. Boyle , Roger S. Clark , Valerie Epps, Joan F. Fitzpatrick, Maria Frankowska , Claudia Grossman, Nicholas N. Kittrie , Bert B. Lockwood, Linda A. Malone , John F. Murphy , James A. R. Naf ziger , Ved P. Nanda, Jordan J. Paust, Henry J. Richardson III , Michael P. Scharf, Barbara Stark, SuryaP. Sinha,JonM. Van Dyke, Burns H. Weston, Gabriel M. Wilner and Adrien W Wing) 66 Kadic/Doe I and II (Second Circuit decision) (note 2), 245. I n Tel-Oren the plaintiffs made a similar claim that the P L O was a state actor because it worked in complicity w i t h Libya. Tel-Oren (note 17), 821 (mention of the claim by Judge Bork). None of the three judges i n that case addressed the argument. 67

28 U.S.C. § 1346(b) contains a general waiver to domestic sovereign immunity. 28 U.S.C. § 2680 contains a series of exceptions to this general waiver. See Stephens/Ratner (note 21), 104 - 108 for a discussion Alien Tort Act actions against the United States and United States officials. 68 Foreign States and their subdivisions are immune, under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 - 1611, from liability in United States federal courts, w i t h limited exceptions such as contained in the following sections of 28 U.S.C. § 1605: (a)(1) if the foreign government has waived the immunity; (a)(2) for commercial activity; (a)(3) for property taken in violation of international law; (a)(5) for personal injury or death or damage to property occurring in the United States. It has been held that individual public officials are protected under the Foreign Sovereign Immunities Act as agents of the foreign State. See, e.g., Trajano (note 19) ("an 'agency or instrumentality of a foreign state' includes individuals acting in their official capacity") (citing Chuidian v. Philippine National Bank, 912 F.2d 1095, 1099 1103 (9th Cir. 1990)). The Restatement (Third) of the Foreign Relations Law of the United States, § 452, comment (a) does not mention individuals as instrumentalities of a foreign government, but does not exclude them. 69 70

See generally Sabbatino (note 50).

See generally Mr. and Mrs. Doe v. United States, 860 F.2d 40 (2d Cir. 1988); Jerrold L. Mallory, Note: Resolving the Confusion over Head of State Immunity: The Defined Right of

Kadic v. Karadzic and Doe I and II v. Karadzic

44 7

Courts have avoided applying governmental immunity in Alien Tort Act cases through what may be called the 'colorable' state action approach. Under this approach, which has its roots in United States law concerning civil rights actions against government officials, actions committed in an official capacity represent state action yet are not protected by governmental immunity if the acts are somehow 'illegitimate', e.g. unauthorized under or contrary to the constitution and laws of the official's government. 71 The Second Circuit used the 'colorable' state action approach in the Filartiga case. In Filartiga the defendant allegedly carried out the torture in his official capacity as a member of the police force of Ascunsion, which the Second Circuit held sufficient to establish state action. The Second Circuit indicated that the defendant was not covered by the Act of State doctrine because torture was contrary to the laws of Paraguay. 72 The Second Circuit has also indicated in dictum that it w i l l not apply the Head of State doctrine to unauthorized state action. 73 The approach was also used by the N i n t h Circuit in the cases involving torture allegedly committed in the Philippines under the regime of Ferdinand Marcos. Although Marcos was the ruler of the Philippines at the time of the alleged torture, the N i n t h Circuit held that the alleged torture could not be considered action of the Philippines covered by the Act of State doctrine or the Foreign Sovereign Immunities Act. Although sometimes criticized as a ruler and at times invested w i t h extraordinary powers, Ferdinand Marcos does not appear to have had the authority of an absolute autocrat. He was not the state, but the head of the state, bound by the laws that applied to him. Our courts have had no difficulty in distinguishing the legal acts of a deposed ruler from his

Kings, Columbia Law Review, vol. 86, 1986, 169. 71

See generally John Rogers , The Alien Tort Statute and H o w Individuals 'Violate' International Law, Vanderbilt Journal of Transnational Law, vol. 21, 1988, 47, 49 fn 13. 72

The Second Circuit did not rule directly on the issue as it had not been raised prior to appeal. The Second Circuit did state: "We note in passing, however, that we doubt whether action by a state official in violation of the Constitution and laws of the Republic of Paraguay, and wholly unratified by that nation's government, could properly be characterized as an act of state." Filartiga (note 25), 889 (citations omitted). 73

Mr. and Mrs. Doe (note 70), 45 (citations omitted): "[W]e believe there is respectable authority for denying head-of-state immunity to a former head-of-state for private or criminal acts in violation of American law." In Lafont v. Aristide , 844 F.Supp. 128 (E.D.N.Y. 1994), the court refused to accept the Second Circuit dictum i n Mr. and Mrs. Doe and applied Head of State immunity to Haitian President Jean-Bertrand Aristide in an Alien Tort Act action even under the assumption that the alleged actions in the case were unauthorized by the Haitian government. The court indicated that Head of State immunity is more related to diplomatic immunity than to foreign sovereign immunity and the Act of State doctrine.

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Eric Johnson

acts for personal profit that lack a basis in law. . . . the latter acts are as adjudicable and redressable as would be a dictator's act of rape. 74

The Marcos cases demonstrate how far this approach can be used to avoid immunity for the defendant in an Alien Tort Act case. If Marcos's actions are considered beyond what was sanctioned by the Philippines during his rule, it is difficult to imagine any official whose human rights abuses would be considered sufficiently authorized by the official's State for the official to qualify for some form of immunity. This refusal to grant sovereign immunity under the 'colorable' state action approach in cases such as the Marcos cases raises the question whether the approach involves moral legitimacy rather than legitimacy in the sense of the empirically demonstrable existence of the defendant's authorization from the State. Under the moral legitimacy idea, international human rights violations would be considered perse not within the legitimate functions of a State, i.e. ultra vires in a moral sense.75 Thus the 'colorable' state action doctrine has been called a mere "fiction that the accused government official in such a suit committed an illegal act in his or her private capacity."76 If the 'colorable' state action doctrine is to be considered as having proceeded to such a point, it represents a challenge to Supreme Court precedent applying the Act of State doctrine and foreign sovereign immunity even to States violating international law. In Banco Nacional de Cuba v. Sabbatino , the Supreme Court applied the Act of State doctrine to the conduct of a foreign State even though the conduct was arguably in violation of international law. 77 In Argentine Republic v. Amerada Hess, the Court held that foreign sovereign immunity applies even if the State has violated international law. 78 74

Hilao (note 47), 1471 (quoting Republic of Philippines v. Marcos , 862 F.2d 1355, 1361 (9th Cir. 1988), certiorari denied, 490 U.S. 1035 (1989)). 75

See generally E. de Vattel , The Law of Nations, Book I, 1758, § 54 (quoted by the Amicus Curiae Law Professors' Second Circuit Brief, 25): "The Prince . . . who would in his transports of fury take away the life of an innocent person, divests himself of his character, and is no longer to be considered in any other light than that of an unjust and outrageous enemy." See also Justice White's dissent in Sabbatino (note 50), 457: A l l legitimate exercises of sovereign power, whether territorial or otherwise, should be exercised consistently w i t h international law. . . . [ A state] cannot w i t h impunity ignore the rules governing the conduct of all nations and expect that other nations and tribunals w i l l view its acts as within the permissible scope of territorial sovereignty. 76

Burley (note 17), 491 fn 133. N o t transforming the 'colorable' state action doctrine into a moral question leads to "a loophole for governments brazen enough to admit to torture as an official policy." Id., 492 fn 133. 77 78

See Sabbatino (note 50).

Argentine Republic v. Amerada Hess, 488 U.S. 428, 436 (1989). It has been argued that the Sabbatino 2nd Amerada Hess result should not apply to jus cogens norms. This argument was broadly rejected with respect to foreign sovereign immunity in Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 - 719 (9th Cir. 1992). The argument that violation of jus cogens

Kadic v. Karadzic and Doe I and II v. Karadzic

449

T h e 'colorable' state action approach was explicitly rejected b y the D . C . C i r c u i t i n the Sanchez-Espinoza case w i t h respect t o the A l i e n T o r t A c t and domestic sovereign i m m u n i t y . I n that case the plaintiffs argued that although the defendants, officials of the U n i t e d States government, were state actors sufficient for a t o r t u r e claim under the A l i e n T o r t A c t , domestic sovereign i m m u n i t y d i d n o t apply because the officials' actions were unauthorized under U n i t e d States law. T h e D . C . C i r c u i t , per Judge Scalia , rejected the argument. A l t h o u g h the D . C . C i r c u i t conceded that the unauthorized action o f a p u b l i c official may represent an 'exception' t o the general rule o f domestic i m m u n i t y , the D . C . C i r c u i t held that as a logical matter such an 'exception' cannot be used i n a case i n w h i c h subject matter jurisdiction exists under the A l i e n T o r t A c t w i t h the requirement of state action. It would make a mockery of the doctrine of sovereign immunity if federal courts were authorized to sanction or enjoin, by judgments nominally against present or former Executive officers, actions that are, concededly and as a jurisdictional necessity , official actions of the United States. Such judgments would necessarily interfere w i t h the public administrat i o n or restrain the government from acting or compel it to act. These consequences are tolerated when the officer's action is unauthorized because contrary to statutory or constitutional prescription, but we think that exception can have no application when the basis for jurisdiction requires action authorized by the sovereign as opposed to private wrongdoing. 79 T h e D . C . C i r c u i t , however, was careful t o state that it was n o t necessarily contradicting the application of the 'colorable' state action approach i n Filartiga . Since the doctrine of foreign sovereign immunity is quite distinct from the doctrine of domestic sovereign immunity that we apply here, being based upon considerations of international comity rather than separation of powers, it does not necessarily follow that an Alien Tort Statute suit filed against the officer of a foreign sovereign should have to be dismissed. Thus, nothing in today's decision necessarily conflicts w i t h the decision of the Second Circuit in Filartiga. 80

norms represents an implied waiver to foreign sovereign immunity under 28 U.S.C. § 1605 (a)(1), see Adam C. Belsky/Mark Merva/Naomi Roht-Arriaza , Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, California Law Review, vol. 77, 1989, 365, was rejected in Princz v. Federal Republic of Germany , 26 F.3d 1166, 1173 - 1174 (D.C. Cir. 1994), although accepted by the dissent in that case, Princz, 1182 (citing Belsky/Merva/Roht-Arriaza): When the Nazis tore off Princz's clothes, exchanged them for a prison uniform and a tattoo, shoved him behind the spiked barbed wire fences of Auschwitz and Dachau, and sold h i m to the German armament industry as fodder for their wartime labor operation, Germany rescinded any claim under international law to immunity from this court's jurisdiction. 79

Sanchez-Espinoza (note 38), 207 (emphasis in original) (quotations omitted) (citations omitted). 80

Id. , 207 fn 5 (citations omitted).

29 GYIL 39

450

Eric Johnson b) Immunity and Kadic/Doe I and II

The plaintiffs in Kadic/Doe I and II used the 'colorable' state action approach to argue that Karadzic was not entitled to any immunity. The plaintiffs argued the extended, moral understanding of 'illegitimate', that immunity is not applicable to international human rights violations. "[E]ven if . . . immunity applied to Karadzic , it would not shield him from liability for fundamental violations of the law of nations [because it does not apply] to the gross human rights violations alleged in this case."81 The amicus curiae briefs before the Second Circuit supported this understanding of immunity as not available for human rights abuses. The brief of the International Human Rights Law Group stated, "Nor is it clear that even United States government suggestion would immunize a head of state, such as Adolf Hitler , who used his position to commit massive jus cogens violations." 82 The amicus curiae brief submitted by several international law professors stated, Even if such . . . immunity otherwise exists, it cannot be 'absolute' or operative w i t h respect to serious and criminally sanctionable violations of international l a w . . . . Violations of international law, especially international criminal law, pose the one necessary exception to any sort of claim to immunity, including claims to sovereign immunity, under the act of state doctrine . . . . [A]ny domestic statute of limitation or other attempted grant of immunity concerning acts constituting (and therefore also sanctionable as) international crimes lacks validity. . . . the acts . . . would have been ultra vires and, therefore, not protectable official state acts.83

The Second Circuit rejected any form of governmental immunity for Karadzic*s actions, tersely noting that "[Karadzic ] has not had the temerity to assert in this Court that the acts he allegedly committed are the officially approved policy of a state." 84 The Second Circuit also suggested that immunity is to be sparingly applied in an Alien Tort Act action: "[W]e think it would be a rare case in which the act of state doctrine precluded suit under section 1350."85 The Second Circuit recognized a potential conflict with Sabbatino in its stance on the Act of State doctrine, but distinguished the international law claims at issue in Kadic/Doe I and II from those of Sabbatino. 86

81

Doe I and II Second Circuit Brief, 57.

82

Amicus Curiae International Human Rights Law Group Second Circuit Brief (Docket Nos. 94 - 9035,94 - 9069) (unpaginated copy obtained from Yale University Internet site), fn 18. 83

Amicus Curiae Law Professors' Second Circuit Brief, 17, 19, 24 (citations omitted).

84 85

Kadic/Doe I and II (Second Circuit decision) (note 2), 250. Id.

86

The Second Circuit noted that portions of the Sabbatino majority opinion emphasized that that case involved an international law norm the acceptance of which by the international community the Supreme Court considered something less than unambiguous. Kadic/

Kadic v. Karadzic and Doe I and II v. Karadzic V. Kadic/Doe I and I I and Personal Jurisdiction Karadzic's contacts with the United States had been slight; before 1993 he had visited the United States only once in 1974 to study poetry and he had had "no presence, property, or activity in the U.S." between 1974 and 1993.87 Karadzic made three visits to the United Nations in February and March 1993.88 Karadzic was admitted to the United States under the Immigration and Naturalization Act, 8 U.S.C. § 1101(a)(15)(c) as a person in transit to the United Nations covered by the Headquarters Agreement between the United States and the United Nations. Karadzic was given a C-2 visa and was restricted to an area within a twenty-five-mile radius of United Nations headquarters. 89 He was assigned a security team under the Diplomatic Security Service of the United States Department of State.90 While in New York, Karadzic was involved in peace negotiations w i t h high-level United Nations officials and representatives of several United Nations member States.91 The Kadic/Doe I and II plaintiffs claimed that Karadzic's activities were more extensive than the mere conducting of peace negotiations. The plaintiffs claimed the defendant while in New York held fundraisers, hosted various "parties" in his hotel 92 and "took full advantage of New York and national American news media to proselytize." 93

Doe I and II (Second Circuit decision) (note 2), 250 (citing Sabbatino). 87

Karadzic Second Circuit Brief, 9.

88

Doe I and II Second Circuit Brief, 7.

89

Karadzic Second Circuit Brief, 3.

90

Headed by Special Agent Roy Anthony Diebler. Kadic Second Circuit Brief, 6; Kadic/Doe I and II (district court decision) (note 1), 2. 91

Karadzic Second Circuit Brief, 2: While in New York, President Karadzic met w i t h [Cyrus] Vance and [Lord David] Owen , the Secretary General of the U.N., Boutros Boutros Ghali , the President of the Security Council, ambassadors of the permanent members of the Security Council. . . among other ambassadors, U . N . officials, representatives of U . N . member nations and others in a continuing effort to secure peace. 92 93

Doe I and II Second Circuit Brief, 7 - 8 .

Kadic Second Circuit Brief, 55. In sum: "he purposefully availed himself of the financial and media benefits of the New York forum." Kadic Brief to Deny Certiorari (Docket No. 95 1599), 15. The defense, however, claimed: "The only purpose for President Karadzic's travel to the U.S. was to participate in peace negotiations." Karadzic Second Circuit Brief, 2. See Stephens/Ratner (note 21), 1: "The self-proclaimed head of the Bosnian Serbs came to New York in early 1993, buying time for his troops while engaged in the pretense of negotiations at the United Nations." Stephens is counsel for the Doe I and II plaintiffs.

*

452

Eric Johnson

During the first visit he was served with process by the Doe I and II plaintiffs. The Doe I and II service of process was made in the lobby of Karadzic's hotel, the Hotel-Intercontinental on 48th Street in New York, on 11 February 1993. The server of process attempted to get as close as possible to Karadzic , attempted to hand him the summons and complaint and shouted that Karadzic was being served while the United States security team assigned to Karadzic together with Karadzic retreated into an elevator and left. 94 During the second visit he was served w i t h process by the Kadic plaintiffs. O n 5 March 1993, under federal district court order, a copy of the summons and complaint was delivered to the head of the United States security team, who delivered the copy personally to Karadzic? 5 The defense urged the Second Circuit to recognize an immunity from service of process for persons in transit to United Nations activities to protect the unhindered functioning of the United Nations. 96 A similar immunity from service of process exists for persons traveling to Washington D.C. to contact the United States government. 97 The United States took the position that Karadzic could be served with process while en route to the United Nations. This opinion was transmitted to the Doe I and //plaintiffs before their service of process on Karadzic in a letter from Michael Habib of the United States State Department, Office of Eastern European Affairs. 98

94

O n these facts the Doe I and II plaintiffs and the defense seemed largely to agree. Doe I and II Second Circuit Brief, 8; Karadzic Second Circuit Brief, 4 - 5 ; Kadic/Doe I and II (district court decision) (note 1), 2. The parties disagreed on minor matters. The district court noted that the parties disagreed on whether the server had gotten within two or eight feet of Karadzic. Kadic/Doe I and II (district court decision) (note 1), 2. The plaintiffs claimed that the server had made "eye contact" w i t h Karadzic and that uKaradzic refused to take the papers." Doe I and II Second Circuit Brief, 8. The defense claimed that Karadzic never comprehended that service had been attempted, Karadzic Second Circuit Brief, 4, which was supported by the testimony of special agent Diebler , the head of Karadzic's security team. The defense also portrayed the service of process as a dangerous affair. According to the defense, the server "made a dangerous effort to serve papers, shouting and reaching into his coat for what turned out to be papers and dropping them to the floor as he was seized by U.S. agents and prevented from reaching [Karadzic]" Karadzic Petition for Certiorari Brief, 5. 95

Kadic/Doe I and II (district court decision) (note 1), 2.

96

"To burden the U.N.'s ability to conduct its business at its headquarters w i t h such a threat to its invitees would cripple its ability to function at its headquarters." Karadzic Second Circuit Brief, 11. "Recognition of the practical need to protect government institutions from the frustration of their functions by private litigants, seeking to take advantage of the temporary presence of foreigners for participation in government proceedings, is as old in our legal history as the early common law." Id ., 10. 97

Id. y

98

10.

Doe landII

Second Circuit Brief, 7.

Kadic v. Karadzic and Doe I and II v. Karadzic T h e Second C i r c u i t refused t o create an i m m u n i t y f r o m service o f process as urged b y the defense. T h e Second C i r c u i t noted several inapplicable sections o f the Headquarters Agreement. U n d e r § 9(a), service of process w i t h i n the Headquarters D i s t r i c t " may o n l y take place w i t h the consent of, and under conditions prescribed b y , the Secretary General of the U n i t e d N a t i o n s . 1 0 0 This section d i d n o t apply t o Karadzic because he was served w i t h process outside the Headquarters D i s t r i c t . U n der § 15, some degree of diplomatic i m m u n i t y is extended t o certain representatives o f U n i t e d N a t i o n s member States w i t h i n o r w i t h o u t the Headquarters D i s t r i c t . 1 0 1 T h i s section d i d n o t apply t o Karadzic

because he was n o t the representative o f a

U n i t e d N a t i o n s member State. I n light o f these t w o specific, inapplicable sections, the Second Circuit refused t o give a broad meaning t o § 11, w h i c h p r o h i b i t s U n i t e d States federal, state and local authorities f r o m "imposing any impediments t o transit t o o r f r o m the headquarters district of . . . persons i n v i t e d t o the headquarters district b y the U n i t e d N a t i o n s . . . o n official business," 102 and create a rule protecting U n i t e d N a t i o n s invitees. 1 0 3 99

The Headquarters District is defined in the Headquarters Agreement as bounded by Franklin D. Roosevelt Drive, 1st Avenue, 42nd Street and 48th Street. Kadic/Doe I and II (Second Circuit decision) (note 2), 247. 100

Id.

101

Id.

102

Id.

103 Id. The Second Circuit's reasoning runs counter to its reasoning in Klinghoffer (note 60), a case not involving the Alien Tort Act in which the plaintiffs attempted to sue the PLO. Personal jurisdiction over the P L O was claimed on the basis of minimum contacts w i t h the forum as opposed to service of process within the forum. The Second Circuit held in Klinghoffer that the PLO's contacts w i t h the United Nations could not be considered in deciding whether minimum contacts were present — " [ 0 ] n l y those activities not conducted in furtherance of the PLO's observer status may properly be considered as a basis for jurisdiction," id., 51 — to avoid burdening free access to the United Nations — "[B]asing jurisdiction on the PLO's participation in UN-related activities would put an undue burden on the ability of foreign organizations to participate in the U N ' s affairs." Id. The Second Circuit in Klinghoffer analogized to D.C. Circuit law whereby activity in Washington D.C. cannot be considered i n establishing minimum contacts. Id. The Second Circuit in Klinghoffer used the Headquarters Agreement to support its decision. Id. (citation omitted): [W]ere the P L O not a permanent observer at the U N , it would not be entitled to enter N e w Y o r k at all. It is allowed to come to New York only because the Headquarters Agreement effectively removes control over the U N Headquarters and related areas from the jurisdiction of the United States. In other words, the PLO's participation in the U N is dependent on the legal fiction that the U N Headquarters is not really United States territory at all, but is rather neutral ground over which the United States has ceded control. For a federal court then to turn around and conclude that the PLO has been doing business in New York as a result of its U N activities would, we believe, be rather duplicitous. The Second Circuit in Kadic/Doe I and II (Second Circuit decision) (note 2), 248 stated that it reached its holding "[d]espite the considerations that guided Klinghoffer ."

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Eric Johnson

I n the absence of any i m m u n i t y f r o m service of process, the Second C i r c u i t merel y n o t e d that service o f process w i t h i n the f o r u m is sufficient under A m e r i c a n l a w t o establish personal j u r i s d i c t i o n . 1 0 4 F o l l o w i n g the Second Circuit's decision i n Kadic/Doe

I and / / , the D i s t r i c t C o u r t

for the Southern District of N e w Y o r k i n the Mushikiwabo

case held personal juris-

diction over the defendant, a former Rwandan official, was p r o p e r l y established b y service o f process o n the defendant w h i l e he was en route t o the U n i t e d N a t i o n s as an invitee. 1 0 5

Another interesting case w i t h respect to the inviolability of United Nations access is United States v. Palestine Liberation Organization , 695 F.Supp. 1456 (S.D.N.Y. 1988), in which the court refused to implement a statute ordering the closure of the PLO observer mission to the United Nations. Id. , 1459: This problem must be viewed in the context of the special responsibility which the United States has to provide access to the United Nations under the Headquarters Agreement. It is important to note . . . that a primary goal of the United Nations is to provide a forum where peaceful discussions may displace violence as a means of resolving disputed issues. 104

"In sum, if [plaintiffs] personally served Karadzic w i t h the summons and complaint while he was in New Y o r k . . . he is subject to the personal jurisdiction of the District Court." Kadic/Doe I and II (Second Circuit decision) (note 2), 248. The Supreme Court has recently stated that service of process within the forum is all that is necessary in American law to establish personal jurisdiction. Burnham v. Superior Court of California , 495 U.S. 604 (1990). 105

Mushikiwabo v. Barayagwiza , available in LEXIS library G E N F E D file COURTS (S.D.N.Y. 1996). The Second Circuit did not address whether the United States court system had jurisdiction under international law. The defense had urged the Second Circuit to make such an analysis. "International law should control [jurisdiction] ... by direct application in view of plaintiffs' heavy reliance on international law." Karadzic Second Circuit Brief, 16 (citations omitted). International law generally has not accepted service of process within the forum alone as a basis for jurisdiction. Restatement (Third) of the Foreign Relations Law of the United States, § 421(e). Personal jurisdiction over Karadzic likely existed under international law as Karadzic's crimes give rise to universal jurisdiction. See generally Bernard H. Oxman, Jurisdiction of States, Encyclopedia of Public International Law, vol. 10, 1987, 277, 281: "As the human rights content of international law expands, it is argued that universal jurisdiction also expands, and may now embrace slave trade, genocide, and certain war crimes." See Kadic Second Circuit Brief, 53 (quotation omitted) (citation omitted): "[C]ertain universal offenses, like piracy and genocide, are offenses [ t h a t ] . . . a state may punish . . . even when they occur outside its territory."; Doe I and II Second Circuit Brief, 33 - 34 (citation omitted): "As a perpetrator of genocide, Karadzic is considered hostis humani generis , the enemy of all people, who can be brought to justice wherever found. . . . Genocide is . . . subject to universal jurisdiction."

Kadic v. Karadzic and Doe I and II v. Karadzic V I . Other Issues before the Second Circuit 1. The Substance of an Alien Tort Act Action, Subject Matter Jurisdiction and the United States Constitution For subject matter jurisdiction to exist for United States federal courts, first there must be a congressional statute such as the Alien Tort Act granting the federal courts subject matter jurisdiction. Second, the statutory grant must be within the constitutional limits on federal subject matter jurisdiction. The United States Constitution limits federal subject matter jurisdiction to two categories. The first, diversity jurisdiction, exists without reference to the substance of the claim. Diversity jurisdiction exists if the status of the parties meets certain criteria, e.g. if the parties are from different states within the United States, if one party is a United States citizen and the other party is a foreign citizen etc. 106 The second, federal question jurisdiction, exists with reference to the substance of the claim. Federal question jurisdiction exists if the claim 'arises under' federal substantive law, principally the statutes and treaties of the United States.107 A n action under the Alien Tort Act between an alien and a United States citizen is within constitutional subject matter diversity jurisdiction. The First Congress may have had such situations in mind and designed the Alien Tort Act to overcome for these cases the minimum monetary threshold for the amount in controversy of the statutory grant of diversity jurisdiction in 28 U.S.C. § 1332.108 A n action under the Alien Tort Act between aliens is not within constitutional diversity jurisdiction as it has long been established that constitutional diversity jurisdiction does not include actions between aliens.109 Thus for constitutional subject matter to exist in actions between aliens under the Alien Tort Act, the action must in some sense substantively 'arise under' the laws of the United States. The Second Circuit approach in Filartiga to this problem was that customary international law is substantive United States law: "The constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law." 1 1 0 This is a problematic proposition. First, the extent to which customary international law can be considered substantive law of the United States is 106

See United States Constitution, Article IH, section 2.

107

See id.

108

Bur ley (note 17), 465. Burley notes that at the time of the passage of the First Judiciary Act the amount in controversy under the diversity jurisdiction statute had to exceed $500, which she notes was an immense sum at the time. Id. 109 110

Hodgson v. Bowerbank, 9 U.S. 303 (1809).

Filartiga (note 25), 885. See Trajano (note 19), 502 (citations omitted): "It is also well settled that the law of nations is part of federal common law."

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Eric Johnson

a controversial question. 1 1 1 Second, the position that customary international l a w is substantive U n i t e d States law and that the A l i e n T o r t A c t is therefore w i t h i n constit u t i o n a l federal subject matter jurisdiction seems t o eliminate the necessity o f the A l i e n T o r t A c t . I f customary international law is substantive U n i t e d States law, statutory authorization for subject matter jurisdiction t o enforce customary internat i o n a l l a w exists under 28 U.S.C. § 1331, w h i c h grants subject matter j u r i s d i c t i o n for all claims based o n substantive l a w o f the U n i t e d States. 112 T h e Second C i r c u i t i n Kadic/Doe

I and II distanced itself f r o m the Filartiga

rea-

soning. 1 1 3 A l t h o u g h i t called a "settled p r o p o s i t i o n " the idea that "federal c o m m o n law incorporates international l a w , " 1 1 4 and noted district court cases that have held that 28 U.S.C. § 1331 provides subject matter jurisdiction for customary interna-

111

See opinion of Judge Bork in Tel-Oren (note 17), 811, 818: To say that international law is part of federal common law is to say only that it is nonstatutory and nonconstitutional law to be applied, in appropriate cases, in municipal courts. I t is not to say that, like the common law of contract and tort, for example, by itself it affords individuals the right to ask for judicial relief. . . . International law, unlike municipal law (at least in the United States), is not widely regarded as a tool of first or frequent resort and as the last word in the legitimate resolution of conflicts. Although general phrases can be found supporting the proposition — principally the oftquoted Paquete Habana Supreme Court statement that "International law is part of our law," The Paquete Habana, 175 U.S. 677, 700 (1900), other Supreme Court statements reflect the approach that customary international law is something less than statutes or ratified treaties. Even the Paquete Court continued w i t h the following observation: "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." Id. This Report cannot contain a complete discussion of the position of customary international law in United States law. 112

The Second Circuit recognized this potential redundancy in Filartiga without directly addressing the issue. "We recognize that our reasoning might also sustain jurisdiction under the general federal question provision, 28 U.S.C. § 1331. We prefer, however, to rest our decision upon the Alien Tort Statute." Filartiga (note 25), 888 fn 22. There is a possibility of avoiding this redundancy. The 'arising under* substantive requirement of Article I E is generally considered a looser standard than the 'arising under' requirement of 28 U.S.C. § 1331. See, e.g., Hilao (note 47), 1474 fn 9 (citations omitted): "the 'Arising Under' Clause of Article I I I is construed more broadly than the same clause in 28 U.S.C. § 1331." Thus customary international law may be sufficient substantive federal law to meet the constitutional requirement, yet not be sufficient to meet the requirement of § 1331, creating the need for the Alien Tort Act. 113 Although the Filartiga reasoning was urged on the Second Circuit by the plaintiffs. See Kadic Second Circuit Brief, 51: "customary international law and jus cogens are directly incorporated into U.S. law, without need for implementing legislation." A n d by the Amicus Curiae Law Professors' Second Circuit Brief, 13: "[S]ince the founding of this country, customary international law has been directly incorporated as law of the United States." 114

Kadic/Doe I and II (Second Circuit decision) (note 2), 246 (citations omitted).

Kadic v. Karadzic and Doe I and II v. Karadzic

45 7

tional law violations, 1 1 5 the Second Circuit stated that enforcement o f customary international l a w under 28 U.S.C. § 1331 "is an issue o f some uncertainty that need not be decided i n this case." 116 The Second C i r c u i t instead held that the substantive U n i t e d States law for A l i e n T o r t A c t actions is the A l i e n T o r t A c t itself, that the A l i e n T o r t A c t creates substantive rights. Since [the Alien Tort] Act appears to provide a remedy for the [plaintiffs'] allegations of violations related to genocide, war crimes, and official torture, their causes of action are statutorily authorized, and . . . we need not rule definitively on whether any causes of action not specifically authorized by statute may be implied by international law standards as incorporated into United States law. 1 1 7 A l t h o u g h contrary t o p r i o r statements o f the Second C i r c u i t 1 1 8 and rejected b y the N i n t h C i r c u i t i n the Marcos cases, 119 the interpretation of the A l i e n T o r t A c t as a substantive statute was accepted b y the Eleventh C i r c u i t i n the Abebe-Jira case. 120 115

Id.

m

Id.

117

Id. As was urged by the Amicus Curiae Law Professors' Second Circuit Brief, 12 (citations omitted): "§ 1350 provides both a cause of action and a remedy." This possibility had been left open in Filartiga (note 25), 887 (citation omitted) in light of the court's reliance on customary international law as United States substantive law. The [plaintiffs] urge that [the Alien Tort Act] be treated as an exercise of Congress's power to define offenses against the law of nations. While such a reading is possible, we believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law. The Supreme Court has recognized that a jurisdictional statute may authorize federal common law. Textile Workers Union v. Lincoln Mills , 353 U.S. 448 (1957). Federal common law enforcing international law should not be affected by the demise of federal common law following Erie v. Tompkins , 304 U.S. 64 (1938). See Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, American Journal of International Law, vol. 33, 1939, 740; Sabbatino (note 50), 268 - 270. 118 "The Alien Tort Statute is no more than a jurisdictional grant based on international law." Amerada Hess Shipping v. Argentine Republic , 830 F.2d 421, 425 (2d Cir. 1987). 119 Trajano (note 19), 501, 503 (citation omitted): We agree that a jurisdictional statute [the Alien Tort Act] may not alone confer jurisdict i o n on the federal courts, and that the rights of the parties must stand or fall on federal substantive law to pass constitutional muster. ... The district court [found] that § 1350 is simply a jurisdictional statute and creates no cause of action itself. ... We cannot say the district court erred. Judge Bork in Tel-Oren (note 17), 811 rejected the possibility that the Alien Tort Act is a substantive statute. Neither [§ 1331 nor the Alien Tort Act] either expressly or impliedly grants a cause of action. Both statutes merely define a class of cases federal courts can hear; they do not themselves even by implication authorize individuals to bring such cases. 120

Abebe-Jira (note 48), 847 (citations omitted):

458

Eric Johnson 2. The Plaintiffs

Burden to Establish a Violation

of International

Law

T h e burden o n the plaintiff under 28 U.S.C. § 1331 t o show a question o f federal substantive law t o establish jurisdiction is l o w . Unless the federal substantive claim is " w h o l l y insubstantial and f r i v o l o u s " 1 2 1 there is subject matter j u r i s d i c t i o n under 28 U.S.C. § 1331. Generally 'facts' alleged b y the plaintiff are t o be assumed true for establishing subject matter jurisdiction under 28 U.S.C. § 1331. T h e Second C i r c u i t i n Kadic/Doe

I and II held that the plaintiff's burden under

the A l i e n T o r t A c t t o show a violation of international law is a higher standard t h a n the standard under 28 U.S.C. § 1331. Because the Alien Tort Act requires that plaintiffs plead a 'violation of the law of nations' at the jurisdictional threshold, this statute requires a more searching review of the merits to establish jurisdiction than is required under the more flexible 'arising under' formula of section 1331. Thus, it is not a sufficient basis for jurisdiction to plead merely a colorable violation of the law of nations. There is no federal subject-matter jurisdiction under the Alien Tort Act unless the complaint adequately pleads a violation of the law of nations (or treaty of the United States).122 H o w e v e r , the Second Circuit d i d little t o demonstrate h o w it was exercising 'a m o r e searching review of the merits' than it exercises under 28 U.S.C. § 1331. T h e Second C i r c u i t generally seemed t o "accept as true for purposes o f this appeal" 1 2 3 all o f the

Since Filartiga , a majority of courts have interpreted section 1350 as providing both a private cause of action and a federal forum where aliens may seek redress for violations of international law. We reject [the defendant's] argument that the district court lacked subject matter jurisdiction because the Alien Tort Claims Act does not provide a private right of action. As a final item it should be added that the N i n t h Circuit in Trajano (note 19), 501 found federal substantive law on an alternative basis merely in the process of determining whether the Foreign Sovereign Immunities Act applies, even if it does not apply. 121

Bell v. Hood, , 327 U.S. 678, 682 - 683 (1946).

122

Kadic/Doe I and II (Second Circuit decision) (note 2), 238 (citation omitted). See Filartiga (note 25), 887 (citations omitted): The paucity of suits successfully maintained under the section is readily attributable to the statute's requirement of alleging a 'violation of the law of nations' at the jurisdictional threshold. Courts have, accordingly, engaged in a more searching preliminary review of the merits than is required, for example, under the more flexible 'arising under' formulation [of 28 U.S.C. § 1331]. 1

Kadic/Doe I and II (Second Circuit decision) (note 2), 2 6 .

Kadic v. Karadzic and Doe I and II v. Karadzic plaintiffs' allegations. 1 2 4 O n l y occasionally d i d the Second C i r c u i t seem t o investigate the v a l i d i t y o f the plaintiffs' claims. 1 2 5

3. Forum non Conveniens U n d e r the forum non conveniens doctrine, a court may i n its discretion dismiss an action i f a more convenient f o r u m is available. T h e Supreme C o u r t has listed the factors t o be analyzed i n deciding a question of forum

non conveniens :

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court w i l l weigh relative advantages and obstacles to a fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, Vex', 'harass' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. 126 T h e Second C i r c u i t i n Filartiga

d i d n o t address the forum

non conveniens question

f o r procedural reasons, b u t indicated i n its rejection o f the issue that it generally w o u l d n o t apply the forum

non conveniens doctrine i n A l i e n T o r t A c t cases. 127

The T o r t u r e V i c t i m Protection A c t requires courts t o investigate the possibility o f a trial i n the f o r u m i n w h i c h the action occurred. A c c o r d i n g t o § 2(b) a court

124

The court accepted as true for establishing subject matter jurisdiction under the Alien Tort Act that Karadzic had the requisite intent for genocide, that Karadzic s actions took place w i t h i n an armed conflict as defined by the laws of war, that the Bosnian Serbs were involved in a conspiracy w i t h the State of Yugoslavia etc. Kadic/Doe I and II (Second Circuit decision) (note 2), 244, 245. 125 For example, in describing the Bosnian Serb entity as a de facto State. See Part IV. Even here the Second Circuit used language indicating it was passively accepting the facts contained in the plaintiffs' claims. "[Plaintiffs'] allegations entitle them to prove that Karadzic's regime satisfies the criteria for a state, for purposes of those international law violations requiring state action." Kadic/Doe I and II (Second Circuit decision) (note 2), 245. 126 127

Gulf Oil v. Gilbert , 330 U.S. 501, 508 (1947).

Filartiga (note 25), 890: [W]e do not reach the critical question of forum non conveniens , since it was not considered below. I n closing, however, we note that the foreign relations implications of this and other issues the district court w i l l be required to adjudicate on remand underscores the wisdom of the First Congress in vesting jurisdiction over such claims in the federal district courts through the Alien Tort Statute. Questions of this nature are fraught w i t h implications for the nation as a whole, and therefore should not be left to the potentially varying adjudications of the courts of the fifty states.

460

Eric Johnson

must decline the claim "if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred." The plaintiffs in Kadic/Doe I and II argued "that a proceeding to adjudicate these claims cannot practically be filed in Bosnia-Herzegovina, which is in a state of war and partial occupation" and that such a proceeding would be "futile" and would result in "serious reprisals" against the plaintiffs. 128 The defense argued that a trial in the New York forum would be so inconvenient for the defendant as to violate due process. H o w could the cases be meaningfully tried? H o w would witnesses be compelled to appear, or documents produced? H o w could the parties ever understand what was happening? Is it not clear that fair trials of such massive cases at so great a distance w i t h no judicial power to compel performance are impossible, that due process cannot be provided? 129

The United States in its Statement of Interest took no position on the question of forum non conveniens™ although it added the following statement: "We do wish to stress, however, the general importance of considering the forum non conveniens doctrine in cases such as these where the parties and the conduct alleged in the complaints have as little contact with the United States as they have here." 131 The Second Circuit in the Kadic/Doe I and II cases explicitly addressed the question of forum non conveniens and § 2(b) of the Torture Victim Protection Act. . . . no party has identified a more suitable forum, and we are aware of n o n e . . . . it seems evident that the courts of the former Yugoslavia, either in Serbia or war-torn Bosnia, are not now available to entertain plaintiffs' claims, even if circumstances concerning the location of witnesses and documents were presented that were sufficient to overcome the plaintiffs' preference for a United States forum. 1 3 2

4. The Political Question Doctrine Under the political question doctrine a court should not reach a decision in a case that is nonjusticiable in that it is more suited to a political than to a judicial solution. The Supreme Court in Baker v. Carr provided several factors for deciding whether the political question doctrine should be applied: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent reso128

Doe I and II Second Circuit Brief, 51.

129

Karadzic Petition for Certiorari

130

United States Statement of Interest, 18.

Brief, 19.

m

Id.

1

Kadic/Doe

I and II (Second Circuit decision) (note 2), 2

.

Kadic v. Karadzic and Doe I and II v. Karadzic lution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 133

In the area of foreign relations, despite the statement in Baker v. Carr that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance,"134 the Supreme Court has stated that the political question doctrine is of particular importance. 135 The Second Circuit in Filartiga did not consider the political question doctrine. 136 In Tel-Oren the political question doctrine received extensive treatment. Judge Bork, while not addressing the political question doctrine directly, stated that the political nature of that case, i.e. the degree to which it involved the foreign relations of the United States, supported his refusal to allow jurisdiction under the Alien Tort Act. 1 3 7 Judge Bork emphasized the potential degree of interference with foreign relations w i t h respect to the claim in that case that the PLO had conspired with Libya to carry out an attack in Israel. "The prospect of a federal court ordering discovery on such an issue, to say nothing of actually deciding it, is, or ought to be, little short of terrifying." 138 Judge Robb held directly that the case had to be dismissed under the political question doctrine. 139 Judge Robb emphasized the danger that the Alien Tort Act would be misused by plaintiffs for "the exposition of political propaganda." 140 The district court in Kadic/Doe I and II dismissed the cases in part in reliance on reasoning similar to that underlying the political question doctrine. According to the district court, Karadzic would be covered by foreign sovereign immunity if the executive branch would recognize the Bosnian Serb entity as a State. Thus 133 134

Baker v. Carr , 369 U.S. 186, 217 (1962). /af., 211.

135

See the plurality opinion in Goldwater v. Carter , 444 U.S. 996, 1003 (1973): "[T]he justifications for concluding that the question here is political in nature are even more compelling . . . because it involves foreign relations." 136

Although it was possibly one of the "other issues", along w i t h forum non conveniens that the Second Circuit remanded to the district court. Filartiga (note 25), 890. 137

Tel-Oren (note 17), 803: If it were necessary, I might well hold that the political question doctrine bars this lawsuit, since it is arguable . . . that this case fits several of the categories listed in Baker v. Carr. Such a determination is not necessary, however, because many of the same considerations that govern application of the political question doctrine also govern the question of the appropriateness of providing . . . a cause of action. 138

Id., 821.

139

Id., 823.

140

Id., 826. Judge Edwards felt the political question was not applicable because no clash between Congress and the President was present. Id., 797.

462

Eric Johnson

Karadzic's liability was dependent on this political decision of the executive branch, which, the court felt, turned the cases into a request for an advisory opinion. 1 4 1 The defense in Kadic/Doe I and II argued for dismissal under the political question doctrine. "It is difficult to imagine what that case might be which raises a political question if this one does not." 1 4 2 The defense accused the plaintiffs of bringing the suit to advance their political agenda, not to seek monetary damages. Plaintiffs' complaints are political statements. Witness their press conferences, press releases and mailings. . . . The plaintiffs' preference for a United States forum is only the preference of plaintiffs' counsel for a forum where they . . . can wield greatest influence in the international political struggle over the failure of former Yugoslavia. . . . [H]uman rights litigation [in such a case is] merely the continuation of war by other means. 143

The United States in its Statement of Interest in one terse statement took the position that the political question doctrine did not apply. "Although there might be instances in which federal courts are asked to issue rulings under the Alien Tort Statute or the Torture Victim Protection Act that might raise a political question, this is not one of them." 1 4 4 The Second Circuit, stating that it weighs political question issues "on a case-bycase basis,"145 held the case justiciable. [U]niversally recognized norms of international law provide judicially discoverable and manageable standards for adjudicating suits brought under the Alien Tort Act, which obviates any need to make initial policy decisions of the kind normally reserved for nonjudicial discretion. 146

The Second Circuit also relied on the United States Statement of Interest in finding no political question. [W]e need have no concern that interference w i t h important governmental interests warrants rejection of [plaintiffs'] claims.... [T]he United States has expressly disclaimed any concern that the political question doctrine should be involved to prevent the litigation of these lawsuits. 147

In a statement w i t h possible significance for future cases, however, the Second Circuit stated that the reverse may not be true, that "an assertion of the political ques141

Kadic/Doe I and II (district court decision) (note 1), 3. The district court further stated, "This consideration, while not dispositive at this point in the litigation, militates against this court exercising jurisdiction over the instant action." Id. 142

Karadzic Reply to United States Statement of Interest (Docket Nos. 94 - 9035, 94 9069), 19. 143

Id., 3; Karadzic Petition for Certiorari

Brief, 20, 26.

144

United States Statement of Interest, 3.

145

Kadic/Doe I and II (Second Circuit decision) (note 2), 249.

™Id. 147

Id., 250.

Kadic v. Karadzic and Doe and II v. Karadzic tion by the Executive Branch, entitled to respectful consideration, would not necessarily preclude adjudication." 148 5. The Self-Executing-Treaty Doctrine and Effects on Customary International Law under the Alien Tort Act The Alien Tort Act encompasses not only violations of customary international law, but also violations of 'treaties of the United States'. United States law distinguishes between treaties that are self-executing, that on the basis of their language or of the circumstances surrounding their drafting create rights enforceable in United States Courts, and treaties that are non-self-executing that do not. If this distinction is to be maintained in American law, then only treaties that are self-executing may be enforced under the Alien Tort Act. 1 4 9 The self-executing treaty doctrine may have two types of implications for the treatment of customary international law under the Alien Tort Act. a) Self-Executing Customary International Law First, if only self-executing treaties are actionable under the Alien Tort Act, and if treaties and customary international law are to be treated similarly under the Alien Tort Act as suggested by the parallel wording in the Alien Tort Act covering treaties and customary international law, then only those provisions of customary international law that are self-executing, i.e. that mandate a right for damages within customary international law, should be actionable under the Alien Tort Act. This was essentially the position taken by Judge Bork in Tel-Oren. 150

™Id. 149 Although this result creates a redundancy between the Alien Tort Act and 28 U.S.C. §1331 similar to the redundancy created if customary international law is substantive law of the United States to be enforced under § 1331. See Part V I section 1. 150

Tel-Oren (note 17), 799, 801, 816: Neither the law of nations nor any of the relevant treaties provides a cause of action that appellants may assert in courts of the United States.... [I]t is essential that there be an explicit grant of a cause of action before a private plaintiff w i l l be allowed to enforce principles of international law in a federal t r i b u n a l . . . . [A]ny cause of action that might exist, like the precise meaning of the customary principles themselves, must be inferred from the sources that are evidence of and attempt to formulate the legal rules. . . . [N]one of the documents appellants have put forth as stating the international legal principles on which they rely expressly state that individuals can bring suit in municipal courts to enforce the specified rights. Judge Bork supported his decision in Tel-Oren not to find a cause of action w i t h political question considerations. See Part V I section 4.

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Eric Johnson

Judge Edwards i n Tel-Oren criticized this approach. First, he felt that similar treatment of treaties and customary international law is not necessary as the t w o are "entirely different animals." 1 5 1 Second, he felt that the approach leads t o the result that a breach o f customary international law is never actionable under the A l i e n T o r t A c t , because remedies for customary international law breaches are as a rule p r o v i d e d b y m u n i c i p a l law. [N]o evidence is offered to indicate that jurists or commentators have ever looked to the law of nations to determine when a wrongful deed is actionable.... [T]he law of nations has never been perceived to create or define the civil actions to be made available by each member of the community of nations; by consensus the states leave that determination to their respective municipal l a w s . . . . I n consequence, to require international accord on a right to sue, when i n fact the law of nations relegates decisions on such questions to the states themselves, would be to effectively nullify the l a w of nations' portion of section 1350. 152 Perhaps Judge Edwards's

criticism w e n t t o o far, and it is possible t o say that for

some customary international law duties that customary international l a w also creates a civil remedy. 1 5 3 But Judge Edwards was correct i n n o t i n g that the approach represents a principle that m a y p u t significant limits o n claims under the A l i e n T o r t Act. T h e N i n t h C i r c u i t i n the Marcos cases recognized the p r o b l e m referred t o b y Judge Bork and held that the plaintiff i n an A l i e n T o r t A c t action must p o i n t t o a source o f l a w i n addition t o customary international l a w t o provide a remedy. [The district court] proceeded to determine damages . . . under Philippine law. From this we assume that the court did not rely on treaties or international law to provide the cause of action, only to establish federal jurisdiction The district court's approach . . . allows the 'law of nations' and 'treaty' prongs of § 1350 to be treated consistently, in that the cause of action comes from municipal tort law and not from the law of nations or treaties of the United States. This avoids the anomalous result which troubled Judge Bork in TelOren , that whereas Filartiga found a private right of action by implying it from principles of international law, no private cause of action can ever be implied from a non-self154

executmg treaty. 151

Tel-Oren (note 17), 778.

152

Id., 777 -778.

153 Although Judge Bork stated, id. ,817 (citation omitted) that "as a general rule, international law does not provide a private right of action, and an exception to that rule would have to be demonstrated by clear evidence that civilized nations had generally given their assent to the exception," he felt that violation of safe-conduct, violation of the rights of ambassadors and piracy are examples of international law violations for which customary international law mandates a civil remedy. Id., 813. 154

Trajano (note 19), 503. The N i n t h Circuit approach may cause constitutional problems if the remedy applied is not federal substantive law and the action is between aliens. See Part V I section 1.

Kadic v. Karadzic and Doe I and II v. Karadzic Although the defense in Kadic/Doe I and II argued the Bork approach, "Civil liability has not been created under customary . . . international law [for the alleged customary international law offenses of Karadzic]," 155 this argument was not answered in the Second Circuit opinion. b) Non-Application of Customary International Law Norms also Covered by a Non-Self-Executing Treaty Second, if a particular norm is covered both in customary international law and by a United States treaty that is either not self-executing or enforced by United States statutory law that explicitly negates the creation of a civil remedy under the statute, then arguably the norm should not be applied under the Alien Tort Act as the basis for a civil action in order to avoid a conflict with the will of Congress that that particular norm not be the basis for civil remedies in United States courts. The defense in Kadic/Doe I and II argued that because it is explicitly stated in the United States codification of the Genocide Convention that no civil cause of action is created for individuals 156 it should not be possible for an individual to have a civil cause of action for genocide through customary international law under the Alien Tort Act. 1 5 7 The Second Circuit rejected this argument. Though Congress provided that the Genocide Convention Implementation Act shall not 'be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding,' the legislative decision not to create a new private remedy does not imply that a private remedy is not already available under the Alien Tort A c t . 1 5 8

The United States in its Statement of Interest in Kadic/Doe I and II maintained that the Torture Convention, the Genocide Convention and the Geneva Conventions are not self-executing in American law, yet may be used as customary international law under the Alien Tort Act. 1 5 9 Conclusion The Second Circuit decision represents a significant expansion beyond previous jurisprudence of the possibility for a plaintiff to bring an action under the Alien Tort Act. Private action is not as a rule excluded from providing the basis for an Alien Tort Act claim. For Alien Tort Act claims requiring state action, state action 155

Karadzic Reply to United States Statement of Interest, 13.

156

See 18 U.S.C. § 1092.

157

Karadzic Petition for Certiorari

Brief, 12.

158

Kadic/Doe I and II (Second Circuit decision) (note 2), 242 (quoting 18 U.S.C. § 1092).

159

United States Statement of Interest, 16.

30 GYIL 39

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Eric Johnson

may be found in a variety of ways, including through quasi-governmental character, through the existence of a de facto State and through a conspiracy with a State. Foreign sovereign immunity and the Act of State doctrine seem unlikely to be applied to claims involving state action. Personal jurisdiction is established by service of process, without immunity for United Nations invitees. The forum non conveniens and political question doctrines seem not to carry strong weight. The answer thus seems to be 'yes' to the question posed rhetorically by the defense in Kadic/Doe I and II: A n d what about the millions of victims of war in Rwanda, Liberia, Guatemala, El-Salvador, Cambodia, Kashmir and all the other countries torn by c o n f l i c t . . . ? Can U.S. courts be the bully pulpit, or the tort claims forum for all the world's misery if only some defendant can be tagged w i t h one foot on U.S. soil? 160

Although such a development may be regarded as a "step in the fulfillment of the ageless dream to free all people from brutal violence,w 1 6 1 the state of the law in this area is not satisfactory. Confusion reigns among the circuit courts on basic questions concerning the substantive basis for an Alien Tort Act claim, and therefore on the resolution of the constitutional questions involved. There seems little reason after the rejection of certiorari in Kadic/Doe I and II to believe that Supreme Court guidance, for which Judge Edwards pleaded in Tel-Oren, 162 will be forthcoming in the near future. The political difficulties that may result from this development are also problematic. The pursuit of Alien Tort Act claims may in the future interfere with United States foreign policy. The danger is well demonstrated by the Kadic/Doe I and II 160 Karadzic Reply to United States Statement of Interest, 3 - 4 . Compare Judge Robb in TelOren (note 17), 826 - 827: It is not implausible that every alleged victim of violence of the counter-revolutionaries i n such places as Nicaragua and Afghanistan could argue just as compellingly as the plaintiffs here do, that they are entitled to their day in the courts of the United States. [T]here is no obvious or subtle limiting principle in sight. Even recognized dissidents who have escaped from the Soviet Union could conceivably bring suit for violations of international law having to do w i t h the conditions of their earlier confinements. A t one point, interestingly, Judge Robb referred to the possibilities of increased litigation under the Alien Tort Act as a "Serbian Bog". Id. y 825. Compare also Princz (note 78), 1174 w i t h respect to making United States federal courts more accessible to human rights under the Foreign Sovereign Immunities Act: We think that something more nearly express is wanted before we impute to the Congress an intention that the federal courts assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong. [This] would likely place an enormous strain not only upon our courts but, more to the immediate point, upon our country's diplomatic relations w i t h any number of foreign nations. 161

Filartiga

(note 25), 890.

162 «Th^ c a s e deals w i t h an area of the law that cries out for clarification by the Supreme Court." Tel-Oren (note 17), 775.

Kadic v. Karadzic and Doe I and II v. Karadzic

467

cases. Although the Executive largely supported the action against Karadzic , the Second Circuit acted against the explicit United States request that the Bosnian Serb entity not be declared a State. However a test case has not yet emerged in which a court finding or judgment under the Alien Tort Act seriously interferes with United States foreign policy. Most of the successful Alien Tort Act cases have been against minor officials, e.g. the police official defendant in Filartiga , against former officials, e.g. Ferdinand Marcos , and against officials of States the international influence of which is minor, e.g. Argentina, Ethiopia, Rwanda, Guatemala, Haiti etc.163 A case w i t h perhaps more potential for political fallout was the case Todd v. Panjaitan , in which the Massachusetts federal district court awarded $14 million in damages against an Indonesian general for a massacre in East Timor. 1 6 4 A n even more difficult case politically will be presented if top officials of a major power w i t h a poor human rights record (e.g. top Chinese officials) are made defendants in an Alien Tort Act action. After Kadic/Doe I and II there seems to be little in the Alien Tort Act jurisprudence of the Second Circuit to prevent such a result.

163 Stephens/Ratner (note 21), Appendix A list the following Alien Tort Act cases resolved i n favor of the plaintiff: Filartiga v. Pena-Irala (Argentinean official as defendant); Forti v. Suarez-Mason , Martinez-Baca v. Suarez-Mason, Quiros de Rapaport v. Suarez-Mason (Argentinean official as defendant); Siderman de Blake v. Republic of Argentina (government of Argentina as defendant); Trajano v. Marcos , Hilao v. Marcos (Ferdinand Marcos, former President of the Philippines as defendant); Abebe-fira v. Negewo (Ethiopian official as defendant); Paul v. Avril (Haitian official as defendant); Xuncax v. Gramajo , Ortiz v. Gramajo (Guatemalan official as defendant); Mushikiwabo v. Barayagwiza (Rwandan official as defendant). 164

30*

The case is noted in id.

The International Covenants on Human Rights1 in the Decisions of the Polish Supreme Court, the Constitutional Tribunal and the Supreme Administrative Court By Renata Hliwa and Leszek Wisniewski

I. The Period before 1989 The two international covenants on human rights, both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, which were accepted by the General Assembly of the United Nations on 16 December 1966, were ratified by Poland on 3 March 1977. In the period before 1989 the binding approach was as expressed in the Supreme Court's decision of 25 August 1987: To the extent... the norms of international law have not been transformed into national law in the legally prescribed manner, these norms are not a part of national law and as a result are not binding upon courts The registration of trade unions the court decides according to the rules under the statute on trade unions, and excludes consideration of the norms of covenants that have been ratified by the People's Republic of P o l a n d . . . . A possible conflict between national and international law is not relevant on the facts of the case for decision.2

The position of the Supreme Court was at that time explained as the result of the following conditions: 1) The 1952 constitution of the People's Republic of Poland contained no determination as to the position of international agreements in the Polish legal system, including the agreements concerning human rights. The constitution did not provide, as had the March constitution of 1921 and the April constitution of 1935, for a prior consent of the Sejm for ratification. Under those constitutions, the consent of the Sejm was expressed in the form of a law published in the law gazette Dziennik Ustaw, and in the legal practice of the time, the fulfillment of these formal

1

International Covenant on Civil and Political Rights, 19 December 1966, 999 U N T S 171; International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 U N T S 3. 2

Orzecznictwo S^dow Polskich (OSP), No. 10, 1988, 447, 449.

The International Covenants on Human Rights

469

conditions was recognized as the transformation of the international agreement into Polish law on the level of an ordinary statute.3 The currently binding constitutional norms still do not determine the position of international law in the Polish legal system, although in the year 1989 a rule was added to the constitution that requires the consent of the Sejm for certain specified international agreements. O n this basis the Sejm gave its consent in the form of a statute to the ratification by the President of the Convention on the Rights of the Child in 19904 and the European Convention on Human Rights in 19925, along with other treaties. 2) From 1952 to the present the constitutional provision has been in force that judges are subject only to statutes, which has been understood to mean that the judges cannot otherwise apply ratified agreements in reaching their decisions. After the establishment of the Constitutional Tribunal a rule was added to the constitution making the members of the Constitutional Tribunal subject only to the constitution. Neither the constitution nor the statute on the Constitutional Tribunal gives the Constitutional Tribunal power to decide matters concerning the extent to which Polish national law conflicts with the ratified international agreements. Despite these problems, the opinion has been expressed in the literature that ratified international agreements are directly binding in national law by their own force (ex proprio vigore). This doctrine had already been argued between the world wars and was advocated in the 1960s by Stefan Rozmaryn. 6 In Poland's time as a People's Republic, however, especially before 1980, this doctrine was noted in only a few court decisions as it did not find acceptance in the political circles of the State.7 Indeed, such acceptance could not have existed without a change of the State political system. For instance, the direct application of I L O Convention 87,® ratified in 1956, would have worked the destruction of the central trade union's monopoly and led to the creation of numerous independent trade unions. The direct application of the Covenant on Civil and Political Rights would have altered the constitutional norm of the leading role of one party in the State and

3 Krzysztof Skubiszewski , Prawa jednostki, umowy mi^dzynarodowe i porz^dek prawny PRL, Panstwo i Prawo, No. 7, 1987, 11. 4

Dziennik Ustaw, No. 16, pos. 71, 1991.

5

Dziennik Ustaw, No. 85, pos. 427, 1992.

6

Stefan Rozmaryn , SkutecznoSd umow mi^dzynarodowych PRL w stosunkach wewn^trznych, Panstwo i Prawo, No. 12, 1962, 951, 956, 959. 7 Compare Krzysztof Skubiszewski , Konstytucyjne uj^cie stosunku prawa polskiego do prawa mi^dzynarodowego, Panstwo i Prawo, No. 10, 1987, 139. 8 Convention concerning Freedom of Association and Protection of the Right to Organise, June/July 1948, International Labour Organisation, Conventions and Recommendations 1919 - 1966, 1966, 663 (entered into force 4 July 1950).

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Renata Hliwa and Leszek Wisniewski

introduced political pluralism, which would have meant a change in the voting system and the fall of the totalitarian State. Such conditions of a political nature are evident, but in general cannot determine the correctness of an opinion of a legal nature. Today in a democratic State of law it is worthwhile to consider whether the legal argumentation that was used (and is still used today) to justify not applying the human rights covenants in Polish courts is valid from the standpoint of constitutional law. In the ratification acts of both covenants the following formula was added under the signature of the head of State: After reviewing the above Covenant the State Council recognizes it, in its totality, and each norm therein separately. The State Council declares that the Covenant has been accepted, ratified and confirmed and gives its assurance that it w i l l be followed without modification. 9

The declaration was given by the State Council, the organ competent at the time under the constitution to ratify international agreements. As the State Council in such a declaration bound itself to follow an agreement in its totality, including each of its provisions, this meant that the declaration also concerned Article 2 para. 1 of the Covenant on Civil and Political Rights, which begins as follows: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized i n the present Covenant. . . . 1 0

In the literature and doctrine on the subject, the opinion is overwhelmingly expressed that the intention of the States Parties that created the covenants was in the direction of making the rights and liberties provided in the Covenant on Civil and Political Rights directly applicable after ratification, whereas the rights contained in the Covenant on Social and Economic Rights could be put into force gradually according to the rate at which the economic situation of a State improves. 11 A t the same time the constitution of the People's Republic of Poland provided in Article 8 paras. 2 and 3 that the State organs had to follow national law precisely and act only in accordance with the regulations of law. Here the question may be posed whether an international agreement, ratified in compliance with the constitution by the supreme organ of the State, the State Council, published as an 'act of law' (by which a normative regulation was meant)

9

Dziennik Ustaw, No. 38, pos. 167, 169, 1977.

10 11

999 U N T S 173.

Anna Michalska , Podstawowe prawa czlowieka w prawie wewn^trznym a Pakty Praw Czlowieka, 1976, 221 - 222.

The International Covenants on Human Rights

471

in the law gazette of the People's Republic of Poland, Dziennik Ustaw 12 and containing the formula that it is binding in international relations and national law should be considered, even at that time, part of the sources of binding law. According to our view, yes, because the legally binding nature was created on the basis of the constitutional law of the People's Republic of Poland. A part of a Constitutional Tribunal decision of 7 June 1989 can be seen as supporting this view: The position taken by the lawmaking authority touches on the so far controversial question of the open or closed character of the sources of binding law in the People's Republic of Poland. The binding constitution of the People's Republic of Poland does not exclude the possibility that there are binding acts apart from those explicitly mentioned in the constitution and belonging to the category of generally binding law. 13

It should be added that the constitution of the People's Republic of Poland does not establish the acts that belong to the sources of binding law in a separate provision, but rather these acts are indirectly presented through a description of the competences of the various State organs. Thus statutes, decrees with binding force as provided by chapter 3 of the constitution, and international agreements are mentioned as normative acts of the Sejm and State Council; separately, in chapter 5, directives, decisions and orders are mentioned as normative acts of the executive organs, based on and w i t h the goal of carrying out statutes. In the literature as well as in court decisions mention was made of the constitutional provision presenting the judges as subject only to published statutes as an argument against the possibility of direct application by the courts of ratified, and in the Dziennik Ustaw published, international agreements. This apparently resulted from a failure to recognize the difference between 'subject only to statutes' and 'application of normative acts'. The subservience of judges to statutes means in practice only that the judge cannot decide against a statute, but can decide against other legally binding acts that are below statutes (directives and decisions of the executive organs) when such acts cannot be reconciled with the statute. The judge avoids applying the regulations established by the directive or decision by deciding exclusively according to the statute. This however does not mean that the judge has no duty to apply directives and decisions of the executive organs that are consistent with law, that are issued on the basis of a statute and with the intention of carrying out the statute although the judge is not explicitly subject to these directives and decisions. The constitution is

12

In accordance with Art. 1 §§ 1 and 2 of the statute of 30 December 1950 concerning the publication of the Dziennik Ustaw PRL and the Dziennik Urz^dowy PRL 'Monitor Polski', Dziennik Ustaw, No. 58, pos. 524. 13

Orzecznictwo Trybunalu Konstytucyjnego (OTK), 1989, 146.

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Renata Hliwa and Leszek Wisniewski

also silent as to the judge's subservience to the constitution; no one, however, would have argued that judges were not bound by the constitution. The above argumentation leads to the conclusion that there was at that time and is today no constitutional bar to the direct application of norms contained in ratified treaties published in the Dziennik Ustaw if these are self-executing, i.e. if they stipulate in an unambiguous way rights, freedoms or duties of persons to whom the norm is addressed. The result of the subservience of the judge to statutes was and is only that the judge in the case of a conflict with the norms of an international agreement must decide consistently with the national statutes to which he is subservient, and thus must not apply the principle lex posterior derogate priori. However, the provisions of a ratified international agreement published in the Dziennik Ustaw that are consistent with law should be applied directly. This situation, which obviously contradicts international law, because the fundamental principle pacta sunt servanda is violated, will be avoided in a new Polish draft constitution as reported in the paper by Professor R. Szafarz. The decision of the Supreme Court of 25 August 1987, which was mentioned in the introduction, did not well represent the court's practice, and was even at that time strongly criticized, mainly because the decision "rejected the ex proprio vigore binding nature or effect of international agreements in the national legal order of the People's Republic of Poland." 14 After the establishment of administrative law determining the duty or capacity of a public organ to apply an administrative sanction for the commission of a crime or a breach of law . . . this sanction can only be applied if the administrative regulation prescribing the sanction was binding already at the time of the commission of the crime or breach of law. The contrary approach would violate one of the foundations of a system of law, namely that no ex post facto duty be created. The similarity between the administrative sanction considered here and the sentence of a court w i t h relation to a norm not legally binding at the time of its commission . . . provides a basis for taking note of Art. 15 of the Covenant on Civil and Political Rights, which states that ' N o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. N o r shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.' Therefore, if at the time when the crime was committed . . . there was no regulation providing an administrative sanction for withdrawal of permission on account of commission of such crime, then application of this sanction is inadmissible, from the point of view of both national law and international obligations arising from international covenants ratified by the People's Republic of Poland. 15 14

Krzysztof Skubiszewski, commentary to the decision, Panstwo i Prawo, N o . 6, 1989, 144 -

145. 15

Orzecznictwo NSA (decisions of the Supreme Court of Administration), No. 2, pos. 65, 1986, 113 - 114. See Art. 15 of the International Covenant on Civil and Political Rights, 999

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In its judgment of 12 August 1987 the Supreme Administrative Court recognized that "The stipulation of Article 13 of the customs statute of 26 March 1975 causes an essential violation of the fundamental right of freedom of speech and of the press expressed in the Polish constitution as well as of the right to 'obtain and spread all information and opinions without regard for State borders/ which arises from the International Covenants ratified by Poland in 1977."16 The Supreme Administrative Court was, however, unable at this time to contradict too strongly the judgements of the Supreme Court. The Supreme Administrative Court thus took the position that a contradiction between a given decision and norms arising from an international agreement ratified by Poland alone did not necessarily lead to the conclusion that the decision was not consistent with the law. In the judgment of 26 August 1986 the Supreme Administrative Court concluded: The constitution of Poland contains no determination of the place of international law in the national legal order. The signed and ratified treaties are indeed observed by Poland; their realization, however, occurs through national law. Although the judiciary has not spoken in this respect, in general it is assumed that ratification by the State Council does not effect their transformation into national law, but only creates a duty for such a transformation, which duty falls within the competence of the Sejm. The existing exceptions (Art. 1096 KPC — Civil procedure Code and Art. 541 KPK — Criminal Procedure Code) do not apply to the covenants and conventions of the I L O . In practice there exists no possibility to complain in a legal proceeding that a particular regulation of national law has no binding force because it contradicts an international agreement. Indeed if there were to be a contradiction between an international agreement and a national statute the judges, because they are subservient only to the latter, would have to apply the rule of national law.

In this judgment the Supreme Administrative Court established that introduction of forced labor contradicted not only Article 19 of the constitution, but also Conventions 29 17 and 10518 of the I L O and Article 8 para. 3 of the International Covenant on Civil and Political Rights 19 . "It stands thus in extreme contradiction to the common standard of civilized peoples in the area of the development of human rights." 20 In its judgment of 29 November 1988 the Supreme Administrative Court expressed its opinion that

U N T S 177. 16

Orzecznictwo NSA, pos. 59, 1987, 101.

17

Convention concerning Forced or Compulsory Labour, June 1930, International Labour Organisation (note 8), 155 (entered into force 1 May 1932). 18

Convention concerning the Abolition of Forced Labour, June 1957, International Labour Organisation (note 8), 891 (entered into force 17 January 1959). 19

999 U N T S 175.

20

OSP No. 10, 1990, 750.

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Renata Hliwa andLeszek Wisniewski

the failure of State organs to observe the international norms that bind them and that serve to realize freedom of speech and of the press could be considered a violation of the constitutionally mandated foreign relations of the People's Republic of Poland.

According to this position, almost every legal act inconsistent with a ratified international agreement would be unconstitutional and as such could not serve as the basis for a valid administrative decision.21 A t the same time the Supreme Administrative Court directed a variety of legal questions to the Supreme Court as well as to the Constitutional Tribunal on the problem of the place of international agreements on human rights in national law. For example, the chairman of the Supreme Administrative Court in 1987 posed to the Constitutional Tribunal a legal question referring to the limitations on admission to medical universities, which he accompanied with the following observation: The solution created by the Ministry of Health and Social Welfare is consistent neither with Art. 26 of the International Covenant on Civil and Political Rights nor w i t h Art. 13 of the International Covenant on Economic, Social and Cultural Rights. It is also not consistent w i t h Art. 10 of the Convention on the Elimination of all Forms of Discrimination against Women. The above-mentioned Covenants and the Convention were ratified by Poland. 22

The Constitutional Tribunal in a decision on this question pointed out that the fact noted by the chairman of the Supreme Administrative Court must also be taken into account, that Poland has ratified a series of international agreements that apply to the equality of women in all its aspects. In this connection the following international agreements above all deserve mention: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights as well as the Convention on the Elimination of all Forms of Discrimination against Women. Poland by accepting and ratifying the aforementioned international agreements has supported the principles and assumptions of women's equality, which is fully consistent w i t h the previous provisions of the constitution of the People's Republic of Poland. 23

I I . The Legal Situation after 1989 After the fall of the system of 'real socialism' the courts returned to the doctrine according to which international agreements are binding ex proprio vigore , complementing it with the possibility of directly applying the norms in international agreements if their formulation is so concrete as to allow them to be applied directly in national law (self-executing provisions), and if the agreement has been published in the Dziennik Ustaw. 21

OSP No. 9, 1990, 695.

22

See International Covenant on Civil and Political Rights, Art. 26, 999 U N T S 179; International Covenant on Economic, Social and Cultural Rights, Art. 13, 993 U N T S 8. 23

OTK, No. 2, pos. 2, 1987, 23, 30.

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In the time during which the system itself was being transformed the Supreme Administrative Court took the decisive position as to the role of ratified international agreements in national law. In the judgment of 23 November 1990 the Supreme Administrative Court recognized that the generally accepted opinion is that ratified international agreements published in the Dziennik Ustaw require neither transformation nor incorporation but are valid ex proprio vigore. . . . indeed in case of conflict between such international agreements and national law the international agreements take priority over national law.

This last statement of the Supreme Administrative Court concerning the priority of international agreements over national law did not meet with further support either in the literature or in court decisions. The courts including the Supreme Administrative Court, reach their decisions not on the basis of rules contained in international agreements, but only on the basis of national law, with additional argumentation supporting by international law. In its judgment of 5 June 1991 the Supreme Administrative Court recognized that The acceptance of the competence of administrative courts i n cases of complaints against administrative decisions presents the realization of international standards that have been binding for some time. I n Art. 10 of the Universal Declaration of Human Rights of 1948 it was decided that 'Everyone is entitled in full equality to a fair and public hearing by an independent and impartial Court, in the determination of his rights and obligations and of any criminal charge against him.' This fundamental principle is repeated in Art. 14 para. 1 of the Covenant on Civil and Political Rights, concluded on 19 December 1966. These norms of international law concerning judicial protection of the rights of the individual are considered self-executing provisions. As a result of these provisions the administrative clerk, the state official or the judge cannot close his or her eyes to the international rules, must take these rules into account in official activity. The fundamental norms of international law that serve to protect human and civil rights must be binding rules of interpretation with respect to national law. This principle is also based on the Supreme Administrative Court's experiences in matters of protecting against the official actions of the police. 24

A similar position was taken in the judgment of the Supreme Court of 17 October 1991 concerning a conviction under the martial law decree. Article 61 of the decree determined that the decree would be applicable on the day of its publication, but had binding force on the day it was concluded (which was before publication). This situation was not compatible with Article 1 of the criminal code, which contains the fundamental principle lex retro non agit. However several decisions from the time of martial law interpret Article 61 of the decree as an exception to this fundamental principle. These decisions were based on Article 121 of the criminal code, which provides that the general norms of the criminal code may be applied to other law only if in the other law there are no separate provisions. The Supreme Court recognized, however, that the situation represented a violation of Article 15 of the 24

Orzecznictwo NSA Nos. 3 - 4, pos. 64, 1991, 107. See Universal Declaration of Human Rights, G A res. 217 (ID) of 10 December 1948.

476

Renata Hliwa and Leszek Wisniewski

Covenant on Civil and Political Rights, which prohibits ex post facto laws, 25 and the derogation from which on the basis of public emergency is expressly prohibited under Article 4 of the same covenant.26 The Supreme Court expressed the following opinion in its judgment. The prohibition in Art. 15 of the Covenant on Civil and Political Rights belongs to the category of norms of international law that are by nature to be applied directly in the national legal order of the signatory states (self-executing provisions). 27

The Constitutional Tribunal similarly confirmed in its judgment of 7 January 1992 that the Republic of Poland is bound by its ratification agreements, a result of which is that they shall be applied by the courts according to the principle ex proprio vigore unless the content or formulation of the provisions leads to the result that they are not self-executing. 28

In this judgment the Constitutional Tribunal declared that Article 36 para. 2 of the law on border protection was not compatible with Articles 14 and 26 of the Covenant on Civil and Political Rights, 29 but added that the rules of the covenant could not provide an independent ground for judgment in this area, but only perhaps a method of interpreting and supporting Article 1 of the constitution. The court felt it could not use the covenant to pass sentence in the case as neither the constitution nor the statute on the Constitutional Tribunal gave the court the competence to examine the compatibility of Polish law with international agreements. The Constitutional Tribunal did not have these doubts several months later in passing sentence in the judgment of 19 June 1992 in connection with a decision of the Sejm of 28 May 1992 obligating the minister of the interior to provide full information on civil servants from the level of the voivods upwards — deputies, senators, prosecutors, barristers, community council officials and local administration workers — that had collaborated with security services in the years 1945 - 1990. The court declared the decision of the Sejm incompatible with Article 1 of the constitution of the Republic of Poland, Article 23 of the civil code and Article 17 of the International Covenant on Civil and Political Rights. 30

25

999 U N T S 177.

26

999 U N T S 177.

27

Prawo i zycie, No. 13, 1992, 15.

28

O T K , vol. I, 1992, 84.

29

999 U N T S 176 - 177, 179.

30 O T K , vol. I, 1992, 197. This seems to be the only decision in which the Constitutional Tribunal applied a provision of an international agreement in its opinion. See International Covenant on Civil and Political Rights, Art. 17, 999 U N T S 177.

The International Covenants on Human Rights

477

Further decisions of the Supreme Administrative C o u r t confirmed the permanent presence o f the norms of the covenants i n court practice. I n its judgment o f 26 N o v e m b e r 1991 the Supreme Administrative C o u r t concluded that an interpretation of a legal rule that would violate the civil rights guaranteed in the constitution or that would contradict international agreements ratified by Poland or that would contradict other areas of Polish law, is not allowable. Almost all international agreements concerned with civil rights that Poland has signed and ratified do not allow discrimination against a person because of that person's religion (e.g. Art. 18 International Covenant on Civil and Political Rights 31 ). T h e court therefore held that the p o l i c y and actions of the m i n i s t r y o f the i n t e r i o r i n the case n o t o n l y violated i n a grave manner constitutional norms and ratified international agreements, but i n addition could be treated as c r i m i n a l . 3 2 I n another case, a man's request for service t o substitute for m i l i t a r y service was rejected, and he was convicted for not fulfilling m i l i t a r y service requirements. T h e m a n complained that his c o n v i c t i o n violated A r t i c l e 18 of the International Covenant o n C i v i l and Political Rights. T h e Supreme Administrative C o u r t i n its Judgment o f 5 August 1992 held: an examination of whether the state organ has violated Art. 18 of the International Covenant on Civil and Political Rights is advisable. This agreement was ratified by Poland in 1977 and published in the same year as an addition to the legal gazette. In the practice of courts the principle is already recognized that ratified international agreements should represent an element of the Polish legal order. Art. 18, which is presented by the complainant to this court, refers to freedom of thought, conscience and belief. N o exceptions are made to this principle, and this principle thus is also applicable to soldiers that perform military service. The complainant's opinion, however, is incorrect, that the quoted rule of the covenant provides the basis for a substitution for military service. Such a conclusion does not follow from the content of the quoted rule. The signatory states to the covenant do not have the duty to release groups with certain beliefs, or without certain beliefs, from military service. Such a conclusion would itself lead to a violation of the principle that 'all persons are equal before the law and are entitled without any discrimination to the equal protection of the law' (Art. 26 of the covenant).33 I n this judgment it is particularly interesting that the Supreme Administrative C o u r t treated first the question of a v i o l a t i o n of international l a w and o n l y afterwards the national l a w question. There were three items that had an influence o n this judgment:

31

999 U N T S 178.

32

Orzecznictwo NSA, No. 1, pos. 10, 1993, 86.

33

Orzecznictwo NSA, No. 1 pos. 13, 1994, 117 - 118. See International Covenant on Civil and Political Rights, Art. 26, 999 U N T S 179.

478

Renata Hliwa and Leszek Wisniewski

1) Article 32 lit. g para. 2 of the constitutional amendment of April 1989, which required the prior consent of the Sejm for the ratification of certain international agreements, which was later confirmed in the so-called 'small* constitution. 2) The acceptance in December 1989 of the fundamental principle that the Republic of Poland is a democratic State of law. 3) The ratification of the Vienna Convention on the Law of Treaties, which became effective for Poland on 1 August 1990.34 These three facts, and their almost simultaneous dates of adoption into Polish law, are an important argument for the direct applicability within Polish territory of international agreements ratified with the consent of the Sejm and published in the Dziennik Ustaw, when the treaty provisions precisely describe rights, freedoms and duties w i t h respect to natural and legal persons. In the decision of the Supreme Court of 15 June 1993 we read: A state of law is a state that follows the duties it has undertaken in concluded and properly ratified international agreements and conventions, which means that these duties can and should be applied directly in national law, and that these norms require for their application no additional transformation acts. This applies of course to those types of conventions or bilateral agreements in which at least in some sense the intention is expressed that the norms be valid in national law on the territory of the states joining the convention or concluding the international agreement or if the assumption of direct application may be drawn from the content of the agreement or convention or from other objective circumstances accompanying the conclusion of the agreement or convention. Under these circumstances it is obvious that the accession of a country to a convention the content of which concerns human rights can have no other goal but direct application i n national law and not that application be subject to the discretion, for example, of the national administrative organs. 35

The Supreme Court also pointed to Article 27 of the Vienna Convention on the Law of Treaties, 36 in which the norm is contained that a party to an international agreement cannot rely on a rule of international law as a basis to avoid carrying out the agreement. Several months earlier the Supreme Court had taken a similar position in a decision of 11 February 1993 taken by a panel of seven judges in the question of the binding nature of the European Convention on Human Rights, 37 in which it determined that "the convention binds all state organs without the requirement of transformation." 38

34 Dziennik Ustaw, No. 74, pos. 439, 440, 1990. See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U N T S 331. 35

W i t h commentary by Leszek Wiiniewski

36

1155 U N T S 339.

37

213 U N T S 221.

38

OSN, Nos. 7 - 8, 1993, 7 - 22.

in Panstwo i Prawo, No. 2, 1994, 107 - 110.

The International Covenants on Human Rights

479

It is interesting to note the conclusion of the Constitutional Tribunal of 30 October 199339 because it concerns the consequences of Article 33 para. 2 of the so-called 'small' constitution in relation to the competence of the Constitutional Tribunal to interpret inter alia laws that grant authorization to ratify international agreements. In this decision one should distinguished three points. 1) It was determined in the decision that a statute that expresses consent to the ratification of an international agreement is a legislative act in the sense of the statute on the Constitutional Tribunal and is subject to examination for consistency w i t h the constitution. 2) It was determined in the decision that the Constitutional Tribunal has competence to decide the unconstitutionality of laws that express consent to the ratification of an international agreement, also when this law expresses consent to the ratification of an international agreement that contains self-executing provisions not compatible w i t h the constitution.

3) It was determined that the Constitutional Tribunal cannot decide that the consenting law is unconstitutional alone on the basis that the law consents to ratification of international agreements that contain rules not compatible w i t h prior international duties of the Republic of Poland or that place a duty on the Polish State to make national law changes that are not compatible with the constitution or that would violate the coherence of the legal order or individual areas of the legal order.

It is difficult to regard the last point of the court's decision as accurate. The Constitutional Tribunal, when testing whether a law consenting to the ratification of an international agreement is constitutional, cannot abstain from an examination of the consequences for the coherence of the Polish legal order stemming from the court's acceptance as constitutional of consent in the form of a statute to the ratification of a treaty. The court should always declare such a law unconstitutional (especially w i t h respect to the constitutional principle of the State of law) if it consents to the ratification of international agreements that contain rules incompatible with Poland's prior international duties or that place on Poland the duty to carry out national law changes that would be incompatible with the constitution. In this case the object of the constitutional investigation is not the international agreement but the law consenting to the ratification of the international agreement, its content and the effects it creates for the Polish legal order. If the Constitutional Tribunal investigates the law on this basis it must make itself familiar with the content of the international agreement in order to determine whether the execution of the agreement to which the law consents causes contradictions in the Polish legal order and whether it violates prior concluded international agreements. Otherwise the Consti-

39

OTK, vol. H, 1994, 236.

480

Renata Hliwa and Leszek Wisniewski

tutional Tribunal's competence to determine the constitutionality of such laws would indeed be useless. From the decisions cited (the number given here does not represent the full number of decisions in this area), the conclusion can be drawn that in light of the position of international agreements in the constitution of the Republic of Poland, the agreements concerning human rights should be applied by the courts if the following conditions are satisfied: 1) The international agreement is ratified with the previous consent of the Sejm in the form of a statute published in the legal gazette. That international agreements thus ratified should be treated on the same level with a national statute cannot be doubted, especially since this viewpoint represents a continuation of the constitutional law approach and practice of pre-war Poland. 2) The norms of the international agreement formulate rights, freedoms and duties in a manner sufficiently precise for direct application. These conditions are fulfilled in such human rights agreements as the Convention on the Rights of the Child 4 0 or the European Convention on Human Rights 41 with its additional ratified protocols. The international human rights covenants were ratified in 1977 without a prior consent from the Sejm in the form of a statute. However, as such consent was indeed not required by the constitution at that time, the ratification of the covenants in accordance with the then-binding procedure, its publication in the legal gazette and the precise formulation of rights and duties put the covenants into the category of treaties that can be "directly applied in the national legal order without the requirement of further transformation" — as was rightly stated in the above-cited decision of the Supreme Court of 15 June 1993.

40

G A res. 44/25 of 20 November 1989.

41

28 I L M 1448.

Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1995 Von Frank Bodendiek und Karsten Nowrot

I. Allgemeines Der Europäische Gerichtshof für Menschenrechte (EGMR) fällte im Berichtszeitraum 1 56 Urteile — sechs mehr als im Vorjahr. Dabei entschied er drei Fälle — aus den Bereichen Meinungsfreiheit von Beamten,Terrorismus sowie betreffend das Verhältnis zwischen Zypern und der Türkei — gem. Art. 51 der Verfahrensordnung des Gerichtshofs (VerfO EGMR) im Plenum. 2 Insgesamt stellte der Gerichtshof in dreißig Fällen eine Verletzung der Europäischen Konvention für Menschenrechte und Grundfreiheiten (EMRK) fest. Die Beschwerden richteten sich gegen vierzehn der Konventionsstaaten: dreizehn gegen Frankreich, zehn gegen Osterreich, acht gegen das Vereinigte Königreich, jeweils fünf gegen Italien und die Niederlande, vier gegen Griechenland, drei gegen die Türkei, zwei gegen Spanien sowie jeweils eine gegen Belgien, Deutschland, Finnland, Luxemburg, Portugal und die Schweiz. Dabei ist zu bemerken, daß gegen Luxemburg und die Türkei 1995 zum ersten Mal Urteile durch den EGMR ergangen sind. Hinzuweisen ist weiterhin auf die Neuerungen des 9. Zusatzprotokolls der EMRK, die es dem einzelnen Bürger erlauben, den Europäischen Gerichtshof direkt anzurufen. Nachdem das Zusatzprotokoll (ZP) mit Wirkung vom 1. Oktober 1994 in Kraft getreten ist und 21 Staaten Vertragspartei geworden sind, haben die zur Prüfung der vorgebrachten Individualbeschwerden eingesetzten dreiköpfigen Richterausschüsse im Berichtszeitraum 31 Entscheidungen gefällt, die 24 italienische, vier 1

Der folgende Bericht schließt an den Vorjahresbericht von Denrte Pardo Lopez, Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte i m Jahre 1994, in: German Yearbook of International Law (GYIL), vol. 38, 1995, 347 - 375, an. 2

Urteile Loizidou gegen Türkei vom 23. März 1995, Judgments, vol. 310; vgl. zu diesem Fall Hans-Konrad Ress, Die Zulässigkeit territorialer Beschränkungen bei der Anerkennung der Zuständigkeit des EGMR, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), vol. 56, 1996, 427 - 438; McCann u. a. gegen Vereinigtes Königreich vom 27. September 1995, Judgments, vol. 324; Vogt gegen Deutschland vom 26. September 1995, Judgments, vol. 323 (deutsche Ubersetzimg in: Europäische Grundrechte-Zeitschrift (EuGRZ) 1995, 590-603).

31 G Y I L 39

482

Frank Bodendiek und Karsten Nowrot

österreichische, zwei finnische und eine irische Beschwerde betrafen. 3 Das 11. Zusatzprotokoll, welches die Verfahren zur Durchsetzung der materiellen Garantien der EMRK grundlegend reformiert, 4 hatten bis zum Ende des Berichtszeitraums 17 Vertragsstaaten der EMRK ratifiziert. 5 Abschließend kann noch bemerkt werden, daß sich die Dauer der Verfahren vor den Organen der EMRK kaum verändert hat: Sie beträgt vor der Kommission durchschnittlich drei Jahre und zehn Monate und vor dem Gerichtshof ein Jahr und zwei Monate. 6 I I . Zulässigkeit Der Gerichtshof hatte sich auch 1995 verschiedentlich mit Fragen der Zulässigkeit von Beschwerden zu befassen. Er bestätigte in diesem Zusammenhang seine bisherige Rechtsprechung, daß prozeßhindernde Einreden der Regierung eines Vertragsstaates ausgeschlossen sind, wenn sie nicht bereits vor der Kommission, sondern erstmalig vor dem Gerichtshof vorgebracht werden. 7 1. Zuständigkeit ratione loci I m Fall Loizidou y der das Eigentum einer griechischen Zypriotin im türkisch regierten Nordteil Zyperns betrifft, fällte der Gerichtshof ein Zwischenurteil über die Zulässigkeit der Klage. Der EGMR setzte sich insbesondere mit den prozeßhindernden Einreden der beklagten Türkei auseinander, die die Anwendbarkeit der EMRKBestimmungen ratione loci bestritt. Zum einen stellte der EGMR klar, daß bei der Frage nach dem räumlichen Geltungsbereich der EMRK nicht das Konzept des Staatsgebiets entscheide. Vielmehr seien die Vertragsstaaten bei der Ausübung ihrer Herrschaftsgewalt i.S.d. Art. 1 EMRK 8 auch an die Konvention gebunden, wenn sich die Herrschaftsausübung erst 3 Vgl. dazu Frederic Sudre u. a., Chronique de la jurisprudence de la Cour europeenne des droits de Phomme en 1995, in: Revue Universelle des Droits de l'Homme (RUDH), 1996, 1, 5. 4 Vgl. dazu Britta Buchenau/Anja Stein, Die Tätigkeit des Ministerkomittees und der Parlamentarischen Versammlung des Europarates in den Jahren 1993 und 1994, in: GYIL, vol. 38, 1995, 389, 407 f. 5

Stand: 22.12.1995, siehe EuGRZ 1995, 692.

6

Sudre u. a. (Anm. 3), 5.

7

Urteile Mansur gegen Türkei vom 8. Juni 1995, Judgments, vol. 319-B, §§ 46, 48; Loizidou (Anm. 2), § 44. 8

I m folgenden handelt es sich bei nicht näher bezeichneten Artikeln u m solche der EMRK.

Die Rechtsprechung des Europäischen Gerichtshofs im Jahre 1995 außerhalb des eigenen Territoriums auswirke oder Hoheitsgewalt dort überhaupt erst ausgeübt werde. 9 Es seien deshalb auch dann die in der EMRK garantierten Menschenrechte zu beachten, wenn aufgrund einer Militäraktion, wie die der Türkei in Nordzypern, ein Vertragsstaat die effektive Kontrolle über ein Gebiet außerhalb seines eigenen Territoriums ausübe.10 Zum anderen beschäftigte sich der EGMR mit der türkischen Einwendung, daß man sich wenigstens auf einen Vorbehalt in den türkischen Unterwerfungserklärungen gem. Art. 25, 46 EMRK berufen könne, in dem die Anwendbarkeit der EMRK auf Hoheitsakte beschränkt wird, die auf dem türkischen Staatsgebiet ausgeführt werden. 11 Der Gerichtshof betonte in diesem Zusammenhang zunächst noch einmal eindrücklich den besonderen Charakter der Konvention als Vertrag zur gemeinsamen Verwirklichung von Menschenrechten und Grundfreiheiten. Die Art. 25 und 46 müßten als Kernstücke dieses Durchsetzungsinstruments wie die materiellen Bestimmungen in dynamischer Interpretation ausgelegt werden, wobei ein Auslegungsziel sei, den Menschenrechtsschutz effektiv zu gestalten.12 Vor diesem Hintergrund kam das Gericht zu dem Ergebnis, daß Beschränkungen der Unterwerfungserklärung ratione loci nicht zulässig sind. Vielmehr kann ein Staat nur die ausdrücklich in den Bestimmungen zugelassenen Vorbehalte bezüglich der Reziprozität und ratione temporis erklären. 13 Eine Einschränkung ratione loci ermögliche nämlich die Schaffung separater Regime für bestimmte Gebiete und gefährde damit die Effektivität der EMRK als „Verfassungsinstrument des europäischen ordre public" ernstlich und schwer. 14 Auch beim Beitritt zur EMRK seien gem. Art. 64 nur in ganz begrenztem Umfang nationale Alleingänge zugelassen, was anzeige, daß als ein Ziel der EMRK gerade die Einheitlichkeit des Menschenrechtsschutzes gewahrt werden solle. 15 Weiter verwies der EGMR auf die insoweit ansonsten einheitliche Praxis der Vertragsstaaten, keine Vorbehalte ratione loci zuzulassen, und deren ablehnende Reaktion auf die Vorbehalte der Türkei. 16 Schließlich sei der Hinweis auf den ähnlich lautenden Art. 36 des Statuts des Internationalen Gerichtshofs (IGH), der für Unterwerfungserklärungen unter die Gerichtsbarkeit des I G H anerkannter9

Vgl. Urteile Soering gegen Vereinigtes Königreich vom 7. Juli 1989, Judgments, vol. 161, §91; Drozd und Janousek gegen Frankreich und Spanien vom 26. Juni 1992, Judgments, vol. 240, § 91. 10

Urteil Loizidou (Anm. 2), § 62.

11

Urteil Loizidou (Anm. 2), §§ 15 ff.

12

Urteil Loizidou (Anm. 2), §§ 70 - 72; vgl. auch bereits Urteile Ar tic o gegen Italien vom 13. Mai 1980, Judgments, vol. 37, § 33 und Soering (Anm. 9), § 87.

31*

13

Urteil Loizidou (Anm. 2), § 89.

14

Urteil Loizidou (Anm. 2), § 75.

15

Urteil Loizidou (Anm. 2), §§ 76, 77.

16

Urteil Loizidou (Anm. 2), §§ 79, 82.

4

484

Frank Bodendiek und Karsten Nowrot

maßen Vorbehalte ratione loci zulasse, kein schlagendes Argument, da der EGMR als Instrument des Menschenrechtsschutzes keinesfalls mit dem I G H als umfassendem völkerrechtlichen Gerichtshof zu vergleichen sei.17 Abschließend mußte das Gericht sich in diesem Zusammenhang mit der Frage auseinandersetzen, ob die Nichtigkeit der angesprochenen Vorbehalte — wie von der Türkei hilfsweise vorgebracht — zur Gesamtnichtigkeit der Unterwerfungserklärung führt. Der Gerichtshof verneinte dies und bezog sich dabei auf seine ständige Rechtsprechung bezüglich der Versuche von Vertragsstaaten, durch Interpretationserklärungen oder andere Beschränkungen die Gerichtsgewalt des EGMR zu verkürzen. 18 Die Türkei habe wissen müssen, daß die Organe der EMRK und die anderen Vertragsparteien solche Einschränkungen der Unterwerfungserklärungen nicht akzeptieren würden. Aus ihrer dennoch erfolgten Erklärung könne man auf ihren grundsätzlichen Willen zur Unterwerfung schließen. Der nichtige Teil der Erklärung könne deshalb abgetrennt werden und lasse die grundsätzliche Unterwerfung intakt. 19 2. Zuständigkeit ratione temporis Das Gericht sah sich darüber hinaus auch mit verschiedenen Einreden der Unzuständigkeit ratione temporis konfrontiert: I m Fall Agrotexim u. a. vermied es das Gericht, zur im Räume stehenden Frage der Unzuständigkeit ratione temporis Stellung zu nehmen, und begründete die Zurückweisung der Klage vielmehr mit der fehlenden Opfereigenschaft der Beschwerdeführer (Bf.). Der Gerichtshof sah diesen Einwand als weitreichender an als die Einrede der zeitlichen Unzuständigkeit. 20 Er betonte außerdem, daß die Vertragsstaaten die Gerichtsbarkeit des EGMR durch ihre Unterwerfungserklärungen auf Sachverhalte beschränken könnten, die sich nach der Hinterlegung der Erklärung ereignet haben. Wenn daraus eine nicht parallel laufende zeitliche Zuständigkeit von Europäischer Kommission für Menschenrechte (EKMR) und EGMR resultiere, müsse das als Konsequenz der (noch bestehenden) Trennung der beiden Schutzsysteme hingenommen werden. 21

17

Urteil Loizidou (Anm. 2), § 84.

18

Urteil Loizidou (Anm. 2), §§ 93 - 95; vgl. dazu auch Urteil Belilos gegen Schweiz vom 29. A p r i l 1988, Judgments, vol. 132, § 60. 19

Urteil Loizidou (Anm. 2), §§ 94 - 96.

20

Urteil Agrotexim u. a. gegen Griechenland vom 24. Oktober 1995, Judgments, vol. 330-A,

§58. 21

Urteil Loizidou (Anm. 2), § 102.

Die Rechtsprechung des Europäischen Gerichtshofs im fahre 1995 I m Fall Kefalas u. a. entschied der EGMR, daß seine Jurisdiktionsgewalt ratione temporis nicht gegeben ist, wenn der Bf. bereits unmittelbar durch ein Gesetz in seinen Rechten betroffen war, welches vor der Abgabe der Unterwerfungserklärung einer Vertragspartei gem. Art. 25 Abs. 1 erlassen wurde. Das nachfolgende Urteil eines nationalen Gerichts, das zwar zeitlich nach der Unterwerfungserklärung ergehe, aber lediglich die Rechtslage wiedergebe, wie sie durch das vorher erlassene Gesetz entstanden sei, führe nicht zu einer neuen Betroffenheit des Bf., so daß auf diese Maßnahme auch nicht die Jurisdiktionsgewalt ratione temporis gestützt werden könne. 22 Auch wenn der EGMR ratione temporis über einen Hoheitsakt als solchen nicht entscheiden darf, kann er ihn doch bei der rechtlichen Würdigung eines späteren Sachverhalts, der seiner Gerichtsbarkeit unterliegt, als Beurteilungshilfe verwenden. So kann der Ablauf eines Verfahrens in der Vorinstanz herangezogen werden, um zu bewerten, ob ein Gerichtsverfahren in einer nachfolgenden Instanz fair i.S.d. Art. 6 gewesen ist. 23 Darüber hinaus wies der EGMR im Urteil Yagci und Sargin darauf hin, daß auch bei der Entscheidung über behauptete Verletzungen der Art. 5 Abs. 3 und Art. 6 Abs. 1 der Stand des Verfahrens vor dem Zeitpunkt der Abgabe der Unterwerfungserklärung in die Erörterungen, ob die Angemessenheit der Verfahrensdauer gewahrt ist, einbezogen werden müsse.24 Die Anwendbarkeit ratione temporis des Grundsatzes ne bis in idem gem. Art. 4 des 7. ZP ist auch dann gegeben, wenn sich das strafbare Verhalten bereits vor Inkrafttreten des 7. Zusatzprotokolls der EMRK ereignet hat, da das wesentliche Element dieser Vorschrift die Gefahr wiederholter Verfolgung und Bestrafung ist. 25 3. Zuständigkeit ratione materiae Bezüglich seiner Jurisdiktionsgewalt ratione materiae befaßte sich der Gerichtshof 1995 wiederholt mit der Wirksamkeit von Vorbehalten gem. Art. 64. Er führte aus, daß Interpretationserklärungen bei der Ratifikation der EMRK als Vorbehalte i.S.v. Art. 64 zu werten seien und daher dessen Anforderungen entsprechen müßten. Solche Vorbehalte seien deshalb ungültig, wenn sie nicht, wie es Art. 64 Abs. 2 vorsieht, mit einer kurzen Inhaltsangabe des betreffenden Gesetzes ver22

Urteil Kefalas u. a. gegen Griechenland vom 8. Juni 1995, Judgments, vol. 318-A, § 45.

23

Urteil Kerojärvi

gegen Finnland vom 19. Juli 1995, Judgments, vol. 322, § 41.

24

Urteil Yagci und Sargin gegen Türkei vom 8. Juni 1995, Judgments, vol. 319-A, § 40; siehe auch mutatis mutandis die Urteile Neumeister gegen Österreich vom 27. Juni 1968, Judgments, vol. 8, § 7 und Baggetta gegen Italien vom 25. Juni 1987, Judgments, vol. 119, § 20. 25

Urteil Gradingergegen Österreich vom 23. Oktober 1995, Judgments, vol. 328-C, § 53.

4

486

Frank Bodendiek und Karsten Nowrot

bunden seien.26 Darüber hinaus stellte der EGMR im Urteil Fischer klar, daß nur solche Vorbehalte gem. Art. 64 Abs. 1 wirksam seien, die sich auf nationale Gesetze bezögen, welche bereits im Zeitpunkt der Abgabeerklärung in Kraft seien. Bezüglich nachträglich erlassener Gesetzesbestimmungen finde der Vorbehalt somit keine Anwendung. 27 4. Zuständigkeit ratione personae a) Opfereigenschaft gem. Art. 25 Der EGMR wiederholte, daß die Opfereigenschaft i.S.d. Art. 25 Abs. 1 vorliege, wenn der Bf. durch die betreffende Maßnahme oder das Unterlassen unmittelbar betroffen sei. Dieses sei selbst unter den Umständen denkbar, daß gar kein Schaden vorliege, da letzteres nur für die Zubilligung einer Entschädigung gem. Art. 50 ausschlaggebend sei.28 Wie der Gerichtshof im Urteil Prager und Oberschlick urteilte, ist ein Bf., der persönlich wegen der Veröffentlichung eines Artikels in seiner Zeitschrift verurteilt worden ist, als aktivlegitimiert i.S.d. Art. 25 Abs. 1 anzusehen. Die Opfereigenschaft ist auch nicht deshalb zu verneinen, weil der Bf. im Zusammenhang mit seiner eigenen Verurteilung bei einem Mitverurteilten bezüglich der Kosten Rückgriff nehmen kann. 29 I m Fall Agrotexim u. a. entschied der EGMR, daß Aktionäre einer Aktiengesellschaft keine Aktivlegitimation i.S.d. Art. 25 für eine Individualbeschwerde besitzen, wenn sie eine Verletzung der Eigentumsrechte der Gesellschaft geltend machen, die sich auf den Wert ihrer Gesellschaftsanteile ausgewirkt hat. Eine solche indirekte Beschwer als hinreichend zuzulassen, führe zu einer nicht hinnehmbaren Verwässerung des Opferbegriffs des Art. 25. Die Rechte einer juristischen Person wie der Aktiengesellschaft könnten nur in Ausnahmefällen von den hinter ihr stehenden Personen durchgesetzt werden, nämlich wenn die juristische Person nicht mehr durch ihre Organe handeln, d. h. insbesondere die EMRK-Organe anrufen könne. Solange eine Anrufung durch die verfassungsmäßig berufenen Organe möglich sei, falle es regelmäßig diesen Organen zu, eine Verletzung der Konventionsrechte der juristischen 26 Urteile Schmautzer gegen Österreich vom 23. Oktober 1995, Judgments, vol. 328-A, § 31; Umlauft gegen Österreich vom 23. Oktober 1995, Judgments, vol. 328-B, § 34; Gradinger (Anm. 25), § 39; Pramstaller gegen Österreich vom 23. Oktober 1995, Judgments, vol. 329-A, § 36; Palaoro gegen Österreich vom 23. Oktober 1995, Judgments, vol. 329-B, § 38 und Pfarrmeier gegen Österreich vom 23. Oktober 1995, Judgments, vol. 329-C, § 35. 27

Urteil Fischergegen Österreich vom 26. April 1995, Judgments, vol. 312, § 41.

28

Urteil Prager und Oberschlick gegen Österreich vom 26. A p r i l 1995, Judgments, vol. 313, § 26; unter Bezugnahme auf das Urteil Groppera Radio AG u. a. gegen die Schweiz vom 28. März 1990, Judgments, vol. 173, § 47. 29

Urteil Prager und Oberschlick (Anm. 28), §§ 25, 27.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995 Person vor der Kommission und dem EGMR zu rügen. Dies gelte insbesondere auch während der Liquidation einer Aktiengesellschaft, da zu dieser Zeit die noch nicht endgültig aufgelöste Gesellschaft durch ihre Liquidatoren handeln könne. 30 Demgegenüber verliert ein Bf., der wegen der Länge der Dauer seiner Untersuchungshaft eine Verletzung seiner Rechte aus Art. 5 Abs. 3 rügt, nicht dadurch seine Opfereigenschaft, daß er nach der Haftentlassung gegen die damit verbundenen Auflagen verstößt und sich somit rechtswidrig verhält. Der Gerichtshof wies im Fall Van der Tang darauf hin, daß die Aktivlegitimation gem. Art. 25 Abs. 1 nicht dadurch entfällt, daß der Bf. selbst rechtswidrig gehandelt hat, wenn er die behaupteten Rechtsverletzungen auf Tatsachen stützt, die sich zeitlich vor seinem rechtswidrigen Verhalten ereignet haben.31 b) Parteifähigkeit gem. Art. 48 I m Fall Loizidou, einer Staatenbeschwerde, die gem. Art. 48 lit. b von der zypriotischen Regierung vor den Gerichtshof gebracht wurde, stellte der EGMR heraus, daß die völkerrechtliche Anerkennung der beschwerdeführenden Regierung durch den beklagten Staat keinesfalls Voraussetzung für die Verfahren vor den Organen der EMRK sei. Vielmehr sei auf die Anerkennung durch die internationale Gemeinschaft abzustellen, da ansonsten das Rechtsschutzsystem der EMRK in dieser Hinsicht effektiv neutralisiert werden könnte. 32 Wenn ein Vertragsstaat die ihm von Art. 48 eröffnete Möglichkeit nutzt, das von einem seiner Bürger vor der Kommission angestrengte Verfahren im Wege der Intervention vor den EGMR zu bringen, kann darin kein Verfahrensmißbrauch gesehen werden, wenn er auch aus Sorge um die Rechte des beschwerten Bürgers und anderer Bürger in vergleichbarer Situation handelt. 33 5. Erschöpfung des Rechtsweges gem. Art. 26 I n verschiedenen Fällen mußte der EGMR darüber entscheiden, ob — wie nach Art. 26 erforderlich — der innerstaatliche Rechtsweg erschöpft wurde: Das Erfordernis der Rechtswegerschöpfung solle, so der Gerichtshof, den Vertragsstaaten Gelegenheit geben, Konventionsverletzungen zu verhindern oder zu beseitigen. Deshalb müsse der Beschwerdeführer seine Beschwerde jedenfalls der Sache

30

Urteil Agrotexim u. a. (Anm. 20), §§ 62 - 72.

31

Urteil Van der Tang gegen Spanien vom 13. Juli 1995, Judgments, vol. 321, § 53.

32

Urteil Loizidou (Anm. 2), §§ 40, 41.

33

Urteil Loizidou (Anm. 2), § 45.

4

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nach vor den innerstaatlichen Gerichten geltend machen.34 Es schade nicht, wenn der Beschwerdeführer im nationalen Verfahren einen Sachverhalt unter dem Gesichtspunkt einer anderen als der tatsächlich verletzten Konventionsnorm rüge, eine Verletzung der tatsächlich einschlägigen Bestimmung nur hilfsweise behaupte oder deren Anwendbarkeit sogar verneine. Entscheidend sei, daß die Gerichte sich mit der Verletzung als solcher auseinandersetzen könnten. 35 Im Fall Yagci und Sargin betonte der EGMR erneut, daß das Erfordernis der Erschöpfung des innerstaatlichen Rechtsweges gem. Art. 26 nur dann bestehe, wenn die Rechtsmittel sowohl in der Praxis als auch in der Theorie hinreichend aussichtsreich seien.36 Dieses sei nicht gegeben, wenn ein oberster Gerichtshof eines Vertragsstaates eine einschlägige N o r m des nationalen Rechts bereits zweimal auf einen vergleichbaren Sachverhalt für nicht anwendbar erklärt habe.37 Genauso sei es zu beurteilen, wenn ein nationales Gericht mit der Stellung eines Verfassungsgerichts einen Antrag auf Ungültigerklärung eines Gesetzes ablehne, der mit der später vor die EMRK-Organe gebrachten Beschwerde identisch ist. Die Beschwerdeführer müßten dann keine weiteren internen Rechtsmittel erschöpfen, da mit Blick auf den Rang und die Autorität des Gerichts diese weiteren, theoretisch offenstehenden Rechtsmittel als von vornherein zum Scheitern verurteilt betrachtet werden könnten. 38 Außerdem kann ein Bf., der eine Verletzung seines Rechts auf Aburteilung binnen angemessener Frist nach Art. 5 Abs. 3 geltend macht, in diesem Zusammenhang nicht auf eine N o r m verwiesen werden, die lediglich Ersatzansprüche für eine Inhaftierung vorsieht. 39 Des weiteren führte der EGMR aus, daß dem Bf. nicht entgegengehalten werden könne, er habe sich nicht auf eine von der Verfassung des Vertragsstaates gewährte Rechtsgarantie berufen, wenn diese N o r m des Verfassungsrechts weitgehend Art. 5 EMRK nachgebildet worden sei und der Bf. sich im innerstaatlichen Verfahren auf dieses durch die EMRK gewährleistete Recht berufen habe.40

34

Vgl. schon die Urteile Hentrich gegen Frankreich vom 22. September 1994, Judgments, vol. 296-A, § 33 und Saidi gegen Frankreich vom 20. September 1993, Judgments, vol. 261-C, §38. 35 Urteil Gasus Dosier- und Fördertechnik Judgments, vol. 306-B, §§ 48, 49.

GmbH gegen Niederlande vom 9. Februar 1995,

36

Urteil Yagci und Sargin (Anm. 24), § 42; vgl. auch das Urteil Navarra gegen Frankreich vom 23. November 1993, Judgments, vol. 273-B, § 24. 37

Urteil Yagci und Sargin (Anm. 24), § 42.

38

Urteil Pressos Compania Naviera S.A. u. a. gegen Belgien vom 20. November 1995, Judgments, vol. 332, § 27. 39

Urteil Yagci und Sargin (Anm. 24), § 44.

40

Urteil Yagci und Sargin (Anm. 24), § 43.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995 Erneut beschäftigte sich der EGMR mit dem Problem der Rechtswegerschöpfung bei Maßnahmen der Legislative. Wenn in einem Rechtssystem — wie etwa dem italienischen — nur Gerichte im Wege einer Vorlage zur konkreten Normenkontrolle die Möglichkeit hätten, direkt vor dem Verfassungsgericht die Verfassungsmäßigkeit eines Gesetzes überprüfen zu lassen, sei das Erwirken eines solchen Vorlagebeschlusses kein Rechtsmittel, das der einzelne erschöpfen müsse.41 6. Klagefrist

gem. Art. 32 Abs. 1

Die Nichteinhaltung der von Art. 32 Abs. 1 statuierten Dreimonatsfrist für die Einreichung einer Klage beim Gerichtshof infolge eines den Postverkehr beeinträchtigenden Streiks stellt keinen besonderen Umstand dar, welcher eine Unterbrechung des Fristablaufs rechtfertigen würde. 42 7. Löschung im Register gem. Art. 49 VerfO EGMR In insgesamt fünf Fällen hatte der EGMR über die Löschung von anhängigen Verfahren gem. Art. 49 VerfO EGMR zu entscheiden: Im Fall Friedl schlossen der Beschwerdeführer, der das Fehlen einer effektiven innerstaatlichen Beschwerdemöglichkeit gem. Art. 13 gerügt hatte, und die österreichische Regierung einen freundschaftlichen Ausgleich. Es lag auch kein Grund des öffentlichen Interesses vor, der zur Fortsetzung des Verfahrens gezwungen hätte, da in der Zwischenzeit der Zugang zu einem unabhängigen Gericht als innerstaatliche Beschwerdemöglichkeit eröffnet worden war und somit auch abstrakt betrachtet der Beschwerdegrund weggefallen war. 43 Der Fall Marlhens wurde nach Art. 49 Abs. 2 VerfO EGMR aus dem Gerichtsregister gelöscht, nachdem die Bf. und die französische Regierung einen freundschaftlichen Ausgleich geschlossen hatten. Ein öffentliches Interesse an der Fortsetzung war nicht gegeben, da der Gerichtshof zu den Rechtsfragen des vorliegenden Falles — die Verletzung des Rechts auf angemessene Verfahrensdauer gem. Art. 6 Abs. 1 bei Schadensersatzprozessen wegen einer AIDS-Infektion im Zuge einer Bluttransfusion — bereits eine gefestigte Rechtsprechung entwickelt hat. 44

41 Urteil Spadea & Scalabrino gegen Italien vom 28. September 1995, Judgments, vol. 315-B, § 24; vgl. bereits Urteile Brozicek gegen Italien vom 19. Dezember 1989, vol. 167, § 34; Padovani gegen Italien vom 26. Februar 1993, Judgments, vol. 257-B, § 20. 42 Urteil Morganti gegen Frankreich vom 13. Juli 1995, Judgments, vol. 320-C, § 14. Vgl. dazu auch die kritischen Anmerkungen bei Sudre u. a. (Anm. 3), 8. 43

Urteil Friedigegen Österreich vom 31. Januar 1995, Judgments, vol. 305-B, § 17.

44

Urteil Marlhens gegen Frankreich vom 24. Mai 1995, Judgments, vol. 317-A, § 21; unter

4

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Im Fall Pressos Compania u. a. wurde einer von insgesamt 26 Beschwerdeführern aus dem Gerichtsregister gestrichen, weil er seine Beschwerde vor dem Gerichtshof nicht mehr weiter verfolgt hatte. Da über die gleichgelagerten Fälle der restlichen Beschwerdeführer ohnehin zu entscheiden war, ergab sich keinerlei öffentliches Interesse am Weiterverfolgen des Verfahrens auch bezüglich des zu streichenden Beschwerdeführers. 45 Der Fall Baegen, in dem eine Verletzung der Rechte des Beschuldigten i.S.d. Art. 6 Abs. 2 und Abs. 3 behauptet worden war, wurde gleichfalls aus dem Register gestrichen, weil der Beschwerdeführer sich nach wiederholten Aufforderungen nicht mehr zur Sache eingelassen hatte. Auch ein öffentliches Interesse bestand nicht, da sich der EGMR in ähnlichen Fällen bereits geäußert hat und in anderen, z.Zt. noch anhängigen Fällen noch Gelegenheit haben wird, zu dem betreffenden Problemkreis Stellung zu nehmen. 46 I m Fall Gea Catalan hingegen wies der Gerichtshof einen Antrag der spanischen Regierung zurück, die die Streichung gem. Art. 49 Abs. 2 VerfO EGMR beantragt hatte. Aus der Tatsache, daß weder ein Schriftsatz abgegeben wurde, noch der Beschwerdeführer zur mündlichen Verhandlung erschienen sei, könne keine implizite Rücknahme gefolgert werden, da der Beschwerdeführer immerhin seinen Willen bekundet habe, die Beschwerde vor den Gerichtshof zu bringen, und auch einen Entschädigungsantrag gestellt habe.47 8. Rechtsmißbrauchsklausely

Art 18

I m Fall Qtiinn, in dem gerügt wurde, daß ein Auslieferungsverfahren zu anderen Zwecken mißbraucht worden sei, ist der EGMR auf das Vorbringen des Bf., Art. 18 sei ein eigenständiges, einen speziellen Schutzbereich aufweisendes Recht, nicht eingegangen.48

Hinweis auf die Urteile X gegen Frankreich vom 31. März 1992, Judgments, vol. 234-C; Vallee gegen Frankreich vom 26. April 1994, Judgments, vol. 289-A und Karakaya gegen Frankreich vom 26. August 1994, Judgments, vol. 289-B. 45

Urteil Pressos Compania u. a. (Anm. 38), § 24.

46

Urteil Baegen gegen Niederlande vom 6. November 1995, Judgments, vol. 327-B, §§ 32, 33. Die Streichung erfolgte gem. § 51 Abs. 2 und 4 der Verfahrensordnung B, die für Fälle einschlägig ist, die aus Ländern stammen, die dem 9. ZP beigetreten sind. Vgl. dazu Sudre u. a. (Anm. 3), 8. 47 48

Urteil Gea Catalan gegen Spanien vom 10. Februar 1995, Judgments, vol. 309, § 24.

Urteil Qtiinn gegen Frankreich vom 22. März 1995, Judgments, vol. 311, §§ 57 - 59; vgl. dazu auch Sudre u. a. (Anm. 3), 8.

Die Rechtsprechung des Europäischen Gerichtshofs im fahre 1995 I I I . Verfahrensgarantien gem. Art. 6 Auch 1995 bildeten die aus Art. 6 erwachsenden Verfahrensgarantien einen Schwerpunkt der Rechtsprechungstätigkeit des EGMR. 1. Anwendbarkeit des Art. 6 Abs. 1 a) Streitigkeit über einen zivilrechtlichen Anspruch i.S.d. Art. 6 Abs. 1 Für den Gerichtshof ergab sich dabei die Gelegenheit, den Begriff der „Streitigkeit über einen zivilrechtlichen Anspruch" i.S.d. Art. 6 weiter zu präzisieren. Dabei wird dessen Anwendungsbereich tendenziell weit gefaßt. 49 Das Gericht erklärte, daß im Rahmen der Prüfung des Schutzbereichs des Art. 6 Abs. 1 zunächst untersucht werden müsse, ob überhaupt eine „Streitigkeit" im Sinne der Vorschrift bestehe. Es müsse eine wirkliche, ernsthafte Meinungsverschiedenheit über die Existenz oder den Umfang eines Rechts bestehen, und das Verfahren, das auf seine Vereinbarkeit mit der Konvention untersucht werden solle, müsse unmittelbar entscheidend für den betroffenen zivilrechtlichen Anspruch sein. 50 Bezüglich der Frage nach der Zuständigkeit eines Gerichts zur tatsächlichen Entscheidung einer Streitfrage übernahm der EGMR die vom Vertragsstaat vertretene Rechtsauffassung nicht unbesehen. Vielmehr überprüfte das Gericht eigenständig, ob nach dem richtigen Verständnis der nationalen Zuständigkeitsregeln das Gericht hätte über das in Frage stehende Recht entscheiden können. 51 Ein Verfahren vor dem luxemburgischen Conseil d'Etat über die Rechtmäßigkeit einer rückwirkenden Festsetzung von Milchquoten dient nicht lediglich der abstrakten Uberprüfung der Rechtmäßigkeit der staatlichen Maßnahme. Vielmehr handelt es sich um einen Rechtsstreit i.S.d. Art. 6 Abs. 1 über das Bestehen eines Anspruchs des Bf. 52 Als zivilrechtliche Ansprüche i.S.d. Art. 6 Abs. 1 sind — unabhängig von der Zuständigkeit der Verwaltungsgerichte — solche zu qualifizieren, die Vermögenswerten Charakter haben und sich auf die Beeinträchtigung von ebenfalls Vermögenswerten Gütern stützen.53 Wie der Gerichtshof im Urteil Procola betonte, sei bei der Feststel49

Siehe Sudre u. a. (Anm. 3), 11.

50

Urteile Masson und Van Zon gegen die Niederlande vom 28. September 1995, Judgments, vol. 327, § 44 undKerojärvi (Anm. 23), § 32; vgl. schon Urteil Zandergegen Schweden vom 25. November 1993, Judgments, vol. 279-B, § 22. 51

Urteil Kerojärvi

(Anm. 23), § 35.

52

Urteil Procola gegen Luxemburg vom 28. September 1995, Judgments, vol. 326, § 37.

53

Urteil Procola (Anm. 52), § 38; vgl. auch das Urteil Beaumartin gegen Frankreich vom 24.

4

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Frank Bodendiek und Karsten Nowrot

lung, ob es sich um zivilrechtliche Ansprüche handele, nicht auf den Ursprung des Streites oder auf die gegebenenfalls vorliegende innerstaatliche Zuständigkeit der Verwaltungsgerichte abzustellen, sondern auf das Verfahren als Ganzes.54 So sei auch ein vor dem luxemburgischen Conseil d'Etat geltend gemachter Anspruch auf Aufhebung eines zugeteilten Milchkontingents als zivilrechtlich i.S.d. Art. 6 Abs. 1 anzusehen, da dieser Prozeß für den Bf. den einzigen, wenn auch indirekten Weg darstelle, um anschließend vor den Zivilgerichten eine Rückerstattung der für Uberschußmengen gezahlten Strafabgaben zu erreichen. Damit sei ein ausreichend enger zivilrechtlicher Bezug gegeben.55 Das Recht eines Bürgers auf staatliche Entschädigung wegen im Kriegsdienst erlittener körperlicher Schäden ist ebenfalls ein zivilrechtlicher Anspruch, für den Art. 6 Abs. 1 anwendbar ist. Wie bei anderen Systemen der sozialen Sicherung gilt dies, obwohl die betroffene Rechtsmaterie gewisse öffentlich-rechtliche Züge trägt, etwa die Leistungen durch die öffentliche Verwaltung zugewiesen und die Mittel vollständig vom Staat aufgebracht werden. Entscheidend ist, daß die Regelung trotzdem überwiegend privatrechtliche Merkmale aufweist, z. B. auf die individuelle Betroffenheit des Bürgers abstellt und die behinderungsbedingte Minderung der Erwerbsfähigkeit ausgleicht.56 Soweit die EMRK, wie im Falle einer rechtmäßig verhängten Untersuchungshaft, dem später freigesprochenen Angeklagten keinen Anspruch auf Ersatz der Kosten gewählt, ist die Frage, ob ein Anspruch vorliegt, ausschließlich unter Heranziehung des innerstaatlichen Rechts zu beantworten. Bei dieser Beurteilung sind sowohl der Wortlaut der relevanten Bestimmung als auch ihre Auslegung durch die nationalen Gerichte zu berücksichtigen. 57 Soweit die nationalen Gerichte sich bei der Festlegung einer Entschädigung vom Vorliegen billiger Gründe (reasons of equity) leiten lassen sollen und ein Anspruch auf vollständige Entschädigung nur im Falle unrechtmäßiger Untersuchungshaft besteht, stellen die Forderungen des Bf. keine zivilrechtlichen Ansprüche i.S.d. Art. 6 Abs. 1 dar. 58 Hingegen fällt der Anspruch gegen den Staat auf Gewährung eines Patentes in den Schutzbereich des Art. 6 Abs. I . 5 9 Auch das Sorgerecht der Eltern ist ein zivilNovember 1994, Judgments, vol. 296-B, § 28. 54

Urteil Procola (Anm. 52), § 39.

55

Urteil Procola (Anm. 52), § 39; vgl. auch bereits das Urteil Ortenberg gegen Österreich vom 25. November 1994, Judgments, vol. 295-B, § 28. 56 Urteil Kerojärvi (Anm. 23), § 36; siehe auch Urteile Feldbrugge gegen Niederlande vom 29. Mai 1986, Judgments, vol. 99, §§ 26 - 40; Saleri gegen Italien vom 26.Februar 1993, Judgments, vol. 257-E, § 19. 57

Urteil Masson und Van Zon (Anm. 50), § 49.

58

Urteil Masson und Van Zon (Anm. 50), § 51 f.

59

Urteil British American Tobacco Company Ltd. gegen Niederlande vom 20. November

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995 rechtlicher Anspruch. Dem natürlichen Vater eines nichtehelichen Kindes aber muß dieses Recht nicht automatisch zukommen. Die nationalen Gesetze können vielmehr bestimmen, daß der nichteheliche Vater zivilrechtliche Ansprüche in Bezug auf sein Kind erst geltend machen kann, wenn er sich um die staatliche Anerkennung seiner Vaterschaft bemüht hat. Vorher fällt er dann nicht in den persönlichen Schutzbereich des Art. 6 Abs. I . 6 0 Uber den zivilrechtlichen Charakter eines Anspruchs war auch im Fall Acquaviva zu entscheiden: Wenn die Angehörigen eines Verbrechensopfers sich dem Strafverfahren gegen den mutmaßlichen Täter als Nebenkläger anschließen, verfolgen sie dabei letztlich zivilrechtliche Ansprüche i.S.d. Art. 6 Abs. 1. Schließlich, so der EGMR, sei ihnen durch den Anschluß an den Strafprozeß vorübergehend der Zugang zu einem Zivilgericht verwehrt. Die Wahl der Strafgerichtsbarkeit diene ihnen zur Erlangung eines Schuldspruchs, der Voraussetzung für etwaige Schadensersatzforderungen sei, während ihnen umgekehrt aufgrund der Einheit der Rechtsordnung durch einen Freispruch des Beschuldigten diese Ansprüche genommen würden. 61 Wie der Gerichtshof im Urteil Tolstoy Miloslavsky feststellte, ist darüber hinaus auch die gerichtliche Geltendmachung des Rechtes auf Schutz des guten Rufes als Durchsetzung eines zivilrechtlichen Anspruchs anzusehen.62 Schließlich hat der Gerichtshof im Urteil Diennet mit der Entscheidung, daß es sich bei Disziplinarverfahren, die das Recht auf Berufsausübung als freiberuflicher Arzt zum Gegenstand haben, um Streitigkeiten über zivilrechtliche Ansprüche gem. Art. 6 Abs. 1 handele, seine bisherige Rechtsprechung zu diesem Punkt bestätigt.63 b) Strafrechtliche Anklage I m Fall Air Canada war das Vorliegen einer strafrechtlichen Anklage i.S.d. Art. 6 zu beurteilen. Insbesondere war die Rechtsnatur der Beschlagnahme eines Gutes zu bestimmen, das ein anderer benutzt hatte, um ein Verbrechen zu begehen. Der EGMR lehnte sich bei seiner Entscheidung in diesem Punkt sehr stark an die Einordnung der Maßnahme durch die innerstaatlichen Gerichte an. Aus der Tatsache, daß keine ausdrücklichen Strafverfolgungsmaßnahmen gegen den Eigentümer einge1995, Judgments, vol. 331, § 67. 60 Urteil McMichael gegen Vereinigtes Königreich vom 24. Februar 1995, Judgments, vol. 30B, § 77. 61

Urteil Acquaviva gegen Frankreich §§ 47, 48.

vom 21. November 1995, Judgments, vol. 333-A,

62

Urteil Tolstoy Miloslavsky gegen Vereinigtes Königreich vom 13. Juli 1995, Judgments, vol. 316-B, § 58; vgl. auch das Urteil Helmers gegen Schweden vom 29. Oktober 1991, Judgments, vol. 212-A, § 27. 63

Urteil Diennet gegen Frankreich vom 26. September 1995, Judgments, vol. 325-A, § 27.

4

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leitet wurden und Strafgerichte nicht mit dem Fall befaßt waren, ergebe sich zwar nicht generell, aber dennoch im konkreten Fall, daß es sich bei der Auseinandersetzung um die Rechtmäßigkeit der Beschlagnahme nicht um ein Verfahren mit strafrechtlichem Charakter i.S.d. Art. 6 Abs. 1 handele. Vielmehr müsse, obwohl der Bf. eine beträchtliche Geldsumme zur Wiedererlangung der beschlagnahmten Sache habe bezahlen müssen, von einem sachbezogenen Verfahren gesprochen werden, in dem um einen zivilrechtlichen Anspruch i.S.d. Art. 6 Abs. 1 gestritten werde. 64 2. Grundsätze des fairen Verfahrens

gem. Art. 6 Abs. 1

a) Das Recht auf Zugang zu einem unabhängigen Gericht In verschiedenen Fällen rügten die Bf. eine Verletzung ihres aus Art. 6 resultierenden Rechts auf Zugang zu einem unabhängigen, unparteiischen Gericht. Der Gerichtshof stellte dabei klar, daß er nicht abstrakt überprüfe, ob ein bestimmter Rechtsweg eine hinreichende richterliche Kontrolle staatlicher Entscheidungen über zivilrechtliche Ansprüche biete, wenn dieser Rechtsweg tatsächlich gar nicht beschritten worden sei.65 Bezüglich der von Art. 6 Abs. 1 geforderten Unabhängigkeit des Gerichts entschied der EGMR im Fall Bryan , daß ein Planungsdirektor für städtische Raumplanung, dem die Entscheidungsbefugnis vom zuständigen Umweltminister übertragen und auch jederzeit wieder entzogen werden konnte, keine hinreichende Unabhängigkeit aufweist. 66 Das Erfordernis der Unparteilichkeit des Gerichts sah der EGMR im Fall Diennet als erfüllt an, obwohl bei einer Entscheidung der Abteilung für Disziplinarangelegenheiten der französischen Ärztekammer drei der sieben Mitglieder sowohl an der Berufungsentscheidung als auch an der Entscheidung nach Zurückweisung der Beschwerde an diese Abteilung durch den Conseil d'Etat mitgewirkt hatten. Obwohl eine im wesentlichen gleichlautende Entscheidung erging, bestand nach Ansicht des Gerichtshofes kein legitimer Verdacht der Parteilichkeit, da sich auch die zweite Entscheidung mangels neuer Aspekte auf dieselben Entscheidungsgründe habe stüt-

64 Urteil A ir Canada gegen Vereinigtes Königreich vom 5. Mai 1995, Judgments, vol. 316-A, SS 52 - 56; vgl. dazu auch die Abgrenzung des Gerichts in den Urteilen A GOSI gegen Vereinigtes Königreich vom 24. Oktober 1986, Judgments, vol. 108, §§ 65, 66; Deweer gegen Belgien vom 27. Februar 1980, Judgments, vol. 35. Kritisch zum Verzicht auf eine vertragsautonome Auslegung Sudre u. a. (Anm. 3), 12. 65 66

Urteil Air Canada (Anm. 64), § 62.

Urteil Bryan gegen Vereinigtes Königreich vom 22. November 1995, Judgments, vol. 335A , SS 32 - 38.

Die Rechtsprechung des Europäischen Gerichtshofs im fahre 1995 zen müssen.67 Demgegenüber hatte der EGMR im Fall Procola Zweifel an der strukturellen Unparteilichkeit eines Ausschusses des Conseil d'Etat in einem Verfahren betreffend die Höhe einer zugeteilten Milchquote, weil vier der fünf Mitglieder des Conseil d'Etat sowohl am vorangegangenen Begutachtungsverfahren als auch am richterlichen Verfahren teilgenommen hatten, und bejahte daher eine Verletzung von Art. 6 Abs. I. 6 8 Darüber hinaus zeigte der EGMR aber auch Zurückhaltung, wenn es darum ging, einer nationalen Institution zu bescheinigen, daß sie den Anforderungen der EMRK an Unabhängigkeit und Unparteilichkeit nicht genüge. I m Fall McMichael ließ das Gericht offen, ob ein schottischer Spruchkörper, der im Bereich der Personensorge für Kinder und Jugendliche erstinstanzliche Entscheidungen fällt, die genannten Voraussetzungen erfüllt. Der EGMR deutete an, daß ein solcher Spruchkörper auch im Hinblick auf das Kindeswohl vielleicht sogar besser zur Beurteilung des Falles geeignet sein könne als ein herkömmliches Gericht. Eine Verletzung des Art. 6 Abs. 1 sei in jedem Fall abzulehnen, da zumindest in der zweiten Instanz das Sorgerechtsverfahren vor einem Gericht stattfinde, das in seiner Unabhängigkeit und Zusammensetzung nicht zu beanstanden sei.69 In einer ähnlichen Äußerung im Fall B.A. T. Company Ltd. verwies der Gerichtshof darauf, daß es in einer so technischen Domäne wie der Patentzulassung gleichfalls erforderlich sein möge, ein anderes Entscheidungsorgan als die klassischen, in den normalen Justizapparat integrierten Gerichte mit einer Entscheidung zu betrauen. Ob eine mit Experten besetzte Widerspruchsstelle einer staatlichen Patentbehörde den Anforderungen des Art. 6 Abs. 1 genüge, könne aber offen bleiben, da die Möglichkeit bestehe, auf andere Beschwerdemöglichkeiten vor ordentlichen Gerichten zurückzugreifen. 70 Selbst wenn diese in einer bestimmten A r t von Fällen noch nicht tatsächlich tätig geworden seien, könne man von einem fehlenden Zugang zu einem Gericht i.S.d. Art. 6 Abs. 1 erst sprechen, wenn Streitigkeiten der jeweiligen Art vor die ordentlichen nationalen Gerichte gebracht worden seien und diese ihre sachliche Zuständigkeit verneint hätten. 71 I m Fall Tolstoy Miloslavsky hatte der Gerichtshof über die Frage zu entscheiden, ob der Bf. in seinem Recht aus Art. 6 Abs. 1 auf Zugang zu einem Gericht verletzt worden ist, weil wegen Aussichtslosigkeit die Zulässigkeit einer Berufung von der Zahlung einer hohen Kaution für die Prozeßkosten seines Prozeßgegners abhängig gemacht worden war. Nach Ansicht des Gerichtshofes kann ein Vertragsstaat das 67

Urteil Diennet (Anm. 63), § 38.

68

Urteil Procola (Anm. 52), § 45.

69

Urteil McMichael (Anm. 60), §§ 78, 80, 83.

70

Urteil B.A.T. Co. Ltd. (Anm. 59), § 77.

71

Urteil B.A.T. Co. Ltd. (Anm. 59), §§ 82 - 87. Das Gericht unterscheidet den Fall dabei vom Urteil Van de Hurk gegen Niederlande vom 19. April 1994, Judgments, vol. 288, § 54.

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Recht auf Zugang zu einem Gericht rechtlichen Beschränkungen unterwerfen. Diesbezüglich stehe dem Staat ein breiter Beurteilungsspielraum zu. Die Beschränkungen dürften aber nicht den Wesensgehalt des Rechts verletzen, müßten ein legitimes Ziel verfolgen und verhältnismäßig sein.72 Zwar gewährleiste Art. 6 einerseits kein Recht auf Rechtsmittel, andererseits müsse aber bei der innerstaatlichen Ausgestaltung der Rechtsmittel die Einhaltung der fundamentalen Verfahrensgarantien des Art. 6 gewährleistet sein.73 Die Festsetzung einer Kaution diene legitimen Zielen, da sie den Prozeßgegner vor der Nichtliquidierbarkeit seines Prozeßkostenerstattungsanspruchs schützen solle und im Interesse einer sinnvollen Rechtspflege möglich sei.74 Wenn der Bf. zusätzlich in der ersten Instanz ungehinderten Zugang zu einem Gericht gehabt habe und die Entscheidung über die Frage der Kaution auf einer umfassenden und gründlichen Erörterung der relevanten Faktoren beruht habe, sei keine Überschreitung des den innerstaatlichen Behörden eingeräumten Beurteilungsspielraumes gegeben.75 Entscheidungen von Verwaltungsbehörden, welche nicht selbst den Anforderungen entsprechen, welche Art. 6 Abs. 1 an ein Gericht stellt, müssen der nachfolgenden Kontrolle durch ein Gericht mit voller Jurisdiktionsgewalt unterliegen. 76 Der EGMR stellte fest, daß ein Verfassungsgerichtshof, welcher darauf beschränkt ist, die Entscheidung einer Verwaltungsbehörde auf ihre Verfassungsmäßigkeit hin zu überprüfen, nicht den Anforderungen an ein Gericht i.S.d. Art. 6 Abs. 1 entspreche. 77 Bezüglich des österreichischen Verwaltungsgerichtshofes (VwGH) führte der EGMR im Fall Fischer aus, daß nur jeweils in bezug auf die Umstände des Einzelfalles entschieden werden könne, ob der Umfang der Prüfungskompetenzen des V w G H den Anforderungen des Art. 6 Abs. 1 genüge.78 I m Fall Fischer bejahte der Gerichtshof dieses mit der Begründung, daß der V w G H sich nachweislich der ausführlichen Begründung im Urteilstext mit allen Beschwerdepunkten auseinanderge72

Urteil Tolstoy Miloslavsky (Anm. 62), § 59; vgl. auch das Urteil Fayed gegen Vereinigtes Königreich vom 21. September 1994, Judgments, vol. 294-B, § 65. 73

Urteil Tolstoy Miloslavsky (Anm. 62), § 59; unter Hinweis auf das Urteil Delcourt gegen Belgien vom 17. Januar 1970, Judgments, vol. 11, § 25. 74

Urteil Tolstoy Miloslavsky

(Anm. 62), § 61.

75

Urteil Tolstoy Miloslavsky (Anm. 62), §§ 66 f.; vgl. auch das Urteil Monnell und Morris gegen Vereinigtes Königreich vom 2. März 1987, Judgments, vol. 247-B, § 34. 76

Urteile Schmautzer (Anm. 26), § 34; Umlauft (Anm. 26), § 37; Gradinger (Anm. 25), § 42; Pramstaller (Anm. 26), § 39; Palaoro (Anm. 26), § 41; Pfarrmeier (Anm. 26), § 38 und Fischer (Anm. 27), § 28; unter Hinweis auf die Urteile Ortenberg (Anm. 55), § 31; und Albert und Le Compte gegen Belgien vom 10. Februar 1983, Judgments, vol. 58, § 29. 77

Urteil Fischer (Anm. 27), § 29.

78

Urteil Fischer (Anm. 27), § 33.

Die Rechtsprechung des Europäischen Gerichtshofs im fahre 1995 setzt habe. I m Hinblick auf das konkrete Vorbringen des Bf. — den Widerruf der Entziehung einer Genehmigung für eine Mülldeponie — und den dafür notwendigen Umfang der Prüfungskompetenz sei der V w G H als Gericht i.S.d. Art. 6 Abs. 1 anzusehen.79 Auch im Fall Bryan bejahte der EGMR die Frage, ob ein High Court, dessen Prüfungskompetenz nur die Beurteilung von Rechtsfragen umfaßt, den Anforderungen des Art. 6 Abs. 1 entspreche, mit der Begründung, daß sich das Gericht umfassend mit der Berufung des Bf. auseinandergesetzt habe.80 Demgegenüber sah der Gerichtshof in einer anderen Fallkonstellation die Prüfungskompetenz des österreichischen V w G H als nicht den Anforderungen des Art. 6 Abs. 1 entsprechend an, da der V w G H in einem Verfahren, welches die Uberprüfung eines Verwaltungsstrafverfahrens zum Gegenstand hatte, keine umfassende Prüfungskompetenz in bezug auf Fragen der Sachverhaltsermittlung und der rechtlichen Würdigung besaß.81 Bereits am Zugang zu einem Gericht i.S.d. Art. 6 Abs. 1 fehlt es, wenn einem Kläger das Rechtschutzbedürfnis in einem Schadensersatzprozeß abgesprochen wird, nur weil er vorher Entschädigungsleistungen aus einem öffentlichen Fonds in Anspruch genommen hat und sich aus dem Gesetz, mit dem der staatliche Hilfsfonds eingerichtet wurde, nicht für den Bürger erkennbar ergibt, daß Opfer, die diese Mittel in Anspruch nehmen, zugleich ihre zivilrechtlichen Deliktsansprüche verlieren. Eine Verletzung des Art. 6 Abs. 1 kann also nicht nur im gänzlichen Fehlen einer Rechtsschutzmöglichkeit liegen. I m Fall Bellet gab es für den Beschwerdeführer, einen Bluterkranken, der durch eine verseuchte Blutkonserve mit AIDS infiziert wurde, gleich mehrere Rechtschutzmöglichkeiten. Sie kann sich vielmehr auch ergeben aus der mangelnden Klarheit der Gesetzeslage und der fehlenden Absicherung gegenüber Mißverständnissen des Bürgers, der sich durch die Wahl eines Rechtsweges für ihn unvorhersehbar einen anderen Rechtsweg abschneidet.82 b) Das Recht auf Anhörung in billiger Weise In verschiedenen Fällen vor dem EGMR wurde die Frage akut, ob dem Beschwerdeführer in billiger Weise rechtliches Gehör gewährt worden ist.

79

Urteil Fischer (Anm. 27), § 34.

80

Urteil Bryan (Anm. 66), §§ 39 - 47.

81

Vgl. die Urteile Schmautzer (Anm. 26), § 36; Umlauft (Anm. 26), § 39; Gradinger (Anm. 25), § 44; Pramstaller (Anm. 26), § 41; Palaoro (Anm. 26), § 43 und Pfarrmeier (Anm. 26), § 40. 82

Urteil Bellet gegen Frankreich vom 4. Dezember 1995, Judgments, vol. 333-B, §§ 33 - 38; vgl. ausführlicher zu diesem Fall Sudre u. a. (Anm. 3), 14.

32 G Y I L 39

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So stellte der EGMR im Fall McMichael heraus, daß in einem fairen Verfahren aus Gründen der Waffengleichheit der Bürger die Gelegenheit haben müsse, Kenntnis von und Stellung zu Beweisen oder Einwendungen zu nehmen, die die andere Seite vorlege. Wenn etwa wichtige Dokumente, die die Erfolgschancen der Eltern in einem Sorgerechtsverfahren beeinflußten, ihnen weder in erster noch in zweiter Instanz zur Verfügung gestellt würden, seien diese Grundsätze verletzt. 83 Das Gericht in einer Berufungsinstanz muß von sich aus Schritte unternehmen, um dem Bürger Einsicht in entscheidungserhebliche Unterlagen zu gewähren, die diesem schon in der Vorinstanz nicht zugestellt wurden. Es spielt dabei keine Rolle, ob der Beschwerdeführer sich über das Fehlen der Akteneinsicht beschwert hat oder theoretisch diese Einsicht hätte verlangen können. 84 Im Urteil Diennet bezeichnete der Gerichtshof den Grundsatz der Öffentlichkeit des Verfahrens als ein wesentliches Prinzip des Art. 6 Abs. 1. Durch dieses Erfordernis werde die Rechtspflege der Überwachung durch die Allgemeinheit unterzogen und damit das Vertrauen in die Gerichte gestärkt. Zusätzlich diene es der Förderung einer fairen Gestaltung des Verfahrens. Bei dem Grundsatz der Öffentlichkeit des Verfahrens handelt es sich nach Ansicht des EGMR jedoch nicht um ein absolutes Prinzip. Vielmehr sei der Ausschluß der Öffentlichkeit unter bestimmten Voraussetzungen zulässig, so beispielsweise, wenn in einem Disziplinarverfahren gegen einen Arzt die Privatsphäre der betroffenen Patienten gefährdet sei.85 Ist dagegen, wie im Fall Fischer, das Verwaltungsgericht in einem gerichtlichen Verfahren die erste und einzige Instanz und ist diesem Gericht die Befugnis übertragen, nicht nur die Beurteilung der rechtlichen Fragen sondern auch die Feststellung des Sachverhaltes vorzunehmen, so steht dem Bf. das Recht auf eine mündliche Verhandlung als Bestandteil seines Rechts auf eine öffentliche Verhandlung zu. Dieses gilt insbesondere, wenn der Ausgang des gerichtlichen Verfahrens für die wirtschaftliche Existenz des Bf. von besonderer Bedeutung ist. 86 c) Das Recht auf Entscheidung in angemessener Frist I n gleich acht Fällen rügten die Beschwerdeführer eine Verletzung des von Art. 6 Abs. 1 garantierten Rechts auf eine Entscheidung in angemessener Frist. 87 Die Prü83

Urteil McMichael (Anm. 60), § 80.

84

Urteil Kerojärvi

85

Urteil Diennet (Anm. 63), §§ 33, 34.

(Anm. 23), § 42.

86 Urteil Fischer (Anm. 27), § 44; unter Hinweis auf das Urteil Fredin gegen Schweden vom 23. Februar 1994, Judgments, vol. 283-A, § 21. 87 Urteile Allenet de Ribemont gegen Frankreich vom 10. Februar 1995, Judgments, vol. 308, § 57 (Verletzung); Paccione gegen Italien vom 27. April 1995, Judgments, vol. 315-A, § 21 (Verletzung); Mansur (Anm. 7), § 70 (Verletzung); Yagci und Sargin (Anm. 24), § 70 (Verletzung);

Die Rechtsprechung des Europäischen Gerichtshofs im Jahre 1995 fung, ob diese Verbürgung eingehalten wurde, erfolgt nach den gefestigten Kriterien, die der EGMR in ständiger Rechtsprechung entwickelt hat 88 und die er konsequent auf die ihm vorliegenden Fälle anwendet. Zunächst muß der als Verfahrensdauer zu berücksichtigende Zeitraum ermittelt werden. Für den Fall, daß ein Verfahren bereits vor dem Zeitpunkt der Abgabe der Unterwerfungserklärung durch den Vertragsstaat, also vor Entstehung der Jurisdiktionsgewalt ratione temporis, anhängig war, bestimmte der EGMR in den Urteilen Yagci und Sargin sowie Mansur, daß auch dieser Zeitraum bei der Beurteilung berücksichtigt werden müsse.89 I m Fall Scollo entschied der Gerichtshof, daß auch außerhalb des gerichtlichen Erkenntnisverfahrens und des Vollstreckungsverfahrens i.e.S. das Recht des Bürgers auf eine Entscheidung in angemessener Frist einschlägig sein kann. Eine angemessene Verfahrensdauer, so der EGMR, sei z. B. auch in einem Verfahren, daß zur Streitbeilegung zwischen Mieter und Vermieter dient, nämlich einem Räumungsverfahren, einzuhalten. 90 Weiterhin ist dann die Angemessenheit der Verfahrensdauer nach der Komplexität des Falles, dem Verhalten des Antragstellers und dem Verhalten der nationalen Behörden zu beurteilen. 91 Diese Kriterien sind zwar stark einzelfallbezogen, doch lassen sich einige allgemeingültige Aspekte herausfiltern: Besonders über die Zulässigkeit einer Klage muß das angerufene Gericht unverzüglich entscheiden, so z. B. über die mangelnde sachliche Zuständigkeit.92 Wenn ein Gericht eine Klage wegen Unzulässigkeit abweist, kann es sich nicht zur Begründung einer langen Verfahrensdauer auf die Komplexität der materiellen Seite des Falles berufen. 93 Ebenfalls zuungunsten des Staates wirkt es sich aus, wenn eine staatliche Behörde in einem Prozeß die Herausgabe von Beweisstücken verweigert, die für den ordnungsgemäßen Fortgang des Prozesses erforderlich sind. 94

Scollo gegen Italien vom 28. September 1995, Judgments, vol. 315-C, § 45 (Verletzung); Acquaviva gegen Frankreich (Anm. 61), § 67 (keine Verletzung); Ciricosta & Viva gegen Italien vom 4. Dezember 1995, Judgments, vol. 337-A, § 32 (keine Verletzung); Terranova gegen Italien vom 4. Dezember 1995, Judgments, vol. 337-B, § 23 (Verletzung). 88 Vgl. Johannes Niewerth, Die Tätigkeit des Europarates i m Jahre 1991, in: GYIL, vol. 35, 1992, 507, 520 ff. 89 Urteile Yagci und Sargin (Anm. 24), § 58 und Mansur (Anm. 7), § 60. 90

Urteil Scollo (Anm. 87), § 44.

91

Vgl. u. a. Urteile Yagci und Sargin (Anm. 24), § 59; Mansur (Anm. 7), § 61; Allenet de Ribemont (Anm. 87), § 47; Terranova (Anm. 87), § 20. 92

3*

Urteil Allenet de Ribemont (Anm. 87), § 56.

93

Urteil Paccione (Anm. 87), § 20.

94

Urteil Allenet de Ribemont (Anm. 87), § 56.

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Hinsichtlich des Verhaltens der Justizorgane als einem Kriterium für die Angemessenheit der Verfahrensdauer führt der EGMR im Urteil Mansur aus, daß Art. 6 Abs. 1 jedem, gegen den strafrechtliche Ermittlungen durchgeführt werden, das Recht gewähre, in einem angemessenen Zeitraum eine endgültige Entscheidung bezüglich der Anklage zu erhalten. 95 Jeder Vertragsstaat habe die Pflicht, sein Gerichtssystem so zu gestalten, daß die nationalen Gerichte diesem Erfordernis gerecht würden. 96 Auch auf eine starke Arbeitsbelastung der zuständigen Behörde könne sich der Vertragsstaat nur in begrenztem Maße berufen. 97 Umgekehrt kann aber auch in rechtlich verhältnismäßig einfach gelagerten Fällen eine relativ lange Verfahrensdauer gerechtfertigt sein, wenn der Prozeß in einem politisch aufgeladenen Klima stattfindet, das auch auf die gerichtlichen Ermittlungen zurückwirkt. Eine geordnete Prozeßführung und die Rechte des Beschuldigten können es dabei erforderlich machen, z. B. besonders genaue Tatsachenfeststellungen zu treffen oder auch das Verfahren an einen neutralen, weniger gefährlichen Ort zu verlegen.98 In bezug auf das Verhalten des Bf. wiederholte der Gerichtshof im Fall Yagci und Sargin, daß nach Art. 6 von einer Person, die wegen einer Straftat angeklagt sei, keine aktive Kooperation mit den Justizbehörden verlangt werde. 99 Dem Bf. könne auch nicht vorgeworfen werden, daß er alle rechtlichen Verteidigungsmittel, die ihm das nationale Recht zur Verfügung stellt, ausschöpfe. 100 Wenn der Bürger hingegen gerade seine eigenen zivilrechtlichen Ansprüche verfolgt, obliegt ihm eine Förderungspflicht im gerichtlichen Verfahren: 101 Zwar ist auch in einem Zivilprozeß, der weitgehend von der Dispositionsmaxime regiert wird, der Richter nicht davon befreit, eine angemessene Verfahrensdauer einzuhalten. Dennoch ist bei der Beurteilung eines solchen Prozesses zu berücksichtigen, wie sich die Parteien verhalten haben, insbesondere ob sie ihrerseits auf eine schnellere Klärung des Falles hingewirkt haben. Es kann daher in einem Ausnahmefall sogar eine Verfahrensdauer von mehr als 15 Jahren nicht unangemessen i.S.d. Art. 6 Abs. 1 sein. 102 95

Urteil Mansur (Anm. 7), § 68; unter Hinweis auf das Urteil Adiletta u. a. gegen Italien vom 19. Februar 1991, Judgments, vol. 197-E, § 17. 96

U r t e i l Mansur (Anm. 7), § 68; siehe auch mutatis mutandis das Urteil Vocaturo gegen Italien vom 24. Mai 1991, Judgments, vol. 206-C, § 17. 97

Urteil Scollo (Anm. 87), § 44.

98

Urteil Acquaviva (Anm. 61), §§ 65 - 67.

99

Urteil Yagci und Sargin (Anm. 24), § 66; vgl. auch das Urteil Dobbertin gegen Frankreich vom 25. Februar 1993, Judgments, vol. 256-D, § 43. 100

Urteil Yagci und Sargin (Anm. 24), § 64.

101

Urteil Acquaviva (Anm. 61), § 61.

102

Urteil Ciricosta & Viva (Anm. 87), § 32.

Die Rechtsprechung des Europäischen Gerichtshofs im Jahre 1995

1 Die Verfahrensgarantien

für den Beschuldigten gem. Art. 6 Abs. 2 und 3

a) Unschuldsvermutung gem. Art. 6 Abs. 2 I m Fall Allenet de Ribemont nahm der EGMR zur Reichweite des Schutzes des A r t . 6 Abs. 2 Stellung. Demnach werde bereits durch die Festnahme und Verbringung in den Polizeigewahrsam eine Person zu einem „einer strafbaren Handlung Beschuldigten". Schon zu diesem Zeitpunkt müssen nicht nur das Gericht, sondern auch andere öffentliche Behörden die Unschuldsvermutung zugunsten des Beschuldigten respektieren. 103 Diese Respektierungspflicht verbiete es nicht, die Bürger über die laufenden Ermittlungen zu informieren, doch müßten die staatlichen Stellen dabei mit Zurückhaltung und Vorsicht vorgehen; sie dürften den öffentlichen Glauben an die Schuld des Beschuldigten nicht bestärken oder die Beurteilung der Tatsachen durch das zuständige Gericht vorwegnehmen. 104 b) Information eines Beschuldigten über die gegen ihn erhobenen Vorwürfe gem. Art. 6 Abs. 3 Wenn in der Anklageschrift aufgrund eines bloßen Schreib- bzw. Vervielfältigungsfehlers eine falsche Strafvorschrift genannt wird, ist das Konventionsrecht des Angeklagten aus Art. 6 Abs. 3 lit. a nicht verletzt, wenn der Angeklagte durch einen minimalen Rückgriff auf logische Schlüsse und z. B. einen Vergleich mit dem Untersuchungshaftbefehl zu dem richtigen Ergebnis kommen konnte, welche Tat ihm in Wirklichkeit zur Last gelegt wird. 1 0 5 I V . Das Recht auf Leben gem. Art. 2 Bei Art. 2 handelt es sich um eine der fundamentalen Normen der Konvention, welche einen der Grundwerte der dem Europarat angehörenden demokratischen Gesellschaften enthält und daher streng auszulegen ist. 106 Dabei ist der Anwendungsbereich dieser Norm, wie die in Abs. 2 aufgeführten Ausnahmen zeigen, nicht lediglich auf vorsätzliche Tötungen beschränkt, sondern umfaßt auch Fälle zulässiger Gewaltanwendung, die unbeabsichtigte Tötungen zur Folge haben können. 107 Die Gewaltanwendung muß allerdings zur Erreichung der in Abs. 2 angegebenen Zwecke

103

Urteil Allenet de Ribemont (Anm. 87), §§ 35 - 37.

104

Urteil Allenet de Ribemont (Anm. 87), §§ 40, 41.

105

Urteil Gea Catalan (Anm. 47), §§ 28, 29.

106

Urteil McCann u. a. (Anm. 2), § 147; vgl. auch das Urteil Soering (Anm. 9), § 88.

107

Urteil McCann u. a. (Anm. 2), § 148.

501

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unbedingt erforderlich sein. Es ist damit ein strengerer Prüfungsmaßstab als bei der Notwendigkeit in einer demokratischen Gesellschaft i.S.d. Art. 8 bis 11 anzulegen.108 U m dieser herausragenden Bedeutung von Art. 2 gerecht zu werden, hat der Gerichtshof bei seiner Beurteilung der Rechtmäßigkeit von Gewaltanwendung unter bewußter Inkaufnahme einer Tötung nicht nur das Verhalten der unmittelbar an der Gewaltanwendung beteiligten Personen zu überprüfen. Vielmehr sind auch die Begleitumstände einschließlich der Planung und Kontrolle der Gesamtoperation daraufhin zu untersuchen, ob sie in größtmöglichem Umfang die Notwendigkeit eines Rückgriffs auf letale Gewaltanwendung vermindert haben. 109 Bezüglich der Tötung von Personen durch die unmittelbar beteiligten Staatsorgane führte der Gerichtshof im Urteil McCann u. a. aus, daß diese Gewaltanwendung zur Erreichung der in Art. 2 Abs. 2 aufgeführten Zwecke dann gerechtfertigt sein könne, wenn sie auf einer ehrlichen Uberzeugung beruhe, die aus der ex ante-Vtvspektive mit guten Gründen vertretbar gewesen sei, selbst wenn diese sich später als falsch herausstelle. Jede andere Sichtweise würde den ihre Pflicht erfüllenden Staatsorganen eine unrealistische Verpflichtung auferlegen und möglicherweise das Leben anderer Personen gefährden. 110 Zur Beurteilung der Tötung dreier Terroristen auf Gibraltar, die verdächtigt wurden, eine Autobombe zünden zu wollen, stellte der Gerichtshof fest, daß die Organisation und Kontrolle der Gesamtoperation nicht den Anforderungen des Art. 2 entsprochen habe. Als ausschlaggebenden Faktor für seine Annahme, daß die Tötung zur Verteidigung von Menschen gem. Art. 2 Abs. 2 lit. a nicht absolut notwendig gewesen sei, führte der Gerichtshof die Tatsache an, daß die Terroristen bereits bei ihrer Einreise nach Gibraltar hätten festgenommen werden müssen, auch wenn zu diesem Zeitpunkt noch nicht genügend Beweise für eine Verurteilung vorgelegen hätten. 111 Des weiteren stelle die Tatsache, daß die Behörden die Möglichkeit der Fehlerhaftigkeit ihrer nachrichtendienstlichen Erkenntnisse über das geplante Attentat nicht hinreichend in Betracht gezogen hätten, ein für die Beurteilung der Rechtmäßigkeit relevantes Fehl verhalten dar. 112 Auch die ohne sorgfältige Uberprüfung vorgenommene Weitergabe der Informationen an die Soldaten, deren Waffengebrauch aufgrund ihrer Ausbildung zur automatischen Tötung führen mußte, sah der Gerichtshof als einen relevanten Faktor an, der die Durchführung der Gesamtopera-

108

Urteil McCann u. a. (Anm. 2), § 149.

109

Urteil McCann u. a. (Anm. 2), §§ 150, 194.

110

Urteil McCann u. a. (Anm. 2), § 200.

111

Urteil McCann u. a. (Anm. 2), §§ 205, 213.

112

Urteil McCann u. a. (Anm. 2), §§ 210, 213.

Die Rechtsprechung des Europäischen Gerichtshofs im Jahre 1995

503

tion als im Widerspruch zu den Anforderungen des Art. 2 stehend erscheinen las-

V . Das Verbot der unmenschlichen und erniedrigenden Behandlung gem. Art. 3 Im Fall Ribitsch wies der Gerichtshof darauf hin, daß Art. 3 ein absolutes Verbot von Folter und unmenschlicher oder erniedrigender Behandlung statuiere, dessen Einhaltung unabhängig vom Verhalten des Opfers zu erfolgen habe. Daher komme im Zusammenhang mit der Prüfung einer möglichen Verletzung von Art. 3 dem Grundsatz besondere Bedeutung zu, daß der EGMR hinsichtlich der Sachverhaltsermittlung und der Beweiswürdigung nicht an die Ergebnisse der EKMR oder der nationalen Gerichte gebunden sei. Eine genaue eigene Untersuchung habe insbesondere dann zu erfolgen, wenn voneinander abweichende Feststellungen der Kommission einerseits und den nationalen Gerichten andererseits sowie zwischen den verschiedenen nationalen Gerichten vorlägen. 114 Hinsichtlich des von Art. 3 gewährten Schutzes führte der Gerichtshof aus, daß jeglicher Einsatz körperlicher Gewalt bei angehaltenen Personen, der nicht durch deren Verhalten gerechtfertigt sei, eine Beeinträchtigung darstelle. Insbesondere wies er erneut darauf hin, daß die Notwendigkeit einer Untersuchung und Erschwerungen im Zusammenhang mit dem Kampf gegen die Kriminalität nicht als Rechtfertigungsgründe für eine Verletzung der körperlichen Integrität des Einzelnen anzusehen seien.115 V I . Das Recht auf Freiheit und Sicherheit gem. Art. 5 1. Rechtmäßigkeit der Haft gem. Art. 5 Abs. 1 Der Katalog des Art. 5 Abs. 1, der die Möglichkeiten aufliste, rechtmäßig die Freiheiten des Bürgers zu beschränken, sei eng auszulegen — so betonte der EGMR im Fall Quinn. So seien nach einer richterlichen Entscheidung, die die Untersuchungshaft eines Beschuldigten mit sofortiger Wirkung aufhebe, Verzögerungen, die über das verwaltungstechnisch Notwendige hinausgehen, nicht mehr von Art. 5 Abs. 1 lit. c gedeckt.116 Eine Auslieferungshaft gem. Art. 5 Abs. 1 lit. f sei aber selbst

113

Urteil McCann u. a. (Anm. 2), §§ 211, 213.

114

Urteil Ribitsch gegen Österreich vom 4. Dezember 1995, Judgments, vol. 336, § 32.

115

Urteil Ribitsch (Anm. 114), § 38; unter Hinweis auf das Urteil Tomasi gegen Frankreich vom 27. August 1992, Judgments, vol. 241-A, § 115. 116

Urteil Quinn (Anm. 48), § 42.

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dann rechtmäßig und nicht per se rechtsmißbräuchlich, wenn während des Auslieferungsverfahrens der inhaftierende Staat noch weiter innerstaatliche Ermittlungen gegen den Inhaftierten durchführe. Allerdings müsse das Auslieferungsverfahren von den Behörden mit der gebotenen Sorgfalt geführt werden. Verzögerten die Behörden das Verfahren über Gebühr, werde die Freiheitsentziehung gem. Art. 5 Abs. 1 lit. f durch ihre unangemessene Länge rechtswidrig. 117 2. Länge der Untersuchungshaft gem. Art. 5 Abs. 3 Bezüglich der Feststellung des Zeitraumes, der für die Beurteilung der Angemessenheit der Länge der Untersuchungshaft zu berücksichtigen ist, führte der Gerichtshof im Fall Yagci und Sargin sowie Mansur aus, daß er auf die Beurteilung des Zeitraumes beschränkt sei, der seiner Jurisdiktionsgewalt ratione temporis unterfalle. 118 Allerdings bezog der EGMR in seine Beurteilung hinsichtlich der Angemessenheit i.S.d. Art. 5 Abs. 3 gegebenenfalls auch die Tatsache mit ein, daß der Bf. bereits vor Abgabe der Unterwerfungserklärung durch den Vertragsstaat in Haft gewesen sei. 119 Nach A r t . 5 Abs. 3 ist aber nur die Länge der Untersuchungshaft i.S.d. Art. 5 Abs. 1 lit. c zu beurteilen. Demgegenüber findet die Bestimmung keine Anwendung auf die Auslieferungshaft i.S.d. Art. 5 Abs. 1 lit. f, auch wenn die beiden Haftarten unmittelbar aufeinander folgen. 120 Die Angemessenheit der Untersuchungshaftdauer ist danach zu beurteilen, ob der nationalen Behörde während ihrer Ermittlungen Nachlässigkeiten unterlaufen sind. 121 In erster Linie haben die nationalen Justizorgane sicherzustellen, daß die Untersuchungshaft einen angemessenen Zeitraum nicht überschreitet. Sie müssen in ihrer Entscheidung alle Tatsachen gegeneinander abwägen, die, unter Berücksichtigung der Unschuldsvermutung, aus einem überwiegenden öffentlichen Interesse ein Abweichen von der Respektierung der persönlichen Freiheit rechtfertigen. 122 Aufgrund dieser Begründung und des als wahr erwiesenen Vorbringens des Bf. entscheidet dann der EGMR, ob eine Verletzung des Art. 5 Abs. 3 gegeben ist. Ein begründeter Tatverdacht, wenngleich conditio sine qua non für die Inhaftierung, reicht nach einem gewissen Zeitraum allein nicht mehr als Begründung für eine Fortsetzung der

117

Urteil Quinn (Anm. 48), §§ 47, 48.

118

Urteile Yagci und Sargin (Anm. 24), § 49 und Mansur (Anm. 7), § 51.

119

Urteile Yagci und Sargin (Anm. 24), § 49 und Mansur (Anm. 7), § 51.

120

Urteil Quinn (Anm. 48), § 53.

121

Urteil Quinn (Anm. 48), § 56.

122

Urteile Van der Tang (Anm. 31), § 55; Yagci und Sargin (Anm. 24), § 50 und Mansur (Anm. 7), § 52.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995

505

Untersuchungshaft aus.123 Vielmehr hat der Gerichtshof dann festzustellen, ob die anderen von den Justizorganen angeführten Gründe einen Freiheitsentzug rechtfertigen und ob die nationalen Behörden bei der Durchführung des Verfahrens besondere Sorgfalt haben walten lassen.124 Die Frage, ob eine Fluchtgefahr als möglicher Rechtfertigungsgrund in Betracht kommt, kann nach Ansicht des Gerichtshofes nicht allein auf Grund der Höhe der dem Bf. drohenden Strafe beurteilt werden. Vielmehr seien auch andere Faktoren, die eine Fluchtgefahr wahrscheinlich erscheinen ließen oder dieser Annahme entgegenstünden, zu berücksichtigen. 125 So könne die Tatsache, daß ein Ausländer in einem Land festgehalten werde, zu dem ihm jegliche engere Bindungen fehlten, das Vorliegen einer Fluchtgefahr wahrscheinlich erscheinen lassen.126 Wie der Gerichtshof im Urteil Van der Tang ausführte, stellt eine nur unzureichende Begründung einer Entscheidung über die Fortsetzung der Untersuchungshaft durch das nationale Gericht für sich allein keine Verletzung des Rechts aus Art. 5 Abs. 3 dar, wenn dem Bf. das Vorliegen dieser Gründe bekannt gewesen ist. 127 Des weiteren wies der EGMR darauf hin, daß das Recht des Bf. auf zügige Durchführung des Strafverfahrens nicht dazu führen könne, daß die Bemühungen der nationalen Gerichte, ihre Aufgaben mit der notwendigen Sorgfalt durchzuführen, beeinträchtigt würden. 128 So könne es bei Ermittlungen im Zusammenhang mit dem organisierten Drogenhandel erforderlich sein, daß ein Fall, der für sich genommen nicht kompliziert sei, durch Verbindung mit anderen Verfahren Teil eines komplexen Geschehens werde und sich die Dauer der Untersuchungshaft hierdurch verlängere. 129 3. Recht auf Haftprüfung

gern. Art. 5 Abs .4

I n bezug auf die von Art. 5 Abs. 4 umfaßte Rechtsgarantie wiederholte der Gerichtshof im Urteil Kampanis, daß die Gewährung rechtlichen Gehörs, soweit erforderlich auch durch einen Vertreter, für einen Gefangenen zu den grundlegenden Prozeßgarantien in Fällen von Freiheitsentziehungen gehöre. Dieses sei insbesondere 123 Urteile Van der Tang (Anm. 31), § 55; Mansur (Anm. 7), § 52 sowie Yagci und Sargin (Anm. 24), § 50. 124

Urteile Van der Tang (Anm. 31), § 55; Mansur (Anm. 7), § 52 sowie Yagci und Sargin (Anm. 24), § 50. 125

Urteile Mansur (Anm. 7), § 55; Yagci und Sargin (Anm. 24), § 52; vgl. auch mutatis mutandis Letellier gegen Frankreich vom 26. Juni 1991, Judgments, vol. 207, § 43. 126

Urteil Van der Tang (Anm. 31), § 67.

127

Urteil Van der Tang (Anm. 31), § 60.

128

Urteil Van der Tang (Anm. 31), § 72; unter Hinweis auf das Urteil W. gegen die Schweiz vom 26. Januar 1993, Judgments, vol. 254-A, § 42. 129

Urteil Van der Tang (Anm. 31), § 75.

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Frank Bodendiek und Karsten Nowrot

dann der Fall, wenn die Anhörung des Gefangenen die Wahrung der Waffengleichheit sicherstellen solle, welche eine der Grundprinzipien gerichtlicher Verfahren darstelle. 130 Der EGMR entschied, daß der Grundsatz der Waffengleichheit erfordert, daß einem Untersuchungshäftling, der sich bereits über zwei Jahre in Haft befindet und während dieser Zeit mehrere begründete Anträge auf Entlassung gestellt hat, die Möglichkeit eingeräumt werden muß, in einer Verhandlung über die Fortdauer der Untersuchungshaft zur gleichen Zeit wie der Staatsanwalt gehört zu werden. Auf diese Weise soll ihm ermöglicht werden, auf die Argumentation der Anklage einzugehen.131 Die Verletzung der Waffengleichheit kann allerdings von dem Bf. nicht geltend gemacht werden, wenn er für seinen Antrag auf rechtliches Gehör die vom nationalen Recht gesetzte Frist nicht eingehalten hat. 132 Der EGMR wiederholte außerdem im Fall Iribarne Perez , daß die von Art. 5 Abs. 4 vorgesehene Kontrolle der Rechtmäßigkeit einer Haftstrafe i.S.d. Art. 5 Abs. 1 lit. a im Regelfall bereits durch das die Haftstrafe festlegende Urteil gewährleistet werde. Aber auch während der weiteren Dauer der Strafhaft, die der Verurteilung durch ein zuständiges Gericht nachfolge, könne eine Haftprüfung geboten sein, allerdings nur unter bestimmten, genau spezifizierten Umständen. 133 Zu diesen besonderen Umständen gehöre es nicht, daß das Urteil eines rechtstaatlichen Anforderungen voll genügenden andorranischen Strafgerichts in Frankreich vollstreckt werde. 134 V I I . Der Grundsatz nulla poena sine lege gem. Art. 7 Art. 7 muß in Anlehnung an sein Ziel so ausgelegt werden, daß er einen wirksamen Schutz gegen willkürliche Verurteilung darstellt. Die Verhängung einer Strafe kann nur aufgrund eines Gesetzes erfolgen, welches öffentlich zugänglich ist und mit seiner Rechtsfolge an eine für den Einzelnen vorhersehbare Handlung anknüpft. 1 3 5

130

Urteil Kampanis gegen Griechenland worn 13. Juli 1995, Judgments, vol. 318-B, § 47; so schon das Urteil Sanchez-Reisse gegen die Schweiz vom 21. Oktober 1986, Judgments, vol. 107, §51. 131

Urteil Kampanis (Anm. 130), § 58.

132

Urteil Kampanis (Anm. 130), § 51.

133

Urteil Iribarne Perez gegen Frankreich vom 24. Oktober 1995, Judgments, vol. 325-C, §§

29, 30. 134 135

Urteil Iribarne Perez (Anm. 133), § 31.

Urteile S. W. gegen Vereinigtes Königreich vom 22. November 1995, Judgments, vol. 335B, SS 34 - 36 und C. R. gegen Vereinigtes Königreich vom 22. November 1995, Judgments, vol. 335-C, SS 32 - 34.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995

507

Die Frage, ob ein Verstoß gegen das in Art. 7 statuierte Rückwirkungsverbot im Strafrecht vorliegt, beantwortete der EGMR nicht unter Rückgriff auf das jeweilige innerstaatliche Recht. Vielmehr bestimmte das Gericht in vertragsautonomer Begriffsbildung, ob eine dem Bürger vom Staat rückwirkend auferlegte Maßnahme als Strafe zu qualifizieren ist. 136 Dabei dienen folgende Faktoren als Hilfsmittel bei dieser Qualifikation: die Frage, ob die Maßnahme der Verurteilung wegen einer strafbaren Tat nachfolgt; 137 die Einordnung im nationalen Recht; 138 die Schwere der Maßnahme, ohne daß diese allein entscheidend sein kann; 139 die Natur und der Zweck der Maßnahme, d. h. insbesondere die Frage, ob die Maßnahme eher der Generalprävention oder eher der individuellen Sühne und Vergeltung dient; 140 der Charakter des Verfahrens, das zur Verhängung der Maßnahme führt. So spricht etwa die Berücksichtigung der Schuld des Betroffenen und die Möglichkeit, ersatzweise eine Haftstrafe zu verhängen, für die Qualifizierung einer Beschlagnahme als Strafe i.S.d. Art. 7. 1 4 1 Bei Zugrundelegung dieser Kriterien ist die Anordnung der Beschlagnahme und des Verfalls von Wertgegenständen, die ein wegen Drogendelikten verurteilter Täter mutmaßlich durch sein strafbares Handeln erlangt hat, als Strafe zu qualifizieren. 142 Auch die Verhängung einer Schuldnerverzugshaft für den Fall der Nichtzahlung einer Zollstrafe wegen Drogenhandels wurde vom Gerichtshof im Fall Jamil als Strafe i.S.d. Art. 7 eingeordnet. Zwar werde die Schuldnerverzugshaft nicht nur auf dem Gebiet des Strafrechts verhängt. Art. 7 sei aber Zumindestens auf den Fall anwendbar, daß diese Maßnahme von einem Gericht in Strafsachen verhängt worden sei, einen Abschreckungseffekt bezwecken solle und zu einem Freiheitsentzug zu Strafzwecken hätte führen können. 143 Art. 7 Abs. 1 verbietet nur dann die rückwirkende Anwendung eines Strafgesetzes, wenn diese zu einer Verschärfung des Strafmaßes für den Beschuldigten führt. 136

Urteil Welch gegen Vereinigtes Königreich vom 9. Februar 1995, Judgments, vol. 307, § 27; mit Hinweis auf die Urteile Van Droogenbroeck gegen Belgien vom 24. Juni 1982, Judgments, vol. 50, § 38 und Duinhof & Duijl gegen Niederlande vom 22. Mai 1984, Judgments, vol. 79, § 34. 137

Urteil Welch (Anm. 136), § 29.

138

Urteil Welch (Anm. 136), § 31.

139

Urteil Welch (Anm. 136), § 32.

140

Urteil Welch (Anm. 136), § 30.

141

Urteile Welch (Anm. 136), § 33 und Jamil gegen Frankreich vom 8. Juni 1995, Judgments, vol. 317-B, § 31. 142 143

Urteil Welch (Anm. 136), § 35.

Urteil Jamil (Anm. 141), § 32; siehe auch die Urteile Engel u. a. gegen die Niederlande vom 8. Juni 1976, Judgments, vol. 22, § 82 sowie Oztürk gegen Deutschland vom 21. Februar 1984, Judgments, vol. 73, § 53.

508

Frank Bodendiek und Karsten Nowrot

Eine rückwirkende Anwendung einer hinsichtlich des Tatbestandes engeren oder der Rechtsfolge milderen Strafrechtsnorm ist daher mit Art. 7 vereinbar. 144 Eine richterliche Fortbildung des Strafrechts wird jedoch durch Art. 7 nicht ausgeschlossen, soweit sie mit dem Wesen der Straftat übereinstimmt und vorhersehbar ist. Diese Kriterien sah der Gerichtshof im Falle der Abschaffung des vormals im common law anerkannten Grundsatzes der spousal immunity bei Vergewaltigungsstraftaten für gegeben an. Zum einen stützten sich die Verurteilungen der Bf. auf die Auslegung eines Gesetzes, welches bereits vor Begehung der Tat in Kraft gewesen sei, zum anderen verstießen sie auch nicht gegen den Zweck des Art. 7. Vielmehr hob der Gerichtshof hervor, daß die Abschaffung der spousal immunity den Grundgedanken der Konvention — dem Respekt vor der Menschenwürde und der Freiheit — entspreche. 145 V I I I . Freiheitsrechte gem. Art. 8, 10 und 11 EMRK und Art. 2 des 4. Zusatzprotokolls der EMRK 1. Das Recht auf Achtung des Familienlebens, der Wohnung und der Privatsphäre gem. Art. 8 Die Ausweisung eines Ausländers aus einem Staat, in dem auch seine Eltern und Geschwister ihren festen Wohnsitz haben, stellt einen Eingriff in das von Art. 8 Abs. 1 gewährte Recht auf Achtung des Familienlebens dar. 146 I m Urteil McMichael baute der EGMR seine Rechtsprechung aus, daß das Familienleben nicht nur im Rahmen einer bestehenden Ehe von Art. 8 geschützt sei, sondern auch nichtehelichen Kindern und ihren Familien, insbesondere den nichtehelichen Vätern dieser Grundrechtsschutz zukomme. 147 Zwar werde bezüglich der Verfahrensgarantien des Art. 6 in einem Sorgerechtsstreit ein Unterschied zwischen der Mutter eines nichtehelichen Kindes und dem Kindesvater gemacht, der noch nicht gesetzlich anerkannt sei und deswegen noch keine zivilrechtlichen Ansprüche i.S.d. Art. 6 habe. I m Rahmen des Art. 8 sei jedoch diese formelle Unterscheidung nicht vorzunehmen, sondern danach zu fragen, ob in der Person des jeweiligen Beschwerdeführers ein tatsächliches Familienleben oder Kindschaftsverhältnis vorliege. Als Anhaltspunkt könne dabei dienen, daß der Kindesvater mit der um ihr Sorge144

Urteil G. gegen Frankreich vom 27. September 1995, Judgments, vol. 325-B, §§ 26, 27.

145

Urteile S. W. (Anm. 135), §§ 41 - 47 und C. R. (Anm. 135), §§ 39 - 44.

146

Urteil Nasri gegen Frankreich vom 13. Juli 1995, Judgments, vol. 320-B, § 34.

147

Vgl. dazu bereits Urteile Keegan gegen Irland vom 26. Mai 1994, Judgments, vol. 290, § 33; Johnston u. a. gegen Irland vom 18. Dezember 1986, Judgments, vol. 112, § 55. Z u diesem Problemkreis auch Pardo Lopez (Anm. 1), 363, 364, und Beate Rudolf Zur Rechtstellung des Vaters eines nichtehelichen Kindes nach der EMRK, in: EuGRZ, 1995, 110 - 113.

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509

recht kämpfenden Mutter zusammenlebte und sie bei ihren Bemühungen unterstützte. 148 Auch wenn ein Sachverhalt bereits als Verstoß gegen das Recht auf ein faires Verfahren i.S.d. Art. 6 bewertet worden ist, schließt das eine Untersuchung der gleichen Fakten unter dem Gesichtspunkt des Art. 8 nicht aus, da beide Vorschriften jeweils unterschiedliche Rechtsgüter schützen. Ist dabei ein Verfahren durch eine Verletzung der Rechte aus Art. 6 unfair und sind deshalb als Konsequenz die Interessen des Beschwerdeführers an einem gemeinsamen Familienleben nicht angemessen geschützt, liegt auch eine Verletzung von Art. 8 vor. 1 4 9 Das Recht auf die Respektierung des Privat- und Familienlebens ist auch thematisch einschlägig, wenn der Staat einem Hauseigentümer nicht ermöglicht, mit seiner Frau und seinen Kindern aus einer mit anderen Verwandten gemeinsam bewohnten Wohnung in ein ihm gehörendes, größeres und für das Familienleben angemesseneres Haus umzuziehen, indem er dort wohnende Mieter ausweist. Die den Staat in dieser Situation treffende positive Pflicht, 150 das Familien- und Privatleben zu ermöglichen, ist jedoch nicht absolut.151 Vielmehr sei den Anforderungen des Art. 8 bereits genüge getan, so der EGMR, wenn die staatlichen Behörden den Schutz der Familie zurücknähmen, weil sie ein anderes legitimes Ziel, z. B. den sozialen Mieterschutz, verfolgten. Darüber hinaus müsse aber die Kontrolle des EGMR ergeben, daß die staatlichen Behörden durch ihre Entscheidung nach sorgfältiger, unparteiischer Abwägung der beteiligten Interessen ein gerechtes Gleichgewicht erreicht haben. Ein unbedingtes Recht gegen den Staat, daß dieser auf das bloße Verlangen des Vermieters ein vermietetes Haus wegen Eigenbedarfs von den bisherigen Mietern räumt, ergebe sich damit nicht aus Art. 8. 152 2. Recht auf freie Meinungsäußerung gem. Art. 10 Abs. 1 Die strafrechtliche Verfolgung wegen übler Nachrede und die Verurteilung zu Schadensersatz durch ein Zivilgericht, welche an eine Veröffentlichung des Bf. anknüpfen, stellen ebenso wie eine gerichtliche Unterlassungsverfügung einen Eingriff in die Meinungsäußerungsfreiheit dar. 153 Desgleichen stellte der EGMR im Urteil 148

Urteil McMichael (Anm. 60), § 90.

149

Urteil McMichael (Anm. 60), §§ 91 und 92.

150 Zur Frage der positiven Schutzpflichten vgl. Frederic Sudre, Les „obligations positives" dans la jurisprudence europeenne des droits de Phomme, in: Revue Trimestrielle des Droits de l'Homme, 1995, 363 - 384 und Andreas Kley-Schuller, Der Schutz der Umwelt durch die E M R K , in: EuGRZ, 1995, 507, 509. 151

Urteil Velosa Bareto gegen Portugal vom 21. November 1995, Judgments, vol. 334, §§ 23.

152

Urteil Velosa Bareto (Anm. 151), §§ 23 - 31.

153

Urteile Prager und Oberschlick (Anm. 28), § 28 und Tolstoy Miloslavsky

(Anm. 62), § 35.

510

Frank Bodendiek und Karsten Nowrot

Piermont fest, eine Ausweisungsverfügung an eine Ausländerin verbunden mit dem Verbot der Wiedereinreise sei als Beeinträchtigung des durch Art. 10 Abs. 1 gewährleisteten Rechts zu qualifizieren, wenn diese Maßnahme an politische Äußerungen und der Teilnahme an Demonstrationen der Bf. anknüpfe. 154 In bezug auf die Entlassung einer Beamtin aufgrund ihrer politischen Gesinnung betonte der EGMR noch einmal, daß die Konvention generell auch auf Beamte anwendbar sei, nicht jedoch das Recht auf Ernennung zum Beamten betreffe. 155 Wenn die Bf. aber, wie im Fall Vogt, bereits den Status einer Beamtin im Zeitpunkt ihrer Entlassung, welche als Disziplinarstrafe aufgrund ihrer politischen Gesinnung gegen sie verhängt worden war, innehatte, stelle diese Suspendierung einen Eingriff in die Meinungsäußerungsfreiheit dar. 156 3. Versammlungs-und Vereinigungsfreiheit

gem. Art. 11 Abs. 1

Der Gerichtshof betonte im Urteil Vogt, daß auch der durch Art. 10 garantierte Schutz der Meinungsäußerungsfreiheit zu den Zielen der Versammlungs- und Vereinigungsfreiheit gehöre, die in Art. 11 verankert seien. Unbeschadet seiner eigenen Funktion müsse Art. 11 daher auch im Lichte des Art. 10 gesehen werden. 157 Eine Entlassung der Bf. aufgrund ihrer Weigerung, aus einer bestimmten Partei auszutreten, stelle daher einen Eingriff in das Recht auf Vereinigungsfreiheit dar. 158 4. Bewegungsfreiheit

gem. Art. 2 des 4. ZP

Auch wenn ein Einreiseverbot erst nach dem Passieren der Einreisekontrolle auf dem Flughafen verhängt worden ist, hat der Betroffene sich vorher nicht i.S.d. Art. 2 Abs. 1 des 4. ZP rechtmäßig im Hoheitsgebiet eines Vertragsstaates aufgehalten. Der Gerichtshof entschied im Urteil Piermont, daß jede andere Sichtweise als zu formalistisch abzulehnen ist, da die Bf. auf dem Gebiet des Flughafens noch der Kontrolle der Einreisebehörden unterliegt. 159 Auch wenn die Zustellung der Ausweisungsverfügung erst im Flugzeug unmittelbar vor der Abreise der Bf., die sich vorher über einen längeren Zeitraum hinweg ungehindert im Hoheitsgebiet eines Ver154

Urteil Piermont gegen Frankreich vom 27. April 1995, Judgments, vol. 313, §§ 51 - 53; deutsche Ubersetzung des Urteils in: Informationsbrief Ausländerrecht 1996, 45-51. 155

Urteil Vogt (Anm. 2), § 43.

156

Urteil Vogt (Anm. 2), § 44.

157

Urteil Vogt (Anm. 2), § 64; vgl. auch die Urteile Ezelin gegen Frankreich vom 26. A p r i l 1991, Judgments, vol. 202, § 37 sowie Young, James und Webster gegen das Vereinigte Königreich vom 13. August 1981, Judgments, vol. 44, § 57. 158

Urteil Vogt (Anm. 2), § 65.

159

Urteil Piermont (Anm. 154), § 49.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995

511

tragsstaates bewegen konnte, erfolgt, stellt diese keine Verletzung der Bewegungsfreiheit dar. Durch den Erlaß der Ausweisungsverfügung entfällt das von Art. 2 Abs. 1 des 4. ZP aufgestellte Erfordernis des rechtmäßigen Aufenthalts im Hoheitsgebiet des Vertragsstaates. 160 5. Rechtfertigung

der Eingriffe

a) Gesetzlich vorgesehen Eine Beeinträchtigung von Freiheitsrechten ist dann gesetzlich vorgesehen, wenn sie eine Grundlage in einer innerstaatlichen Rechtsnorm hat, die den Normadressaten zugänglich und so hinreichend bestimmt formuliert ist, daß die betroffenen Personen in der Lage sind, die Folgen ihrer Handlungen in einem den Umständen entsprechenden, vernünftigen Ausmaß vorherzusehen. 161 Dabei umfaßt der Begriff „gesetzlich vorgesehen" nicht nur geschriebenes Recht sondern auch das common law. 162 Gegebenenfalls sei es den Normadressaten auch zuzumuten, bei Unsicherheiten bezüglich der Anwendbarkeit einer Norm, diese Zweifel durch das Einholen von Rechtsauskunft zu beseitigen, wie der Gerichtshof im Urteil Prager und Oberschlick feststellte. 163 Die nötige gesetzliche Grundlage für die Beschlagnahme und Einziehung von Presseerzeugnissen muß nicht zwangsläufig aus einem Strafgesetz bestehen. Beschlagnahmen, die der Erhaltung der Funktionsfähigkeit der Geheimdienste dienen, können auch außerhalb eines Strafverfahrens erfolgen, wenn die zu ihnen ermächtigenden Gesetze ausreichende Rechtsschutzmöglichkeiten bieten. 164 Bei der Frage, ob ein Eingriff aufgrund einer wirksamen gesetzlichen Grundlage erfolgt, bleibt es den nationalen Gerichten vorbehalten, einen Verstoß des einfachen Gesetzesrechts gegen das höherrangige innerstaatliche (Verfassungs-)Recht festzustellen. Der EGMR wiederholte, daß er seine Prüfungskompetenz insoweit zurücknehme. 165 160

Urteil Piermont (Anm. 154), § 44.

161

Urteil Tolstoy Miloslavsky (Anm. 62), § 37; unter Hinweis auf das Urteil Margareta und Roger Andersson gegen Schweden vom 25. Februar 1992, Judgments, vol. 226-A, § 75. 162

Urteil Tolstoy Miloslavsky (Anm. 62), § 37; vgl. auch das Urteil Sunday Times gegen das Vereinigte Königreich vom 26. A p r i l 1979, Judgments, vol. 30, § 47. 163

Urteile Prager und Oberschlick (Anm. 28), § 30 sowie Tolstoy Miloslavsky

(Anm. 62),

§37. 164

Urteil Verening Weekblad Blufl gegen Niederlande vom 9. Februar 1995, Judgments, vol. 306, § 32. 165

Urteil Verening Weekblad Blufl (Anm. 164), § 32; siehe auch z. B. Urteil Chorherr gegen Österreich vom 25. August 1993, Judgments, vol. 266-B, § 25.

512

Frank Bodendiek und Karsten Nowrot

Da die Interpretation und Anwendung von nationalem Recht also überwiegend den nationalen Behörden obliegt, 166 genügen dem Erfordernis der gesetzlichen Bestimmtheit auch unbestimmte Rechtsbegriffe, soweit diese durch die Rechtsprechung der obersten nationalen Gerichte eine hinreichende Konkretisierung erfahren haben. So führte der Gerichtshof im Fall Vogt aus, daß durch die Rechtsprechung eine klare Definition der Verpflichtung der Beamten zu politischer Loyalität vorliege, welche unter anderem jede aktive Bindung eines Beamten an eine politische Gruppierung mit verfassungsfeindlichen Zielen als mit dieser Verpflichtung für unvereinbar erkläre. Eine hieran anknüpfende Entlassung einer Beamtin stelle daher einen gesetzlich vorgesehenen Eingriff dar. 167 Auch das Vorliegen von Ermessen ist mit diesem Erfordernis vereinbar, soweit der Ermessensumfang unter Berücksichtigung des damit angestrebten legitimen Zieles so hinreichend bestimmt festgelegt ist, daß die Normadressaten ausreichenden Schutz vor willkürlichen Eingriffen genießen.168 I m Hinblick auf die innerstaatliche Berechnung von Schadensersatz wegen Verleumdung führte der Gerichtshof im Urteil Tolstoy Miloslavsky aus, daß diese Festlegung sehr flexibel sein müsse, um bei der Vielzahl der möglichen Konstellationen auf diesem Gebiet Einzelfallgerechtigkeit zu ermöglichen. Daher könne der Begriff „gesetzlich vorgesehen" in diesem Rechtsgebiet nicht bedeuten, daß dem Bf., selbst durch Einholung von Rechtsrat, die Möglichkeit eingeräumt werden müsse, die Höhe des Schadensersatzes auch nur einigermaßen sicher vorherzusehen. 169 Weiterhin stellte der Gerichtshof fest, daß auch die Festsetzung der Höhe des Schadensersatzes durch Geschworene keinen Verstoß gegen den Grundsatz darstelle, daß ein Eingriff gesetzlich vorgesehen sein müsse. Die Geschworenen hätten bei ihrer Entscheidung über die Höhe des Schadensersatzes kein unbegrenztes Ermessen, sondern seien angehalten, eine Reihe von Kriterien — unter anderem das Fehlen einer Entschuldigung und die Verletzung der Gefühle des Verleumdeten — zu berücksichtigen, über die sie der Richter zu belehren habe. Des weiteren sei auch im Hinblick auf die in diesem Rechtsgebiet erforderliche Flexibilität und die Überprüfungsbefugnis des Berufungsgerichtes eine ausreichend präzise Formulierung des innerstaatlichen Rechts bei Geschworenenprozessen gegeben.170

166

Urteil Vogt (Anm. 2), § 48; unter Hinweis auf das Urteil Chorherr (Anm. 165), § 25.

167

Urteil Vogt (Anm. 2), § 48.

168

Urteil Tolstoy Miloslavsky

(Anm. 62), § 37.

169

Urteil Tolstoy Miloslavsky

(Anm. 62), § 41.

170

Urteil Tolstoy Miloslavsky

(Anm. 62), §§ 42, 44.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995

513

b) Legitimer Zweck I m Hinblick auf die Erfahrungen aus der Zeit der Weimarer Republik nimmt in Deutschland die Verpflichtung der Beamten zu politischer Loyalität einen besonderen Stellenwert ein und ist daher als ein legitimes Ziel i.S.d. Art. 10 Abs. 2 anzusehen. 171 Diese Qualifizierung wird auch der Verhinderung von Unruhen und Verbrechen sowie dem Schutz der territorialen Integrität zuteil. 172 Des weiteren kann auch die Erhaltung der Autorität der Gerichte 173 und der Schutz des guten Rufes und der Rechte anderer 174 einen Eingriff in von der Konvention gewährte Freiheitsrechte rechtfertigen. Ein legitimes Ziel i.S.d. Art. 10 Abs. 2 ist auch der Schutz von im geheimen arbeitenden Institutionen wie den Inlandsgeheimdiensten.175 c) Notwendigkeit in einer demokratischen Gesellschaft Ein Eingriff in die Freiheitsrechte ist als notwendig in einer demokratischen Gesellschaft statthaft, wenn er durch ein dringendes Bedürfnis der Gesellschaft gerechtfertigt ist und sich insbesondere als verhältnismäßig in bezug auf den legitimen Zweck erweist. 176 Die Ausweisung eines straffällig gewordenen Ausländers, welche grundsätzlich den Vertragsstaaten zur Erhaltung der öffentlichen Ordnung freisteht, muß dem Grundsatz der Verhältnismäßigkeit entsprechen, wenn diese Maßnahme einen Eingriff in das Recht auf Achtung des Familienlebens nach Art. 8 Abs. 1 darstellt. 177 Bei der Beurteilung der Verhältnismäßigkeit sind jeweils auch die besonderen Umstände des Einzelfalls zu berücksichtigen. 178 So ist die Abschiebung eines taubstummen Algeriers, der weder arabische Sprachkenntnisse noch sonstige Beziehungen zu seinem Geburtsland aufweist und über keine hinreichende Schulbildung verfügt, nicht als „notwendig in einer demokratischen Gesellschaft" anzusehen, obwohl er wegen Vergewaltigung verurteilt worden ist. Da für den Bf. gerade der Rückhalt durch die Familie von besonderer Bedeutung sei, um nicht in ein life of crime abzugleiten, könne

171

Urteil Vogt (Anm. 2), § 51.

172

Urteile Nasri (Anm. 146), § 37 und Piermont (Anm. 154), §§ 70 - 72.

173

Urteil Prager und Oberschlick (Anm. 28), § 31.

174

Urteile Prager und Oberschlick (Anm. 28), § 31 sowie Tolstoy Miloslavsky

(Anm. 62),

§45. 175

Urteil Verening Weekblad Blufl (Anm. 164), § 35.

176

Urteile Vogt (Anm. 2), § 52 und Nasri (Anm. 146), § 41; vgl. auch Beldjoudi gegen Frankreich vom 26. März 1992, Judgments, vol. 234-A, § 74. 177

Urteil Nasri (Anm. 146), § 41.

178

Urteil Nasri (Anm. 146), § 42.

33 G Y I L 39

514

Frank Bodendiek und Karsten Nowrot

die Maßnahme nicht als nach Art. 8 Abs. 2 gerechtfertigt angesehen werden, wie der Gerichtshof im Urteil Nasri ausführte. 179 In bezug auf die durch Art. 10 Abs. 1 geschützte Meinungsäußerungsfreiheit hob der Gerichtshof im Urteil Prager und Oberschlick noch einmal die herausragende Bedeutung der Presse in einem Rechtsstaat hervor. 180 Obwohl Art. 10 auch auf beleidigende und provozierende Äußerungen Anwendung finde, 181 seien strafrechtliche Verfolgungen wegen Verleumdung aber dann im Hinblick auf den Schutz des guten Rufes als verhältnismäßig anzusehen, wenn ein Journalist in einem Zeitungsartikel in generalisierender Weise und erheblichem Maße Kritik äußere, ohne substantiierte Recherche betrieben zu haben. 182 Der EGMR wiederholte, daß die Einziehung von Presseerzeugnissen zur Verhinderung des weiteren Bekanntwerdens dann nicht mehr erforderlich sei, wenn die Auflage bereits einer Vielzahl von Menschen zugänglich gewesen sei. Das könne nicht nur bei wirklichen Massenblättern der Fall sein, sondern auch wenn die betroffene Zeitung nur in einer vergleichsweise niedrigen Auflage verbreitet werde. 183 Zwar erkannte der Gerichtshof im Fall Vogt an, daß bei der Freiheit der Meinungsäußerung von Beamten den in Art. 10 Abs. 2 erwähnten Pflichten eine besondere Bedeutung zukomme. Dennoch habe bei der Entlassung einer Beamtin aufgrund ihrer politischen Ansichten eine sorgfältige Abwägung zwischen dem Grundrecht des Individuums und dem legitimen Interesse eines demokratischen Staates, der politische Loyalität von seinen Beamten verlangen könne, zu erfolgen. 184 Die Entlassung einer Lehrerin sei dann als unverhältnismäßig anzusehen, wenn gegen die Bf. nicht der Vorwurf erhoben worden sei, sie habe versucht, ihre Schüler politisch zu beeinflussen. Des weiteren sei entscheidend, ob die Partei, in der sich die Bf. engagiert, im Vertragsstaat verboten worden sei. Darüber hinaus müsse auch der Umstand berücksichtigt werden, daß es der Bf. praktisch unmöglich sei, im Inland eine gleichwertige Anstellung zu finden. 185 179

Urteil Nasri (Anm. 146), § 43.

180

Urteil Prager gegen Oberschlick (Anm. 28), § 34; unter Bezugnahme auf Castells gegen Spanien vom 23. A p r i l 1992, Judgments, vol. 236, § 43. 181 Urteile Vogt (Anm. 2), § 52 und Prager und Oberschlick (Anm. 28), § 38; siehe auch mutatis mutandis das Urteil Vereinigung demokratischer Soldaten Österreichs und Gubi gegen Österreich vom 19. Dezember 1994, Judgments, vol. 302, § 36. 182

Urteil Prager und Oberschlick (Anm. 28), §§ 37, 38.

183

Urteil Verening Weekblad Blufl (Anm. 164), § 45. I m Anschluß an die ähnlich gelagerten Fälle Webergegen Schweiz vom 22. Mai 1990, Judgments, vol. 177, § 51; Sunday Times (Anm. 162), § 54; Observer & Guardian gegen Vereinigtes Königreich vom 26. November 1991, Judgments, vol. 216, §§ 66 - 70. 184

Urteil Vogt (Anm. 2), § 53.

185

Urteil Vogt (Anm. 2), § 60.

Die Rechtsprechung des Europäischen Gerichtshofs im Jahre 1995

I m Urteil Piermont hob der Gerichtshof noch einmal die grundlegende Bedeutung der Meinungsäußerungsfreiheit für gewählte Volksvertreter hervor. 186 Obwohl die Freiheit der politischen Debatte gewissen Einschränkungen durch die Vertragsstaaten unterworfen werden könne, dürfe die Ausweisung eines Mitglieds des Europäischen Parlaments aus Französisch-Polynesien nur nach einer sorgfältigen Abwägung zwischen dem öffentlichen Interesse an der Verhinderung von Unruhen und der Erhaltung der territorialen Integrität auf der einen und der Meinungsäußerungsfreiheit der Bf. auf der anderen Seite erfolgen. Hierbei seien das von politischen Spannungen geprägte Klima in einem Land wie auch unmittelbar bevorstehende Wahlen als relevante Faktoren zu berücksichtigen. Die Ausweisung sei aber dann nicht als notwendig in einer demokratischen Gesellschaft i.S.d. Art. 10 Abs. 2 anzusehen, wenn sie an eine Rede anläßlich einer genehmigten und friedlich verlaufenden Demonstration anknüpfe, in der die Bf. zu keiner Zeit zu Gewalt oder Unruhen aufgerufen habe, sondern lediglich politische Forderungen vorgebracht habe, die auch mehrere örtliche Parteien verträten. 187 In bezug auf die Angemessenheit der Höhe eines Schadensersatzes für Rufschädigung billigte der Gerichtshof den innerstaatlichen Stellen einen weiten Ermessensspielraum zu. 188 Allerdings müßten im nationalen Recht adäquate und effektive Vorkehrungen vorhanden sein, welche das Zusprechen von unverhältnismäßigen Schadensersatzsummen durch Geschworenengerichte verhinderten. 189 Hierfür sei es nicht ausreichend, wenn ein Berufungsgericht eine solche Entscheidung grundsätzlich nicht wegen Unangemessenheit aufheben könne, sondern nur, wenn sich die Höhe des Schadensersatzes als so unangemessen darstelle, daß sie nur noch als irrational bezeichnet werden könne. 190 d) Einschränkungen der politischen Betätigung von Ausländern gem. Art. 16 Im Urteil Piermont entschied der Gerichtshof, daß ein Mitgliedsstaat der Europäischen Union Maßnahmen zur Einschränkung der politischen Betätigung von Ausländern nicht auf Art. 16 stützen könne, wenn die Bf. die Staatsangehörigkeit eines anderen Mitgliedslandes der Europäischen Union innehabe und Mitglied des Europäischen Parlaments sei. 191

33=

186

Urteil Piermont (Anm. 154), § 76; vgl. auch Castells (Anm. 180), § 42.

187

Urteil Piermont (Anm. 154), §§ 76, 77.

188

Urteil Tolstoy Miloslavsky

(Anm. 62), § 48.

189

Urteil Tolstoy Miloslavsky

(Anm. 62), §§ 49, 51.

190

Urteil Tolstoy Miloslavsky

(Anm. 62), § 50.

191

Urteil Piermont (Anm. 154), § 64.

515

516

Frank Bodendiek und Karsten Nowrot

e) Örtliche Notwendigkeiten gem. Art. 63 Abs. 3 Eine angespannte politische Lage im Vorfeld von Wahlen, die nicht nur in den Gebieten i.S.d. Art. 63 Abs. 1, sondern auch im „Mutterland" selbst auftreten kann, stellt keine örtliche Notwendigkeit i.S.d. Art. 63 Abs. 3 dar, welche Einschränkungen der Meinungsäußerungsfreiheit rechtfertigen könnte. 192 I X . Die Eigentumsgarantie gem. Art. 1 des 1. ZP Ein weiterer Schwerpunkt der Rechtsprechungstätigkeit des EGMR war der Eigentumsschutz des Art. 1 des 1. ZP: 1. Schutzbereich des Art. 1 des 1. ZP Unter Eigentum i.S.d. Art. 1 des 1. ZP ist nicht nur das Volleigentum an körperlichen Gegenständen zu verstehen. Auch ein dingliches Recht, das zur Sicherung einer Forderung dient, wie das Eigentum des Vorbehaltsverkäufers, ist geschützt.193 Gleiches gilt bei einer Schadensersatzforderung, wenn der Schaden an den Rechtsgütern des Betroffenen bereits entstanden ist und der Betroffene nach der bisherigen Rechtslage, insbesondere der höchstrichterlichen Rechtsprechung legitimerweise damit rechnen konnte, diese Forderung auch durchzusetzen. 194 2. Eingriffe Der EGMR stellte in verschiedenen Fällen zum Eigentumsschutz sein Konzept der Systematik der Eigentumsgarantie des Art. 1 des 1. ZP jeweils zusammenfassend dar. Art. 1 des l.ZP enthalte drei verschiedene Regeln, und zwar zunächst die prinzipielle Vorschrift des Art. 1 Abs. 1 S. 1 des 1. ZP, die generell den Vertragsstaaten die Achtung des Eigentums aufgebe, aber auch spezielle, von den beiden anderen Regeln nicht erfaßte Fälle der Mißachtung des Eigentums umfasse. Daneben gewähre die Vorschrift des Art. 1 Abs. 1 S. 2 des 1. ZP den Schutz vor formalen oder faktischen Eigentumsentziehungen und Art. 1 Abs. 2 des 1. ZP den Schutz vor Eigentumsbenutzungsregelungen. 195

192

Urteil Piermont (Anm. 154), § 59.

193

Urteil Gasus GmbH (Anm. 35), § 53.

194

Urteil Pressos Compania u. a. (Anm. 38), § 31.

195

Urteile Gasus GmbH (Anm. 35), § 55; Air Canada (Anm. 64), §§ 29, 30; Spadea & Scalabrino (Anm. 41), § 27; Scollo (Anm. 87), § 26.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995

517

a) Eigentumsentziehung i.S.d Art. 1 Abs. 1 S. 2 des 1. ZP Ein Eingriff in Form einer Eigentumsentziehung liegt vor, wenn die Inhaber einer bereits entstandenen, aber noch nicht durchgesetzten Schadensersatzforderung durch einen rückwirkenden, gesetzlich angeordneten Haftungsausschluß ihren Anspruch gegen eine eigentlich haftende Person verlieren. 196 b) Eigentumsnutzungsregelung Eine Regelung der Eigentumsnutzung zur Sicherung der Zahlung der Steuern i.S.d. Art. 1 Abs. 2 des 1. ZP liegt vor, wenn die Finanzbehörden aufgrund einer bestehenden gesetzlichen Vorschrift bei einem Steuerschuldner Sachen im Eigentun; eines Dritten, z. B. eines Vorbehaltsverkäufers, pfänden können. Damit schloß der EGMR an seine Rechtsprechung an, daß sich auch die gänzliche Entziehung einer eigentumswerten Rechtsposition als Benutzungsregelung i.S.d. Art. 1 Abs. 1 des 1. ZP darstellen kann, wenn es nicht um willkürliche, sondern um rechtmäßig durchgeführte Konfiskationen geht. Auf die willkürliche Natur einer Konfiskation könne man nicht allein daraus schließen, daß in ihrem Rahmen auch auf die Rechte Dritter zugegriffen werden könne. Vielmehr sei ein solches Vorgehen im Vollstreckungsverfahren, sowohl zugunsten Privater als auch zugunsten staatlicher Stellen, zur Stärkung der Gläubigerposition ein in Europa weit verbreitetetes und akzeptiertes Verfahren und daher nicht als willkürliche Konfiskation sondern als Benutzungsregel zu qualifizieren. 197 Ebenso handelt es sich um eine Regelung der Eigentumsnutzung, wenn ein von Dritten zu strafbaren Handlungen genutzter Gegenstand beschlagnahmt und dem Eigentümer nur gegen die Zahlung einer Geldsumme zurückgegeben wird. 1 9 8 Wenn der Staat dem Eigentümer einer vermieteten Wohnung oder eines vermieteten Hauses nicht zur Durchsetzung einer Kündigung, d. h. zur Räumung des Anwesens verhilft, liegt keine formelle oder faktische Enteignung, sondern eine Benutzungsregelung i.S.d. Art. 1 Abs. 2 des 1. ZP vor. 1 9 9

196

Urteil Pressos Compania u. a. (Anm. 38), § 33.

197

Urteil Gasus GmbH (Anm. 35), § 59.

198

Urteil Air Canada (Anm. 64), §§ 33, 34; vgl. dazu auch Urteil AGOSI (Anm. 64), § 48.

199

Urteile Spadea & Scalabrino (Anm. 41), § 28; Scollo (Anm. 87), § 27; Velosa Bareto (Anm. 151), § 35.

518

Frank Bodendiek und Karsten Nowrot

3. Rechtfertigung

des Eigentumseingriffs

a) Rechtfertigung einer Eigentumsentziehung Die vollständige Entziehung bestimmter Schadensersatzforderungen gegen den Staat durch ein rückwirkendes Gesetz läßt sich nicht mit finanziellen Schwierigkeiten bei der Begleichung der Schulden begründen. Auch wenn die Schadensersatzpflicht erst durch die Änderung der höchstrichterlichen Rechtsprechung entstanden ist, kann sich der Staat aus Gründen der Verhältnismäßigkeit den entstandenen Verpflichtungen jedenfalls dann nicht entziehen, wenn die Ausweitung seiner Haftung für ihn vorhersehbar war. 200 b) Rechtfertigung einer Benutzungsregelung Bei einer Nutzungsregelung im Allgemeininteresse i.S.d. Art. 1 Abs. 2 des 1. ZP betonte der EGMR erneut, daß er dem nationalen Gesetzgeber einen weiten Beurteilungsspielraum zugestehe. Andererseits müsse auch diese Bestimmung im Lichte der Garantie des ersten Absatzes ausgelegt werden. Es habe ein Ausgleich zwischen den Allgemeininteressen und dem Schutz des einzelnen im Sinne einer Verhältnismäßigkeit zwischen angewandtem Mittel und verfolgtem Ziel zu erfolgen. 201 Entscheidende Bedeutung komme dabei der Frage zu, ob gegen den staatlichen A k t eine effektive Beschwerde möglich sei. 202 Bei Anwendung dieser Kriterien sei in der staatlichen Verwaltungsvollstreckung auch die Verwertung schuldnerfremder Sachen, etwa von Sachen, die im Eigentum eines Vorbehaltsverkäufers stehen, zur Befriedigung staatlicher Ansprüche möglich. Während es den privaten Gläubigern eines Schuldners offenstehe, andere Sicherheiten von ihrem Vertragspartner zu verlangen, bleibe etwa den Finanzbehörden zur Durchsetzung ihrer Steuerforderungen nur der nachträgliche Zugriff auf das Vermögen des Schuldners. 203 Auch die Beschlagnahme eines von Dritten zum Drogenschmuggel benutzten Flugzeugs und dessen nur gegen Zahlung eines größeren Geldbetrags erfolgte Rückgabe wurden vom EGMR als verhältnismäßig angesehen. Diese Maßnahmen seien vom Allgemeininteresse an der Bekämpfung des internationalen Drogenhandels ge-

200

Urteil Pressos Compania u. a. (Anm. 38), §§ 42 - 44.

201

Urteile Spadea & Scalabrino (Anm. 41), § 33; Gasus GmbH (Anm. 35), § 62 und Air Canada (Anm. 64), § 36. Vgl. bereits früher fames u. a. gegen Vereinigtes Königreich vom 21. Februar 1986, Judgments, vol. 98, § 50; AGOSI (Anm. 64), § 48. 202

Urteile Gasus GmbH (Anm. 35), § 73; Air Canada (Anm. 64), §§ 44, 46.

203

Urteil Gasus GmbH (Anm. 35), § 70.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995

519

deckt, da sie den Flugzeugeigentümer zu verbesserten Sicherheitsvorkehrungen zwingen sollten und nicht unangemessen hoch ausgefallen seien.204 Ein legitimes Ziel verfolgt der nationale Gesetzgeber auch, wenn er die Räumung von Mietwohnungen für einen längeren Zeitraum aussetzt, um angesichts einer sehr großen Zahl von Räumungsbegehren soziale Spannungen zu vermeiden und es den Mietern zu ermöglichen, Ersatzwohnungen zu finden. 205 U m die Verhältnismäßigkeit des Eingriffs zu wahren, muß der Gesetzgeber dabei aber Ausnahmen zugunsten von Eigentümern vorsehen, die dringenden Eigenbedarf haben. 206 Werden aber auch in diesen gesetzlich vorgesehenen Ausnahmefällen tatsächlich keine staatlichen Maßnahmen zugunsten des Eigentümers getroffen, kann eine Verletzung des Rechts auf Achtung des Eigentums gem. Art. 1 des 1. ZP vorliegen, wenn der Staat den Bedarf des Eigentümers und das Mieterinteresse nicht richtig abgewogen hat. Auch ein Eigenbedarf des Eigentümers muß also nicht automatisch zur Räumung der betroffenen Wohnung führen. 207 X . Der Grundsatz ne bis in idem gem. Art. 4 des 7. ZP Wenn ein Bf. wegen des Führens eines Fahrzeuges in alkoholisiertem Zustand sowohl von einem Strafgericht als auch von einer Verwaltungsbehörde strafrechtlich verfolgt wird, stellt dieses eine Verletzung des Verbots der Doppelbestrafung gem. Art. 4 des 7. ZP dar. 208 X I . Das Diskriminierungsverbot gem. Art. 14 Dem Gerichtshof lag u. a. die Frage vor, ob eine im Rahmen des Art. 14 verbotene Diskriminierung gegeben ist, wenn der Beschwerdeführer als natürlicher nichtehelicher Vater im Gegensatz zu einem verheirateten Vater nicht automatisch die zivilrechtlichen elterlichen Rechte erwirbt. Der EGMR sah in einer solchen gesetzlichen Regelung keine Verletzung von Art. 14, da für die unbestreitbar gegebene Ungleichbehandlung ein vernünftiger Grund vorliege und die Erfordernisse der Verhältnismäßigkeit gewahrt seien. Der Gesetzgeber könne einen Mechanismus einführen, der im Interesse von Mutter und Kind zwischen verdienstvollen und nicht verdienstvollen nichtehelichen Vätern unterscheide, solange er die Anforderungen für

204

Urteil

ir Canada (Anm. 64), §§ 41, 47.

205

Urteile Spadea & Scalabrino (Anm. 41), §§ 31, 32; Scollo (Anm. 87), §§ 29 - 31; Velosa Bareto (Anm. 151), § 35. 206

Urteile Spadea & Scalabrino (Anm. 41), § 37; Scollo (Anm. 87), § 36.

207

Urteil Velosa Bareto (Anm. 151), §§ 29, 30.

208

Urteil Gradinger (Anm. 25), § 55.

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Frank Bodendiek und Karsten Nowrot

den Erwerb von elterlichen Rechten durch den nichtehelichen Vater nicht unangemessen hart ausgestalte.209 Eine verbotene Ungleichbehandlung liegt auch nicht vor, wenn die Eigentümer vermieteter Wohnungen ihre Wohnungen nicht räumen lassen können. Sowohl eine Ungleichbehandlung im Verhältnis zu den Mietern als auch eine Ungleichbehandlung im Vergleich zu Eigentümern von nicht als Wohnung dienenden Grundstükken und Häusern ist durch vernünftige Gründe, nämlich den sozialen Mieterschutz, gerechtfertigt. 210 X I I . Angemessene Entschädigung i.S.d. Art. 50 I n insgesamt 24 Entscheidungen äußerte sich der Gerichtshof zur Frage einer angemessenen Entschädigung i.S.d. Art. 50, drei Entscheidungen211 waren ausschließlich der Bestimmung einer angemessenen Entschädigung vorbehalten. In verschiedenen Fällen wurde die Entscheidung über einen Antrag nach Art. 50 EMRK gem. § 54 Abs. 1 und 4 VerfO verschoben, um den nationalen Gerichten und Behörden die Möglichkeit einer Regelung zu geben.212 1. Allgemeines Der Gerichtshof betonte, daß er bei seiner Entscheidung über die Gewährung einer angemessenen Entschädigung nicht an die Entscheidungen des nationalen Rechts gebunden sei. So könne er auch, wenn vor einem nationalen Gericht bereits eine positive Entscheidung zugunsten des Beschwerdeführers gefallen sei, beurteilen, ob die zugesprochene Entschädigung angemessen sei. 213 Eine Entschädigung kommt wegen § 50 Abs. 1 VerfO EGMR nicht in Frage, wenn der Beschwerdeführer einen Antrag gem. Art. 50 weder in seinem Klageschriftsatz noch in einem anderen separaten Schriftsatz bis spätestens einen Monat vor dem Termin der mündlichen Verhandlung eingereicht hat. 214 Auch mußte der EGMR wiederholt darauf hinweisen, daß er über die Feststellung der Konventionsverletzung und gegebenenfalls der Festsetzung einer Entschädi209

Urteil McMichael (Anm. 60), §§ 96 - 98.

210

Urteil Spadea & Scalabrino (Anm. 41), §§ 46 und 47.

211

Urteile Schuler-Zgraggen gegen Schweiz vom 31. Januar 1995, Judgments, vol. 305; Papamichalopoulos u. a. gegen Griechenland vom 6. November 1995, Judgments, vol. 330-B und Hentrich gegen Frankreich vom 3. Juli 1995, Judgments, vol. 320-A. 212

Vgl. u. a. Urteile Welch (Anm. 136), § 39; Pressos Compania u. a. (Anm. 38), § 51.

213

Urteil Schuler-Zgraggen (Anm. 211), § 15.

214

Urteil Paccione (Anm. 87), § 25.

Die Rechtsprechung des Europäischen Gerichtshofs im ahre 1995

521

gung gem. Art. 50 hinaus keine weiteren Anordnungen gegenüber der Regierung eines Vertragsstaates treffen könne. So könne er der jeweiligen Regierung nicht aufgeben, verbindliche Erklärungen zur Rechtswidrigkeit des Staatshandelns und zur geplanten Beseitigung der Rechtsverletzung zu machen. 215 Er könne auch keine Anordnung erlassen, die den betreffenden Vertragsstaat auffordere, eine Garantie abzugeben, daß ein ergangenes Gerichtsurteil nicht gegen den Beschwerdefüher vollstreckt werde. 216 Der Gerichtshof sei ferner durch Art. 50 nicht ermächtigt, ein deklaratorisches Urteil dahingehend zu erlassen, daß der Bf. in einem bestimmten innerstaatlichen Schadensersatzprozeß im Falle einer Verurteilung nur eine angemessene Kompensation zu zahlen habe. 217 Des weiteren habe er auch kein Recht, von einem Vertragsstaat die Annullierung einer Ausweisungsverfügung zu verlangen. 218 2. Materieller

Schaden

Zu der Entschädigung für erlittene materielle Schäden äußerte sich der EGMR wie folgt: Entschädigung sei auch für die Verluste durch Rufschädigung zu zahlen, die ein Beschuldigter erlitten habe, weil eine staatliche Behörde ihn entgegen Art. 6 Abs. 2 als schuldig bezeichnet habe. 219 Wenn als Wiedergutmachung einer Konventionsverletzung rückwirkend für acht Jahre eine Leistung gewährt werde, sei es angezeigt, für diese lange Zeitspanne den betroffenen Betrag auch zu verzinsen. 220 Demgegenüber betrachtete es der Gerichtshof im Fall McCann u. a. als nicht angemessen, für die rechtswidrige Tötung dreier Terroristen, die ein Bombenattentat geplant hatten, Schadensersatz zu gewähren. 221 Zur Bestimmung des Schadensumfanges im Gefolge der Feststellung einer Verletzung des Art. 1 des 1. ZP durch Eigentumsentziehung kann es nötig sein, ein Sachverständigengutachten anzufordern. Die Kosten dafür fallen ebenfalls in den Anwendungsbereich des Art. 50, sind also grundsätzlich auch dem Staat anzulasten.222 Dieses Gutachten wird in seinem Wert als Entscheidungshilfe für das Gericht nicht dadurch geschmälert, daß eines der Mitglieder eines Expertengremiums seine Mitarbeit

215

Urteil McMichael (Anm. 60), §§ 104, 105.

216

Urteil Allenet de Ribemont (Anm. 87), § 65.

217

Urteil Tolstoy Miloslavsky (Anm. 62), § 72; vgl. auch die Urteile Philis gegen Griechenland vom 27. August 1991, Judgments, vol. 209, § 79 und Pelladoah gegen die Niederlande vom 22. September 1994, Judgments, vol. 297-B, § 44. 218

Urteil Nasri (Anm. 146), § 50; unter Hinweis auf das Urteil Saidi (Anm. 34), § 47.

219

Urteil Allenet de Ribemont (Anm. 87), § 59.

220

Urteil Schuler-Zgraggen (Anm. 211), § 15.

221

Urteil McCann u. a. (Anm. 2), § 219.

222

Urteil Papamichalopoulos (Anm. 211), §§ 52 - 54.

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Frank Bodendiek und Karsten Nowrot

einstellt, solange nicht die Parteien vor der Fertigstellung des Gutachtens durch die verbliebenen Experten protestieren. 223 Bei der Bestimmung einer angemessenen Entschädigung für eine faktische Eigentumsentziehung i.S.v. Art. 1 Abs. 1 S. 2 des 1. ZP darf eine unrechtmäßige Entziehung, bei der nicht bloß die Zahlung einer Entschädigung fehlte, nicht so wie eine an sich rechtmäßige Enteignung behandelt werden, der es lediglich an einer Entschädigungsregelung mangelte. Deshalb ist die Höhe der Entschädigung nicht an dem Wert zu messen, den der enteignete Gegenstand zum Zeitpunkt der rechtswidrigen Entziehung hatte. Im Fall Papamichalopoulos u. a. entschied der EGMR vielmehr, daß der Vertragsstaat Naturalrestitution leisten müsse. Daher sei z. B. ein inzwischen bebautes enteignetes Grundstück in dem heutigen Zustand an den Eigentümer zurückzugeben. Die eingetretene Verbesserung diene als Ausgleich, um die Auswirkungen der Eigentumsentziehung wiedergutzumachen. Der Gerichtshof läßt dem betroffenen Staat allerdings die Wahl, statt der restitutio in integrum dem Beschwerdeführer eine Entschädigung in Geld zu zahlen, die dem heutigen Wert des Grundeigentums mit den Bebauungen entspricht. 224 3. Immaterieller Schaden Bereits die Feststellung einer Konventionsverletzung durch den Gerichtshof kann für die Wiedergutmachung erlittener immaterieller Benachteiligungen ausreichend sein.225 Entschädigung in Geld ist aber zu leisten für immaterielle Schäden wie Traumata, Angstgefühle und das Gefühl der ungerechten Behandlung bei einer Verletzung der Konventionsrechte aus Art. 6 Abs. 1 und 8, 226 außerdem für die entgegen Art. 6 Abs. 2 erfolgte Vorverurteilung, die für den Staat vorhersehbar weitgehende öffentliche Verbreitung erfuhr. 227 Weiterhin ist Entschädigung zu leisten für das Erleiden einer i.S.d. Art. 5 überlangen Haft 2 2 8 und für das Gefühl der Machtlosigkeit des Bürgers, wenn sich die Exekutive in rechtswidriger Weise weigert, nationalen Gerichtsentscheidungen nachzukommen, die den Staat zur Rückgabe von enteigneten Grundstücken verpflichten. 229

223

Urteil Papamichalopoulos (Anm. 211), § 20.

224

Urteil Papamichalopoulos (Anm. 211), § 34.

225

Urteil Kerojärvi

(Anm. 23), § 46.

226

Urteil McMichael (Anm. 60), § 103.

227

Urteil Allenet de Ribemont (Anm. 87), § 62.

228

Urteil Quinn (Anm. 48), § 64.

229

Urteil Papamichalopoulos (Anm. 211), § 43.

GERMAN LAW DEVELOPMENTS Government Criminality: The Judgment of the German Federal Constitutional Court of 24 October 19961 By Stephan Hobe and Christian Tietje

Introduction There is no doubt that the judgment of 24 October 1996 is among the most important of the German Federal Constitutional Court (Bundesverfassungsgericht ). The judgment involves fundamental questions of law and justice and constitutes, after the problematic period following 1945,2 the second attempt by the German judiciary at coming to grips with criminal acts of State officials committed under a totalitarian government. 3 The question of interest from an international law perspective was whether punishment meted out to former East German government officials runs counter to the constitutional prohibition against retroactive punishment contained in Article 103 para. 2 of the German constitution (Grundgesetz). 4 The German Federal Court for Criminal Matters (Bundesgerichtshof für Strafsachen ) had declared the provision of the East German border law legalizing the killing of refugees at the border void as counter to fundamental human rights and as a breach of elementary considerations of justice.

1 BVerfGE, Az. 2 BvR 1851/94; 2 BvR 1853/94; 2 BvR 1875/94; 2 BvR 1852/94, reprinted in Juristenzeitung, 1997, 142 (hereinafter judgment). I n the following any quotation of the judgment refers to the original printing of the judgment. 2

For a critical account of the judicial treatment of crimes committed during the Nazi period see, e.g., Adalbert Rückerl, NS-Verbrechen vor Gericht, 2nd ed., 1984. 3 For an account of the general problems see, e.g., Christian Starck/Wilfried Berg/Bodo Pieroth , Der Rechtsstaat und die Aufarbeitung der vor-rechtsstaatlichen Vergangenheit, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, vol. 51, 1992, 9. 4

See Eberhard Schmidt-Aßmann in: Theodor Maunz/Günther Dürig, Grundgesetz, Art. 103, notes 163 et seq., 235 et seq.

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Stephan Hobe and Christian Tietje

I. The Facts of the Cases 1. Three Members of the National Defense Council Three of the four complaints to the Federal Constitutional Court 5 were filed by high-ranking government officials of the former German Democratic Republic (East Germany) — Hans Albrecht , Heinz Keßler and Heinz Streletz , all members of the National Defense Council. They had been convicted by the Berlin District Court on seven charges of murder. Each charge involved East German citizens killed by border guards or mines while attempting to escape over the wall separating East and West Germany. The Berlin District Court determined that the orders of the East German Defense Minister — including those directly or indirectly allowing the killing of refugees — were based on orders of the National Defense Council, the supreme State organ for defense matters, which met twice a year. A complicated web of regulations controlled the use of firearms on the border. After 1961, several regulations were put into force by the National Defense Council concerning the securing of the border through mines and automatic weapons. U n t i l the entry into force of the official border law in 1982 the respective Statute on Function and Authority of the German People's Police of 11 June 19686 legalized the use of weapons inter alia in cases "of crimes against East Germany, and . . . to hinder the flight of a person." Starting 25 March 1982 section 27 of the Law on the State Border 7 regulated the use of firearms as follows: (1) Shooting is the most extreme form of the application of force against persons. Firearms may be used only in cases in which measures of bodily restraint w i t h or without other means has proved ineffective or obviously w i l l not be effective. The use of firearms is allowed only when the objective cannot be achieved through the use of a weapon against things or animals. (2) The use of firearms is justified to hinder the imminent execution or continuation of a crime that according to the circumstances appears to be a felony (Verbrechen ). The use of firearms is also justified to apprehend persons strongly suspected of having committed a felony (Verbrechen).

5

According to Article 93 para 1. cl. 4(a) of the German constitution in a constitutional complaint the complaining party must assert a violation of fundamental rights contained i n the constitution by a branch of the government, i.e. the executive, legislative or judicial branch. 6

Gesetz über die Aufgaben und Befugnisse der Deutschen Volkspolizei, Law Gazette of the German Democratic Republic, 1968 I, 232. 7

Gesetz über die Staatsgrenze der D D R of 25 March 1982, Law Gazette of the German Democratic Republic, 1982 I, 197.

Judgment of the German Federal Constitutional Court of 24 October 1996

525

(3) The use of firearms is generally to be preceded by an oral warning or by a warning shot to the extent that an immediately imminent risk does not exist that can be prevented or hindered exclusively through the immediate use of firearms. (4) Firearms are not to be used if a) the life or health of bystanders may be endangered, b) the persons according to outward appearance are children, or c) the shooting would be onto the territory of a neighboring state. To the extent possible firearms are not to be used against young persons (Jugendliche) and female persons. (5) To the extent possible human life is to be spared in the use of firearms. Wounding is to be the first measure taken, taking into account the necessary security measures. These laws, however, were n o t the o n l y legitimation for shootings at the border. Decrees o f the Minister for N a t i o n a l Security made it clear that border troops were responsible for the inviolability of the border. A n y person Violating' the sanctity o f border was t o be considered an enemy t o be eliminated if necessary; also tending i n this direction were the decrees ordering the massive m i l i t a r y b u i l d u p o n the border. T h e necessity o f securing the border effectively was repeatedly emphasized b y the N a t i o n a l Defense C o u n c i l , w h i c h established the requirements for the use o f firearms as o f 1 M a y 1967 i n decree 30/10 regulating the organization and operation o f border security b y border troops. This decree stipulated inter alia : (204) A l l guards and border troops of the National People's Army are to use firearms on the border to West Germany, West Berlin and in the coastal areas in the following situations: — for preliminary arrest ... of armed persons . . . that have violated the territory of the German Democratic Republic or attempted to do so, under the condition that these persons do not obey an order to disarm — for defense against armed attacks against the territory of the German Democratic Republic — for preliminary arrest of persons that despite explicit warnings . . . attempt to violate the state border. (205) Firearms may be used without warning only if — necessary for defending against aggression — there is immediate danger w i t h respect to life . . . or border installations. Under these circumstances the firearm should be used only in such a way that the respective person is hindered from escaping and thus is temporarily apprehended. O f particular importance was the swearing-in ceremony o f border guards at the beg i n n i n g o f border d u t y . T h e instruction presented was w o r d e d as follows: This unit secures the state border of the German Democratic Republic i n the district of the (x) border platoon. The task is not to allow any breaches of the border, to apprehend or eliminate any violator of the border and to guarantee the security of the border in every case.

526

Stephan Hobe and Christian Tietje

Moreover each border guard knew that he would be confronted w i t h investigations by military prosecutors if there was a breach of the border. The border guards also were told that persons that tried to 'breach the border' would themselves use firearms against the border guards. A l l three petitioners — A lbrecht, Keßler and Streletz — admitted to having known the legal situation regarding the border and claimed to have acted in full compliance with the laws and regulations of East Germany. The Berlin District Court did not accept their assertion that an explicit order to eliminate persons fleeing across the border did not exist. The court noted the web of official and unofficial rules and regulations that had the intention of impeding the flight of persons across the border by all possible means. The court consequently found the three defendants guilty of aiding and abetting in the shootings in the seven cases. O n appeal the Federal Court for Criminal Matters largely upheld the lower court's ruling. It emphasized, however, that the members of the National Defense Council not only were guilty of aiding and abetting or manslaughter but also that they were indirect principals in the commission of the crimes (mittelbare Täterschaft ). The court rejected section 27 para. 2 of the 1982 border law as a justification for the use of firearms as counter to fundamental justice and thus null and void, although enshrined as written law. According to the court the provision was fundamentally unjust because it was counter to international human rights standards as recognized by civilized nations and incorporated in international conventions. The court rejected any argument that the punishment of the three defendants was a retroactive measure and thus invalid; according to the court any reliance by the defendants of the legality of their actions that was based on such extremely unjust law was not covered by ex post facto principles. 2. One Border Guard The fourth complaint to the Federal Constitutional Court involved a border guard that had been found guilty of having shot and killed a refugee from East Germany as the refugee swam across the Spree river. The Berlin District Court condemned him to one year ten months' imprisonment, which was commuted to probation. The court held the use of firearms was not justified as none of the extreme cases in section 27 para. 2 of the border law was fulfilled. The Federal Court for Criminal Matters upheld the decision. I I . The Decision of the Federal Constitutional Court A l l four petitioners in their constitutional complaints to the Federal Constitutional Court claimed a violation of fundamental rights. A l l four claimed that the

Judgment of the German Federal Constitutional Court of 24 October

1996527

punishment imposed by the district court and upheld by the Federal Court for Criminal Matters violated the prohibition against retroactive punishment of Article 103 para. 2 of the constitution. Also, as agents of East Germany the petitioners claimed immunity from the jurisdiction of post-reunification German courts. The members of the National Defense Council also claimed immunity as State actors. The Federal Constitutional Court unanimously agreed to hear the constitutional complaints8 and unanimously rejected them. As a starting point, the court referred to the established principle of constitutional law that it is not for the court to undertake a full review of lower court judgments, that the competence of the court is restricted to specific violations of constitutional law. W i t h regard to this principle the court underscored that it considers questions on the interpretation and application of ordinary statutory law only to the extent that they involve principles of constitutional law. 9 The court held that this principle of German constitutional law applies not only to statutory law of the Federal Republic of Germany (West Germany and reunified Germany) but also to foreign statutory law, e.g. statutory law of East Germany. 1. Immunity of State Officials The first question before the court was whether the prosecution of Albrecht y Keßler and Streletz as State officials of East Germany violated customary international law. I n German constitutional law a violation either of customary international law or of general principles of law in the sense of Article 38 para. 1 lit. b) and lit. c) of the Statute of the International Court of Justice is a violation of the German constitution and thus of individual rights of persons protected by the German constitution. 1 0 The court found no violation of customary international law. First, in accordance w i t h earlier judgments of the court and w i t h the majority opinion of international jurists, the court denied the existence of the Act of State doctrine as a rule of customary international law. 11 Second, and without recognizing several counterargu8 O n l y the claim of Keßler concerning the composition of the bench that convicted h i m was held inadmissible because of procedural defects. See judgment (note 1), 42. 9

Judgment (note 1), 42. See 18 BVerfGE 85, 92; 62 BVerfGE 189, 192 - 193; 89 BVerfGE 1,

14. 10 Articles 25 and 2 para. 1 of the German constitution. For this interpretation of Articles 25 and 2 para. 1 see 77 BVerfGE 170, 232; Christian Tomuschat , Die staatsrechtliche Entscheidung für die internationale Offenheit, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts, vol. VE, § 172, Rdnr. 18. 11

Judgment (note 1), 45. Earlier judgments include 92 BVerfGE 277, 322; 39 BGHSt 1, 5. See also Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, vol. 1/1, 2nd ed., 1989,

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Stephan Hoe and Christian Tietje

ments, 1 2 the court reaffirmed its o p i n i o n that customary international l a w rules o n i m m u n i t y o f State officials do n o t apply t o criminal proceedings once the relevant State no longer exists. 13 As a supporting argument the court referred t o the Reunification Treaty between the t w o German States 14 as evidence o f the w i l l o f the contracting parties t o deny i m m u n i t y i n the legal order o f unified Germany.

2. The ex post facto Prohibition

of Article

103 para. 2 of the Constitution

T h e larger p o r t i o n of the court's decision consists o f arguments concerning the legality o f the l o w e r court's r u l i n g w i t h respect t o the p r o h i b i t i o n against ex post facto measures i n A r t i c l e 103 para. 2 o f the c o n s t i t u t i o n . 1 5 T h e court began b y summarizing the most important legal considerations that f i n d expression i n A r t i c l e 103 para. 2. According to numerous judgments of the c o u r t 1 6 the p r o h i b i t i o n against ex post facto measures is an essential element of a legal system under the rule o f l a w (Rechtsstaat .u The court held that A r t i c l e 103 para. 2 i n its narrower sense refers t o the principle o f legal certainty (Rechtssicherheit)

as a prerequisite for any State action

489; Stephan Hobe/Christian Tietje , Government Criminality and Human Rights, German Yearbook of International Law, vol. 37, 1994, 386, 405 w i t h further references. 12

Hobe/Tietje

(note 11), 403.

13

Judgment (note 1), 45 (reaffirming BVerfGE, Order of 21 February 1992 — 2 BvR 1662/91, reprinted in: Deutsch-Deutsche Rechts-Zeitschrift, vol. 3, 1992, 216). 14 Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity, 31 August 1990, 30 I L M 457, Articles 17, 18. 15

Article 103 para. 2 of the German constitution reads: " A n act may be criminally punished only if the criminality of the act was established by law before the act was committed." ("Eine Tat kann nur bestraft werden, wenn die Strafbarkeit gesetzlich bestimmt war, bevor die Tat begangen wurde.") 16

For a comprehensive assessment of the jurisprudence of the court concerning Article 103 para. 2 see Eberhard Schmidt-Aßmann (note 4), Art. 103 Abs. II, Rdnr. 135 et seq.; Hans D. Jarass/Bodo Pieroth , Grundgesetz für die Bundesrepublik Deutschland, 3rd ed., 1995, Art. 103, Rdnr. 40 et seq. 17

The German legal term Rechtsstaatsprinzip is not easily translated into English, but corresponds generally to notions of justice and due process of law. The Rechtsstaatsprinzip finds expression i n the German constitution in Article 20, which reads: (1) The Federal Republic of Germany is a democratic and social state. (2) A l l state power derives from the people (Volk). This state power is exercised by the people (Volk) through elections and voting and through the legislative organs, the executive power and the jurisprudence of the courts. (3) Legislative action is bound by the constitutional order; executive power and the jurisprudence of the courts are bound by statutes and law (Gesetz und Recht). (4) A l l Germans have the right to resist any that undertake to eliminate this order, if other measures are not available.

Judgment of the German Federal Constitutional Court of 24 October

1996529

towards individuals, and that the Rechtsstaatsprinzip as expressed in Article 20 paras. 1 through 3 of the constitution refers to individual justice. 18 Thus individual justice and legal certainty as two elements of the Rechtsstaatsprinzip are the main principles governing the prohibition against ex post facto measures.19 The court emphasized generally the importance of the prohibition against ex post facto measures in a society organized under the Rechsstaatsprinzip and stated that this importance requires formal application (strikte Fomalisierung) of the ex post facto prohibition of Article 103 para. 2. The court in this sense termed the prohibition against ex post facto measures "absolute". 20 The court analyzed the relationship of Article 103 para. 2 to rules of 'justification'. The court held that justifications for individuals under criminal law, e.g. the right to self-defense, fall within the scope of the prohibition against ex post facto measures. Thus a justification in penal law in force at the time the act is committed must be taken into account. However, as justifications are not always and not necessarily contained in written law — they may also derive from custom — the question arises whether such a broad interpretation of the prohibition against ex post facto laws is possible or appropriate. The court did not decide this question as in the court's view the defendants acted under circumstances requiring a restrictive scope of Article 103 para. 2. The restrictive scope of Article 103 para. 2 was supported w i t h the following argumentation. First, the prohibition against ex post facto measures contained in the German constitution is designed to cover activities under the criminal law of Germany within the context of Germany's legal system as a Rechtsstaat. Legal certainty in the sense of Article 103 para. 2 thus refers to criminal law enacted by a legislative body w i t h democratic authorization and enforced by State organs as part of a system of separation of powers; an individual's confidence therein and reliance thereon that written and unwritten law is subsidiary to the prohibition against ex post facto measures is valid only when the law is that of a Rechtsstaat. The court stated that this was not the case in East Germany. 21 Second, and this is the central and more important portion of the judgment, the court declared the constitutional basis for the prohibition against ex post facto measures invalid if a State criminalizes homicide but enacts justifications that involve "serious violation" of human rights standards recognized by the international com-

18

45 BVerfGE 187, 246; Friedrich E. Schnapp, in: Ingo v. Münch/Philip Kunig (eds.), Grundgesetz-Kommentar, vol. 1, 4th ed., 1994, Art. 20, Rdnr. 26; Klaus Stern , Das Staatsrecht der Bundesrepublik Deutschland, vol. 1, 2nd ed., 1984, 796 et seq. 19

Judgment (note 1), 47.

20

Id., 48; 30 BVerfGE 367, 385.

21

Judgment (note 1), 50.

34 G Y I L 39

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Stephan Hobe and Christian Tietje

munity. 22 The court held that in enacting such rules of justification, e.g. the different orders and laws justifying the border shootings, a State commits extreme injustice, which may exist only as long as the State exists; in such a situation, justice — which includes respect for international human rights — prevails over the principle of legal certainty as expressed in Article 103 para. 2. The court referred to decisions of German courts concerning criminal acts committed under the Nazi regime. 23 In the 1950s the Federal Court for Criminal Matters decided several cases based on the argument that law may lose its character as law if it is extremely unjust, i.e. if it violates the core of law recognized by all civilized nations. 24 Thus in cases involving violations by the State of legal standards recognized by the community of nations the prohibition against ex post facto measures is not valid; it is to be presumed that each person knows whether his or her activity violates this core area of law (Kernbereich des Rechts). 15 The court then turned to the cases before it and the lower court decisions. The analysis of whether the lower court decisions met the constitutional standard prescribed by the court is rather short. The court simply declared the lower court's judgments to be in conformity with the German constitution and referred — as a supporting argument — to its judgment of 7 July 1973 concerning the constitutionality of the German-German Treaty of Friendship of 1972.26 In this judgment the court held the practice of East German border authorities and State officials w i t h regard to the German-German border to be illegal and inhumane. 27 The court rejected arguments based on the undisputed legitimacy of government restrictions on the right to life and the right to leave one's State as long as the restriction is not arbitrary, 28 as established e.g. in the International Covenant on Civil 22

Id.

23

For a comprehensive account see Hobe/Tietje

(note 11), 416 et seq.

24

2 BGHSt 234, 237. See also., e.g., 2 OGHSt 231; 1 BGHSt 391, 399; 2 BGHSt 173, 177; 2 BGHSt 234, 239; 3 BGHSt 110, 128; 3 BGHSt 357, 362 et seq.; 3 B G H Z 94, 107. 25

2 BGHSt 234, 239. The Federal Constitutional Court has never decided a criminal case based on this argument. However, in several early decisions the court at least indicated a reasoning similar to that of the Federal Court for Criminal Matters. See 3 BVerfGE 225, 232; 6 BVerfGE 132,198 et seq.; 6 BVerfGE 389, 414 et seq.; 23 BVerfGE 98, 106; 54 BVerfGE 53, 67 et seq. I n the instant judgment the court referred to all of these decisions without explicitly clarifying whether it was upholding them. 26

36 BVerfGE 1. For more on this decision and the legal status of Germany from 1949 to 1990 see Rudolf Bernhardt, Die deutsche Teilung und der Status Gesamtdeutschlands, in: Isensee/Kirchhof (note 10), vol. I, § 8, Rdnr. 27 et seq. 27 28

36 BVerfGE 1, 35.

For an assessment of arbitrariness in international human rights law see Stephan Hobe/ Christian Tietje, Schießbefehl an der DDR-Grenze und ins cogens, Archiv des Völkerrechts, vol. 32, 1994, 130, 143 et seq. w i t h further references; Hobe/Tietje (note 11), 412 et seq.

Judgment of the German Federal Constitutional Court of 24 October 1996

531

and Political Rights (Article 6 para. 1 and Article 12 para. 2) and in the legal order of the Federal Republic of Germany. 29 The court rejected the argument because it found that the practice on the German-German border demonstrated that East Germany subordinated the right to life to the purely political interest of preventing the crossing of the border, which constituted, in the words of the court, an "extreme injustice". The court also addressed the argument that, if the justification in East German law concerning the shooting deaths at the inter-German border was invalid because of a violation of fundamental justice, there is still no basis for criminal liability as the lack of justification does not eo ipso mean that the State officials or the border guards have committed a punishable offense. Some constitutional and criminal law scholars have made this argument; in their view, there is no legal basis for criminal liability for the shooting deaths on the German-German border. 30 The court was not persuaded by this argument as the legal order of East Germany recognized a comprehensive prohibition against murder and manslaughter (sections 112 and 113 of the Criminal Code of the German Democratic Republic). The court held these provisions indicate that homicide was a crime as long as it is not legally excused.31 3. Other Constitutional Provisions The third portion of the decision concerned several other constitutional law claims. The court rejected most of the claims with the procedural argument that it may not review lower court judgments with regard to questions on the interpretation and application of criminal law. 32 The court considered the possibility of a violation of the principle nulla poena sine culpa with regard to the individual border guard. This principle, the court noted, has its basis in the dignity of each human being as protected by the German constitution (Article 1 para. 1) and more generally by the Rechsstaatsprinzip. 33 It requires inter alia that a person accused of a crime have the capacity to contemplate 29

Gesetz über den unmittelbaren Zwang bei Ausübung öffentlicher Gewalt durch Vollzugsbeamte des Bundes, BGBl. 1 1961, 165 et seq. 30

The court referred to Arthur Kaufmann, Die Radbruchsche Formel vom gesetzlichen Unrecht und vom übergesetzlichen Recht in der Diskussion um das i m Namen der D D R begangene Unrecht, Neue Juristische Wochenschrift, 1995, 81, 84; Bodo Pieroth, in: Starck/Berg/ Pieroth (note 3), 91, 102 et seq. 31

Judgment (note 1), 55.

32

Id., 57 - 59.

33

Id., 59 (referring to 9 BVerfGE 167, 169; 86 BVerfGE 288, 313). See also, e.g., 20 BVerfGE 323, 331; 57 BVerfGE 250, 275; 58 BVerfGE 159, 163; 80 BVerfGE 244, 255; Jarass/Pieroth (note 16), Art. 20, Rdnr. 70.

34*

532

Stephan Hoe and Christian Tietje

the injustice of the act committed. Although the court stated that this requirement must be considered carefully if the person accused of a crime has been raised and educated in a completely different legal and social system,34 the court stated that this does not eo ipso mean there is a legal excuse for a defendant that has lived under a totalitarian system.35 Rather, the rule of law requires considering all possibilities that may negate individual culpa. The court held that it was not in a position to review the lower court decision that this requirement was fulfilled. The court was more interested in the question whether the individual border guard was legally excused for the shooting deaths because he acted under military orders. According to the applicable statutory law 36 such a legal excuse is not allowed if the illegality of the act committed is manifest to the average addressee of the military order. 37 The court stated that obvious illegality may not be assumed merely because the order involved a serious violation of human rights. Such an assumption ignores the special circumstances of the totalitarian system in which the border guards were raised and educated. The court however found the shootings manifestly illegal in that the border guards used rapid-fire automatic weapons to kill unarmed fleeing persons. The court held, in conformity with the lower courts, that such a cruel and inhumane act is manifestly illegal even to a person raised and educated in a totalitarian system.38 I I I . International Law Considerations Most aspects of the problematic issue of the recent prosecution of the government criminality that occurred in East Germany have been analyzed in a previous volume of the German Yearbook. 39 However, the importance of the judgment of the court with regard to the difficult question of treating the past in unified Germany and with regard to general aspects of jurisprudence and international law makes it worthwhile to analyze portions of the judgment in more detail.

34

Judgment (note 1), 60.

35

Id. (referring to 54 BVerfGE 100, 111).

36

Section 5 para. 1 Wehrstrafgesetz of the Federal Republic of Germany and section 258 Strafgesetzbuch of the German Democratic Republic. 37

39 BGHSt 168, 188 et seq.

38

Judgment (note 1), 62 et seq.

39

Hobe/Tietje

(note 11), 386 et seq.

Judgment of the German Federal Constitutional Court of 24 October 1996

533

1. Act of State Doctrine Despite the special inter se character that according to a previous judgment of the Federal Constitutional Court 4 0 determined the relationship between the two German States — the German Democratic Republic and the Federal Republic of Germany — those two entities were States in international law. The character of their relationship was therefore primarily governed by international law, modified by and intermingled with legal rules that expressed the special character of the relationship. It is in this context that the accused members of the National Defense Council raised the argument of immunity from the jurisdiction of the courts of reunified Germany, which argument the court convincingly rejected. As noted by the court, the stipulations of the Reunification Treaty 41 do not allow for exclusion of government officials from later judicial treatment. Articles 17 and 18 indicate the intent of the treaty partners to become involved with investigations of past injustices.42 More importantly, as the court correctly held, there is no customary law value to the so-called Act of State doctrine. The doctrine originated in the United States and has been applied primarily in the context of foreign expropriations. The United States Supreme Court reached the classic formulation: Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country w i l l not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.43

The Act of State doctrine thus was conceived to involve in essence territorially based State sovereignty and jurisdiction and was restricted to circumstances involving property situated in an expropriating State's territory. 44 In Sabbatind 45 the United States Supreme Court ruled on the compatibility of Cuban expropriations w i t h international law. The court emphasized that the Act of State doctrine is neither a rule of international law nor a binding rule of American constitutional law but rather an expression of judicial self-restraint. 46 Due to modifications it is difficult to de-

40

36 BVerfGE 1,23 et seq.

41

See note 14.

42

Judgment (note 1), 46.

43 Underbill v. Hernandez , 168 U.S. 250, 252 (1897). See also Lassa Oppenheim/Hersch Lauterpacbt/Robert Jennings/Arthur Watts , International Law, vol. I, 1992, § 112; Dahm/Delbrück/Wolfrum (note 11), 447 et seq. 44

J. P. Fonteyne , Act of State, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. 1, 1992, 17. 45

Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398 (1964).

46

Id., 421, 423: ("international law does not require application of the doctrine"). As to the

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Stephan Hoe and Christian Tietje

termine the exact scope of the doctrine. Also, it is unclear whether the doctrine can be applied in cases of serious violations of human rights committed by State organs, or in antitrust cases.47 The doctrine has not been accepted by European courts. Thus despite its applicability to some cases48 it is correct to assume, as the Federal Constitutional Court did, that this doctrine does not possess the quality of customary international law. 49 2. Political Leaders as Criminals A second aspect worth noting concerns the convictions of Keßler, Streletz and Alhrecht as perpetrators of crimes committed on the German-German border. The Federal Constitutional Court upheld the judgment of the Federal Court for Criminal Matters according to which the members of the National Defense Council of East Germany are responsible for the shooting deaths on the border. 50 Though the Federal Constitutional Court's arguments concerning the conviction of the members of the National Defense Council focus only on questions of the applicable law, the judgment is evidence for a more general development in the international community. The statute of the War Crimes Tribunal for the Former Yugoslavia demonstrates the willingness of the international community to extend individual criminal responsibility for serious human rights violations to political leaders. The relevant provision of the statute is Article 7 para. 1, which reads: " A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime." 51

Hickenlooper Amendment to the Foreign Assistance Act (22 U.S.C. § 2370(e)(2)), a reaction to this judgment, which prevents courts from using the Act of State Doctrine to give effect to a property seizure by a foreign State in violation of international law, see Robert E. Hollweg, The Sabbatino Amendment: Congressional Modification of the American Act of State Doctrine, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1969, 316. 47

See, e.g., Dahm/Delbrück/Wolfrum to the Marcos case.

(note 11), 489 et seq. w i t h further references inter alia

48

See Oppenheim etal (note 43), § 112 for the respective references.

49

Judgment (note 1), 45. See also Dahm/Delbrück/Wolfrum

(note 11), 490.

50

For an analysis from the perspective of criminal law see Claus Roxin , Note to the Judgment of the German Supreme Court for Criminal Matters of 26 July 1994, Juristenzeitung, 1995,49. 51 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32 I L M 1192.

Judgment of the German Federal Constitutional Court of 24 October

1996535

The premise for the conviction of the members of the National Defense Council for the shooting deaths on the German-German border and Article 7 para. 1 of the statute is the same. Neither legal statement differentiates according to the status of the person accused as long as involvement in a serious violation of human rights can be proved. This follows from the idea of the effective protection of human rights. 3. The Central Importance of International Human Rights Guarantees According to the Federal Constitutional Court the principle of justice as part of German constitutional law contains the requirement to respect international human rights. 52 It is thus consequent for the court to refer to international human rights in order to declare the shooting deaths on the German-German border extremely unjust. This section analyzes the implications of this holding. a) General Aspects of the Development of International Human Rights Protection and Implications for National Legal Systems Certainly the most important section of the judgment treats the influence and importance of human rights. These form the framework against which even national law must be measured. More precisely: the Federal Constitutional Court reiterated and emphasized the conclusion of the Federal Court for Criminal Matters that the international human rights standard incorporated and envisioned in the two international human rights covenants determines the degree of internationalization, which allows the conclusion that a law such as section 27 of the East German border law is invalid. 53 In other words, domestic law that gravely contradicts commonly recognized international legal values is extremely unjust and consequently not law. 54 The question arises whether this statement is justified. Traditionally the relationship between international and domestic law has been regarded from a dualist perspective: international law as law between States is separate from national law. 55 Some constitutions, however, such as the German constitution in Article 25, deviate

52 Judgment (note 1), 51: . . das Gebot materieller Gerechtigkeit, das auch die Achtimg der völkerrechtlich anerkannten Menschenrechte a u f n i m m t , . . . 53

Id., 50.

54

Id.

55 Dahm/Delbrück/Wolfrum (note 11), 98 et seq.-, Oppenheim etal. (note 43), 52 et seq.; Knut Ipsen (ed.), Völkerrecht, 3rd ed., 1990,1071 et seq.-, Alfred Verdross/Bruno Simma, Universelles Völkerrecht, 4th ed., 1984, 53 et seq.

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Stephan Hobe and Christian Tietje

somewhat from this perspective by stating that at least some fundamental principles of customary international law are immediately valid in the national legal order. 56 The protection of human or fundamental rights has long been the exclusive domain of the State.57 Their official recognition, after a precursor in the Magna Carta of 1215, is a recent development that started at the end of the eighteenth century, as evidenced in the French constitution of 1793 and the American constitution. Most of the constitutional struggle in the European States during the nineteenth century concerned the question of recognition of human rights by the executive. A n d it is thus a very recent development, particularly after the atrocities of the Nazi regime in Germany — including genocide, that the international community began not to rely any longer on the State's capacity to internally control and guarantee even a minimum human rights standard. The United Nations Charter, which may be regarded as clear evidence of the w i l l of the international community to become involved in the protection of human rights, 58 stimulated and eventually led to the adoption of the Universal Declaration of Human Rights in 194859 as well as the adoption of the two international human rights covenants of 1966.60 W i t h these covenants, which contain institutional machinery to implement human rights protection and thus opened the door to the internationalization of this protection, the State lost its role as the exclusive protector of fundamental human rights. The character of human rights as an international good causes tension with any conception of State sovereignty. 61 The reason for this tension is that the effective protection of human rights requires effective means of controlling the State's internal conduct, even with regard to its citizens. The internationalization of human rights protection thus has considerably contributed to an ongoing change in the conception of State sovereignty. Sovereignty, which was largely determined by Jean Bodin 62 in the sixteenth century, was (and is) the cornerstone of the modern State.63 It is not, however, a static conception. Signif56 For an account of the importance of Article 25 of the German constitution see Helmut Steinberger , Allgemeine Regeln des Völkerrechts, in: Isensee/Kirchhof (note 10), § 173. 57

See, e.g., Andreas Kohl, Zwischen Staat und Weltstaat, 1969, 2 et seq.

58

See for a recent account of the legal and ethical conception of the United Nations Charter the contributions of Trutz Rendtorff and Klaus Dicke in: Stephan Hobe (ed.), Die Präambel der UN-Charta i m Lichte der aktuellen Völkerrechtsentwicklung, 1997, 9 and 47 respectively. 59

G A Res. 217 (III) of 10 December 1948.

60

International Covenant on Civil and Political Rights, U N Doc. A/6316 (1967) and International Covenant on Economic, Cultural and Social Rights, U N Doc. A/6316 (1967). 61 Jost Delbrück, Menschenrechte i m Schnittpunkt zwischen universalem Schutzanspruch und staatlicher Souveränität, German Yearbook of International Law, vol. 23, 1980, 384. 62

Jean Bodin, Les six livres de la Republique, 1583.

63

See Helmut Quaritsch, Staat und Souveränität, 1970.

Judgment of the German Federal Constitutional Court of 24 October

1996537

icant developments, particularly in international law, have transformed and continue to transform the conception of sovereignty from its absolute origins to 'sovereignty under l a w \ 6 4 As mentioned by the International Court of Justice in the Barcelona Traction case of 197165 and reiterated in the East Timor case of 1995 66 , some ground-rules of the international community possess erga omnes character: they are valid and enforceable against third parties even if third parties have not specifically subscribed to them. Human rights are typical of this core of international law. After the Nuremberg and Tokyo trials it cannot be denied that e.g. genocide is an international crime — the Genocide Convention merely makes this explicit. Thus the impact of international human rights is evident: they serve as a means of evaluating internal State conduct w i t h regard to the human rights of its citizens. I n this context it is worth mentioning that recent practice of the United Nations Security Council indicates that grave human rights violations may justify so-called humanitarian intervention by the United Nations into the jurisdiction of States.67 It is thus consistent to use the international human rights standard to evaluate the validity of national law. A n d the conclusion is correct: it is contrary to human dignity and thus contrary to the fundamental human rights standard if national law mandates the shooting of persons only because they desire to leave their home State.68 Within this framework of increasingly transparent statehood East Germany was barred from enacting laws and regulations at will. A l l law had to meet the international minimum standard of human rights. It is moreover consequent that law con-

64

See, e.g., Otto Kimminich, Einführung in das Völkerrecht, 5th ed., 1993, 106 et seq.

65

1970 ICJ 32.

66

1995 ICJ 90, 102.

67 See for a description of this recent United Nations Security Council practice Heike Gading y Der Schutz grundlegender Menschenrechte durch militärische Maßnahmen des Sicherheitsrats — Das Ende staatlicher Souveränität?, 1996, 126 et seq. w i t h further references. 68 The court arrived at this result by implicitly applying the Radbruch formula: The conflict between justice and legal certainty might be resolved thus. Positive law established through concrete formulation and by the legislative power is superior, even if by its content it is unjust or does not achieve its purpose, unless the contradiction between positive law and justice reaches such an intolerable level that the law as 'invalid law' must yield to justice. Gustav Radbruch, Gesetzliches Unrecht und übergesetzliches Recht, Süddeutsche Juristen-Zeitung, vol. 1, 1946, 105, 107 — in German: Der Konflikt zwischen der Gerechtigkeit und der Rechtssicherheit dürfte dahin zu lösen sein, daß das positive, durch Satzung und Macht gesicherte Recht auch den Vorrang hat, wenn es inhaltlich ungerecht und unzweckmäßig ist, es sei denn, daß der Widerspruch des positiven Rechts zur Gerechtigkeit ein so unerträgliches Maß erreicht, daß das Gesetz als 'unrichtiges Recht* der Gerechtigkeit zu weichen hat.

538

Stephan Hobe and Christian Tietje

tradicting fundamental justice is void ab initio .69 The problem of the prohibition against retroactive punishment, as contained in Article 103 para. 2 of the German constitution, may be solved from two directions. One may conclude, as the Federal Constitutional Court did, 70 that justice is concretized by the international human rights standard, and measured against that standard the laws and the practice of the border regime were unjust and therefore not law. It then follows that such unjust law may not validly be relied on, and that thus no conflict with the prohibition against retroactive punishment as a constitutional principle arises.71 O r one may conclude that the systematic killing of fleeing citizens in contravention of fundamental human rights violates jus cogens, erga omnes international law norms. Jus cogens overrides national law. It may not be contradicted by a principle prohibiting retroactive punishment under the German constitution. 72 According to Article 103 para. 2 of the German constitution: " A n act may be criminally punished only if the criminality of the act was established by law before the act was committed." 73 This wording indicates the strict and absolute character of the two main dimensions of the provision. First, the prohibition of Article 103 para. 2 refers to ex post facto legislation, i.e. to law that retrospectively changes the consequences of individual acts. Second, Article 103 para. 2 contains the principle lex scripta. This principle of constitutional law requires written law to declare individual acts criminal offenses. 74 To clarify the importance of the court's judgment on the border shootings it is necessary to note that to this point Article 103 para. 2 has never been interpreted in the light of international human rights standards. A number of constitutional and criminal law jurists in Germany thus refused to follow the Federal Court for Criminal Matters, 75 which based its holding on the compatibility of the conviction of the 19

See for a theoretical account of this question Robert Alexy, Mauerschützen — Z u m Verhältnis von Recht, Moral und Strafbarkeit, 1993, 33. According to Alexy the adoption of the Radbruch formula does not retroactively change the law, but states the respective state of the law at the time the crime was committed. 70

See judgment (note 1), 53 et seq.

71

See id., 50.

72

See Hobe/Tietje

73

See note 15.

74

(note 28), 148; Hohe/Tietje

(note 11), 409 et seq.

For these two dimensions of Article 103 para. 2 see Jarass/Pieroth Rdnr. 43, 52 w i t h further references.

(note 16), Art. 103,

75 Among others, the following scholars have argued that a conviction for shooting deaths on the German-German border violates Article 103 para. 2: Pieroth (note 30), 104; Friedrich Dencker, Vergangenheitsbewältigung durch Strafrecht, Kritische Vierteljahresschrift, 1990, 305; Günther Jakobs, Vergangenheitsbewältigung durch Strafrecht? and Josef Isensee, Der deutsche Rechtsstaat vor seinem unrechtsstaatlichen Erbe, both in: Josef Isensee (ed.), Vergangenheitsbewältigung durch Recht, 1992, 43 and 105 respectively; Gerald Grünwald, Die straf-

Judgment of the German Federal Constitutional Court of 24 October 1996

539

border guards and State officials of East Germany with the prohibition against ex post facto laws essentially on the importance of international human rights guarantees as established e.g. in the Universal Declaration of Human Rights and the two international human rights covenants.76 The relationship between standards of law prescribed under international law and the prohibition against ex post facto law has a long tradition going back to the judgments of Nuremberg and Tokyo. 7 7 The question whether the Nuremberg and Tokyo judgments violated the prohibition against retroactive law was and is the central question concerning the legality of those war tribunals. In the international fora, Principle I I of the Nuremberg principles as formulated in 1950 by the International Law Commission addressed this conflict by stating that "the fact that international law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law." 78 The underlying ideas of Principle I I have been confirmed in the European Convention on Human Rights and the two international human rights covenants. Article 7 para. 2 of the European Convention on Human Rights excludes from the prohibition against retroactive measures an act that was considered criminal at the time it was committed "according to the general principles of law recognised by civilised nations." 79 Similar to this provision but without the Eurocentric reference to 'civilized' nations, the International Covenant on Civil and Political Rights formulates in Article 15 para. 2: Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

It is well documented in the travaux preparatoires that both Article 7 para. 2 of the European Convention on Human Rights and Article 15 para. 2 of the Covenant on Civil and Political Rights were intended by the drafters to refer to the Nuremberg rechtliche Bewertung in der D D R begangener Handlungen, Strafverteidiger, 1991, 36; Reinhart Merkel, Politik und Kriminalität, in: Siegfried Unseld (ed.), Politik ohne Projekt?, 1993, 315. 76

39 BGHSt 1, 16 et seq.

77

For assessments of the Nuremberg and Tokyo trials and further references see Hans Heinrich Jescheck, Nuremberg Trials and Bert V. A. Röling, Tokyo Trial, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (note 44), vol. 4, 50 and vol. 4, 242 respective-

ly78 79

Yearbook of the International Law Commission, vol. II, 1950, 379.

Article 7 para. 2 of the European Convention on Human Rights as a whole reads as follows: "This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations."

540

Stephan Hobe and Christian Tietje

principles and the legality of the war tribunals. 80 However, the significance of these provisions for the judgment of the Federal Constitutional Court must be seen in relation to another historical fact. When Germany ratified the European Convention on Human Rights in 1952 it made a reservation to the convention according to which "[West Germany] will apply the provisions of Article 7 para. 2 of the convention only within the limits of Article 103 para. 2 of the constitution of the German Federal Republic." 81 The reason for this reservation can be found in the documents concerning the ratification debate in the German parliament. The Foreign Relations Committee argued for the quoted reservation because of the reference in Article 7 para. 2 to 'general principles of law\ In the view of the committee 'general principles' refers only to aspects of a 'metalegal' and 'moral' character that could not form an exception to the important prohibition against ex post facto laws. Any exception to Article 103 para. 2, the committee argued, could not be tolerated, especially with regard to the terrible experience of the perversion of this prohibition in the years of the Nazi regime. 82 It can be doubted whether this interpretation of the committee on the meaning and function of 'general principles of law' is convincing. The committee seemed to disregard the fact that the words of Article 7 para. 2 of the European Convention on Human Rights were taken from Article 38 para. 1 lit. c) of the Statute of the International Court of Justice, with roots in a similar provision in the Statute of the Per-

80 Reference to the travaux preparatoires can be found in Mark J. Bossuyt , Guide to the travaux preparatoires of the International Covenant on Civil and Political Rights, 1987, 330 et seq. See also Manfred Nowak, UNO-Pakt über bürgerliche und politische Rechte und Fakultativprotokoll, 1989, Art. 15, Rdnr. 18; Peter van Dijk/Godfried J. H. van Hoof Theory and Practice of the European Convention on Human Rights, 2nd ed., 1996, 168; Louis-Edmond Pettiti/Emmanuel Decaux/Pierre-Henry Imbert, La Convention Europienne des Droits de l'Homme, 1995, 299; Jochen A. Frowein/Wolfgang Peukert, EMRK-Kommentar, 1985, Art. 7, Rdnr. 8. 81

Bekanntmachung über das Inkraftreten der Konvention zum Schutze der Menschenrechte und Grundfreiheiten vom 15. Dezember 1953, BGBl. E 1954, 14. 82

Schriftlicher Bericht des Ausschusses für das Besatzungsstatut und auswärtige Angelegenheiten (7. Ausschuß) über den von den Fraktionen der C D U / C S U , SPD, FDP, DP, BP und des Zentrums eingebrachten Entwurf eines Gesetzes über die Konvention zum Schutze der Menschenrechte und Grundfreiheiten, Bundestagsdrucksache N r . 3338 (1. Wahlperiode), 5: M i t dem Ausdruck 'Rechtsgrundsätze' begibt sich die Konvention in den Bereich des Metajuristischen und lediglich Moralischen. Da das deutsche Volk mit dem Abweichen von dem Rechtssatz nulla poena sine lege während der nazistischen Diktatur die schlimmsten Erfahrungen gemacht hat und der Parlamentarische Rat in Art. 103 Abs. 2 G G diesen Rechtssatz deshalb wieder zur unbestrittenen Anerkenntnis bringen wollte, besteht nach Meinung des Ausschusses ein imbedingtes Interesse daran, diesen Rechtssatz in keiner Weise einzuschränken.

Judgment of the German Federal Constitutional Court of 24 October 1996

541

manent Court of International Justice83 and several formulations in decisions of arbitral tribunals in the nineteenth century. 84 Though some aspects of the interpretation of Art. 38 para. 1 lit. c) of the ICJ Statute are subject to controversy 85 there is no doubt as to the legal character of the 'general principles of law\ The development of international human rights protection since World War I I demonstrates the function of general principles of law beyond a purely ' metalegal' or 'moral* character. Thus, Article 7 para. 2 of the European Convention on Human Rights has shifted from its historical intention to underscore the importance of a certain morale internationale for the peaceful development of the international system as a philosophical concept to principles and rules of black-letter law. 86 The judgment of the Federal Constitutional Court concerning the border shootings is evidence for the recognition of this development in State practice. The court underscored the central importance of international human rights in the domestic sphere without referring to aspects of the relationship between national and international law. The central argument of the court with respect to the constitutional law rule to respect international human rights as part of the national law principle of justice essentially repeats the underlying idea of Article 7 para. 2 of the European Convention on Human Rights. In this regard one may interpret Article 7 para. 2 beyond its wording as not only referring to rules of international law prescribing individual criminal responsibility, e.g. crimes against humanity or genocide,87 but to fundamental principles in the field of human rights. 88 It is of course not an easy undertaking to determine which human rights possess the character of fundamental rights; however, the human rights referred to by international jurists so far, the right to life and to the physical and psychological integrity of the person, the prohibition against slavery and torture and the prohibition against racial discrimination, 89 indicate the identity of the concept of fundamental human rights in the sense of Article 7 para. 2 with jus cogens norms. 90 The Federal Constitutional Court's judgment on the border shootings is thus a recognition of the concept of general principles of law referred to in Article 7 para. 83

Art. 38, Statute of the Permanent Court of International Justice, LNTS, vol. VI, 390.

84

Ian Brownlie , Principles of Public International Law, 4th ed., 1990, 15 et seq.; Wolf Heintschel von Heinegg , in: Ipsen (note 55), § 17, Rdnr. 6 et seq. 85

Brownlie (note 84), 15 et seq. w i t h further references.

86

Pettiti/Decaux/Imbert

(note 80), 300.

87

For the international criminal responsibility of the individual see Brownlie (note 84), 561 et seq. w i t h further references. 88

Van Dijk/van

89

Id. y 367.

90

Hoof (note 80), 366.

For a detailed analysis of jus cogens see Lauri Hannikainen , Peremptory Norms (jus cogens) i n International Law, 1988.

542

Stephan Hoe and Christian Tietje

2 of the European Convention on Human Rights. The court's reference to international human rights as an element of fundamental justice is therefore not only evidence of important State practice with regard to the relationship between the prohibition against ex post facto laws and international human rights, but also an argument for the elimination of the German reservation to Article 7 para. 2. Today the opinion of the German parliament of 1952 with regard to the 'metalegal' or 'moral' character of general principles of law in the international sphere may be regarded as obsolete. Conclusion The judgment of the Federal Constitutional Court may be characterized as a convincing termination to a longstanding legal and political debate. It also paves the way for fresh arguments concerning one possible way of dealing w i t h totalitarian regimes, a process in which public international law in general and international human rights play an important role. The judgment embodies two important developments. First, the court by emphasizing the importance of human rights implicitly follows a monist view as to the relationship between national and international law. The court's emphasis on the importance of human rights through its statement that the principles of justice demand respect for international human rights evidences the inseparability of national and international legal systems — at least with regard to human rights. In this field States have lost the exclusive competence to determine how they incorporate international human rights into the national legal order. Second, this development of international law has important repercussions on the relationship between natural and positive law. By referring to the human rights covenants, i.e. positive law, when describing the essence of principles of justice, the court makes evident that at least some natural law has found international recognition. This renders obsolete argumentation concerning legal uncertainty with regard to the determination of natural law.

Annex Headnotes to the German Decision of 24 October 1996 (Translation by Eric fohnson ) 1. a) The prohibition against retroactive measures of Article 103 para. 2 of the German constitution is absolute and only through a formal application (strikte Formalisierung ) fulfills its role as guarantor of a government under law and of fundamental rights. b) The prohibition against retroactive measures must take into account any legal justification existing at the time the action is committed even if the justification is no longer valid in

Judgment of the German Federal Constitutional Court of 24 October

1996543

the instant criminal proceedings. Whether and to what extent Article 103 para. 2 also protects reliance in the continued validity of unwritten justifications is not conclusively determined. 2. The formally applied prohibition against retroactive measures of Article 103 para. 2 has its legal basis in the reliance given to criminal statutes enacted by a democratic legislative body that is bound to respect fundamental rights. 3. N o such basis for reliance exists if the governmental power in cases of heinous crimes (schwersten kriminellen Unrechts ) excludes punishment through justifications created in that the governmental power goes beyond written law and instigates and favors such injustice, and commits thereby a serious breach of human rights generally recognized by the international community. The formally applied protection of reliance in Article 103 para. 2 must then be inoperative.

The German Federal Constitutional Court's Decision on Asylum Law By Vicki Traulsen

O n 14 May 1996, the German Federal Constitutional Court came down w i t h its long-awaited decision regarding the 1993 amendment of German asylum law. 1 The judgment had been announced for February 1996 but had been postponed until May — an indication that the decision was not an easy one for the court. This Report discusses the decision. I. Background Prior to the 1993 amendment, the German constitution (Grundgesetz) had provided in Article 16 para. 2 cl. 2, "Politically persecuted persons enjoy a right to asylum." This rather broad and unrestricted right to asylum had been introduced at least partially in view of Germany's responsibility for the persecution of Jewish persons and others under the Third Reich. The executive branch determined whether the requirements for asylum were met in individual cases.2 The number of asylum applications increased steadily over the years. After the number of asylum applications jumped to 107,818 in 1980, changes were made to the executive and judicial procedures. 3 With the end of the Cold War and with the opening of the borders of the Eastern European countries, another substantial increase in applications for asylum ensued. The numbers went far beyond those that had initiated the changes to the law in the 1980s. In 1992 for example applications for 438,191 persons were submitted. 4 The Federal Authority for Refugee Affairs (Bundesamt für Flüchtlingsfragen ) was overburdened with work and the time required to decide individual applications increased. If their application was rejected by the Federal Authority for Refugee Affairs, asylum seekers regularly applied to 1

BGBl. 1 1993, 1002.

2

See Otto Kimminich, Asylrecht, 1968, 115 et seq.

3

Günter Renner, Was ist vom deutschen Asylrecht geblieben?, Zeitschrift für Ausländerrecht und Ausländerpolitik (ZAR), 1996, 103, 103. 4

See Hans-Ingo von Pollern, Die Entwicklung der Asylbewerberzahlen i m Jahre 1995, Z A R , 1996, 86.

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administrative courts and as a last resort to the Federal Constitutional Court for relief. During the time of the appeals, they enjoyed a temporary right to stay. During the time for the initial decision and any appeals, the applicants had to be housed and sustained, which was within the responsibility of the German Länder , which had difficulty finding housing and providing the necessary finances. A highly emotional political discussion on asylum law ensued. In December 1992, the major German political parties agreed on a draft law to amend the constitution 5 that was enacted w i t h only slight changes in May 1993 and entered into force on 30 June 1993.6 The law amended the constitution by replacing the right to asylum in Article 16 with Article 16(a), which restricts the right to asylum. Article 16(a) consists of five paragraphs. Paragraph 1 is identical to former Article 16 para. 2 cl. 2, which contained a general right to asylum. Paragraph 2 concerns safe third States. It stipulates that persons entering Germany from European Community States or other safe third States, the latter defined as countries applying the Geneva Convention on the Status of Refugees (GCSR)7 and the European Convention on Human Rights (ECHR) 8 , have no right to asylum. Under Paragraph 2 the legislature is to determine which States are to be considered as applying the GCSR and the ECHR. Also, under paragraph 2 courts are forbidden to interfere with deportation or exclusion of an asylum seeker to a safe third State. Paragraph 3 concerns safe States of origin. It authorizes the legislature to establish — based on the legal situation, the legal practice and the general political situation of the State — a list of States for which there is to be a presumption that political persecution or inhuman or degrading treatment or punishment do not occur in that State. Paragraph 3 states that asylum seekers may overcome the presumption by providing evidence in their particular case. Paragraph 4 limits the ability of courts to order a stay of deportation for persons whose asylum applications have been determined 'obviously unfounded* (offensichtlich unbegründet). Under paragraph 4 to order a stay of deportation a court must have serious doubts as to the legality (ernstliche Zweifel an der Rechtmäßigkeit) of the administrative decision to deny asylum.

I I . The Decision of the Federal Constitutional Court The Federal Constitutional Court on 14 May 1996 in three separate determinations interpreted and investigated the constitutionality of Article 16(a) and implementing statutes.9 5 6

Blätter für deutsche und internationale Politik, 1993, 114 et seq. See note 1.

7

189 U N T S 137.

8

213 U N T S 221.

9

Decision 2 BvR 1983/93 — 2 BvR 2315/93 treats the constitutionality of Article 16(a)

35 GYIL 39

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Vicki Trauisen

The Federal Constitutional Court under German law has the power to declare constitutional amendments unconstitutional. The basis is Article 79 of the constitution, which regulates the procedural (paras. 1 and 2) and substantive (para. 3) requirements for constitutional amendments. Procedurally, inter alia a two-thirds majority of the Bundestag and the Bundesrat is required to amend the constitution. Substantively, Article 79 para. 3 prohibits constitutional amendments that affect the division of the federation into Lander , affect the participation of the Länder in the legislative process or, more importantly for the asylum amendment, infringe the protected objects of Articles 1 (human dignity) and 20 (inter alia the Rechtsstaatsprinzip). A constitutional amendment that infringes the protected objects of Articles 1 and 20 is thus an unconstitutional amendment to the constitution. 10 1. Article 16(a)para . 2 — Safe Third States a) The Cases before the Court Two cases were before the court. One involved an Iraqi national that had traveled from Iraq to Istanbul to Athens and flown by plane from Athens to Germany. She was denied asylum because she had entered Germany from Greece, a safe third State under Article 16(a) para. 2. The other involved an Iranian national that had traveled from Hungary to Austria to Germany. He was denied asylum because he had entered Germany from Austria, also a safe third State under Article 16(a) para. 2.

para. 2 and its scope and interpretation. Decision 2 BvR 1507/93 — 2 BvR 1508/93 treats the scope and interpretation of Article 16 para. 3, as well as the requirements for qualification as a safe State of origin within the meaning of this n o r m Decision 2 BvR 1516/93 treats the question of the constitutionality of the rules on judicial relief provided by Article 16(a) para. 4 as well as that of section 18(a) of the Asylverfahrensgesetz — Statute Regulating Administrative Procedure in Cases of Application for Political Asylum of 27 July 1993, BGBl. I 1993, 1361, as amended 2 August 1993, BGBl. 1 1993, 1442. 10 The procedural basis for the authority of the Federal Constitutional Court to rule on the constitutionality of constitutional amendments is found in Article 93 of the constitution. Under Article 93 para. 1 cl. 2 the court is authorized to review the compatibility of statutes w i t h the constitution and thus may also review a statute amending the constitution for conformity w i t h the constitution. Under Article 93 para. 1 cl. 4(a) the court may decide a claim that an individual's enjoyment of fundamental rights under the constitution has been violated by an act of public authority. If the act of public authority is based on a statute that is based on an amendment to the fundamental rights under the constitution the court may rule not only on the constitutionality of the act of public authority but also incidenter on the constitutionality of the amendment to the constitution.

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b) The Decision of the Federal Constitutional Court aa) Interpretation of Article 16(a) para. 2 According to the court, States should qualify under Article 16(a) para. 2 as safe third States applying the ECHR and the GCSR if they are parties to the conventions and if their authorities are legally bound by them — in particular the authorities are bound not to deport a person to a State without examining whether the person would be in danger of persecution within the meaning of Article 33 GCSR or of torture or inhuman or degrading treatment or punishment within the meaning of Article 3 ECHR. The court added that the legal and factual conditions in the State applying the GCSR and the ECHR should provide the opportunity to have asylum requests genuinely examined. The court stated, however, that a State need not be excluded from being a safe third State merely because it provides deadlines for asylum applications, or merely because it also applies a safe-third-State rule, provided that the principle of non-refoulement is complied with. 1 1 The court discussed the function of the legislature in determining under Article 16(a) para. 2 whether a State is to be considered a safe third State applying the GCSR and the ECHR. The court made two observations on this point. First, if a State is a party to the two conventions and the principle of legality of administration (Gesetzmäßigkeit der Verwaltung ) is observed in law and in practice, the legislature may assume that the conventions are generally applied by the State, unless there is a particular reason to assume that this is not the case. Second, the legislature has discretion in its decision. It has discretion to choose the information on which it bases its decision; the court stated it is sufficient if the decision is based on official statements by national and international organs as well as other available information. The court held the legislature further has discretion in determining whether the State meets the above-mentioned standards on the basis of the information used.12 The court also discussed the definition of 'entering Germany from a safe third State'. According to the court, a person has entered Germany from a safe third State if the person could have found protection under the GCSR in any State through which he or she traveled en route to Germany. The court also held that a person is to be considered as having entered Germany from a safe third State if the person's travel route is not clear, but it would not have been possible to enter Germany without passing through a safe third State.13

11

Compare part C.I.3.b) of the judgment.

12

Part C.I.3.b)dd) of the judgment.

13

Part C.I.4. of the judgment.

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Vicki Trauisen

The court held that Article 16(a) para. 2 is based on the concept of 'normative determination' (Konzept der normativen Vergewisserung) of the safety of the third State, i.e. either by virtue of the constitution — with regard to member States of the European Communities — or by decision of the legislature States are to be regarded as safe third States, as in these countries the GCSR and the ECHR apply; under these circumstances there is no need to guarantee the right to asylum. Consequently, a person within Article 16(a) para. 2 may obtain an individual examination of his or her asylum application only if the claim is based on protection outside the scope of the 'normative determination', e.g. under sections 51 para. 1, 53 or 55 para. 3 of the Ausländergesetz. 14 To do so, the applicant must produce evidence strongly suggesting that his or her exceptional case is not covered by the 'normative determination'. The court held that the requirements for such a showing are very strict. 15 It is important to note that the bar from examination of an asylum request and immediate deportation or exclusion applies only if the applicant is to be returned to a safe third State within the meaning of Article 16(a) para. 2. It does not apply if a person is to be returned to the State of origin or any other State since his or her safety there lies outside the scope of 'normative determination' under Article 16(a) para. 2. N o r does it apply if it is uncertain whether a person has entered Germany from a safe third State. This reasoning also applies to the exclusion of judicial relief under Article 16(a) para. 2 cl. 3: it reaches no farther than the scope of the 'normative determination'. If exceptional impediments to deportation or to exclusion of a foreigner cannot be removed in cooperation between German authorities and those of the safe third State, administrative courts may order a temporary stay of deportation or exclusion on request by the foreigner. 16 bb) Constitutionality of Article 16(a) para. 2 The Federal Constitutional Court investigated the compatibility of Art. 16(a) para. 2 thus interpreted with the principles established in Articles 1 and 20 of the constitution, i.e. inter alia the inviolability of human dignity, the acknowledgement of inviolable and immutable rights and the Rechtsstaatsprinzip. The court held Article 16(a) para. 2 constitutional. It stated tersely that Article 79 para. 3 of the constitution requires only that the principles in Articles 1 and 20 not be infringed, which is not the case if their legal form (Ausprägung/Ausgestaltung is changed for valid rea14 The statute regulating permission to stay, deportation, administrative procedure connected w i t h these etc. — statute of 9 July 1990, BGBl. 1 1990, 1354, as amended 26 June 1992, BGBl. 1 1992, 1126, and 30 June 1993, BGBl. 1 1993, 1062. 15

Part C.I.5. of the judgment.

16

Part C.I.6.b) of the judgment.

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549

sons. The court found that an individual right to asylum is not part of the guarantees of Article 1 para. 1 of the constitution. It held that the material guarantees of Article 1 and the consequences thereof for the German State authority (Staatsgewalt) are to be determined independently. 17 The court left open whether the Rechtsstaatsprinzip includes an inviolable right to individual legal protection against violations of rights by public authority as specified by Article 19 para. 4. It stated that the principle is not infringed by Article 16(a) para. 2 cl. 3 since the deportation of a foreigner to a safe third State without individual examination of his or her case is preceded by the 'normative determination' that the GCSR and the ECHR are applied in that State. cc) Summary and Appraisal Some points of uncertainty are left after the court's decision. One concerns the question of when a person meets the definition of having entered Germany from a safe third State. The criterion the court names as decisive is that a person could have found protection in a third State.18 Does this test require a person to apply for asylum in the third State if e.g. the means of public transportation on which the person travels undergoes border formalities on entering or leaving the safe third State? The answer seems to be 'no' as the court stated that Article 16(a) para. 2 is not applicable if a person travels through a safe State on public transportation without stopping. 19 But when is a stop a stop? What does the court expect of asylum applicants when it states that a person may be required to interrupt his or her journey in a safe third State to apply for asylum? This is a minor problem if compared to the court's terseness in finding that Article 16(a) para. 2 is constitutional. The court's answer to the question whether an individual right to asylum is part of the inviolability of human dignity had been awaited anxiously as it seemed that was the most likely ground on which the court would declare the new law unconstitutional. 20 The court seemed to avoid the problem, especially if compared to its thorough treatment of all other points at issue. The problem is carried over into the court's determinations with respect to Article 16(a) paras. 3 and 4, the constitutionality of which the court treats almost exclusively by referring to its determination with respect to Article 16(a) para. 2.

17

Part C.n. of the judgment.

18

Part C.I.4.a) of the judgment.

19

Id.

20

See Andreas Zimmermann, Das neue Grundrecht auf Asyl, 1994.

550

Vicki Trauisen

2. Article 16(a) para. 3 — Safe States of Origin a) The Cases before the Court Two cases were before the court. Both complainants were citizens of Ghana that had applied for asylum. They claimed that the classification of Ghana as a safe State of origin under Article 16(a) para. 3 was unconstitutional and that they were in danger of political persecution in Ghana. b) Interpretation and Constitutionality of Article 16(a) para. 3 The court held that Article 16(a) para. 3 cl. 2 is a procedural limitation on the right to asylum of Article 16(a) para. 1. According to the court, Article 16(a) para. 3 permits the application of a modified (i.e. abridged) administrative procedure for asylum applicants from safe States of origin. The court stated that Article 16(a) para. 3 establishes a division of tasks between the legislature on the one hand and public authorities and courts on the other; by authorizing the legislature to classify States as safe States of origin under the given criteria, Article 16(a) para. 3 partially conferred the examination of asylum requests previously carried out by the Federal Authority for Refugee Affairs and courts on the legislature. According to the court, the legislature must undertake an abstract, general analysis of the circumstances in a State on the basis of factors relevant to asylum; if a State has been classified as safe by the legislature, the Federal Authority for Refugee Affairs and courts are bound by this determination. The court however also stated that a court may intervene if it finds the classification unconstitutional and that the Federal Authority for Refugee Affairs and the courts are to determine whether individual applicants have provided sufficient factual evidence to rebut the presumption that the State is a safe State of origin in the individual applicant's case.21 For the definition of 'political persecution' under Article 16(a) para. 3, the court referred to its earlier jurisprudence. It stressed that due to different objectives the meaning of 'political persecution' varies between Article 16(a) paras. 1 and 3. In individual cases, regional political persecution within a State will not lead to political persecution in the sense of Article 16(a) para. 1 if there is a place of refuge for the individual in other parts of that State. The absence of political persecution in the sense of Article 16(a) para. 3, however, means that there is no political persecution anywhere within the State in question. The same applies for the political persecution of only a specific group of persons; also in such a case the State cannot be a safe State of origin in the sense of Article 16(a) para. 3. 22 The court also stated that Article 21

Part C.I.2. of the judgment.

22

Part C.E.l.a)aa), bb) of the judgment.

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16(a) para. 3 in requiring the absence of 'inhuman or degrading treatment* goes beyond the guarantees of Article 16(a) para. 1. According to the court, the objective was to include State activities that border on political persecution. 23 The court stated that the legislature has discretion in determining safe States of origin under Article 16(a) para. 3, both in terms of the information on which the legislature bases its decision and in terms of the decision reached. 24 The court stated the legislature is to take into account all reliable sources available, especially reports by German diplomatic missions and relevant international organizations, especially the United Nations High Commissioner for Refugees (UNHCR); the information gathered must be sufficient to provide a reliable impression of conditions in the State.25 The court stated that judicial review is restricted to the justifiability of the classification made by the legislature. The classification may be found unconstitutional only if an overall assessment leads to the conclusion that the legislature did not make the determination for good reason. 26 The court stated that the presumption under Article 16(a) para. 3 concerns only the absence of political persecution in the State. It does not concern the absence of inhuman or degrading treatment or punishment, which relates only to the question whether a State may be counted among the safe States of origin. Thus, the presumption may be rebutted only by a showing of an individually founded fear of political persecution. 27 The court's reasoning in finding the classification of Ghana as a safe State of origin constitutional illustrates the degree of discretion the court accords the legislature in these decisions. The court stated, "The legislature could find that political persecution did not take place in Ghana." The court held that even if there are uncertainties such as those inherent in radical changes of government, e.g. from a military dictatorship to a democratically legitimate civilian government, the legislature is not constitutionally required to make further inquiries to support its determination or to temporarily postpone it. 2 8 The court in finding Article 16(a) para. 3 constitutional merely referred to its decision on the constitutionality of Article 16(a) para. 2. 29

23

Part C.E.l.b) of the judgment.

24

Id.

25

Part C.E.3.b) of the judgment.

26

Part C.II.3.c) of the judgment.

27

Part C.m. 1,2 of the judgment.

28

Part C.V.l.b)aa)(5) of the judgment.

29

Part C.IV. of the judgment.

552

Vicki Trauisen

3. Article 16(a) para . 4 — Judicial Relief and Procedure for Applicants Arriving by Plane The court also interpreted and determined the constitutionality of Article 16(a) para. 4 and ruled on the norms of the Asylverfahrensgesetz regulating the procedure to be followed for applicants arriving by plane enacted to implement Article 16(a) para. 4. a) The Case before the Court The case before the court involved a man that landed at the Frankfurt/Main airport on 1 July 1993 from Lagos, Nigeria, without a passport. He requested asylum on arrival. He was the first person to whom Article 16(a) para. 4 and the implementing Asylverfahrensgesetz concerning procedures for arrivals at airports were applied. He was transferred on arrival to an area of the airport considered extraterritorial in which he was to be detained until it could be determined whether his asylum request was 'obviously unfounded'. b) The Decision of the Federal Constitutional Court aa) Interpretation and Constitutionality of Article 16(a) para. 4 The court held that the effect of Article 16(a) para. 4 is to revoke in part rights derived from the right to asylum, i.e. the right to stay in Germany until a final decision is reached regarding asylum, as under Article 16(a) para. 4 a termination of stay may be suspended by a court only in case of serious doubt as to the legality of the termination of stay. 30 Article 16(a) para. 4 expressly encompasses all cases of a safe State of origin under Article 16(a) para. 3 as well asylum applications that are 'obviously unfounded'. The court held that by not defining 'obviously unfounded' , the constitution authorizes the legislature to do so. According to the court, a definition must take into consideration the importance of the right to asylum and the right to stay therefrom derived. 31 The court also held that 'termination of stay' includes both measures of exclusion and of deportation. 32 The court stated that an administrative court under Article 16(a) para. 4 in an interim decision may rule on an immediate termination of stay based on an 'obviously 30

Part C.I.I, of the judgment.

31

Part C.I.I.a) of the judgment.

32

Part C.I.l.b)aa) of the judgment.

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unfounded' application. In doing so the administrative court may determine only whether the classification as obviously unfounded is accurate 33; a termination of stay may be suspended if the court has 'serious doubt' as to the accuracy of that finding. 34 The court stated that the Federal Constitutional Court will intervene only if an administrative court has not accorded sufficient weight to the importance and significance of the right to asylum in developing its legal standards or in organizing the proceedings before the court or if, for the same reasons, it has wrongly classified facts as legally significant or insignificant. 35 In finding Article 16(a) para. 4 constitutional under Article 79 para. 3 the court again merely referred to its holding with respect to Article 16(a) para. 2 and safe third States.36 bb) Interpretation and Constitutionality of the Provisions of the Asylverfahrensgesetz Regulating the Procedure for Arrival of Asylum Applicants by Plane Under the provisions of the Asylverfahrensgesetz regulating the procedure for arrival of asylum applicants by plane, 37 authorities are to postpone deciding on the admission of asylum applicants that come from safe States of origin or that tried to enter Germany without a valid passport or substitute document. These persons are to have an immediate hearing concerning their asylum request with a branch of the Federal Authority for Refugee Affairs located at the airport. After the hearing, they are given a chance to contact a legal advisor of their choice.38 The asylum applicants are detained in an area of the airport defined as extraterritorial. If the Federal Authority for Refugee Affairs finds itself unable to decide a case without delay or if it has not decided a case after a period of two days, the person is admitted into the country. Persons that are accorded asylum or a temporary right to stay on the basis of section 51 para. 1 of the Ausländergesetz or whose application is classified as unfounded but not obviously unfounded are also admitted. Persons whose applications

33

Part C.I.l.b)bb) of the judgment.

34

Part C.I.l.cc) of the judgment.

35

Part C.I.2. of the judgment.

36

Part C.I.3. of the judgment.

37

Due to lack of space and for reasons of efficiency, this special procedure is currently only applied to applicants arriving at Frankfurt/Main, Munich and Berlin airports. 38

A l l of the above: section 18(a) para. 1 of tht Asylverfahrensgesetz.

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Vicki Trauisen

are obviously unfounded are refused admission and are threatened w i t h deportation. 3 9 After receiving notice of refusal of asylum and of entry an applicant has three days to apply for interim relief from an administrative court. 40 If the application for interim relief is timely, an administrative order of exclusion may not be executed before a decision by the court. The court decides without an additional hearing. 41 It may grant relief only if "there is substantial doubt concerning the legality" of the decision by the Federal Authority for Refugee Affairs. 42 If there is a negative decision by the court, the refusal of entry may be executed immediately, i.e. as soon as the decision has been made and signed by the judge and transferred from his offices; the reasoning may be given at a later time. 43 The court did not find that providing a special procedure for arrivals at airports violates the prohibition against discrimination (