New Trends in International Lawmaking - International 'Legislation' in the Public Interest: Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law, March 6 to 8, 1996 [1 ed.] 9783428491407, 9783428091409

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New Trends in International Lawrnaking International 'Legislation' in the Public Interest

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel Herausgegeben von Jost Delbrück Walther-Schücking-Institut für Internationales Recht

121

Völkerrechtlicher Beirat des Instituts:

Daniel Bardonnet I'Universite de Paris

n

Rudolf Bernhardt Heidelberg Lucius Caflisch Institut Universitaire de Hautes Etudes Internationales, Geneve

Fred L. Morrison University of Minnesota, Minneapolis Albrecht Randelzhofer Freie Universität Berlin

Antonius Eitel New York; Bonn

Krzysztof Skubiszewski Polish Academy of Sciences, Warsaw; The Hague

Luigi Ferrari Bravo UniversitA di Roma; The Hague

Christian Tomuschat Humboldt-Universität zu Berlin

Louis Henkin Columbia University, New York

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

New Trends in International Lawrnaking International 'Legislation' in the Public Interest Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law March 6 to 8, 1996

Edited by

Jost Delbrück Assistant Editor: Ursula E. Heinz

Duncker & Humblot · Berlin

Die Deutsche Bibliothek - CIP-Einheitsaufnahme New trends in internationallawmaking - international ''legislation'' in the public interest : proceedings of an international symposium of the Kiel Walther Schücking Institute of International Law, March 6 to 8, 1996/ ed. by Jost Delbrück. Assistant ed.: Ursula E. Heinz. - Berlin : Duncker und Humblot, 1997 (Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel; 121) ISBN 3-428-09140-X

Alle Rechte, einschließlich das der Übersetzung, vorbehalten. Ohne ausdrückliche Genehmigung des Verlages ist es nicht gestattet, das Buch oder Teile daraus in irgendeiner Weise zu vervieWiltigen. © 1997 Duncker & Humblot GmbH, Berlin Fotoprint: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0720-7263 ISBN 3-428-09140-X Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706

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Foreword After the collapse ofthe Soviet Union and the end ofthe Cold War hopes ran highly that the international community was set for a less conflict and problem ridden future, indeed, that the time had come for the creation of a New World Order which will be characterized by a new sense of cooperation and - above all the respect for the rule oflaw in international relations. As we have soon realized, these hopes for at least the dawn ofthe millenium were premature. It is true that the end ofthe Cold War has brought about a considerable increase ofpolitical cooperation within the organs ofthe United Nations, namely among the permanent members ofthe Security Council, which enabled the United Nations to function more effectively in coping with breaches and threats to international peace and security. The very fact, however, that the Organization has been faced with a growing number of serious international- and more significantly domestic - conflicts involving heavy use of military force and bringing about the most serious violations ofbasic human rights, has made it clear that the present international system is not less but even more conflict ridden than in the preceding era. Etbnic and new nationalist divisions which were artificially covered up by the overarching EastWest conflict formation were unleashed after the end ofthe Cold War. But even more importantly, the disappearance ofthe dominant East-West conflict served as an eye-opener for the international community for other formidable challenges wh ich are no less serious than the former military and ideological confrontation between East and West: the new - or rather now clearly perceived - threat scenarios include global environmental hazards, poverty generated mass migrations, and international terrorism which in view of the still not satisfactorily solved problem of containing the proliferation of weapons of mass destruction has taken on a new dimension. Although undeniably the task of meeting these challenges is an intrinsically political one, there can be no serious doubt that respective political steps to cope with these global threats to the well-being ofhumankind cannot be effectively taken without an adequate and enforceable legal framework. And it is quite evident, as weIl, that such international or global legal framework cannot be designed on the basis of a tradition al sovereignty-oriented internationallaw. And indeed, one can observe that internationallaw has begun to react to the new environment

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Jost Delbrück

in which it is to function more effectively. Modifications ofthe modes of creating adequate legal norms and efforts to broaden the scope of relevant internationallegal norms as weIl as to strengthen their enforceability vis-a-vis third states as in the case ofthe now weIl recognized norms with "erga omnes" effect are sure indications of the changing nature of internationallaw in an era of global hazards. The 1996 International Law Symposium "New Trends in International LawMaking - International 'Legislation' in the Public Interest" held at the WaltherSchücking-Institute ofInternational Law at Kiel from March 6 - 8, 1996 brought together 28 leading international legal scholars from the United States and Europe with a view to probe into these recent developments in the international legal order. Based on four thorough reports delivered by two American and two German scholars, namely professors Bernard Oxman, University of Miami, Florida, Jonathan Charney, Vanderbilt University, Tennessee, Eibe Riedei, University of Mannheim and Klaus Dicke, University of Jena, the participants had the opportunity to discuss in depth the intriguing doctrinal and practical implications of the emerging trend towards "internationallegislation" as distinguished from traditional modes of internationallaw-making. As internationallaw still does not know a form of centralized legislation like it is known in domestic legal orders, the main problem with "internationallegislation," which is meant to be binding on aIl states whether they have consented to the legislated norms or not, is how any such "internationallegislation" can be legitimated vis-a-vis recalcitrant third states. Under traditional internationallaw doctrine such legislation would have been viewed as an unacceptable infringement of state sovereignty. If, however, "international legislation," which is clearly better suited to cope with, for instance, problems of global environmental threats, is to succeed, it is necessary to provide for a new basis of its legitimacy which could justify major infringements of and restraints on state sovereignty which traditionaIly was found in the express or tacit consent of states. The underlying hypothesis of the 1996 Symposium was that such new legitimacy for "legislated" international law could be found in the notion of the "Public loterest" of the international community reflected in certain international legal norms so legislated. As norms in point, one could mention norms protecting basic human rights, norms protecting the ozone layer or threatened living resources of the global commons. Numerous examples of this kind were put forward in the reports. As expected, the ensuing lively discussion did not yet bring about a fuIl consensus with regard to the very fundamental doctrinal implications ofthe recognition of"internationallegislation" for the existing international legal system. But the intense discussions have clearly shown that the hypothesized new trends in international lawmaking are not the result of "day-dreaming" but that

Foreword

7

they these trends can already be traced down in present day internationallaw. And it also became clear that the international legal community has to come to grips with the doctrinal problems posed thereby. This is so not for a l'ar! pour l'ar! exercise but for very practical reasons: if the international community is to deal with the grave challenges it faces, it is in dire need of a robust, enforceable internationallegal order, as such legal framework or constitution for the international system is the very precondition of an international civil society. The Walther-Schücking-Institute is greatly indebted to the Volkswagen-Stiftung which by a generous grant made the 1996 Kiel International Law Symposium possible. The Walther-Schücking-Institute is also pleased to recognize the great hospitality extended to the participants of the Symposium by the Government of Schieswig-Hoistein, namely to State Prime Minister Heide Simonis, and to the Minister of Justice Dr. Klaus Klingner who hosted a dinner reception for the participants. Many thanks are also due to the Christian-Albrechts-University wh ich provided for a very convenient conference room and bus transportation, and to the local Süverkrüp Mercedes-Benz Company for their provision oftransportation means. Kiel, July 1996

Jos! Delbrück

Contents In memoriam Richard B. Li/lieh (1933 - 1996)

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Opening Address

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

17

The International Commons, the International Public loteTest and New Modes of International Lawmaking

Bernhard H Oxman ............................................ .

21

International Environmental Law - A Law to Serve the Public Interest? - An Analysis of the Scope of the Binding Effect of Basic Principles (Public loteTest Norms)

Eibe Riedel Discussion .......................................................

61 99

National Interest vs. the InteTest of the International Community - A Critical Review of Recent UN Security Council Practice

Klaus Dicke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

145

International Lawmaking - Article 38 ofthe IC] Statute Reconsidered

Jonathan 1. Charney

171

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

192

List of Participants .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

229

Abbreviations ABl.EG

= Amtsblatt der Europäischen Gemeinschaften

AJIL

= American Journal of International Law

ASIL

=

AVR

= Archiv des Völkerrechts

BGBl.

= Bundesgesetzblatt

BTDrs.

= Drucksache des Deutschen Bundestages

EA

= Europa-Archiv

ECHR

= European Convention for the Protection of Human Rights and Funda-

American Society of International Law

mental Freedoms EEZ

= Exc\usive Economic Zone

EJIL

= European Journal ofInternational Law

EPIL

= Encyc\opedia ofPublic International Law

EuGRZ

= Europäische Grundrechte Zeitschrift

GYIL

= German Yearbook of International Law

ICAO

= International Civil A viation Organization

ICJ

= International Court of Justice

ICLQ

=

ILC

= International Law Commission

ILM

= International Legal Materials

ILO

= International Labor Organization

LOS

= Law ofthe Sea

NAM

= Non-Aligned Movement

International and Comparative Law Quarterly

NGO

= Non-Governmental Organization

NILR

=

NVwZ

= Neue Zeitschrift rur Verwaltungsrecht

ODIL

= Ocean Development & International Law

Netherlands International Law Review

Abbreviations ÖZöRuV

= Österreichische Zeitschrift für öffentliches Recht und Völkerrecht

PCH

= Pennanent Court of International Justice

PIN

= Public Interest Nonn

RdC

= Recueil des Cours

RIAA

= Reports of International ArbitraI Awards

UNCLOS

= United Nations Conference on the Law ofthe Sea

UNITA

= Uniäo Nacional para a Independencia Total de Angola

UNPROFOR

= United Nations Protection Force in the fonner Yugoslavia

UNTAC

= United Nations Transitional Authority in Carnbodia

UNTS

= United Nations Treaty Series

VN

= Vereinte Nationen

ZaöRV

= Zeitschrift rur ausländisches öffentliches Recht und Völkerrecht

ZRP

= Zeitschrift rur Rechtspolitik

11

In memoriam Richard B. Lillich (1933 - 1996) Howard W. Smith Professor ofLaw, University ofVirginia

When, in March of 1996, Richard Lillich visited the Walther-Schücking-Institute of Inter-national Law to participate in the 19th biennial International Law Symposium on "New Trends in International Lawrnaking - International 'Legislation' in the Public Interest" none ofthe participants could have imagined that this would be his last visit to Kiel. Richard Lillich, who had attended a great number ofthe international symposia and conferences hosted by the Walther-SchückingInstitute, was as active as ever and contributed impressively to the round table discussions ofthe 1996 symposium, the format ofwhich he very much liked because of the opportunities that these symposia offer for in depth exchanges of innovative ideas. When he left Kiel, it was a foregone conclusion, as much for him as for the hosts, that he wouldjoin the Walther-Schücking-Institute again for the next symposium in 1998. This plan was not to come to pass. On August 3, 1996 Richard Lillich died of a heart attack at his much beloved farm in Albemarle County, near Charlottesville, Virginia. Richard Lillich was one ofthe leading internationallaw scholars who was held in high esteem in the international legal community worldwide. Although endowed with a broad-ranging intellect and with a deep interest in the many facets of the fast growing discipline ofinternationallaw, Richard Lillich found his special calling as an engaged and creative scholar in and a protagonist of the special field of the international protection of human rights. As one of his colleagues at his Law School aptly observed, Richard Lillich "was there at the creation of this discipline."l Witness to this are the innumerable articles on various aspects ofthe internationallaw ofhuman rights and particularly his casebook "International Human Rights - Problems ofLaw, Policy and Practice," which was the first ofits kind. The first edition was published in co-editorship with Lillich's longtime colleague and co-worker in the international human rights law field, the late Frank C. New1 Cited from the Daily Progress, Charlottesville, Va., August 8, 1996. Some ofthe facts mentioned in the "in memoriam" are also based on this newspaper report.

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Jost Delbrück

man of the University of California at Berkeley. The second edition was then published by Richard Lillich as sole editor. The third - and sadly the last done by Lillich - was published in 1995 in collaboration with Hurst Hannum who once had been a student ofNewman. This book is ofparticular importance because it highlights a number ofLillich's characteristics as a scholar, a teacher, and a human rights activist in the best sense of the word. The book bears witness to the high scholarly standard that Lillich was committed to. In its didactical and pedagogical design it emphasizes Lillich' s lifelong commitment to the education of his students, foremost, of course, in the law of international human rights, which were at the heart of Lillich' sinterest. And fmally, the book is a rich compendium of international human rights practice. In this book, the international human rights law - more often than not considered to be no more than the idealistic daydreams of theorists living in an ivory tower - becomes a matter of the real world. The law is lucidly explained on the basis of problems taken directly from the international human rights practice. Thus, students as weIl as practitioners get a frrst hand introduction to the substance and procedures of international human rights protection - a concern of Lillich throughout his career as a professor and as a human rights practitioner which he was, as weIl. In 1978 he founded the International Human Rights Group, a human rights organization based in Washington, D.C. Furthermore, he served as President ofthe Procedural Aspects ofInternational Law Institute. He also worked, at various instances, as a legal consultant to the US Department of Justice, the United States Naval War College, and the United Nations Compensation Commission. That he also made his contribution to the dissemination of internationallaw in general is borne out by the fact that he served as member of the board of editors of the American Journal of International Law for more than two decades. With Richard Lillich's untimely early death the international legal community has suffered an immeasurable loss. But he will remain with us through his scholarly work, and he will live on in the large number of students he has taught and to whom he passed on his ultimate message which he set out in the words from the Book of Common Prayer which he and Hurst Hannum have chosen as their motto for the 3rd edition ofthe Human Rights Law:

15

In memoriarn Richard B. Lillich (1933 - 1996)

"For the poor and the oppressed, for the unemployed and the destitute, for prisoners and captives, and for all who remember and care for them." Kiel, December 1996

Jost Delbrück

Opening Address lost Delbrück' Your Excellency, dear Colleagues, Ladies and Gentlemen, it is a great honor and my privilege to welcome you very warmlyon behalf of the Walther-Schücking-Institute ofInternational Law at the Christian-AlbrechtsUniversity at Kiel as participants of the 15th of the biennial International Law Symposia held at Kiel. Although we neither celebrate any major anniversary of the Institute, as we did last time, nor that of any other memorable event in the history of our University, there is something special about this symposium: it is the first to be held under the auspices ofthe Institute renamed. By government decree ofSeptember 1995 the Institute is now called the "Walther-Schücking-Institute of International Law" in honor of its second director, Professor Dr. Walther Schükking, the first and only German Judge on the Permanent International Court of Justice, who was ousted from his Kiel professorship by the National-Socialist authorities and with the jubilant support of the NS Student Movement in Kiel in 1933. We are grateful to the Schücking family for their consent to this renaming ofthe Institute which - by the way - used to be known abroad under the name of "Schücking-Institute" already in the 20ies and 30ies! I have the further honor to convey to you a warm welcome on behalf of the Dean ofthe Faculty ofLaw ofChristian-Albrechts-University who regrets not to be able to be present this morning. Let me express my great pleasure that our invitation to this symposium has met with such wonderful response on the part of the invited. We are especially pleased to welcome fIve members of our Advisory Board, among them our colleagues Judge Ferrari Bravo and Professor Bernhardt, Vice-President ofthe European Court ofHuman Rights. My special welcome and thanks got to the four rapporteurs, Professors Oxman and Charney from the United States, and Professors Riede/ and Dicke, two "off-springs" from the Walther• Director ofthe Walther-Schücking-Institute ofintemational Law at the University of Kiel, Germany; Visiting Professor at the Indiana University School of Law, Bloomington, USA. 2 Symposium 1996

18

Jost Delbrück

Schücking-Institute and now professors at the universities at Mannheim and Jena, respectively. It goes without saying that we equally appreciate all ofyou participating in this symposium, but I like to extend a special welcome to those of you who are attending for the first time: welcome Professor Shelton and Professor Fidler! Thank you all, once again, for coming to the 1996 International Law Symposium! In order not to get overexcited, though, I have to tell you that Sir Arthur Watts had to cancel his promise to attend because he has unexpectedly to appear with the Nigerian team of counsels before the ICl We also very much regret that Bruno Simma and Albrecht RandelzhoJer are unable to attend because they fell ill with fiue. All three have asked me to express their deep regret and disappointment not be able to participate. The task before us will not be an easy one. The papers to be presented will take us out to the frontiers ofmodern internationallaw and, at the same time, will confront us with very basic doctrinal issues weIl known to the international legal theorists, but of recurring interest, as is the case today. Increasing challenges to the international community - global in nature, such as the protection against global warming, the protection of natural resources and other basic preconditions ofthe future viability of"Space Ship Earth," and the universality of at least basic human rights and their enforcement - not only demand the creation of a respective binding regulatory framework but require its universal implementation regardless of some states' express or implicit objection; as Jonathan Charney has put it convincingly in his piece on "Universal International Law": "The international community may establish internationallaw that will bind every state without exception. There is no constitutional or jurisprudential bar to such universal internationallawrnaking .... This newly evolving process [ofuniversallawmaking] further enables the international legal system to attend to universal problems that increasingly require solutions in internationallaw. They include threats to the peace, violations of fundamental human rights and risks that could envelop all humankind by severely damaging the global environment. Some may question the authority to legislate universally, even in the face of some dissent, because it appears to be inconsistent with the sovereignty and autonomy of states. Such apprehension is not unreasonable. The international legal system, however, will invoke this authority sparingly. Fortunately, it has the authority to deal with some ofthe gravest threats to the earth and humankind as a whole. Solving these problems must not be thwarted by the objections or actions of a few obstinate states." In other words, obviously there are international legal norms which are designed to protect the public interest of the international community and which, therefore, are binding upon all states because these norms are "necessary" - not in an empirical, but in

Opening Address

19

a nonnative sense as they are based on a universally shared value judgement, e.g. that the survival ofhumankind is desirable. This may seem provocative to some, and it is meant as a provocation in the literal sense of the word: it is meant as a "pro-vocation" of a thorough debate of whether or not we are facing new trends in international lawrnaking, and if we actually do what these trends mean with regard to the very foundations of internationallaw in a globalizing international community. I wish us all a stimulating and hopefully enlightening exchange ofideas. Thank you!

2*

The International Commons, the International Public Interest and New Modes of International Lawmaking Bernard H. Oxman'

We owe a debt of gratitude to those who, by posing the question of public interest norms and globalization as a normative idea, have invited a richly textured debate about the nature of global common interests, the means for identifying and promoting those interests, and the extent to which those interests may be served by accepting or restraining conflicting claims for autonomy, be they by individuals, groups, states, or supranational bodies. How we think and talk about these issues can make a difference. H L. Mencken defmed conscience as the inner voice which wams us that someone may be looking. When Professor Delbrück honored me with an invitation to present this paper, I hesitated. Influenced as I am by concerns such as those expressed in Propser Weil's seminal work on relative normativity, I was not entirely certain ofthe extent to which I found it helpful to think in terms of some ofthe concepts outlined. He suggested that I express those doubts.

I. Public Interest Norms

Those positing the idea of public interest norms presumably intend to distinguish them from other norms. But they presumably do not intend to suggest that other norms of internationallaw are not in the public interest. Yet they cannot escape the possible consequences not only ofbeing taken Iiterally, but of suggesting a hierarchical relationship between some obligations and others .

• Professor ofLaw, University ofMiami, Schoo! ofLaw, Cora! Gab!es, F!orida, USA.

22

Bernard H. Oxman

To the extent it is rooted in an epistemological rather than functional concept of obligations erga omnes, discussion of so-called public interest norms, such as the duty to respect human rights or to protect the environment, can begin to take on the quality of discussions ofpublic law, and very subtly begin to introduce the public/private distinction into internationallaw. That again may not be the intent, but it could weIl be the effect. Internationallaw norms are traditionally regarded as strangers to the distinction between public law and private law. Today many ofus use the terms "internationallaw" and "public internationallaw" interchangeably to describe the source of norms external to and legally binding upon states. We distinguish international law from the roles of municipallaw dealing with the international aspects of private transactions and private disputes: those roles of municipallaw are variously referred to as conflict oflaws or "private internationallaw."1 To be sure, not only the analysis but the development of internationallaw is and should be influenced by the rich and sophisticated sources available in municipallaw. 2 The distinction between public law and private law is no stranger to many legal systems. But it is amistake for internationallawyers to treat the distinction as an immutable foundation for the analysis ofmunicipallaw, ifnot law itself. The distinction is more central to the structure of some systems than others, at least in terms oftraditional explications ofthe system.) Arguments about the I Of course, just as the instruments of municipal public law, including constitutions and statutes, may be used to prescribe rules of private law, so the instruments of public international law may be used to prescribe rules of private law. Thus, for example, the various Hague Conventions on private law become legally operative and binding upon states by virtue ofpublic internationallaw, but the rules they set forth are addressed largely to matters that are frequently, although not invariably, regarded as coming within the domain of private law in municipallegal systems. The same would be true, for example, of the 1980 UN Convention on Contracts for the International Sale of Goods, UN doc. AlCONF. 97118, Annex I. The legal authority ofthe Convention is determined by public internationallaw; its legal content, under the rules of public internationallaw regarding treaty interpretation, is informed by the commerciallaw and commercial customs of the various municipallegal systems whose concepts it may incorporate, harmonize, modify, or even avoid. I would not expect a commercial law expert necessarily to be the best person to decide whether the Convention is legally binding on a particular state (or self-executing under the municipal law ofthat state), and I would not expect an expert in public internationallaw necessarily to be the best person to interpret the Convention's effect on letters of credit. 2 This is expressly recognized by the reference to general principles of law recognized by civilized nations in article 38 ofthe Statute ofthe International Court of Justice. ) This writer was educated in an American legal environment where formal classificati on is itself suspect and where very little is explicitly described by a distinction between

The International Commons ... and New Modes ofLawmaking

23

precise nature of the public/private distinction defme a vast area of contention. Some may maintain that the distinction serves to obscure the public policy functions of private law as weIl as the private interests served by public law. Others may dismiss the distinction as wholly problematic. It has not been established that the traditional distinction in municipallaw between public law and private law is helpful to the comprehension or development of internationallaw. Since internationallaw is traditionally regarded as public law, the effect of introducing the distinction would be to re-characterize some, perhaps much, of international law as an international analog of private law, or worse still as not in the public interest in some sense. To what end? Other kinds ofterminology and analysis may have the same hierarchical effect. Thus, for example, Professor Delbrück believes that "internationalization serves as a supplement to the nation-state's efforts to satisfy the needs of its people, i.e., the national interest," but that "globalization as distinct from internationalization denotes a process of denationalization of clusters of political, economic and social activities," and that, when understood as a normative concept, "globalization is to serve the common good 0/ humankind, e.g., the preservation of a viable environment or the provision of general economic and social welfare."4 The Vienna Convention on the Law of Treaties unleashed a cottage industry with its references to peremptory norms orjus cogens. 5 Some have found it useful to seek to expand the scope of the abstract concept of peremptory norms to further various praiseworthy agendas. But in doing so, they seem to have increased the divide between international law as discussed in the academy and as applied by states and tribunals. The weIl-understood distinction in the law of agreements between the right of the parties to alter their duties inter se and their inability to alter their duties to third parties or the community as a whole shows unsettling signs of mutating under the lofty banner of peremptory norms into a classification of the obligations of states under internationallaw generally. In other words, the idea of publie law and private law. Nevertheless, many individual rights proteeted by the federal eonstitution are often treated as rights under publie law in the sense that they may be invoked only against the state and its agents. That in turn provides a rieh source for debate among American scholars about the validity and utility ofthe distinetion between the publie and the private. 4 Jost Delbrück, Globalization ofLaw, Polities, and Markets - Implieations for Domestie Law - A European Perspeetive, Indiana Journal of Global Legal Studies, vol. 1 (1994), 9, 10 - 11. 5 Vienna Convention on the Law ofTreaties, 23 May 1969, art. 53, UNTS, vol. 1155, 331.

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Bemard H. Oxman

peremptory norms, taken literally and unleashed from its role in the law of agreements, tends to delegitimate the other norms, implying that somehow they are less binding or less worthy of respect than peremptory norms, indeed that they are not necessarily peremptory ofmunicipallaw or state policy. This is a dangerous road. There is reason to question the utility of c1assifying the norms of international law in a manner that implies a legal or moral hierarchy. Whatever the intent, the c1assifications may have the same effect as what one might call the "I really mean it" style of legal drafting. If anything is accomplished by specifying that a particular rule is to be respected in all cases without any exception whatsoever, it might weil be an implication a contrario with respect to rules that do not carry this appendage. On the surface, it is ironie that a significant motive for the critique of the public/private distinction in municipal law mayaiso be a significant motive for attempting to incorporate the distinction into internationallaw through the intermediation of the concept of public interest norms. Critics of the distinction may decry the lack of emphasis in municipal private law on public law values such as participation and solidarity. It is the perceived lack of emphasis on such values in international law that stimulates attempts to import the idea of public interest norms into internationallaw. Egoism is the evil to be remedied: ofthe individual in municipal private law, and ofthe state in internationallaw. In both cases the object is to make the system more responsive to public law values: in the former case by collapsing the idea of aseparate public law, and in the latter case by celebrating the emergence of a genuine public law in the form of public interest norms in which the state is assimilated to, ifnot dismissed as, a private actor. Such a theoretical approach may exist in symbiosis with specific universal agendas, playing both a normative and a descriptive role. Most if not all universal agendas sooner or later claim hegemony over assertions of autonomy. Precisely because public law is understood to give a high priority to values of participation and solidarity, a theory that accords supremacy to public interest norms may provide the jurisprudential foundation for the advancement of a particular universal agenda; in that case the theory is playing an obvious normative role. The supremacy of public law also may be derived from an examination of specific instances in which universal agendas have prevailed over assertions of autonomy; in that case the theory is playing a descriptive role. But this may be deceiving. The descriptive accuracy of the theory with respect to questions resolved may weil strengthen its normative force with respect to questions unresolved. Imperceptibly, theory becomes doctrine.

The International Commons ... and New Modes of Lawmaking

25

Environmental protection is an example of the public interest and a universal agenda. It is a good example because the appeal of environmentalism rests not onlyon faith in its universal prophecy but on empirical observation and scientific projection whose acceptance transcends cultural divides. On the level of municipallaw, the state is the public interest ally of environmentalism, seeking to restrain the autonomy of individuals and "private" organizations that emerges from various private law regimes, including property and contract, and to redirect the energies ofprivate actors in ways that further environmental goals. 6 On the level ofinternationallaw, however, state autonomy becomes an obstacle to the achievement of certain universal goals of environmentalism: while the state remains the enforcement mechanism, on normative questions an alliance is sought with supranational substitutes, be they institutional such as international organizations and tribunals, or doctrinal such as expansive notions of customary internationallaw or jus cogens or obligations erga omnes or benign "objective regimes." No one doubts the importance of achieving widespread acceptance and enforcement by states of environmental restraints. While some progress already has been made, very much more remains to be done. Is it helpful or harmful to characterize the progress that has been made as evidence of the emergence of special public interest norms in internationallaw? Apart from essentially symbolic events, advancing the values we associate with public law and the public interest, such as participation and solidarity, will require the active cooperation of the state and its organs both in international institutions and in enforcing the decisions ofthose institutions. This requires w:idely accepted treaties. No matter how elegant or cogent, legal arguments rooted in customary law or first principles, includingjus cogens, obligations erga omnes, and "objective regimes," are simply not equal to the task. Internationallaw has long recognized this fact. That is why it requires express consent to subject astate to the jurisdiction of an international organization or an international tribunal. Functionalism is the most plausible policy for advancing either universal agendas or general "public law" values. In each functional context, the case for restricting autonomy is made on the merits. Two basic arguments may be used to promote acceptance of specific restraints in a particular functional context. First, the benefits of imposing the specific restraints on others outweigh the costs of accepting the restraints. Second, the particular goal (e.g., protecting the ozone layer) 6 An example would be the elaborate environmental provisions to be found in a standard contract form used by American banks for commercial loans for the development of real property.

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Bemard H. Oxman

can be achieved only by widespread if not universal acceptance of the specific restraints. Acceptance of a treaty containing specific functional nonnative or institutional restraints may be opposed by those who regard the treaty as a dangerous precedent. They may see it as part of an evolving general sacrifice of national autonomy, effectively if imprecisely portrayed as an abandonment of sovereignty. Such individuals believe strongly that a comprehensive transfer of sovereign functions to global institutions is not desirable. They are unlikely to be alone in that view. To persuade these individuals to accept ratification oftreaties containing specific functional nonnative or institutional restraints, one must seek to allay their concems about precedent. Put simply, the classic response to their concems is that precedents are precedents only when we later choose to accept and use them as precedents. That response will be scrutinized not only for its predictive accuracy but for its honesty. Characterizing functional restraints as part of an evolving "public interest law" may excite anationalist backlash. What nationalists fear is what those engaged in the "public interest law" project seem to desire. Thus, the issue is no longer merely whether the specific restraints may evolve into a broader abandonment of autonomy and sovereignty, but whether that is in fact the intention of an internationalist elite operating outside the ordinary constraints of democratic (or any other) political control. Then there is an ultimate problem of substance. What is the "public interest"? Who defines it? The question of whether the public interest is furthered by promoting autonomy or restraint, and if so at what level, is one ofthe most difficult and persistent policy problems of our times. To cite but one example, some human rights advocates may wish to promote the values of individual autonomy with respect to certain civil and political rights, but may be more skeptical of individual autonomy when it comes to certain economic and social rights. The fact that certain "public interest" advocates are employed by non-profit organizations may help to persuade us of the good faith of their prescriptions for the public interest. But it does not guarantee that they are right. And it does not mean that those who have an interest in the outcome are necessarily wrong. Courts discem the public interest every day on the basis of arguments presented on behalf of individuals who have a fmancial or other stake in the outcome. Advocates for different agendas are expected to see the public interest from different perspectives with different priorities and a different sense of the appropriate balance of countervailing values. They should believe and argue that their

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vision of the public interest is the correct one. But it is both inaccurate and destructive to treat their prescriptions as necessarily correct. Were they to be anointed official arbiters ofthe public interest, they would be subject to ordinary public law requirements of participation. And this would force them to abandon their essential role as advocates, modulating articulation with ambiguity and moderating commitment with caution. No subject and no instrument is inherently more deserving than any other of being characterized as in the public interest or as serving the values ofthe public law. Each must be examined on the merits in its own context. There is no apriori catalog of public interest agreements or norms. The construction of a fence between neighbors may serve the public interest and, in context, may even represent welcome cooperation. A trade treaty may help to improve nutrition. A pipeline accord may help to protect the environment from less desirable alternatives. As used in the Barcelona Traction case itself, the idea of an obligation erga omnes arises not from an inherent distinction between public interest norms and other norms but in the context of standing: an obligation whose breach gives rise to a legal right to complain by any state is an obligation owed erga omnes. This is not a new idea. Obstructing the high seas or a strait used for international navigation for an indefmite period of time would be an example of an act whose legality any state might have standing to contest, whether or not it could show specific losses or claim reparations.? This is so because every state has a right ofuse impaired by such obstruction. If individuals are to have certain fundamental rights under internationallaw as against their state of nationality whether or not they have contacts with any other state, and if individuals are not afforded access to international tribunals in which they may vindicate those rights directly, then those rights can be vindicated only if states other than the state of nationality have standing to complain. Universal standing is the appropriate solution to the procedural problem. For purposes of establishing universal standing we postulate an obligation erga omnes. Ifwe had effective universal human rights courts to which all individuals had free access de jure and de facto, we might not need to accord standing to all states, and in that procedural sense we might forego imposing an obligation erga omnes notwithstanding any philosophical views we had about the inherently universal nature of human rights obligations. 8 At least to the extent the omnes is understood to consist of states. for example, the Fourteenth Amendment to the Constitution ofthe United States establishes the duties ofthe individual states ofthe United States to respect fundamental 7

8 Thus,

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In sum, I approach the ideas of aseparate emerging international public interest law and an apriori determination of the international public interest with considerable caution. Some may choose nevertheless to regard the remainder ofthese remarks as support for their less reserved views on these matters.

11. International Legislation It is not clear to me what purpose it serves to use a strong term such as "internationallegislation." Analytical purposes could be served by using terminology less evocative ofsovereignty. Although many ofus may consider both legislative and lesser forms of regulatory power to be the result of and subject to adelegation ofpower, highly circumscribed delegations dealing only with one type of activity are typica11y associated with administrative regulation rather than legislation. True enough, we may wish to defme "Iegislation" to embrace a11 forms of rule-making, and there may be useful analytical reasons for doing so. By why that word? Depending on how one defmes "Iegislation," those who ca11 the "common law" a system of "judiciallegislation" may be right, but the political effect of such a description may be provocative.

Far from reassuring those skeptical about the delegation of powers to international organizations, the term international legislation is more likely to arouse their suspicions. And far from convincing those who believe intemationallaw is not law because there is no supranational state to legislate, enforce, and adjudicate its norms, the rebuttal that there is internationallegislation tends to concede a faulty major premise regarding the nature of "law" and then offer a less-than-overwhelming case for the minor premise. This being said, I do not propose to rewrite the agenda of this symposium. Rather, I proffer a working hypothesis as to what is meant by "intemationallegislation" not as a fixed defmition, but rather as an analytical tool for distinguishing legislation from other sources ofbinding rules for purposes ofthis paper. The working hypothesis is that intemationallegislation has three characteristics. It is a: human rights. Those duties may be enforced direct1y by the individuals concerned in state and federal courts and, in certain instances, by federal agencies. The states ofthe United States do not sue each other in the US Supreme Court to ensure respect for such duties. It is not clear that they would have standing to do so. See Charles A. Wright, Law ofFederal Courts, 1994,806-15.

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written articulation of rules that have legally binding effect as such promulgated by a process to which express authority has been delegated a prior; to make binding rules without affIrmative aposteriori assent to those rules by those bound. This defmition does not exclude so-called "tacit amendment" procedures, but it does otherwise exclude treaties, even global multilateral treaties, because they require affirmative aposteriori assent by those bound, be it by signature, ratification, or accession. Apart from the effect on the parties to the case, it excludes judicial opinions, at least in systems like the internationallaw system that do not accord legally binding effect as such to articulations of rules in judicial precedent. It excludes influential nonbinding resolutions of international organizations, because they do not have legally binding effect as such. Finally this defmition excludes customary law, because there are no written articulations of the rules that have legally binding effect as such. One may fmd highly authoritative articulations of opinio juris sive necessitatis in the treaties, decisions, and resolutions adopted by international organizations and conferences and in the opinions of courts, but to change the law these written articulations must withstand the cauldron of state practice and be transformed from emerging norms or presumptive norms to Gust plain) norms. Those who wish to accord such articulations binding effect as such are really seeking to convert them into some species of treaty formation or legislation, the former without express assent a posterior; and the latter without express delegation of authority apriori. Even if regarded as narrow, this defmition of international legislation highlights an important point. The absence of legislation does not mean the absence of law. The defmition also focuses attention on when and why we might want to have legislation as opposed to other types of law. In this regard we might consider a variety of factors, including the relative determinacy of rules and their applicability, participation in the formation and application of the rules, and the time needed for a binding rule to emerge. A word on participation: The most active affected states have substantial affirmative and negative influence over state practice on any given matter, and therefore over the content of customary law. As a group, but perhaps not inter se, they also may have substantial affIrmative and negative influence over the content of treaties or the legislative decisions of international organizations if participation in the relevant negotiations is limited and determined functionally. In addition,

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beeause they may refuse to beeome party, they may have decisive negative influenee over the praetieal effect of globally negotiated treaties, ineluding those eontaining delegations of legislative authority. If the relevant conference or organization is comprised globally, the most aetive affeeted states will to one degree or another share influenee over the eontent of treaties or intemationallegislation with states that are relatively less aetive or affected. This will depend on the deeisionmaking proeedures, both formal and informal.

IH. Common Spaces The term common spaces would seem to be a relatively easy one to understand. At fIrst glanee, it seems to refer to areas that are not subject to the territorial sovereignty of astate. But when we attempt to apply such a hypothesis, we eneounter some difficulties.

1. Outer Space The one area that this simple geographie defmition seems to embraee without diffieulty is outer spaee, including the moon and other eelestial bodies.9 True, there is some squabbling about the geostationary orbit. 10 The "Moon Treaty" is not universally eelebrated. But for the moment the nonterritorial eharaeter of outer spaee, the moon and other celestial bodies under the Outer Spaee Treaty seems seeure,u

9 This is without prejudice, of course, to the law applicable to our relationship with nonterrestrial beings. 10 Quite apart from the dormant territorial claims of equatorial states, there is an astonishing failure among some lawyers to distinguish between traditional functionally based "roles of the road" for common· spaces that would afford operators of geostationary communication satellites protection from interference and privileges ofrepair and replacement, on the one hand, and ideologically charged demands for status-based private "property rights" in positions in the geostationary orbit, on the other hand. Those who iconize John Locke sometimes seem to forget that his was a property regime rooted in use, not speculation. 11 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, UNTS, vol. 610,205.

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2. Antarctica On the other hand, when we consider Antarctica we encounter some problems. We must ask ourselves: Do we mean by common spaces areas that are not subject to the territorial sovereignty of astate because:

Cl) none is exercised at present; (2) none is claimed at present; (3) existing claims ofterritorial sovereignty are not valid; or (4) the area is not amenable to claims ofterritorial sovereignty in principle? For the moment, we may ignore this question with respect to the unclaimed sector of Antarctica. The states active in Antarctica are party to the Antarctic Treaty. That Treaty prohibits new claims of sovereignty or enlargement of existing claims. 12 Much of Antarctica, however, is subject to territorial claims. As a matter of legal status, the claimed areas of Antarctica are common spaces only from the perspective of states adhering to position (3) or (4). As a practical matter, however, without prejudice to their underlying claims, at least for some purposes and at least for the time being the claimants may behave in fact in the areas they claim as if those areas were common spaces under position (l); they may do so for political reasons or for legal reasons by virtue oftheir obligations to other states under the Antarctic Treaty, including their obligations to refrain from military and other activities, to respect freedom of scientific research and the right of inspection, and to refrain from exercising jurisdiction over persons engaged in such activities.

3. TheSea The sea, including the subjacent seabed and the superjacent air space, poses the most complex problem. The classic high seas and the international seabed area seem to meet a geographic definition of common spaces simply enough. There is, nevertheless, continuing controversy regarding freedom of fishing on the high seas for straddling stocks and highly migratory stocks, controversy that one hopes will be resolved by new agreements on the subject.

12

The Antaretie Treaty, I December 1959, art. IV, para. 2, UNTS, vol. 402, 71.

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But what ofthe exclusive economic zone and the continental shelf? For some purposes, such as exploration and exploitation ofnatural resources, these areas are subject in principle to coastal state sovereign rights. 13 For other purposes, such as navigation, overflight, and the laying and maintenance of submarine cables and pipelines, the same freedoms exist in principle in these areas as on the high seas. 14 Indeed, much of the high seas regime is incorporated by reference into the exc1usive economic zone regime by the UN Convention on the Law of the Sea. 15 A simple geographic defmition of common spaces might apply to the exclusive economic zone and the continental shelfbecause they are not subject to territorial sovereignty but only to enumerated sovereign rights of the coastal stak But this would be misleading. As environmentalists discovered to their dismay in recent UN fisheries negotiations, most coastal states are not prepared to accept the same degree (if any) of international or regional regulation and review of conservation of fisheries in the exclusive economic zone as they are prepared to support for the high seas beyond the exclusive economic zone. Few if any coastal states would be prepared to treat the oil oftheir continental shelf as a common resource. 16 A simple geographic defmition of common spaces revised to refer only to areas beyond "national jurisdiction" would solve the resource problem but would be equally misleading in other respects. From the perspective of navigation and communications, the exclusive economic zone and the continental shelf are not within national jurisdiction. Because these activities are subject to regimes of freedom of the seas, the problems ofregulating navigation and communications within the exclusive economic zone and on the continental shelf are largely the same as those that obtain on the high seas beyond. Indeed, such observations are not Iimited to areas beyond the territorial sea. Although the sovereignty of the coastal state extends to its internal waters, archipelagic waters, and the territorial sea, there is a right of transit passage through straits and a right of archipelagic sea lanes passage through archipelagic waters. 17 Ships and aircraft exercising those rights are not subject to unilateral coastal state

13 United Nations Convention on the Law ofthe Sea, 10 December 1982, arts. 56, 77 (hereinafter Law ofthe Sea Convention), UN doc. AlCONF.62/122 with Corrigenda. 14 Id., arts. 58(1),78,79,86,87. 15 Id., art. 58(2). 16 The coastal states aceepted limited revenue sharing with respeet to mineral resourees seaward of 200 miles in exchange for agreement on coastal state sovereign rights over the entire continental margin, id., arts. 76, 82. 17 Id., arts. 2, 17,38,49,53.

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legislative measures, and are subject to coastal state enforcement competence only in limited circumstances. 18 There is also a right of innocent passage through the territorial seal, archipelagic waters, and certain internal waters. 19 Ships exercising that right are subject to the jurisdiction of the coastal state only for limited purposes. 20 Accordingly, it is possible that a more helpful analytical conception of common spaces might combine functional and geographic elements: Areas may be regarded as common spaces to the extent they are open to use by all. 21

IV. Jurisdiction in Common Spaces The absence of geographic jurisdiction (whether territorial sovereignty or more limited forms of jurisdiction over an area) does not mean states have no jurisdiction to control behavior in common spaces. All the other ordinary bases of jurisdiction may be used by astate to control activity in common spaces, including: the nationality ofthe person regulated, be it anatural or juridical person (including a ship, aircraft, spacecraft, and perhaps even an expedition); the effects doctrine or objective territorial principle; and universal jurisdiction over certain offenses. There is also an increasing, if still somewhat controversial, use of jurisdiction based on the nationality of the victim. Moreover, most activities in common spaces must be based in, supported from, or otherwise have contact with the territory of one or more states. Thus, an addiId., arts. 41, 42, 54, 233. Id., arts. 8, 17, 45, 52. 20 Id., arts. 21, 22, 23, 25, 26. 21 Notwithstanding the functional utility or accuracy of such an approach, some coastal states might resist conceding the applicability of a term implying geographie status Iike common spaces to their continental shelves and exclusive economic zones. Some Antarctic c1aimants might be uncomfortable applying the term to areas they claim. Thus, however defined, the practical consequence of using the term might be to provoke a dispute about its application or to limit its generally accepted application on earth to the high seas beyond the exclusive economic zone, the seabed beyond the continental shelf, and the unclaimed sector of Antarctica. As both a descriptive and normative matter, such a limitation seems unduly restrictive. This suggests that different terminology might be sought. At the suggestion ofProfessor Louis Henkin, I have been eontemplating the analysis and development of a eoncept he ealls the commonage. That term does not eontain any express reference implying geographie status. The underlying idea has broader, probably mueh broader, connotations than common spaces. 18

19

3 Symposium 1996

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Bemard H. Oxman

tional means for controlling activity in common spaces is for astate to exercise its jurisdiction within its territory. This can take two forms. First, astate may prohibit various types of support in its territory for undesirable activities in common spaces. Thus, for example, astate might prohibit any person in its territory from organizing or supporting an unlicensed expedition to Antarctica. Second, certain requirements for entry into the territory of astate will have the practical effect of forcing global conformity with those requirements by those who wish to use the territory ofthat state. Thus, for example, astate that fixes construction, manning, equipment, or design standards for port entry of ships or landing of aircraft will, in fact although not in form, be assuring that such standards are probably met elsewhere as weIl, including common spaces. Viewed from this perspective, the principal types of international public interest problems that may be posed in common spaces are the same as those posed in areas subject to territorial sovereignty. One or more ofthese problems may arise in any given situation: (I) standards: the need to encourage states to exercise their jurisdiction to achieve defmed ends and the concomitant need to impose a legal duty on states to do so, to secure their compliance with that duty, and to defme what is to be done with reasonable precision;

(2) enforcement: the need to deal with situations in which the state with enforcement jurisdiction in situ, be it the territorial state or the flag state of a ship, is unable or unwilling to exercise its enforcement jurisdiction to achieve defmedends;

(3) harmonization: the need to ensure uniformity or consistency of certain prescriptions.

V. Enforcement Problems Many functional responses to the enforcement problems identified in (2) above may take on the appearance of internationallegislation in the public interest. It is not clear, however, that this is in fact the case.

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1. Piracy

The problem historically posed by piracy on the high seas, for example, was largely an enforcement problem ofthe sort identified in (2) above. It took unusual form because in many cases there was no identifiable flag state. But even were this not the case, few if any flag states or states of nationality were in a position to deal with the problem of"their" pirates everywhere the problem might arise. The solution to the problem posed by piracy was to give every state (including the global naval fleets ofthe principal maritime powers) investigative and arrest jurisdiction in situ. Each arresting state was also accorded jurisdiction to try and punish, which in turn assurnes legislative jurisdiction in most criminal law systems. This was an extraordinary allocation of universal jurisdiction that states unquestionably wished to keep extraordinary. Thus, they needed to defme its limits. As a result, a relatively precise defmition of piracy emerged from state practice and was ultimately codified. This defmition was not primarily needed to create a crime, or to require the extension of jurisdiction, but to circumscribe the allocation ofuniversaljurisdiction, so as to maintain the ordinary jurisdictional system operating in common spaces except as strictly necessary to achieve the desired end of suppressing piracy. This is evident in the piracy provisions of the Law of the Sea Convention. The affirmative duty to repress piracy is expressed as a duty to "co-operate to the fullest possible extent."22 There is no express duty to exercise jurisdiction: the operative word is "may."23 It is therefore evident that the function ofthe elaborate definition of piracy and the provisions regarding its suppression is to circumscribe the assertion and exercise ofuniversaljurisdiction; this includes an express provision on liability for seizure without adequate grounds. 24 Law ofthe Sea Convention (note 13), art. 100. Id., art. 105. 24 Id., arts. 101 - 104, 106, 107. It is useful to bear in mind that piracy applies only on the high seas or in any other place outside the jurisdiction of any state. Where universal jurisdiction (or its rough equivalent) is established to legislate, try and punish offenses that may be committed within the jurisdiction of a foreign state, no additional universal jurisdiction to arrest in situ is typically accorded. Notwithstanding the circumstances of Adolph Eichmann ' s abduction from Argentina, Israel made no assertion of such competence in that case. This important distinction is not apparent in early statements by US Department of Iustice officials characterizing the offenses committed on board the Achille Lauro as piracy, or in some explanations ofthe abduction ofDr. Alvarez Machain from Mexico. It is not 22 2l

3"

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Whether the existence ofuniversal (or otherwise extraordinary) enforcement competence suggests the existence of an international public interest norm is difficult to say. It is not immediately apparent why mayhem and murder affect the international public interest only when committed in common spaces.

2. Shipboard Crimes Recent developments with respect to jurisdiction over crimes committed on board ship may be illuminating in this regard. The past two decades have witnessed substantial growth in the pleasure cruise industry. Unlike the trans-oceanic passenger liners of an earlier era, a large number of cruise ships operate under flags of convenience. They may have no physical contact whatever with the flag state. This is often the case in the United States, for example, because cruise ships cannot operate as economically under US registry.25 Typically, these flag states have neither the capacity nor the inclination to punish ordinary crimes that may occur on board. Moreover, in some cases, extradition to a particular flag state might itself violate applicable human rights norms. From the perspective ofthe cruise industry, its passengers, and the port states, neither a de facta jurisdictional vacuum nor the threat of extradition to the flag state seems the most desirable result. Therefore, port states have responded by extending their legislative jurisdiction over routine crimes committed on board foreign flag ships while at sea, such as murder, rape, assault, and theft. Such legislation has been enacted by Australia, the State of Florida, and the United States Congress. 26 It is enforced when the ship enters port. There is no international defmition ofthe crimes to which this extraordinary jurisdiction may apply. So long as the crimes prosecuted remain limited to acts and omissions ordinarily understood to be criminal by most people, this should not pose much of a problem. If, however, port states begin to use this jurisdiction to extend their particular social or econoinic policies to those on board foreign ships at sea, then sooner or later internationallimitations will be placed on port state

surprising that the treaty negotiated to deal with the Achille Lauro type of problem, like other anti-terrorism treaties, does not accord universal jurisdiction to arrest in situ, even on the high seas. 25 This requires that the cruise ships operate internationally to avoid US cabotage laws. For example, cruises to Alaska typically depart from Vancouver. 26 Fla. Stat. 910.006, 18 U.S.C. § 7 (8).

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criminal jurisdiction. 27 These limitations could take the fonn of definitions of offenses to wh ich such jurisdiction extends. That would not necessarily transfonn those offenses into international crimes or matters of international public interest.

3. Port State Enforcement 0/Environmental Norms

Port states are free to establish and enforce the conditions of entry to their portS. 28 In order to reduce the risks of accidents or pollution, they may establish requirements for port entry regarding such matters as construction, equipment, manning, and design. Because ships are either unable or unlikely to change their construction, equipment, manning, and design, the effect of port entry requirements is to establish universal nonns for all ships visiting the ports in question. To the extent that port states use this competence to enforce compliance with generally accepted standards regarding such matters, there is in effect an international enforcement system for those standards in common spaces based on the territorial sovereignty of each state in its own portS. 29 The conceptually more interesting question regarding port state jurisdiction is whether port states may punish discharges by foreign ships that do not affect their waters. The traditional answer to that question would be "no." Subsequent port entry is in itself an insufficient basis for the exercise of legislative jurisdiction. One may, however, arrive at a different answer to that question if it is refonnulated as an international enforcement problem. From that perspective, what is needed is a response to the fact that some flag states may be unable or unwilling to deal with all unlawful discharges at sea by ships oftheir nationality. Moreover, notwithstanding the establishment of coastal state enforcement competence with respect to discharges in the territorial sea or exclusive economic zone, investiga-

27 Given the reasons why some people go on cruises, some unusual issues for internationallawyers could arise, such as the culturally sensitive questions of who is competent to consent to sexual intercourse and what constitutes consent. 28 Law ofthe Sea Convention (note 13), arts. 2, 8, 25(2), 211. Like all general rights, these rights of course are subject to the treaty obligations of the state concerned. 29 Ifport states establish unilateral norms that are too onerous, taken alone or in combination with the requirements of other states, there will be an adverse affect on their trade. Even reasonable but incompatible requirements of different port states could pose that problem. Should these problems become serious, there would be a need for international action to ensure the uniformity or consistency of the prescriptions. The most likely basis for ensuring uniformity would be generally accepted international standards.

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tion and arrest at sea can be diffieult and expensive. Thus, eoastal states also may be unable or unwilling to deal with pollution violations at sea. A logical funetional response to sueh an enforeement problem is to aeeord port states investigatory powers as weIl as supplementary powers to try and punish for pollution violations virtually anywhere at sea. That is precisely what is done by article 218 ofthe UN Convention on the Law ofthe Sea. However, ifthe pollution oeeurred in foreign waters and does not threaten the waters of the port state, then the port state may institute proeeedings on1y at the request of the flag state, the state in whose waters the violation oecurred, or astate damaged or threatened by a diseharge violation. Moreover, the initiation of timely proeeedings by the flag state requires the suspension of proeeedings by any other state for pollution violations beyond its territorial sea "unless those proeeedings relate to a ease of major damage to the eoastal State or the flag State in question has tepeatedly disregarded its obligation to enforee effeetively the applieable international mies and standards in respeet ofviolations eommitted by its vessels."30 The establishment of this near-universal enforeement jurisdietion of eourse requires agreement on what eonduct of a foreign vessel may be punished. Artiele 218 identifies the offense as "any diseharge ... in violation of applieable international mies and standards established through the eompetent international organization or general diplomatie eonferenee." Mueh eonfusion may be sown by the word "applieable" here and elsewhere in Part XII of the Law of the Sea Convention. Under article 211 (2) of the Convention, the flag state is required to adopt pollution laws and regulations for its vessels that "at least have the same effeet as that of generally aeeepted international mies and standards established through the eompetent international organization or general diplomatie eonferenee." Moreover, under article 211(5), eoastal state legislative eompetenee over diseharges beyond the territorial sea is established solely "for the purpose of enforeement [of] laws and regulations ... eonforming to and giving effeet to generally aeeepted international mies and standards established through the eompetent international organization or general diplomatie eonference;" article 220(3) deseribes this very enforcement power ofthe eoastal state as giving effeet to "applieable" international mies and standards. Sinee port state enforeement eompetenee is elearly established as eomplementary to that of flag states and eoastal states, and sinee the souree ofthe international mies is identieal in all the relevant provisions, it is plausible to eonclude from these provisions

30 Law ofthe Sea Convention (note 13), art. 228, para. 1.

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that "generally accepted" international mIes and standards are "applicable" to the ship for purposes ofarticle 218. 31 While the port state does not have a duty to prosecute under article 218, it does have a duty "as far as practicable" to "comply with requests ... for investigation of a discharge violation at sea" from the flag state or an affected coastal state. This duty is a response to the functional reality that port states are often in the best position to carry out such investigations efficiently from the perspective ofboth the states concerned and the vessel operator. With respect to marine-based sources ofmarine pollution generally, the state withjurisdiction over an activity has a duty to apply at least generally accepted international standards adopted by the competent international organization. 32 That duty is subject to compulsory arbitration or adjudication under the Law ofthe Sea Convention. Only with respect to ships is that duty also expressly enforceable by other states including, in the case of article 218, port states whose waters are unaffected by the pollution. Viewed in functional terms, this result suggests that if the key to control of piracy is inspection and arrest at sea, at least one key to control of discharges from ships is inspection and arrest in port. Of course, both the piracy and port state enforcement regimes may be rooted in notions of an undivided public interest in protection ofthe high seas. But that conclusion is not the only explanation ofthe result and in itself would not explain the different kinds of results produced in the case ofpiracy and port state pollution enforcement. Moreover, why should the existence of a special enforcement arrangement suggest that discharge standards engage an international public interest while construction or manning standards do not? There is no extraordinary jurisdictional system for enforcement of construction or manning standards because the ordinary operation of port state sovereignty, particularly when coupled with compulsory arbitration or adjudication under the Law of the Sea Convention, was regarded as a sufficient protection against flag states that are unable or unwilling to enforce the relevant international standards.

31 For the author's analysis ofthe history and meaning ofthe reference to "generally accepted" international standards, see Bernard H Oxman, The Duty to Respect Generally Accepted International Standards, New York University Journal of International Law and Politics, vol. 24 (1991), 109. 32 Law ofthe Sea Convention (note 13), arts. 208 - 210, 211, para. 2.

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VI. Rules of the Road One of the most significant differences between territorial regimes and common spaces concerns a problem that is sometimes described by the metaphor "rules of the road." If rules of the road are to achieve their purpose, a11 persons whose activities may interfere with each other must respect the same mIes ofthe road. Since the territorial sovereign has jurisdiction over a11 users of its territory, it may require a11 ofthem to respect the same rules ofthe road.1n common spaces, no single state is likely to have jurisdiction over a11 persons whose activities may interfere with each other. The difference, of course, is not absolute. Interaction with foreign states or foreign nationals may create a need for harmonization of rules of the road applicable within national territory. This is the case with respect to international communications, for example. International trade may benefit from a great deal ofharmonization, from weights and measures to the lex mercatoria. But in common spaces, the need for international rules of the road goes beyond functional harmonization. Whether written or unwritten, only international rules of the road will work. Regimes of freedom or autonomy, including those that obtain in eommon spaces, necessarily impose a concomitant duty to respect the freedom or autonomy of others. 33 "Rules ofthe road" are needed, whether to prevent speakers from drowning out each other's messages at a political debate or to prevent ships from colliding at sea. The more crowded the environment, the greater the risk of collision. The more varied the risks of collision, the more elaborate the rules of the road must be. Parliaments could no more function without detailed procedural rules than could navigation survive in a erowded strait without detailed traffie regulation. What would happen to the aviation industry without air traffie control? Rules of the road are norma11y understood as necessary to aeeommodate the desire oftwo or more parties to exereise conflicting freedoms at the same time in the same place. They are not necessarily understood to encompass rules that accommodate general societal interests, such as protection ofthe environment. However, in order to simplify the analysis, the latter rules may be regarded as reasonably analogous.

33 In the law of the sea, this is manifested by a duty of "due regard" or "reasonable regard," id, arts. 27(4), 39(3)(a), 56(2), 58(3), 60(3), 79(5), 87(2), 142(1), 147(1), (3), 234.

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Unwritten custom is a common source for rules ofthe road. My international law students are astonished when I advise them to go to the beach on a sunny day and observe the crowd. Ifthey watch closely, the students will discover elaborate customary rules for accommodating the freedom of each swimmer, suitor, or sun worshipper with the freedom of others. Some rules, like those concerning distances between blankets, may acquire a nuanced precision, depending both on the general level of crowding and on the actual or desired relationship between the occupants. If they listen closely, the students are likely to overhear parents instructing their children in the content ofthe rules and the need to respect them. "Contract" is a rarer source for rules of the road. The reasons are obvious. "Contract" works only ifthose exercising their freedoms are known, and then only if the numbers are sufficiently limited to render workable a system of express unanimous agreement. 34 Albeit not without difficulty, a few political candidates can negotiate a written agreement setting forth the ground rules for a televised political debate between or among them. This may not work at Speaker's Corner in Hyde Park because the potential participants are unknown and may be quite large in number. 35 Customary rules may be inadequate to the need for a variety of reasons. They may be insufficiently precise (especially ifunwritten), insufficiently accepted, or insufficiently responsive to policy goals. If "contract" is the only option for overcoming these difficulties, then there is a structural dilemma. To achieve their purpose, rules ofthe road require respect by all those exercising the relevant freedom. But that can be achieved by "contract" only if every party exercising the relevant freedom is party to the contract. This conclusion derives both from the freedom regime itself, which establishes autonomy with respect to outside control, and from the ordinary regime of agreement, which preserves autonomy absent assent. Delegation of legislative authority is the only recourse available to escape the shortcomings of the custom and contract options. This is done expressly by constitutions, charters, and other constitutive instruments. In internationallaw, express implementation entails establishing a procedure pursuant to wh ich regulations approved by a specified number of votes in an international organization or meeting, or a specified number of govemments, or both, may become binding on all without necessarily obtaining the assent ex posteriori of all. That system itself will 34 Even then, many spouses might attest to the complexities of express negotiation of the rules. 35 To the extent the debate is in fact conducted among a relatively few known participants, express agreement is of course possible.

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achieve universal conformity to the relevant mIes of the road only if all those exercising the pertinent freedoms are bound by the relevant constituent instrument establishing the legislative procedure, or have assented to the specific mIes, or otherwise respect the mIes. There are also other means for achieving in fact, albeit not in form, some of the effects of delegating legislative authority. Perhaps the most celebrated is the transformation of mIes set forth in treaties or resolutions of international organizations into mIes of customary internationallaw binding on all states. Another is to agree that "generally accepted" mIes ofthe road must be respected by all. 36 More controversial is the attempt to bypass the ordinary mIes of assent to treaties by establishing a duty ofnonparties to respect certain "objective regimes." These alternative means may be useful to fill gaps and bring along stragglers, but they are not reliable means for establishing the basic system ifwhat we wish are legislative as distinguished from other types of mIes, that is, written mIes that are binding as such without aposteriori consent to those mles.·This may be especially true for states that are political democracies, and most especially those where the government is not responsible to the parliament. Parliaments may be willing to forego their aposteriori control only ifthey expressly approve delegations of authority. Ifthe states concerned routinely implement the non-binding recommendations of an international organization, then we have an effective system for the time being. What such a system may lack is the measure of dependability and predictability that legal obligation affords. One ofthe functions oflegal obligation is to encourage us to do what we might not otherwise do. In this regard it is neither unique nor infallible, but it has proved useful, even when preaching to the choir. The focus accordingly is on express apriori delegation ofbinding mle-making authority by treaty.

36 See supra, note 31. Although complex, the underlying idea is probably not too far removed from that suggested by the common saying, "When in Rome, do as the Romans." Visitors to Rome will understand that this is not necessarily the same thing as obeying the

imperium.

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VII. The ICAO Model The Convention on International Civil Aviation37 (lCAO Convention) presents the now-classic solution to an international mIes of the road problem. It affects in considerable detail the daily practices of a large, diverse, and increasingly private industry essential to modem communication. It has been described as the strongest widely ratified international regulatory system in existence. The Convention has been an influential precedent when convenient, but not when inconvenient. The ICAO Convention lays down the basic jurisdictional system, applying the

summa divisio between the high seas and the territory of astate (including its territorial waters), 38 and borrowing the idea of nationality of ships by assigning nationality to aircraft, specifically the nationality ofthe state ofregistry.39 It limits the application of its specific provisions to civil aircraft, but sets forth a fundamental duty of the state of registry to ensure that regulations for its military and other state aircraft "will have due regard for the safety of navigation of civil aircraft." The Convention sets forth detailed mIes designed to promote the safety and efficiency ofinternational civil aviation. The key to the Convention's regulatory system is the establishment of the International Civil Aviation Organization and the empowerment of its Council to adopt "international standards" for civil aviation and "for convenience, designate them as Annexes to this Convention."40 Both the territorial state and the state of nationality of the aircraft undertake "to adopt measures to insure that every aircraft ... shall comply with the mIes and regulations relating to the flight and maneuver of aircraft there in force."41 The Convention then specifies, "Over the high seas, the mIes in force shall be those established under this Convention."42 Over the territory of astate, the mIes in force are those ofthe territorial state. 43 However, the territorial state is obliged to keep its

37 Convention on International Civil Aviation, 7 December 1944 (hereinafter ICAO Convention), UNTS, vol. 84, 389. 38 Id., arts. 1,2, 3(a), 5 - 12. 39 Id., art. 17. 40 Id., arts. 37 - 42, 54(1), 57(a). 41 Id., art. 12.

42Id. 43 Id., art. 1l. However, only the ICAO Rules of the Air apply to aircraft in transit

passage ofstraits and archipelagic sea lanes passage, Law ofthe Sea Convention (note 13), arts. 39(3),54.

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own regulations "unifonn, to the greatest possible extent, with those established from time to time under this Convention."44 Because the regulatory organs enjoy a substantial delegation ofpower, the decision-making system is designed to ensure adequate expertise and influence on those organs commensurate with the interests of states affected. The Council consists of representatives of states elected by the Assembly on the basis of interest as weH as geography, so as to "give adequate representation to (1) the States of chief importance in air transport; (2) the States not otherwise included which make the largest contribution to the provision of facilities for international civil air navigation; and (3) the States not otherwise included whose designation will insure that aH major geographic areas ofthe world are represented on the Council."45 The legislative procedure contains three elements. A qualified majority vote in an organ in which the states with the principal interests affected have a substantial voice: A two-thirds vote in the Council is required for the adoption of Annexes containing international standards. A "tacit approval" procedure: An Annex becomes effective "within three months after its submission to the contracting States or at the end of such longer period oftime as the Council may prescribe, unless in the meantime a majority of the contracting States register their disapproval with the Council."46 A limited legal right to "opt out": States are required to give express notice of any "regulations or practices differing in any particular respect from those established by an international standard" or of failure to amend their regulations to confonn to amendments to the international standards. 47 Two elements are key to the operation of this international regulatory system: - an international organization authorized to adopt binding international standards pursuant to a carefuHy modulated procedure; the duty of the territorial state and the state of nationality, in the exercise of their jurisdiction, to adopt and enforce regulations implementing those standards. Id., art. 12. Id., art. 50. The original rnembership ofthe Council was 21. A 1974 Protocol increased it to 33. The Air Navigation Cornmission, consisting of experts "in the science and practice of aeronautics" appointed by the Council, is authorized to recommend modifications ofthe standards to the Council, id., art. 56. 46 Id., art. 90. 47 Id., art. 38. 44

45

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The ICAO Convention is typical in failing to address the question of nonparties, at least directly. In principle, only universal, or at least widespread, ratification can assure the unifonnity of standards for international aviation that is an important object ofthe Convention. The reality, however, is different. Subject to their limited right to opt out of particular standards, once the states slated for membership on the ICAO Council become party, that is, the states in which most aircraft are registered and the states that are the principal destinations for international air traffic, the fonner would be obliged to implement the international standards as municipal regulations applicable to their own aircraft at least over the high seas and the territory of other parties, and the latter would be obliged to implement the international standards as municipal regulations applicable to "every aircraft flying over or maneuvering within its territory," and therefore at the least covering questions such as certification ofthe aircraft and licensing ofthe crew. Moreover, states retain extensive discretion under the Convention regarding landing rights and scheduled service, and therefore have additionalleverage to encourage compliance with safety standards by aircraft operated by nonparties. Practice since adoption ofthe Convention confmns that, although not quite all states are party, the ICAO Convention has functioned largely as a universally respected system for international civil aviation. In making this assessment, however, it is important to recognize that, considered apart from the International Air Transit Services Agreement, the object ofthe ICAO Convention is largely, although not entirely, safety.48 The utility of such a system depends upon the quality of the international standards, the adaptability ofthe regulatory system, and the degree of compliance. The logic ofthe ICAO model is based on three successive points:

48 With respect to flights over the territory of astate, there is a limited right of transit for civil aircraft not engaged in scheduled international air services, and there are some nondiscrimination rules, id., arts. 5, 7, 9, 11, 12. Article 12 of course confirms that civil aircraft on the high seas are subject only to regulation by the state of registry in conformity with the standards established under the Convention.

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1)

An international regulatory system derives its legal effectiveness from the willingness of the states concerned49 to adopt and enforce municipal regulations implementing the standards adopted by the international organization.

2)

The likelihood that states will adopt and enforce municipal regulations implementing the international standards is increased by securing a treaty commitment to do so.

3)

The ability to persuade states to accept such a treaty commitment depends upon their level of confidence that the decision-making process will produce sound results that reasonably accommodate their important interests.

A great deal of heat is expended on the question of whether all three points of the ICAO logic are essential to an effective system for promulgating and enforcing international standards. Sometimes overlooked is the fact that the second point enhances the likelihood of the first, as the third enhances the likelihood of the second. Be that as it may, the ICAO system is a benchmark against which to measure other attempts to deal with the underlying challenges of establishing international legislative systems not only for common spaces but for activities subject to the territorial sovereignty or functional geographic jurisdiction of astate.

VIII. Antarctica The Antarctic Treatyso is more limited in scope than the ICAO Convention. To begin with, it applies only to "the area south of 60 0 South Latitude, including all ice shelves," and even there does not "prejudice or in any way affect the rights, or the exercise of rights, of aily State under internationallaw with regard to the high seas."SI It neither establishes nor assumes the existence or non-existence ofterri49 Who are the "states concemed"? That question has a political, legal and functional dimension. The ICAO Convention is directed at setting the ground rules for global communication by air, and therefore as a political and legal matter seeks to secure the participation of a11 states. As a functional matter the states identified as potential members of the ICAO Council might have negotiated a system among themselves that could have evolved gradua1ly into a universal system. But a broadly negotiated Convention not only had the advantage of increased certainty but, central to the idea of the ICAO Convention, intemationalized the legitimate source of civil aviation regulation. Uniformity is the point of rules of the road. so Antarctic Treaty (note 12). SIld., art. VI.

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torial sovereignty within that area, and expressly asserts the contrary.S2 It assurnes the existence of jurisdietion by the state of nationality of an individual, ship, or aircraft,S3 but establishes thatjurisdiction as exclusive only with respect to official observers and scientific exchange personnel and their staffs. S4 The Antarctic Treaty was negotiated by twelve states with claims over the area or actively conducting activities there, but is open to accession by others. Its primary purposes were political and military: to prevent either an arms race involving the major powers, or a military clash between states with conflicting territorial claims. The need to verify compliance with its limitations on military activities largely explains its unusually strong provisions for notice and inspection of all activities. ss There is a special, even ironie, reason for international measures in Antarctica that is not characteristic of other areas. From the perspective of the territorial claimants, prior assent by treaty explains the presence of foreigners without specific consent. For example, the Treaty's nuanced affirmation of freedom of scientific investigation,S6 useful in its own right, also provides ajuridical basis for explaining the activities of non-claimants in a manner compatible with the legal positions and interests ofthe territorial claimants. Article IX provides for regular Consultative Meetings authorized to adopt measures on a wide variety of matters, including environmental protection. The states permitted to attend and vote are the original twelve parties to the Antarctic Treaty and any other party to the Treaty "during such times as that Contracting Party demonstrates its interest in Antarctica by conducting substantial research activity there, such as the establishment of a scientific station or the despatch of a scientific expedition."S7 This is a relatively stringent requirement for manifestation of interest. S8 In that respect, it is characteristic of the composition of organs of global international organizations accorded legislative authority. S2 Id., art. IV. S3 And perhaps even of an expedition or station, id., art. VII, para. 5 (duty of aState to give notice of expeditions on the part of its ships or nationals or organized in or proceeding from its territory, and of stations occupied by its nationals). S4 Id., art. VIII, para. l. ss Id., art. VII. S6 Id., art. 11. S7 Id., art. IX, para. 2. S8 Its stringency appears to have been moderated in practice in recent years in an effort to bring more states into the fold, and thereby enhance the capacity to resist demands in the UN General Assembly for a new, universally based, regime.

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But the measures adopted by the parties attending Consultative Meetings are reeommendations to their governments. The measures must thereafter be approved formally by the governments of all the parties entitled to attend that Consultative Meeting. 59 Thus, with respeet to that ever-inereasing group of states,6° no legislative authority is delegated either with respeet to the approval proeess or with respeet to the absence ofunanimity. The Treaty says nothing about the legislative effeet on Treaty parties not entitled to attend Consultative Meetings. In short, the regime of the Antaretie Treaty does not eome close to matching the eomprehensive delegation ofpower found in the ICAO Treaty. Both the definition of Antaretiea in Artiele VI, including its treatment of the high seas, and requirements of Article IX regarding both participation in Consultative Meetings and the effeet ofmeasures adopted, explain in large measure why it was eonsidered neeessary to deal with eertain resouree management problems in separate treaties, rather than under the Antaretie Treaty. Proeedures with legislative effeet were ineluded in separate eonventions for eonservation of Antaretie seals61 and eonservation of Antaretie marine living resourees generaIly,62 as weIl as in a now-dormant proposed eonvention on Antaretie mineral resourees. 63

Antarctic Treaty (note 12), art. IX, paras. 1,4. The number has more than doubled from the original twelve. 61 Convention on the Conservation of Antarctic Seals, 1 June 1972, ILM 11 (1972),251. ArticIe 9 ofthe Convention establishes a system for amending the Annex containing detailed conservation measures. That system has partial legislative effect with respect to the question of aposteriori approval, but not with respect to the question of unanimity: The "amendment shall become effective for all Contracting Parties six months after the date" of notification "ifwithin 120 days ofthe notification date, no objection has been received and two-thirds of the Contracting Parties have notified the Depositary in writing of their approval." 62 Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980,ILM 19 (1980),837. The Convention was adopted at a special meeting attended by the states entitled to participate in Consultative Meetings under the Antaretic Treaty as weil as the Federal Republic ofGermany and the German Democratic Republic. ArticIe VII of the Convention establishes a regulatory commission comprised of these states and any other state that accedes to the Convention "during such time as that acceding party is engaged in research or harvesting activities in relation to the marine living resources to which this Convention applies." The Commission mayadopt conservation measures by consensus. These become binding on all members ofthe Commission after 180 days, subject to a Iimited right of any member to "opt out", arts. IX( 1), (6), XI(2). Insofar as it dispenses with the requirement for approval aposteriori, this is a legislative system. 63 Convention on the Regulation of Antarctic Mineral Resource Activities, 2 June 1988, ILM 27 (1988), 859. 59 60

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One of the signifieant ehanges wrought by the proposed Protoeol on Environmental Proteetion to the Antaretie Treaty would be to eonvert the proeedure set forth in Artiele IX ofthe Antaretie Treaty into a legislative proeedure with respeet to amendments to Annexes to the Protoeol. 64 Article 9 ofthe Protoeol speeifies that "any Annex may itself make provision for amendments and modifieations to beeome effeetive on an aeeeierated basis." The texts of existing proposed Annexes adopt a "taeit amendment" proeedure. They provide that, unless otherwise specified, modifieations or amendments to that Annex adopted at a Consultative Meeting under article IX of the Antaretic Treaty beeome effeetive after one year unless a Consultative Party notifies the Depositary "that it wishes an extension of that period or that it is unable to approve the measure."65 On the other hand, article 9 ofthe Protoeol makes clear that the Annex amendment proeedure is not a legislative proeedure with respeet to parties that are not Consultative Parties. Both Annexes and, unless the Annex provides otherwise, amendments and modifieations to Annexes beeome effeetive for sueh parties when their notiee of approval has been received. The texts of existing proposed Annexes repeat this rule. In one respeet, the Antaretic Treaty takes a step into what, under the ICAO Convention, is terra incognita. Pursuant to article X, each party "undertakes to exert appropriate efforts, eonsistent with the Charter of the United Nations, to the end that no one engages in any aetivity in Antaretica eontrary to the principles or purposes ofthe present Treaty." If Antaretica is some species ofterritory held individually or in eondominium or in trust by one or more parties to the Treaty, then there is nothing problematic about article x. 66 But if Antaretic is a eommon spaee 64 Protocol on Environmental Proteetion to the Antarctic Treaty, 4 October 1991, ILM 30 (1991), 1460. Jacques Cousteau scored a significant political victory when he and his allies succeeded in supplanting the precautionary legislative mechanisms ofthe Antarctic Minerals Convention with this Protocol of peremptory promise. Quite apart from the environmental symbolism of designating Antarctica a "natural reserve," the Protocol permits us to avoid the potentially destabilizing effects ofthe concessions to the territorial c1aimants contained in the Minerals Convention. Still, we might wonder: What if, some day, an imminent resource bonanza in Antarctica suddenly becomes plausible? Ifthe Protocol and the Antarctic Treaty itself are not strong enough to withstand the resulting pressures for development, will we be able to start from scratch and negotiate adequate public interest restraints on mining in a gold-rush atmosphere? 6S See, e.g., Annex 1, Art. 8, US Department of State, Handbook of the Antarctic Treaty System, 8th ed. 1994, 2043 . 66 Thus, from the perspective of a territorial c1aimant, there is nothing problematic about its obligations under article X with respect to the territory it claims.

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open to all states, then one might ask by what authority the parties may execute article X. The problem is that we tend to think of answers that entail investigation and arrest in situ in Antarctica itself, a difficult and expensive proposition quite apart from legal issues. Article X speaks ofpersons, "no one," not states. Ifwe think of the total jurisdiction of the states parties, there is in fact much uncontested authority that could be used: If nationals of nonparties are in Antarctica as part of an expedition of a party, it seems reasonably clear that those persons are subject to the control of the expedition's leaders and that party: the obvious analogy is to a ship or aircraft, either as a major premise or as a minor premise. If an expedition by the nationals of a nonparty is deemed to come within article X, astate party has the right under international law 61 to prohibit its own nationals, vessels and aircrafi, as weIl as foreign nationals in its territory, from engaging in or supporting the activity. Since all the states surrounding Antarctica are bound by Article X, the practical need to use their territory to communicate with Antarctica may weIl end the matter. Astate party is free to communicate its preferences to a nonparty on this matter, like any other. Ifit is dissatisfied with the nonparty's response or behavior, it is free to demonstrate its displeasure in any lawful way it chooses. The language of article X certainly invites the extensive speculation that has occurred regarding what other efforts to secure compliance might be appropriate, rooted perhaps in the "public interest" nature ofthe Antarctic regime. As a political matter, this was the deriving force behind the unsuccessful efforts to promote the "objective regime" theory at the Vienna Conference on the Law of Treaties. The underlying problem ofmaintaining order in Antarctica also appears to be the reason for the application of laws punishing basic crimes under the special maritime and territorial jurisdiction ofthe United States to "any place outside the jurisdiction of any nation" if either the accused or the victim is a US citizen. 68 But in reality, the solution to the nonparty problem under the Antarctic Treaty is not very different from that under the ICAO Convention. The questions are:

(1) whether a sufficient "critical mass" of states, including interested states, are party; and

67 68

Absent some other treaty obligation to the contrary. 18 U.S.C. § 7(7).

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(2) whether they are prepared to take action within their own jurisdiction to frustrate inconsistent behavior by nationals of nonparties. It should nevertheless be noted that the universal character of the ICAO Convention, and the fact that it accords some institutional role to aII parties, may increase the perceived legitimacy of its application de facto to nonparties and their nationals.

IX. Outer Space and the Electromagnetic Spectrum

The basic instrument of international law concerning outer space, the Outer Space Treaty,69 does not establish a regulatory mechanism. Nor do the various specialized treaties, although a UN registry for launched objects is created70 and the Outer Space Committee of the UN General Assembly might be regarded by some as the rough equivalent of a meeting of parties. It is possible that the situation will change as physical crowding and problems with debris intensify. From another perspective, however, the degree of crowding has long since necessitated the establishment and administration of international mIes of the road. The object ofthat crowding is the electromagnetic spectrum. Telecommunications is subject to the elaborate regime ofthe International Telecommunication Union. This regime includes telecommunications that make use of artificial satellites in orbit around the earth. It is certainly open to argument that the electromagnetic spectrum comes within our working hypothesis regarding a functional concept of common spaces, at least insofar as the spectrum is used for or affects telecommunications beyond the territory of astate or with international navigation and overflight. Be that as it may, the need for international "mIes of the road" for purposes such as aIIocation of frequencies is obvious. The result is an International Telecommunication Convention (ITU Convention) and Radio Regulations comprising hundreds of pages: the typical result of a functional regulatory process. The ITU Convention deals with the nonparty question explicitly, but in a manner analogous to the way the problem is resolved implicitly by the ICAO Conven69 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (note 11). 70 Convention on Registration of Objects Launched into Outer Space, 14 January 1975, UNTS, vol. 1023, 15.

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tion. An ITU member may decide whether to admit telecommunications exchanged with a nonmember. If it does, the Convention applies to the telecommunication channels ofthe member. 71

X. The Oceans: Shrinking Common Spaces The law ofthe sea has always occupied a central role in internationallaw. The fact that the sea covers most of the planet could alone account for this fact. But the nature of the law of the sea is also a significant reason for its prominence. Mare Iiberum was the tangible application of the theories that Grotius used to launch modem internationallaw. The free seas were both visible evidence and lofty symbol of the existence of legal concepts other than territorial sovereignty. Mare liberum was and is proofthat territorial sovereignty is not the alpha and omega of the international system or, indeed, of sovereignty itself. Over the past century, internationallawyers not only permitted mare liberum to languish, but in some instances contributed to its ossification. Only with regard to navigation and communications was sufficient creativity brought to bear to adapt and develop high seas law to new challenges, and therefore to give it a chance of survival into the next century, albeit in a threatened condition. In other respects, including fishing, hydrocarbon and minerals development, scientific research, and environmental protection, most of the creative energy has been devoted to replacing mare liberum either with territorial sovereignty outright or, more elegantly, with functional regimes modeled on territorial sovereignty. As the complexity of ocean uses increased, the need for legislative solutions to the potential conflicts increased as weIl. Quite apart from the political and other forces that were pressing for increased territorialization of the oceans, coastal state jurisdiction presented a seductively simple solution to the problem of arriving at a system of rules binding all. Once an area was subject to a state's jurisdiction, that state could legislate with respect to all those engaged in the relevant activity, regardless of their nationality.

71 International Telecommunication Convention, 6 November 1982, art. 49, General Secretariat ofthe International Telecommunication Union, Geneva: international telecommunication convention - Final Protocol, Additional Protocol, Optional Additional Protocol, Resolutions, Recommendation and Opinions - Nairobi, 1982.

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1. The Continental Shelf A classic example concerns the development of interest, toward the middle of this century, in exploiting the oil and gas deposits ofthe seabed ofthe continental shelfbeyond the classic three-mile limit ofthe territorial sea. Investors maintained that, as on land, the costs and risks of exploration and development expenditures must be supported by the promise of exclusive rights to extract oil and gas from a particular site for a substantial period oftime. Lawyers generally considered that while high seas law protected users from physical interference, high seas law provided no basis for according investors an economic monopoly over an extended area for many years. 72 In theory, lawyers could have responded to this problem with creative adaptations ofhigh seas law. Reciprocal agreements limiting freedom ofaction at sea are an exercise ofhigh seas freedoms, not an abandonment ofthose freedoms. In the prevailing climate at the end ofWorld War 11, ifthe United States and a few other states agreed to a reciprocal arrangement regarding the ground mIes under which they would grant and recognize rights to oil and gas sites, as a practical matter poaching from other sources would be unlikely. Thus, consistently with high seas law and without extensions of coastal state jurisdiction, companies might have been granted rights to oil and gas sites beneath the high seas that were exclusive de facto as against competitors, although not de jure with respect to states that were not party to the reciprocal arrangement. This of course is exactly what was done years later in the so-called "mini-treaty" regarding deep seabed mining. 73 Alternatively, having just witnessed the creation of the International Civil A viation Organization in 1944,74 they might have imagined the creation of a similar international organization to deal with the necessary mIes ofthe road and security of tenure issues attendant upon states issuing exclusive oil and gas rights on the seabed ofthe high seas. Provided the major states concerned were parties, the

72 Quite remarkably, a few analysts questioned whether high seas law permitted the establishment of large, long-term fixed installations at all. But those concerned about the implications for navigation and other traditional activities of the appearance of such installations soon recognized that if high seas law prohibited such installations, only an extension of the territorial sea could solve the problem. No rational person interested in preserving the substance ofthe high seas regime would have preferred an extension ofthe territorial sea to the accommodation of fixed installations in high seas law. 73 Provisional Understanding Regarding Deep Seabed Matters, 3 August 1984, ILM 23 (1984), 1354. 74 Note 37.

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problems regarding the rights of nonparties would be largely theoretical, and of even less moment than under the mini-treaty option because ofthe greater legitimacy of an organizational arrangement negotiated by all and open to all. In the event, only Germany adverted to such a solution at the 1958 Conference on the Law of the Sea,75 and by then it was much too late. A certain equilibrium was thus achieved when Germany became the fIrst European industrial state to become party to the UN Convention on the Law of the Sea and the 1994 Implementing Agreement establishing the International Sea-Bed Authority.

2. Fisheries

The problem with respect to fIsheries is particularly unsettling. To simplify matters, as fIshing effort approaches or exceeds the availability of a fIsh stock, the ccinservation problem may be overshadowed by an allocation problem. Three questions are key: 1) How do we allocate the total allowable catch ofthe stock? 2) How do we discourage cheating and the perception of cheating? 3) What happens when a stock is fully utilized and a new entrant appears? A classic response to these questions under high seas law is: The answers must be spelled out in express agreements among the flag states whose vessels fish for particular stocks in particular areas. Quite apart from the difficulty of achieving agreement among those states on the fIrst two points, what about the new entrant?

75 Precisely how far ahead of its time the German government was may be discerned from the fact that the FRG delegation identified as "ideal in itself' the suggestion "that the exploitation of submarine areas should be entrusted to the United Nations or to one of its specialized agencies." During the deliberations ofthe International Law Commission on the matter, Mr Hsu "took his stand on the universally recognized principle that the high seas were the property ofthe international community," and asked, "Why then not entrust the development of the continental shelf resources to the international community?" In doing so, he correctly perceived that his suggestion "would not be accepted by the Commission," ILC Yearbook 1950, vol. 1,215-16. Indeed, Judge Hudson immediately replied by citing the absence of protest to the 1945 Truman Proc1amation, id. at 216. Georges Scelle, who consistently advocated a high seas approach, also "had no illusions about the possibility ofhis thesis being accepted" when he envisaged "an appropriate concession [being] granted to the interested State by, say, the Economic and Social Council," ILC Yearbook 1953 , vol. 1,82.

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At the 1958 Conference, the United States unsuccessfully proffered an abstention principle to deal with the matter. 76 Be that as it may, it was widely assumed that the regime offreedom necessarily gives priority to the right to fish over the duty to have due regard for others and the duty to ensure conservation. Many confused the regime of freedom of fishing on the high seas with an independent right to fish anywhere at any time without regard to the fishing activities of others and the condition of the stocks. Such confusion may have created astate of mind that contributed to the inability of flag states to be flexible enough to save the high seas fishing regime. Agreed restrietions appeared to be concessions of a right to fish rather than implementations of a duty to have due regard to others and to conserve the stock. Those who conceded only the duty to apply nondiscriminatory conservation measures may have added to the confusion, because they removed the central problem of allocation of catch from the scope offlag state duties. 77 The result was the collapse of freedom of the seas with respect to fishing and certain other matters within a 200 mile exclusive economic zone, and then the threatened geographie extension of that collapse in response to similar fisheries management problems in areas seaward of200 miles. Now an adequate institutional response may be in the offmg for what remains of common spaces with respect to fisheries. The response is rooted in three basic elements of the Law of the Sea Convention with respect to fishing on the high seas beyond the exclusive economic zone: the duty to conserve;78 the duty of fishing states to establish regional fisheries organizations or arrangements; 79 compulsory arbitration or adjudication. 80

76 See Myres S. McDougallWilliam T. Burke, The Public Order of the Oceans, 1962, 956-60. 77 "[T]he major problem of international conservation goes beyond the allocation of competence to prescribe limitations upon fishing intensity, for after limitations are agreed upon there remains the task, indispensable to securing agreement upon conservation, of deciding how they are to bear upon the different states fishing the resource," id. at 959. 78 Law ofthe Sea Convention (note 13), art. 117. 79 Id., art. 118. 80 Id., art. 286.

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The Agreement for the Implementation ofthe Provisions ofthe UN Convention on the Law of the Sea Relating to Straddling Fish Stocks and Highly Migratory Fish Stocks81 is a remarkable elaboration ofthese elements. Where there is a competent regional fisheries organization, nonmember fishing states have access to the high seas fishery being managed by the organization only if those states either become members of the organization or agree to apply the conservation and management measures adopted by it. 82 This is an extraordinary delegation of legislative authority to functionally constituted organizations comprised of states "having areal interest in the fisheries concemed."83 There are elaborate provisions on the duty to cooperate in enforcement. With respect to port states, there is an express reference to inspection and to the right to prohibit landing and transshipments of catch taken in a manner that undermines the conservation measures, as weil as a more general right and duty "to take measures, in accordance with intemationallaw, to promote the effectiveness of ... regional ... conservation and management measures."84 Perhaps more significantly, states parties to the Agreement that are members of a regional fisheries organization may board and inspect on the high seas fishing vessels of other states parties to the Agreement for violation ofthe organization's measures, even if the latter states do not belong to the organization. 85 When it is notified of "c1ear grounds" for believing a violation has occurred, the flag state either must investigate and prosecute or authorize the inspecting state to do SO.86 If the flag state fails to do either, the inspecting state may bring the vessel into port for further investigation of a serious violation. There is also a tantalizing provision that members of a regional fisheries organization "may take action in accordance with intemationallaw ... to deter [non81 Agreement for the Implementation ofthe Provisions ofthe United Nations Conventi on on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 28 July 1994, GA res. 48/263, Annex. 82 Id., art. 8, paras. 3,4, art. 17, paras. 1,2, art. 18, para. 1. 83 Id., art. 8, para. 3. It might be compared with article 9 ofthe Protocol on Environmental Protection to the Antarctic Treaty (note 64), wh ich specifies that parties that are not entitled to participate in the Consultative Meetings that adopt Annexes and amendments thereto are bound by the Annexes and amendments only upon approval. 84 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, art. 23, UN doc. NCONF.164/37. 85 Id., art. 21, paras. 1 - 3. 86 Id., art. 21, paras. 5 -7.

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complying] vessels ... from fishing on the high seas in the ... region until such time as appropriate action is taken by the flag State."87 This may refer not only to the ordinary jurisdiction of states but, beyond that, to lawful countermeasures in light of the failure of the flag state to satisfy its obligations. One might note, in this regard, the requirement ofproportionality for "[a]ction taken by States other than the flag State."88 Moreover, article 33 expressly addresses the question of nonparties to the Agreement. It provides: "States Parties shall take measures consistent with this Agreement and international law to deter the activities of vessels flying the flag of non-parties wh ich undermine the effective implementation ofthis Agreement."

Given the existence of a duty to conserve binding on all parties to the Law of the Sea Convention, and a comparable duty under customary law, this provision also may refer not only to the ordinary jurisdiction of states but, beyond that, to lawful countermeasures in light ofthe failure ofthe flag state to satisfy its obligations. The Agreement incorporates by reference the compulsory arbitration and adjudication provisions ofthe Law ofthe Sea Convention with respect to disputes between the parties to the Agreement relating to the interpretation and application not only ofthe Agreement but of subregional, regional, or global fisheries agreements relating to straddling fish stocks or highly migratory fish stocks to which they are also parties. 89 This in effect makes the dispute settlement institutions of the Convention the residual global institutional means for ensuring the implementation ofthe conservation and management goals ofthe Agreement. This result is made amply clear by the fact that the competent tribunal is required to apply not only relevant agreements and rules of international law but "generally accepted standards for the conservation and management of living marine resources," and to do so "with a view to ensuring the conservation of' the relevant stocks. 90 87 Id., art. 21, para. 7. 88 Id., art. 21, para. 16. 89 Id., art. 30, paras. 1, 2. 90 Id., art. 30, para. 5. It is not unusual for courts themselves to identify certain basic policies of a legal instrument or field of law that inform the way in which they interpret and apply specific rules. It is not even unusual for legal instruments to be drafted and organized in a way that invites suchjudicial attention to particular underlying policies. Express mandates to tribunals to further particular policies in applying the law are, however, more unusual. Even then, they may do little more than rehearse, rather than select from among, the competing values underlying the field of law. For example, the US Federal Rules of Civil Procedure "shall be construed and administered to secure the just, speedy,

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The Agreement recognizes that the power of a tribunal to prescribe provisional measures may be particularly important when the states concerned have been unable to reach agreement on conservation and management measures. 91 In an interesting innovation, article 290 ofthe Law ofthe Sea Convention authorizes a tribunal to prescribe provisional measures not only to preserve the respective rights of the parties but also "to prevent serious harm to the marine environment." In the context of fisheries, article 31 of the Agreement elaborates on this point by specifying that provisional measures may be prescribed "to prevent damage to the stocks in question." Once again, the tribunal is the residual global institutional means of ensuring implementation of the goals of the Agreement. A legal realist might argue that all ofthis amounts to adelegation to the competent tribunal of at least some temporary residual regulatory authority with respect to fisheries management. A political realist might argue that this over-conceptualizes a functional solution to the non-agreement problem which, if it is to be accepted by states, is best described with polite deference tothe sensibilities of parliaments regarding the authority of courts in general and international tribunals in particular.

3. The International Sea-Bed Authority It is over a quarter-century since the United States was among the first states to present a proposal in treaty form for the establishment of a seabed authority to provide mies of the road for seabed mining beyond the limits of coastal state jurisdiction. The ICAO Convention model for a legislative procedure was used as a point of departure for that proposal, 92 and in broad outline survives in the ultimate Convention and Implementing Agreement. However, the ICAO Convention's provisions for "opting out" and for "tacit acceptance" by govemments were not copied because, among other reasons, they were regarded as unnecessary. From the perspective of an international regulatory system, perhaps the most unusual feature ofthe US proposal was that it established a direct relationship between the seabed authority and the private miner. This reflected a deliberate decision that private miners should themselves enjoy rights and obligations in situations where they were the real parties in interest. Whatever the vicissitudes enand inexpensive determination of every action," Fed. R. Civ. Pro., Rule 1. 91 Id., art. 7, para. 5, art. 16, para. 2, art. 31. 92 The author participated in the drafting of the proposal.

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countered during the decades of international negotiations on a deep seabed mining regime, this aspect of the US proposal survived throughout and is reflected in the Law ofthe Sea Convention and its Implementing Agreement on Deep Seabed Mining. A private mining company may submit a plan of work to the Sea-Bed Authority and obtain a contract for exploration and exploitation, provided it is sponsored bya State Party.93 The obligation to comply with the contract and the Convention rests with the contractor. 94 Penalties for noncompliance may be imposed on the contractor by the Authority.95 Disputes between a contractor or prospective contractor and the Authority may be submitted by either party to commercial arbitration or the Sea-Bed Disputes Chamber ofthe International Tribunal for the Law of the Sea. 96 While astate has the responsibility to ensure that a contractor it sponsors complies with the contract and the Convention, it is not liable for breach of a contractor's obligations ifits measures "are, within the framework ofits legal system, reasonably appropriate for securing compliance."97 It is not clear how influential this development may be. While unquestionably informed by this approach, the now-dormant Antarctic Minerals Convention retreated to a more traditional state-oriented articulation, providing that exploration and development applications are filed by the Sponsoring State "on behalf of an Operator"98 and affording private Operators more limited access to dispute settlement procedures. 99

Certainly the fact of international regulation of private activity is nothing new, as the aviation, shipping, and telecommunication industries will attest. But this is normally achieved through the intermediation ofthe state which is responsible for transforming international standards into laws and regulations applicable to private parties. What is different in the deep seabed mining regime is the potentially lucrative contractual relationship between the miner and the Authority with respect to amine site; this forms both the conceptual basis for establishing direct duties between them and the incentive for ensuring compliance. For the foreseeable future, such a relationship probably will not be characteristic of most interna93 Law ofthe Sea Convention (note 13), art. 153, annex III, arts. 3,4. 94 ld., annex III,art. 4, para. 6. 9S ld., annex IIl, art. 18. 96 ld., arts. 187 (c) - (f), 188, para 2. 97 ld., art. 139, annex III, art. 4, para. 4. 98 Antarctic Minerals Convention (note 63), art. 44, para. 1, art. 53, para. 1. 99 ld., art. 59.

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tional regulatory regimes. For this reason, and in no small measure because the state remains the basic instrument for enforcement, it is premature to predict a new era of direct regulation of private interests by global international organizations. Conclusion

There are at least two factors that may be cited as evidence for the existence of a public interest norm. One is the existence of a universal obligation of astate. The other is the existence ofuniversal or extraordinary jurisdiction ofa state. The fIrst, however, is also explicable as a pragmatic or functional response to the problem of standing that arises when the alleged violation is committed by or with the complicity of states that ordinarily would have standing to complain. And the second is also explicable as a pragmatic or functional response to the problem of ensuring that private conduct conforms to international standards when the state that ordinarily would have jurisdiction is unable or unwilling to enforce the standards. Is there some vision of the public interest that causes us to modify ordinary concepts of standing or jurisdiction to solve these problems? Absolutely. Will our sense of its importance affect our willingness to experiment with standing and jurisdiction? Of course. Will this be particularly true of common spaces? Certainly. But the specifIc circumstances requiring such modifIcation do not begin to describe the full scope ofthe public interest. Conversely, the advancement ofthat public interest does not in itselfnecessarily suggest universal standing or universal jurisdiction where this is functionally unnecessary. Much of the international public interest is furthered every day by the routine application of municipal law by states. International mechanisms are created to supplement that system when there are needs that are not being met, or cannot be met, by the routine application of autonomous municipallaw. The presence or absence of such needs, in and of itself, says nothing about the underlying norms and their capacity to promote the common good.

International Environmental Law - A Law to Serve the Public Interest? - An Analysis of the Scope of the Binding Effect of Basic Principles (Public Interest Norms) Eibe Riedei"

I. Introduction Almost a third of a century ago, Rachel Carson's bestseller "Silent Spring" stirred the imagination of the world in 1962 and enhanced the development of a completely new branch of the law: environment protection law. While at fIrst everyone searched in vain for legal support in constitutional texts, other statutes, or in international legal documents and commentators rather tenuously looked for analogies in other fields of law to cope with the new challenges of environment pollution, much like poking for needles in a haystack, this situation changed dramatically since the beginning ofthe 70ies: An ever closer net of environment protection norms at the international, regional, bilateral, and domestic level descended upon the legal orders and seems to become ever more closely knit. Even if the resulting normative richness of international and regional environment law would appear to be quite remarkable - and Simma/Rüster 'Si omnibus collection oftreaties embraces more than 30 volumes -, the factual bases for these normative endeavours remain sobering, indeed. Increasing marine pollution, groundwater pollution and entropy of standing waters, the dying forests and soil acidification, acid rain and global climate changes, ozone layer holes at the poles, the disappearance of tropical rain forests with their capacity to purify the atmo-

• Professor ofLaw, University ofMannheim, Gennany. I Bruno Simma/Bernd Rüster/Michael Bock (eds.), International Protection of the Environment. Treaties and Related Documents, in all 33 volurnes, 1970 et seq.; see also Wolfgang E. Burhenne (ed.), International Environmental Law, Multilateral Treaties, 6 volumes, 1974 et seq.

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sphere in the dimension of annually half the size of Federal Gennany' s territory, the excessive grazing of savannahs with subsequent desertification, topped up by environment catastrophes in ever shorter time intervals, such as the recent Sea Empress oil pollution case in Southern Wales, were some of the causes for rethinking legal answers to these problems. 1 do not wish to be counted amongst the prophets of earth' s doom and that the point of no return has come, that the destruction of our biosphere is irreversible and, at most, might be slowed down and thus postponed, but it requires little imagination to assume that drastic and hitherto hardly realized environment protection measures will have to be agreed upon and acted on ifthe world is to be worth living in 50 years' time. After every major environment catastrophe - to mention but some: Torrey Canyon, Chernobyl, Exxon Valdez, Sea Empress2 - there were ardent endeavours to counteract these events by organizing state conferences and engaging international organizations with the matter in order to work out binding legal treaties. The difficulty was, however, that the problems involved were very technical, variegated, and interrelated. Moreover, states still clung adamantly to their sovereignty rights, as soon as it emerged that really effective environment protection measures would be a costly affair. Furthennore, the unruly mass of environment protection nonns defied the classical internationallaw approaches: Internationallaw, until the end of World War 11, predominantly had been inter-state law where states, on the basis of reciprocity, agreed upon certain mutual responsibilities, usually in the fonn oftreaties, based on the contractual analogy in private law. 3 Direct utility of the treaty mies stood in the fore front. All this changed dramatically after World War 11. At first, only in the sphere ofpeace-keeping, and human rights, and certain other areas of internationallaw gradually there evolved a new treaty network transcending the traditional, sovereignty-based do ut des-treaties of the pre-war years. It became clear that apart from the numerous treaties in the private law analogy, which continued to be drafted, a new category of treaties gradually developed: that of objective regimes, status treaties, and treaties with

2 As regards some of these catastrophes in their international law perspective see Alfred Rest/Ralf Leinemann, The Environmental Catastrophe off the coast of Alaska, Tijdskrift voor Milieu Aanspraakelijkheid (Environmental Liability Law Review) 1990, 13; Alfred Rest, The Sandoz Conflagration and the Rhine Pollution, GYIL, vol. 30 (1987), 160; Franz Zehetner, Tschernobyl - zur völkerrechtlichen Problematik grenzüberschreitender technisch-industrieller Umweltkatastrophen, Umwelt- und Planungsrecht 1986, 201. 3 For an interesting analysis ofthis concept see Evangelos Raftopoulos, The Inadequacy ofthe Contractual Analogy in the Law ofTreaties, 1990, 193,207 et seq.

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self-effecting fulfihnent structures, treaties of an integral type4 whereby states merely initiated a treaty regime that subsequently shaped its own life, sometimes even contrary to the wishes ofthose states that had set the regime in motion. It is with this notion of self-effecting, objective regimes that the idea of public interest norms above the level of states arose as a normative umbrella unfolding over sovereign states and to which they are bound, an idea that will be exarnined more closely later on.

11. Environment and International Law But the emergence of "public interest norms" in international law was not a matter of rational construction at the drawing board. These new norms in the public interest carne about in a roundabout fashion, in the wake of many other normative experiments to cope with environmental problems. For a time, much space in the literature was devoted to the triad "environment - ecology - future generations" - in German "Umwelt - Mitwelt - Nachwelt."s On the one hand there were those who regarded environment solely as the relationship of man to his milieu, his biosphere. Environment, according to this view, always was man's environment serving his needs. This corresponded with the anthropocentric conception of the environment.6 An ecocentric conception took the opposite view whereby man represents only one of many creatures, a system component alongside many others.' Moreover, the system followed its own, not man-made rules. The ecocentric view stressed the necessity to maintain an equilibrium of allliving processes and demanded protection measures with this general aim. Nature thus was dis4 "Verträge mit integraler Erfilllungsstruktur", &kart Klein. Statusverträge im Völkerrecht, 1980, particularly 234 et seq. (English summary 350 - 359); see also Rüdiger Wolfrum. Die Internationalisierung staatsfreier Räume, 1984, 688 with references; Michael Kilian. Umweltschutz durch internationale Organisationen, 1987,24. S Eibe Riedei. Grundlagen und Hauptprobleme des internationalen Umweltrechts, in: Peter Eichhorn (ed.), Ökologie und Marktwirtschaft, 1996, 147; Kilian (note 4), 31. 6 Klaus Bosselmann. Wendezeit im Umweltrecht. Von der Verrechtlichung der Ökologie zur Ökologisierung des Rechts, Kritische Justiz 18 (1985), 345, 352 et seq.; Götz Frank, Vom Umweltschutz zum Mitweltrecht, Deutsches Verwaltungsblatt 1989, 693, 696; Harald Hohmann. Präventive Rechtspflichten und -prinzipien des modemen Umweltvölkerrechts, 1992, 20 et seq.; see also Luzius Wildhaber. Rechtsfragen des internationalen Umweltschutzes, Herbert Miehsler-Gedächtnisvorlesungen Nr. 1, 1987,4; Rainer Lagoni. Umweltvölkerrecht, Anmerkungen zur Entwicklung eines Rechtsgebietes, in: Werner Thieme (ed.), Umweltschutz im Recht, 1988,233,241 et seq. 7 Hohmann (note 6),20 et seq., with further references.

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covered as an independent subject of protection, culminating in claims of original rights of nature, epitomized in the question: "Should trees have standing?"S A flood of articles and books, amine for doctoral dissertations, sprang from this idea of relator actions or trust concepts for the ecology interest in order to gain locus standi before domestic courts. More fundamentalist notions even went so far as to demand that environment concerns should not only be enhanced by including new programmatic provisions in constitutional texts but should even be raised to the level offundamental rights. Needless to add that this did not facilitate political and ethical discourse about environment protection. Standard-setting at the international level was quick to react, and soon there emerged aseries of treaties which sought to protect nature in its own right ecocentrlcally, such as the Washington CITES Species Protection Treaty of 1973 9 or the Convention on Biological Diversity of 1992,10 stressing more than the CITES the protection ofbiotopes and milieus as conditiones sine qua non for an effective species protection rather than merely enjoining trade with endangered species. All this emanated from the wish to protect the environment for its own sake, at least partially. The philosophy behind this was that it could not be in the true interests of man to see his biosphere destroyed. The third dimension ofthis debate took arguments ratione temporis and had as its guiding theme the idea of intergenerational rights and responsibilities. In the light of depleting natural resources, particularly in the field of non-renewable ones, the question began to be asked increasingly how far future generations should be protected against overuses of generations living now. A just balance should be struck between the legitimate claims of present and future generations in the form of"intergenerational equity."11 Utilizing the precautionary approach l2 8 Christopher D. Stone, Should trees have standing? Toward legal rights for natural objects, Southern Californian Law Review, vol. 45 (1972), 450, and: Should trees have standing? Revisited. How far will law and morals reach? A pluralist perspective, Southern Californian Law Review, vol. 59 (1985-86), 1; Bosselmann (note 6), 345 et seq. 9 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington 1973, in: Harald Hohmann (ed.), Basic Documents ofInternational Environmental Law, vol. 3, 1992, 1346. 10 Convention on Biological Diversity, Rio de Janeiro 1992, ILM, vol. 31 (1992),818; and see generally Cyrille de Klemm/Clare Shine, Biological Diversity Conservation and the Law, IUCN Environmental Policy and Law Paper No. 29, IUCN Environmental Law Centre, 1993, 1. 11 Richard I. Sikora/Brian M Barry (eds.), Obligations to Future Generations, 1978; Charles E. Partridge (ed.), Responsibilities to Future Generations, 1981; Bryan G. Norton, Environmental Ethics and the Rights of Future Generations, Environmental Ethics,

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and self-restraints of environmental resource utilization, a sustainable use of nonrenewable resources should be guaranteed if the desired ends were to be achieved, namely leaving sufficient rneans for future generations. This sustainability concept became the overriding concern of the Rio Conference of 1992 and marked the entire summit. 13 Ever since then "intergenerational equity" or "sustainable development" in the common interest of present and future generations represents the key point of reference of international environmentallaw. Via the concept of sustainable environmental developrnent ("ecodevelopment") the equally justified claims of resource users and environmental protection have to be harmonized. Without such harmonization efforts the conflict between environment and development would lead to a squaring of circles: "You can't have your cake and eat it." On the whole, however, despite these three-pronged conceptional approaches to environment protection, internationallaw still heavily relies on the anthropocentric concept whereby the environment only merits protection to the extent that a nexus to man is established. The ecology balance notion of environment will only be brought in when exploitation and uses of resources are discussed. A fundamental change did, however, occur in the mid-seventies: States began to realize that the existing state system governed by consensus no longer sufficed to counteract the increasing spiral of global environmental pollution and destruction because the consensus model relied heavily on the pursuit of anarchical interests the English acronym "NIMBY" ("not in my backyard") was coined for that,14 and vol. 4 (1982), 310; Peter S. Thacher, Serving Future Generations, in: L' Avenir du Droit International de l'Environnement, Hague Workshop 1984,451; Edith Brown Weiss, The Planetary Trust: Conservation and Intergenerational Equity, Ecology Law Quarterly, vol. 11 (1984), 495, and: In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, UN University 1988, passim; de KlemmiShine (note 10), passim. 12 See generally de KlemmiShine (note 10), 276; Alexandre eh. Kiss/Dinah L. Shelton, International Environmental Law, 1994, Supplement, 64 - 66. 13 See generally Stanley P. Johnson, The Earth Summit: The United Nations Conference on Environment and Development (UNCED), 1993,3; Peter H Sand, UNCED and the Development of International Environmental Law, Yearbook of International Environmental Law, vol. 3 (1992), 3; Alfred Rest, Die rechtliche Umsetzung der Rio-Vorgaben, AVR 34 (1996),145; Ulrich Beyerlin, The Concept ofSustainable Development, in: Rüdiger Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means?, 1996,95. 14 See David RobinsoniJohn Dunkley (eds.), Publie Interest Perspeetives in Environmental Law, 1995, 322, note 26. But "Nimbyism" ean also be eriticized as "an obsession with the brie-li-brae of the past and the substitution of preservation for conservation", eited from Financial Times, 12 Oetober 1994. 5 Symposium 1996

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individual states still could block effective environmental protection measures for which general consent was needed, even ifthey admitted that something had to be done urgently. As a result, more than 140 international, multilateral treaties and agreements and numerous resolutions and declarations have been adopted, each attempting to overcome the reservations of many states. 15 This is done by either setting up new standards of achievement or by trying to get states to submit to methods of implementation, such as reporting duties, submitting to judicial or arbitral settlements, or simply enjoining states to accept duties of negotiation, of information, and consultation, to name but some. None ofthese measures to date have decisively decreased environment pollution and destruction. But maybe many of these treaties are still too young to properly assess their effectiveness. Furthermore, the sheer number of treaties by no means corresponds with norms needed to alleviate environmental threats for which those treaties were devised. Usually cures offered are symptomatic, not causal. Thus, the Chernobyl-Catastrophe merely produced two conventions,16 laying down consultation and information duties, which were purely ancillary matters compared with the need to prevent, protect, and pay damages for environmental pollution by nuclear fallout. Causal strategies like forbidding emission of toxic waste usually are sacrificed on the altar of state sovereignty and the national interest. Even if eventually such strict duties are agreed upon, numerous exception clauses water down their effects, or such treaties will only be ratified by few states - usually those that stand to lose little because they meet the standards anyway. The main environment sinners shirk from effective controls by non-ratification or see to it that costly protection measures are watered down or struck out of the draft treaty altogether, as happened in the Rio process with the Biodiversity Convention, the Forests Declaration, and particularly with the time schedule and standards for the Climate Change Convention. Amental re-orientation was, however, set in motion ever since the Stockholm Environmental Conference of 1972. Awareness increased that, in the face of these multifarious transborder and increasingly global environment burdens, protection measures by individual states or inter-state treaties based on full consent no longer suffice and that the pre-war state system, supported by the dogma of sovereignty, 15 For an overview cf KisslShelton (note 12),96 et seq.; Patricia W. BirnielAlan E. Boyle. International Law and the Environment, 1992, II et seq.; Lagoni (note 6), 236. 16 Cf Alfred Rest. Tschernobyl und die internationale Haftung, Versicherungsrecht 1986, 609, 613 et seq.; IAEA-Convention on Early Notification of a Nuclear Accident, Vienna 1986; IAEA-Convention on Assistance in Case of a Nuclear Accident or Radiological Emergency, Vienna 1986, ILM, vol. 25 (1986), 1391.

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is overeharged in matters of global environmental dangers. Completely new approaehes to standard-setting have been developed sinee 1972, alongside traditional methods and means of environment proteetion at internationallaw, whieh I ean only sean briefly here.

IH. The Stock of Existing International Environment Law

Before delving into the debate concerning public interest norms proper, abrief review of the existing endeavours of the community of states is ealled for. This involves surveying environment protection measures by means of the classical sourees debate in internationallaw. 17

I. Treaties Mention should be made here ofhundreds of specifie issue-treaties at the bilateral and regional levels, in particular in the fields of marine environment protection outside the bounds of state sovereignty, the high seas, Antarctica, and outer spaee. 18 They all utilize the coneept of res communis omnium, space belonging to the eommunity of states not to individual states. Part XII of the Law of the Sea Convention of 1982 (marine environment proteetionY 9 is a good case in point, as is the International Convention for the Prevention of Marine Pollution by Ships (MARPOL) of 1973 including a Protocol of 19782°, or the International Convention concerning Oil Pollution at Sea of 1969, 1973, 1976, 1984, and 199021 plus 17 For a fuller discussion see Birnie/Boyle (note 15), 11 et seq.; Kiss/Shelton (note 12), 96 et seq.; Wol.ffHeintschel von Heinegg, in: Knut Ipsen (ed.), Völkerrecht, 3rd ed. 1990, 806 et seq. 18 Cf overview in: Harald Hohmann (ed.), Basic Documents oflnternational Environmental Law, vol. 2,1992,691 et seq. 19 UN Convention on the Law ofthe Sea, 10 December 1982, arts. 192 et seq., UN doc. AlCONF.62/122 with Corrigenda. 20 International Convention for the Prevention of Marine Pollution by Ships (MARPOL), London 1973 and Protocol1978. 21 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels 1969; Protocol Relating to Intervention on the High Seas in Cases ofPollution by Substances other than Oil, London 1973; International Convention on Civil Liability for Oil Pollution Damage, Brussels 1969 as amended by Protocols of 1976 and 1984; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Brussels 1971, as amended by Protocols of 1976

5"

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many ancillary treaties for the prevention of marine pollution by dumping waste, 22 flanked by a multitude of specific bilateral or regional treaties23 and a few global conventions about the protection of the SOil,24 species protection;S and cultural property protection with environmental relevance26 - such as the Nordic Convention about the Protection ofthe Environment of 1974/7 the International Whaling Convention of 1946 plus protocols and annexes of 1956 and 1989/8 the Convention on the Prohibition ofFishing with Large Drag Nets of 1989 plus two protocols of 1990/9 the CITES Convention of 1973,30 as weIl as the Geneva Convention about Large-Scale Transboundary Air Pollution of 1979 with protocols of 1984, 1985, 1988, and 1991,31 and last but not least, the Vienna Convention for the Protection of the Ozone Layer of 1985, plus Montreal Protocol of 1987, 1990.32 These internationallaw treaties concerning environmental matters usually emanated from notions of transboundary effects, springing from ideas of good and 1984; International Convention on Oil Pollution Preparedness, Response and Cooperation, London 1990. 22 International Convention on the Prevention of Marine Pollution by Dumping of Wastes, London 1992; see also Law ofSea Convention (note 19), art. 210. 23 Cf Hohmann (note 18), vol. 2, 877 et seq. 24 Cf Hohmann (note 18), vol. 3, 1283 et seq., 1289 et seq., 1583 et seq. 25 Cf Hohmann (note 18), vol. 3, 1505 et seq. 26 See UNESCO Convention Concerning the Protection ofthe World Cultural and Natural Heritage, Paris 1972. 27 Nordic Convention on the Protection ofthe Environment and Protocol, Stockholm, 19 February 1974. 28 International Convention for the Regulation of Whaling, Washington 1946, and Schedule 1989; Protocol Washington 1956. 29 Convention for the Prohibition ofFishing with Long Driftnets in the South Pacific, Wellington 1989, two Protocols of20 October 1990. 30 Supra, note 9. 31 Convention on Long-Range Transboundary Air Pollution, Geneva 1979; Protocol on Long-Tenn Financing ofthe Co-operative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe (EMEP Protocol), Geneva 1984; Protocol on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at least 30 per cent, Helsinki 1985; Protocol concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, Sofia 1988; Protocol concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes, Geneva 1991. 32 Convention for the Protection of the Ozone Layer, Vienna 1985; for an overview see Richard E. Benedick, Ozone Diplomacy. New Directions in Safeguarding the Planet, 1991; Montreal Protocol on Substances that Deplete the Ozone Layer, Montreal 1987; Decisions, Adjustments and Amendments to the Montreal Protocol, 1990.

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neighborliness. Usually they were about joint utilization of watercourse regulation and navigational regulations of mutual interest, or about agreed protection measures against water pollution, much less frequently protection of the atmosphere. To single outjust a few ofthese neighbor-Iaw analogies to environment protection let me just mention the Protocol setting up an international commission for the protection ofthe Moselle against pollution (1961), the Rhine (1963), the Danube (1987), Lake Constance (1960) or the Extraction ofWater from Lake Constance of 1966.33 From the weIter ofworldwide and regional treaties instituting international cooperation amongst states, let me single out the Plant Protection Convention of 1951,34 the Convention on African Wandering Locusts of 1962,35 the Phyto-Sanitary Convention for Africa South ofthe Sahara of 1954,36 regional agreements about Nature Conservation of 1968,37 the Ramsar Convention on Wetlands ofInternational Importance, especially as Waterfowl Habitat of 1971.38 They all knit together a particularly widemesh treaty-system, which states invariably will accept as being squarely in their own interest as long as costs involved are calculable and the legal consequences for treaty breaches remain clear. All this follows the traditional patterns of treaty-making at internationallaw with the sovereign state as the dominant actor and beneficiary of such treaty regimes. However, few of these specific conventions meet the requirements of sustainable worldwide environmental protection. But this is not surprising bearing in mind that environment protection in domestic law is of very recent date, too, spreading

33 Protocol concerning the Establishment of an International Commission for the Protection of the Moselle against Pollution, 1961; Accord concernant la Commission Internationale pour la protection du Rhin contre la pollution, Bern 1963, and Supplementary Agreement, Bonn 1976; Convention for the Protection of the Rhine against Chemical Pollution, Bonn 1976; Convention for the Protection of the Rhine against Pollution by Chlorides, Bonn 1976; Agreement on Co-operation on Management of Water Resources in the Danube Basin, Regensburg 1987; Übereinkommen über den Schutz des Bodensees gegen Verunreinigung, Steckborn 1960; Agreement Regulating the Withdrawal ofWater from Lake Constance, Bern 1966. 34 Plant Protection Convention (Convention establishing the European Plant Protection Organization 1951), BGB!. 11 1955,927, revised version: BGB!. 11 1962, 1479. 3S Convention on African Migratory Locusts, 25 May 1962, UNTS, vo!. 486, 103. 36 Phyto-Sanitary Convention for Africa South ofthe Sahara (1954), GB Treaty Series 1956/31, Cmnd. 9834. 37 African Convention on the Conservation ofNature and Natural Resources, Aigiers 1968. 38 Convention on Wetlands ofInternational Importance, Especially as Waterfowl Habitat, Ramsar 1971, with List of Wetlands, 1979, and Protocol, Paris 1982.

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out only in the last 20 years or SO.39 These early attempts at environmentallaw treaty-making had a rather narrow ambit and could be concluded without having recourse to such new notions as "community of states interests" or "public interest norms" of environment protection. International lawyers trained traditionally could easily bypass those doctrinal issues and limit their analyses to sovereigntybased consent strategies ofthe community ofstates, visualized merely as a system of states, seeking cooperation in self-interest, keeping full control of all issues at all times. Common interests were accepted only if they could be translated as converging state interests,40 not as interests for the benefit of all states or of humankind as such.

2. Customary International Law It is small wonder that the rules of customary international law closely followed that pattern. After all, the constituents of customary law, consuetudo and opinio iuris sive necessitatis squarely rested on the existing system of states. It is their practice and their assessment that a binding rule of customary law should come into being that dominates this source ofinternationallaw to this day. And I do not wish to go into the much discussed debate whether state practice can also be organization practice or organization opinio iuris alongside the role reserved to states. 41 Suffice it to say that until recently rules of customary law in the field of 39 For an overview, see Michael Kloepfer, Umweltrecht, 1989, 9 and 315 et seq.; Rüdiger Wolfrum, Purposes and Principles of International Environmental Law, GYIL, vol. 33 (1990), 308 et seq. 40 Cf Eibe Riedei, Wir, die Völker der Vereinten Nationen - fest entschlossen, künftige Geschlechter vor der Geißel des Krieges zu bewahren, die zweimal zu unseren Lebzeiten unsagbares Leid über die Menschheit gebracht hat, in: Stephan Hobe (ed.), Die Präambel der UN-Charta im Lichte der aktuellen Völkerrechtsentwicklung, 1997,34,44 et seq.; Albert Bleckmann, Zur Wandlung der Strukturen der Völkerrechtsverträge Theorie des multipolaren Vertrages, AVR 34 (1996), 218. 41 From the abundant literature, see only Obed Y. Asamoah, The Legal Significance of the Declarations ofthe General Assembly ofthe United Nations, 1966; Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations, 1963; Jorge Castaiieda, Legal Effects of United Nations Resolutions, 1970; KrzysztoJ Skubiszewski, Non-Binding Resolutions and the Law-Making Process, Polish Yearbook of International Law, vol. XV (1986), 135; Richard A. Falk, On the QuasiLegislative Competence of the General Assembly, AJIL, vol. 60 (1966), 782; Klaus Dicke, Völkerrechtspolitik und internationale Rechtsetzung, Zeitschrift für Gesetzgebung 3 (1988), 193; Lothar Gündling, Environment. International Protection, in: Rudolf Bernhardt (ed.), EPIL 9, 1986, 119, 124 et seq.

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environment protection in order to be accepted at all would have to give predominance to the will ofnation-states.42 International lawyers were, however, ingenious and elaborated quite an extensive array of norrns based on very few precedents, indeed. As in many other new fields of law this piecemeal approach of developing new norrns proved to be quite successful. The frequently cited cases of Trail Smelter, Corfu Channel, and Lac Lanoux,43 plus a few others are exarnples for this process of norrn-creation where mIes of internationallaw are sorely needed but states for fear of costs and loss of influence shirk from responsibilities required by new developments such as environment protection in a transnational perspective.

(1) In the Trail Smelter case (1941) great arnounts of sulphuric acid escaped from a smelter on Canadian soil causing a lot of darnage to farmlands in the USA. Heavy los ses of harvests and long-time soil pollution were the consequences. A mixed claims commission allotted US$ 350,000 as a lump surn agreement, even though this only covered part of the immense darnage caused. The award was justified by a forrnulation that was to become a major statement of environment protection in cases to come. The much-quoted passage reads: Under the principles of internationallaw, as weil as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by c1ear and convincing evidence. 44

Although these utterances were made obiter, not as apart ofthe ratio decidendi, they subsequently assurned a role which nobody foresaw at the time. And yet, customary mIes of international law still emanated from the will of individual states. (2) This dictum was followed in the Corfu Channel case of 1949, which really did not concern territorial or environmental law questions but British rights to warships and innocent passage through mined straits between Corfu and Albania. 42 See generally Georg Dahm/Jost DelbrücklRüdiger Wolfrum, Völkerrecht, vol. 111, 2nd ed. 1989,60; Kiss/Shelton (note 12), 105; Birnie/Boyle (note 15),9 et seq. 43 Trail Smelter case (1941), United Nations Reports ofinternational Arbitral Awards (RIAA), vol. 3, 1905; Corfu Channel case, le} Reports 1949,4; Lac Lanoux case (1950), RIAA, vol. 12,281. .. Cf Kevin J Madders, Trail Smelter Arbitration, in: RudolfBernhardt (ed.), EPIL 2, 1981,276,278 et seq.

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The ICJ did, however, follow the Trail Smelter reasoning by saying "that every state is under an obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states. "45 This case before the World Court does show clearly, it is submitted, that a narrow reduction of environmental concems to neighbor law and river law can no longer be maintained. As early as 1949 the Corfu Channel case laid down duties of information and consultation vis-a-vis other legitimate user states to quickly inform neighboring states of events endangering the environment and which emanate from their territory and to involve such affected states in the process of fmding problem solutions. This wide reading of the dictum was later endorsed by the Vienna Conventions of 1986 following the Chemobyl disaster. 46 (3) This customary principle of environmental law was later taken up and widened in the Lac Lanoux case (1957),47 whereby no state should utilize its territory in a manner whereby considerable damage is caused to another state. In an area of great aridity, joint water usages are of particular relevance to upper- and lower-lying states. The arbitral award mainly concemed different problems, such as about a pactum de negotiando, Le., agreeing to take up negotiations, and negated further duties to wait for a consensual utilization agreement ofthe states concemed because otherwise clever negotiation tactics might effectively fore stall the legitimate utilization possibilities ofthe upper-lying state; the greatest significance for the future in terms of environmentallaw relevance lay in the strengthening of the rule of customary law, as enunciated in the Trail Smelter and Corfu Channel cases. And yet, all these sparse evidences of customary intemationallaw48 still largely conformed with the traditional notion of a community of states, based on the active consent of all states in their respective discretion.

Corfu Channel case, ICJ Reports 1949,4,22. Supra, note 16. 47 Lac Lanoux case (1950), RlAA, vol. 12,281; see also Dietrich Rauschning, in: Rudolf Bernhardt (ed.), EPIL 2, 1981, 166. 48 Other cases are the Gut Dam-Claims (1965), ILM, vol. 4 (1965), 473; (1969), ILM, vol. 8 (1969), 118; cf Günther Handl, Gut Dam Claims, in: RudolfBernhardt (ed.), EPIL 2, 1981, 126; see also Judgment ofthe Tribunal Administratif de Strasbourg of 27 July 1983, ZaöRV 44 (1984), 342, with note by Ulrich Beyerlin; see also Lagoni (note 6),245 et seq. 45

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(4) A new twist in this development, amounting to a real change ofparadigm, occurs in recent case law with environmentallaw relevance. In the case of Oposa v. Secretary o/the Department 0/ Environment and Natural Resources (1993),49 the Philippine Supreme Court handed down a far-reaching decision. The plaintiff, Mrs Oposa, had claimed that Philippine govemment concessions for cutting down tropical forests should be rescinded and that permits should be withdrawn. She further pleaded that she not only represented her own interests but also those of her future generations. The Court fully allowed the complaint and, moreover, specifically relied on the concept of "intergenerational responsibility," even though the case might weIl have been decided on narrower grounds. The Supreme Court stressed, almost lyricaIly: Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology.50

(5) Next, in a couple of significant cases coming from Australia, similarly farreaching customary rules of traditional neighbor law were enunciated and then much expanded to conform with the newer trends in environment protection measures. 51 Instead ofrelying purelyon traditional customary rules these were expanded to embrace the newer concepts of "intergenerational equity" and "common concerns of mankind," in short: public interest norms of international law which go weIl beyond traditional customary law. In the case of Leatch v. National Parks and Wildlife Service (1993),52 a new road was to be constructed, traversing a protected area with endangered fauna, particularly the biotope of Giant Burrowing Frogs. The licensing authority had granted dispensation from strict rules of a fauna protection statute, which the authority was entitled to do. And yet, the Court rescinded the licence, relying on 49 Juan Antonio, Anna Rosario and Jose Alfonso Oposa, represented by their parents Antonio and Rizalina Oposa, the Philippine Ecological Network, Inc. et al. v. Factoran and Rosario, Republic ofthe Philippines Supreme Court, ruling 30 July 1993, GR No. 101083, noted in: RobinsoniDunkley(note 14),314. 50 See ILM, vol. 33 (1994), 173, 175; Christian Tietje, Die Völkerrechtswidrigkeit des Einsatzes von Atomwaffen im bewaffneten Konflikt unter Umwelt- und Gesundheitsschutzaspekten - zur Gutachtenanfrage der WHO an den IGH -, AVR 33 (1995), 266, 283. 51 For the following see Robinson/Dunkley (note 14),313 et seq. 52 Leatch v. National Parks and Wildlife Service & Another (1993), 81 LGERA 270; see also Environmental Protection Authority (EPA) v. Caltex Refining Co. Pty. Ltd. (1993), Australian Law Journal, vol. 68 (1993), 127; but cf per contra: Cambridge Water Co. v. Eastern Counties Leather plc (1994), 1 ALL ER 53.

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the precautionary principle, and that despite the fact that it could not be proved what behavioral patterns, which concrete biotopes, and how many giant frogs were really in need of protection. Tbe Court, instead, held that the road constructors would have to adduce such evidence. Such a major shift in the burden of proofwas basically deduced from the principles of sustainability, intergenerational responsibility, and the precautionary principle. It is quite clear that we are here facing a truly revolutionary shift of focus away from traditional state-orientation - albeit to start with only as opinio iuris or isolated state practice - towards a public interest orientation of internationallaw with much wider connotations - a true change of paradigm in the sense used by Thomas Kuhn. 53 (6) In the case Environmental Proteetion Authority v. Caltex Refining Co. (1993r ofthe same year 5 an Australian court demanded discovery of documents conceming an alleged oil spill from a refmery in order to be able to investigate soil contamination. When such discovery was refused on the grounds of privilege against self-incrimination, the Court simply decided against Caltex and elaborated that such a claim of privilege was highly individualistic and could not be relied upon by an enterprise as such in order to forestall proof of environmental damage. Under German Constitutional Law (Art. 19 III Grundgesetz), the company might weIl have claimed rights that are personal, provided they could, by their nature, be applied to companies as weIl. Such far-reaching dicta of some Commonwealth countries are, however, still far and few between. Similar cases in Britain generally were decided in favor of economic uses. 56 (7) Tbis increasing trend of judicial pronouncements at the national but also at the regional level, to embrace environmental issues as additional concems vaulting over the community of states rather than merely seeing them under aspects of danger prevention or public order or under aspects of good neighborliness, has been developed in a number of very recent decisions of the Strasbourg human rights institutions. Tbe European Human Rights Convention (ECHR) as such makes no mention of environmental protection. And yet, there have been attempts to allocate precisely that function to some of its specific provisions of human

Thomas Kuhn. The Strueture of Seientifie Revolutions, 1962. Ca/tex ease (note 52). 55 Note that these dicta followed the Rio proeess of 1992. 56 Cf the reeent Cambridge Water ease (note 52), as RobinsoniDunk/ey (note 14), 315 et seq. have eogently pointed out. 53

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rights. S7 Candidates for such attempts are the right to life (art. 2 ECHR), the prohibition of inhuman and degrading treatment (art. 3 ECHR), freedom of private life and ofthe family (art. 8 ECHR), and last but not least, the protection ofprivate property (art. 1 ofProtocol I to the ECHR), as Kley-Struller has recently analysed. S8 But the European Commission and Court of Human Rights generally rejected such attempts, apart from allegations of art. 8 infringements. As early as 1977, in the case of Arrondelle v. United Kingdom, S9 the Commission found that noise emanating from starting and landing aircraft at Gatwick amounted to intolerable stress for people living in the vicinity and that the right to the enjoyment of private I~fe thereby had been infringed. The case was settled amicably - payment of f. 47,500 - but in similar cases the Convention institutions always insisted upon considerable noise levels before an infringement of art. 8 ECHR could be assumed. In addition, the Strasbourg institutions increasingly made use of the legitimate exceptions to that human rights guarantee so that via art. 8 (2) ECHR state action usuaIly could be justified as "incursions, necessary in a democratic society or necessary for the economic development ofthe country," as was done in the case of Powell and Rayner v. UK (1990).60 A similarly restrictive application ofthat privacy right was adopted in the case of G. and E. v. Norway.61 In that case a water power station was to flood 2.8 km2 of a vaIley, inhabited by Lapps who lived there traditionally as shepherds, fishermen, and hunters. The Commission did establish that privacy rights had been infringed as not only the reservoir but also the attendant changes in the ecosystem were at issue, but the request was rejected as Norway had made available sufficiently large grounds for the Laplanders in areas not densely populated so that the limitation of the private sphere was considered to be marginal as compared with the potential loss of economic advantages accruing from the dike. The economic wellbeing ofthe country thus deserved higher priority. Similar complaints from France in 1991 about the emission offumes and noise from an atomic plant lead-

57 Cf for this tendency generally Richard Desgagne, Integrating Environmental Values into the European Convention on Human Rights, AJIL, vol. 89 (1995), 263. 58 Andreas Kley-Struller, Der Schutz der Umwelt durch die Europäische Menschenrechtskonvention, EuGRZ 1995, 507. 59 Complaint no. 7889/77, DR 19, 186 and DR 26,5. 60 Powell and Rayner v. United Kingdom, 1990, Sero A No 172, nos. 41 and 45; see also EuGRZ 1990,513. 61 DR 35,30, no. 9278/81 and No. 9415/81, see also EuGRZ 1995, 513.

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ing to continuous nightly lighting and general deformation of a previously attractive Loire landscape were rejected on similar grounds. A possible general change of tendency was brought about in the most recent case of Lopez Ostra v. Spain. 62 There, too, the question arose whether emissions from a waste disposal and sewerage plant amounted to an infringement of the human right to privacy and undisturbed family life, on account of foul smells, noise, and smoke. Tannery sewerage and waste had caused a lot of health problems with the claimant as weIl as with many neighbors. The immediate neighbors of the tannery had had to be evacuated. The claimant decided to move to another place, even though the tannery was partially closed down. After the European Court of Human Rights had reiterated its generalline of dicta concerning legitimate limitations to art. 8 ECHR, the claim nevertheless was successful. Art. 8 ECHR not only protects against excessive aircraft and road traftk noise but also against massive water and soil pollution and foul smells. This case clearly demonstrates the judicial tendency ofthe Strasbourg institutions in most recent years to extend the ambit of art. 8 ECHR to the protection of the environment, even though the Convention as such does not mention environmental issues at all. The main reason being, of course, that environmental awareness stems from the sixties and seventies, while the ECHR was adopted in 1950/51. It is quite obvious that these dicta will become leading cases for many similar complaints to come, and they will influence the further development of international environmentallaw considerably.

3. General Principles 0/Law as Basic Principles 0/ Common Interest These cases concerning customary international environmentallaw and extensive treaty interpretation by activist judicial pronouncements have been bolstered up by a number of general principles of law which, from modest beginnings, have developed fully along the lines of a normative umbrella held above the states, under which they pursue their activities and which increasingly structure and shape their behavior irrespective oftheir own individualistic nation-state interests. Some of these general principles of law are proper sources within the meaning of art. 38 (1) (c) ICJ-Statute, some have transformed into customary law roles. Let me just mention the more important ones appertaining to environment protection:

62

L6pez Ostra v. Spain, 1995, EuGRZ 1995, 530.

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(1)

"Act so that you do not hann others" (Sie utere tuo ut alienum non laedas).

(2)

General duties 0/ eooperation, information, eonsultation, and negotiation, wh ich were highlighted in the post-Chernobyl phase. Needless to say that such duties are much less effectively binding as the infringing state usually gets off lightly. Tbe environment as such usually does not get great support. Such weak duties do, however, serve to act as precautionary measures, particularly if they are later combined with fully binding sanctions or other implementation means.

(3)

Tbe prineiple 0/ equitable and reasonable utilization when joint uses are at issue. Much controversy does exist, however, as regards the details.

(4)

Tbe principle of optimal instead of maximal usage. Tbis is a principle in statu naseendi springing from the idea of sustainability of the Rio process.

(5)

Tbe prineiple 0/good neighborliness.

(6)

Tbe rules of shifts o/the burden o/proo/in cases of damage incurred.

(7)

Possibly also the prineiple 0/ estoppel could be counted as a flanking principle for environment protection. 63

All these legal principles may be employed as legally valid, concretizing standards. In the literature there is controversy about the assertion that all of them already are fully binding64 • Quite beyond dispute is the prineiple 0/ equitab/e and reasonab/e share, flanked as it is by treaty and customary law rules. It goes back to the famous He/sinki Ru/es of 1966 about water usages, which initially were merely non-binding standards to be shaped more precisely at a later stage. 65 Tbe He/sinki Ru/es meant that all relevant factors of a case, related to non-navigational water uses, the geography of the water basin, the hydrology and climate affecting the basin, the past utilization of the basin, the existing utilization, as weIl as the economic and social needs of user states, 63 Cf Eibe Riedel, Grundlagen und Hauptprobleme des internationalen Umweltrechts, in: Peter Eichhorn (ed.), Ökologie und Marktwirtschaft, 1996, 146, 155. 64 Cf Eibe Riedel, Standards and Sources. Farewell to the Exclusivity of the Sources Triad in International Law?, EJlL, vol. 2, no. 2 (1991),58. 65 See text ofILA: The Helsinki Rules on the Uses ofthe Waters ofinternational Rivers, 1966, in: Harald Hohmann (ed.), Basic Documents ofinternational Environment Law, vol. 1,227.

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the population needs, the comparative costs of alternative means of satisfying needs, - and the avoidance ofwaste and availability of other resources should always be taken into account. The mies then state that all these factors have to be gauged and carefully assessed within the scope of an equitable and just utilization and that adecision should only be arrived at after an holistic problem analysis. 66 To give an example flom recent state practice: The Turkish-Syrian-Iraqi dispute about the construction and operation ofthe Atatürk Dike at the upper end of the Euphrates river in Southeast Anatolia arose out of a temporary volume reduction of waterflow by Turkey over aperiod of several months. 67 Consequently, a lot of agricultural damage was caused further down the river, particularly in those arid areas where elaborate irrigation systems depended on the steady and full flow ofthe Euphrates river. Applying the principles outlined above, it may be concluded that Turkey contravened several mies of internationallaw: (1)

the principle of equitable utilization was disregarded;

(2)

the extensive duties of cooperation, consultation, information, and negotiation with the neighboring states concerned had not been adhered to, as far as this was reported in the press. Naturally, Turkey alleged that the other states merely relied on those principles to block the legitimate uses of water by Turkey, as was stated in the Lac Lanoux case;68

(3)

the principle of damage avoidance was defmitely infringed in that the generally recognized principle 0/proportionality69 had not been heeded whereby a less infringing solution maintaining the legitimate aim of dike construction might have been devised which would have served the user interests of all neighboring states by slower flow rate reductions over a longer period of time.

As specific binding norms of dispute settlement on treaty basis often are lacking and as implementation machinery is often not available at the international level, states will have to have recourse to chapter VI measures of the UN Charter See article V (3) ofthe Helsinki roles (note 65),passim. Cf Riedel (note 63), 157; the actual flow rate amounted to 120 cubic metres instead of 500 cubic metres per second. 68 Lac Lanoux case (note 47). 69 See Jost Delbrück, Proportionality, in: Rudolf Bernhardt (ed.), EPIL 7, 1984, 396. 66

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ifthey seek peaceful rnethods of dispute settlement. Presently, the similar conflict between Hungary and Slovakia pending before the World Court and conceming the Gabcikovo-Nagymaros Project is another case in point.1°

IV. Third Generation Rights and the Right to an Environment Worth Living in Parallel to these shifts in the forms ofintemational environmentallaw, an extended debate about so-called "third generation rights" took place. '1 Tbe idea that instead of individual states mankind as such should be the bearer of specific rights was gradually developed and found its way into quite a number of treaties. Such third dimension rights comprise, inter alia, the right to peace, development, selfdetermination, and participation as fundamental principles of a wider welfare state or solidarity principle possibly already existing at intemationallaw. 12 Other candidates, relevant here, are the right to an environment worth living in and the principle of the common heritage 01 mankind 13 All these rights of synthesis or "roof10 Gab~{kovo-Nagymaros Projeet case (Hungary/Slovakia), ICJ Yearbook 1993-94, 204; see also Alfred Rest, Die rechtliche Umsetzung der Rio-Vorgaben in der Staatenpraxis, AVR 34 (1996), 145, 165. 11 Eibe Riedei, Menschenrechte der dritten Dimension, EuGRZ 1989,9 - 21; Eekart Klein, Human Rights ofthe Third Generation, in: Christian Starek (ed.), Rights, Institutions and Impact ofIntemational Law according to the German Basic Law, 1987,63; Karel de Vey Mestdagh, The Right to Development, NILR, vol. XXVIII (1981), 30; Phi/ip Alston, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation ofIntemational Hurnan Rights Law?, NILR, vol. XXIX (1982),307; Christian Tomusehat, Das Recht auf Entwicklung, GYIL, vol. 25 (1982), 85; Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, Stanford Journal of International Law, vol. 28 (1991), 103 et seq. 72 Riedel (note 71), 13, with further references. 73 Wilhelm A. Kewenig, Common heritage of mankind - politischer Slogan oder völkerrechtlicher Schlüsselbegrift'?, in: Festschrift Hans-Jürgen Schloehauer, 1981, 385; Rüdiger Wolfrum, The Principle of the Common Heritage of Mankind, ZaöRV 43 (1983), 312; Alexandre Ch. Kiss, La notion de patrimoine commun de I'hurnanite, RdC, vol. 175 (198211),99; Godfried J. H van Hoof, The concept of"Common Heritage of Mankind": A Political, Moral or Legal Innovation?, San Diego Law Review, vol. 9 (1972), 390; Bradley Larsham/Bonnie C. Brennan, The Common Heritage ofMankind Principle in International Law, Colurnbia Journal ofTransnational Law, vol. 21 (1983), 305; Christopher C. Joyner, Legal Implications of the Concept of the Common Heritage of Mankind, ICLQ, vol. 35 (1986), 190; for an overview of the recent literature on this topic see Uys van Zpl, The "common heritage ofmankind" and the 1982 Law ofthe Sea Convention: principle, pain, or panacea?, Comparative and International Law Journal of Southern Africa 26 (1993), 49;

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rights" have in common that instead of producing norms in the interest of individual states a holistic system's approach is taken whereby resource utilization and social needs are not viewed from the perspective of states but in a much wider context, articulating concerns of all peoples, groups, individuals, in short, concerns of mankind as a whole. Human rights of the third dimension do not serve as surrogates for human rights ofthe fIrst and second dimension but fulftl complementary functions opening up completely new problem vistas. Such third generation/dimension rights may be regarded as additional legal standards which supplement the existing normative framework. The debate about third generation rights began in the context of attempts to establish a new world economic order and strategies ofbasic needs developed in the context of the ILO. When these "new world order"-models seemed to have failed by the end of the seventies, the developing countries started to advocate their concerns of development by shifting the debate from political economy to human rights. The ethical appeal of human rights could thereby be utilized for their aim of improving the lot of developing countries. The career of the common heritage 0/mankind concept may serve as an illustration for this new approach to international norm-setting. 74 Its contents were outlined as early as 1967 when Ambassador Arvid Pardo presented his views about a new seabed regime, stressing the idea that the riches of the oceans and ocean floor beyond national sovereignty should be regarded as a common heritage of mankind, like the Roman res communis omnium - or the German "Almende" - or the Anglo-American "commons" idea. 7S The Third UN Law of the Sea Conference subsequently took up this idea and laid down in art. 136 LOS Convention: "The Area and its resources are the common heritage ofmankind."76 And this new concept was regarded as so important that in arts. 155 (2) and 311 (6) LOS Convention it was even protected against future abolition or amendment: The Review Conference shall ensure the maintenance of the principle of the common heritage ofmankind, the international regime designed to ensure equitable exploitation Thomas Fitschen, Common Heritage of Mankind, in: Rüdiger Wolfrum (ed.), United Nations: Law, Policies and Practice, vol. 1, 1995, 149; Werner Stocker, Das Prinzip des Common Heritage of Mankind als Ausdruck des Staatengemeinschaftsinteresses im Völkerrecht, Diss. Zürich, 1993, passim (English summary, 233 - 236). 74 Riedel (note 71),15, with further references. 7S For an excellent expose ofthese notions, cf. Elisabeth Back-Impallomeni, Zur Rechtsstellung von Drittstaaten gegenüber dem Mondvertrag von 1979, ÖZöRuV 33 (1982), 267. 76 UN Law ofthe Sea Convention (note 19).

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of the resources of the Area for the benefit of all countries, especially the developing States, and an Authority to organize, conduct and control activities in the Area.

Art. 311 (6) LOS Convention unequivoeally seals this pledge by saying: States Parties agree that there shall be no amendments to the basic principle relating to the common heritage ofmankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.

If one tries to analyze the legal implications of that principle, it becomes evident that we are here dealing with a eomposite norm consisting of parts that are legally binding and others that are not strictly binding but in the process of soliditication, law in statu nascendi. 77 In the literature, five component parts of the common heritage principle ean be made out: (1)

a territorial element, precluding any acquisition by individual states. The prevailing tendeney of dividing up areas of the high seas amongst riparian states, still prevalent in the Continental Shelf Convention, thereby was stopped;

(2)

an element offree exploration and scientific research ofthe seabed, leaving the Area open to all;

(3)

an ecological element, the proteetion of flora and fauna;

(4)

a military element, prohibiting for all times any military use of the deep seas and assuming that the area should only be used for peaceful purposes;

(5)

the most important, yet most controverted element was the utilization element. Deep sea resourees should be exploited in the interests of all humanity and preference should be given to developing eountries.

Four ofthe five components ofthe common heritage principle can be regarded as fully binding by now. Only the question of eeonomie utilization remains eontroverted. But sinee the Interim Agreement to the Law of the Sea Convention seems to have found a viable eompromise regarding the utilization modalities of deep sea mining, the eommon heritage principle has become binding with the exceptions laid down in the LOS Convention and the Interim Agreement. The significanee of this fmding is that the notion of norms in the interest of humankind as a whole, not in the interest of individual states, is stressed. Similar formulations can be found in arts. 6 and 11 ofthe Moon Treaty (1979), art. 6 ofthe UNESCO Convention forthe Proteetion ofthe World Cultural and Natural Heritage (1972),

77

Cf Riedel (note 87), 300, 302.

6 Symposium 1996

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but also in the Antarctic Treaty of 1959, although not fully developed there. 7B This brief surveyshows, in my opinion, that this is an area of internationallaw where clearly the sovereignty-rooted coexistence-based conception of the community of states is given up in favor of structure principles or standards serving humankind as such, not just states. 79 It may safely be predicted that the common heritage principle will in future be generally applied to territories outside national jurisdiction or to particular legal regimes such as outer space, marine resource utilization, and the Polar regions. This overriding principle thus can be regarded as a stepping stone for public interest nonns in other fields of internationallaw. It was easier to accept the notion because it mostly involved areas outside sovereign control, but it may weIl branch out into the domaine reserve of states as happened with human rights protection generally. And yet, a price had to be paid for such an extension: Instead of the "common heritage" principle merely "common concerns of the community of states," a much wider and vaguer notion, seems capable of general consent.

V. The Rio Process The greatest influence on the development of international environmentallaw and on the evolution ofpublic interest nonns was exerted by the Earth Summit of Rio de Janeiro of June 1992. The five documents produced at that conference were two legally binding treaties, the Climate Framework Convention BO and the 78 It must be emphasized, however, that a11 these instances involve areas beyond state sovereignty, cf Ulrich Beyerlin, Staatliche Souveränität und internationale Umweltschutzkooperation, in: Festschrift RudolfBernhardt, 1995,937,943 et seq.; by the same author, State Cornmunity Interests and Institution-Building in International Environmental Law, ZaöRV 56 (1996), 602, 610. 79 In this sense, see also the general conclusion by Georg Handl, Environmental Security and Global Change: the Challenge to International Law, Yearbook ofInternational Environmental Law, vol. 1 (1990), 3, 31 et seq.; for a thorough analysis, see also Albert Bleckmann, Allgemeine Staats- und Völkerrechtslehre, 1995, 696 et seq.; Jochen Abr. Frowein, Das Staatengemeinschaftsinteresse - Probleme bei Formulierung und Durchsetzung, in: Festschrift Karl Doehring, 1989,219,224; by the same, Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung, in: Festschrift Hermann Masler, 1983,241; Jost Delbrück, Globalization ofLaw, Politics, and Markets - Implications for Domestic LawA European Perspective, Indiana Journal ofGiobal Legal Studies, vol. 1 (1993),9, 15 et seq. 80 Framework Convention on Climate Change, 15 May 1992, UN doc. A/AC.237/18, Annex I, see also Stanley P. Johnson (ed.), The Earth Summit: The United Nations Confer-

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Convention on Biological Diversity81, two legally non-binding documents, the Declaration on Forests and the Rio Declaration on Environment and DevelopmentB2 supplemented by a 600-page political action programme, the Agenda 21,83 elaborating the Stockholm Conference principle 21 of 1972 which had stated in no uncertain terms: States have, in accordance with the Charter ofthe United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. 84

In addition principle 2 ofthe Stockholm Declaration was taken up which stated clearly that [t]he national resources ofthe earth including the air, water, land, flora and fauna and especially representative sampies of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

and reinforced by principle 3, that [t]he capacity ofthe earth to produce vital renewable resources must be maintained and, wherever practicable, restored or improved.

This, in nuce, was the idea of sustainability, the most careful use of existing resources for the benefit of future generations. The Stockholm principles already

ence on Environment and Development (UNCED), 59; Text also in ILM, vol. 31 (1992), 849; see also Laurence Boisson de Chazournes, The United Nations Framework Conventi on on Climate Change: On the Road Towards Sustainable Development, in: Wolfrum (note 13), 285. BI UNCED Convention on Biological Diversity, ILM, vol. 31 (1992), 818; see also Johnson (note 80), 82; for a good background analysis see Simone BilderbeekiAnkie WijgerdelNetty van Schaik (ed.), Biodiversity and International Law, 1992, particularly 5 et seq.; for arecent analysis, cf Rüdiger Wolfrum, The Convention on Biological Diversity: Using State Jurisdiction as a Means of Ensuring Compliance, in: Wolfrum (note 13), 373. 82 UNCED Non-Iegally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests, UN doc. NCONF.l 5 l/6/Rev. I, 13 June 1992, ILM, vol. 31 (1992),882; see also Johnson (note 80), 111; UNCED Rio Declaration on Environment and Development, UN doc. NCONF.151/5/Rev.l, 14 June 1992, ILM, vol. 31 (1992),874; see also Johnson (note 80), 118. 83 For full text of Agenda 21, cf Johnson (note 80), 121. &4 Declaration of the UN Conference on the Human Environment, Stockholm, 5 June 1972, text in: Hohmann (note 18), vol. 1,21,25 et seq. 6*

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stressed the protection and precautionary approach, which henceforth was to govern environmental policies and then became the central point of reference at Rio. 85 A new paradigm was thus created in international environmentallaw, focussing on global concerns of mankind and transcending the realms of sovereignty-based individual states, just as this had occurred in the areas of international peace-keeping and human rights protection. The Rio package follows the frequently employed pattern of internationallaw standard-setting, i.e., combining legally binding with legally non-binding norms. This method of standard-setting achieves a result whereby general and vague but fully binding norms are conjoined with complementary standards which, on their own, are not binding but fmd great political consensus and which purport to interpret or defme the vaguer norms that are binding. 86 If that function is denied to these standards, they at least formulate programmatic statements of intent that states are prepared to accept as political or ethical precepts. Such combination standards might also be described as "zebras."87 They are standards which may but need not necessarily be applied. The novel feature about the Rio process is that the fully binding norms are kept vague, almost on purpose, in order to entrap as many states as possible in the hope that this seemingly loose normative net will gradually become more closely knit and thus catch the recalcitrant states after all. The most frequently used technique for this sly intention is to formulate framework conventions, for example, the Climate Framework Convention (1992), to be followed later by more specific protocols spelling out harder duties in more detail. This model was tried in the Vienna Ozone Layer Convention (1985) and the Montreal Protocol of 1987 thereto but also in the Geneva Convention on LongRange Transboundary Air Pollution (1979) with four protocols of 1984, 1985, 1988, and 1991. 88 This pattern ofnorm-setting proved to be quite effective and promising: quietly, on soft soles so to speak, a new legal duty sneaks up entailing few if any immediate costs. The more painful, costly concretizations are left for later implementation - by protocols after intensive negotiation - and separate 85 Cf Brown Weiss (note 11), In Fairness, 119 et seq., 126 et seq.; Hand! (note 79), 24 et seq.; Partridge (note 10),passim. 86 Riede! (note 64), 68 et seq., and 82 et seq. 87 Riede! (note 64),82; by same author, Theorie der Menschenrechtsstandards, 1986, 300 and 302; Hans W Baade, The Legal Effects of Codes of Conduct for Multinational Enterprises, in: Norbert Horn (ed.), Legal Problems ofCodes ofConduct for Multinational Enterprises, 1980,3,14. 88 Climate Framework Convention (note 80); Convention for the Protection of the Ozone Layer (note 32), with further references there; cf also Hohmann (note 18), vol. 3, 1691; Birnie/Boy!e (note 15),387.

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adoption. 89 By this method an ever closer "patchwork" ofbinding norms is created which states, at fIrst, will only accept to the extent of contractual consensus but from which later on new customary roles or general principles may evolve. But framework conventions can also fulfIl an additional role: They may, as the name implies, set the frame generally and refer implementation modalities of these loosely-knit obligations to the more stringent domestic law regulations. Standardsetting thus will be international, implementation and controls national ("Think globally, act locally"). This pattern is used in the Climate Convention of 1992. But there are snags with this method, too. A picture of many legal norms may emerge where obligations do exist but where implementation norms founder due to stubborn resistance by individual states. From an environmental protection standpoint the impression may be gained that something seems to be done whereas, in fact, very little actually is done due to the lack of implementation undertakings. Thus, at Rio no consensus could be reached as regards the permitted rates of emission. Art. 2 (a) and (b) did formulate, however, that by the end ofthis century areturn to the rates of 1990 should be achieved. At the Berlin follow-up conference of 1994 an implementation protocol was tabled but could not be adopted. The conference merely managed to adopt a negotiation mandate for working out a timetable. 90 Pessimists will say that this technique of standard-setting is no more than window-dressing where more is needed, optimists will point out that such loose standards set the trail for further elaboration of norms and increase the pressure on states to do something. The second convention, the Rio Convention on Biodiversity (1992)91 similarly used this technique in order to preserve the diversity of species. Like the Climate Convention it establishes national monitoring systems to observe the status of biodiversity. Member states then take on the duty to work out national plans, strategies, and programmes for the protection of biological diversity. But this does not put great burdens on states in fmancial terms as specifIc implementation duties are stillieft open. The Biodiversity Convention formulates, however, long check lists

89 Cf Winfried Lang. Compliance Control in International Environmental Law: Institutional Necessities, ZaöRV 56 (1996), 685, particularly 691; Thilo Marauhn. Towards a Procedural Law of Compliance Control in International Environmental Relations, ibid.• 696; more critical of this approach Birnie/Boyle (note 15), 546: "replete with so-called 'constructive ambiguities' which will require further interpretation by state practice and continuing negotiation of additional protocols." 90 For a good overview cf Hermann E. Oft. Elements of a Supervisory Procedure for the Climate Regime, ZaöRV 56 (1996), 732. 91 Cf supra (note 81).

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for the prevention of hannful consequences of nature uses on species diversity, much like the environmental compatibility assessments in national environmental law or in directives ofthe European Community. States also take on the obligation to institute in situ and ex situ conservation measures, such as fish fanning instead of overfishing, breeding or rebreeding of endangered buffaloes in America, or fertilization attempts with Panda bears in ZOOS.92 The framework technique of instituting the classical obligatory reporting system, the holding of state conferences, and the institution of a permanent secretariat is followed in this convention as weIl. Even though this Biodiversity Convention technically is not a framework convention, it nevertheless follows the general pattern of all the more recent environmentallaw treaties: In order to involve as many states as possible initially only general, "soft" treaty obligations are prescribed, which previously would have been left to mere soft law declarations to be followed by more stringent norms laid down in protocols at a later stage when problem awareness would be more acute and the willingness of states to act would have grown. This technique can also be observed in the International Convention to Combat Desertification in Countries Experiencing Serious Drought93 where a specific area approach has been devised laying down different framework standards for different world regions. A complex system of annexes speIls out the details of the procedural setups leaving material questions for subsequent action. 94 Western states at Rio had hoped that the Earth Summit might produce a Forest Convention. This failed because developing countries feared "ecoimperialism" and stupendous costs. The Agenda 21 assessed costs in the region ofUS$ 600 Billion if all measures suggested would actually be carried out. In the end, aglobaI environmental facility, amounting to just US$ 2 Billion was adopted, Germany pledging US$ 240 Million. 95 This modest global environmental facility did, however, set in motion a general rethinking and reorientation of developing and developed states alike, stressing in no uncertain terms that environmental problems can Cf generally, Brown Weiss (note 11), In Fairness, 195 et seq., 200 et seq. andlor Desertification, particularly in Africa, UN doc. N AC. 241115IRev.5, 17 June 1994. 94 Annex I: Regional Implementation Annex for Africa, 24 et seq.; Annex 11: Asia, 34; Annex III: Latin America and the Carribean, 38; Annex IV: Northern Mediterranean, 42. 9S Cf UNCED Agenda 21 (note 83), 443, chapter 33: Financial Resources and Mechanisms, 453; Harald Hohmann, Ergebnisse des Erdgipfels von Rio, NVwZ 1993, 311, 315; see also ILM, vol. 30 (1991), 1735; Peter H. Sand, Institution-Building to Assist Compliance with International Environmental Law: Perspectives, ZaöRV 56 (1996), 774; see also Lothar Gündling, Compliance Assistance in International EnvironmentaI Law: Capacity-Building through Financial und Technology Transfer, ibid., 798,807. 92

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only be solved if economic, social, and cultural measures are joined with infrastructural measures and that responsibility must be shared amongst all states, yet special responsibility would lie with the industrialized states. The notion of shared responsibility in the interests of aglobai concern of mankind, the protection ofthe environment, marks aglobaI public interest transcending individual states and for which new normative precepts are developed. Industrialized nations begin to realize that these global challenges demand global solutions and that it is in their own best interests to come to the assistance of developing countries now in order to preserve tropical rainforests worldwide as lungs of the earth for future generations. 96 These overriding environmental interest norms spelled out at Rio aroused awareness that the classical system of nation-states no longer suffices to cope with these global problems. Without the public interest nexus of sustainable development, as laid down in the Rio Declaration ofEnvironment and Development,97 Western states might weIl have persisted in their general reservation and criticism of all strategies for the establishment of a new international economic order or of other world order models. The realization that the environmental problems of many developing nations cannot be solved by them alone and that, in the long run, this would have profound effects in developed states as weIl has contributed to bring about a radical change in outlook: Ideological juxtapositions of the socialist or capitalist variety became less important because aIl problems would now be seen through the lenses of global public interest norms transcending states. The Rio documents, foremost amongst them the "Ecodevelopment Declaration" and the Agenda 21, joined together development and environmental aims and pleaded for an open and supporting world economic system. Developing countries, many of which previously had adhered to socialist models of planned economy, now expressly recognized the beneficial nature of market economic structures as a condition precedent for real development, while developed states clearly admitted to have key responsibility in helping the developing nations to achieve the environmental (public interest) objectives. Many other features ofthis approach cannot be dealt with here, such as the right of individuals to be informed about environmental matters of concern or the general pledge to open up avenues of greater participation for individuals and for nongovernmental organizations in the decision-making processes with environmental relevance. 98 Cf Johnson (note 80), 103 et seq., Brown Weiss (note 11), In Fairness, 218 et seq. See supra, note 82, principles 4,5,7,9, 12, and 27. 98 See Alfred Rest, Die rechtliche Umsetzung der Rio-Vorgaben in der Staatenpraxis, A VR 134 (1996),145,151 and 159; Kamen Sachariew, Promoting Compliance with Inter96

97

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In the longer run, it can safely be predicted that the Rio Declaration will gradually solidifY into hard law obligations, either by concretizing treaties, spelling out specific obligations in more detail - the framework convention model -, or by generating new mIes of customary international law or of general principles of law or a combination of such nonns. As such, the Rio Declaration may fulfil several functions: It may serve as an interpretation aid in actual cases when vague but binding treaty obligations at the global, regional, or national level are at issue. This is a typical function of legal standards in internationallaw. 99 Over and above that, the Rio Declaration may canalize future developments of the law, mark general consensus amongst states about the general direction of future developments, precluding unilateral deflections at a later stage. As such, the Declaration has a programmatic, educational, and promotional effect. lOo No prophetic gift is needed to predict that the Rio Declaration will have a similar seminal effect as basket III ofthe CSCE Helsinki Final Act of 1975, long before effective human rights protection in Eastern Europe became reality. At any rate, there is general consent that the Rio process already has produced new "grassroot principles" that themselves spring from notions of a public interest beyond individual states and relate to the covariance of development and environment. The move away from isolated economic growth ideology and the pledge to strive for sustainable development on a market economy basis as aglobai concern today already musters an astonishing degree of consent amongst states. 101 But much remains to be done that this outlook will not degenerate into purely good intentions. Need I repeat that states not willing to cooperate in this new spirit still have ample opportunities to hide behind framework conventions, obligating only in a very general way without sizeable cost consequences, and abstain from stricter obligations in protocols or specific treaties, thus insinuating that something beneficial is being done for the protection of the environment, while stringent measures of implementation are not agreed upon or, if so, only by inches?

national Envirorunental Legal Standards: Retlections on Monitoring and Reporting Mechanisms, Yearbook ofInternational Environmental Law, vol. 2 (1991), 31, 48 et seq.; Birniel Boyle (note 15),76. 99 Riedel (note 64), Theorie der Menschenrechtsstandards, 283 et seq., 310 et seq. 100 Riedei, ibid., chapter 3, 149 et seq., 163 et seq. 101 For this change of paradigm see: Development and International Economic Cooperation. An agenda for development, Report ofthe Secretary General, UN doc. N48/935, 6 May 1994, paras. 41 et seq., 68 et seq., and para. 235.

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VI. Public interest norms ofthe world community

1. At this point, the question will have to be answered whether the alleged change of paradigm from the concept of a community of states based on sovereign equality to a world community of states structured by public interest norms, transcending the bounds ofnation-states, has in fact taken place. But before that question can be addressed, the concept ofpublic interest norms needs some explanation. In the literature it has been mentioned in connection with the peace-keeping system of the UN,I02 international human rights protection,103 humanitarian law, 104 and the law relating to arms control and disarmament. 105 The basic idea is that above states a normative net of independently structuring public interests spreads out and that there are certain matters of global concern, so vital that they operate independently of the interests and aims of individual states for the benefit of all mankind. These public interest norms of international law represent ius cogens principles that no state may derogate from, which operate erga omnes, and thus demand compliance even of states not parties to relevant treaty regimes. 106 Art. 2 102 See, for example, Jost Delbrück, Staatliche Souveränität und die neue Rolle des Sicherheitsrates der Vereinten Nationen, Verfassung und Recht in Übersee 26 (1993), 6; by the same, Wirksameres Völkerrecht oder neues Weltinnenrecht? Perspektiven der Völkerrechtsentwicklung in einem sich wandelnden internationalen System, in: Winrich Kühne (ed.), Blauhelme in einer turbulenten Welt, 1993, 10 l. 103 Cf Yoram Dinstein, The erga omnes Applicability of Human Rights, AVR 30 (1992),241; Jutta Brunnee, "Common Interest" - Echoes from an Empty Shell?, ZaöRV 49 (1989), 791, 796 et seq.; Riedel (note 87), 210 et seq., 339 et seq., by the same (note 64), 58 et seq.; Philip Alston, A. Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?, NILR, vol. XXIX (1982), 307; Klein (note 71), 63 et seq.; Karin Oellers-Frahm: Comment: The erga omnes Application ofHuman Rights, AVR 30 (1992), 28. 104 Cf Jost Delbrück, A Fresh Look at Humanitarian Intervention under the Authority ofthe United Nations, IndianaLaw Journal, vol. 67 (1992),887; Paul Conlon, Die rechtliche Problematik von UN-Sanktionen als Mittel zur Durchsetzung des Völkerrechts, Walther-Schücking-Kolleg, No. 19, 1996,20 et seq. 105 Tietje (note 50), 277 et seq.; see also Alexandre Ch. Kiss, The Protection of Environmental Interests ofthe World Community Through International Environmental Law, in: Wolfrum (note 13), 1,9 et seq. 106 Hermann Mosler, Jus cogens im Völkerrecht, Schweizerisches Jahrbuch für internationales Recht 25 (1968), 9; Jochen Abr. Frowein, Reactions by not directIy affected states to breaches ofpublic internationallaw, RdC, vol. 248 (1994-IV), 353, 363 and 405 et seq.; by the same, Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung, in: Festschrift Hans-Jürgen Schlochauer, 1981, 241; Jost Delbrück, International Economic Sanctions and Third States, AVR 30 (1992), 86; Bruno Simma, Does the UN Provide an Adequate Legal Basis for Individual or Collective Responses to violations of obligations

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(6) ON Charter is an example for this, or the minimum standards of the treatment of aliens or the prohibition of slavery, torture, and genocide, to name but some. They all have in common the idea that these state obligations are owed not to other states but to the community of states as a whole. Tbe IC] and its predecessor have referred to this in an obiter dictum in the Barcelona Traction case l07 but also in the Wimbledon case lO8 and in the Nicaragua case!09 Hermann Mosler in this context spoke of new structure principles of international law, of a common "ordre public. 11O" While differences of opinion still exist about the consequences to be drawn from such a view,111 at any rate they mark a clear turnabout away from the classical bipolar legal relationships prevailing in the community of states. 112 And, as Jochen Frowein cogently argued, it is hardly conceivable how an international legal order can leave acts of aggression, of genocide, and other fundamental breaches of human rights to the whims of states. l13 In international environmentallaw this community interest or concern articulates itself in the Climate Convention (1992) via the common heritage concept, as outlined before,114 as weIl as in the UNESCO Convention for the Protection of the erga omnes?, in: Jost Delbrück (ed.), The Future ofInternational Law Enforcement. New Scenarios - New Law?, 1993, 125, 136 et seq.; see also Christian Tomuschat, Obligations Arising for States Without or Against Their Will, RdC, vol. 241 (1993-IV), 199, 232 et seq. 107 ICI Reports 1970,3,32; for an overview see Cynthia Wal/ace, Barcelona Traction case, in: Rudolf Bernhardt (ed.), EPIL 2 (1981), 30; Brun-Otto Bryde, Verpflichtungen Erga Omnes aus Menschenrechten, Berichte der Deutschen Gesellschaft rür Völkerrecht 33 (1994), 165. 108 PCIJ, Sero A, No. 1, 1923; see also Ingo von Münch, The Wimbledon, in: Rudolf Bernhardt (ed.), EPIL 2,1981,293. 109 Military and Paramilitary Activities in and against Nicaragua (Nicaragua V. USA), ICI Reports 1986, 14; see also Jochen Abr. Frowein, Das Staatengemeinschaftsinteresse Probleme bei Formulierung und Durchsetzung, in: Festschrift Kar! Doehring, 1989,219, 225. 110 Hermann Mosler, Der "Gemeinschaftliche Ordre Public" in Europäischen Staatengruppen, Revista de Derecho Internacional, vol. 21 (1968), 523, 532; by the same, The International Society as a Legal Community, RdC, vol. 140 (1973-III), 1 et seq.; by the same, Völkerrecht als Rechtsordnung, ZaöRV 36 (1976),6,42 - 45; by the same, General Principles ofLaw, in: RudolfBernhardt (ed.), EPIL 7, 1984,89, particularly 101. 111 Per contra especially Prosper Weil, Towards Relative Normativity in International Law?, AJIL, vol. 77 (1983), 413. 112 Kay Hailbronner, Sanctions and Third Parties and the Concept of International Public Order, AVR 30 (1992), 2, 5; Tietje (note 50), 282. 113 Frowein (note 109),224. 114 Supra, note 73; see also Birnie/Boyle (note 15), 411 et seq.

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World Cultural and Natural Heritage {l972),1lS in arts. 136 and 192 et seq. LOS Convention, 116 as weIl as in the Outer Space Treaties. 117 As the common heritage debate showed, such common interest ideas could best be developed for regimes outside the ambit of sovereign states, such as the high seas, the polar regions, and outer space. Since contlicting interests of individual states played a much smaller role here, the ground could be prepared for other spheres of application more prone to clashes of state interests, such as human rights protection or, indeed, environment protection. A main characteristic of such status treaties is that states set the regime in motion, but that such treaties develop their own life once they are in force, and that they may even operate against the interests of states who had brought the regime into being. 118 Another characteristic feature of such treaties is that they postulate protection values bringing few immediate advantages to individual states but are owed to the community of all states. The do ut des reciprocity element of treaties has a clearly diminished role to play in such treaties. Thus, human rights treaties even pierce the veil of state sovereignty and are not designed primarily to benefit state parties but individuals and groups within these states. The newer environmentallaw treaties are fashioned along similar lines. Here, too, not primarily member states but, independent therefrom and transcending states altogether, nature as such and global environmental concerns are protected for which the nation-state only retains the function of triggering off a new protection regime. 119 Another peculiarity of such treaty regimes is that individual states are functionalized themselves in having to act as trustees for global interests if the international level does not provide its own implementation machinery or where the community of states is of the opinion that this internationally created global concern of mankind can more easily be implemented at the national level when global institutions are lacking, as is the case with most of international criminal law. 120 These examples may suffice to demonstrate that there are defmite cracks in IIS Cf UNESCO's Standard-Setting Instruments, 1981, IV. A. 5; Raymond H. M Goy, The International Protection ofthe Cultural and Natural Heritage, Netherlands Yearbook of International Law, vol. 4 (1973), 117; Riedel (note 71), 16; see also Brown Weiss, In Fairness ... (note 11), chapter IX, 257 et seq. 116 See generally Birnie/Boyle (note 15), chapter 7,251 et seq.; Kiss/Shelton (note 12), 145 et seq. 117 Birnie/Boyle (note 15),415 et seq.; Riedel (note 71), 15. 118 Klein (note 4),234 et seq.; Wolfrum (note 4), 688 et seq. 119 Brunnee (note 103), 797. 120 But cf the ILC Draft for the creation of an International Criminal Court, ILC Report 1993, 21, based on Eleventh Report on the Draft Code of Crimes against the Peace and Security ofMankind, UN doc. NCN/449; cf also James CrawJord, The International Law

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the traditional sovereignty dogma and that the position of the sovereign state increasingly is qualified and functionalized. The sovereignty shield of states becomes permeable, as Eberhard Menze/ once aptly described it. 121 But this does not mean that the permeable, community-bound state has or will become superfluous, to be replaced by some amorphous world society. The nation-state will be a necessary feature in international relations for a lang time to come. As a "conveyer belt" for matters of common concern it will fulfil necessary and useful functions, which nobody else but states can etTectively implement and control. A functionalized state, cooperating in a community of states for the achievement of community aims of global concern, will stand alongside global, regional, and sub-regional structures, each mutually contingent and covariant. 2. The question will now have to be answered how these public interest norms of environmental law can be qualified legally and how they are to be implemented. The difficuIties begin with an attempt to defme cJearly what is meant by norms of public interest: Do they elaborate a valante generale in the Rausseau sense, 122 or do they spring from an Hegelian objective spirit ("objektiver Weltgeist") floating aloft high above states,123 or do they simply stand for a va/ante de taus, the total sum ofindividual states' will? The model oftreaties with integral fulfiIment structures setting up objective regimes, outlined earlier, fits this mould. At any rate, the hardly attractive alternative of a superstate or monolithic worid state model is thereby avoided elegantly. In the dualistic conception of international law, such public interest norms structure the relations of states as actors in the international system without basically questioning their independent roles. Monistic varieties of international law will favor the notion of structure principles pervading all state relations and generally have less difficulty in justifying role of law-based notions of common interests. Another view contrasts public interest norms with private interests of individual states, much like the domestic law distinction of private law and public law in-

Commission's Draft Statute on an International Criminal Tribunal, 1993; Paul D. Marquardt, Law without Borders: The Constitutionality of an International Criminal

Court, Columbia Journal ofTransnationai Law, vol. 33 (1995), 73. 121 Eberhard Menzel, Das Völkerrecht und die politisch-sozialen Grundstrukturen der modemen Welt, in: Georg PichtlConstanze Eisenbart (eds.), Frieden und Völkerrecht,

1973,401,410 et seq. 122 Jean-Jacques Rousseau, Du contrat social, ed. Flammarion, 1964, chapter VI, 51 -

52 and 146. 123

Georg Wilhelm Friedrich Hegel, System der Philosophie, 4th ed. 1964, vol. 8, 446.

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terests. The ernphasis on the idea ofthe public ("das Öffentliche, das Prinzip Öffentlichkeit"Y24 paves the way for a model of dernocratic participation, characterized by the fact that not only states but other actors like NGO's,125 individuals, groups and peoples, and also international organizations participate in the production of such norms of public interest 126 and also participate in their implernentation, as the Erent Spar incident or the Rainbow Warrior actions by Greenpeace demonstrated (for better or worse). I can only refer to a few catchwords related to this aspect of public interest norms, such as proceduralization 127 and negotiation strategies in the decision-rnaking processes 128 or building up network systems within and above states, of which political scientists and game theorists tell US. 129

124 Cf Jürgen Habermas, Strukturwandel der Öffentlichkeit, 1962; Peter Häberle, Verfassung als öffentlicher Prozeß, 1978; Niklas Luhmann, Legitimation durch Verfahren, 1969,104,191; Wolfgang Martens, Öffentlichkeit als Rechtsbegriff, 1969,59 et seq., 193 et seq.; for historical notions concerning publicity, cf Immanuel Kant, Zum ewigen Frieden, 1795, in: Akademie-Textausgabe, vol. VIII, 1968,343; see also Werner Maihofor, Prinzipien freiheitlicher Demokratie, in: Ernst Benda/Werner MaihoferlHans J. Vogel (eds.), Handbuch des Verfassungsrechts, vol. 1, 2nd ed. 1995,485. l2S Cf Marauhn (note 89),709 et seq.; RobinsoniDunkley (note 14), 109 et seq.; Birniel Boyle (note 15), 76 et seq.; see also Benedick (note 32), 205 et seq. 126 KisslShelton (note 12), 58 et seq.; BirnielBoyle (note 15), 53 et seq., 64 et seq.; Beyerlin (note 78),611 et seq.; Julia Sommer, Environmental Law-Making by International Organisations, ZaöRV 56 (1996), 628; Lang (note 89), 685 et seq. 127 For an overview see Dirk Weinreich, Recht als Medium gesellschaftlicher Selbststeuerung, 1995,21 et seq.; Gunnar Folke Schuppert, Grenzen und Alternativen von Steuerung durch Recht, in: Dieter Grimm (ed.), Wachsende Staatsaufgaben - sinkende Steuerungsfilhigkeit des Rechts, 1990, 217; Evelyn Hagenah, Neue Instrumente für eine neue Staatsaufgabe: Zur Leistungsfilhigkeit prozeduralen Rechts im Umweltschutz, in: Dieter Grimm! Evelyn Hagenah (eds.), Staatsaufgaben, 1994,487. 128 Kalevi J. Holsti, Governance without govemment, in: James N. RosenauiErnst-Otto Czempiel (eds.), Governance without Government: Order and Change in World Politics, 1992,30 et seq.; Howard Raiffa, The Art und Science ofNegotiation, 1982, 166,310 et seq., 344 et seq.; Roger Fisher/William Ury, Getting to Yes, 2nd ed. 1991; Roger Fisherl Elizabeth KopelmaniAndrea Kupfer Schneider, Beyond Machiavelli. Tools for Coping with Conflict, 1994; William Ury, Getting Past No. Negotiating Your Way from Confrontation to Cooperation, 1991; Roger FisherlScott Brown, Getting Together. Building Relationship as We Negotiate, 1988. 129 Robert AxelrodiRobert 0. Keohane, Achieving Cooperation under Anarchy: Strategies and Institutions, World Politics, vol. 38, 226; Beate Kohler-Koch, Die Welt regieren ohne Weltregierung, in: Regieren im 21. Jahrhundert - zwischen G10balisierung und Regionalisierung, Festgabe Hans-Hermann Hartwich, 1993, 109; Patricia Mische, National Sovereignty and Environmental Law, in: Bilderbeek et al. (note 81), 105, 110.

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Closer focus on the term "interests" also reveals ambiguities: To avoid this, some writers prefer the use of the term "concern" which is less loaded but much too vague. Jutta Brunnee distinguishes between coinciding interests of states, shared interests of states, and common concerns 01 mankind. Coinciding interests are interests where states discover accidentally that they have similar interests which then motivate them to further cooperate with each other. 130 Shared interests stand for long-term stable interests based on state practice or general rules of international law without, however, entailing legal obligations. They produce standards for desired behavior. Finally, common concerns 01mankind can be characterized as humanity concerns where the common interest is "so compelling that it formulates the rule itself and coincides with its content."131 In legal philosophy the term "interest" usually connotes the central thesis of "interestjurisprudence", as developed by Heck, Müller-Erzbach and Stoll. 132 According to that philosophy every norm is set in a context of conflicting interests which structure and form the norm and which provide the links whereby norms are related with values, orders, and institutions which will have to be evaluated and weighed. In internationallaw literature, the terminology is not strict. Norms of public interest are placed alongside those of global concerns, general structure principles, "common weal" notions, and welfare and solidarity interests ofthe community of states or ofthe world society;133 and yet, usually there is much common ground in this seeming diversity of terminology: There exists a network of all-embracing state-transcending norms of public interest, representing common interests of mankind which aim at worldwide acceptance,134 and some ofthem already figure as candidates for ius cogens with erga omnes effect, such as principle 21 of the

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Brunnee (note 103),807.

131 Brunnee (note 103), 807; Klein (note 4), 55 and 57 et seq. 132 Günter EllscheidIWinfried Hassemer (eds.), Interessenjurisprudenz, 1974 (documentation); Arthur Kaufmann, Problemgeschichte der Rechtsphilosophie, in: Arthur KaufmannIWinfried Hassemer (eds.), EinfUhrung in Rechtsphilosophie und Rechtstheorie der Gegenwart, 5th ed. 1989, 113. 133 For a thorough analysis in this respect, cf Beyerlin (note 78), 606 et seq. 134 See, for example, Jacob D. Werksman, Consolidating Governance of the Global Commons, Yearbook ofInternational Environmental Law, vol. 6 (1995), passim; Edith Brown Weiss, International Environmental Law: Contemporary Issues and the Emergence of a New World Order, Georgetown Law Journal, vol. 81 (1993), 675, 710; see also references in note 72,73 supra; Kiss/Shelton (note 12), 15 et seq.; Birnie/Boyle (note 15), 120 et seq.

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Stockholm Declaration or the idea of sustainabilityl3S when backed up by treaty regimes. To regard the environment as such as part of the common heritage 0/ mankind or to regard intergenerational responsibility as an offshoot of human rights are further examples ofhow norms ofwider public interests are created and functionalized to support claims for sustainable development. 136 And a closer analysis reveals that some of these claims have already become part and parcel of internationallaw: in the law ofpeace-keeping, human rights, humanitarian law, environmentallaw, and in some other multilateral treaty regimes. 137 Such public interest norms invariably are very abstract, so that one can rarely deduce easily concrete problem solutions from them, let al6ne fmd relevant implementation means. 138 In this area ofthe law, where states are most reticent to give up sovereignty rights, only imperfect and incomplete systems of implementation mechanisms exist at the internationallaw level. 139 It does not come as a surprise, therefore, that since the end of the second Gulf War there have been calls for green beret actions in analogy to blue helmet peacekeeping operations. The starting point would be Art. 2 (7) UN Charter whereby collective enforcement action ordered by the Security Council would not constitute an interference in domestic affairs of states. According to Art. 39 UN Charter it would have to be declared, however, that the conditions for such "ecological interventions" are met, i.e., that the event damaging the environment caused by a violating state amounts to a breach of the peace, a threat to world peace, or an act of aggression. 140 In most cases such environmental violations will not reach the ,13S Cf David W. Pearce/Anil Markandya/Edward B. Barbier, Blueprint for a Green Economy, 1989,28 et seq., and 173 et seq. 136 Brown Weiss (note 11), In Fairness, 5 et seq., 17 et seq., 47 et seq., and 120 et seq.; Kiss/Shelton (note 12), 22 et seq. 137 Cf Tietje (note 50), 277 et seq., 285 et seq., 287 et seq., 288 et seq. 13B Birnie/Boyle (note 15), 546, speak of "constructive ambiguities" requiring further interpretation by state practice and continuing negotiation of additional protocols, as far as UNCED is concerned. 139 Beyerlin (note 78), 607 et seq., 613. He marks out five spheres of action: a) consultation and coordination, b) rule-making, c) compliance assistance, d) compliance control, and e) dispute settlement, following Phi/ippe Joseph Sands, Principles ofInternationai Environmental Law, vol. I, 1994, 67 et seq.; for future perspectives see Peter H. Sand, Institution-Building to Assist Compliance with International Environmental Law: Perspectives, ZaöRV 56 (1996),774,793 et seq.; Lothar Günd/ing, Compliance Assistance in International Environmental Law: Capacity-Building through Financial and Technology Transfer, ibid.,796. 140 Cf Martin Nettesheim, Die ökologische Intervention, AVR 34 (1996), 168, 176 et seq., 199 et seq., on a skeptical note, but not very convincing, 201, note 124; Markus Wink-

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level required to constitute a threat to the peace, even if in the second Gulf War Saddam Hussein' s use of the oil wells as environmental weapons met this criterion without doubt. 141 At a Hague conference a long list has been proposed which environmental crimes ought to be regarded as relevant at international law. 142 That list singles out, inter alia, the following actions as environmental crimes: the destruction of ecosystems; environmental genocide; decimating indigenous peoples; transfrontier pollution, adversely affecting health; liberal policies concerning the commons, allowing powerful nations to benefit disproportionately from global property or heritage; nuclear tests and serious nuclear pollution; toxic waste dumping; export ofbanned chemieals; all policies aimed at increasing the world population; destruction of rain forests; destruction of biodiversity; gene robbery; trade in endangered species; unsustainable exploitation of migratory species. Each ofthese activities endangering the environment deserve to be combatted against. But only very few ofthem, it is submitted, are likely candidates for Security Council enforcement measures. 143

ler, Ökologische Intervention im internationalen Recht?, Natur und Recht 17 (1995), 57; Carsten Reimann, Ökologische Intervention im internationalen Recht, Natur und Recht 1996 (in print). 141 Cf Delbrück (note 102), 6, particularly 15, where he isolates four areas of application: massive violations of human rights, uncontrolled proliferation of nuclear and other means of mass destruction, mass migration from underdeveloped to developed world regions and serious environmental crimes. 142 See report by Ellen Hey/Maurice Kamto, The Effectiveness of International Environmental Law, in: Bilderbeek/Wügerde/van Schaik (note 81), 71, 93. 143 Cf also Delbrück (note 102), 15. This applies quite apart from the fact that the Security Council after 1990 has only made use sparingly of chapter VII -measures.

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The Rio process, at any rate, opted for strategies of precaution, consultation, reporting, infonnation, and negotiation instead of sanctions,144 not least because there was agreement that state consent could be mustered more easily for promotional obligations than for robust sanctions. In the long run, conflict management and negotiation solutions following the pattern of chapter VI UN Charter, damage containment by cooperation instead of confrontation, an increased reliance on burden sharing, and assistance for developing countries by the developed states in the interest ofkeeping the ecosystem in balance promise more success than sanctions ex post, when the damage has actually occurred. Furthennore, with the notion of nonns of global concerns of mankind it will become easier to argue that damage to the environment can be dissociated from the direct state nexus: It would become easier to allocate international legal responsibility to individuals and multinational enterprises for the purpose of damages.

VII. Conclusion In the foreseeable future the global interests of humankind in international environmentallaw will increasingly be fonnulated as standards at the international level but will still heavily rely on individual states to translate that community interest into operative rules at the domestic law level. What emerges then is not the picture of a world state but of global governance,145 many-facetted fonnulation of global environmental interests, and implementation by community-bound states. International environmentallaw is an important champ d'application for such new nonns but is only one example alongside many other areas of internationallaw. Internationallaw thus fmds important new bearings. Indeed, one might weIl speak of a real change of paradigm, from a law of coexistence to one of cooperation, to a rule of law penneated by nonns of public interest. Applied to international environmentallaw, this is cause for skepticism but also for hope; skepti144 See Beyerlin (note 78), with further references, and others at note 139, supra; see also Michael Bothe, The Evaluation ofEnforcement Mechanisms in International Environmental Law, in: Wolfrum (note 13), 13, particularly 29 et seq. 145 Cf Kohler-Koch (note 129),121 et seq.; for a functional approach see Ernst B. Haas, Beyond the Nation-State, 1964, passim, especially 483 et seq., and 488 et seq., 497: "The lesson is c1ear. Neither Functionalism nor functional analysis can bring international order out of chaos of national confrontation. Neither a commitment to welfare nor adesire to use the analytical properties ofnational egotism can build the civitas dei or the civitas maxima. But functional analysis can tell us in which direction the faint ripples of common concerns are likely to spread." 7 Symposium 1996

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cism that states will not do enough, and hope that they will come to their senses in the end.

Discussion Delbrück (chainnan): We should not preempt the fmal concluding debates of tomorrow at this juncture. I think there are two sets of questions that have evolved from both reports of OUT morning session: What actually are public interest norms? And is the international community in its gradual development at a point where we can even reasonably talk about this kind of concept without further investigating the problem of the function of public interest norms in the international legal order? How far and to what extent has internationallaw come to recognize these roles in order to increase its effectiveness in general? What is the scope ofthe binding force ofspecific roles, Le., public interest norms? The second set of questions relate to very concrete ones, to the areas covered in the two reports in identifying possible candidates for inclusion into this new kind of norms and, of course, the models how these are generated. It was interesting to hear that Eibe Riedei, for instance, said that these norms come about, we do not know how this really happens. The Court talks about it, and then literature springs up. I think it was Bruno Simma who once said that it is an act of spontaneous creation that happens and there are these kinds of norms, erga omnes, or public interest, or community interest norms. These are some ofthe questions which we could possibly discuss on the basis of the rich material that has been put forward by the two excellent reports. Beyond these random hints at some subjects for discussion, I will not structure the debate, but, again, I remind you we should not torture Jonathan to the extent that he says, "Even if I talk tomorrow, the debate has already taken place today."

Stein: I would like to put a question to both speakers from this morning and maybe add a little comment. The frrst question is: Do you see a category of public interest norms which are not at the same time identical with state interests or at least with the interests of a substantial number of states? Are there any norms of which one would say, "They are for the best ofmankind on the whole, but unfortunately no state sees these roles or principles as its own interest, at least not at the mo7·

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ment"? Bemie Oxman was giving many examples where there is a number of states with like interests conceming, e.g., civil aviation, fisheries, states which may be even in a position to monopolize the mIes for a certain area, and then, of course, they are in a position to dictate the entrance conditions for all the others who want to come. It is like saying "Ifyou cannot stand the heat, please stay out ofthe kitchen!" and "Ifyou want to play with us, play according to the mIes!" So for all these examples one could say that at least a weIl understood state interest should be the same as "public interest norms." The second question is whether we are already sure enough about the meaning ofthe terms which might now emerge as new principles, like sustainability. Do we in fact know what we mean by sustainability? Ifwe take the original principle, sustainability is certainly linked to sustainable development of the environment. Ifwe take the Fifth Action Plan ofthe European Community on the Environment, sustainability is much more linked to a healthy. economy than to environmental impacts. So we might not have the same meaning of one term which we use in different contexts. I think the same is true of the common heritage principle, which Professor Riedel mentioned this moming and which he thinks is binding. There is common heritage in the context of the law of the sea, there is common heritage with respect to outer space, the moon, and other celestial bodies. One could certainly identify state interests behind that term; with respect to the space, it is probably security; with respect to the deep seabed, it is economic interests of different kinds, maybe even conflicting interests. If we take the same term in the UNESCO Convention, "cultural heritage," it is much more different to say what is the interest that all could have. In that context reciprocity seems to be the important motive. The same cultural heritage which means a lot to one people in one region of the world must not be of any interest to the others. They have interests in theirs. So the main idea is, I think, reciprocity: don't waste mine - I will not waste yours. And then the next question is: What is the consequence if one says that the common heritage principle is binding? Are we saying that astate which is not in the position to preserve its cultural heritage for fmancial or other reasons can really claim, as ofright, support from the others? Or do the others have a right to intervene, by all means at their hands, if a certain state wastes its share of common heritage? I think if we look at the consequences, then the whole thing becomes much more complicated.

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Morrison: I was very interested this morning in the comment about zebras. And so I thought I would talk a little bit about zebras, because one of my young sons asked me, "Dad, is a zebra a black horse with white stripes or a white horse with black stripes?" One ofthe thoughts that I had in the course ofthis morning's presentations is that one ofthe presenters was discussing a white horse with black stripes and one ofthe presenters was discussing a black horse with white stripes. I mean it in the following sense: I think that what Professor Oxman was talking about was operationallaw - law applied to a specific ship in a specific case, law applied to a specific seabed mining operation in a specific case. I do not want to get back to the words "hard" and "soft" because I think that means something different, but operationallaw that has an immediate and specific significance. I think that Professor Riedel was talking about law as poliey guidance to the nation-states, law that provides the parameters within which the nation-state should or ought to make its legal decisions. I can certainly agree with Professor Oxman that the operational law requires the kind of detailed, specific chain of authority that he is calling for. At the same time it seems to me that this other kind of law is providing some guidance to where the operationallaw ought to go and ought to be, but that it is very seldom directly applicable in itself. Although you came up with a few cases, it is very seldom directly applicable to the transactions, but it has to be mediated. It becomes a kind of"metalaw", a kind of guiding principle, something more than a political statement because it is a statement based upon general principles. One of our problems in today's discussion may be a problem of defming what the word "law" means. Does the word "law" mean something quite different for each one ofyou? So in that respect, although each of you started off thinking that you had said something quite opposed to each another, I saw the presentations as complementary, as stating more or less the same proposition and, thus, not being so much in conflict. I never have been able to answer my son's question about whether the zebra is basically white or basically black, and I am not sure that I can answer the question about which one of you is right. Frowein: My remarks follow the zebra issue. I want to start out by saying that I am not quite convinced that the very detailed explanations of different regimes given by Professor Oxman really meet his theoretical introduction where he seemed to disclaim any possibility of a useful public interest qualification of international legal

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nonns. Let me start out with a very blunt proposition. I think that it is difficult to deny that all legal - I would even say all regulatory systems of some complexity - must recognize different categories of nonns. There are, I think, at least two categories which can be identified in most if not all these systems, one category of nonns where you could say only private interests oftwo or more subjects oflaw are involved and, on the other hand, a category of rules which are very much influenced by what we call public interest by keeping up specific values which seem to be essential or important for the whole community of subjects. I think it would be somewhat surprising ifwe would not be able to make that distinction in public internationallaw. The more important and more difficult question might be: What consequences do you draw from that distinction? Are there legal consequences of some importance to be drawn from that distinction? I would personally claim that in the last part of his presentation Professor Oxman showed us one very good example where a legal consequence follows from that distinction. That is where he explained in great detail- I must say to a certain extent it was something I had not fully realized - that we have now in the fisheries treaty system a clear example for rules concerning third states which are not fonnally bound by the system, but are really forced into recognizing, to a certain extent, what the regional organizations have laid down. How can we justify that? I think we can justify it only by recognizing that there are areas in international law where the broad majority of states recognizes that you have a high public interest involved, and therefore the old roots concerning the completely voluntaristic sovereignty-based approach to internationallaw is no longer sufficient. Would we not all agree that rules to preempt the position of third states under nonnal treaty law are at least extremely doubtful, if not in some areas even unlawful? Now let me come to two or three more examples with respect to the consequences. One remark made at the beginning ofProfessor Oxman's presentation seems to imply - I am not sure whether I overstate the matter - that the idea of a hierarchy of nonns is something intrinsically dangerous. I would object to that idea. I think no detailed legal system can work without a certain recognition of a hierarchy ofnonns. Why should internationallaw be an exception? I would argue that even in the nineteenth century you have very clear examples for the recognition ofhierarchy in internationallaw. We have had an interruption ofthat stream only atthe very late stage ofthe fonner century and the beginning ofthis century until the First World War when this voluntaristic and sovereignty-based approach to internationallaw completely pushed aside earlier examples. The whole slavery development in the fonner century, even introducing rights to search and seizure

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of vessels under some circumstances, comparable to these fishery mIes, are only to be explained on the basis ofthese ideas. Then we come to the most important issue today. I was somehow astonished that nobody mentioned article 19 ofthe ILC draft, on which Professor Tomuschat is much better placed to say anything. It is my feeling that there is a broad consensus now with all those who have studied these matters in detail that there are categorical distinctions to be made between violations of internationallaw be they only really bilateral ones or be they of a character which concems the community of states. I would also argue that we have clear precedents in internationallaw today which show that states that are not directly affected can, under certain circumstances, react against that sort of violations. Again, I am probably badly placed to give examples because I have done so and many of them are hotly disputed, but let me just say that I remain convinced that it makes sense to argue in that manner.

Kiss: I would like to elaborate on what Professor Oxman mentioned as the functional approach, in which I personally am very much interested. If I want to understand what is law, I must ask the question: What is the function of law, why do we have laws, why do we have internationallaw, why do we have laws in other social systems, and what is the function of the state? The simplest answer is that we must have a certain order, or that in certain cases we must establish a certain order. Thus, the prlmary function ofthe states is to establish such an order inside themselves, but since we cannot have an order inside the states without taking into account what happens outside the states, their function is also to establish an international order. On what foundations should this order, both international and national, be established? I think that in all orders and systems the fundamental values recognized as such by the concerned community are the very foundations of the order. Sometimes I was puzzled when thinking ofarticle 38 ofthe ICJ Statute which speaks of "the general principles of law recognized by civilized nations" and which was maintained in 1945 when the Court was reconstructed. Is it not shocking to divide the humanity into two categories, on one hand the civilized nations and on the other the rest? Of course, we can think what we want. But behind this notion of"civilized nations" there seems to me a will to express the idea of a community: like-minded people, those who share the same fundamental values. Perhaps we can say that the civilized nations are the international community which recognizes certain fundamental values and that peoples can exclude themselves

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from it. For me the essential is the existence of the acceptance of a number of fundamental values, which may not always be very clear and which may even be contested, but which exist. The international protection ofhuman rights illustrates this, although more and more often the problem ofthe universal character ofhuman rights is raised. Have human rights not been invented by Western states and imposed upon peoples which have a different civilization? My answer to students from other continents is always the same: Y ou come from Africa, from Asia, from Latin America, you are bearers of different civilizations, but would you like to be killed, to be tortured? Would you like to see your family starve? Do you not have some aspiration at a minimum level of human dignity? I do not think that there is anybody in the whole world, except some Kamikaze, who would say, "No," who would not accept a corresponding minimum right. Thus it is the task of the state to safeguard the human values, the human rights. States also have the function to look further than the present, they must carry the burden oflong-term thinking. We cannot separate the long-term thinking from public interest. There is an immediate public interest, but the public interest also includes a long-term perspective. This is how I come to the environment, a sustainable development for future generations. The states are the only ones who can afford long-term thinking, except some non-state actors such as scientists or public interest associations, while other private actors, such as industrial or other corporations, are often condemned to short-term thinking. At present, states unanimously recognize - maybe its just a lip service to the environment - that there is this global challenge and that we must face this global challenge. This shows that they cannot ignore long-term perspectives. Now I come to the presentation ofProfessor Riedei, which I very much appreciated. I think that the safest way for identifying rules which express the protection of fundamental values is to look for treaties which do not contain any reciprocity or any immediate advantage for states, only values. I was amazed, for instance, to see the British, the French, the Italian, and other govemments come to the European Court ofHuman Rights in Strasbourg and defend themselves sometimes in cases the importance of which could be considered as minor and where those who complained did not always seem worth of interest. Still, the governments considered such questions as serious enough, but why? For me this shows the recognition of a general order which has to be respected in all its manifestation, a legal order founded on the respect of fundamental rights and freedoms. May I recall here what I said of the treaties by which states only accept obliga-

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tions without any immediate advantage? Another field where such treaties are numerous is the international protection ofthe environment. Let us take as an exa~ple the precautionary principle. I have compiled some statistics: since the beginning ofthe '90s, there are at least twenty international treaties which proclaim the precautionary principle. This is particularly interesting since the precautionary principle does not include any immediate advantage for states. Such arepetition of the same principle can be considered as a very important element of internationallegislation. I wonder whether we cannot relate this to article 38 paragraph l(c) of the IC] Statute, the general principles of law - or of internationallaw, there is a discussion - recognized by "civilized nations," which means to me the real international community.

Hai/bronner: I also want to comment on the question of "How can you bind third states?" I thought the discussion was quite interesting; there is a development in treaty law whereby states undertake an obligation to ensure that third states not bound by that treaty arrangement are obeying or complying with the requirements of the treaty. Under traditional internationallaw, it is really not easy to explain this because one would proceed on the basis that if astate did not sign an agreement, it would not be bound. So it is necessary to have some explanation for this kind of new "quasi de facto" binding effect. If one looks at public interest norms and the concept of erga omnes obligations, one is always faced with the objection that under traditional principles of customary internationallaw all affected states have to comply with those rules - which does not really help with regard to third states that take advantage of a gap in the existing treaty arrangements. So one comes back to the idea, which has just been mentioned, whether it is not possible to use the traditional instrument of general principles of law recognized by civilized nations. Of course, ifusing this term in a public internationallaw course and trying to explain to students what it means, one always ends up saying that this is a term of the nineteenth or eighteenth century and has no meaning at all because it has been developed on the basis of colonial concepts. But it may weIl be an idea to go into the notion of general principles and try to give it a modem meaning. I do not know how far this will really go, because it really means a deviation from the classical principle of consent if it is to have any practical meaning. But it might at least be possible to fmd certain categories in which it can be applied. I do not think we get very far with that principle if you have a substantial number of states not complying with basic environmental standards. We could, however, probably get along with the type of problem with which we are faced - which is one of a

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rather isolated group ofstates taking advantage oftreaty regimes by notjoining, for instance, standards in environmental shipping, in ship building or safety, which deliberately take advantage of a regime which is otherwise acknowledged by a rather broad majority of states. It may weIl be an idea to use the concept of "civilized" in the sense of complying with a regime which was developed by a large number of states engaged in commercial navigation. I have one second comment or just a reflection which came to my mind when I listened to your very interesting presentation ofthe ICAD roles. The international civil aviation regime on the whole works, I think, satisfactorily. That is because - as you have explained - states who would make use ofthe opting-out procedure under the ICAD regime are practically excluded. No aircraft would fly to those states. I asked myself, when I listened to your presentation, why does the same regime not work in the maritime field? What are the essential distinctions between the aerial and the maritime regime where you have states obviously taking advantage without losing access to the international navigation system by using cheap flags? It must be basically the same structure. Is it because there is not the same kind ofbasic consent or conviction that these roles ofmaritime safety or whatever else are really the basis of all "civilized" commercial navigation, or what is the fundamental reason? I have no answer but expect that you might have one.

Tomuschat: The danger of this debate seems to be that we all agree too much. A lot of consensus has already emerged. Now as far as the international community is concerned, we probably have to face up to an approach in different stages. The first stage would be the identification of common values, whether the world community is in a position to agree upon such general principles. I may just refer to recently held "world order conferences," the conferences of Rio in 1992, Vienna in June 1993, which reconfmned the human rights instruments, then Cairo in 1994, the W orld Population Conference with a lot of statements and proposals on how future world order should be framed, a year later followed Copenhagen, much too optimistic, then Beijing in 1995, too. All of these conferences produced huge instruments, and although some states stated reservations and caveats, there was, on the whole, agreement on a broad set of principles. Quite a great deal of consensus emerged, and so states still seem to view themselves as an international community of civilized states. But I would disagree with what was said by Alexander Kiss just a moment ago. There are, indeed, states which do not count among the group of civilized states. Any state which has as its official policy to

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practice genocide and ethnic cleansing is, in my view, not a civilized state. For that reason the traditional formula keeps all of its value, in spite of all the criticisms wh ich have been levelled against it. It has got a new meaning, and we should keep it that way. Now the question is: How do you implement those values commonly agreed upon by generally accepted legal techniques? Different steps have to be taken into consideration, fIrst of all the level of legislation, then the level of implementation, administrative or executive implementation, and fmally the level of adjudication. Y ou could indeed have some consequences deriving from public interest if, for instance, you assumed that any state may go to the International Court to enforce public interest standards, which the Court in the recent East Timor case denied, saying that the requirement of consent to jurisdiction was essential and could not be dispensed with. The question is always more or less the same: Should states be able to act unilaterally, relying on their sovereign power and relying also on classical methods of cooperation, or should community institutions be established which then allow, I think that is the essential criterion, for majority decisions? It is the element of majoritarianism which always lingers in the background. How much majoritarianism will we be allowing? I give you one example with which the International Law Commission is presently faced. It is the question of whether attacks on the environment causing severe or grave damage to the environment should be made a punishable offence under the Code of Crimes against the Peace and Security ofMankind. The classical method is simply to include an offence in the draft code, and this would be done by the classical methods oftreaty-making. However, you could also argue that the crime against the environment already does exist as an international crime because it is necessary that it be an international crime. That was the argument ofthe Nuremberg Court which held that individual criminal responsibility for crimes against peace is necessary because otherwise the inter-state prohibition on war does not really operate. As far as implementation is concerned, the classical method, of course, is to rely on state jurisdiction - domestic tribunals which would then implement the ban established by the criminal offence. Or do you create international institutions? As we have seen recently, international institutions can emerge all of a sudden, as we saw with the Yugoslavia Tribunal and the Rwanda Tribunal, whose founding was absolutely unexpected. When need is feIt, then all of a sudden the creative forces of jurists are stimulated, and the Security Council acts as an internationallegislator. All in all, even if you have international institutions, as we also have experienced, we cannot overlook the pivotal role ofthe sovereign state. The Yugoslavia Tribunal does exist and does have powers, its warrants are directly enforceable, but in fact

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it is extremely difficult to enforce them. So you simply have to enlist the cooperation ofthe sovereign state, we cannotjust do away with it. It is there, and its cooperation is still an essential element, even in a world where you have broad community standards which have been accepted. But still nothing goes without cooperation by states.

Oxman: These comments ofnecessity will be somewhat disjointed reactions to various questions raised by the speakers. I must say that if Professor Chamey is correct and there is no rule ofpersistent objector, then there may weIl be a consensus. The problem of separating norms from state interests is, of course, as Professor Stein has mentioned, an extremely difficult one. It really depends on the level of generality at which we are addressing the question of norms. At a high level of generality, we all recognize there is a hierarchy, with basic principles and values at the apex. There are values that emerge out ofhuman experience and moral and religious systems that have little to do with state interests in the narrow sense. All human beings, including internationallawyers and heads of state, are likely to react to those kinds of values. In that sense, of course, there is a hierarchy. But I suppose I will have to admit that I am conservative on the issue ofhow, and especially by whom and by what process, such values are translated into concrete legal obligations. I think discovery in law is possible but becomes more difficult as the level of generality increases. One can make progress, I think, in recognizing, as natural scientists would, that norms exist, and may have existed for a long time, that were not noticed before or not described as such. This is in part because the objects of our inquiry change. But I am conservative in the sense that I do not think you can very rapidly introduce new norms this way and that we must be cautious about how we identify legal norms. Most ofus in this room function in a world in which we are likely within the next year to bump into each other at some airport or another. By vocation and by fact, we work in a professional environment that is global in a geographic sense but confmed in other senses. We are in fact a very small slice ofthe world community. I am skeptical about our tendency to take our own value systems and announce them as global values. I guess I side with Professor Kiss on this. Y ou do have to undertake an exercise in persuasion. As a historical matter, for example, it can be shown that the spread ofWestern political and economic influence carried with it Western notions ofhuman rights that have been, and are being, generalized as global internationallaw.

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But this is a slow and difficult process. It is not clear that Western understanding of the rights of the individual is as deeply rooted in other societies as one might wish. In terms of mies that states are expected to translate into municipallaw that is enacted by legislators, enforced by police, and applied by local courts, ifthere is too big a gap between perceived interests and proffered norms, nothing much is going to happen. Worse still, there may be perverse effects. The issue forces aspiration to confront reality. For example, I am in a minority in my country on the question ofhighway speed limits. One ofthe fIrst things that the excellent student who was driving me from the airport in Hamburg said was, "Ah, you have heard about the Autobahn because there are no speed limits." I have to say that, from the jurisprudential perspective, I think that Germany may be right. I am troubled by the fact that one of the fIrst things small children in my country leam about the law is that it is appropriate to violate it: they watch, they can read the numbers, and they see their parents universally violating the speed limits by more than trivial margins. I, of course, agree with the comments about broad principles such as common heritage or sustainability. The problem with the negotiation ofbroad statements of principles internationaHy is that, to achieve consensus, one must reduce their functional signifIcance to a point at which they are almost devoid of a concrete mandate: it is the elimination of meaning that makes agreement possible. Anyone in this room who has ever worked at an international conference knows that you sit there and negotiate fIfteen high sounding principles, and then agreement emerges on a nice little reference to internationallaw at the end that is understood by the key participants as substantially qualifying if not undoing all of the fIfteen principles. During the negotiation ofthe Charter ofEconomic Rights and Duties attempts were made to persuade the United States that the whole thing was undone by some cute textual maneuvers. In that case, the United States did not go along with the Charter, but the same thing happens all of the time. From my perspective what sustainability means and what common heritage means only becomes apparent as we watch the implementation of the ideas. It is hard to predict what their concrete effects will be; they will probably be very different in different contexts. Is it important to have informed adumbrations ofwhat they may mean by my co 1league Professor Kiss and others? Absolutely! They force us to think in certain ways that are very, very useful. They may weH influence practice. But they are not practice and are not proffered as a priestly alternative. One of the problems with the Law of the Sea Convention was that there were certain high officials in the Reagan Administration (abetted by some high officials in this part ofthe world) who choked on the term "common heritage ofmankind."

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Supporters of continued negotiation on the Convention argued that if one truly believes that a market system of running an economy is to the ultimate benefit of all humanity, then one should embrace the term. If you shrink from the idea of common benefit, you cast doubt on whether you really believe that the public interest, and not merely private interest, is best served by free markets. It is true that some people using the term "common heritage" may believe that a statist model is the best way, but we can argue about that later. The legal effect, they said, will emerge from the detailed agreed provisions of the Convention regulating deep seabed mining. Professor Morrison might say this is a matter of operationallaw versus general principles. The jurisprudential significance ofthat distinction should not be overlooked. It has to be apparent to anyone who has listened to Professor Riedel and me that we were taught law from the first day we went to law school in very different ways. And that is a problem. I can recognize that lama product of the American system ofteaching law, deeply influenced by legal realist traditions. I try to transcend such limitations, but few (ifany) ofus can entirely escape them. We can recognize and respect that there are other ways of looking at law, but we will always tend to retreat to our own underlying perspectives. And those, I suspect, were shaped in important ways in those early days of our encounter with law when we were barely aware of what was happening. Professor Frowein's request presents me with some difficult problems. There is, as Professor Frowein knows, an active debate about the whole question ofthe private/public distinction in American law. It is an important issue, for example, for experts in American constitutionallaw. I personally do not believe that there are any rules oflaw that engage only private interests. I think there are public policies that reach the conclusion that the public interest is best served by private autonomy on particular issues. Our legal system, like many others, has reached the conclusion that within limits it is good public policy to enforce private promises in a commercial context. I believe that conclusion reflects the spoken or unspoken, recognized or unrecognized public interest in something like a regulated free market economic system. I would argue that recognizing such private interests and enforcing them in law is important to promote the prosperity that is useful to the community. The question of autonomy is too often looked at by internationallawyers as a question of autonomy of states. International law has gone beyond that. In the human rights field, we address the autonomy of individuals. We also address the autonomy of families, which can be a very different matter: there are many men

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around the world who might like to promote the autonomy ofthe family because to them that means the authority ofthe husband and father. We address the autonomy oflarger ethnic, religious, or cultural groups within states. This too can be a very different matter: the proposal to declare Quebec a "distinct society" was regarded by some feminists and human rights advocates as an attempt to qualify the liberties and equality guaranteed by the Canadian constitution. In Europe, the question of autonomy of transnational organizations is very much on the agenda. The job of the law, including international law, is to mediate these conflicting claims to autonomy. How can we justify mIes binding third states if not by public interest norms? The question assumes a point which is in fact arguable, namely, that to achieve public interest goals requires going beyond the establishedjurisdictional structure. I do not think that is necessarily, or even often, the case. A classic example would be global construction standards for tankers. The fact remains that at the point at which the United States, Western Europe, Japan, and a few other states are applying the same standards as a condition for port entry, the issue is essentially over. That result emerges from a simple application of classic territorial sovereignty. Is it true that states really ought to do such things only when it is objectively demonstrable that the mIes that they are applying serve everybody's interest? Yes! I do not think they ought to do that for example in order to produce artificial guarantees that ships can be manufactured only in Germany or the United States or Japan. To that extent, I have no argument with the idea of identifying public interest norms as arestraint on the exercise of jurisdiction. But I cannot accept that profound conviction of public benefit is, in itself, sufficient to generate law binding on those who disagree. The proceduralist in me suggests at a minimum that the conviction be put to the test of negotiation and that those who question the legitimacy of the claim by states to speak for the people look a bit more dispassionately at the foundations for their own claims to legislative power. The problem ofhierarchy ofnorms is a very difficult one. I come from a hierarchicallegal system, even if its analytical foundations are not nearly as sophisticated as those developed by French jurists. But I do not know what hierarchy of norms means. Under a system ofhierarchy ofnorms the underlying values that I may be trying to protect under the Constitution are of a higher status than some silly arbitrary choice that legislators make on astatute of limitations. But if I make a constitutional claim that misses the applicable limitations period by one day, I am going to be out of court. We can of course proffer another norm of equal or even higher status to justify the result, but how precisely do we discipline such an exercise? The idea ofhierarchy is said to be inherent in the notion ofperemptory

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nonns of internationallaw that preclude agreement to the contrary. It is instructive to consider both the good and the evil such a theory may have wrought. I have listened more than once to articulate legal representatives of states saying, "WeIl, it is true, we may have done this, while internationallaw requires that, but it is not a peremptory nonn." Now you can aIl sit around the room and say this is a horrible legal argument. But sophisticated hierarchy in the hands of leamed jurists can lead to self-serving sophistry in the hands of apologists. If one of the objectives ofthose who propound a hierarchy ofnonns in internationallaw is to strengthen the international order, then they must consider not only the intended but the perverse effects of their theories. Perhaps if legal academics reverted to Latin, we could at least for a while acquire a fonn of coded communication that protected our ideas from misuse by the uninitiated. In that sense, my quarrel is not with the theory or the theorists ofhierarchy but with the consequences of its articulation in the absence of a generaIly accepted understanding of its disciplined application. Professor Kiss's public interest long-tenn thinking is exactly right. Arguably that is an intelligent extension ofthe idea of enlightened self-interest, something we talk about aIl the time. But it is important to recaIl a basic point made by Professor Hailbronner. We must recognize that, when states accept statements like the precautionary principle that may affect their pressing interests adversely, we have to be very careful regarding our conclusions as to the status, the context, and the content oftheir apparent agreement. For example, the treaty I talked about today, dealing with high seas fisheries, involves a largely instrumental use ofthe precautionary principle. It was a device for achieving a coastal state lever over the level of third-state fishing beyond the exclusive economic zone. It was used in part because it was difficult for the European Commission to refuse to accept the precautionary principle in light of political pressures in Europe unrelated to the fisheries issue. But even aside from that factor, govemments respond to political pressure: the politicians who make decisions are responding to political interest, not economic interest as such. To the extent that there are serious people within the constituency, as in Gennany for example, who are pushing an environmental agenda, it will be in the political interest of the govemment to accept limitations which are consistent with that agenda. I fmd absolutely nothing wrong with that. I think that govemments do behave the way Professor Hailbronner described. They are more frequently than not trying to accommodate immediate political interests, but that includes satisfying people with power within the constituency who do have a longer range view ofthe underlying problem. I am not a cynic about that. It does not bother me in particular that the politician may be inspired by nothing more

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than adesire to be reelected by a constituency that includes environmentalists, economists, or moralists inspired by a sense oftranscendent duty. Why is there a difference between the aviation regime and the maritime regime? That is a good question. The maritime regime is, as you know, Professor Hailbronner, gradually catching up with the aviation regime. But the maritime regime is older and carries a long and different history. The aviation regime developed rapidly in a climate in which most countries had anational airline that existed more for sovereignty purposes than for economic purposes. Many ofthe airlines were begun as government airlines. There were others, but the problem was of relatively manageable proportions. I suppose in the end part of it may rest in the hypocrisy of the producers of the flags of convenience in the fIrst place. I do not think it is very sensible for governments to create a system of regulations for ships that makes it impossible to compete economically under their flag. But they do. The result is that ships drift to flags of convenience, while the governments responsible for the drift just sit there and say, "We won't change our rules." The biggest offender of all, in this respect, is the US government. But I do think that we are catching up and that we should. Finally to Professor Tomuschat's comment: I gather that Professor Shelton is going to elaborate on this point. She certainly knows much more about it than I do. But let me just say by way of introduction, as a strictly legal matter I think one can make the argument that Rio, Vienna, Cairo, and Beijing were steps backwards or at the very least were not steps forward. As to majoritarianism - I think if we accepted majoritarianism on a one-state one-vote basis, we would have few if any additional meaningful and enforceable global international environmental restraints and might weil prejudice the possibilities for those that could emerge under the current system. As to the more profound issues implied by the question, I defer to a long line ofthinking that fmds its origins in Artistotle's discussions of polity and democracy. Riedel: I will try to answer in the order in which the questions were put. Mr Stein, your fIrst question on public interest norms existing without the presupposition of states as such was answered by quite a number of speakers so that I can be really brief on that. Yes, there can be such norms, and all that we are discussing under the heading of erga omnes and ius cogens norms would be such principles. That does not mean, of course, that any of those principles must only be looked at by themselves. They can also be viewed through the lense of enlightened states, but the 8 Symposium 1996

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trouble with enlightened states is that they are enlightened when they are all satisfied and when they are ready to cooperate, when the economy is booming. But they are to be bound by these erga omnes nonns in times of crisis, because after all that is what legal rules are there for, to cope with crisis situations. Then states need to be bound. Therefore, it transcends the pure state interest idea, and that was my main point, and that is the fundamental difference which you brought out so very clearly just now. Mr Kiss answered that as weIl, he gave examples - which I also have in my paper but which lieft out in the oral version -, particularly the Biodiversity Convention laying down conditions in which such public interest nonns operate. That convention lays down public interest nonns wh ich are not really reflecting interests of individual states but seek to guarantee generally that the genetic pool is not depleted. The convention primarily places duties upon states. The same idea was brought out in the Framework Convention on Climate Change, and Mr Stein obviously anticipated that when he raised the issue of sustainabiIity. Now the two non-binding documents, the Forest Declaration and, in particular, the Rio Declaration on economic development links, show very, very clearly that indeed there is a new approach because the developed states began to realize that in the long run the better protection of the environment can only be assured if they are prepared to give something for it because the developing nations by themselves are unable to do so. We all know the result: instead ofthe Agenda 21 suggestion of600 billion US dollars implementation costs, the Rio conference merely produced the global environmental facility ofjust 2 billion US dollars. But it is 2 billion dollars all the same! That is quite a lot ofmoney to start with. It is something which I fmd quite hard to justify purely in tenns ofmy own country's interest having to contribute 240 million US dollars for that. Yet, it is an obligation that is placed upon the community of states, in the interest of all, for which political consensus back horne is sought. The importance lies not so much in bringing it to life but to start a process. It sets in motion a standard setting concept as an opening gambit hoping that something more will happen later on. As far as common heritage is concemed - I can just refer to what Professor Kiss so neatly pointed out. It is certainly more thanjust enlightened self-interest. In fact, many of the more recent environmentallaw treaty regimes have tacked onto the human rights law approach where we have, after all, quite a good record internationally, particularly in the field where states are not bound, namely, the 1503 procedures addressing the two thirds of states that are not bound by treaty obligations. That represents a really interesting field of application. To use that approach now as a strategy for the environment shows that you have there an expression of common interest where you utilize, I would say, the four principles of

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human rights protection, namely that (l) there must be an elementary large scale experience of injustice; (2) there must be politico-ethical claims supporting it; (3) there must be standards that are gradually developed at the national, international, and regional level and (4) the universality postulate that it is not cultural relativism that mIes and governs this concept. All this has been translated into treaty text, and the interesting thing is that the principles that are thus evolved are not just sociological bargaining chips in the sense of those developed by the New Haven approach, but they are principles of law to be applied. Unlike the '60s and '70s, when these principles were laid down in General Assembly resolutions and declarations, they are now directly embodied in treaty texts themselves. They are softer as far as strict obligations and implementation are involved, but they are binding treaty obligations all the same. And then there is the additional adherence possibility to the protocol mechanism that I tried to elucidate. The point is that we are here dealing with a different set of norms than the ones dealt with traditionally. Professor Frowein asked the key question on that in that he made the comment that all legal regulatory systems must recognize different categories of norms, and indeed that is because of our different upbringing. But I would add that I was brought up in Britain, started learning the law in Britain first, and only then came to Germany. So I do not think you are doing fulljustice to the case law approach and the inductive method by saying that we do not use that. There are European countries like Britain who are very proud oftheir 750 years of common law tradition but who, nevertheless, strictly adhere to the principled and deductive approach that they have to accept, for example, in the European Community. I know of no case where the judgment ofthe European Court of lustice based on a human rights principle had not been implemented in Britain. So, I think we are here facing different though complementary approaches. It does not mean that by using the case law approach you automatically have to be in favor of just nation-state interest-guided treaty making and nothing else. The distinction between traUe loi and traite cadre or what Herbert Hart called the distinction between primary mIes and secondary mIes of recognition, or many other ideas suggesting that there is a hierarchy ofnorms is not intrinsically dangerous. I agree with Professor Frowein completely on that point. Also the example of article 19 of the draft articles on state responsibility is a particular case in point, and Professor Tomuschat later on gave another example for that, the tax on the environment that has been discussed. To my mind, you cannot explain these phenomena unless you see them as expressions of a common interest transcending the defmite interests of individual states. So, the "operational mIes" for specific instances which alone solve cases, and to 8*

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wh ich Professor Morrison referred, increasingly are tied into larger nonnative networks that hierarchically structure whole areas oflaw. They may be fully binding themselves, only more abstract, then we call them structure principles or general principles of law, or they may be non-binding. And it is only then that the notion ofthe zebra becomes relevant: the binding, black stripes are supported by the white stripes, non-binding in themselves, and it is their interrelation that produces the zebra image. That is not just "metalaw" but interaction of nonns of varying degrees of bindingness. Mr Hailbronner asked the question of how third states are bound. The answer to that is the following - and 1 mentioned this only very briefly at the end when discussing green beret action. 1 think that the answer is Art. 2(6) of the Charter which for the realm ofpeace-keeping at least binds states that are not even members of the United Nations. But it is just one example of many others where you could bind states that are not parties to a treaty if in that treaty regime such general principles are enunciated, and that is the difficult question. Do we have in that treaty something which is really part and parcel ofthis new common interest transcending it? That is a matter of proof, which is not always easy. It is effected by the traditional processes ofthe sources, it can either be a general principle of law, but then it must fulfill the stringent requirements of comparative law evidence for that, or it must be customary law or new custom, but, again, that requires very careful analysis ofwhat it amounts to. What 1 am saying is that we already have a set of such principles, but the dangers involved in that approach which lIeft out in my talk because oftime - were recently outlined by Ellen Hey and Fuad Aleskerov at the Hague Conference on environmental crimes, and they made a long, long list suggesting what might be regarded as such erga omnes nonns which could be translated into practice. It is in my paper, so 1 will just mention some examples. Hey and Aleskerov list the following actions as environmental crimes, and then you see how difficult it is: destruction of ecosystems, environmental genocide, decimating indigenous peoples, transfrontier pollution adversely affecting health, liberal policy conceming the commons allowing powerful nations to benefit disproportionately from global properties, nuclear tests and serious nucIear pollution, poisoned waste dumping, export ofbanned chemicals etc. etc., destruction ofrainforests, destruction ofbiodiversity, gene robbery, trade in endangered species and unsustainable exploitation ofmigratory species. Weil, you see that the list can be prolonged - or reduced. My point was that, since the Security Council would be involved in these issues, probably only one or two ofthese items would remain as serious candidates amounting to a threat to the peace. But again, they are indicative that there are possibilities for the evolution of new

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standards in international environmentallaw that we fmd difficult to accept now because they have not been so accepted in the past. But we are beginning to live with them. My last point, raised by Mr Tomuschat, refers to the identification of common values and the world order conferences such as the ones at Rio (1992), Vienna (1993), Cairo (1994), or Beijing (1995). It was not so much conference diplomacy that in itselfhas a negotiation value, but I will not go into that, political scientists in the room can say much more about it. I think what really matters and what counts is what comes out at the end ofthose conferences. Ifwe want desirable and fully binding systems oftreaties with fully binding norms and obligatory implementation means, then by those standards very little was achieved in these world order conferences. In fact, in those terms one could almost say that they were a step back. But I do not think we should look at them in that way, because when you see them in a perspective from outside, you will recognize that it takes these "soft soles," as I called them, the slow normative approaches that prove that awareness has increased until states will give in or agree to compromises, having been put in the pillory - and no state likes to be put in the pillory, nor do states like to be told that they stern themselves against the general tide, the development of environment ideas. Thus, at a later stage, states will find it easier to agree to a more binding convention regime, for which the lesser binding standards prepared the ground, and will fmd it easier to justify it politically at horne, and this in itself is a value. There are several functions for these new standards. There is a very small area of erga omnes norms, a very small amount, indeed, and, in addition to that, a rich array ofprinciples ofvarying degrees ofbinding force that canalize the future development and as such should be taken seriously. Graf Vitzthum: Professor Oxman told us that a treaty is the main basis for a right of states to act in public interest matters. Treaties may indeed give a kind of trusteeship position to act for others. His example, however, the Straddling Stocks Agreement of 1995, is doser to his heart than to mine. Is this fisheries treaty really a good exampIe for a public interest set ofnorms? I doubt it. In a way, this fisheries agreement is an instrument for coastal states to reach even beyond the 200 mile exclusive economic zone in order to limit the freedom ofthe high seas fisheries. Is this not - thinking of the danger of "creeping jurisdiction" - too high aprice to be paid for an attempt to protect species by binding third states? The way third states are being drawn into that precautionary system is also not impressive: the stocks con-

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cerned are much less important than the living resources within the limits of national jurisdiction, and the latter are heavily overexploited in several areas of the world by the coastal states themselves. So, the Straddling Stocks Agreement is hardly an example on which we could build a theory of public interest norms and use it as main precedent. In addition, we should concentrate on the question of public interest litigation in its broadest sense. Who has standing to act for an entity which lacks the courage, the power, or the "neamess" to the public interest to be defended? I am afraid of the danger of misuse and double standard. In that respect, too, public interest intervention must not become the successor ofhumanitarian intervention. Turning to the report of Eibe RiedeI, I have three small comments. As to the creation of so-called public interest norms, I doubt whether we could ever point out one single norm in our books which can really be called a norm created in the public interest. Let me take the principle ofthe freedom ofthe high seas. It is ius cogens, therefore in the hierarchy of public interest norms - such as they are certainly top ofthe top. The high seas freedom principle, however, was advanced solely in the Dutch national interest in 1608. It served the interests of the Dutch latecomer against the Portuguese and Spanish monopolists. Forty years after Grotius' mare liberum, however, the Dutch diplomats at the Münster and Osnabrück conference at the end of the Thirty Years War took almost the opposite position. This time the Dutch sided more or less with the mare clausum position of John SeIden (1636) believing that the freedom ofthe seas principle would not serve their national interests now differently assessed. In the end, as we all know, Grotius was a bit more successful than SeIden because it turned out over the centuries that the freedom principle served the national interests of the majority of nations. But that was neither the perception nor the strategy at its creation. The creation process, therefore, should be of interest to us: the metamorphosis of anational interest claim into an international interest norm. My second remark: public interest principles are often advocated for non-public interests. In the post Pardo law ofthe sea debate ofthe seventies, the concept of common heritage of mankind has been - by some, Elisabeth Mann Borgese, for example - idealistically advanced in order to foster the interests of the future generations, ofthe Third and Fourth World, ofthe land locked states, etc. The result of fifteen years of common heritage rhetoric, however, is the history , s biggest apportionment of common free spaces to non-common "heirs," i.e., to the geographically advantaged coastal states. The result of this terranization of the seas is hardly in the "public" interest, however defmed.

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Last remark: the creation of public interest norms should in any case be a process with broad pluralist participation. There is no "public interest" as such or a priori, preconceived by enlightened ecologists or implemented by wise statesmen. Public interest norms cannot be deduced from the Bible, from naturallaw, or from Greenpeace publications. What is in the public interest and should be enshrined in norms is open to question and dispute. Therefore, the creation of public interest norms has to be open to a pluralist approach of various groups of states, groups of interests, governmental and non-governmental organizations struggling for compromises. What I am calling for is less rhetoric about guiding principles of socalled public interests and more courage to speak up, to defme, to explain, and to defend national, regional, and global interests. Put your interests and your data on the table, cooperate, negotiate! And in the end, after the exchange of different viewpoints on what the future public interests and their body of laws should be, after claims and counterclaims, trade and trade-offs, there may indeed emerge realistic, broadly based public interest norms. Ferrari Bravo:

I was trying to reflect on the Court' s experience, as I am now in the Court, and on these matters. I fmd the experience of the Court is very deceiving. In matters of the environment, the Court found that its contribution to the decay of the environment was to establish achamber. This is indeed a curious way of contributing. The result is that sometimes there are environmental problems which are dealt with by the Court (actually we are dealing with some environmental aspects ofthe use of nuclear weapons in the framework of an advisory opinion), but no one thinks ofbringing a case before the environmental chamber - certainly not in the important case ofthe Danube waters between Slovakia and Hungary. I am also always amazed when people faithfully quote the Barcelona Traction case because this is a quite innocent obiter dictum as it was probably the case in the Wimbledon affair (in fact I do not remember that in the Wimbledon affair there was a problem of environment). But be that as it may, if it means anything, it means that, when certain ideas are ready to float, people fmd hooks here and there to argue those ideas. We will certainly have a case next year entirely devoted to the environment, and I am so sorry that I will not be there. But certainly, the case about the Danube river will be very important. The same could be said about human rights. From time to time you fmd some dicta, then you advance a little bit, then you go back a little bit. I was interested in knowing that, according to the opinion of some who spoke before me, the recent

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experience is perhaps retrogressive. I think that in these matters of environment and human rights, generally in these matters relating to norms of ius cogens or of norms that can be used by everyone in the interest of everyone, we are in a situation similar to the peace in Israel. The peace in Israel was severely damaged by recent attacks. But I am almost sure that we have reached the point ofno return. We can only advance. Intervention: Cross your fmgers! Ferrari Bravo: Cross your fmgers, yes! We can only advance, as can environmental and human rights questions. While there are, of course, many nations that respect human rights, you fmd new nations not yet prepared to accept and effectively implement human rights. Last week, Russia entered the Council of Europe and signed the Convention of Human Rights because now it is compulsory to do so - if you want to enter the Council ofEurope, you have to sign the European Convention on Human Rights. Who can imagine the Russian requests in one or two years? And it may be that, under the pressure of all these not yet prepared states, even the jurisprudence of the Court and the Commission will change. Somebody will call it a retrogressive evolution. But ifyou look at it from a different point ofview, you will fmd this is a progressive evolution for the new nations. This brings me to several conclusions, but I will put my fmger on only one. Because ofthese expanded and consequently progressive/retrogressive models, one needs to have the aid of regionallaw. What one cannot reach any more in internationallaw one may reach in national or in subregional smaller groups of states. And then comes the hierarchy of norms. One has the broadest one, the more general one, and one has the more intense but less expanded norms at the regional level. I think this is what will happen in human rights. If one thinks of the experience of China, one certainly realizes that the way China understands and applies human rights is completely different from the way the West understands these human rights. But the problem is that not only China, but the entire Far East understands this way and acts accordingly. There are some important consequences also in the economic field with regard to the conditions of labor which are different in these countries because they do not understand human rights. They have people who are working fifteen hours a day. This has consequences for the costs ofproducts. This is nothing new. At the end ofthe nineteenth century, the Italian gov-

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emment behaved like the Chinese, and Prime Minister Crispi sent messages to the Emperor of Germany asking him not to insist very much on decent working conditions because of costs, and he explained it in a strange way. He said that they were Sicilians, they grew up quickly, so they would afford what the Germans could not. The real problem was that in some sulphur mines located in Sicily, where Prime Minister Crispi was elected, you can enter only ifyou are very smalI. So they used naked young people, seven or eight years old. You see, everything depends on the situation in different countries at different times. I want to stop here and not abuse all the time given to me, but just to leave you with these reflections and help to focus us a little better on the subject. Shelton:

When we started the discussion, one ofthe fIrst questions asked was: What are public interest norms? I would like to ask another question: Why are there public interest norms? The examples given by both speakers focus on the issue of imposing on dissenters mIes deemed necessary by the large majority of states. Are there factors that can account for this quasi-legislative development? I would like to suggest two important considerations: the reality of international interdependence and the problem of irreversible harm. First, there is a growing realization that the interests and needs of states are intertwined: in the economic sector, a failure in the Japanese market could create global problems; in the area ofhuman rights, masses ofrefugees flee across borders from countries with human rights violations or internal conflict; in the environmental fIeld, activities in one country often cause harm in another. Secondly, irreversibility means that problems not prevented or remedied in the short term may result in irremediable damage or may be mooted. Professor Oxman gave the example of declining fIsh stocks. If time is taken to achieve unanimity through drafting, adopting, and enforcing a treaty or developing a norm of customary internationallaw, the fIsh williong have disappeared. It is also unlikely that unanimity will be achieved; there is always the problem of the dissenter or "free rider." In such cases, other me ans of developing and enforcing international norms are emerging. The UN General Assembly banned drift net fIshing by resolutions which were then accepted and enforced through nationallaws and regional agreements, in spite of the views of drift net fIshing states. There seems to be a growing number of examples where the international community seeks to impose norms on non-consenting states.

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This does not answer the question of what are public interest nonns. In national law, these nonns would be identified through the democratic process, with interest groups competing for public opinion and lobbying legislatures. Internationally, the process of creating nonns is more restricted; however, "public interest" and "the international community" should not be identified with govemments only. The International Labour Organization consists of representatives of govemments, labor, and employers, all participating in the nonn-creating process. Perhaps it is no accident that the ILO is one of the most effective international organizations working in the public interest. In contrast, recent global conferences have not been progressive; in fact, as Professor Oxman has noted, there has been some retrogression. To the extent there is any progress, much of it is due to pressure from nonstate public interest organizations. The reaction of govemments to this is not always favorable: witness the events in Beijing during the International Women's Conference when the govemment attempted to limit the participation of non-govemmental organizations and individuals. The inability of non-state actors to participate more fully in international negotiations and organizations has led some to develop and adopt nonns outside the inter-state framework. Some of these nonns may indeed be classified as public interest nonns, intended to self-regulate particular international communities or addressed to states for their adoption. The latter is exemplified by the International Law Association rules on non-navigable uses of international watercourses. The rules have guided state conduct and have been incorporated in international agreements. Examples of the fonner can be seen in the human rights field, where the Sullivan and McBride Codes adopted by corporations regulated their behavior in states with human rights problems. In the environmental field, codes of conduct for the chemical industry and for pesticides, as weil as the work ofthe non-governmental International Standards Organization, fonnulate nonns for consumer safety and environmental protection. Undoubtedly, there is a danger in self-regulation. Nonns may reflect the least common denominator and be weakly enforced, if at all. The same is true of nonns drafted by states only. In promoting the public interest and identifying public interest nonns, it is important to recognize that there are multiple international communities, and all should playapart in a more democratic process of rule fonnation.

Schreuer: Both papers were a very good rem inder of the fact that we are confronted with a basic change in our conceptual framework in internationallawmaking in more

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than one way. As far as the basis of authority for international lawmaking is concerned, we see a shift from the traditional basis of consent towards a basis of necessity. In other words, international law derives its legitimacy increasingly not from the method through which it is made but from its contents. We see that very clearly in such areas as ius cogens or obligations erga omnes. These are not determined by the method oftheir creation but simply by what they say, by their contents. My second point is on participation in international lawmaking. It struck me that both speakers seemed to be perfectly content to accept the traditional role of the states as the guardians ofpublic interest. This does not seem to me such a matter of course. States are reiied upon as makers of the law but also as enforcers of the law. But can we really rely upon states always to act in the public interest? Can they be re lied upon to act responsibly in the global common interest? At the same time, we are confronted with the fact that there are new actors who want to get involved, who want to participate. We are confronted with the question of a more open arena in international lawmaking. This would involve NGOs and other additional actors. These two observations lead to a third one on the methods of international lawmaking. The traditional instrument of international legislation, as we know it today, obviously is the treaty which is based on consent by states. I wonder ifthe tradition al concept of the treaty is really the most useful and most efficient instrument for lawmaking in the public interest. The treaty obviously works weIl where you have identical interests or, possibly, where you have complementary interests, where you can strike bargains, where you have trade-offs - the treaty type that Eibe Riedel refers to as the reciprocity treaty. But I would submit that the treaty is a relatively inefficient instrument when it comes to public order legislation, for a variety ofreasons. Bernard Oxman referred to the requirement of aposteriori affirmative assent which is a complicated way of saying something which we all know. Another problem, which I think was not mentioned today, is quantitative. As the number of states in the world community increases, it becomes more and more difficult to get general, never mind universal, assent to any particular instrument. If we make our fates dependent on the overwhelming assent by states, we are really taking considerable risks. As to enforcement: this is less of a problem than we are often led to believe. Many people assume that centralized enforcement plays a pivotal role in any legal system. Bernard Oxman has made a very good argument in this regard. He has pointed out that, if we have a critical mass of interested states, that may be suffi-

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cient to coerce other countries into norm-conforming behavior. This system works by and large. In other words, a more efficient system of law enforcement is not essential for the creation of new areas of internationallaw. Let me try and summarize this on an even higher level of abstraction: we all know that international law has moved from the internationallaw of coexistence, that is the law of "good fences make good neighbours," keeping the peace and that sort of thing, to an internationallaw of cooperation, a law that is characterized by trade and trade-offs. Graf Vitzthum has just made an eloquent plea in favor of this internationallaw of cooperation. But I wonder if we are not moving towards a third stage. Something that, for lack of a better description, I would call the new constitutionalism in internationallaw, a legal system that is characterized by public interest law dominated by public order goals. Charney: I have a question for Mr Oxman and one for Professor Riedel. Professor Oxman spoke in terms of international legislation primarily in terms of treaty regimes. He relied heavily on the universal or near universal treaty regimes which make general internationallaw that is binding worldwide. It is easy to accept that a treaty with widespread participation may produce general international law norms that will bind parties and non-parties to the treaty. Then he shifted to the Antarctic Treaty where widespread participation is absent. In fact, it is far less than that. Nevertheless, he also concluded that this treaty could create international law norms for all states primarily by relying on the fact that all the states that surround the Antarctic are parties and that they are the primary actors in Antarctica. I believe that he missed an important element in his analysis. I do not think that the party status of the most important state actors in Antarctica or the states that surround Antarctica makes this system binding as general internationallaw. Rather, I think it is the fact that this system has become accepted by the international community as a whole. There was, of course, resistance to the idea that this club would make Antarctic law. But it has become generally accepted internationally that this group of states really does create norms for Antarctica because of the acceptance by the general international community ofthe norms emanating from that group. Furthermore, I think that the Madrid Protocol, when it enters into force, even though it would not be a creature of a universal treaty regime, will have the support of the international community as a whole and that it will become effective as general international law that is binding on all states. Thus, I think part of the analysis of the effectiveness of treaty regimes when they are not

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wholly universal is the fact that they are acceptable to the rest of the international community. That is an important factor in determining whether a treaty regime can create internationallaw. I would appreciate Professor Oxman's response to this observation. With respect to Professor Riedei, I feel that I have been left far behind in this discussion. Thus, I have a basic and fundamental question because I really do not understand what his defmition of "public interest norms" is as distinguished from other norms of internationallaw. Maybe the distinction is between operational norms and hortatory norms. I would like that to be c1arified. But if it is operational, if"public interest norms" means that states are obliged to do something today and are not asked to fulfill general objectives in the future, then I would like to understand what the distinction is between public interest norms and ordinary norms, such as for example ambassadorial immunities. Perhaps these are norms that serve immediate state interests, but they serve those interests in a major way and have a public interest component. In two sentences and without Latin words, what are the characteristics of a "public interest norm" which distinguishes it from other norms of internationallaw that justify this as a distinct category of law to be dealt with separately? So I have a very naive question perhaps, others here do not seem to be troubled in this way. Maybe I have missed something. Beyerlin: In principle, I very much appreciate the idea of"public interest norms." However, I am sorry to say that I also have some difficulties to identify any norm of such type in today's international environmental relations. Concepts such as "sustainable development" and "intergenerational equity," in my opinion, only describe political aims which states are called upon to achieve. "Sustainable development" has been described as having begun to act as a "de/acto constraint" on environmental decision-makers. It has also been characterized as the "political umbrella" for the further development of international environmentallaw. Personally, I share these views. In any case, in my opinion "sustainable development" is not a normative concept from which any concrete mIes of state behavior may immediately be derived; because of its specific nature and structure it is not, and I guess it will not grow into, a principle of customary international law or even a norm of ius cogens. Certainly, the sustainable development principle has been included in several modern environmental treaties, but it has not been specified there. Thus, I think, it is and will remain an overall political aim which all actors in the field of environmentallaw have to respect. Despite its non-legal character,

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it exercises and will also in future exercise a very decisive function in shaping pertinent inter-state relations. Let me make another very short remark. Even if it is true that there exists a certain body of peremptory norms or erga omnes rules which any state can claim, this would not help so much, at least in international environmental relations, because there is evidence that states are very reluctant to go to international courts. It appears that in the future other methods of law enforcement, particularly the procedure of compliance control, will be used more often than the traditional method of authoritative dispute settlement.

Bernhardt: I am very grateful for the two reports we have heard this morning. They gave us rich material and examples. What general conclusions can be drawn from that? In this respect, lama little bit more optimistic and may be more courageous than some of my colleagues. I think, at fIrst, our basic approach to internationallaw should be considered to have changed over the last few decades. The old principle in dubio pro Iibertate, in doubt for the liberty of states, is no longer, in my view, a really valid and general principle. Neither the Wimbledon doctrine, ifthere ever was one, is still acceptable nor is the old doctrine acceptable that, in case of doubt, treaties should be interpreted in the sense of the freedom of the state, in a restrictive manner. I think this is no longer the correct approach. The correct approach is that in the interpretation and application of customary and treaty law the guiding principles are the need for cooperation and the existence of interdependence. These are, I naturally accept, very general abstract principles, but they can playa great role in interpreting and implying concrete norms in seeing how far the freedom of the state goes or how far the state is bound under customary law and how treaties should be interpreted. The next point, and this is connected to the fIrst one, concerns the hierarchy of norms. I have no doubts that such a hierarchy exists. But, as Professor Oxman said this afternoon, it is extremely difficult to fmd out what hierarchy means in this sense. We come often, when weapproach this problem, from our constitutional system, and then hierarchy means that the higher law of the constitution invalidates all normallaws. On the international plane this can also happen, but this is not the main aspect. It is more that the higher law should be taken into account when interpreting other norms. To that extent, the common heritage ofmankind has some value in itself. So, if we are discussing the hierarchy of norms, we should not in the fIrst line see in which cases the inferior norm is invalidated, but

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we should see how much the basic principles ofthe international order are influencing the inferior norm. I would like to add that we have heard many good examples for the statement that in the present society there are many different methods of creating and preparing norms, we no longer have only the states, we also have many other actors. This does not mean that all the other actors can create international norms without some concurrence of the state or with some cooperation with the state, but all these factors have to be taken into account. In different areas quite different methods are adequate. What has been said about the International Civil Aviation Organization may be useful for the World Health Organization but not for many other areas. I was very grateful that Professor Riedel mentioned the L6pez Ostra judgment of the European Court of Human Rights. But it has limited scope. The persons concerned were living a few metres away from a factory, and in such a case pollution affects directly the right of privacy and the domicile. But it is entirely different ifthere is long-range pollution and no single source can be identified. Human rights norms and human rights conventions seldom help in the most important environmental problems, but they can help in smaller cases where you can really identify the victim and the wrongdoer. Li/lieh: I would like to make one comment on the norm-creating process with respect to "soft law," using two specific examples and introducing perhaps a word of caution, andjust a couple ofbriefremarks on the hierarchy ofnorms and the question ofwhat are or are not civilized nations. We have heard a lot about new states, new actors, and new participants in the process. I was struck this morning, not throughout all the remarks that have been made today, but by Professor Tomuschat's statement that we cannot overlook the power of sovereign states. I will go a little further and say that we will really have to take it into account. Let me give you a couple of examples with respect to soft law. There is no doubt - as Professor Riedei said, when speaking ofthe human rights area - that a considerable amount of soft law is being created, being applied, even applied to what, I guess, in the traditional context would be called non-consenting states. Let me give you one example of this that has worked out rather satisfactorily, but the second example I am going to give, where things have not worked out so satisfactorily, might be a warning. The first is the Working Group on Arbitrary Detention, which was established by the Human Rights Commission. That Group

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applies the Civil and Political Covenant to states that are parties to the Civil and Political Covenant but also applies the Covenant as weIl as the Universal Declaration of Human Rights and other soft law resolutions to all states including nonconsenting states, and in its decisions it does not distinguish where the legal obligations of the states come from, it just goes ahead and applies it. There are other working groups and special rapporteurs which do the same thing. The decisions of that body, in my opinion, are of growing importance and, indeed, may in the area of detention be even more important than some of the views of the Human Rights Committee, which are far less frequent in this area. So far, states have either supported or tolerated what I consider a very interesting development. But my word of caution to the Working Group would be that they should go slowly because of my second example that deals with the UN Criminal lustice System. Over the years, the Crime Control Committee has taken a leading role in the development of what I would call "soft law human rights norms." When I started out in this business, the only thing they had to deal with was the Standard Minimum Rules for the Treatment of Prisoners, which they adopted before their demise. They adopted about eighteen more sets of detailed rules, you might call them rule-making pursuant to some other general norms - if you want to talk of a hierarchy in that kind of context. They also started a very primitive reporting system, which had great potential. Because of a variety of factors there was a backlash, and fIrst of all the states put certain pressure upon members of the Committee. The United Nations reduced its fInancing, particularly with respect to reporting. In fact, the UN Secretariat refused to carry out the reporting obligation that had been established by the Committee. FinaIly, as we now all know, the Committee was abolished several years ago, and a new commission of government representatives was set up, which is going exceedingly slowly in this particular area. I complained to a good friend of mine who deals with human rights matters in the Department ofState, and he said, "WeIl, we wanted to get the situation under control." And that seems to me a classic example that we cannot ignore and why the Working Group should go slowly. It is my fIrst and basic point that in creating norms we have to take into account the attitudes of states. They still control the soft law process, despite the infusion of all these new actors. lust very brieflyon the hierarchy of norms, which was mentioned by both Professors Frowein and Bernhardt: Obviously, as they both know and we all know, aside from ius cogens and other Latin phrases, there is a hierarchy of norms built into most of the major human rights instruments because you can derogate from some of those rights, whereas others of those rights you cannot derogate from. The interesting thing is - and this actually bears upon the point I made before,

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namely, that states still control the process - that there is an attempt being made right now to draft a third optional protocol for the Civil and Political Covenant that would limit the extent to which states can derogate from the right to fair trial under articIe 14. That was going swimmingly until a few years aga when all of a sudden a group of states - 1 am not saying my own, but perhaps my own and some others states - started raising some other objections to this, saying it deserved further examination. Perhaps Professor Tomuschat may wish to comment upon that. It indicates that even there states control this process of determining what should be given prime importance with regard to the application of the standards under the basic Covenant by the Human Rights Committee. Lastly, with respect to civilized nations - 1 do not think this is really much of a problem, despite its colonial overtone. You hear about this from a lot of countries, the responses of students from countries in the former colonial worid and the responses that you can give, or the response that 1 have been known to give, is: Who is going to object to being called a civilized state, ifyou are a civilized state, despite the colonial overtones? The Restatement ofthe Foreign Relations Law ofthe Onited States, way back in 1965 and again in 1987, got rid of this, quite easily in my estimation, by saying we are going to adopt the standard of states with reasonably developed legal systems. No one knows what that means, just as no one knows what a civilized state means, but it is like lustice Potter Stewart said about obscenity: "I cannot defme it, but 1 know it when 1 see it." We have to have some standard, and 1 think that point was made by at least one speaker. It is important to make a standard distinction here because states without reasonably developed legal systems, 1 think, should not play the same role in creating either soft or other standards. Whether that would exclude five states, or seven states, or ten states, or more, or less from the process 1 do not know. But 1 think it is an important point not to be put off and not try to push the old civilized nation statement, but to create some alternative thing which would keep the distinction aIive; for 1 think that it still has value. Joyner: My questions and comments are drawn from a number of previous comments. Professors Shelton and Chamey asked the fundamental question which 1 had noted, namely, "What is a public interest norm?" And Professor Schreuer touched upon a second question 1 had considered, "How is such a norm created, that is, through what process does it evolve?" The particular aspect about those questions which 1 wanted to pose to the speakers was a point just raised by Professor LilIich,

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namely, "What about soft law and what role does soft law have in the development ofthese public interest norms?" In some respects we might say that the soft law approach here might be more desirable in the evolution ofthese norms, and I am curious to see how the speakers react to that premise. We all know that it is difficult to secure universal consent among states, and it is difficult to establish binding mIes to accelerate the prediction ofbehavior among states without doing so in the form of a treaty, which is clear cut and articulate. We also know that international agreements sometimes require ambiguities and compromises in order to be promulgated, and this results in what we call framework conventions. I am wondering whether or not these framework conventions, these emerging norms, or nascent norms contained in them, might be facilitated through the process of soft law creation. BasicallY then, the compound question that I hope the speakers might respond to is, "Are these soft law notions, which involve written and recorded forms, norms? Do they provide the opportunity to serve as guidelines for govemments, and do they indicate which way the law is heading? Do they offer the chance for a consensus to be formed around a particular notion that might give rise to a treaty in the future? Do they offer sufficient flexibility to allow for a nascent norm to crystallize into what might eventually become a public interest norm? By the same token, can we accept that soft law pertaining to public interest norms at the expense of enforcement for compliance can sometimes give rise to soft law?" So my comments boil down into two questions for the speakers. First: "What is a public interest norm?" And second: "How is such a norm created, and does soft law have a role to play in that creation?"

Fid/er: Because I was trained as an international relations student before I became a student oflaw, I tend to have a schizophrenic personality in the analysis ofthese sorts of issues, and I would like to share with you a little bit of my split personality in regard to public interest norms and how they are created. First, from the point of view of international relations thinking, you can make a case that we, in fact, do not have public interest norms that are shared by the international community. Let us take three examples ofpublic interest norms that have been mentioned today: the prohibition ofthe use öfforce, Article 2(4) ofthe UN Charter; the prohibition oftorture, both in customary internationallaw and in the Convention on the Prohibition ofTorture; and environmental protection. WeIl, from an international relations point ofview, states still view the use offorce as an instrument of

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national policy, regardless ofwhat customary internationallaw, or Article 2(4), or the ICJ in the Nicaragua case say. Can we in fact say that there is a public interest norm in the prohibition of the use of force? From an international relations perspective, the answer to that would probably be "No!" As for the prohibition on torture: if Amnesty International is to be believed, torture is both epidemie and endemie in the international system. Can we really say there is a public interest norm in prohibiting torture? As for environmental degradation: our second rapporteur mentioned this morning that, despite the massive development in international environmentallaw, there has not really been much improvement in terms of environmental protection. Can we say that there is a public interest norm in environmental protection? The argument that we have common interests or public interest norms in the international system seems to me to emanate from a small group of states within the international system that had and has enough political, military, or economic power to make those issues a matter of discussion in international relations. The exampie of the International Convention on Civil A viation was brought up, and it was noted that the states that really matter have adopted these mies, so everybody else has to fall into place. That is a matter ofthe exercise ofpower; it is not necessarily a matter of obeying law out of a sense of legal obligation. Weaker states really do not have any choice. That is a matter ofpower, not oflaw. You could also make the same claims in terms ofthe environment: this is really an agenda set by Western developed countries, because it has become a value through the democratic process and has been placed on the international agenda. A lot of this can be seen in the analogy mentioned earlier about the development of the principle of the freedom of the high seas. That principle developed because the Dutch and the British had the interests and the power to make that principle stick. There is nothing new in what is happening now with the public interest norms that are being asserted; we have seen this before historically. One ofthe reasons why we can have a conference like this today is because of the collapse ofthe Cold War and the demise ofSoviet Communism. Liberal political and economic thinking has triumphed and that so-called triumph is the foundation for the presentation of these values and these public interest norms in the international system, not because there is an "international community" which shares these values. A couple of classical international relations thinkers come to mind to help me analyze this situation. One of them is Rousseau, who distinguished between the apparent interests of states and their real interests. He said that the apparent inter-

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ests of states were those things which they believed to be in their interest, like power and war, and the real interests of states were peace, security, harmony, and brotherhood. Rousseau said states follow their apparent interests, not their real interests because of the structure of the international system. Public interest norms are like Rousseau's "real interests." It seems to me that we need to make that distinction, too, and realize that there is another set of interests, these apparent interests that we have to take into account. Rousseau had a very strong sense of sovereignty in that regard because he based his city state on a shared ideological view that he did not believe could be replicated through interdependence. The other philosophical thinker is Edmund Burke, who had a very weak sense of sovereignty because he realized that sovereignty is limited by the international community, particularly the European countries, which he called the European Commonwealth, which shared values and a common heritage. Burke found such shared values and heritage very important in international relations. Burke helps us to identify what is fundamental in understanding these public interest norms, namely, a shared ideology of certain states emanating out oftheir domestic systems oflaw and politics. This points to the real issue, which I think is at the heart ofthis question: state regimes need to change rather than internationallaw. One of the things that has surprised me is that nobody has yet mentioned democracy as a public interest norm. Tom Franck has done some work on the democratic right emerging in internationallaw, but it seems to me that is really important in thinking about the rest ofthese areas. Ifwe do not acknowledge the power aspect of this question, as Rousseau encourages us to do, or the importance of national ideology and philosophy, as Burke would encourage us to do, then outside of this room and in the academic society within which we work these ideas of public interest norms existing in internationallaw will bring internationallaw into disrepute, because people see the gap between the rhetoric and reality. Now for the other side of my split personality. I have been trying to figure out what the proper role of internationallaw is in connection with the threat of emerging and re-emerging infectious diseases. With respect to diseases like AIDS and also those diseases wh ich have changed and for which we no longer have adequate drug treatments, I fmd myself criticizing the W orld Health Organization for being unimaginative in how it is approaching this particular problem. One ofthe reasons why Iwanted to come to this conference is to try to fmd other sorts of legal regimes in which we can deal with the problem of recalcitrant states, because it has got to be a global regime which is set up in order to deal with these new and reemerging diseases. I want to fmd out what the different approach in other areas iso It has been very helpful from that point ofview, but at the same time I have to

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step back and say at the end ofthe day that ifthe United States and other powerful countries in the international system are not willing to put political and economic pressure on other states, or are not willing to pay for the public health infrastructure improvements that are needed, discussions about all these different regimes of internationallaw really become academic. Hailbronner:

I feel prompted by some remarks relating to the role of treaties to make some procedural comments. We have found that in the field of so-called public interest norms the traditional treaty regime has really failed, partly for reasons of municipal law because treaties require a long, long time. We have found, particularly with environmental standards, that it takes ten years until a treaty enters into force, and then the whole thing is already out of date. The second problem which is more closely related to the public international law level is the unanimity rule, which frequently waters down public interest norms to an undefmable content. Like the concept of common heritage, it may be very difficult to identify a concrete legal substance in many of those treaty provisions. What can we do about that? Ifthe analysis is correct that treaties are frequently an inadequate instrument to cope with public interest norms, one might consider a new legal development which might perhaps be parallel. There is a discussion right now on the so-called Third Pillar of the Treaty on European Union; the Third Pillar does not mean a transfer of sovereign power; it means cooperation at the traditional public internationallaw level, and there has been the problem that really no significant progress has been achieved because the traditional treaties are provided for as a legally bin ding instrument. So, if I have been informed correctly, there is a substantial discussion going on about whether one should not replace the instrument oftreaty-making by some kind ofmajority decision-making which is not subject to approval of the national parliaments, which, of course, raises constitutionallaw problems. But to overcome the problem that it takes a long, long time - we have the Dublin Agreement, which has not yet entered into force, eight years after it has been signed - something has to be done on the European level. The idea is, and there is some link with what you have mentioned, to fmd new techniques to cope with public interests norms by creating new forms of lawmaking, for instance, soft law arrangements which are not treaties in the traditional sense, which are not submitted to the national parliaments but still have some kind ofbinding force, even perhaps combined with a majority rule. Of course, I realize that this cannot be easily transferred to the universallev-

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el. It is something which is done on the European level and probably only works within the European context. But still one might consider whether we do not have to get away from the traditional concept oftreaty, binding treaty and other forms of quasi-binding. One has probably to be more imaginative on the whole issue of lawmaking. One short comment on the concept of common heritage, on which, I must say, I share the more skeptic or realistic view. I remember that about thirty years ago, when I did a Masters Degree at MacGill in air law, there was a lot of discussion in air law and outer space law about the common heritage of mankind concept. But what has come out? Would there have been anything different if the common heritage concept had not been adopted in the Outer Space Treaty? I do not see a substantial impact of that concept. So lama bit doubtful on the content of such global concepts like that of common heritage. I have some problems identifying the so-called global public interest norms. One of the reasons is that these concepts are interpreted according to the traditional principles of public international law and the Vienna Convention. The practice of states is decisive. If one wants to change that, one will probably have to change the whole structure of public internationallaw. It would be quite an attractive idea to think about supranational or international courts taking up these concepts and interpret existing treaty obligations based on common heritage of mankind ideas. But still I doubt whether on the universal level there would be a sufficient acceptance for this kind of proceeding. This works in the context of the European Court where you do really have a common set of basic aims and principles which are sufficiently precise. But whether it would really work on a universal level I doubt very much.

Tomuschat: We have been focusing mainly on techniques of lawmaking. I would like to come back to implementation as one field where public interest has to materialize, and I wish to refer to the Convention on the Rights of the Child. This is a highly successful convention. It was widely acclaimed, states have ratified the Convention massively. I think there are now more than 140 states parties. But what has come out ofthe Convention? It seems thatjust nothing has happened, all nations have ratified this Convention, it does exist juridically, but there is no movement, there is no progress. On the one hand, this is certainly a public interest set of norms because we are all interested, the adult world takes care of the interests of the children, what is better and more beautiful than children, they are the true wealth of every nation, hence public interest. But then you really do need actors

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who try to enforce that Convention. You need a system which moves forward the mIes, prohibitions, and recommendations which are contained in such a convention. Thus we cannot be content just with new techniques of lawmaking, we also have to be imaginative in devising new techniques of implementation. 1 think this Convention is really a model example of something which is just beautiful on the legal plane but defective in the real world and has not achieved anything. Delbrück:

IfI may intervene for a short moment before I give the floor to the two rapporteurs. Taking up what Mr Tomuschatjust said, 1 would like to draw our attention to a point which may serve as a link between the substantive dimension of public interest norms and the procedural aspects of lawrnaking and law enforcement: indeed, we have talked about new procedures, new ways in which internationallaw may be created in deviation from the traditional ways, and we have then talked about one of these modes of creating law, i.e., some kind of internationallegislation, particularly initiated and fostered by the most concerned and the most powerful states. And then also, we have heard massively - but discussed it rather marginally - about the extension of standing of states in the enforcement of certain kinds of mIes - in clear way of transcending the traditional understanding of which states would have standing to enforce the law. The question which is behind all of this is: Why would we accord authority to groups of particular states changing the lawrnaking process towards "international legislation," but still accept that law is actually created differently (traditionally) if it is to be binding? Secondly: Why are we extending the right of enforcernent beyond what was conceived as legally proper in the sovereignty-oriented era of classical internationallaw? And fmally: Why are we widely ready to extend the binding scope of certain mIes to states which were not involved in the process of creating these mIes as, for instance, to states not being parties to the Straddling Stocks Convention? My feeling on this is - and that is why I want to put this subject on the records for further debate during tomorrow's session - that all this is so because we accord a certain particular importance to the substance of these norms. Schreuer has mentioned it before, but I would like to emphasize it again: this increased importance is what we are presently labelling - for debate's sake and not pretending that we have already found the formula what this actually means - a public interest. It is quite evident to me that we are making the distinctions between certain kinds ofnorms exactly on the basis oftheir public interest character. It is not too

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difficult to show in particular cases that individual nonns ofthe traditional, regular type, as Jonathan called them, are indeed treated by the state community differently in tenns of the scope of their effects and their possibility of being enforced. And then there are nonns where, as Professor Bernhardt has just said, we are not under the classical rule of in dubio pro libertate of the states, rather they think they need to be bound more stringently for public interest's sake. I just want to summarize this because I think this is the dividing line right now in the debate. And now back to the rapporteurs!

Frowein: There is a growing body of state practice arguing that specific reservations are not only incompatible with treaties but are null and void, and for me this is a very clear point proving what you have just said.

Riedel: First of all, I would like to thank Professor Frowein for his last intervention because it is a very strong point, and I have nothing to add except that I agree. Next, GrafVitzthum made three main points, which I will not recite because with two ofthem I can agree without difficulty. But I would like to pick on one ofthem: he said that even if the concept of common heritage of mankind in theory was often advanced for tactical reasons and for the benefit of the Third World, in reality the result had been that we witnessed the biggest apportionment of free spaces and the plundering of the oceans. I would like to pose a counterquestion: Is that because of common heritage of mankind or because of underlying interests of states, that we are not ready to accept PINs, public interest nonns, in this area? My rhetorical answer to his conclusion is that there should be less rhetoric about PINs but more realism about them, yes, awareness that they are alive and kicking. I can also agree with most ofwhat Judge Ferrari Bravo said, and I am particularly grateful for the example he gave which is a very serious one relating to Israel and the peace process there. This is precisely the point that I tried to make this moming about the two-pronged approaches that one can take towards environmentallaw: on the one hand a pessimistic view to say that it is too late anyway, and too little is being done, and so the outcome is just rhetoric. The other approach is that we are witnessing small steps in the right direction. Based on public interest nonns, they reshape the thinking on it, and then, gradually in the political process and in the ethical discourse about it, there will come about a rethinking that might pave the way for producing a solution for the situation. Fonnula com-

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promises in treaties may serve as another example. Sometimes even agreements where the parties agree that they differ in one fundamental issue, like in the GermanlPolish Treaty on Good Neighborhood, are cases in point. It is quite clear that parties agree to this rather odd formulation - which would be very difficult to explain to a student of civillaw in his second semester, as one would say that clearly open dissent exists - but because there are seventeen or eighteen other points considered to be vital, they agree to bring in this one point of dissent and mark it out clearly. Therefore, formula compromises are just one particular - and I would add ingenious - method ofbinding states that are recalcitrant and that would not normally agree to enter into an agreement unless this controverted point was taken up. When the treaty regime then comes into operation, and mutual trust is experienced, the points of dissent may even evaporate in time or decrease in importance. Dinah Shelton's argument is quite right that one should focus on dissenters when most agree. The examples she gave from human rights law with regard to refugees and asylum seekers I can fully subscribe to. It is the ILO, after all, which preceded other international organizations' attempts in that all the relevant interests were taken in, and it is not just states but actors within states that have come in. There the democracy argument has been advanced, and many of the arguments about public interest norms stern from the sphere ofthe ILO and the experiences and analogies which spring from that testing ground. Next, Professor Schreuer argued that the participation aspect has not been developed fully in the papers this morning, although it was mentioned by both of uso I agree with him that we have a whole array of new actors, particularly in international environmentallaw. I would have swamped you with information about that, had I gone into more detail there. We might have delved into the open arena of NGOs that are participating, we might have had a long debate about the role of Greenpeace for better or worse, or about other non-govemmental organizations that are being asked and being taken into the decision-making process; I simply gave the example of the Rhine Commission where this was actually done. This was relating to actions ten years ago. Nobody would have then thought of inviting them to participate in the decision-making process - and now they are in. This is done, again, by reference to public interest norms transcending the state participants, they are not new participants who directly rely just on the state interest which they cannot represent but on interest norms above. Jonathan Charney asked a rather naive question wh ich was right to the point and which is not easy to answer, but I will try. He wants two sentences and no

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Latin. My answer is that we just take general principles of law. Although they often consist of Latin mIes and frequently refer to procedural matters, they can all be translated very easily into notions of public interests, such as: "act so that you do not harm others"; duties of negotiation; duties of infonnation; equitable and reasonable utilization; good neighborliness beyond bilateral interests; the principle of estoppel (that comes from ancient French); the shifting of the burden of proof; the principle "polluter pays," and other constraints which serve as an umbrella for environmental law. These are just a few examples of one area of public interest nonns, namely, general principles oflaw. That was when I turned over five pages where I had written all that in more detail. Judge Bernhardt summed up very clearly that the principle in dubio pro libertate ofthe state is no longer valid, while it may have been valid until 1945. But ever since the institution ofthe United Nations there is need for cooperation and dependence, and even the most mighty states realize that it is in their own best interests to cooperate and to realize that they are dependent on others, as was weIl illustrated during the oil crisis of 1973. I agree with that, and Professor Bernhardt discussed environment protection in relation to the famous L6pez Ostra case where the European Court ofHuman Rights extended article 8 ECHR to environmental proteetion. But I would like to give just another example to outline how these common interests can be materialized so that they can be applied. For instance, in article 33(2) of the ITU Convention and Radio Regulations thereto, there is a principle of equitable sharing of frequencies. If you look at that, you could say that this can be explained because it is in the interests of each individual state not to have frequency chaos. And yet, to be able to agree on that and to have a public interest nonn conception behind it that it is in the best interest of aIl, even those who desperately need more frequencies and who possibly have more possibilities to enforce it if no public interest nonn manifestation was there, is in my mind an example to prove that there is a need for this. Lastly, Professor Hailbronner's argument on the Third Pillar. I think that was a very interesting point which really proves the need for the elaboration of new public interest nonns. He gives the example of the Justice and Internal Affairs matters. You could also mention the Second Pillar on the Common Foreign and Security Policy. Probably you did not mention it because the success record ofthe CFSP is not all that brilliant. However, Article L of the Maastricht Treaty of the European Union says specifically that these questions, if they are disputed, are non-justiciable, and yet they are fully binding as internationallaw treaties. Again, we have PIN nonns ofEuropean Law, and that to my mind is quite something.

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As for Professor Tomuschat's remark on implementation with the example of the Rights ofthe Child - I have nothing to add, except that I fully agree. Oxman: I hope you will excuse me in light of the hour for not commenting on all of the remarks which were made, many ofwhich I did not take as questions. I think Professor Frowein will not be surprised if I tell him that I am not a structuralist. If he asked me, in any legal system, mayaparty to an agreement determine the extent of its own obligations under the agreement, I would have to answer that the concepts of agreed obligations and self-determined obligations are in conflict with each other and that the system would have to resolve the conflict. It does seem to me that there are legal concepts or, ifyou will, legal tools that have certain consequences and that those consequences are going to follow from the legal idea itself. That does not, to my mind, necessarily mean that those things have anything to do or not to do with what might you caU the public interest. Let us take a term with which I have some direct experience: common heritage. Professor GrafVitzthum is absolutely correct, and you will forgive me ifI take a few moments ofhistory here. Of course we all know we could take the underlying concept and trace it back as far as we wish. But insofar as the seabeds are concerned, the idea of common heritage was raised without apparent instruction by an American representative at the United Nations; it then appeared in a Maltese speech with apparent instigation by US representatives in New York, again without apparent instruction; and someone slipped a virtually identical. statement into a speech by President Johnson, without consulting the government departments concerned. The real question is: What does common heritage have to do with what in fact was the partition of all presently valuable resources on the seabed? The answer, apparently, is: nothing. There is probably nothing ofpresent value, as an economist uses the term, that has not been allocated to a coastal state. Now, how did that happen? The United States, in preparing for the Law ofthe Sea Conference, undertook a very extensive examination of the national interests of every coastal state in the world regarding the question of the limits of the continental shelf. We took the 200 meter limit in the 1958 Convention on the Continental Shelf as the droit acquis for practical reasons. But beyond that, everything was treated as an open question. The study revealed that the interests around the world were very badly split. For example, the computer model suggested that Germany would prefer to oppose any extension of the continental shelf beyond 200 meters, leaving aside any European Community considerations. As a result of that

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study, the United States fonnulated a compromise proposal which contained an extension ofcoastal state control from 200 meters out to the edge ofthe continental margin but with substantial international elements in it. In that broad area the United States proposed regulatory authority by the International Sea-Bed Authority for environmental, safety and other purposes, as weIl as international revenue sharing. In this regard it should be borne in mind that the distance of the 200 meter isobath from shore varies greatly but on the average is under 50 miles. More importantly, the 200 meter isobath by defmition leaves much ofthe hydrocarbon potential of the continental margin beyond the limit. Because the United States used 200 meters rather than 200 miles, the Latin Americans took this as a figurative declaration ofwar. They recognized that what we had done, deliberately, was to attempt to energize the internationalist push under the idea of a common heritage into a result which in the end would undennine the idea ofbroad zones ofunfettered coastal state control. Their response, aided unwittingly by some very weIl-meaning people, was rapidly to radicalize the concept ofthe common heritage. And they did this absolutely magnificently. They set forth a conceptual view ofthe common heritage ofmankind as applied to the seabeds which was as stridently internationalist as anyone could conceivably imagine. And within a very short period of time, they convinced states that otherwise would have had an interest in a very large international area as the common heritage, such as Gennany, that there was no conceivable way in which their interests could be served by placing half to two-thirds of the oil of the seabeds under the control of such an international regime, and that they were far better off agreeing with their British partners and hoping that the net effect of coastal state administration of oil resources was more consistent with Gennan interests. The Latin Americans used an idealized image of the common heritage of mankind to force what they wanted, which was a vast extension of coastal state jurisdiction without internationallimitations at the expense ofthe common heritage area. I think this is a footnote as it were to Professor Lillich' s point. Y ou have to be extremely careful about how far you push an underlying concept. You see the result. Aside from some potential safety and environmentallimitations, the coastal states are in complete control of virtually all of the hydrocarbon potential of the seabeds, with a little revenue sharing beyond 200 miles. With respect to fisheries, there are some legallimitations within 200 miles, but those ofyou who attended the UN Fisheries Conference doubtless observed that most coastal states do not take those obligations very seriously.

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As to the straddling stocks question which was raised, I think the Straddling Stocks Agreement will be important if it is widely ratified. The key to wide ratification is right here in Europe. It is rather well-known that there is a lot of sympathy in many countries ofEurope for the kind ofproblem which Canada faces. The question is whether European interests in stabilizing the law of the sea or narrow, short-sighted Spanish fishing interests control the European Commission. Does the Agreement somewhat increase coastal state rights in enforcement terms? Yes, but not their normative rights. The norms have to come from regional organizations. Does the Agreement have any meaning? I do not know; we will have to wait and see. It provides, so far as I am concemed, an imaginative framework for resolving the real problem offisheries under a common spaces regime, which is allocation. If we had been this imaginative twenty-five or thirty years ago, it is possible we would not have had an exclusive economic zone, at least in the form it took. And we might have saved a lot offish. Coastally-oriented conservationists have been proven wrong in their view that conservation is ensured by placing fish under coastal state control. The result of coastal state management, including that in my own country, is not particularly encouraging. The situation with respect to Antarctica is a little more complicated than Professor Chamey's remarks imply. I think what you have in Antarctica defacto (I am not proposing to undertake a theoretical defense ofthis position) could be described as an open-ended multi-state limited-purpose condominium. If you are willing to spend the money to send an expedition, you get in and you are part of the condominium govemance system. There are three reasons why attacks on the system have subsided. First, the territorial claimants, including Argentina and Chile operating within the Latin American Group and the Group of 77, have successfully obstructed efforts at globalization through the United Nations. Second, the rumblings in the United Nations had the effect of making the Antarctica Treaty system more open and representative. The Antarctic Conservation Convention system is open to all states fishing in the area; ratifications of the Antarctic Treaty increased, and non-Consultative Parties are permitted to observe meetings ofthe Consultative Parties; the standards for becoming a Consultative Party to the Antarctic Treaty do not appear to pose an insurmountable obstacle for states willing to press the matter; and the Environmental Protocol creates a stronger role for non-govemmental groups. Third, the main stimulus for the attacks - the promise of hydrocarbon and mineral riches - appears far off and legally would be deferred for at least a half century by the Environmental Protocol. Whether all of these accommodations have purchased "acquiescence" in the sense of an abandonment of rights or claims under intemationallaw by all states is open to doubt and, more to

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the point, is not at issue at present. Part of the reason is that political calm prevails, for the moment. Another part ofthe reason is suggested by my response to Professor Shelton's excellent question. The Antarctic legislative system, whatever its claims on global respect under internationallaw, in effect manages to control behavior by most, if not all, individuals with an interest in Antarctica by combining a limited international system of norm promulgation with an obligation on the parties to enforce the system by exercising very traditional bases of jurisdiction in areas outside Antarctica. As a practical matter, it is difficult to get to Antarctica and operate there without, at least for some purposes, using the territories or cooperating with the nationals of the countries that surround Antarctica or other countries that are party to the Antarctic Treaty. For that reason a system that binds the parties to the Antarctic Treaty to apply Antarctic legislation to all persons within their jurisdiction outside Antarctica achieves very broad, if not global, effect by virtue of the operation outside Antarctica of two of the most traditional jurisdictional bases in intemationallaw, namely, territorial sovereignty and nationality. I turn next to the extremely important point made by Professor Hailbronner, the time problem: treaties fail, it takes a long time to get a treaty response. I think there are two answers. One is soft law: you set up an organization which produces standards that are not legally binding as such. The other is what I called in my paper "legislation": you set up an organization to which legislative powers, in the literal sense of the word, are delegated to bind all parties in accordance with an agreed voting or approval system. Now, I think both are possible and each has its strengths and weaknesses. I in fact left this out of my paper when I was reading, but I should highlight this point, "If the states concerned routinely implement the non-binding recommendations of an international organization, then we have an effective system for the time being. What such a system may lack is the measure of dependability and predictability that legal obligation affords," that is, obligation to respect the resolutions as binding legislation. "One of the functions of legal obligation is to encourage us to do what we might not otherwise do. In this regard it is neither unique nor infallible, but it has proved useful." That is really my response on the soft law point. Given the choice, and I suspect Professor Lillich would agree with me, if I had a choice between a hard law and soft law system, ceteris paribus I would opt for the hard law system, preferably subject to review by a court, preferably one with Judge Ferrari Bravo on it. But if I cannot get hard law at reasonable cost in a reasonable time, of course a soft law regime may be better than nothing. If you cannot get a strictly formal rati-

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fied missile export treaty regime that China will be party to, then you do a somewhat less formal missile regime that China will be party to. You do the best you can. But the fact that we have to return to our constituencies and organizations and say we did the best we could, and that it is not bad, does not mean that we want to forget that in generallegally binding obligations imposed by treaties, directly or pursuant to binding legislation under those treaties, are more likely to trigger the national legal enforcement system that Professor Tomuschat talked about. A word on participation: In my view, we are witnessing the emergence ofthe fIrSt truly global political party, and that is a Green Party comprising a coalition of various environmental groups. Like all political parties, it will claim the right to defme the interest ofthe entirety of its constituents. That constituency, quite literally, is all the people of the world. It is establishing itself as a party to represent admittedly only one type of interest of all the people around the world. Similar, but I think less advanced, developments are occurring in the human rights field and in certain other fields. Does this alter the answer to the fundamental question that you pose? Absolutely! If we in fact start to develop a situation in which we have, in the sense that Professor Graf Vitzthum described, global political parties debating policy with each other respecting different interests, then you have a true debate - assuming, for example, the existence of another global party that accords more weight to economic development. In that case, we would be talking about norms that will be very different, because at that point we will have norms that are emerging from an actual global political process. But we are not nearly at that point. There is at most but one global party at present. And I think that in the end very much part of our disagreement is that - and I mean this as a compliment - I think that you are speaking, in part, for that party's agenda, which you wish to promote through internationallaw. There is absolutely nothing wrong with that. My main problem is that this requires great care in analyzing the relationship between what is, what will be, and what should be - especially when the subject is law. But that does not mean that you should stop. I think you should go on.

National Interest vs. tbe Interest of tbe International Community - A Critical Review of Recent UN Security Council Practice Klaus Dicke'

I. Introduction Tbe "idiot" is one of the most interesting figures in tbe bistory of political thought. In ancient Greece, the citizen, the polites was defmed against bis antagonist, the idiotes: A citizen was a man wbo was naturally inclined to be concerned witb public interests; the "idiotes, " on the other band, was caught by the "idia, " the particular interests of bis private life. 1 Tbe former was by defmition qualified to participate in the law-giving of tbe republic, tbe latter was not. Tbe same distinction was drawn by Rousseau wbo put fortb the view that the volonte generale of republican citizens bas to be tbe foundation of laws and wbo contrasted tbis universalism to the volonte particuliere ofthe bourgeois. 2 But a century before Rousseau, Thomas Hobbes bad coined tbe "realist" argument tbat this very distinction was idealistic and utopian in nature. In politics, be wrote, eacb and every idiot wants to bave bis say. Tbus, tbe political world is a world of idiots, namely of persons wbo actually pursue their interests, as partieular as they may be. Hobbes thought tbis situation to be a "threat to tbe peace", and be concluded tbat only tbe power to enforce laws against any idiotie eoalition was able to maintain peace. "Auctoritas, non veritasfacit legem" was bis formula to solve tbe political

• Professor of Political Science, University of Jena, Gennany. The author is greatful to Dr. Michael Dreyer for assistance and suggestions. 1 Cf Hans Maier/Bernhard Vogel, Politik, in: Görres-Gesellschaft (ed.), Staatslexikon. Recht, Wirtschaft, Politik, vol. 7, 7th. ed. 1995, 434. In this connection the authors point to the deindividualization ofpolitics in ancient Greece. 2 Jean-Jacques Rousseau, Vom Gesellschaftsvertrag oder Grundsätze des Staatsrechts, 1977,27 ff. 10 Symposium 1996

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problem called "peace.,,3 This fonnula introduced the "Sovereign" as the centerpiece of modern politics, and it justified, simultaneously, the balance of powerconcept as the only peace fonnula in a system of sovereign states. Academic debates on the activities ofthe United Nations Security Council after 1990 remind students of political philosophy of the struggle between the citizen and the idiot, between the legislateur and the Sovereign in the history of political thought. Defenders of state sovereignty accuse the Council of ultra vires acts, e.g., the establishment of international criminal tribunals. 4 Human rights-oriented lawyers, on the other hand, praise this very practice as the dawn of a truly universal public internationallaw. s There are new debates on "humanitarian intervention" as weil as on the legislative powers of the Security Council. 6 Realist sceptics want to restrict the Council's role to prevent armed conflicts from escalating. They prefer to reserve the hard job of maintaining peace to military alliances, whereas visionaries of a "New World Order" see the Council on the road to become a nonpartisan agent of internationallaw enforcement. 7 My presentation will try to clarify those debates by the way of engaging in a critical review ofrecent Security Council practice. Furtheron I will try to put doctrinal disputes into perspective, and I will address the topic whether in the light of these fmdings art. 38 ofthe ICJ Statute provides a platfonn for the legislateur to become a player in international relations. In chapter 11, I will review the Council's practice in detennining "threats to the peace" under Art. 39 ofthe UN Charter. The following chapter will discuss five different interpretations ofthe Council's changing practice in legal doctrine, and it will add a proposal for a sixth, more comprehensive interpretation. In the light of this background, the fmal chap3 Thomas Hobbes, Leviathan, ed. by Iring Fetscher, 1966, ch. 17, 133. Cf Ernst Vol/rath, Die Rekonstruktion der politischen Urteilskraft, 1977, 114 - 123. 4 Bernhard Graefrath, Jugoslawientribunal- Präzedenzfall trotz fragwürdiger Rechtsgrundlage, Neue Justiz 47 (1993), 433. S Jost Delbrück, The Impact of the Allocation of International Law Enforcement Authority on the International Legal Order, in: id. (ed.), Allocation ofLaw Enforcement Authority in the International System, 1995, 135. 6 Cf Heike Gading, Der Schutz grundlegender Menschenrechte durch militärische Maßnahmen des Sicherheitsrates - das Ende staatlicher Souveränität?, 1996, and notes 64 and 74 infra, respectively. 7 See Graefrath (note 4); Theodor Schilling, Die "neue Weltordnung" und die Souveränität der Mitglieder der Vereinten Nationen, AVR 33 (1995), 67, on the one hand, and Klaus Dicke, Interventionen zur Durchsetzung internationalen Ordnungsrechts: Konstitutives Element der neuen Weltordnung?, Jahrbuch für Politik 3 (1993), 259; and Gading (note 6) on the other one.

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ter will address the leading question ofthis symposium: Is the Council's activity a step towards intemationallegislation in the public interest, and if so, does it infringeon the sources ofintemationallaw as codified by art. 38 ofthe ICJ Statute?

11. What are "Threats to the peace"? The Practice of the Security Council under Art. 39 of the UN Charter Art. 39 ofthe UN Charter is the key for the Security Council to enter chapter VII. It provides the Council with the power "to detennine the existence of any threat to the peace, breach of the peace or act of aggression" and, on that basis, to recomrnend or to decide on measures in accordance with Arts. 41 and 42. According to Art. 39, measures under chapter VII are not the result of a legal mechanism. They derive instead from decisions of the Council which have to be negotiated politically and which have to be taken under the voting procedures of Art. 27. None ofthe facts the Council has to detennine is legally defmed. Art. 39 leaves the Council with a broad discretion to detennine what in the interpretation of its members is a threat to the peace, a breach of the peace or an act of aggression. 8 For an analysis ofthe Council's practice this is important to note, as the results of such an analysis, whatever they are, cannot prejudice future detenninations. The legal significance ofthese results, therefore, must be evaluated very carefully.9 I will corne back to this later.

1. General Findings and Cold War Practice During its entire history the Security Council failed to develop friendly relations with the cornmunity of intemationallawyers. There was no administrative tribunal or Supreme Court urging the Council to positively evidence the legal ba8 Thomas Bruha, Security Council, in: Rüdiger Wolfrum (ed.), United Nations: Law, Policies and Practice, vol. 2, 1995, 1147, 1149 (para. 7). - On Art. 39 in general, see Jochen Abr. Frowein, Artic1e 39, in: Bruno Simma et al. (ed.), The United Nations Charter, 1995,606; Helmut Freudenschuß, Artic1e 39 ofthe UN Charter Revisited: Threats to the Peace and the Recent Practice ofthe UN Security Council, Austrian Journal ofPublic and International Law 46 (1993), I; J Arntz, Der Begriff der Friedensbedrohung in Satzung und Praxis der Vereinten Nationen, 1975. 9 Knut Ipsen, Aufdem Weg zur Relativierung der inneren Souveränität bei Friedensbedrohungen. Zu den Libyen-Resolutionen des Sicherheitsrates, in: Vereinte Nationen (VN) 40 (1992), 41, 42.

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sis of its decisions. Thus, we often have to deal with the fonnula "acting under chapter VII ofthe UN Charter" or with the fact that the Council circumscribes its detennination under Art. 39 in words different from those of the Charter. 10 In some cases it might even be doubtful whether the Council really took a detennination. It quite often employs the fonnula used by Art. 34 of the Charter that the continuance of a situation would endanger or would be a threat to international peace and security. At least in one case, however, the Council qualified this formula as a "detennination."ll One ofthe characteristics ofthe cold war period became known as the "paralyzation" ofthe Security Council. 279 vetoes until1989 kept the Council's practice on Art. 39 on quite a low level. 12 There were, however, some cases in which the Council detennined a breach of the peace, as in the atypical Korean case and in the case ofthe Falkland warY There were some cases as weIl in which the Security Council detennined a "threat to the peace". The most important were res. 221 (1966) and res. 253 (1968), both pertaining to Rhodesia. 14 In these resolutions the Council regarded the situation "resulting from assistance and encouragement to the illegal regime in Southern Rhodesia, thereby enabling it to remain longer in being" as a threat to the peace. Frowein has pointed out that the members of the Council "were apparently convinced that the danger of armed conflicts in Southern Africa would be brought about."15 In this view, the Council took quite a narrow interpretation of "threats to the peace" by relating them to the danger of an escalation of international armed conflicts. It would fit into such a narrow interpretation that in 1946 a Polish move for a Security Council resolution failed which would have detennined that the fascist regime of Spain as such posed a threat to the peace. 16 Equally in 1985 a draft resolution was vetoed by Great Britain and the United States which would have detennined that the Apartheid regime in South

Cf Frowein (note 8), para. 26. In res. 743 (1992) of21 February 1992, the Council referred to res. 713 (1991) of25 September 1991, where it used the language "that continuance ... would be a threat ..." as to adetermination. 12 Bruha (note 8), paras. 16 et seq. 13 Frowein (note 8), paras. 9 - 11. 14 Peter Tobias StolI, Conflicts, RhodesiaiZimbabwe, in: Wolfrum (note 8), vol. 1,311, paras. 15 et seq. 15 Frowein (note 8), 612. 10

11

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Ibid.

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Africa was a threat to the peace. 17 Arntz' analysis of 1975'8 seems to be correct that in the Council's view a threat to the peace exists when the use of armed force had occurred and when there is a clear and present danger of an escalation of this armed conflict across international borders. It must be emphasized, however, that during the cold war period no legal or even political defmition was developed as to what constitutes "threats to the peace." Accordingly, there were no limits to the Council's discretion in determining such a threat. Instead, at least three arguments point to a "dynamic interpretation"19 of this criterion. The fIrst argument can be taken from the Defmition of Aggression of 1974,20 in which the General Assembly, while giving at least an approximate defmition of aggression in arts. I - 3, bore in mind that "nothing in this Defmition shall be interpreted as in any way affecting the scope of the provisions of the Charter with respect to the functions and powers of the organs of the United Nations." So it ruled in Art. 4 that "the acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggressions under the provisions ofthe Charter." The Assembly, in other words, left the fIeld open for the Council to appropriately defme aggression. Following an a minore ad maius conclusion this argument is even more convincing in case ofthe wider criterion of a "threat to the peace." The second argument derives from the Defmition of Aggression, too. Why did the General Assembly defme aggression, but did not even try to defme a breach of or athreat to the peace at the same time? The Assembly did not question the fact that one ofthe most fundamental purposes ofthe United Nations is " ... to take effective collective measures for the prevention and rem oval of threats to the peace", and it based its focus on aggression for the time being on the consideration that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its catastrophic consequences, aggression should be defined at the present stage. 21

17 UN doc. S/19585 of 7 March 1985. For less cautions judgments by the General Assembly, see Peter Tobias Stall, Conflicts, South Africa, in: Wal/rum (note 8), vol. 1, 317, paras. 7 et seq. 18 Arntz (note 8). 19 Ipsen (note 9), 42, 45. 20 GA res. 3314 (XIXX) of 14 December 1974. 21 Ibid., preambular para. 5.

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The narrow focus on aggression, in other words, was an outcome ofthe political and military circumstances of the cold war. These very conditions began to change when Mikhail Gorbachev took office in 1985, and they completely evaporated after the demise ofthe iron curtain in 1989. In the famous Presidential Statement of 31 January 199222 the President of the Council stated that the members of the Security Council held that a new, more favorable international order had arisen, in which the Security Council has begun to more effectively execute its primary responsibility for the maintenance of international peace and security. Before I will go into the matter of the transformation of this statement and raise the question whether or not it materialized into a new practice of the Council after 1990, let me develop a third argument for a dynamic interpretation of threats to the peace even before 1989. It derives from Michael Reisman 's statement that since the white minority government ofRhodesia declared its independence and "sovereign" right to suppress the black majority, it has been settled UN law that gross violations ofhuman rights - which the Rhodesian government insisted were entirely "domestic" - can constitute threats to the peace and can justify action under Chapter VII. 23

This reading of the Rhodesian case as a precedent which regards internal human rights violations per se as a threat to the peace is consistent with the words of res. 253 (1968) which do not mention transboundary consequences at all as a precondition for threats to the peace. In this view, the dynamics ofthe determination in the Rhodesian case are twofold: CI) The Councillifted the veil of domestic affairs and treated an illegal regime as a concern of the international community in one ofthe few instances where the cold war enabled it to do so. The Council followed (2) the rationale of the Charter's concern with peace and security rather than with security from arrned attack and fighting. The Council' s practice after 1990, which will be analyzed in the following section, seems to favor Reisman 's interpretation.

2. Dynamic Interpretation

0/ "Threats to the Peace" after 1990

It seems to be appropriate to start the analysis of the more recent practice of the Council with some statistical data. Between January 1990 and January 1995, the Security Council rendered more than 30 resolutions which contained determina22 UN doc. S/23500 of 31 January 1992. Cf UN doc. SIPV. 3046 and Bruha (note 8), para. 25. 23 Michael Reisman, Haiti and the Validity of International Action, AJIL, vol. 89 (1995),83.

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tions under Art. 39. 14 ofthese resolutions were not repetitive. Although I am inclined to follow the maxim of "iudex non calculal, " I consider this sheer number to be significant proofthat the Council took seriously the announcements as made by the Presidential Statement of 1992. 24 Among those 14 resolutions there is not one referring to "aggression." In res. 660, which in many regards can be labeled as the "mother of all resolutions,"25 the Iraqi aggression against Kuwait was determined a "breach ofthe peace and international security."26 Ten weeks later the Council determined that the invasion and annexation of Kuwait was "an immediale threat to peace and international security."27 From that time on the Couneil put aggression and breach of the peace aside and focused on "threats to the peace" instead. While it is evident in case of res. 674 that the danger of an escalation of the armed conflict between Iraq and Kuwait constituted a "threat to the peace,"28 the situation is slightly different with regard to res. 688 of 5 April 1991. In this resolution the Council condemned the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region. 29

This formulation does not make it absolutely clear whether the Council saw the danger of refugee movements across international borders or the repression of Iraqi civilians per se as constituting the threat. A Presidential Statement of November 1992 declared that in para. 2 of res. 688 the Council demanded that Iraq should "contribute" to the elimination of a threat to peace and international security by bringing to an end the repression ofthe civilian population. 30 Put differently, the Council ordered the govemment of Iraq to refrain from violating fundamental human rights of its own citizens. It did not order it to prevent transboundary flows ofrefugees or outside intervention from Iranian or Turkish territory.

24 For a more critical assessment see Helmut Freudenschuß, Beschlüsse des Sicherheitsrates der VN nach Kapitel VII: Anspruch und Wirklichkeit, 1995. 25 Frederic L. Kirgis. The Security Council's First Fifty Years, AJIL, vol. 89 (1995), 506,524, ascribed motherhood to SC res. 687 (1991). 26 SC res. 660 (1990) of2 August 1990. 27 SC res. 674 (1990) of29 October 1990 (emphasis added). 28 For an analysis ofthe conflict see Christiane E. Philipp/Rüdiger Wolfrum, Conflicts, Iraq/Kuwait, in: Wolfrum (note 8), vol. 1,261. 29 SC res. 688 (1991) of5 April 1991. 30 UN doc. S/24836 of 11 November 1992, para. 29.

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In res. 713 31 the Council reacted to the anned assault ofthe Yugoslav Federal Forces on Croatia and Slovenia following their declarations of independence. At that stage ofthe conflict the Council assumed that the danger of outside intervention would increase the threat to the peace in Yugoslavia. Resolution 743, however, by which the Council endorsed its detennination ofres. 713, did not refer to the danger of outside intervention. Rather, the Council addressed "the situation in Yugoslavia" pure and simple. Resolution 743 supports Frowein 's assertion that in February 1992 it seemed "to be accepted that extreme violence within astate can generally be qualified as a threat to the peace.'>32 In January and March 1992, the Council made two detenninations concerning international terrorism and Libya. 33 Resolution 731 of21 January 1992 detennines "acts of international terrorism" as threats to peace and international security. This general detennination was endorsed by the General Assembly in 1994 which stated in art. 2 ofthe "Declaration on Measures to Eliminate International Terrorism"34 that terrorist activities, methods and practices are a serious violation of the purposes and principles ofthe United Nations and that they pose a threat to international peace and security. The general detennination was applied to Libya in res. 748, in which the Council referred to art. 2(4) ofthe UN Charter. In the Council's interpretation this article implied the obligation of states to refrain from organizing or tolerating acts ofterrorism. In this context, the Council detennined that the failure by the Libyan govemment to demonstrate by concrete actions its renunciation ofterrorism and in particular its continued failure to respond fully and effectively to the requests in resolution 731 (1992) constitute a threat to international peace and security.3S

This detennination was confrrmed by res. 883 of 11 November 1993. In the Libyan case, the Security Council explicitly stated that a violation of international law possibly constitutes a threat to the peace: namely, a violation ofthe purposes and principles, and in particular of Art. 2(4) of the UN Charter as weIl as noncompliance with a Security Council resolution taken under chapter VII. Is there

31 For the drafting history see Freudenschuß (note 8), 11. The history ofthe conflict is drawn by Christiane E. Phi/ipplWolfPlesmann, Conflicts, Yugoslavia, in: Wolfrum (note 8), vol. 1,338 - 349. 32 Frowein (note 8), 611, para. 19. 33 For background information see Ipsen (note 9); Freudenschuß (note 8), 18 - 20. 34 GA res. 49/60 of 9 December 1994. 3S SC res. 748 (1992) of31 March 1992. Cf Doris König, Terrorism, in: Wolfrum (note 8), vol. 2, 1220, para. 13.

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further evidence for a tendency towards such legally principled determinations under Art. 39? Resolutions 746 and 794 (1992) determined the situation in Somalia to be a threat to the peace. 36 While res. 746 and three following resolutions with identical wording37 regarded the situation in Somalia to be a threat to the peace, res. 794 is more explicit. The Council determines that the magnitude ofthe human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution ofhumanitarian assistance, constitutes a threat to international peace and security .

Tomuschat concludes from this resolution that the Security Council can take measures under chapter VII in case of a general state of anarchy in a given country even in the absence of transboundary consequences and may indeed have to take them. 38 In three following resolutions on Somalia the Council determined that the situation in this country remained a threat to the peace. 39 One should note that the Council, as it did in other cases,40 added a time frame to the determination under Art. 39. In res. 897 (1994) it stated again that the situation "remains" a threat to the peace, and it referred more specifically to "the unique character of the present situation in Somalia including the non-existence of a government."41 This can be taken as a hint by the Council (1) that it is prepared only in extraordinary situations to take measures under chapter VII to pacify internal conflicts and (2) that the "absence of a government" establishes such a situation. Both the Preambula of the Universal Declaration of Human Rights and art. 2 of the International Covenant on Civil and Political Rights establish the fundamental right ofhuman beings to live under a government. This fundamental right is a precondition for citizens to enjoy all other human rights; it constitutes the difference between citizens and

36 SC res. 746 (1992) of 17 March 1992; SC res. 794 (1992) of3 December 1992. On Somalia see Freudenschuß (note 8), 20 - 22; Klaus Dicke, Das Bemühen der UNO um Frieden und Sicherheit, Jahrbuch für internationale Politik 1993/94 (forthcoming), with further references. 37 SC res. 751 (1992) of24 April 1992; SC res. 767 (1992) of27 July 1992; SC res. 775 (1992) of 28 August 1992. 38 Christian Tomuschat, Die internationale Gemeinschaft, AVR 33 (1995), 1, 12. 39 SC res. 814 (1993) of26 March 1993; SC res. 837 (1993) of6 June 1993 and SC res. 886 (1993) of 18 November 1993. 40 E.g., SC res. 816 (1993) of31 March 1993. 41 This wording is repeated by SC res. 923 (1994) of25 May 1994 and SC res. 954 of 9 November 1994.

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"displaced persons.,,42 In conclusion, measures under chapter VII to pacify situations which are established by the absence of governments can be regarded as legally principled. In February 1993, the Council was even more specific with regard to human rights and humanitarian law. The extension ofUNPROFOR was based on the detennination that the non-compliance with obligations deriving from armistice agreements had created a situation which established a threat to the peace. 43 Three days later, the Council established the Tribunal on the fonner Yugoslavia. Again it detennined that the situation there was a threat to the peace. This time, the Council reasoned as folIows: Expressing once again its grave a1arm at continuing reports ofwidespread violations of international humanitarian law occurring within the territory ofthe former Yugoslavia, inc1uding reports of mass killing and the continuance of the practice of 'ethnic c1eansing'.44 This detennination is on the safe ground of an erga omnes obligation of states to prosecute war criminals,45 and it fmds another base in the right of any state "to pursue international remedies against any other state for a violation ofthe customary internationallaw ofhuman rights" as the Restatement ofthe Law ofForeign Relations of the United States puts it. 46 Another "extraordinary situation" arose after the Haitian military disposed of the elected PresidentJean-BertrandAristide in a coup d'etat in 1991. 47 The Security Council condemned this coup and rendered seven resolutions which deter42 Cf Hannah Arendt, Es gibt nur ein einziges Menschenrecht, Die Wandlung 4 (1949), 754 - 770; Klaus Dicke, Wir, die Völker der Vereinten Nationen - fest entschlossen, ... unseren Glauben an die Grundrechte, in: Stephan Habe (ed.), Die Präambel der UNOCharta, 1996,47. 43 SC res. 807 (1993) of 19 February 1993. 44 SC res. 808 (1993) of22 February 1993. Cf sc res. 827 (1993) of25 May 1993: "Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the territory ofBosnia and Herzegovina, inc1uding reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance ofthe practice of 'ethnic c1eansing', inc1uding for the acquisition and holding of territory". 45 Dietrich Schindler, Die erga omnes-Wirkung des humanitären Völkerrechts, in: U1rich Beyerlin et al. (eds.), Recht zwischen Umbruch und Bewahrung. Festschrift für RudolfBernhardt, 1995,211. 46 Quoted from Schindler (note 45), 206. 47 Freudenschuß (note 8), 24 - 27; Dicke (note 36).

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mined the situation in Haiti to be a threat to the peace. 48 In formulating the embargo resolution 841 of June 1993 the Council was vague and cautious: It referred to the humanitarian crisis and to possible flows of refugees caused by a climate of fear and economic disorder. It recognized, however, that the gravity ofthe situation required an "exceptional response" and it determined that under those unique and extraordinary circumstances the continuance of this situation would threat peace and the international security in the region. 49

In res. 873 and 875 the Council went one step further: This time it determined that non-compliance with the Governors Island Agreement by the military established a threat to the peace. Resolution 917 of May 1994 which strengthened the embargo measures, additionally referred to non-compliance with Security Council resolutions. Finally, res. 933, 940, and 975 stated that the situation in Haiti continued to be a threat to the peace. In a brilliant reply to critics of the measures taken by the Security Council in the case of Haiti, Michael Reisman pointed out that the Council hardly departed from the precedent set in the Rhodesian case and that it did not violate the sovereignty of the Haitian people. so Even if there were no previous decisions by the Council that internal violations ofhuman rights constitute a threat to the peacehere they are. To complete the pieture, I will sum up some further determinations by the Council under Art. 39. In res. 813 (1993) it determined that the deterioration of the situation in Liberia constitutes a threat to the peace. Resolutions 853, 886, 900, and 913 and others to follow stated that the situations in Karabakh, Somalia, and Bosnia and Herzegovina "continued" to establish threats to the peace. Resolution 864 B of September 1993 determined the situation in Angola as caused by military acts of UNITA a threat to the peace. At least in the cases of Somalia and Angola, the determination again derived from an evaluation of internal conflicts by the Council. The last case to be approached is Rwanda. While the Council cautiously indicated in res. 846 of June 1993 that new fights in Rwanda could have negative consequences for the situation and could threaten peace and international security, res. 929 ofJune 1994 as weIl as res. 955 ofNovember 1994 stated that the scope ofthe humanitarian crisis in Rwanda constitutes a threat to the peace. 48 SC res. 841 (1993) of 16 June 1993; 873 (1993) of 13 October 1993; 875 (1993) of 16 October 1993; 917 (1994) of6 May 1994; 933 (1994) of30 June 1994; 940 (1994) of 31 July 1994; 975 (1995) of30 January 1995. 49 SC res. 841 (1993) of 16 June 1993. so Reisman (note 23), 83.

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As a frrst assessment of detenninations taken by the Security Council under Art. 39 ofthe UN Charter after 1990, the following results have to be pointed out: (1) Against the Council's practice before 1990, detenninations under Art. 39 significantly increased in number. With the exception of res. 660, the Council recognizes "threats to the peace" and does not refer to "aggression" or to a "breach of the peace." (2) A remarkable number of cases deal with internal situations. Although the Council is inclined to refer to transboundary effects of conflicts whenever it seems possible and although it requires "unique" and "extraordinary" circumstances to detennine international situations to constitute tltreats to the peace, it is a weIl-established practice ofthe Council to assess internal conditions within astate as to whether or not they constitute tltreats to the peace. (3) Although the Council is neither very explicit nor precise in referring to legal bases for detenninations, it recognized violations of Art. 2(4) ofthe Charter as constituting tltreats to the peace, such as terrorism or extreme violence within astate; additionaIly, it refers to violations of the principles and purposes ofthe Charter, systematic and gross violations offundamental human rights and of humanitarian law, and violations of armistice agreements or peace treaties as weIl as violations of Security Council resolutions. (4) Sometimes, detenninations of threats to the peace are taken with a time frame attached: The continuance of a situation possibly could establish, or a situation remains to establish a tltreat to the peace. Before going on to evaluate these results in the light of the debate on the Security Council' s practice in legal doctrine, one has to take into consideration the reactions to this practice on part of the international community. Are there objections against the practice of the Council, does the international community reject it as illegal, or does it accept it as law?

3. International Statements on Art. 39

Let me start with the observation that in the decision-making processes leading to the resolutions referred to above some members ofthe Non-Aligned Movement (NAM) abstained or even voted in the negative. 51 AdditionaIly, there are numerSI Cuba voted against res. 687, Cuba, Zimbabwe and Yemen voted against res. 688. Abstentions occurred i.a. on res. 687 (Yemen, Ecuador); 688 (China, India); 770 (China,

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ous statements on part ofthe NAM or some ofits members before the UN General Assembly or in front of the Security Council criticizing Security Council resolutions. They mainly pertain to these pointS: 52 (1) Measures by the Security Council addressing internal situations are hold to be in violation ofthe sovereignty of states. This holds true in particular for res. 688, for so-called "humanitarian interventions," and forthe establishment ofwar criminal tribunals. (2) The Council's composition is regarded as delegitimizing it to take binding decisions. While one may have reasonable doubts as to the legal validity of that assertion, it is important nevertheless insofar as it acknowledges the legislative powers of the Council at least in principle. Otherwise, it would make no sense to call for a more representative composition of the Council. Although, however, a merely critical attitude toward the recent practice of the Council seems to be dominant on the side of the NAM, the non-aligned countries are far from sharing a consensus on the Council's policy. To the contrary: Freudenschuß points to the fact that frictions within the NAM in certain cases enabled the Council to take action, whereas in other cases NAM objections blocked decisions. 53

On the other hand, there is a fair number of statements by international bodies or constitutional organs of states which support the Council's practice. A fIrst group of statements to be taken into consideration are the Presidential Statements ofthe Security Council. They became important enough to introduce a new symbol ofUN documents. As noted above, the most signifIcant one is the statement of 31 January 1992, following the summit meeting of the members of the Security Council. The Council declared that non-military forms of instability in economic, social, humanitarian, and ecological fIelds have become threats to the peace and international security. The members ofthe Council declare themselves prepared to regard systematic and gross violations of human rights, violations of the ecological environment, and the proliferation of weapons of mass destruction as establishing threats to the peace. 54 In aseries of statements which respond to the

India, Zimbabwe); 748 (China, India, Morocco, Zimbabwe, Cape Verde); 940 (Brazil, China); 929 (Brazil, China, New Zealand, Nigeria, Pakistan). Cf Freudenschuß (note 8); id. (note 24); Bruha (note 8), para. 27. 52 See Freudenschuß (note 24), 31 et seq., notes 24, 34, 57; K. P. Saksena, Reforming the United Nations. The Challenge ofRelevance, 1993, 173 et seq.; Marie-Luise Pörtner, Die Blockfreien-Bewegung seit 1989, MA-thesis Mainz 1996. 53 Freudenschuß (note 24), 4 et seq. 54 UN doc. S/23500 of 31 January 1992. With regard to the proliferation of weapons of mass destruction, cf UN doc. SIPRST/1995/9 of22 February 1995.

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"Agenda for Peace," this view was confmned. 55 Added to that, the Council holds the view that under certain circumstances there can be an interdependence between the need for humanitarian aid and a threat to the peace. Humanitarian crises such as massive displacements of people might develop into threats to the peace. 56 With regard to Burundi, "undemocratic" methods like intimidation, guerilla warfare or subversive political activities are recognized to establish a threat to peace, stability and national reconciliation. 57 These statements endorse the Council's practice as analyzed above. They provide further evidence to the fact that the members ofthe Council accept this practil;e as law. Additionally, they reveal that the Security Council draws its conclusions from a broad understanding of peace, which includes the internal behaviour and situation of states, including "democratic" practices. The Council's practice was given additional support by the European Parliament. In aresolution of April 1994, the European Parliament called for a "right of humanitarian intervention." In view ofthe danger of overburdening the UN with the increasing frequency of demands for peace-keeping operations, the Parliament, i.a., states that "current internationallaw does not necessarily represent an obstacle. to the recognition ofthe right ofhumanitarian intervention."5B It went on to enumerate a set of conditions under which astate or a group of states could legally intervene, even without authorization by the Security Council. The so-called Bertens Report, which led to this resolution, referred to the Council's res. 688 as a precedent for humanitarian intervention. 59 Similar support for the Security Council came from the Deutsche Bundestag. In aresolution celebrating the 50th anniversary ofthe United Nations, the German Parliament asked the Council to react to threats to the peace and to international security established by systematic and gross violations of fundamental human rights, devastation of the ecological

55 E.g., UN docs. S125344 of26 February 1993; S/25696 of30 April 1993; SIPRST/ 1995/9 of 22 February 1995. 56 UN doc. S/25334 of26 February 1993. 57 UN doc. SIPRST/l995/1O of9 March 1995. 58 ABI. EG C 128/225, para. 2. 59 European Parliament, Comittee on Foreign Affairs and Security, Working Document on the right ofhurnantitarian intervention of II January 1994, doc. EN\DT\240\240295, 7 et seq. For a legal evaluation ofthis document and the Parliament's resolution see, Klaus Dicke, Friedenswahrung durch Interventionen? Die Notwendigkeit eines internationalen Ordnungsrechts, Internationale Politik 12/1995,21.

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basis for human life, the proliferation of weapons of mass destruction, and international drug trafficking. 6O As far as Art. 39 of the Charter is concerned, two arguments call for further discussion: (1) the argument that the dynamic interpretation ofthreats to the peace by the Council is or might be in conflict with the sovereignty of states, and (2) the argument that such a dynamic interpretation can be justified either by the notion of peace as established by the Charter or by a newly emerging "law of humanitarian intervention." Both arguments have been picked up by legal assessments ofthe Council's more recent practice in scholarly literature.

111. Answers in Legal Doctrine In legal doctrine, the recent practice of the Security Council has evoked five interrelated debates, each of which provides for different legal interpretations and assessments. The following section will provide a closer look at them as far as the Council's determinations of"threats to the peace" are concerned.

1. Security Council Practice and the Sovereignty ofStates61

As I mentioned above, critics ofthe Council's recent practice hold that at least some resolutions were in violation ofthe sovereignty ofstates. In particular Schilling argued that the powers of the Security Council were at least partly antithetical to this concept. Determinations under Art. 39 had binding force if and only if they were based upon the legal criterion of a growing danger for armed conflicts to occur or to escalate. Held to this measurement, the Council' s decisions on Rhodesia, on Somalia, and on Haiti were unlawfu1. 62 Schilling, however, neglects to precisely defme his understanding of sovereignty, but the gist of his argument seems to hold (1) that it is the sovereign will of states which constitutes international 60 50 Jahre Vereinte Nationen - eine große Vision schrittweise verwirklichen, BT Drs. 13/2744 of24 October 1995. 61 Jost Delbrück, Staatliche Souveränität und die neue Rolle des Sicherheitsrates der Vereinten Nationen, Verfassung und Recht in Übersee 1993,6; Gading (note 6), 182 et seq. (with further references); Graefrath (note 4); Schilling (note 7); Christoph Schreuer, The Waning of the Sovereign State: Towards a New Paradigm for International Law?, EJIL, vol. 4 (1993), 447. 62 Schilling (note 7), 91.

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obligations and (2) that the Security Council could be abused by hegemonie powers to pursue their particular interests. The Council' s application of legal obligations not derived from the sovereign will of the states as weIl as abuses of the Council would violate the sovereignty ofthird states. The first argument is in sharp contrast with the notion of internationallaw altogether. The UN Charter enshrined the "sovereign equality" of states rather than "sovereignty" pure and simple. It did so because it regards sovereignty to be a legal concept. "Legal" in this context means that the sovereignty of state A has to coexist with the sovereignty of any other state, and this is possible only under a general rule of law. The UN Charter, therefore, established a concept of "sovereignty under law" which, i.a., opened the fIeld for international organs to act on behalf of the community of sovereign states. 63 Art. 24(1) of the Charter explicitly refers to that argument when it states that the Council, under its primary responsibility for the maintenance of international peace and security, acts on behalf of the members ofthe United Nations. That does not mean, however, that the Council is absolutely free to arbitrarily enact as law national interests of members of the Council. But it does mean that for a legal assessment ofthe Council's decisions the main question is no longer whether or not decisions taken by the Council are in violation of a state's sovereignty; but rather the question is whether or not the Council's decisions rest upon such bases which reasonably can be expected to fmd the acceptance by all states as a rule of law. I will elaborate on this argument later. The second argument put forth by Schilling is even weaker. Yes, the Security Council can be abused, and yes, the majority ofnonaligned countries fear such abuses in view ofthe rather strong position ofthe "P 3" in the decision-making process of the Council after 1990. But, first, I have never heard that possible abuses of any legal norm can be taken as an argument against its validity. Second, Art. 27(3) of the Charter provides for a procedure in which fIve states have a veto power. That does not eliminate the dangers of abuse, but it is a remedy to reduce these dangers. And third, at this point we have to make a first concession to Thomas Hobbes: It is completely unrealistic to assume that any political decision is taken without the involvement of strong interests. The pertinent problem is, rather,

63 For an elaboration ofthis argument see, Klaus Dicke, Interventionsoptionen der Staatengemeinschaft im Bereich des Menschenrechtsschutzes, in: Hartmut Jäckel (ed.), Ist das Prinzip der Nicht-Einmischung überholt?, 1995,95,96 et seq.; id.. Effizienz und Effektivität internationaler Organisationen, 1995, 319 et seq.

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whether those interests apriori are "idiotie" or whether under internationallaw a "civic" understanding of interests is possible. The debate on Security Council practice and the sovereignty of states thus leads us to the following questions: (l) Where does the concept of "sovereignty under law" as referred to above leave the particular states? Does it not mean "sovereignty lost"? (2) What is the status of interests in an internationallaw context?

2. Humanitarian Intervention In interpreting recent Security Council practice, a second debate emerged, reviving, widening, and sometimes confusing the old concept of"humanitarian intervention."64 Instead of going into the details I will rather summarize the results: The first result is that the principle of non-intervention can no longer be regarded as a protective shield for arbitrary behaviour of states. The scope of matters lying within the domestic jurisdiction of states has been reduced significantly by the growing net ofinternationallegal norms after World War 11. The second result is that with the progressive development of "international organization" after the Second World War the international community65 itselfbecame an actor in international relations, thus increasing the concem of the international community with matters previously under domestic jurisdiction. To name but one example: particularly in the field ofhuman rights protection the international community has established organs to monitor implementation of and compliance with international human rights. 66 In this context, Security Council resolution 688, the resolutions on Somalia, Rwanda, the former Yugoslavia, and Haiti let the questions arise as to whether the international community was entitled to use force to protect the population of a 64 Jost Delbrück, A Fresh Look at Humanitarian Intervention under the Authority of the United Nations, Indiana Law Journal, vol. 67 (1992), 887; Klaus Dicke, Interventionen (note 7); id., Friedenswahrung (note 59); Duo Kimminich, Der Mythos der humanitären Intervention, AVR 33 (1995), 430; Richard B. Li//ich, The Role ofthe UN Security Couneil in Protecting Human Rights in Crisis Situations: UN Humanitarian Intervention in the Post-Cold War World, in: Tulane Journal of International and Comparative Law, vol. 4 (1995), 1; all with further references. 6S Tomuschat (note 38). 66 See Rüdiger WolJrum, Obligations under Public International Law to Implement International Rules: Mechanisms to Monitor such Implementation, in: Bernd Baron von MaydelI/Angelika Nußberger (eds.), Social Protection by Way ofInternational Law. Appraisal, Deficits and Further Development, 1996,87; Dicke, Interventionsoptionen (note 63).

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state from systematic and gross violations ofhuman rights. Particularly, this topic was discussed under the heading of"humanitarian intervention." Kimminich, 67 who seems to be quite skeptical with regard to humanitarian intervention, correctly pointed out that the problem of humanitarian intervention results from the fact that the UN Charter does not vest in any organ the right to use military force against astate, except under the conditions enshrined in Art. 39. He acknowledges that a "collective" humanitarian intervention is lawful ifthe Security Council determines a violation of human rights to constitute a threat to the peace and if it orders measures under chapter VII. This is the third and most important result ofthe debate on humanitarian intervention with regard to Art. 39. It underlines that transboundary consequences are not a necessary element to defme threats to the peace. In this context, Wolfrum, Heim, and Philipp observed that it would be meaningless to except measures of enforcement under chapter VII from the prohibition to intervene in the domestic jurisdiction of any state as does Art. 2(7) if this exception would not include such measures taken on grounds which in a traditional view fall within the domestic jurisdiction of states. 68 From this reasoning follows that Art. 2(7) supports the Security Council's dynamic interpretation of threats to the peace. Thus, under the provisions of chapter VII, the international community has a right to enforce human rights even against astate which holds that human rights implementation is within the domestic jurisdiction of states. For several reasons, however, it does not seem to be appropriate to continue in the vein of this debate. The concept of "humanitarian intervention" leaves too many questions open: Is there a right of humanitarian intervention beyond chapter VII? What are the criteria to defme it? Is there a right of astate or a group of states to intervene in case of Security Council inaction? While I am not inclined to answer those questions in the negative, I nevertheless hold that the application of the concept of "humanitarian intervention" cannot rule out the danger that a "just war" approach will be reinvented by interested states.69 Additionally, the rhetoric of a "law of humanitarian intervention" may

Note 64. Rüdiger WolfrumiUrsula Heinz/Christiane Philipp, Zweiter Golf-Krieg: Anwendungsfall von Kapitel VII der UN-Charta, VN 39 (1991), 126; cf Delbrück (note 64),897. 69 The incompatibility of any just war-approach with collective security under the Charter is pointed out by Jost Delbrück/Klaus Dicke, The Christian Peace Ethics and the Doctrine of Just War from the Point ofView ofIntemational Law, GYIL, vol. 28 (1985), 194. 67

68

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raise expectations which the international system is not yet prepared to fulfill. 70 On the other hand, there is no doubt that the debate on humanitarian intervention provides for a legally sound evaluation of recent Security Council practice as far as the enforcement of human rights is concerned. This urges us to make another concession to Thomas Hobbes: Any legal system needs an effective law enforcement, and so does the international community on its way towards constitutionalization. But the question remains open as to whether enforcement is merely a necessary element to defme law or whether it is a conclusive reason as weH.

3. The Coneepl 0/Peaee A third discussion goes to the notion ofpeace as underlying Art. 39 determinations. 71 Recent practice of the Security Council reveals a clear tendency towards the application of a concept of peace which can be labelled as "peace under law.'>72 The view that the UN Charter defmes peace to be no more than security from armed attack or the prevention of escalation of armed conflicts does not square with recent Security Council practice. Instead, the Council regards peace to be a process towards not necessarily "friendly" but necessarily legal international re'ations73 governed by international "constitutional" law or by public interest norms, such as the prohibition of the use of force, respect for fundamental human rights, the prohibition of genocide, racial discrimination, eIe. The list of public interest norms which are constitutional elements of peace is very short, but certainly it goes beyond the prohibition of the use of force in international relations; it spells out necessary elements of a "peace-Ioving" behavior of states. Following this concept of"peace under law" the Council's more recent practice un-

Cf Freudenschuß (note 24), 17 et seq. Bruha (note 8), para. 25; Jost Delbrück/Klaus Dicke, Zur Konstitution des Friedens als Rechtsordnung, in: Uwe NerlichITrutz Rendtorff(eds.), Nukleare Abschreckung - Politische und ethische Interpretationen einer neuen Realität, 1989,797; Dieter Senghaas/Eva Senghaas, Si vis pacem, para pacem. Überlegungen zu einem zeitgemäßen Friedenskonzept, Leviathan 20 (1992), 230 et seq.; Jost Delbrück (ed.), Völkerrecht und Kriegsverhütung, 1979. Cf David P. Fidler, Caught between Traditions: The Security Council in Philosophical Conundrum, Michigan Journal of International Law, vol. 17 (1996), 411. 72 Delbrück/Dicke, Zur Konstitution (note 71). 73 Cf Otfried HöjJe. Ausblick: Die Vereinten Nationen im Lichte Kants, in: id. (ed.), Immanuel Kant: Zum ewigen Frieden, 1995,245, and Klaus Dicke, Das Weltbürgerrecht soll auf Bedingungen der allgemeinen Hospitalität eingeschränkt sein, in: id.lKlaus-Michael Kodalle (eds.), Republik und Weltbürgerrecht (forthcoming). 70 71

11*

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derlines the requirement ofpeace-promoting domestic conditions, e.g., respect for human rights and a minimal standard of democratic institutions.

4. International Legislation The establishment of"save havens" in the former Yugoslavia and the development of comprehensive peace plans saw the Council developing a role as an internationallegislator in order to maintain and preserve international peace and security.14 Other cases in point are the resolutions establishing war crimes tribunals on Yugoslavia and on Rwanda. 15 The Security Council's legislative competence is based on Arts. 24 and 25 and on chapter VII ofthe Charter, but it is limited to its primary responsibility for the maintenance of international peace and security. If the Council can react to "threats to the peace" under this responsibility, this implies the power to determine how to eliminate these threats. There is nothing to prevent the Council from broadly determining that certain activities per se constitute threats to the peace and, accordingly, are prohibited. The first resolution on Libya16 and the Council's concern with the proliferation ofnuclear weapons11 are cases in point. Nor is there an obstacle preventing the Council from imposing armistice provisions, territorial settlements, or comprehensive peace-building regimes, as it did successfully, e.g., in the Namibian case. But that does not mean that the Security Council is on the verge of assuming the non-existing role of a legislative organ to the international system at all. The resolutions on the details of sanctions regimes reveal, to name just one example, the overburdening of the Council with the details of the everyday functioning of such regimes. 18 Furthermore, the Council's legitimacy as a legislator is challenged 14 Dicke (note 36); Surya P. Subedi, The Doctrine ofObjective Regimes in International Law and the Competence ofthe United Nations to Impose Territorial or Peace Settlements on States, GYIL, vol. 37 (1994), 162, 197 et seq.; Kirgis (note 25),520 et seq. 1S Graefrath (note 4); Herwig Roggemann, Der Internationale Strafgerichtshof der Vereinten Nationen von 1993 und die Balkankriegsverbrechen, ZRP 1994, 297; Christian Tomuschat, Ein internationaler Strafgerichtshof als Element einer Weltfriedensordnung, EA 1994,61. 16 SC res. 748 (1992) of31 March 1992. 77 Li/lieh (note 64). 18 Paul Conlon, Die fragwürdige Sanktionspraxis der UNO, Außenpolitik 1995,327; cf Freudenschuß (note 24), 26 et seq.

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by critical voices that point to its composition, which is not representative but mirrors the hegemonic structure ofthe current international system, and to a constitutionallack of judicial control of decisions taken by the Council. 79 In the long run, this calls for reforms. But for the time being, an important improvement of the Council's activities and ofits legitimacy and acceptance as weIl could result from establishing appropriate subsidiary organs, such as regional chambers, which would, i.a., allow for a broader participation by states in the Council's day-to-day work. I have elaborated on that topic elsewhere. 80 There is, however, one remedy for the Council which is completely independent from its composition. It could act as a legislateur when legislating. That would require the Council to take more "principled" decisions, as Kirgis 81 put it, and to precisely base them on a reasoning which takes into account the contractual criterion of the coexistence of the rights of states under the condition of the respect for sovereign equality and for a general rule of law. Such a practice would transform debates on the Council' s legitimacy into debates on the legitimacy of international law itself.

5. The Council's Role in the En/orcement 0/Public Interest Norms A tifth debate focusses on the Council's role in the enforcement ofpublic interest or of erga omnes norms. Under this discussion, I can resume Eibe Riedel's presentation and the presentations and statements during the last two Kiel symposia as weIl. 82 The Council' s practice in the cases of Rhodesia, Kurdistan, Libya, Somalia, and Haiti demonstrated that under a concept of "peace under law" it becomes necessary to acknowledge public interest norms with binding force erga omnes. On the other hand, the Council's practice indicates that the admittedly incremental "public internationallaw," as Bruno Simma put it, at least in some cases found the "public authority enabling it to counter violations" perhaps not yet on a regular basis but "on an (increasingly) objective manner."83 79 Lillich (note 64), 11 et seq., with further references; David D. Caron, The Legitimacy ofthe Collective Authority ofthe Security Council, AJIL, vol. 87 (1993), 552. 80 Klaus Dicke, Comment, in: Delbrück (ed.), Allocation (note 5), 57. 81 Kirgis (note 25),517. 82 Jost Delbrück (ed.), The Future of International Law Enforcement, New ScenariosNew Law?, 1993; id. (ed.), Allocation (note 5); Eibe Riedel in this volume ... 83 Bruno Simma, Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations erga omnes?, in: Delbrück (ed.), The Future

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As it has become a ritual exercise at Kiel symposia to report on the state of affairs as far as erga omnes norms are concerned, I can limit my remarks in this respect to the statement that there are erga omnes norms. I will add, however, two observations on more recent developments. With regard to humanitarian law, Dietrich Schindler argues that the obligations which were originally treaty-based under the Geneva Conventions have become by now customary law. They meet, accordingly, the erga omnes criteria as described by the ICJ in Barcelona Traction. Thanks to the Nicaragua Judgment ofthe ICJ, the rules according to art. 3 ofthe Geneva conventions can be regarded as "fundamental general principles of humanitarian law."84 Thus, when the Security Council bases adetermination under Art. 39 on the erga omnes character ofhumanitarian law, it is on the safe side of internationallaw. Secondly, the ICJ held in the East Timor judgment the opinion that "Portugals assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable." It held as weil, however, that erga omnes norms cannot prevail over the rule of consent to jurisdiction as far as the ICJ is concerned. Therefore, it continues: "The Court could not rule on the lawfulness of the conduct of aState when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes. "85 This latter fmding is hardly in line with the notion of erga omnes norms at all. It shows, however, that we really witness aperiod oftransition from an internationallaw based on the sovereign will ofstates towards a universal public internationallaw. 86 The ICJ's obiter dictum confrrms the existence of erga omnes norms, it makes clear that self-determination is a right erga omnes, and it opens a new perspective for the Security Council to determine that violations of erga omnes norms can constitute a threat to the peace: as opposed to the Court, the Council can act. These observations lead to the conclusion that in the case ofviolations of erga omnes norms the Security Council can take a prima fade judgment that a threat to the peace exists as its point of departure. If the Council does indeed come to that very determination, it is entitled to order measures to enforce the erga omnes norm in question. As the case of UNITA and Angola indicated, the Council's power to enforce erga omnes norms is not limited to states but includes other sub(note 82), 135. 84 Schindler (note 45),201. B5 leI Reports 1995, 90, 102. 86 Delbrück (note 5); Jonathan I. Charney, Universal International Law, AJIL, vol. 87 (1993), 529.

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jects ofinternationallaw, too. The Council's enforcement powers might conceivably become even more important in a world of conflicts between states and other subjects of internationallaw.

6. Towards a Constitutional/y Bound Legislation in the Interest olthe International Community To conclude this review of doctrinal assessments of recent Security Council practice, it seems appropriate to open a sixth debate which takes up several elements ofthe ones analyzed above. As far as the maintenance ofpeace and international security is concerned, the Security Council' s practice should be analyzed as a constitutionally bound legislation in the interest of the international community. This approach derives from the observation that the Council enjoys a limited legislative power in the area of peace and security and that it applies a concept of peace defined as a process of establishing and further developing an international legal order. Its "legislative" power includes the setting of guidelines for peace settlements and the establishment of procedures necessary to implement such legal obligations which are essential for lasting peaceful solutions. Such procedures may include basic elements of democracy, the imposition ofreparation regimes, and, ifnecessary and appropriate, settings under which parties to a conflict negotiate agreements and peace treaties. Secondly, the Council should indeed render more principled determinations under Art. 39 by applying the contractual criterion as to whether the determination is based upon the rule of law and on the respect for the sovereign equality of states. This would not meet demands for legal control ofthe Council's activities. But it would be a precondition for an improved legal control and it would contribute to a more rational debate of its activities. Thirdly, the suggested discussion would open the field for a more legally principled debate on reforms ofthe institutional framework ofthe UN. Decisions as to what constitutes the interest ofthe international community and what precisely is the demand of "peace under law" do require a more "representative" decisionmaking process than the current procedures of the Security Council provide for. Again, it is a precondition for institutional reforms that the would-be reformers agree on the guidelines for those very reforms.

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My concluding remarks will center on the topic which guidelines derive from the requirement of"representative" decisions or of decisions in the interest ofthe international community.

IV. Conclusion: The Interest of the International Community a New Source of International Law? As a ftrst result, the review ofthe Council's practice indicated that the international system is in need of a more comprehensive legislation. As far as the maintenance of international peace and security is concerned, the Security Council is legally justifted to fulftIl that function. Neither the legal basis ofthis very function nor the erga omnes norms which the Council referred to in determiningthreats to the peace go beyond the sources of internationallaw as enshrined in art. 38 of the IC] Statute. The more the Councillegislates, however, the more a political as weIl as a constitutional control of its related activities is called for. This demand results from the premise that legal systems must provide for the uniformity and consistency oftheir constitutional structure. At this stage, however, only one further and last concession can be made to Thomas Hobbes. Hobbes is right in his analysis that the political world is a world of interests. But he is wrong in stating that interests are idiotie per se and thus have to be oppressed. No. 10 of the Federalist Papers as weIl as the concept of a republican government as spelled out in Kant 's "Perpetual Peace" shaped a constitutional order based upon citizens and groups of citizens which are equally free and sovereign to pursue their interests. Both Madison in Federalist No. 10 and Kant in his "Perpetual Peace" emphasized that representation is the most important element of a legal and political order built upon the basis of autonomy or "sovereign equality." In this context, representation means that interests in the process of law-giving have to undergo a critical test: A legislator who follows the ideal of a representative legislateur will only give laws which (1) are the result of a free articulation and discussion of interests in a public debate and a public decision-making process, and (2) which stand the test that they are not in violation of equal rights and interests of the citizenship as a whole, in other words: that they are in the public interest. For Kant and for Madison as weIl there is no question that the concept ofpubHe interest is a normative one. It can neither be derived from empirical interests nor can it be taken for sure that legislators in each and every case apply it. They acknowledged that representative lawmaking in the public interest is the primary

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responsibility of legislators. Thus they confmned the truth as fonnulated by Aristotle that laws usually derive from the necessity of survival, that, on the other hand, legal systems survive on ethical grounds, namely, on the responsibility of citizens. Thus, the alternative of our discussion is not national or private interests vs. public interests - the question is whether or not nations as weIl as international organs acting on behalf ofthe international community are prepared to take their responsibility and act as "civiIized" or - which is the same for me - "peace-loving" nations and as representative organs.

International Lawmaking Article 38 of the ICJ Statute Reconsidered Jonathan I. Charney' I. Introduction The tide of this symposium suggests the idea that there exist or ought to exist a eategory of international law mIes that are denominated as "publie interest norms." Unfortunately, I am unaware of a clear defmition of this eategory of norms, nor am I persuaded that this eoneept is very helpful. I I do agree that norms of internationallaw should serve the publie interest. Some may do so more direetly than others. By definition, however, all mIes of internationallaw serve the publie interest. 2 Thus, service to the publie inteTest per se does not suggest anything • Professor ofLaw, Vanderbilt University, Nashville, Tennessee, USA. I This idea was the focus of two prior papers delivered during this symposium. Klaus Dicke, National Interest vs. the Interest of the International Community - A Critical Review ofRecent UN Security Council Practice, supra. 145; Eibe H Riedei, International Environmental Law - A Law to Serve the Public Interest? - An Analysis of the Scope of the Binding Effect of Basic Principles (Public Interest Norms), supra. 61. 2 The public interest may be defined as the interests ofthe state, which is the public in public international law. As the, so-called, "New Haven School of International Law" argues, the process of internationallawrnaking involves the pressures by representatives of various interest groups and participants in the decision making process. See, Myres McDougal/W Michael Reisman, The Prescribing Function: How International Law is Made, Yale Studies in World Public Order, vol. 6 (1980), 249; Myres McDougal, International Law and the Future, Mississippi Law Journal, vol. 50 (1980), 259; W Michael Reisman, Private Armies in a Global War System: Prologue for Decision, Virginia Journal ofinternational Law, vol. 14 (1973),1; Myres McDougallHarold Lasswe/l, The Identification and Appraisal ofDiverse Systems ofPublic Order, AIIL, vol. 53 (1959),1; Myres McDougal, The Impact of International Law upon National Law: A Policy-Oriented Perspective, South Dakota Law Review, vol. 4 (1959), 25. In states that function as liberal democracies the positions taken by the state in international relations retlect the views of the peoples' representatives. Since many ofthe most powerful states, as weIl as many other states, are liberal democracies, public internationallaw must be responsive to the public in-

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particularly new. Perhaps, the tenn "public interest nonn" is intended to identify those mIes of internationallaw that benefit individuals in an especially direct way, such as human rights nonns. Nevertheless, it is not clear to me what such a category is intended to accomplish. Certainly, the proponents ofthis idea must identify the distinguishing characteristics of such nonns in their creation or operation. It is possible that such a new category of nonns would indicate nonns that hierarchicallyare superior to other nonns. Ifthis tenn is meant merely to rename existing categories of nonns, such as ius cogens nonns, without changing their attributes or significance, the idea does not appear to be particularly significant. If, however, this tenn is intended to attach to such nonns special attributes or to identify a body of existing nonns of internationallaw with novel attributes, this suggestion does call for serious examination. Thus, the proposal might mean that some or all ius cogens nonns, for example, would have special importance outside of treaty law. But such a development would raise serious questions about what that development would accomplish. Does it mean that in contrast to "public interest nonns" the obligation to follow ordinary mIes of internationallaw is less important or subject to unilateral derogation? Does it mean that a violation of such public interest nonns would invoke the criminal liability of the individual who violated the nonn? Perhaps the creation of a new category of "public interest nonns" is intended to allow for the creation of new international law through new international law creation processes. If so, this process needs to be deflned and examined. Any such approach requires one to take care that in the enthusiasm to create new "public interest nonns" one does not advocate a law creating process that is so facile that it ignores the important role ofthe international community in public international law creation. It might even substitute a process that empowers self anointed truth squads to proclaim ipso facta new nonns that are to serve the public interest. I fear that such a development would mean that nonns so declared would have little legitimacy and little connection to the real world that drives what members of the international community will do. Failure to significantly influence such real world behavior would undennine the validity of any new category of nonns. It may even raise questions about the legitimacy of internationallaw generally .

terest. Anne-Marie Slaughter Burley, International Law and International Relations Theory, AAL, vol. 87 (1993), 205, 226 - 238; Gregory H Fox, The Right to Political Participation in International Law, Yale Journal oflnternational Law, vol. 17 (1992), 539; Thomas M Franck, The Emerging Right to Democratic Governance, AJIL, vol. 87 (1992), 46.

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I do agree, however, that a hierarchy ofnonns does exist in public international law, notwithstanding some difficulties in implementation and the risk that it could provide a basis for diminishing the importance of some nonns. J Based upon the idea of"public interest nonns" as has been described earlier at this symposium, it seems to me that the concept needs to be c1arified further and its consequences identified more explicitly. Until then, it is rather difficult to comment on this concept. Some international principles are amorphous, hortatory, or "soft law."4 Nevertheless, they serve a valuable purpose in promoting desirable international objectives. However, until they enter public internationallaw through the doctrine of sourcess and provide true operational guidance to states and other subjects of internationallaw, I would not consider them to be part ofinternationallaw, regardless oftheir fme goals. While my reticence about the value of approaching "public interest nonns" from a substantive perspective remains, I would approach a similar objective through procedural developments in internationallawmaking. Thus, in my opinion, the process of public international lawmaking today has evolved such that community-wide participation has increased, pennitting the development of new nonns of internationallaw that better serve the public interest than heretofore. 6 Such nonns may be endowed with a particularly high standing, such as ius

J E.g., a hierarchy may encourage some to take the position that lower level norms do not compel compliance. See, Prosper Weil, Towards Relative Normativity in International Law?, AJIL, vol. 77 (1983), 413,427-28. 4 See, Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, Michigan Journal of International Law, vol. 12 (1991), 420; Christine Chinkin, The Challenge of Soft Law: Development and Change in International Law, ICLQ, vol. 38 (1989),850; A Hard Look at "Soft Law," ASIL Proceedings, vol. 82 (1988),371; Remigiusz Bierzanek, Some Remarks on "Soft" Law, Polish Yearbook ofInternational Law, vol. 17 (1988), 21; Oscar Schachter, The Twilight Existence of Nonbinding International Agreements, AJIL, vol. 71 (1977),296. For views in opposition to the development of soft law see, Weil, supra, note 3, 415-16, 421-23. 5 American Law Institute, Restatement ofthe Law Third, vol. 1 (1987), The Foreign Relations Law ofthe United States, §§ 102, 103,24-39 (hereinafter Restatement (Third) of the Foreign Relations Law of the United States); Oscar Schachter, International Law in Theory and Practice, Recueil des Cours, vol. 178 (1982-V), 11,35 - 36; Jonathan l. Charney, Universal International Law, AJIL, vol. 87 (1993),529. 6 This is treated more fully in Charney, supra, note 5.

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cogens, or may (under the right eireumstanees) be enforeeable by third states erga omnes. 7 I will begin by abrief diseussion of artiele 38 of the Statute of the International Court of Justiee (lCJ). 8 Tbis artiele identifies the sourees of publie international law that the ICJ is required to use when it deeides matters before it in aeeordanee with internationallaw. It is eertainly binding on the ICJ. We should, however, understand its limitations. First, while many treat artiele 38 as a eodifieation ofthe doetrine of sourees for publie internationallaw, that role is not mandatory.9 Tbe text is binding of its own foree only on the ICl Tbe international eommunity may move beyond that formula for matters not before the ICJ. IO Seeond, artiele 38 is open to interpretation and evolution. Over the past thirty years, the ICJ has signifieantly ehanged the way it applies this artiele. Tbat development is obvious if one eompares the treatment of the subjeet in the 1969 North Sea Continental Shelf eases 11 to its aetual applieation in the more reeent Nicaragua ease.12 Tbus, in the Continental Shelf eases the ICJ foeused heavily on evidenee of aetual state praetiee in the real world to seareh for evidenee that the rule of equidistanee had beeome part of eustomary internationallaw for eontinental shelf boundary deIimitations. Tbe ICJ was unable to fmd suffieient affirmative state praetiee to support sueh a normative eoncIusion. On the other hand, in the Nicaragua ease the ICJ determined that eertain norms on the use of foree and humanitarian law existed in internationallaw. While it wrote that state praetiee was eritieal to fmding that law, in faet, it never identified any real world state praetiee to support the norms that it found to exist as general internationallaw. Rather, it relied heavily on resolutions ofthe United Nations, other intergovemmental organizations and treaties. When 7 This is treated more fuHy in Jonathan I. Charney, Third State Remedies in International Law, Michigan Journal ofinternational Law, vol. 10 (1989),57. I 59 U.S. Stat. 1055, U.S.T.S. 993, Bevans 1179. As appropriate, I will use the term "World Court" to refer to the ICJ as weH as its predecessor, the Permanent Court ofinternational Justice (PCIl). 9 E.g., Restatement (Third) ofthe Foreign Relations ofthe United States, supra, note 5, § 102 Reporters Notes 1,29. 10 See, Louis B. Sohn, The Law ofthe Sea: Customary International Law Developments, American University Law Review, vol. 34 (1985), 271, 279. 11 North Sea Continental Sheljcases (Federal Republic ofGermanylDenmark.; Federal Republic ofGermanylNetherlands), ICJ Reports 1969,3,32 - 36, 38 - 45, paras. 46 - 56, 60 - 66,69 - 81 (hereinafter North Sea Continental Sheljcases). 12 Case concerning Military anti Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986, 14,97 - 109, paras. 182 - 208 (hereinafter Nicaragua case).

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contrary state practice was addressed, the JCJ merely examined it to determine whether the behavior was supported by state positions that reflected alternative normative rules. When it failed to fmd that the contrary behavior was predicated on a different norm, the JCJ determined that the contrary practice did not undermine the previously established normative conclusions that were based only on the collective decisions of international bodies. By comparing the two judgments, it is clear that the JCJ moved away from the traditional analysis of state practice in the real world towards greater reliance on activities at intergovemmental forums. These changes are more subtly found in cases, for example, that have relied heavilyon the 1982 Convention on the Law ofthe Sea (1982 LOS Convention)\3 and others that have relied on the Vienna Convention on the Law of Treaties 14 in order to fmd applicable public internationallaw. In my opinion, these developments reflect changes in the international community that required the ICJ to modify its approach to article 38 in order to maintain its relevance to the evolving international legal system. IS Thus, the meaning 13 Even before it entered into force on 16 November 1994 and afterwards, ICI cases relied on the LOS Convention (United Nations Convention on the Law of the Sea, opened for signature 10 Dec. 1982, Preamb1e, UN Doc. AlCONF.62/122 (1982), reprinted in United Nations, Official Text ofthe United Nations Convention on the Law ofthe Sea with Annexes and Index, UN Sales No. E.83.V.5 1983, reprinted at ILM, vol. 21 (1982), 1261). They inc1ude: case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), ICI Reports 1993,28,59,62,64,66,73, 74, paras. 47, 48, 55, 59, 60, 62, 80; case concerning the Land, Island and Maritime Frontier Dispute (EI SalvadorlHonduras: Nicaragua intervening), ICI Reports 1992,351,588,589, paras. 383, 384 (hereinafter Frontier Dispute case); Nicaragua case, ICI Reports 1986, 111, II 2, paras. 212, 214; case concerning the Continental Shelf(Libyan Arab lamahiriyaIMalta), ICI Reports 1985, 13,29,30,33,34, paras. 26, 33, 34; case concerning the Continental Shelf(Libyan Arab lamahiriyaIMalta), ICI Reports 1984,3, 11, para. 16; case concerning the Continental Shelf(Tunisia/Libyan Arab lamahiriya), ICI Reports 1982, 18, 66, 67, para. 88. 14 Those ICI cases that have relied on the treaty interpretation rules of the Vienna Convention on the Law ofTreaties, arts. 31 - 32, UN Doc. AlConf. 39/27 (1969), AJIL, vol. 63 (1969),875, ILM, vol. 8 (1969), 679, inc1ude: case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), ICI Reports 1995, 6, 18, para. 33; case concerning the Territorial Dispute (Libyan Arab lamahiriyalChad), ICI Reports 1994, 6, 21 - 22, para. 41; Frontier Dispute case, ICI Reports 1992, 582, 584, 586, paras. 373, 376, 380; case concerning theArbitral Award 0/31 July 1989 (Guinea-Bissau v. Senegal), ICI Reports 1991,53,69 - 70, para. 48; case concerning Elettronica Sicula S.p.A. (ELS1) (United States of America v. ltaly), ICI Reports 1989, 15,70-71, para. 118. IS See, Theodor Meron, Continuing Role of Custom in the Formation of International Humanitarian Law, AJIL, vol. 90 (1996), 238; Charney, supra, note 5,537-38,543 - 549; Anthony D 'Amato, Trashing Customary International Law, AJIL, vol. 81 (1987), 10 1;

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of article 38 is not fixed, but it will continue to evolve as the international community changes its understanding ofthe doctrine of sources. In my opinion, this evolution is more significant in article 38, paragraph l(b), "international custom, as evidence of a general practice accepted as law" than article 38 paragraph 1(c), "general principles oflaw ...". 16

In the years subsequent to World War 11, substantial changes occurred that directly affect this question. Rather than a small elite group of dominant western developed states, the international community now comprises nearly 200 states of varying interests, history, and power. These changes have led to an increase in the number and importance of intergovemmental organizations and multilateral treaties. 17 Furthermore, the international community of the late twentieth century is increasingly interdependent. It faces an expanding need to develop norms to address global concerns, e.g., global environment problems, weapons ofmass destruction, international drug trafficking, international terrorism, and human rights abuses. Richard Falle, The World Court's Achievement, AJIL, vol. 81 (1987), 106; Frederic L. Kirgis, Jr., Custom on a Sliding ScaIe, AJIL, vol. 81 (1987), 146; Fred L. Morrison, Legal Issues in the Nicaragua Opinion, AJIL, vol. 81 (1987), 160. 16 ArticIe 38, para. l(b), uses the phrase "general practice accepted as law." It does not define what is meant by "general practice" nor does it define what entity and under what circumstances the necessary acceptance is to take place. The key to this provision seems to be the acceptance as law, with the general practice, whatever it is, providing the normative idea that is capable of being accepted into internationallaw. At least this provision has a procedural element that identifies how law might be made. Paragraph 1(c), "general principles oflaw recognized by civilized nations," is more vague. First, the amorphous nature ofthe law to be found under this paragraph is emphasized by the use ofthe words "general" and "principles." This seems to suggest something less exact than rules or even norms. The term "recognized" is in the past tense suggesting that these "general principles" have a1ready been in existence and are to be found by the Court, rather than created through an ongoing process. Thus, the focus is more on interstitial rules necessary to make a legal system function rather than new rules that may be subsequently developed through an ongoing process. See, South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, ICJ Reports 1966,6,296 (Dissenting Opinion Tanaka); Daniel P. o 'Connel/, International Law, 1970, 12 - 13; Jonathan I Charney/Gennady M Danilenko, Consent and the Creation of International Law, in: Lori Fisler DamroschiGennady M DanilenkolRein Mül/erson (eds.), Beyond Confrontation: International Law for the PostCold War Era, 1995,23,44 - 46; Michel Viral/y, The Sources ofInternational Law, in: Max Serensen (ed.), Manual of Public International Law, 1968, 116, 144-46; Oscar Schachter, International Law in Theory and Practice, supra, note 5, 79 - 82; Alfred von Verdross, Les principes generaux du droit dans lajurisprudence internationale, Recueil des Cours, vol. 52 (1935-11), 191,204-06. 17 Restatement (Third) ofthe Foreign Relations Law ofthe United States, vol. 1, supra, note 5, 133-34; Schachter, supra, note 5, 103 - 109.

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11. The Contemporary International Lawmaking Processes

1. Consent

These developments increase the need for norms of internationallaw designed to serve the international community as a whole. Unfortunately, the traditions of the international legal system appear to work against this objective. States are considered to be sovereign and, thus, able to determine for themselves what they must or may do. State autonomy continues to serve the international system weIl in traditional spheres of international relations. The freedom of states to control their own destinies and policies has substantial value. It allows diversity that permits states to choose their own social priorities. If sovereignty and autonomy prevailed in all areas of internationallaw, however, one could hardly hope to develop a more community-oriented lawmaking process. A review of the traditional doctrine of sources demonstrates, however, that, even historicaIly, sovereign state consent was not as salient for all sources of internationallaw as many assume. TraditionaIly, consent must be given in order to bind states or other internationallegal persons to treaty obligations; but even under treaty law state consent is not at the core ofthis law. Instead, rather than consent the real source ofthe obligation to abide by astate' s treaty is the fundamental international law norm of pacta sunt servanda. Pacta sunt servanda binds all states in their treaty relations, regardless ofwhether or not they currently consent to that norm. 18 Similarly, the ius cogens limitations on the authority of states to undertake treaty obligations also may be fundamental and exist as law, notwithstanding the present or past views ofindividual state members ofthe international legal system. 19 While individual states must voluntarily assume their treaty obligations, rules of international law regulate their obligations independent of the present views of those particular states. Considerable debate exists in regard to the nature of internationallaw obligations derived from general principles of law. 20 TheoreticaIly, if all the principal 18 Vienna Convention on the Law of Treaties, supra, note 14, art. 26; Restaternent (Third) ofthe Foreign Relations Law ofthe United States, vol. 1, supra, note 5, § 321, 190; Hans Kelsen, Pure Theory ofLaw, 1967,215-17; Schachter, supra, note 5, 79, 80. 19 Vienna Convention on the Law ofTreaties, supra, note 14, arts. 53, 64, 71; Robert Y. Jennings/Arthur Watts (eds.), Oppenheim's International Law, 1992,7 - 8; Restaternent (Third) ofthe Foreign Relations Law ofthe United States, vol. 1, supra, note 5, § 331(2) (b), Comrnents e & f, 205, 207; Kelsen, supra, note 18; Schachter, supra, note 5, 339-40. 20 See, Charney/Danilenko, supra, note 16,44 - 46.

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domestic legal systems employ the same rule of law, that rule is a general principle of law. According to one view, this examination identifies rules of natural law. 21 For this approach to support the consent theory, however, it requires proof that all have consented to every natural law rule within the category of general principles of law. In the absence of such proof some, if not most, general principles of law would exist as law independent of the expressed wills of states acting domestically or internationally. The World Court has tended to treat these norms as axiomatic without showing which states' domestic legal systems, if any, use them and without showing that states have consented to them at the international leveI.22 Traditionally viewed, customary internationallaw is the product of state practice and opinio iuris. In order to establish a norm of internationallaw states are required to act in conformity with the norm and the international community must accept that norm as obligatory under law. 23 Some maintain that individual states must choose to accept the norm as law. 24 Clearly, however, the collective international community must accept the norm and not every individual state or other international legal person. 25 Furthermore, acquiescence is regularly substituted for acceptance in this process. In internationallaw, this "acquiescence" often is not tantamount to a knowing and voluntary consent, the real meaning of acquiescence. For acquiescence to substitute for actual consent, the entity must be aware of the subject of the consent and must know that failure to object is acceptance. Thus, the acquiescence, ifit is truly considered to be the source ofa state's legal obligation, must be tantamount to actual consent, but that consent is expressed by non-action rather than by action. 26 Most ofthe time when new internationallaw 21 ld., 45. 22Id. 23 North Sea Continental Shelfcases, ICJ Reports 1969,43 - 46, paras. 73 - 81; Restatement (Third) ofthe Foreign Relations Law ofthe United States, vol. I, supra, note 5, 17, 18. 24 MarxistiSoviet ideology was the principal source ofthis view. See. R. A. Mullerson, Sources of International Law: New Tendencies in Soviet Thinking, AJIL, vol. 83 (1989), 494,500-06; Rosalyn Higgins, Conflict ofInterests: International Law in a Divided World, 1965,137 - 147; G.I Tunkin, Theory ofInternational Law, 1974, 123 - 133; Hans Kelsen, The Communist Theory ofLaw, 1955, 158-64, 184-92. See generally, Weil, supra, note 3, 433-40. 2S Restatement (Third) ofthe Foreign Relations Law ofthe United States, vol. 1, supra, note 5, 17, 18. 26 Charney, supra, note 5, 536-37; Kent Greenawalt, Conflicts of Law and Morality, 1989, 66; A. John Simmons, Moral Principles and Political Obligations, 1979, 64, 77, 80.

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rules develop, it is not possible to establish that the failure by states to object to the developing nonn constitutes true acquiescence to the new internationallaw. Reliance on state practice also should be examined closely. The classical view requires that the necessary state practice include actions in the real world where states directly interaet in ways that confonn to the nonn in question. Repetition of such behavior over time mayaiso be necessary. Such state practice is thought to provide evidence that when the state takes action its real interests are at the basis ofthe act. This is supposed to provide highly credible evidence ofthat state's support for the nonnative standard. Unfortunately, such conclusions are too facile. First, states take many actions without fully evaluating their interests. Second, the actions that serve as the bases for state practice often have ambiguous implications, rendering the process of linking them to a nonnative rule an entirely subjective enterprise. This subjectivity undennines the evidentiary value of the practice. Third, the circumstances of each example of state practice is unique to its particular circumstance. Thus, it is risky to derive generalized nonnative conclusions from such activities. Only in the rarest of instances when nonnative statements of the responsible high level government officials accompany the state behavior, may nonnative conclusions be drawn. Even then, one cannot be certain that the statements were made to reflect the nonnative position of the state, rather than to obtain a tactical advantage in the particular situation. Thus, the traditional state practice analysis is hardly as probative as it is usually assumed to be. Furthennore, 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. The awareness and opinions of other states that take no overt position or relevant actions are rarely consideredP Rather, based upon the assembled evidence, decision makers presume that the lack of opposition constitutes acquiescence. This presumption masks the reality that many do not know that the law is being made and, thus, have neither fonned an opinion nor participated in its fonnation.

27 Schachter, supra, note 5, 77. See e.g., Chorzow Factory (Merits), peH, Series A, No. 17, 1928,27 - 29, 47 - 48; Effoct ofAwards ofCompensation Made by the UN Administrative Tribunal, Advisory Opinion, le] Reports 1954,47,53; the Corfu Channel case, le] Reports 1949,4, 18; Judgments ofthe Administrative Tribunal ofthe ILO upon Complaints Made against the UNESCO, Advisory Opinion, le] Reports 1956,77,85 -86.

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2. Categories 0/Public International Law Developments in the United Nations (UN) system over the last fifty years have further eroded this questionable traditional approach. While customary law still may be created in the traditional manner, that process has increasingly given way to a more community-oriented method in recent years. Today, multilateral forums playa central role in creating and shaping contemporary internationallaw. Developments in international law often get their start or substantial support from proposals, reports, resolutions, treaties, or protocols debated and refmed in such forums. That process draws attention to the norm and helps to shape and crystallize it. 28 The authoritative nature ofthe debates at these multilateral intergovemmental forums varies, depending upon many factors. Among the first is the clarity by which the norm is communicated to the participants when it is under consideration as a potential development of general internationallaw. Second, the support given to the potential new norm, as weIl as the opposition to it, play significant roles. The discussions at such forums are necessarily communicated to all interested states. According to some customary law analysts, the debates and products of those forums may be characterized as state practice or opinio iuris. 29 Those solutions that are positively received by the international community through other indications of support will be absorbed rapidly into general international law, notwithstanding the technicallegal status ofthe form in which they emerge from 28 For example the negotiations at UNCLOS III, the resulting 1982 LOS Convention, supra, note 13, and UN General Assembly consideration ofthe subject among others led to many ofthe Convention articJes entering general international law. See, the ICI cases listed supra, note 13; Marian Nash Leich, United States Oceans Policy, AJIL, vol. 77 (1983), 619. Provisions in the United Nations Charter (59 US Stat. 1031, TIAS, No. 993,3 Bevans 1153) and resolutions by the UN developed the norm of self-determination and decolonization. Western Sahara, Advisory Opinion, ICI Reports 1975, 12,21 - 60, paras. 48 - 162. International human rights law was advanced by multiple international agreements and UN resolutions. See e.g., Filartiga v. Pena Irala, 630 F.2d 876 (2nd Cir. 1980), ILM, vol. 19 (1980),966. The internationallaw prohibition on the use offorce and humanitarian law benefited by the same process. Nicaragua case, ICI Reports 1986, 14. 29 Gennady M Danilenko, The Theory of International Customary International Law, GYIL, vol. 31 (1988),9,37,38; Rosalyn Higgins, The Role ofResolutions oflnternational Organizations in the Process ofCreating Norms in the International System, in: William E. Butler (ed.), International Law and the International System, 1987,21,24,26,27; G. l. Tunkin, The Role of Resolutions of International Organizations in Creating Norms of International Law, in: id., 5, 12, 14, 17; Anthony A. D'Amato, The Concept ofCustom in International Law, 1972, 104, 162, 165,271.

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the multilateral forum. The clearer the norm debated, the clearer the intention to promote a norm of generally applicable internationallaw, and the stronger the consensus in favor of the norm, the less need there will be for evidence from outside the forum to establish the norm as law. 30 Similar attention over aperiod of time by the same or other forums may further strengthen the case for the norm. This international forum based process differs from the traditional understanding ofthe customary lawmaking process. It may, thus, be more accurate to call it general internationallaw, as the ICI has done on numerous occasionsY This process of generating new international law is a deliberative one that may approximate the largely symbolic legislative processes of most domestic legal systems. The foundations ofthe international legal system do not bar such an evolution of the internationallawmaking process. Indeed, it may be said that the work of those multilateral forums merely make more transparent and formalize the international lawmaking process and, thus, constitute no radical change in that process. All members of the international legal community are increasingly aware that the work of multilateral forums contributes to the development of general internationallaw. These activities do make possible the rapid and unquestionable entry into force ofnormative rules as long as the support expressed in the forum obtains confmnation. Decisions made at such forums, support for the generally applicable norm, publication ofthe proposed norm in written form, and notice to the international community call for an early response from states. If the response is affmnative (even iftacit), the norm may enter into law. This process avoids some ofthe mysteries of customary lawmaking. It also permits broader and more effective participation by all states and other interested groups. The tacit consent system,

30 Certainly, one strong example ofthis evolution is the entry into internationallaw of the right of coastal states to a 200 nautical mile exclusive economic zone. This is permitted by articles 55 - 58 of the 1982 LOS Convention, supra, note 13, and benefited from debates at UNCLOS III, but also it is the subject of many claims by coastal states. Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law ofthe Sea, 1989; Robert W. Smith, Exclusive Economic Zone Claims: An Analysis and Primary Documents, 1986; Jonathan I. Charney, The United States and the Revision of the 1982 Convention on the Law ofthe Sea, in: Edward L. MilesITullio Treves (eds.), The New Law ofthe Sea: New Worlds, New Discoveries, 1993, 379 and ODIL, vol. 23 (1992), 279; Jonathan I. Charney, The Exclusive Economic Zone and Public International Law, ODIL, vol. 15 (1985),233. As of 10 December 1996 the LOS Convention, supra, note 13, which entered into force on 16 November 1994, had 110 states parties. United Nations, Status of the United Nations Convention on the Law of the Sea of 10 December 1982, Updated and Reviewed on 17 December 1996. 31 See, the list of ICI cases in Charney, supra, note 5, 546-47, note 72.

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thus, operates legitimately. This process reflects an evolution in the role of the international community in developing internationallaw. It also avoids some ofthe problems inherent in the state practice/opinio iuris customary law tradition. A clear articulation of the norm under consideration avoids ambiguity and promotes communication to the entire international community, permitting widespread participation and, ifnecessary, true acquiescence. In that sense, this process more closely approaches the consent based foundations of internationallaw than the traditional rule. The community-centered nature ofthe lawmaking process also may make universallaw creation more likely.

Even though general internationallaw is important, treaties expressly accepted by the parties as binding fill much of the demand for internationallaw, today. Treaties, however, are unable to serve all the international legal requirements of the contemporary world. Treaties often take considerable time to be negotiated, adopted, and brought into force. It is also impracticable to expect treaties to exist for all subjects ofinternationallaw. Most importantly, adherence to treaties rarely approaches the level of universal participation. In contrast, general international law may be established on the basis of a less complex process for indications of affirmative consent or acquiescence. General international law, thus, makes worldwide law more possible. The community-centered nature of the process also may diminish the influence ofthe most geopolitically powerful states. Some may consider this possible consequence to be an advantage. Yet, even if desired by some, this development is unlikely. While decisions at global forums technically reflect a more democratic process, experience shows that variations in the relative geopolitical power of states playamajor role in the decision making processes at such forums. Furthermore, objections by an important group of states will continue to playa major role in stopping or modifying a normative development, even ifthat group is smalI. 32 32 One recent example is the United States objection to the deep seabed regime established by the text of the 1982 LOS Convention, supra, note 13, Part XI. Despite a large number of signatories the US objection effectively prevented the Convention from entering into force until the deep seabed regime was changed to the satisfaction of the United States. Only then did the Convention attract sufficient ratifications and accessions to enter into force and the major states began to become parties. See, Message from the President ofthe United States Transmitting the United Nations Convention on the Law of the Sea, with Annexes, Done at Montego Bay, 10 December 1982 (The "Convention"), and The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, Adopted at New

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Perhaps the most powerful criticism that may be leveled against this process is that it relies upon a short-term consensus reflecting only political realities of the instant, but not a more durable systemic commitment that is necessary to create viable internationallaw. One response to this potential criticism is that the process described above requires two elements that may avoid this difficulty. First, a new norm is not created by a single resolution or other isolated action at one international forum. Repetition over time and variations in the contexts in wh ich the norm is articulated are important considerations. Furthermore, by requiring fairIy explicit normative statements, states are on notice that the international community is moving towards the creation ofnew internationallaw. Consequently, foreign offices must take the development seriousIy in order to determine whether the norm under discussion is acceptable. They are, thus, under an obligation to take action in support ofthe norm, acquiesce in the development, or seek to modify or oppose it. This situation necessarily involves more consideration by the state than the traditional amorphous state practice/opinio iuris methods of creating customary internationallaw. Another possible benefit is that the process also gives non-state entities an opportunity to participate in deliberations leading to the adoption of the new internationallaw. Thus, the developing role of intergovemmental forums in international lawmaking increasingly provides a reliable indicator of state views capable of endowing a rule with the normative status of internationallaw. The augmented role of intergovemmental forums in the lawmaking process is now considered to be legitimate, especially due to the greater formality ofthe process and its democratization. This development may help to mark more clearly the line between international legal obligations and desirable international public policy. As a result, the organized international community today plays an increasingly important role in the development of general internationallaw. In that way, international legisiation in the public interest is promoted. The existence of community-oriented rules of internationallaw is supported by the recognition of different categories of international law. Some norms are considered to be "fundamental" or "constitutional," or beionging to special classes York, 28 July 1994 (The "Agreement"), and Signed by the United States Subjeet to Ratifieation, on 29 July 1994, Senate Treaty Doe. 103-39, 103d Cong. 2d Sess. (1994); Bernard H Oxman, The 1994 Agreement and the Convention, AJIL, vol. 88 (1994), 687; Louis B. Sohn, International Implieations ofthe 1994 Agreement, AJIL, vol. 88 (1994), 696; Jonathan I. Charney, U.S. Provisional Applieation of the 1994 Deep Seabed Agreement, AJIL, vol. 88 (1994), 705. See also, Status ofthe United Nations Convention on the Law ofthe Sea, supra, note 30.

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such as "ius cogens" or the "common heritage of mankind."33 These norms are considered to be binding on all members ofthe international legal community. Some consider these categories of norms to be exceptional because, in their view, these are special c1asses of internationallaw that are' exempt from the assumed usual rule that "persistent objectors" to a norm are not bound. However, once it is acknowledged that even one rule of internationallaw can be binding on all, even in the face of a timely and active objection, it necessarily follows that the international community has the authority to legislate universal norms, notwithstanding some objections. The only questions that remain are the circumstances by which such rules of law may be established. When one examines this issue, it becomes c1ear that two factors are particularly determinative: (1) the strength and intention ofthe supporting members ofthe international legal community, and (2) the significance ofthe opposition. In the process of creating new law, it might be established that there exists sufficiently strong support to place a particular norm in an exceptional category. Such a c1assification may give rhetorical strength to the view that none may be exempt from the law in question. Realistically, it is the international legal community that decides to establish a universal rule of law for moral, practical, or political reasons, notwithstanding the fact that some object to the rule or that some seek exemptions from it. This result is especially likely if the subject is grave, the international consensus is strong, and the adverse consequences of permitting exemptions are severe. Such a norm might be characterized as ius cogens or as required to protect the common heritage of mankind. Regardless of how it is denominated, the determination of the international legal system to establish the new law and to give the norm universal effect will be sufficient to achieve those goals in order to promote important community interests.

33 Louis Henkin, International Law: Politics, Values and Functions, Recueil des Cours, vol. 216 (1989-IV), 9, 51 - 61; Schachter, supra, note 5, 34 - 39, 336. See also, Viktor Mayer-Schönberger, Crossing the River of No Return: International Restrietions on the Death Penalty and the Execution of Charles Coleman, Oklahoma Law Review, vol. 43, 677,683 (peremptOl)' norms exempted); Thomas M Franck, Legitimacy in the International System, AJIL, vol. 82 (1988), 705, 705-06; Eduardo Jimenez de Arechaga, Intervention, in: Antonio Cassese/Joseph H. Weiler (eds.), Change and Stability in International LawMaking, 1988,27.

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III. Contemporary Enforcement of International Law In the absence of a centralized lawrnaking and law enforcement system, the traditionalists view enforcement of international law as bilateral. Tbus, only states that are palpably injured by a violation of internationallaw by another state have standing to seek a remedy for the violation. Considerable doctrinal support exists for this approach. 34 In such a state-centered legal system, the international community is considered to have no stake in violations of internationallaw. Rather, only the state that is injured as a result of the violation has the interest and the right to assert the claim. Tbis state-centered bilateral approach avoids many difficulties inherent in a more liberal system. It limits the controversies that may result from law violations; it grants the remedial right to the state with the greatest stake in the violation; and it creates a bright line for identifying the state that possesses the right to a remedy and others that do not. Enforcement by other states risks multiple demands for remedies, confusion, and an escalation of the conflict. Viewed in a more systemic way, enforcement in response to violations ofinternationallaw is essential to the maintenance of a system of law. Tbe absence of enforcement in the face of a high violation rate would place the system of law in doubt. 35 Furthermore, enforcement not only discourages a violator from violating the rule again, but it also provides a waming to all others that they risk sanctions ifthey violate internationallaw. Tbis waming effect provides an important motivation for states to abide by their legal obligations. As such, the entire international community has an interest in the effective enforcement of internationallaw against violators. In some cases the international community interest is not especially salient, particularly when the violation affects the interest of one state only and the violation is minor. On the other hand, situations exist when the interests ofthe international community are especially salient. While much relevant history preceded and followed the dicta by the IC] in the Barcelona Traction case,l6 its acknowSee, Charney, supra, note 7, 60 - 86. Anthony A. D'Amato, International Law: Prospect and Process, 1987, 97 - 98; Kristina Marek, Identity and Continuity ofStates in Public International Law, 1968,554; Hans Kelsen, Theory ofLaw and State, 1945, 120; Hans Kelsen, Allgemeine Staatslehre, 1925,18 - 19. 36 Case concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, IC] Reports 1970,3,33, para. 32 (hereinafter Barcelona Traction case). See e.g., Requestfor an Examination ofthe Situation in Accordance with Paragraph 63 ofthe Court's Judgment of20 December 1974 in 34

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ledgment of erga omnes rights in internationallaw made clear that the enforcement of internationallaw is not always bilateral: [Aln essential distinction should be drawn between the obligations of aState towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatie protection. By their very nature the former are the concern of al1 States. In view ofthe importance ofthe rights involved, al1 States can be held to have a legal interest in their protection; they are obligations erga omnes . . . . Such obligations derive, for example, in contemporary internationallaw, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights ofthe human person, incJuding protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law ... ; others are conferred by international instruments of a universal or quasi-universal character. 37

Many commentators interpret this dictum as describing two categories of internationallaw norms. One category contains normal rules that are only enforceable bilaterally. The second category includes those obligations owed to the international community as a whole (erga omnes) that they are enforceable by all states. 38 I do not understand the ICI to have intended such a rigid classification system. Rather, the erga omnes passage in the Barcelona Traction case focuses more on whether the nature ofthe violation infringes on important interests ofthe international community as a whole as opposed to the mere bilateral interests of particular states. The open-ended list ofnorms that potentially have erga omnes implications identified by the ICI provides no limiting criteria for their creation or designation. Accordingly, whether a violation of an international rule of law may be enforced only by the particularly injured state depends as much on the interests for which the norm was created to protect as the factual circumstances surround-

the Nuclear Tests Case (New Zealand v. France), ICI Reports 1995,288,30.5, para. 61; Nuclear Tests case (Australia v. France), ICI Reports 1974, 253, 269, para 50; Nuclear Tests case (New Zealand v. France), ICI Reports 1974, 457, 474, para. 52; Legal Consequences lor States 01 the Continued Presence 01 South Africa in Namibia (South West Alrica) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICI Reports 1971, 16,55, para 125; North Sea Continental Shelfcases, ICI Reports 1969,20, 27, paras. 14, 35; South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, ICI Reports 1966,6,41, para. 70; s.s. "Wimbledon." PCIJ, Series A, 1923, No. I, 15. 37 Barcelona Traction case, ICI Reports 1970,3,33 - 34, paras. 32 - 34. 38 Restatement (Third) ofthe Foreign Relations Law ofthe United States, vol. 2, supra, note 5, § 902, 345 - 355.

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ing the violation. 39 I know of no criteria that exist at a nonn' s creation to determine for all cases whether it is enforceable erga omnes or only bilaterally. Rather than categorizing nonns as erga omnes or not, a variety of factors should be considered at the time of the violation. These factors include whether: (1) no directly injured state exists that would have the traditional standing to seek a remedy (e.g., a state's violation ofhuman rights against its own citizens); (2) the directly injured state is incapable of seeking a remedy due to reasons beyond its control (e.g., overwhelming aggression by the violating state); and (3) widespread violations of the law have been committed by a powernd state or group of states that has created a situation in which either the directly injured states alone are not able to effectuate a remedy or the injury is so widespread that a directly injured state is not readily identifiable (e.g., damage to international common spaces through the release of ozone depleting substances, pollution of the marine environment from land based sources, or the release of substances likely to cause global climate change). The IC] in Barcelona Traction did not explore the issue further in the context of modalities of enforcement. Barcelona Traction examined whether in the absence of enforcement by one state (Canada) another state with some interest in the matter (Belgium) could take up the claim and enforce it against a third state (Spain). Presumably, had the IC] found that the alleged duty was owed erga omnes, Belgium, as the third party, would have had standing to bring the claim. However, this is not the only conclusion that may be reached. Indeed, it would also be possible that enforcement in such a situation could require collective actions by the international community as a whole or, instead, subgroups thereof. Collective actions avoid the risk of multiple claimants that might give rise to undesirable conflict and confusion making it more difficult to resolve the dispute. Collective actions may, in theory, appear more desirable. In fact, the UN Charter does provide for such collective actions in certain circumstances. 40 However, the existing international legal system does not have an appropriate collective enforcement vehicle for every international law violation. Also, those vehicles that are available may be less than efficacious. Consequently, while an exhaustion 39 Support is found in the Barcelona Traction case when it addressed the capabilities of Canada to bring the claim. See, Barcelona Traction case, ICJ Reports 1970, 43 - 45, 48, paras. 77 - 83, 92 - 94. See also, Separate Opinion of Judge Jessup, id., 171-82, paras. 21 24; Separate Opinion of Judge Ammoun, id., 319-20, paras. 26 - 28; Dissenting Opinion of Judge Riphagen, id., 340, para. 8. 40 UN Charter, supra, note 28, arts. 25, 39 - 50.

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of collective measures should be encouraged or even be aprerequisite, third state unilateral enforcement in many cases is inevitable and appropriate in the current international legal system. Recently, the IC] had the opportunity to again address third state enforcement of internationallaw solutions. In the case concerning East Timor between Portugal and Australia,41 Portugal claimed that a treaty between Australia and Indonesia concerning the development of the resources in the seabed between East Timor and Australia42 was invalid because Indonesia had taken control of East Timor by force and denied the population their international law rights of self-determination. By doing so, it was alleged that Indonesia could not enter into a valid treaty with another state disposing of the natural marine resources attributed to East Timor without the voluntary consent ofthe people ofEast Timor. While Portugal had a link to East Timor because the area was its former colony and its interest was given some recognition in UN resolutions,43 it was not a directly injured state. Its claim had to be based on the theory that a violation ofthe East Timor peoples right of self-determination through the use of force in violation of international law is enforceable ergo omnes. The case was further complicated because the state that was primarily alleged to have violated the self-determination rights of the East Timor peoples was Indonesia, a non-party to the case. Australia allegedly secondarily violated this right by entering into the treaty with Indonesia that affected the marine resource rights ofthe people ofEast Timor. It is clear that the right of self-determination is established as internationallaw and that it is an important right. 44 The IC] could have invoked the right ofthird state remedies (ergo omnes) to permit the case to go forward. By doing so it would have further confmned this doctrine as internationallaw. It failed to do so, without denying the validity of the doctrine, on the ground that the issue in the case necessarily involved the rights of a non-party state, Indonesia. In the absence of that state's presence in the case the IC] would not permit the case to go forward. 45 This ground for dismissal is, however, weIl established in the ICrs

41 ICJ Reports 1995,90 (hereinafter East Timor case). 42 For an examination ofthis treaty see, Australia - Indonesia (Timor Gap) (1989),

Report Number 6-2(5), in: Jonathan I. Charney/Lewis M Alexander (eds.), International Maritime Boundaries, 1993, 1245. 43 East Timor case, ICJ Reports 1995,95 - 97, paras. 14 - 16. 44 Id., 102, para. 29. 4S Id., 104 - 105, paras. 28, 34 - 35.

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jurisprudence and thus provides a tenable ground for dismissal. 46 On the other hand, the le] could have construed Australia's actions as an independent delict and allowed this claim to go forward, thus, reinforcing the doctrine of erga omnes. Consequently, the IC] failed to take the opportunity to further solidify the doctrine of erga omnes. On the other hand, the disposition ofthis case does not necessarily reflect adversely on the doctrine in cases in which jurisdiction is present and in countermeasures outside of court. One may or may not agree with this more contextually based analysis of third state remedies and preferring instead a doctrine that would divide various rules between normal rules ofinternationallaw and those owed erga omnes. Nevertheless, if one accepts the concept of third state remedies, one must accept two more fundamental propositions: fIrst, that internationallaw has evolved from a system of overlapping bilateral relations based upon state autonomy to a system that is increasingly based on the fundamental proposition that the interests of the international community as a whole are served by internationallaw and, second, that the international community has a stake in the effectiveness of internationallaw, including a role in enforcement against violators.

IV. Conclusion While some may resist the movement from a strictly state autonomous system to one that contains a signifIcant degree of community lawmaking and law enforcing authority, these developments are hard to deny. The context of internationallaw has changed signifIcantly in recent years. While state sovereignty and autonomy continue to serve as important foundations of the international legal system, the powerfid interrelationships and interdependencies of states have driven the international community towards an increasingly cooperative international law structure. The international legal system nOw includes substantive norms that go far beyond bilateral relations of states to include moral issues and 46 Id., 101, para. 26, referring to such cases as case of Monetary Gold Removedfrom Rome in 1943 (ltaly v. France, United Kingdom ofGreat Britain and Northern Ireland, and United States of America), leI Reports 1954, 19,32; case concerning the Continental Shelf (Libyan Arab IamahiriyaIMalta), leI Reports 1984, 13, 24 - 28, paras. 20 - 23; case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), leI Reports 1984, 392,431, para. 88; case concerning the Land. Island and Maritime Frontier Dispute (EI SalvadorlHonduras), leI Reports 1990,92, 114116, 121 - 122, paras. 54 - 56, 73; and case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), leI Reports 1992,240,259 - 262, paras. 50 - 55.

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the organization and survival of the international community as a whole. International organizations play important roles, as do multilateral treaties. All ofthese developments reflect a movement away from state autonomy and towards a more community-based structure. This movement, necessarily, has created a more community-based system of internationallaw. In doing so, it has reshaped the landscape ofthe international legal system. While the traditional bilaterally-oriented norms remain, a more communitybased contemporary system complements that traditional system. This treatybased system provides methods by which the community, as a whole, participates in a quasi-legislative process to develop general internationallaw. The system also promotes the community's interest in the conformity of all to the rule of law. Movement in this community-based direction has accelerated with the proliferation of multilateral forums and agreements, the increased need for the universalization of some internationallaw, and the desire of all states and other entities to participate fully in the lawmaking process. Third-state enforcement of internationallaw norms is an appropriate extension ofthese developments. My focus on developments in the internationallawmaking process and on the enforcement of that law does not directly address the question of whether there are or should be a special category of"public interest norms." In the beginning ofthis paper, I expressed my skepticism about such a category of international law. Nevertheless, the lawrnaking and law enforcement developments I have reviewed in the body of this paper do provide some support for what I consider to be the interests generating the concept of "public interest norms." Thus, I consider the developments in the lawmaking and law enforcement processes discussed above as procedures that facilitate the goal of internationallaw to better serve the public interest. While I foresee no new category of "public interest norms" nor unique methods by which such norms may become internationallaw, I do believe that the entire international legal system is evolving such that it is able to be more in touch with the interests of the entire international community. In that way, it should better serve the public interest. The evolution of international lawrnaking and law enforcement, however, should not be overstated. Much international law is developed and enforced in traditional ways; state sovereignty and autonomy remain essential elements ofthe contemporary international legal system. Whether the system will radically change to one that has even more centralized structures remains an open question. Such a development is not likely in the foreseeable future. Structural changes will take place only when necessary to promote clearly identifiable community inter-

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ests. Otherwise, the international legal system will remain largely state-based, with a continually developing community-based component.

Discussion Kiss:

I would like to raise three points. The fIrst is the public interest, international public interest. At a certain point in the debates, I asked myselfhow public interest is represented in national law and how it works. May I submit here that the best catalogue of public interest roles can be found in the international treaties protecting human rights, not in the clauses which protect such rights but in those which limit them in the interest ofthe community, the so-called limitation clauses. Indeed, certain individual rights, although they constitute fundamental rights and freedoms, can be limited for the sake of public interest. The examples are numerous. In the Covenant on Civil and Political Rights, article 12 speaks ofthe limitation of everyone' s right to liberty of movement and freedom to choose his residence, which may be subject to restrictions provided by law, when these are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others. Articles 18, 19,21, and 22 contain similar limitations and, in addition, speak ofpublic safety. In the European Convention, article 8 adds the prevention of disorder or crime. Those are the public interest clauses which allow individual rights and freedoms to be limited. We can fmd the same phenomenon - not the same limitations - in the international fIeld, that is to say, restrictions to state sovereignty. This morning we have heard quite a few ofthem mentioned by Professor Dicke, such as peace, democracy, human rights, and environment. I would like to take the environment as an example, by making reference to what Mr Riedel mentioned yesterday, namely, article 192 of the Law of the Sea Convention according to which states have the obligation to preserve and to protect the marine environment. Although this provision only speaks of the marine environment, I think that it can be considered as a general statement expressing a basic principle from which implementing roles have been developed, such as those expressed in the Stockholm and Rio Declarations. My second point concerns the principle ofprecaution, which, in my view, has brought about a kind ofrevolution in law, especially in internationallaw. In the past, when preventive measures were envisaged for the protection ofthe environ-

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ment, we relied heavily on the scientists, considering that they had a major or even the principal responsibility in this field. Owing to the precautionary principle, the responsibility is placed upon those who make political decisions because, even ifthere is no scientific certainty, they should take measures. This is very important in the field of environmental law and perhaps in other fields of modern internationallaw. Political decision-makers and, in democracies behind the political decision-makers, the public opinion - that being the civil society or even the whole population - have to feel their responsibility. From such basic principles, which might be considered as having one common foundation, namely, the responsibility for our environment and for the living conditions of future generations, concrete mIes protecting the environment derive, such as the prohibition of pollution or the prohibition to transport dangerous waste into other countries. I personally see international environmentallaw as a tri-level construction, the first level of which is constituted by a basic value, the environment and the resulting obligation to protect it, while the second level consists of implementing principles with a general scope, and the third and lowest level in concrete mIes which will impose precise obligations on the states. My last point concerns the "common heritage of mankind," which is closely linked with environmental protection. For me it is not just pure coincidence that the two concepts emerged at more or less the same time - at the end of the 1960s. Indeed, environmental protection incorporates in a somewhat revolutionary way - especially in international law - the time dimension. Time dimension is quite often lacking in law and legal thinking. With the environment, we cannot escape the time dimension because environmental protection has no meaning at all if we forget the future, ifwe devastate and min everything. This future-oriented concept was also expressed at the Rio Conference with the concept of "sustainable development." "Sustainable," of course, includes the dimension of future and the rights of future generations. These concepts bring us very near to that of the common heritage ofmankind. For me, there is no unique formulation ofthe common heritage ofmankind; as quite often occurs in law, one concept corresponds to different purposes. It can aim at the safeguarding of certain objects for the future generations, such as endangered species, ecosystems, or monuments, but it can also serve for preventing disputes. Professor Riedel spoke ofradio frequencies or the orbit of geo-stationary satellites which states share and commonly manage in order to exclude and prevent disputes. At the beginning, when we discussed the geo-stationary orbit, the problem was: What will be the main principle, the "first come first serve" or the "equitable sharing" principle? As the concept of common heritage of mankind was adopted, equitable sharing prevailed. I think that with Antarctica and 13 Symposium 1996

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the moon - two other areas of the common heritage of mankind - we also fmd this idea of equitable sharing and a certain idea of international management. The conclusion could be that the criteria of the common heritage of mankind can be interpreted in different ways. For me, they include, above all, rational, future-oriented management, whether international or national under international control, and the exclusion of non-pacific uses. The common heritage of mankind can be something under state sovereignty or even in private property, for instance, a palace in Venice, which is without any doubt under Italian sovereignty and can be in private property but which constitutes the common heritage of mankind because we stick to it and everybody has the feeling that it belongs to our civilization, like endangered species. Most people have never seen a whale or a tiger in situ, but there is a general feeling that they belong to us all, form a part of our cultural heritage, and should be safeguarded for those who come after uso Thus, the concept of common heritage has different forms. One form combines it with state sovereignty or even with private property and orients us towards the idea of a sort of international trusteeship, based on our conscience and responsibility for certain areas, such as Antarctica, or certain monuments, such as the Giza Pyramids. Such a common conscience of humanity is emerging and forms the foundations of both the concept of the common heritage of mankind and the protection of the environment. After all, is the common conscience of a human group not the very foundation of all legal order? Fox: I would like to follow the question raised by Professor Chamey concerning the distinction between substantive and procedural approaches to defming a public interest norm. It seems to me that, depending on which of these defmitional approaches one chooses, one may end up with quite different sets of norms. So I think it would be useful to reflect for a moment on how these two approaches might function. A substantive view would defme public interest norms by reference to terms such as rights erga omnes, ius cogens norms, and even customary international law. I agree with Professor Chamey that these terms function essentially as different labels for the same phenomenon: a list of substantive rights and obligations that the international community holds to be fundamental. In contrast, a procedural approach would identify public interest norms by virtue of their having being the result of a process in which there is broad public participation. If there is

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meaningful public participation in the production of a nonn, one would say that by defmition it would be considered a nonn "in the public interest." There has already been much discussion ofthe substantive perspective. A number of participants have offered lists of nonns they believe qualify as being in the public interest, or have attempted to defme essential qualities for any public interest nonn. Because we have heard much from the substantive perspective, let me focus on the nature of a procedural approach! What evidence would be useful in testing a procedural hypothesis? If the procedural view involves processes of nonn generation in which there is either direct public participation or participation by states which are, in their internal makeup, truly representative of their citizens, one would need to gather evidence at both domestic and international levels. At the domestic level one would be interested in what Professor Thomas Franck has called the "democratic entitlement," an emerging notion that international law guarantees citizens the right to participate in the selection of their govemments. The focus ofthis entitlement is free and fair elections. One would fmd support in the increasing involvement ofthe United Nations in election monitoring, the elaboration of an increasingly rich human rights jurisprudence on the right to political participation, membership criteria in various international organizations being predicated on the democratic character of govemments, etc. These are all efforts to ensure that at the domestic level there is more connection between the views of citizens and the policies espoused by govemments. As I mentioned, these domestic developments are related to a notion of international public interest nonns by virtue of their enhancing the role of popular voices in fonning state policies. These include policies on international legal issues. In addition to enhancing the transparency of domestic policy-making, increased democratization at the national level connects to international public interest nonns in two other ways. First, I would argue that many ofthe recent political transformations at the domestic level were encouraged and perhaps in some places largely influenced by efforts ofthe international community. Certainly this is the case for states that have been the subject of large UN election monitoring missions. So the international catalyzation of democratic transitions can itselfbe considered a nonn in the public interest. Second, there is an increasing body of evidence that socalled "liberal" states behave differently at the international level in their relations with each other than in their relations with "illiberal" states. In particular, liberal states are more likely to cooperate and, to a dramatic extent, less likely to resort to force. One might even extend this hypothesis to say that liberal states are more likely, in their dealings inter se, to approve ofnonns that we have identified as being in the public interest. 13'

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This all concerns the dornestic level. But I think there is evidence of increased procedural transparency at the international level as weIl. In some cases this involves the participation of sub-state entities. For example, Professor Oxman mentioned the emergence of a nascent international Green Party which, in various fora, has attempted to integrate ecological issues into legal processes. But it is the developments involving states that are the most striking. There has clearly been a change in participation in Security Council decision-making from the Cold War era to the time ofthe resolutions discussed by Professor Dicke. We should not forget that prior to 1989 the Security Council was effectively a closed body. Because few decisions of any consequence were taken, there was little meaningful opportunity for states, even the permanent five, to make their views known. But since the end ofthe Cold War the resolutions have been rolling out daily, inciuding unprecedented fmdings of threats to the peace under chapter VII. This expanded agenda has clearly led to expanded opportunities for participation. Of course, there is the argument that despite formal assent by a broad range of states, a small club of powerful states has been the engine driving these developments. While there is no denying this reality, it does not contradict my fundamental point that participation has expanded since the end ofthe Cold War. Further, large power leadership may mask broad consensus. First, none of the resolutions mentioned by Professor Dicke encountered a veto by China. China has made its views known through language in many of these resolutions, stating that the situations under consideration were unique or special. But after the third or fourth such situation is described as unique or special, one begins to wonder what that language means. Second, we have not seen the so-called non-aligned veto in use. Even ifthe P-5 favor a particular resolution, it still takes four more votes in the Security Council to reach a majority. Third, in the case of several crucial resolutions mentioned by Professor Dicke, there are parallel General Assembly resolutions which have been passed by overwhelming majorities. These GA resolutions support the actions of the Security Council, often explicitly. As a result, it becomes a rather empty formalism to decry the lack of broader participation in the Council's initial decision to act. However, there are also problems with both the substantive and procedural approaches. While I do not propose to offer solutions to these difficulties, perhaps simply posing questions will be useful. The substantive approach - that is, defming specific categories of rules as comprising the universe of norms held to be in the international public interest - encounters problems of under- and overinclusiveness. If the defmition is broad, then potentially any norm may be considered to be in the international public interest. One could easily fmd a public interest

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component in the most technical international agreements - the Load Line Convention, for example. Ifpotentially anything may be said to be in the public interest, then the concept becomes meaningless. On the other hand, if the definition is narrow, there is the danger of delegitimating subjectivity. Professor Chamey has wamed us of"truth squads" going around identifying a smalliist ofthings that are in the international public interest, and I think this is an important criticism. The procedural approach has problems of its own. First, a focus on procedure, by defmition, means a lack of control over specific outcomes. We must, therefore, ask whether the sorts oftransparent processes I previously mentioned would produce desirable results. In the case of democratic elections, internationallaw is just beginning to grapple with cases in which repressive or openly anti-democratic political parties win elections. We are all probably familiar with the 1991 elections in Algeria, in which the Algerian people appeared to have chosen a government that was opposed to the democratic process itself. Is that an outcome we are prepared to accept in the name of furthering the international public interest? At the international level, there has been a consensus on some Security Council resolutions under chapter VII, but on others broader participation might have led to different results. If it were the General Assembly rather than the Security Council voting, would we have the Yugoslav and Rwanda Tribunals, would the intervention in Haiti have been authorized, would the referendum in Western Sahara have been abandoned long ago, would the UNTAC operation have gone forward? Perhaps the answer would have been "yes" in each case, but that is not so elear. Another problem with the procedural approach is the idea of relying on the use of certain procedures as a way of identifying issues in the public interest. Is the use of a procedure really an accurate measure ofhow deeply a norm has become embedded in the international order? Can one really conelude that any norm resulting from a given process is one truly touching the conscience ofthe states that vote for it? Professor Chamey noted that the Rights of the Child Convention now has elose to 180 state parties but has yet to achieve any impressive results. Should we nonetheless conelude from a procedure that has led to broad ratification of this Convention that all the rights it protects are held as fundamental by the ratifying states? I am not so sure. Whether anational legal order should be grounded in fundamental rights or in the sanctity of certain democratic procedures is a debate that has long raged in the United States, and I suspect in other nations as weIl. Perhaps we are now seeing this debate being replicated on the international level in the discussion of public interest norms. At both national and international levels, the choice of one ap-

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proach or the other represents a profound statement about the nature of the legal system itself.

Frowein: First, I would like to complement both ofthis moming's speakers - not only the speakers but also our organizers for not only having laid before us confrontations between American and German approaches but also confrontations between American approaches. Conceming Professor Dicke's paper, I have one rather technical and one more fundamental question. The technical question concems his analysis of Security Council resolutions in specific cases. When to discover what the Council sees as a threat to the peace, he also used the later ones in the sequence of resolutions. My question is: Must one not, when analyzing these resolutions, always take the first one as the most important starting point and read the reasoning in the frrst into those that follow? In fact, there is always a reference to the first one. I would have thought that some resolutions conceming Haiti must be seen in the context of that first start - for instance, threat to the peace resulting from non-compliance with the Govemors Island agreement. It is a more technical matter. The second question, which is probably a bit more fundamental, concems the use of erga omnes norms and particularly human rights norms as a basis for a threat to the peace. I admit that I am very reluctant to go the whole way in saying that here the Council has full discretion. Let us take the example ofTurkey! Nobody doubts that torture is a widespread phenomenon in Turkey; we have good indications for that in statements within the framework of the European Torture Convention and in statements of the European Commission and Court of Human Rights. Nevertheless, I think we are far from a situation where anybody could use Article 39 against Turkey. Therefore, it is quite important for me to try to fmd out where the borderline iso I think the borderline is really where you have massive use of armed force within a country with loss of life on a considerable scale. For me, that is really the main thing, and I would like to fmd out what the speaker thinks about it. Professor Chamey, I have already said privately that I am practically hundred per cent in agreement with him, and I am not going to repeat where I am in agreement. I will only put two additional questions. The first one concems the third party reaction or reprisal issue. I would like to find out if he would be willing to consider that we have witnessed, with the Nicaragua decision, a most unfortunate development because of the non-presence of the United States. The Court came

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out by saying that the economic embargo against Nicaragua, based clearly on the use of force against neighboring countries, was in violation of the Treaty of Friendship and Navigation but did not discuss the issue ofwhether it was justifiable as a third party reprisal because ofviolation ofthe rule ofuse offorce. I have taken the position that it was. I think there the United States lost the possibility to make a good point in internationallaw. My second question concerns the democratic entitlement idea. Here, I am again tom in different directions. I wonder whether we must not aIl agree that we are far from the situation where, for instance, Saudi Arabia could be brought under any sort of Security Council jurisdiction because its constitution has nothing to do with democracy. On the other hand, is it not possible that the system is developing to a rule of international law binding states to a certain extent to steps that they have already taken? Venire contra factum proprium, the idea of estoppel may be relevant here.

Shelton: I would like to thank both rapporteurs for their excellent presentations. I have two questions for Jonathan Chamey on his paper, in particular his discussion of obligations ius cogens and obligations erga omnes. The criteria suggested for identifying obligations erga omnes are quite useful. It might be noted that the first criterion, the absence of traditional standing, seems to be a common factor in the examples given by the ICJ in the Barcelona Trac/ion case. In a similar vein, both the European Court of Human Rights and the Inter-American Court of Human Rights have referred to human rights obligations as "unilateral," because no other state is injured when breaches occur. The first question concerns the interplay of the two concepts with each other and with the concept of public interest norms. It seems, looking at the proposed erga omnes criteria, that there is no reason to expect that an obligation erga omnes would necessarily also be an obligation ius cogens. The two are independent. For example, the criteria suggest that aIl human rights norms would be obligations erga omnes, but clearly not all human rights reach the level of ius cogens. The reverse seems also true: the illegal use of force violates an obligation ius cogens but is not necessarily erga omnes because usually the injured state would be in a position to bring a claim. As for the relation ofthese concepts to public interest norms: Are public interest norms only those that are both erga omnes and ius cogens? Is one or the other necessary? Or is the concept of public interest norms completely independent of both erga omnes obligations and ius cogens?

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My second question is whether you think criteria for ius cogens can be developed along the direction you take concerning obligations erga omnes. The drafters ofthe Vienna Convention on the Law ofTreaties abandoned efforts to develop a list of ius cogens norms, but perhaps it would be useful to elaborate identifying criteria. Some of the examples cited recall the tests applied by courts in deciding whether or not to issue an injunction. The value placed on autonomy and freedom of action leads to requiring irreparable injury and assurances that no less burdensome alternative exists before a course of conduct is enjoined. Although such standards are not directly applicable in the international arena, they may be a starting point for discussion if you think developing criteria for ius cogens norms would be a useful exercise. Joyner: Let me first congratulate the two paper presenters for their excellent presentations. I have leamed much from them and have a question for each. The first relates to Professor Dicke's paper. It is entitled "National Interests versus the Interest ofthe International Community." The question Ijotted down at the outset was: Whose national interest? Looking at the Security Council and its operation, I think it is important to realize that the Security Council works when the Great Powers want it to work. It is not necessarily that the Security Council acts when internationallaw is violated; rather it acts when the Great Powers on the Security Council want it to act. My question really concerns US policy, specifically the cases of Haiti, Iraq, and Libya, that many ofthe UN Security Council's actions were taken at the behest and through - shall we say - the leadership of the United States to effect its own national interests as weIl as the international community's. My main point is: How do we discern, or is it even important to discern, whether some particular state's national interest is the determinant motivation behind the Security Council's action? Or is it really in the interest ofthe international community, and not merely one particular Great Power actor who tries to manoeuvre its interest through the Security Council? The second question for Professor Chamey concerns general principles as a source of international law. We all realize that the bulk of internationallaw is Euro-centric in its origin, and we also realize that the world system has changed tremendously over the last fifty years through the era of decolonization. I have long thought that the developing countries have attempted to create their own law through an "instant principle" kind ofprocess. That is, they have attempted to use general principles as vehicles for creating norms through the apparatus of the

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General Assembly and subsequently through codification under international conventions. I think you can fmd this pattern applied to the assertion of new norms of internationallaw, as well as in the reaffmnation of principles that Third World states have generally supported. Such patterns are evidenced in principles such as self-determination, permanent sovereignty over national resources, common heritage of mankind, the principle of decolonization, the criminalization of apartheid and the like. The thesis lamasking Professor Chamey to consider is that the Third World has presented these general principles as such in General Assembly resolutions and has then worked to have them codified into international agreements which in effect substantiate and solidify these notions as general principles oflaw. Does he agree with that thesis? Conlon: My intervention will be more of a comment than a question and it relates to this morning's discussion of Article 39 determinations. Historically, fear ofthe consequences of such determinations, quite important in Security Council debates ten or fifteen years ago, have tended to disappear. In the 1980s, a resolution on South Africa was actually vetoed by the United States and the United Kingdom for no other reason than because it contained a phrase ofthat kind, and one ofthe speakers in explaining his vote actually suggested that the use of language like that was probably more of a threat to the peace than the system of apartheid. The fear of such determinations was a belief at that time that there was a logical consistent consequence which would flow out of it and which would then lead to a certain type of action or to a greater probability of taking that action. Western members were very much afraid of such assumed consequences in the case of South Africa and, further down the road, in the case of Israel. Time brought an inflation in the use of such determinations, and it is clear that there is no intimate logical connection between such adetermination and the action logically following it, hence inhibitions about fmding threats to peace and similar situations have tended to disappear. Members of the Council are not a monolithic body. After the 1980s, democratic countries are a little bit less worried about fmdings of this kind, and that is another reason why you have more of it now than you did then. In addition, such determinations have useful legal functions of non-binding nature outside the context of Charter law. The Security Council is one authoritative central instance which from time to time does make judgments of the kind which provide useful guidelines in other areas of law, particular in nationallaw, when dealing with such questions as whether or not a region is to be considered an

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"area of tension" to which anns may not be exported. It could be a useful guide to national states in anns export cases, even if the consequences are not binding. It might also have a lot of relevance in insurance arbitration cases. 1 also believe, and 1 stand corrected, that adetermination of some such kind was also cited in the German Constitutional Court in the A WACS decision. So that court actually found it useful to have an authority available that makes such determinations. The only other possibility would be the General Assembly. Despite our distance to what the Security Council tends to do nowadays, it is probably still better to have the Security Council making those determinations rather than the General Assembly. Because ofthis inflation, now, a slight problem arises with all those instances where no such determination was ever made, such as Turkey or Saudi Arabia. The claim could be made that, the Security Council having failed to make a determination that a threat to the peace obtained because of the human rights violations going on in those jurisdictions, therefore there is a quasi-official finding certifying their compliance with human rights norms, or at least such an argument would be very useful to the governments ofthose countries ifpolemics on this point should ever ensue. The point was brought out, and 1 think it worth stressing, that the Council finds it necessary on occasion to reiterate that determinations previously made are still valid. When the Council takes action, it is either a time-limited action like a peace-keeping mission mandate, which normally ends after a certain number of months, or it is something like sanctions which are open-ended until the Council with an equivalent procedure rescinds them. By occasionally reiterating that the original situation still remains a threat, the Council is showing a slight degree of insecurity, in the absence ofthe logically expected consequences, that it feels this determination will have lapsed if it does not reiterate it. There are two very important questions involved in these determinations; one is whether or not the Council is supposed to be using law. The licence given to the Council on this point occurs in a context where prompt and effective action is specifically mentioned and that is the official rationale behind this principle. Arguments of a very bitter nature have ensued amongst delegates behind closed doors ever since 1990 on precisely this point. It has also led to violent arguments among officials ofthe United Nations who have to implement Council decisions and who have no means of resolving these arguments. It has also led to recriminations and angry counter-recriminations between members ofthe Council and non-members. The issue is highly relevant. One interpretation is that this license does not pro-

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hibit the use oflaw; the Council is not precluded from basing its decisions on law. Most legal systems do provide for some non-legal inputs to legal decision-making in the form of jurymen or assessors. They are normally not completely free to abandon legal considerations. A lot depends on how one sees law altogether. In democratic societies, law and politics are not considered opposites in a irreconcilable dichotomy. Politics is understood to contain a strong element oflaw. The same is true of law which is never totally free from political considerations. The entire debate, as bitter as it has been, actually comes from a dichotomie philosophy which sees law as somehow being incompatible with politics. Democratic societies do not need to argue this point at horne. They are less likely to have problems with it in the context of the Security Council. The main protagonists of the politics-rather-than-law argument have been delegates or officials from some of the most authoritarian backgrounds. They are more at ease with a system that deeides everything in terms of politics. But the second and more important question in regard to this dichotomy between law and politics lies in the next step. What happens after adecision is made in connection with the desire for prompt and effective action? There is a general agreement that we must accept a degree of political licence with such decisions because that is in the Charter. But does that mean that everything that happens beyond that point is to be done within the framework of political rather than legal criteria? This is particularly important because once you go from decision to implementation there is really no clearly established body of law available. In present circumstances, the full freedom ofunbridled politics with no consideration of law is even stronger beyond the point where the Security CouIicil in plenum makes adecision. Peace-keeping forces or sanctions committees must then adapt and implement the decision to day-to-day circumstances on the ground. In peacekeeping this has had disastrous and even lethal consequences. Many years ago Brian Urquhart formulated a few simple rules of peace-keeping wh ich turned out to have little value for the military men in the field. So, somebody was given the job of creating a procedures manual, a codification of what the regulations were and how they were to be used. The last edition that I saw came to several hundred pages. A form of law imposed itself on reality when it turned out that unbridled politics was not a guide to action in complicated circumstances. In the case of sanctions, everything beyond the Council's decision goes on behind closed doors, and this is not an environment where law develops very weil. But it is important to stress that nothing in the Charter prohibits law or mandates unbridled politics in implementation. Most member states would be more willing to accept these determinations, and these measures as adopted, if

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they knew that beyond that point there is an established legal system that will be followed. I have a fmal point on which I hope you, Professor Dicke, will be able to comment. It refers to the way you analyze what you call the practice of the Council in making Article 39 determinations. But it would be the same if you had been analyzing presidential statements which do not contain such determinations. Those privy to what goes on on the inside, like Helmut Freudenschuß, have pointed out that, if one knew how a text or resolution was generated, how it evolves from the fIrst draft up to what gets adopted, one would not be able to read into different wordings and formulations the type of signifIcance that you are doing because you are thinking of this as a type of court. If a court in its practice begins to change its terminology or it fmds, say, negligence less often in highly similar cases, you can say that after much analysis, and perhaps because of a change in conditions or attitudes, it is coming to a conclusion that a certain act is less negligent. In the case of the Security Council, the exact wording is open to so many vagaries, some of which have nothing whatsoever to do with any analysis or determination of anything in our sense. They are purely the result of horse trading among delegates to determine why some member will abstain rather than vote against, or vote for rather than abstain. Resolution texts which may originally have been quite coherent get mangled because some delegate claims his govemment will not allow him to vote for the resolution unless the wording is changed. In the interests of unanimity, critical passages get reworded. In a situation like that, it is doubtful if the word practice that we associate with courts and more orderly bodies is all that correct. We can use it since we have to have some word or concept or analogy to help us explain or orientate ourselves in what we are trying to understand. But by using that word, you tend to create the image of a determination arrived at after much mature consideration with regard to all the criteria you would use in a court. This goes to the other aspect ofthe same issue. Such analysis implies that there is a coherent will on the part of the members, individually and ultimately collectively, to arrive at such a conclusion as a result of a coherent des ire to make a fInding one way or the other. Again, the methods used for determining these things do not follow procedures which would actually justify such an interpretation. In many cases there is no analytical discussion until adelegate, or a group of them, comes up with a draft text which has been generated by a foreign ministry without any contact with other members ofthe Council. The delegate ofthe sponsor then shows it to delegations most likely to support, and they may ask for minor changes; then he goes to those he knows will be less receptive, and they may

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demand more substantial compromises on what the draft originally intended to say. Now to analyze this in the same way that you analyze how a court arrives at its conclusions is, to some extent, to read more into these activities than is really there. Therefore, my question is: Is there not some consequence for the validity or the legal value ofthese determinations arising out ofthe less than perfect procedures which are used to generate them. After all, in legal systems where there is some judicial review, this is precisely one ofthe criteria on which courts occasionally overturn statutes. Dicke:

The focus of my analysis was the wording of those more recent resolutions of the Security Council by which a threat to the peace was determined. Although it is always achallenge for a political scientist to analyze decision-making processes, I did not go into the Council's decision-making and the consequences deriving from it because in my view that would call for another conference or, at least, for another paper. With regard to the question of Professor Joyner, however, let me make one remark on decision-making by or, better, within the Security Council. Whose national interests are at stake? Of course, they are the national interests of the leading powers which govern the Council, the so-called "P-3". When I gave a lecture on the Security Council in September 1995, a former ambassador to the United Nations agreed with my observation that the drafting process ofthe resolutions in the Council is roughly as follows: The United States prepares a flrst draft and takes Great Britain and France into her confldence; after that, the P-3 enter into negotiations with Russia, and, as soon as an agreement comes up, they look for a quid pro quo with China. Even if that picture were wrong, I cannot imagine any resolution ofthe Security Council coming into being without strong national interests being involved. This is, however, only one side ofthe coin. Interestingly enough, Mr Fox pointed to the particular environment in which Security Council resolutions emerge. At the same time as the Council took its decisions on Yugoslavia, the General Assembly expressed a consensus aiming at the very direction which the Council's decisions took. In my view, there was a similar situation when the Rhodesian decision was taken, since at the same time the Convention on the Elimination of All Forms of Racial Discrimination was adopted by a remarkably strong consensus. So, in my view, the political environment as created by international organizations is an important factor to be taken into account when it comes to an analysis of

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Security Council decision-making. One further remark to Mr. Fox: It is true that a number ofstates behave differently, but as members ofthe United Nations a lot of states are inclined to cooperate at least in a technical sense. By this very inclination they are more prepared to behave peacefully or, at least, to conform with international procedures. Let me now turn to the questions of Professor Frowein, flrst to the technical one. I am not quite sure that in all cases one has to read the flrst determination into those that follow. Of course, this is true for the cases you referred to, in particular with Haiti. But when I was asked to analyze recent Security Council practice, my flrst impression was that I would have seven cases before me. Then I read the many decisions ofthe Council taking adetermination under Article 39 and found that many resolutions have a different wording. And for reasons Dr. Conlon pointed to it is comprehensible that in different situations the Council arrives at different wording. Politically it makes a difference when the Council is in a situation in which a consensus on adetermination can be reached easily and it takes adecision knowing that perhaps in two weeks things are different. This was the reason that I preferred to analyze the Council's practice decision by decision. Now to the more fundamental question: in my view, the Security Council was politically and perhaps even legally ill advised to take adetermination under Article 39 with regard to Turkey. First, there are other means and other instruments to deal with Turkey which , if applied, could be more effective. Second, under certain circumstances adetermination of a threat to the peace by the Security Council can itself amount to a threat to the peace. One can raise the question whether the Apartheid resolution wh ich was vetoed by both the United States and Great Britain did more harm than good to the peace. Third, and this is my answer in terms of legal doctrine: I said in my paper that I can hardly imagine any violation of fundamental human rights taking place without violence. But I took the view that it is the violation of fundamental human rights as such which entitles the Security Council to take measures. Violence or use offorce is not a necessary precondition. In my view, one has to make this step if one takes the notion of erga omnes norms seriously. That does not mean that each and every case ofhuman rights violations constitutes a threat to the peace in the sense of Article 39. I agree that in a number of cases, as, e.g., in the case of Myanmar, the legal basis for a determination under Article 39 is given. But I have doubts as to whether in all cases the Security Council would come to the conclusion that the political basis is there to take a situation on its agenda. Even if it is very unsatisfactory from a legal point of view, for the time being the Security Council has to take into account both the legal and the political aspect of a situation.

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My last point goes to Professor Kiss who mentioned the basic principles. One reason why it is an interesting task to analyze the role of basic principles in lawmaking processes is that as a matter of principle it is easier to agree on basic principles and leave the question of details and consequences open for later negotiations. If such an agreement took place, it is up to nations and to national interests to decide on the implementation of agreed principles. The process of adjusting national interests to internationally agreed principles is one of the most challenging topics for an analysis ofthe international legislative processes. Charney: I will start with the statement by Professor Kiss since he closely follows my views on some ofthe issues before uso First, I would like to address his last statement and question: Is not an law created for the purpose of serving the human person or human groups? I agree that is the basic function of law. The juridical concepts such as states, corporations, and non-govemniental organizations are just that. They are constructs designed to serve the natural human person. I do not know how far that takes us in figuring out what is internationallaw. In my opinion, in creating internationallaw one needs a process that is accepted by the community which it serves. I think Professor Kiss provided a helpful tri-level breakdown: basic values, implementing principles, and concrete roles imposing obligations on states. My paper does not become relevant until we get to concrete roles imposing obligations on states. At that point, I am much more concerned with the procedures by which we reach those concrete mIes. Before that, in regard to forming basic values or even implementing principles, we can be more relaxed about their development, even though they may, in fact, lead to the ultimate creation of law that serves human beings. Professor Fox addressed the distinction between substance and procedure. I think he was addressing me more in regard to the procedural approach. That is what I will address. Substantively, I may be uncomfortable with an outcome that I do not desire. What is important and what I was trying to stress in my presentation was that we do need procedures that are very sensitive, so that they provide, in asense, a democratic system for participation such that all interests are heard. That system, however, must be also very sensitive to the particular interests of states and other entities, as wen as to the geo-political power ofthe players in the system. The result may not be what I would like personally, but the system is designed to serve the international community. That is the optimal objective. I do not know whether it always will produce the best solution in every case. But if it

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reflects the combination of interests that are present in the international community, that is what it should do. This will determine how deeply held a value is, whether it is ius cogens or erga omnes or whatever. What I argued was that we now have a procedure that is more transparent. Thus, in the process of lawmaking these issues are likely to be raised directly at the front end. In the appropriate situations the participants would know that the subject is of particular importance because it is ius cogens accepted by the world as a whole, that persistent objectors are not permitted, or that it is enforceable erga omnes by all the world. Professor Frowein, your fIrst question links very closely to Professor Shelton's question. You asked whether the United States missed opportunities in the Nicaragua case. Yes, it did. It missed plenty of opportunities. The United States blew it. But be that as it may, I am not really sure what would have been the outcome of the third party standing issue in that particular case if the Court had really addressed it. If you take the position I put forward, that third state remedies are available in particular contexts, the mere fact that it is a ius cogens norm does not necessarily mean that it is enforceable erga omnes. I think they are not necessarily linked. Professor Theodor Meron has written on this question and has been very explicit on this point, in particular. Ius cogens norms may very weil all be enforceable erga omnes. Ius cogens norms are very important norms, and one might reach the conclusion in particular cases that they are enforceable erga omnes. On the other hand, if the directly affected state had the means to enforce its rights, perhaps third states would not have standing to bring the claim. I must confess that I did not understand your second question. Frowein:

The idea was whether, concerning the democratic entitlement, one may have to make a distinction between the cases where we have never had a democratic govemment and where a democratic govemment has been in operation. Charney:

I am sorry, but I have not made a distinetion based on that point. I have answered the fIrst part ofProfessor Shelton's question. With respect to the second part, I agree that it would be a valuable exercise to see whether we could develop an analysis of what circumstances justify labeling a norm as ius cogens. Obviously, no one yet has come up with that formula. It may be difficult but not impossible. But there is an interesting point that is inherent in your question. It concerns

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something that Professor Oxman raised yesterday. Maybe you did not mean this, but you seemed to suggest that you were thinking of ius cogens norms outside of the context of treaties. That has a certain significance. I wonder whether you want to make that jump and what the consequences may be. Perhaps it would produce the kind of negative effects that Professor Oxman was speaking about. It would necessarily mean that important roles might not be catalogued as ius cogens and, as a consequence, states may consider that they can derogate from them unilaterally, contrary to the normal role of internationallaw. And lastly, I will address Professor loyner's question about general principles of law and the practices of less developed countries at the United Nations and elsewhere. We could debate whether we need to stay within the context of article 38 ofthe ICI Statute. But let us assume that we are and that the debate is whether we are in article 38 paragraph I(b), "international custom, as evidence ofa general practice accepted as law," or (c), "the general principles oflaw recognized by civilized nations." I must be conservative in this regard. I continue to believe that when the phrase (c), "general principles recognized by civilized nations", was adopted the core ofthe meaning, as found in the Statute ofthe ICI and the PCIJ, was those general principles necessary for a complete system of law - roles that are inherent in a system oflaw as a whole. Those principles are included to assure a whole and effective international legal system. I think it would be incorrect and unwise to interpret this wording to mean those general principles of law that all states accept as legally binding at the international level. I do not think it is necessary to push it this far. I am more comfortable with reading article 38 paragraph I(b) to include more than real world state practice to establish new law. You should notice that it says "international custom, as evidence of a general practice accepted as law." What I argue is that this may include general practices in international organizations and in treaty-making that are accepted as law. That is where I think the Court and the international community are moving by allowing these processes under the right circumstances to provide proof of international law. I am not saying that all principles you spoke of are law today, but that they can move into law through these more deliberative processes. As a consequence we do not have to rely on real world state practice and historie custom going back four hundred years in order to create internationallaw. Tomuschat: I should try to give a tentative answer to the question of what public interest norms are. In my view, public interest norms can be identified both in terms of

14 Symposium 1996

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substantive and procedural law or in substantive and procedural tenns. One regularly finds substantive defmitions when procedural consequences are provided for. Take, first of aII - and it is amazing that nobody mentioned that - the Nuremberg Principles, when action was taken at Nuremberg to prosecute the major war criminals ofNazi Gennany. That was a defmite action taken by the international community represented by the major victorious powers. Then there also exists article 19 of the frrst part of the ILC draft on State Responsibility with four categories which are just examples, but stilI they seem to indicate the most serious breaches of international law which are presently known. We could go on to erga omnes nonns, Barcelona Traction at least gives some examples. A silent nonn is article 53 ofthe Vienna Convention on the Law ofTreaties, where the International Law Commission even refrained from giving specific examples or a list of examples in its commentary on the provision. But in aII of these instances you have procedural consequences. First of aII, at Nuremberg - or now you could make reference to the Statute ofthe Hague Tribunal or the Rwanda Tribunal - the international community brought charges against individuals who had aIIegedly committed grave breaches of applicable standards of international law. Second, as far as state responsibility is considered, the intention is to involve the international community in detennining the specific consequences deriving from a breach of nonns which protect the foundations ofthe international community. In the third instance, concerning erga omnes nonns, there is a hint that third states might take action by way of countenneasures. And finaIIy, as far as ius cogens nonns are concerned, the international community states its resolve not to recognize or to enforce any treaty concIuded between states which encroaches upon basic values of the international community. In aII of these instances, to sum it up, the international community has made it cIear when it is ready to take coIIective action. Everything comes more or less from the same basket, with only slight variations. Of course, there are variations, ius cogens is not exactly the same as erga omnes, but aII the rules constitute an attempt to protect the real basis upon which the civilized state of affairs of the international community rests. There may be different degrees, different mechanisms, and different procedures to enforce the coIIective interest. At the first step one encounters, for instance, statements by the General Assembly. When the General Assembly takes care of some subject-matter by pronouncing on the issue, recommending a specific solution to a problem, this is a first level intervention by the international community. Then we have the second level, represented above aII by article 24 of the European Convention on Human Rights, where states are granted a right to make complaints whenever another state party has aIIegedly not

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complied with its obligations under the Convention. Then we go up the ladder step by step. At the highest level, we charge individuals because they have committed grave breaches of international nonns. I would say that it is indeed a procedural criterion which pennits us to identify public interest nonns. Whenever the international community does not leave it to the two parties to a dispute to settle a matter between themselves as not being of any concern to it, but when it feels compelled to intervene to take action of one sort or another at different levels, then you can speak of a public interest nonn. Of course, that is to some extent a semantic problem, how do you baptise a child the way you wish to do it. I come back to article 19 of part I of the draft articles on state responsibility, which to me is the central argument, not only because I am currently still a mernber ofthe International Law Commission. I only want to state that it is terribly difticult to reach agreement on the consequences of the commission of an international crime. The list of four major crimes is largely undisputed, although some members challenge the notion of international crimes as such. This controversy derives from the question of whether the notion of international crime has a criminal connotation or whether it just indicates a particularly serious breach of international nonns, it has created great difticulties. The question is whether you need a supplementary system besides and beyond the system which is provided for by chapter VII ofthe Charter ofthe United Nations under which the Security Council can take action. Do we need an additional system which does not necessarily involve the Security Council? Our special rapporteur, Mr Arangio-Ruiz, has made a somewhat complex suggestion. Could one take the view that, whenever an international crime has been committed within the sense contemplated by article 19, the Security Council can deern this to be a threat against international peace and security? That could be a solution. But still there is the question of the veto, and the question is: Should there not be something ifthe Security Council is unable to take action? Recently the Potsdam Agreement has come back into public discussion here in Gennany, and, as I have learned, the three or four Potsdam powers have sent a note to the Federal Government telling them that everything that occurred at Potsdam was lawful and perfect and could not be challenged. At stake are the consequences attached to an international crime that was committed by Gennany by unleashing the Second World War. Can you provide for a sanction as terrible as expulsion ofpopulation from their ancestrallands in order to reduce the territory of a country that has committed a crirne of aggression? We discussed this in the International Law Commission. What kind of specific sanction can you provide for if and when an international crime has been committed? Should that be left entirely to the discretion of the Security Council? Should there be a supple14·

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mentary institutional system alongside and parallel to what is already provided for under the United Nations Charter? I simply have to acknowledge that until this very day no solution has been found to that extremely difficult problem.

Stein: I have one comment or question on Professor Dicke's paper this moming. He was saying that the Security Council has limited "legislative" power in the area of maintenance of peace. I am not entirely convinced that one can, or even should, speak of "legislation" in this context. If we take as the result of legislation a norm that it is applicable in more than one case, then we should not call resolutions for certain situations "legislation." The area in which the Security Council might legislate is interpreting Article 39 ofthe UN Charter, giving it a wider understanding. We must certainly accept that the Security Council has a wide discretion in interpreting Article 39 due to its unique function to preserve or restore peace in the world, and we have to accept that the Charter is fifty years old, and it has never been amended in its substantive provisions, so there is some room for development by interpretation. But then, as Dr. Conlon already mentioned, the circumstances under which these interpretative efforts take place are influenced by very different conditions: the factual and political situations outside and inside the Security Council, an imminent veto, the preparedness of states to take over the job that the resolution is proposing. Think of Kuwait: The coalition that was mentioned in the Security Council's resolution was already in place; ifthere had been no coalition, there would have been no resolution 678, because the Security Couneil would not have been able to send troops of that size to the Gulf. The same is true for Yugoslavia, when one resolution mentions the readiness of one state that has notified that it is willing to take over. These very different circumstances are certainly not an ideal environment for creating a norm which should then be applicable to other cases. I would rather call this interpretative discretion which the Security Council certainly has, but not "legislation." A following question would be: For whom is the Security Councillegislator? Is the Security Councillegislator only for itself, making its own rules for the next time, or are there norms coming out ofthat "legislative process" that could be applied by others? Could states go out and intervene when democracy is overturned in astate? If Security Council resolutions create norms, the result of a legislative process, then they should not only apply to the Security Council. All these are open questions.

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I have a "mean" question in the end, because I am still a bit in the dark, even after Professor Tomuschat's defmition of public interest norms, and because I want to go horne a bit more educated: For what purpose do we need public interest norms? What can we achieve with that term which cannot be realized with the existing arsenal? Professor Tomuschat was describing rules that already exist. So, why do we have to rename them, unless we want to achieve something? And my question is: What do we want to achieve by calling these already existing phenomena by another name? I am not against it, but I want to understand why we need it. Do we create different types of sources? Is a public interest norm a treaty, customary law, general principles, or something else? Could it be each? Then, what is the difference? Do we have another hierarchy? Less than ius cogens, more than ius cogens, somewhere in-between? Why do we need it? Or is the law-creating process a different one? Do we make exceptions to the rule that treaties do not bind third states if we have a public interest norm, or do we have some more instant customary law in that area? Or is there no "persistent objection" possible against the emergence of a public interest norm? I am again asking for the consequences and put it in a nutshell- the question is: For what purpose do we need "public interest norms"? Schreuer:

I have two brief comments. The fIrst one concems decision-making by the Security Council under chapter VII. Professor Dicke has given us a very good overview of the practice of the Security Council and the extensive use of Article 39. This practice, ifwe take an honest attitude, really goes beyond peace and security in the immediate or narrower sense in many respects. The Security Council has assumed the role ofa guardian ofhuman rights, at least in egregious cases of their breach, as was the case with the Iraqi Kurds, or in Somalia, or in Rhodesia and South Africa. The Security Council has assumed the role of a guardian of democracy, as was the case in Haiti. The Security Council has in some instances even assumed the role of guardian of intemationallaw in general. If we look at the Security Council's "Armistice Resolution" 687 against Iraq, we see elements which have virtually nothing to do with peace and security. Let me say immediately that all this does not worry me. I do not think that there is a problem of legitimacy and that we must go back to the wording of the Charter. The real criterion is the contemporary understanding ofthe functions of the Security Council as it has developed over time. In other words, the expansion of the powers of the Security Council is unproblematic as long as it is carried by

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the contemporary expectations of the world community. In a sense this also applies to its legislative functions. In reply to Professor Stein: The Security Council has established a war crimes tribunal including the adoption of astatute that even contains rules on the applicable law. 1fthat is not legislation, then I do not know what legislation iso What worries me much more is the acceptance of the activity of the Security Council by the world community in tenns of its composition. This is a much more serious problem. Therefore, I would take the debate about the possible enlargement ofthe Security Council very seriously. We have a serious dilemma ofrepresentativeness versus effectiveness. We all know that the larger the Security Couneil and the more vetoes, the harder it is going to be to have an effective body. If there is a Security Council in excess oftwenty-five members, we may approach situations that we are used to from the General Assembly. My second point as regards the Security Council is its intrusiveness; the infringement of sovereign prerogative. There is a relatively simple fonnalistic answer: Article 2(7) of the Charter contains a special exception with regard to chapter VII. So, theoretically, the Security Council by switching into chapter VII mode, can override Article 2(7). But I think that is too simple an answer. The Security Council proceeds in what Professor Dicke has described "an idiotie manner" in going about its business. It goes from case to case, and it adopts its resolutions in cases where the special circumstances or the special interests ofthe dominant members allow it to proceed, even though there are doubts in principle as to the appropriateness of action. Rhodesia is a good example. There the Security Council basieally concerned itself with a specific problem of govemment, let us call it the representativeness of government. South Africa was a similar example. This arose again with the maltreatment of the Kurds in Iraq, and even more so in the resolutions concerning Haiti. Especially the later resolutions were surrounded by caveats about the very special circumstances of the case or about the unusual situation that was at stake. But collectively these resolutions still amount to a pattern of legitimate intrusiveness. When you look at them in cohesion, it would be very difficult to undo this pattern once it is established, even though when the decisions are being taken, this is done on a one by one basis. In other words, sovereignty is being encircled slowly, even though the Security Council in any one particular situation may not even be aware ofthis. On the other hand, the dramatically deteriorating fmancial situation ofthe United Nations makes one ask whether in debating the powers and functions of the Se