International Law of Cooperation and State Sovereignty: Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law, May 23-26, 2001 [1 ed.] 9783428508365, 9783428108367

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International Law of Cooperation and State Sovereignty

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel Flerausgegeben von Jost Delbrück, Rainer Flofmann und A n d r e a s Zirn m e r man n Walther-Schücking-Institut für Internationales Recht

139

Völkerrechtlicher Beirat des Instituts:

Daniel Bardonnet I'Universite de Paris 11 Rudolf Bernhardt Fleidelberg Lucius Caflisch Institut Universitaire de Flautes Etudes Internationales, Geneve Antonius Eitel New York; Bonn

Fred L. Morrison University of Minnesota, Minneapolis Albrecht Randelzhofer Freie Universität Berlin Krzysztof Skubiszewski Polish Academy of Sciences, Warsaw; The Flague

Luigi Ferrari Bravo Universita di Roma

Christian Tomuschat Flumboldt-Universität zu Berlin

Louis Henkin Columbia University, NewYork

Sir Arthur Watts London

Tommy T. B. Koh Singapore John Norton Moore University of Virginia, Charlottesville

Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

International Law of Cooperation and State Sovereignty Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law May 23 - 26, 2001

Edited by

Jost Delbrück Assistant Editor: Ursula E. Heinz

Duncker & Humblot . Berlin

Die Deutsche Bibliothek - CIP-Einheitsaufnahme

Internationallaw of cooperation and state sovereignty : proceedings of an international symposium of the Kiel Walther-Schücking-Institute ofinternational Law, May 23 - 26, 20011 Hrsg.: Jost Delbrück. Berlin : Duncker und Humblot, 2002 (Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel; Bd. 139) ISBN 3-428-10836-1

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten © 2002 Duncker & Humblot GmbH, Berlin Fotoprint: Werner Hildebrand, Berlin Printed in Germany ISSN 1435-0491 ISBN 3-428-10836-1 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 43

Foreword It was in the early 1990s, more precisely in 1991 shortly after the end of the Cold War, that the Walther-Schücking-Institute at Kiel University - within the framework of its biennial international conferences - started aseries of international symposia which, in retrospect,can be subsumed under the overall heading of "international law at the frontiers." The aim of these thematically closely related symposia, bringing together eminent international legal scholars, was to explore the structural changes that the international system and its legal order were undergoing due to the forces of globalization and the political upheavals following the end ofthe ideological division ofthe world. The series opened with a symposium on "New Scenarios - New Law" in 1992 that was devoted to the question what role internationallaw in general and the United Nations in particular could play in the unfolding of athen envisaged New World order. Following that, the 1994 symposium focussed on the "Allocation of International Law Enforcement Authority" that paid special attention to the question of who is entitled to enforce fundamental or constitutional principles of international law imbued with erga omnes effect and serving the maintenance of international peace and security as well as the enforcement of internationally protected human rights. In this symposium the debate centered around the thorny problem of whether the United Nations, namely the Security Council, was vested with a law enforcement monopoly or whether other actors (regional organizations and states) had law enforcement authority and if yes to what extent and under what conditions. The 1996 symposium on "New Trends in International Lawrnaking" carried this debate further ahead by analyzing the changing modes of internationallawrnaking either by comprehensive lawrnaking treaties (traites lois) or by an accelerated creation of customary norms of internationallaw whereby both, the treaties and the new customary law, are expressing norms in the international or global public interest and are therefore meant to have erga omnes effect, that is that they are meant to create obligations of states without or even against their will. l In 1998, the fourth symposium took up the increasing role ofnon-state actors in the inter1 See Christian Tomuschat, Obligations Arising for States without or against Their Will, Recueil de Cour, vol. 241 (1993 IV), 195 et seq.

6

Foreword

national system and discussed the question whether this increased role of, for example, non-governmental organizations or multinational enterprises was or should be reflected in international law, i.e. whether these non-state entities possessed or should possess at least a lirnited, functional international legal personality. The present papers and proceedings of the fifth conference of the series of symposia with this special focus on "internationallaw at the frontiers" exploring the meaning of the concept of the internationallaw of cooperation and its relationship with the concept of sovereignty brings this project to an end. This certainly does not mean that the tradition of the biennial internationallaw conferences ofthe Walther-Schücking-Institute will not be continued. On the contrary, as the directorship of the Institute now passes over into younger hands, these conferences will be forcefully carried on, but naturally, the emphasis on certain subject matters will be shifting. With the present publication ofthe 2001 symposium on "The International Law of Cooperation and State Sovereignty" the Institute is hoping that - like in the past - the international legal community will fmd incentives for further research on a subject matter, i.e. the international law of cooperation and the concept of international legal obligations to cooperate, that is crucial for the development of an International Civil Society under the rule oflaw. Kiel, January 2002

Jost Delbrück

Contents

Opening Addresses by

Rainer Hofmann. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

11

Jost Delbrück . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

12

Obligations ofCooperation in the International Proteetion ofHurnan Rights

Lori Fisler Damrosch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

15

The Duty to Cooperate in International Economic Law and Related Areas

Christian Tietje . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

45

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

66

Cooperation in International Dispute Settlement

Anne Peters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 107 State Sovereignty and the Duty of States to Cooperate - Two Incornpatible Notions? (Summary and Comments)

Christoph Schreuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 163 Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 181 List ofParticipants .................................................... 218

Abbreviations ABlEG

Amtsblatt der Europäischen Gemeinschaften

ACC

Adminstrative Committee on Coordination

AJIL

American Journal ofInternational Law

ASIL

American Society of International Law

AVR

Archiv des Völkerrechts

BDGVR

Berichte der Deutschen Gesellschaft für Völkerrecht

BGB!.

Bundesgesetzblatt

BT Drs.

Drucksache des Deutschen Bundestages

CSCE

Conference on Security and Cooperation in Europe

CTE

Committee on Trade and Environment

EA

Europa-Archiv

ECHR

European Convention for the Protection of Human Rights and Fundamental Freedorns

ECOSOC

Economic and Social Council of the United Nations

ECRI

European Commission against Racism and Intolerance

EEZ

Exclusive Economic Zone

EJIL

European Journal ofInternational Law

EPIL

Encyclopedia ofPublic International Law

ETS

European Treaty Series

EuGRZ

Europäische Grundrechte - Zeitschrift

FAO

Food and Agriculture Organization ofthe United Nations

GATS

General Agreement on Trade in Services

GYIL

Gerrnan Yearbook of International Law

ICAO

International Civil Aviation Organization

ICC

International Criminal Court

ICJ

International Court of Justice

Abbreviations ICLQ

International and Cornparative Law Quarterly

ICRC

International Committee ofthe Red Cross

ICSID

International Centre for the Settlement ofInvestrnent Disputes

ICTY

International Crirninal Tribunal for the former Yogoslavia

ILA

International Law Association

ILC

International Law Commission

ILF

International Law Forum du droit international

ILM

International Legal Materials

ILO

International Labour Organisation

IMF

International Monetary Fund

Ind. J. Global Legal Stud.

Indiana Journal ofGlobal Legal Studies

ITC

International Trade Centre

ITLOS

International Tribunal on the Law ofthe Sea

ITO

International Trade Organization

ITU

International Telecommunication Union

IYIA

Indian Yearbook of International Affairs

J. Int'1 Econ. L.

Journal ofInternational Economic Law

JWT

Journal ofWorld Trade

LLDC

Least Developed Countries

LOS

Law of the Sea

NAM

Non-Aligned Movernent

NGO

Non-GovernrnentalOrganization

NILR

Netherlands International Law Review

NVwZ

Neue Zeitschrift für Verwaltungsrecht

ODIL

Ocean Developrnent & International Law

ÖZöRuV

Österreichische Zeitschrift für öffentliches Recht und Völkerrecht

PCIJ

Permanent Court of International Justice

PIN

Public Interest Norm

RdC

Recueil des Cours de I' Acadernie de Droit International

RIAA

Reports ofInternational Arbitral Awards

SC

Security Council

9

10

Abbreviations

TRIPS

Trade-Related Aspects on Intellectual Property Rights

UNCLOS

United Nations Conference/Convention on the Law ofthe Sea

UNCTAD

United Nations Conference on Trade and Development

UNDP

United Nations Development Programme

UNESCO

United Nations Educational, Scientific and Cultural Organization

UNITA

Unilio Nacional para a Independencia Total de Angola

UNPROFOR

United Nations Protection Force in (former) Yugoslavia

UNTAC

United Nations Transitional Authority in Cambodia

UNTS

United Nations Treaty Series

UPU

Universal Postal Union

Va. 1. Int'l L.

Virginia Journal ofIntemational Law

Vand. 1. Transnat'l L.

Vanderbilt Journal ofTransnational Law

VN

Vereinte Nationen - Zeitschrift

WHO

World Health Organization

WIPO

World Intellectual Property Organization

WTO

W orld Trade Organization

ZaöRV

Zeitschrift ftir ausländisches öffentliches Recht und Völkerrecht

ZRP

Zeitschrift ftir Rechtspolitik

Opening Address Rainer Hofmann

Ladies and Gentlemen, dear friends, fIrst of all I should like to welcome all of you to this year's Kiel Symposium. A special welcome goes to OUT fOUT speakers: Professor Lori Fisler Darnrosch of Columbia University; Dr. Christian Tietje, Walther-Schücking-Institute of International Law, Kiel University; Dr. Anne Peters, Walther-Schücking-Institute of International Law, Kiel University; and Professor Dr. Christoph Schreuer, Institute ofInternational Law and International Relations, University ofVienna. I should also like to tell you that you are assisting a very special event. Obviously, all Kiel symposia are special events both ratione personae - and that is because of you as reknown experts of internationallaw - and ratione materiae and that is because of the subject matters with which they deal this year: the International Law of Cooperation and State Sovereignty. A further reason why this is a special event has to do with the year in which the symposium takes place. It is, as you know, the fIrst year of a new millennium, and since we wanted to show that we wish to continue contributing to the development of international law also in this new millennium, we have moved the date ofthis symposium from the year 2000 to the year 2001. But there is another, even more important reason for organizing a Kiel symposium, for the fIrst time, in a year with an uneven number: It is not only for paying tribute to the beginning of a new millennium, but much more so for honoring Jost Delbrück who has retired as a Professor at Kiel University at the end of last winter term. So we wanted to take advantage of this fact as an opportunity to contribute to the development of international law. Usually, in such a situation, a symposium or colloquium is organized by a faculty or an institute in order to honor the person who has retired as a Professor. This, however, is not the case today and tomorrow: This symposium is Jost Delbrück's present to the community of international lawyers and I should simply like to thank you very much for this present. Let me add, however, that we hope - and trust - that this is not the last present which you will give and that you will continue to be a very important contributor to the development of internationallaw.

Opening Address Jost Delbrück

Thank you! It's one of those rare occasions when you don't know that you made a gift to others, as Herr Hofmann indicated that I did. I only hope that at the end of this event you will agree with him that you received something of substance. And that is an open question given the complexity of the topic that we chose for this conference. We will be dealing with the internationallaw of cooperation and the duty to cooperate. These are wonderful words and everybody would probably agree that we should have an international law of co operation and we should have obligations to cooperate. But on the other hand, it would be silly if you could say: Oh, we all commit ourselves to cooperate unless we decide otherwise, meaning that these terms "internationallaw of cooperation" and "duty to cooperate" may just be empty shells or wonder shells - I think you recall those wonderful things we had as kids, shells that you put in a glass of water and they unfold into beautiful flowers. So, maybe, we can open these shells and fmd out if they are empty shells or whether they hide something of substance. In asense, it is part of my own vita that we have the symposium at this point, because it is defmitely the fifth and the last in aseries of symposia where we have tried to be a litde bit at the frontiers of internationallaw. In 1992, the first of this series was on New Scenarios - New Law - i.e. on the post-Cold War era that we tried to probe into and fmd out whether the international legal system and international community had really the opportunity to change for the better. Then we followed up with the symposium on the Allocation ofInternational Law Enforcement Authority in 1994, and then we took up the question of New Trends in International Lawrnaking in 1996. After that Rainer Hofmann introduced himself as the then new co-director of the Institute with the symposium on the Legal Status and Role ofNon-State Actors. This symposium on the International Law of Cooperation and State Sovereignty somehow rounds up this series of subjects. The stark fact is that we are facing major challenges in the international system with regard to its steering capacities, the modes of implementing internationallaw, and at the same time we are taking into account global demands on the law that

Opening Address

13

should provide for common goods that we have come to realize more clearly in the last ten or 15 years after the Cold War ended. The traditional paradigrn of law enforcement, its ultima ratio, is repressive implementation, is enforcement in the true sense of the word. I think in starting from the notions thrown out by Wolfgang Friedman when he talked about the changing structures of international law, you come to realize that internationallaw enforcement probably more than domestic law depends on strategies that are not repressive, that are not confrontational, but rather provide for incentives for States to cooperate. And that, of course, can only work if we have a better vision of what is meant by cooperation. Is it sitting at a table, looking friendly, and afterwards go horne with nothing really achieved, or is there a duty to cooperate in a sense that something substantial comes out of it? Art. 33 of the UN Charta says that States are obliged to peacefuHy settle their disputes. Well, what does that really mean? The need to cooperate in this effort, of course, but we also know that sometimes people do sit at the table, smile, and then go horne and nothing has happened, and then the question arises: Have they violated Art. 33? Taking stock ofwhat we can fmd in terms of elucidation of the meaning of the concepts "internationallaw of cooperation" and "duty to cooperate," I think, one must admit that there is a lot of rhetoric in the literature and in political utterances about cooperation without seriously probing into what this obligation is about in practice, what is the substance of what the States are supposed to do. In this sense, we want to achieve a clearer vision ofwhat internationallaw can tell us about the duty to cooperate. And I hope that, at the end of the conference, we will also know some more at least of how to manage - I use that terrible word - the international system, or better, how to enable an international civil society to live under the rule oflaw - a rule oflaw which is abided by not necessarily under the threat of or use of force but rather by cooperative incentives for States to abide by the law. I would like to remind you of Abram and Antonia Handler Chayes' book with the tide "'The New Sovereignty" which very much influenced me in choosing the tide "International Law of Cooperation and State Sovereignty" for our conference. Their new understanding of sovereignty is crucial with regard to international cooperation and the functioning of an international governance under law, i.e. that States understand their sovereignty as being in good standing with the international community, playing a model role as lawabiding States. I think that, in view of the reaHy disquieting failure of the one leading world power at this moment, it is timely to foster the idea of abiding by the law and thereby exercise leadership for the world community. And it is timely that we as

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Jost Delbrück

international lawyers provide some insights in the meaning of the concepts of cooperation and the duty to cooperate, thereby hopefully making at least a modest contribution to a better world under law. That much for the introduction to the symposium which is generously funded by the Volkswagenstiftung under their program on international governance and the steering capacity ofthe international community, and I think mentioning this is not only more than appropriate because the Foundation gave us the means to hold this conference, but because our effort ties in with the philosophy underlying the Foundation's pro gram. So, I dose with this and ask Lori to start her report. Thank you!

Obligations of Cooperation in the International Protection of Human Rights Lori Fis/er Damrosch

Decades ago, Wolfgang Friedmann propounded international cooperation as one ofthe key developments in internationallaw in the post-World War 11 period. Ahead of his time in many ways, Friedmann emphasized human rights as one subject-matter domain in which an internationallaw of cooperation should function. 1 But he harbored no illusions that the objective of international cooperation could soon be achieved in the field ofhuman rights, given the conditions ofideological struggle that prevailed when he wrote: International co-operation in matters of human rights is dependent upon compatible scales ofvalues as to the relations ofstate and individual, the place offreedom ofspeech and worship, freedom of association and the other matters usually catalogued in bills of rights. 2 While in theory such fields as the protection ofhuman rights, as formulated in the United Nations Declaration ofHuman Rights ofDecember 1948, is a universal concern of mankind, in fact, the disparity of standards, systems and values is too great to make an effective international organization possible in this field. 3 At the opening ofthe twenty-first century we are still grappling to realize Friedmann's idea ofinternational human rights cooperation. Current front-page news illustrates the theme of cooperation in the field ofhuman rights. On May 3,2001, the United States, for the first time since 1947, lost its seat on the U.N. Conunission on Human Rights, in a contested election in which France, Austria and Sweden won the places for Western countries and a variety of non-Western States with less than exemplary human rights records were elected. The New York Times reported that the French ambassador to the United Nations "attributed the

1

See Wolfgang Friedmann, The Changing Structure ofInternational Law, 1964, 10,63.

Ibid., 10. Ibid., 63. Friedmann saw the possibility ofreal human rights cooperation only within a elose-knit community, such as the Council of Europe. See infra (notes 30-31). 2

3

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Lori Fisler Damrosch

overwhelming vote for France to its policy of approaching human rights issues with cooperation and dialogue rather than confrontation ... "4 The debate over whether to advance human rights through cooperative engagement or through public criticism and sanctions is as old as the international human rights movement. Within the United States, supporters ofhuman rights are not of one mind on the place for cooperation in a repertoire of strategies for promoting human rights. Indeed, the ambiguity of the term "cooperation" as applied to human rights could even seem subversive ofhuman rights commitments if cooperation with human rights violators rnakes one arguably complicit in the violations. The present paper examines current issues in human rights practice to illustrate different dimensions of the problem of cooperation in the implementation and enforcement of international human rights. As a predicate for this discussion, Section A. identifies certain international treaties and other undertakings in which one can fmd the basis for the claim of an obligation to cooperate with respect to human rights. This section is brief, because none ofthe international instruments fully defmes cooperation or suggests a methodology for giving content to the asserted duty. Section B. turns to different senses in which the concept of cooperation rnight be relevant in the field ofhuman rights. Section C. then looks at a variety of practices that could be said either to support or to undermine fulfillment of an obligation to cooperate concerning human rights, with examples drawn from recent controversies in the experience ofthe United States. Human rights treaties differ significantly from other kinds of treaties, especially in view of the fundamentally non-reciprocal character of human rights undertakings; this basic difference necessarily affects an analysis of obligations of co operation in the dornain ofhuman rights (as contrasted to treaties in the fields of econornic law or dispute settlement, which are covered by other presenters in this symposium, or innumerable other treaties, such as those governing shared watercourses, mutual assistance in law enforcement, or other examples). But concerns for cooperation in human rights arise in a broader context than formal treaties: It is also necessary to address cooperation in implementing internationally protected human rights outside the framework of treaty relationships. As will be

4 Barbara Crossette. "For First Time, V.S. Is Exc1uded From V.N. Human Rights Panel," New York Times, 4 May 2001, AI, A13, paraphrasing Ambassador Jean-David Levitte. Ambassador Levitte is said to have noted that the cooperative rather than confrontational approach "worked weil with China," in contrast to the V.S. method of seeking public condemnation ofChina's human rights record in the V.N. Commission.

Obligations ofCooperation in the International Protection ofHuman Rights

17

discussed below, one fonn ofhuman rights cooperation could be an obligation to refrain from cooperating with human rights viola tors . This rnay be an obligation of an States, whether or not they are parties to the same human rights treaties as the violating States. Indeed, some of the most cogent examples of this kind of "negative cooperation" could be found outside the framework of any human rights treaty structure. We can look flrst at the treaties and then turn to other concepts and practices relevant to human rights cooperation.

A. International Treaties Specifying Obligations of Cooperation Concerning Human Rights The basic obligation of cooperation with respect to human rights is found in Arts. I, 55 and 56 of the United Nations Charter, in which members "pledge thernselves to take joint and separate action in cooperation with the Organization" for the achievement of the purposes of the United Nations, which of course include "universal respect for, and observance of, human rights and fundamental freedorns for an without distinction as to race, sex, language, or religion.,,5 The norrns of the Charter were concretized in the General Assembly' s Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter ofthe United Nations,6 which is an authoritative interpretation of the Charter promulgated by all the parties theretO.The Friendly Relations Declaration affrrrns a "duty ofStates to co-operate with one another in accordance with the Charter" and specifles that to this end "States shan co-operate in the promotion ofuniversal respect for, and observance of, human rights and fundamental freedorns for an, and in the elimination of an forrns of racial discrimination and all forrns of religious intolerance."7 5 Charter ofthe United Nations, Arts. 1(3),55-56. The purposes ofthe United Nations stated in Art. 1(3) incJude: "To achieve international co-operation ... in promoting and encouraging respect for human rights and for fundamental freedoms for al1 without distinction as to race, sex, language, or religion ... " 6 GA Res. 2625 (XXV) of24 October 1970 (Friendly Relations DecJaration) (emphasis added). 7 Ibid. In the same resolution, under the heading of "The principle of equal rights al1d self-determination ofpeoples," the General Assembly has reiterated that "Every State has the duty to promote throughjoint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter." Of course, "joint" action would necessarily entail cooperation between at least two States.

2 DelblÜck

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Lori Fisler Damrosch

The pledge to cooperate is reaffrrmed in the preamble to the Universal Declaration ofHuman Rights. 8 The preamble to the fIrst modem human rights treaty, the Genocide Convention, likewise records the conviction that "in order to liberate mankind from such an odious scourge, international co-operation is required."9 But most ofthe substantive obligations ofthe Genocide Convention are for States to take separately rather than cooperatively.1O The International Covenant on Economic, Social and Cultural Rights becomes more specifIc, by establishing an undertaking "to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights" in question. 11 The same Covenant identifIes a variety of mechanisms through which cooperation might be achieved. These include "such methods as the conclusion of conventions, the adoption of recommendations, the fumishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in c.onjunction with the Govemments concerned."12 The International Covenant on Civil and Political Rights has a different structure, with the creation ofthe Human Rights Committee as the fIrst ofthe human rights treaty bodies. 13 These bodies - now six in number, corresponding to six different human rights treaties - provide a framework in which international human rights cooperation could be advanced. There is now a considerable literature on the treaty bodies, 14 but "cooperation" is relatively neglected as a heading for analysis of their work. 8 GA Res. 217 (III) of 10 December 1948: "Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion ofuniversal respect for and observance ofhuman rights and fundamental freedoms ... " (6th preambular paragraph). 9 Convention on the Prevention and Punishment ofthe Crime ofGenocide, 9 December 1948, preamble, UNTS 78, 277. 10 The pledge to grant extradition (Art. VII), the entitlement to "call upon the competent organs ofthe United Nations" to take appropriate action against genocide (Art. VIII), and the dispute settlement provision (Art. IX) arguably entail cooperative action. 11 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, Art. 2 (1), UNTS 993, 3. 12 lbid., Art. 23. 13 International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171. See especially Art. 28 et seq. on the creation ofthe Human Rights Committee. 14 See, e.g., Philip AlstonlJames Crawford (eds.), The Future ofU.N. Human Rights Treaty Monitoring, 2000.

Obligations of Cooperation in the International Protection of Human Rights

19

The Convention Relating to the Status ofRefugees and the Protocol Relating to the Status ofRefugees both specify undertakings "to co-operate with the Office ofthe United Nations High Commissioner for Refugees" and in particular to "facilitate its duty of supervising the application of the provisions" of the treaties. 15 The same provisions go on to require parties to provide the High Commissioner with information and statistical data concerning the condition of refugees, the implementation ofthe treaty, and nationallaws and regulations concerning refugees. This is an embryonic form of cooperation with an international agency. Under the Convention Against Torture, States parties "shall afford one another the greatest measure of assistance in connection with criminal proceedings" concerning the offense of torture and related acts. 16 Obligations to prosecute or extradite (aut dedere autjudicare) are sirnilar to those laid down in a large number of law enforcement treaties. 17 The Convention on the Rights of the Child refers in its preamble to "the importance of international co operation for improving the living conditions of children in every country, in particular in the developing countries."18 Provisions on international cooperation are found in the article concerning participation of specialized agencies, the United Nations Children's Fund, and other U.N. organs in implementation activities. 19 The International Labour Organisation provides a framework for international cooperation with respect to rnany aspects ofthe human rights ofworkers, through the organization itself, and some 200 treaties which it sponsors. Friedmann rnaintained a special interest in international labor law throughout his life; but as regards cooperation in the field of labor he had to be realistic about the conditions ofhis times: Co-operation between States whose labour is organised either under the direct auspices ofthe state or in state-directed labour organisations is diflicult in matters oflabour with

15 Convention Relating to the Status ofRefugees, 28 July 1951, Art. 35, UNTS 189, 131; Protocol Relating to the Status ofRefugees, 31 January 1967, Art. 11, UNTS 606, 267. 16 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 December 1984, Art. 9, UNTS 1465,83. 17 Compare Arts. 7-8 ofthe Convention Against Torture with corresponding provisions of air sabotage, hijacking, or terrorism treaties. 18 Convention on the Rights ofthe Child, 20 November 1989, UNTS 1577,3. 19 Art. 45. In particular, these bodies are encouraged to provide expert advice and technical assistance to States parties and to the Committee on the Rights ofthe Child.

20

Lori Fisler Damrosch states whose labour movements are autonomous. Nor can they establish direct cooperation between the respective labour organisations, as is indeed evident in the split between the Communist-dominated and the anti-Communist internationallabour movements. Hence the recent accession to membership in the ILO of sorne Communist states has caused considerable difficulties, mainly because a state-controlled labour organisation does not fit the tripartite scheme ofthe ILO which presupposes autonomous organisations of employers and labour. If and when the ILO succeeds in embracing a wider field of international social organisation the difficulties of social co-operation between heterogeneous systems are likely to increase accordingly.20

The rapprochement of social systems since the end of the Cold War (at least in Europe) has made international cooperation through the ILO more feasible. It is a major challenge to extend ILO labor standards to countries that still maintain a state-controlled economy and do not accept international guarantees of worker rights. In May 2001 the ILO's Director-General, Juan Somavia, visited Beijing to sign an agreement for an ambitious pro gram oflabor cooperation between the ILO and the People's Republic ofChina: The conc1usion ofthe Beijing meeting illustrates how much progress has already been made and how much remains to be accomplished. 21 Some treaties (or other international instruments establishing legal obligations) require States to cooperate with one another, and/or with international or nongovernmental institutions, in relation to human rights or humanitarian law. The Geneva Conventions of 1949 and the 1977 Additional Protocols thereto confer special responsibilities on the International Committee ofthe Red Cross and either expressly or irnplicitly provide that States parties shall cooperate with Red Cross activities. 22 Additional Protocol I further contains an article called "Co-operation," according to which "the High Contracting Parties undertake to actjointly or individually, in co-operation with the United Nations" in situations of serious violations of any ofthe four Geneva Convention or ofProtocol 1. 23 The Statutes ofthe

Friedmann (note I), 10. 21 See Eric Eckholm, "China Accepts V.N. Advice to He\p Ease Labor Strife," New York Times, 20 May 2001 (reporting that the "tensions that may dog future cooperative programs were already evident at the ceremony," where China's minister of labor and social security we\comed "dialogue" but rejected Somavia's expression of concern over China's system of trade union monopoly, its jailing of labor organizers, and its use of forced labor in reeducation camps). 22 See, e.g., Art. 80 of Protocol Additional (No. I) to the Geneva Conventions of 12 August 1949, 12 December 1977, UNTS 1125,3 (parties "shall facilitate in every possible way" the assistance ofRed Cross organizations). 23 Protocol No. I, Art. 89. Art. 88 ofthe same protocol commits parties to "afford one another the greatest measure of assistance" in connection with criminal proceedings con20

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International Criminal Tribunals for the Former Yugoslavia and for Rwanda establish obligations of cooperation, as does the Dayton Agreement on BosniaHerzegovina. 24 The Rome Statute ofthe International Criminal Court articulates them in considerable detaiPS Regional cooperation for human rights protection is elaborated both in Europe and in the Americas. In the sole article on economic, social, and cultural rights in the American Convention on Human Rights, parties "undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization" of economic, social, educational, scientific and cultural standards. 26 In addition to the Council of Europe's human rights structure27 and the growing attention to human rights in the institutions ofthe European Union,28 the Helsinki Final Act has a long article called

cerning grave breaches of the Conventions or of the Protocol, and to "co-operate in the matter of extradition." 24 E.g., Statute ofthe International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, 25 May 1993, Art. 29(1): "States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law." Art. 29(2) specifies requirements concerning production of evidence and the arrest and transfer of suspects. See also the General Framework Agreement for Peace in Bosnia-Herzegovina, 14 December 1995, Art. IX, ILM 35 (1996), 75 (Dayton Agreement), underscoring "the obligation of all Parties to cooperate" in the investigation of war crimes. 25 Rome Statute ofthe International Criminal Court, U.N. Doc. AlCONF.183/9, 17 July 1998, Art. 86, reprinted in: ILM 37 (1998), 999 "General Obligation to Cooperate" ("States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. "). See also Arts. 87-102 where these obligations are spelled out in detail, and the further elaboration in the Rules of Procedure and Evidence adopted in June 2000. U.N. Doc. PCNICC/2000lINF/31Add.2. 26 American Convention on Human Rights, 22 November 1969, Art. 26, UNTS 1144, 123. 27 European Convention for the Protection of Human Rights and Fundamental Freedorns,4 November 1950, UNTS 213, 221, as amended by Protocol No. 11, ETS No. 155. 28 See, e.g., Charter ofFundamental Rights ofthe European Union, adopted at Nice, 7 December 2000, Off. J. Eur. Communities, C 364/8 (18 December 2000), reprinted in: ILM 40 (2001), 266. Negotiations for accession to European institutions have become vital channels for achieving tangible improvements in human rights.

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"Co-operation Among States,"29 as a foundation for what we now know as the Organisation for Security and Co-operation in Europe with its manifold human rights functions. Regional human rights cooperation can illustrate Friedmann's rerninder that "the more homogeneous a group of nations is in political and social structure and in their basic ideologies, the more likely is it to develop common institutions in other than technical fields, and to transfer certain legislative, executive, and judicial powers to supranational institutions, in derogation from purely national sovereignty."30 Friedmann added that the Council ofEurope's human rights system became possible "only where states can agree on the basic role and place ofthe individual in society, and tolerate a limitation of the powers of the state that is unacceptable to totalitarian philosophies ofboth the right and ofthe left."31 The foregoing references by no means exhaust the provisions of international instruments in which human rights cooperation is mentioned or elaborated. The 29 Final Act ofthe Conference on Security and Co-operation in Europe, adopted at Helsinki, I August 1975 (Helsinki Final Act), reprinted in: ILM 14 (1975),1292. IX. Co-operation among States The participating States will develop their co-operation with one another and with all States in all fields in accordance with the purposes and principles of the Charter of the United Nations. In developing their co-operation the participating States will place special emphasis on the fields as set forth within the framework ofthe Conference on Securityand Co-operation in Europe, with each of them making its contribution in conditions of full equality. They will endeavour, in developing their co-operation as equals, to promote mutual understanding and confidence, friendly and good-neighbourly relations among themselves, international peace, security and justice. They will equally endeavour, in developing their co-operation, to improve the well-being ofpeoples and contribute to the fulfilment oftheir aspirations through, inter alia, the benefits resuIting from increased mutual knowledge and from progress and achievement in the economic, scientific, technological, social, cultural and humanitarian fields. They will take steps to promote conditions favourable to making these benefits available to all; they will take into account the interest of all in the narrowing of differences in the levels of economic development, and in particular the interest of developing countries throughout the world. They confirm that govemments, institutions, organizations and persons have a relevant and positive role to play in contributing toward the achievement ofthese aims oftheir cooperation. They will strive, in increasing their co-operation as set forth above, to develop c10ser relations among themselves on an improved and more enduring basis for the benefit of peoples. 30 Friedmann (note 1),279. 31 Ibid .. 285.

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proliferation ofresolutions ofU.N. organs, "soft law" docurnents, and statements of the now nurnerous implementing bodies could provide a further source of examples. 32 But we will understand them better after analyzing the range of different concepts that the term might embrace.

B. Concepts of Cooperation in the Field of Human Rights In order to understand what cooperation in the field of human rights might mean, we ought to have both a normative theory of human rights and a theory of compliance with human rights norms. Normatively, a position on cooperation could depend on whether we endorse a universalist view ofhuman rights, as contrasted to views emphasizing relativism or regional variations. Can there be cooperation in the face of sharp disagreements about the very content of human rights norms? Would meaningful cooperation be confmed within those groupings that share common values, as Friedmann suggested in the passages quoted above? Or might there be factors conducing towards cooperation in the field of human rights, even in the face of profound ideological divergences? How do we address the controversies over correlations between material weIl-being and human rights performance? Is it necessary to eradicate poverty as a precondition to improvements in human rights? Without answers to these fundamental questions (or at least tentative theories ), it is difficult to formulate a satisfactory vision of cooperation to promote human rights. The leading work of Abram and Antonia Chayes can inform a theory of compliance with human rights norms, as a predicate for a theory of cooperation. The Chayeses contend that most compliance problems stern not from willful misconduct, but from factors such as lack of clarity in the content of obligations or limitations in the capacity of States to carry out their commitrnents. Thus they adyocate supporting rather than enforcing compliance, "relying primarily on a cooperative, problem-solving approach instead of a coercive one.'m Although they address their "managerial" model mainly to regulatory treaties (such as agreements in the fields of arms control, the environment, and economic law), they invoke human rights as a domain in which their theory could operate, and as a source of

32 See, e.g., the Vienna Declaration and Programme of Action ofthe World Conference on Human Rights, infra (note 45). 33 Abram Chayes/Antonia Handler Chayes, The New Sovereignty: Cornpliance With International Regulatory Agreements, 1995,3.

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examples to demonstrate the application oftheir model in practice. 34 As an illustration of how the Chayes model rnight apply to human rights cooperation, we could consider aState in which the top leadership sincerely desires to eradicate the practice of torture, but the central govemment does not effectively control police officers in far-flung precincts and may even be unaware ofwhat goes on inlocal stationhouses. Or a govemment may wish to bring its crirninal justice system into compliance with international fair trial standards, or its prisons into compliance with the international minimum roles, but it simply lacks the resources to pay for judicial improvements or for competent defense lawyers or for upgrading its prison conditions. In such circumstances, the Chayes model offers a point of departure for thinking about international co operation as capacity-building for human rights compliance. F or purposes of analysis, it may be helpful to isolate different senses in which the term "cooperation" could be used in the field of human rights protection. Bearing in mind the etymology of the term ("working with"), we need to distinguish between cooperation on a govemment-to-govemment basis and cooperation that takes place within some institutional framework. Bilateral (intergovemmental) cooperation seerns to presuppose a kind of diplomatic paradigm for human rights interactions, so that govemments would "work together" to rnitigate violations or enhance protections. But govemments rnight also advance the protection of international human rights by withholding some forms of ordinary cooperation from a human rights violator. This form may be termed "negative cooperation" rather than "non-cooperation," because by selectively denying the violator the benefits of regular cooperation, one is actually cooperating with the community as a whole to enforce international human rights. Institutional cooperation could entail "working together" in a different way, so that the institution enables what would be impossible to achieve on any bilateral basis. In the broadest sense, almost any human rights activity pursued through an international organization reflects some form of institutional cooperation. Finally, we can open our field of vision even more widely, to take account of the fact that much of the most effective human rights work is carried out not by States or intergovemmental organizations, but by non-govemmental organizations.

34 See, e.g., ibid., 161, 164, 170--171 (describing the reporting and data collection practi ces ofhuman rights treaty bodies).

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Let us consider these variants of human rights cooperation: (1) Quiet diplomacy: That is, cooperation to resolve a given problem on a nonconfrontational basis, perhaps in a package so that neither side loses face and each side can claim benefits. An example of quiet diplomacy to resolve a human rights issue cooperatively would be aseries of moves in which political prisoners are released in advance of a summit meeting, which then results in the announcement of important political or economic agreements. This sequence has happened many times in V.S.-Soviet and US.-Chinese relations.

(2) Constructive engagement, which would mean cooperation across a range of activities, with human rights improvements as a potential byproduct. An example would be the constructive engagement policy of the Reagan Administration toward South Africa during apartheid, when the Administration claimed that active involvement ofV.S. companies in South Africa could advance the human rights of South Africa's non-white populations. Another example is the ongoing debate among Western countries over whether the bleak human rights situation in Burma (Myanmar) should be addressed through sanctions or engagement. (3) Negative cooperation, which is action to withhold certain benefits or transactions from a human rights violator, in order to ensure that the cooperating entity does not become complicit in or otherwise facilitate another State's violations. An example ofnegative cooperation in human rights would be the withholding ofmaterial support for police or military forces that are known to be engaging in serious violations. (See Section C. below for examples from US. legislation and practice, e.g., to deny export licenses for crime control equipment or munitions to regimes that grossly violate human rights.) Other variants would be withdrawal of various forms of support for regimes that seriously violate human rights, as with the spectrum of measures against the former apartheid regimes in Southern Rhodesia and South Africa. Although it may not be obvious that "negative" action is a form of human rights cooperation, the present paper maintains that such action is not only cooperation but arguably one of the most potent modes of human rights co operation. Some might question whether "negative cooperation" should qualify as "cooperation" at all: Is it merely unilateral action under another name? If "cooperation" etymologically requires working with someone else, with whom does a "negative cooperator" work? For the purposes of the present analysis, it is sufficient to recall that the human rights norms in question are those of the community as a whole. In other words, a negative cooperator is not pursuing a unilateralist agenda but rather is working to support a normative comrnitrnent of the entire international community. The negative cooperator (which is typically aState, but could

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also be an international organization, a substate entity, or even a private person)35 participates in implementation and enforcement of international human rights norms by stopping those of its own activities that could contribute to human rights violations in another State. Analytically, it may not matter whether a negative cooperator acts by itse1f or "works with" another party, as long as it acts in support of a community purpose: In a larger sense, it is acting on behalf of the entire community to ensure that it has taken the steps within its own power to repress any human rights violations in third countries in which it might otherwise be irnplicated. The ftrst actor to decide on a program of negative cooperation may not have identiftable partners in its endeavor at the outset; but others could later join on their own initiative or be persuaded or induced to do SO.36 (4) Transnational cooperation: In other words, cooperation to solve a problem that requires action across national boundaries. An example of transnational human rights cooperation would be extradition and/or judicial assistance to make possible the prosecution of an individual accused of a serious violation of human rights, such as torture. Such an obligation is explicitly established in some human rights treaties, such as the Convention Against Torture cited above. 37 The recent Pinochet extradition proceeding could be an exarnple of cooperation within a 35 See infra (note 54), on measures by State and local governments in the Vnited States to distance themselves from certain highly repressive governments. 36 A first State could decide, for example, not to supply weapons to a regime that would use them for oppression or genocide. Other States might then agree on a concerted policy to deny arms export licenses for the same reason. Later, a general arms embargo might be recommended or mandated within the framework of an international organization, as with the V.N. sanctions against the apartheid regimes in Southern Rhodesia or South Africa. Cf SlRES/217 (1965); SlRES/232 (1966); SIRES/418 (1977). Vnder the theory ofthe present paper, each such step in a progression of stronger and more tightly organized sanctions constitutes negative cooperation. It is not necessary and indeed would be misleading to reserve the term "cooperation" only for voluntary action among a multiplicity of actors. One State can "cooperate" to advance a community objective, whether or not others follow its lead. Conversely, parties who regulate their own conduct in accordance with adecision of an international organization (such as a sanctions resolution adopted by the Security Council under Chapter VII of the V.N. Charter) are thereby cooperating, even ifthey do so unwillingly or under protest. Compare Lisa Martin, Coercive Cooperation: Explaining Multilateral Economic Sanctions, 1992, (greater participation in economic sanctions found when an international institution organized the sanctions program). 37 Convention Against Torture (note 16), Art. 9. The International Law Commission referred to "acts, such as trade in slaves, piracy or genocide, in the suppression of which every State is called upon to co-operate" as possible illustrations ofjus cogens (peremptory norms). ILC Report (1966) 11 Yb. ILC 169,247-248.

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treaty framework to ensure that allegations oftorture are proseeuted. 38 An obligation to eooperate in proseeuting other serious human rights violations may be implicit in the nature of the offense, whether or not explieitly provided for by treaty.39 (5) Technical assistance is eooperation to offer expertise or assistanee toward mitigating violations or enhaneing eomplianee. An example of teehnieal assistanee in human rights would be training of law enforeement or judieial personne1. 40 More ambitious examples are "rule-of-Iaw" edueation programs that seek to ineulcate human rights values aeross the board. 41 (6) Foreign aid (wealth transfer). International eooperation in support ofhuman rights eould take the form of foreign assistanee or other forms of resouree transfer, with human rights improvements as a potential byproduet. It may be debated whether simple redistribution ofresourees qualifies as human rights eooperation: 42 This would depend on how the resourees are used. The donor may speeify the approved expenditures, whieh eould be limited to eategories likely to promote

38 See, e.g., the decision ofthe second panel ofthe House of Lords in Regina v. Bartle, Bow Street Stipendiary Magistrate and Comrnissioner of Police, ex parte Pinochet, 2 W.L.R. 827, ILM 38 (1999), 581. 39 Compare the General Assembly Resolution on Principles oflnternational Co-operation in the Detection, Arrest, Extradition and Punishment ofPersons Guilty ofWar Crimes and Crimes Against Humanity, GA Res. 3074 of 13 December 1973 reprinted in: ILM 13 (1974),230, which provides that States "shall co-operate with each other on abilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity" (para. 3), shall assist each other in bringing persons to trial (para. 4), and shall cooperate with respect to extradition and collection and exchange of evidence (paras. 5-6).